New South Wales Supreme Court 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 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 CASES CITED : 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 David Antony Gaskell (Plaintiff) PARTIES : 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 Mr DW Elliott (Plaintiff) COUNSEL : Mr JA Gracie (First Defendant) Mr J Catsanos (Second Defendant) GH Healey & Co - Chatswood (Plaintiff) SOLICITORS : 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): "Q. I think I alluded to this in some of my earlier questions, that on the happening of the fall, one of the natural things that would have gone through your mind, on your case, one would assume, is 'I told them about this problem and here I am having fallen over and injured my knee.' I mean, that is what must have gone through your mind, isn't it? A. Well, yes. Q. And it is precisely what you must have thought to yourself; correct? A. That I just give me the first question again? Q. You have already agreed that what must have gone through your mind was something along the lines of, 'I told them about this problem and now I have really hurt my knee because of the very thing that I told them about.' That must have gone through your mind? A. Yes." 101 The Plaintiff was reminded of the absence in the further and better particulars provided prior to hearing of any assertion that there had been a complaint made by him to a representative of Denkas or HRA prior to 10 September 1998 (T327ff). The Plaintiff's evidence given in an attempt to reconcile his evidence at the hearing with the earlier further and better particulars provided on his instructions was, in my view, less than convincing. I shall return to this topic later in this judgment. 102 It was pointed out to the Plaintiff in cross-examination that the letter of 11 September 1998 (part Exhibit D) was silent concerning the alleged presence of water on the floor and any alleged earlier complaint about the pooling on the toilet floor (T337-338). The Plaintiff asserted that he had requested his secretary to write the letter and that he believed that he had not dictated the letter to her (T338.11). This evidence conflicts with the earlier evidence of the Plaintiff where he asserted that he had dictated the letter sent on 11 September 1998 (T178-21-T178.35). 103 Mr Catsanos put to the Plaintiff (T341.59): "Q. One would expect not only would you have said, as I put to you now a few times, 'Notwithstanding my complaint, nothing was done and I have been injured.' You would have expected, if you were on the subject of maintenance and defects, that the very defect that you allege caused your injury, and that you alleged you complained of, would have received at least some space in this letter; would they not? A. Whether the injury occurred before or after, even if, as you assumed, we had not told the agents before a fact which I deny even taking that as the case, there might be an argument to include in that follow up to say 'You haven't repaired the water on the floor.' That does not occur, so the mere reference of there being nothing about the reference to the water on the floor here has nothing to say whether it occurred before or after. Q. I don't understand that, but my proposition is that you would expect in your letters to the agents, dealing with defects and maintenance issues, that these letters would refer to the very defect that you say caused your injury; would you not? A. I would have thought, yes. Q. And it doesn't contain one syllable about that, does it? A. It doesn't." 104 The Plaintiff had no satisfactory explanation for his failure to mention in subsequent correspondence to HRA the alleged pooling of water prior to September 1998 and the alleged complaint about that topic. He was asked (T348.53): "CATSANOS: Q. Mr Gaskell, having no evidence that the problem had been fixed and in the circumstances of the injury that you had suffered, against the background facts that you have told us about, the prudent thing for you to have done when writing to the agent in February of 1999 would have been to have raised an inquiry as to whether this problem had been fixed, would it not? A. I disagree with your first line in that question, 'having no proof that the problem had been fixed'. Q. Sir, you told me not five minutes ago that, as far as you knew, nothing had been done to fix the problem? A. I said no repair had been done. I still state that, that no repair had been done. That does not mean that the problem had not had some action. Q. Mr Gaskell, we could be arguing about this all day. Can I just move on to another question? A. Yes. Q. You wrote, as Mr Gracie discussed with you yesterday, on 17 February, again to the agents, this time threatening to go to the local papers? A. Yes. Q. You weren't averse to complaining about threatening if you thought it appropriate, were you? A. The particular letter you're referring to I presume is the letter of 17 February 1999. Q. You weren't averse to making a threat and complaining in fairly strident terms if you felt it was appropriate? A. This is a letter that not only have I signed myself, but I recall actually typing myself, and it is a letter that is the second that I have signed but probably the first that I have actually physically typed, and it was after a period of nearly a month of inactivity and no answer from the agent." 105 The evidence demonstrates that the Plaintiff was ready, willing and able to raise issues concerning the state of the premises with the agent, some times in strident terms, if he considered that it was in his interests to do so. Against this background, it is difficult to understand that had he observed pooling in the manner alleged by him and had he complained about the pooling prior to 10 September 1998, that he would not have referred to this in writing after the fall. The absence of such contemporaneous written complaint after the fall is a telling factor against the Plaintiff's account of events allegedly preceding the fall. 106 There is a significant contrast between the Plaintiff's readiness to raise matters concerning the state of the leased premises in writing with HRA on other occasions, both before and after 10 September 1998, and the absence of any written complaint concerning alleged pooling of water on the men's toilet floor. In my view, this is most significant in considering the existence or otherwise of contemporaneous corroborative material supporting the Plaintiff's claim that he had complained to representatives of Denkas and HRA about the alleged pooling in about May 1998. 107 Having regard to the Plaintiff's left knee injury sustained in 1983, it might be thought that he would have a heightened sensitivity to any risk of slipping in any part of the leased premises. The absence of any written complaint by him concerning this matter prior to 10 September 1998 is significant. Tellingly, the absence of any written complaint from the Plaintiff after 10 September 1998 alleging, in terms, that he had slipped in a pool of water on the floor of the men's toilet and that this was a matter about which he had complained at an earlier time to representatives of Denkas and HRA, undermines his evidence on this point. 108 The position is further compounded by the matters which were alleged, and not alleged, by way of further and better particulars provided before the hearing, in his counsel's opening address and in his own evidence in chief of the first day of the trial. The sudden and somewhat dramatic change in the Plaintiff's evidence on the second day of the trial with respect to alleged earlier observations of pooling and complaints made to representatives of Denkas and HRA is difficult to accept. There are fundamental inconsistencies and contradictions in the evidence of the Plaintiff. His own statements expressed directly, or through his legal representatives, up to the end of the first day of the trial did not allege any direct complaint by him to any representative of Denkas or HRA prior to 10 September 1998. At its highest, there appears to have been an allegation of a hearsay account obtained through plumbers working at the premises in 2000 that a representative of Denkas was said to have some prior knowledge on this matter. This is far removed from the version ultimately given by the Plaintiff. 109 The Plaintiff's evidence on this issue is so unsatisfactory and unreliable that a finding ought not be made, on the balance of probabilities, that the Plaintiff complained about alleged pooling to representatives of Denkas and HRA prior to the fall in September 1998. The evidence of Mr Rogers and Mr Harding 110 The Plaintiff's position on these issues is worsened further by the sworn evidence of Mr Rogers and Mr Harding that no such complaint was ever made to them. This material fortifies my conclusion that the Plaintiff's evidence does not establish, on the balance of probabilities, that some prior complaint was made. 111 Mr Rogers gave evidence in HRA's case. During examination in chief, he was asked (T521.31): "Q. Right, so I want you to assume that Mr Gaskell has said (page 108 of the transcript) that there was an occasion, he believes probably around the middle part of 1998, when he had a conversation with either yourself or Mr Harding, you can't speak for Mr Harding, I am not asking you to do that, but just in relation to yourself I want you to assume he said he had had a conversation that may have been with you. This conversation (page 110) was along the lines that he had just, assuming we are speaking about you now, that he had seen you at the premises with a potential new tenant who you were apparently showing around the property for inspection purposes and that he took you, seeing you in that context it was in fact suggested, again assuming it was you, that you, having seen Mr Gaskell, were using him as some sort of referee, somebody who could speak about the premises for this new tenant, having been a long term tenant, that you were promoting Mr Gaskell as somebody who could provide some sort of recommendation so that in that context he then took you to the bathroom on the first floor and said, 'Here's a pool of water, its often there. Can it be fixed?' And you said something along the lines of 'I will address that with the owner'. So that is a conversation he says occurred in the middle part or thereabouts of 1998. Now I want you to carefully consider that evidence and tell me did any such conversation ever occur? A. No. Q. Can you remember any occasion when Mr Gaskell took you down and showed you anything about the bathroom? A. No. Q. Can you remember prior to September 1998, 10 September when he had his fall do you remember if Mr Gaskell ever complained to you about there being any issue with the bathroom, any maintenance issue with the bathroom? A. No. Q. This is the bathroom on the first floor we are speaking of? A. Yes. Q. Do you deny that conversation as asserted by him? A. I do. Q. The interaction that I have described to you do you consider that would be one that you would remember? A. The? Q. If Mr Gaskell took you while you were showing the premises or took you down to the bathroom and showed you a problem in the bathroom do you think you would have any problem remembering that if it actually happened? A. I would remember it. Q. You deny it happened? A. I do. Q. If you were shown something, a mess in a bathroom, would it be your response to say 'I will pass it onto the owner'? A. No. Q. No doubt from what you told us you would pass it on to the owner? A. I would. Q. If there was a puddle of water on the floor would you do something about it? A. I would. Q. You wouldn't just leave it? A. No." 112 Mr Rogers said that he attended the first floor of the premises on the morning of 11 September 1998. Mr Gaskell was not in his office. Mr Rogers went to the men's toilet on the first floor and entered. He was asked by Mr Catsanos (T525.1): "Q. Tell us what you saw? A. I did not see anything that would be unusual or draw my attention to there being a problem in the bathroom. Q. I think I asked you before but I will do it again for clarity's sake; did you ever have trouble walking over the surface of the floor in that bathroom? A. No, no I didn't. Q. Any problem with traction of the tiles, anything like that? A. No. Q. The day after Mr Gaskell hurt himself you went in there, did you have any trouble walking over the surface of the floor? A. No I didn't." 113 Mr Rogers was in his vehicle returning to the office that day when he received a telephone call from the Plaintiff. He gave the following account of the conversation (T525.53): "A. He rang me. He said, 'You are aware I have had a fall?' I said, 'Yes I was made aware'. He said he was disappointed because I had not been to see him and I corrected him and said I had rung the previous day and I was told he was on site and he wasn't there. I also told him I had just left the premises after inspecting the property and that there was no one at his office. He was, his voice became heated with me that --- Q. When you say his voice became heated, what, you were listening? A. I was listening and his tempo lifted over the phone that I had left the building without going to see him and then I indicated his office was closed when I got there and he became, his tempo lifted again and he wanted me to turn around and go back and speak to him. I said 'I have been to the building and I have inspected the toilets'. I asked him what actually happened . He said he had been to the toilet and he stepped down from the urinal and slipped in the urine or something and I said to him I had been there and inspected the property and I could not see anything wrong with it and again he wanted me to go back and meet with him. The conversation then became heated because I said no and he said he wanted me to and I agreed I would speak to him early the following week. Q. So the conversation came to an end? A. It came to an abrupt end. Q. Did you speak to him the followings week? A. Yes I did. Q. What was that in relation to? A. It was just a follow up conversation mainly. I don't remember the context of that conversation. Q. In this first conversation, the one that happened on the day after Mr Gaskell says he hurt himself, did he at any stage say to you there was any problem with the surface of the floor or problem of pooling water, anything like that? A. No apart from he told me he slipped in the urine or something. Q. Did he say anything to you about there having been a problem with the floor or problem of pooling of water, anything like that in the conversation you had had with him the week before? A. No. Q. Subsequently to 1998 you continued to manage the property? A. We did. Q. Did you have occasion to go back into that bathroom from time to time? A. Yes. Q. Did you ever subsequent to November 1998 during the time you continued to be involved in the property ever have any problem with the water or pooling of water in the bathroom? A. No. Q. Can you recall when it was you ceased in your management role? A. The building was sold I believe in December of 1998 and we sold our business including the rent roll in May of 1999." 114 In cross-examination, Mr Rogers agreed that Mark Kasunic was a principal of Denkas and was, for practical purposes, the owner of the premises and that he attended them from time to time (T530.15). 115 Although challenged under cross-examination by counsel for the Plaintiff, Mr Rogers remained firm with respect to the absence of any complaint from the Plaintiff to him concerning alleged pooling of water prior to 10 September 1998. In my view, Mr Rogers was an impressive witness. 116 Mr Harding gave evidence in HRA's case. In the course or his evidence in chief, he was asked (T605.27): "Q. From time to time in your dealings with Mr Gaskell, did he ever have any queries or complaints that he raised with you? A. Yes. Q. What were they in relation to generally, do you say? A. The predominant one would have been airconditioning. I don't know if he raised them specifically, but there were other issues with the building, but I don't know whether Mr Gaskell raised them specifically, but definitely airconditioning I recollect. Q. Would you from time to time see him at the premises? A. Yes. Q. And would you speak to him? A. No. Q. Did you ever have discussions with him face to face? A. No, not discussions. We would acknowledge each other, but I don't recollect having any discussions." 117 Soon after, counsel for HRA asked Mr Harding (T607.21): 'Q. I want to take you to some allegations that have been made by Mr Gaskell in relation to some dealings he allegedly had with either yourself, he says, or Mr Rogers in about the middle part of 1998. I want you to assume that Mr Gaskell has told this court that he is uncertain as to whether he spoke to you or Mr Rogers at that time, but that he alleges that at around that time, May/June 1998 one of the agents, either you or Mr Rogers, was in the process of showing a potential new tenant through the property, and that Mr Gaskell was at the property at the time and that whichever agent it was had effectively used Mr Gaskell as a referee, being a long term tenant, to give some sort of testimonial as to the premises. Did that ever happen when you were at the premises? Were you ever showing a tenant and then asked Mr Gaskell to tell the tenant something about the premises? A. No. Q. It is suggested by Mr Gaskell that at this time as well as having that exchange he also took either yourself or Mr Rogers to the bathroom on the first floor (page T110.5). This is the evidence he gave: 'I took him to the bathroom and said 'Here is a pool of water. It's often there. Can it be fixed?' And he said something along the lines of, 'I'll address that with the owner.' Did that ever happen to you, Mr Harding? A. No. Q. Did Mr Gaskell at any time, at any time, ever take to you a bathroom at the premises to point out any problem with the pooling of water or indeed anything in the bathroom? A. No." 118 Mr Harding was asked about any pooling of water on the men's toilet floor (T608.29): "Q. Had you ever noticed any problem with the pooling of water or the presence of water on the floor of the bathroom on the first floor? A. Not at all. Q. Had you walked over the surface of that bathroom on many occasions prior to September 1998? A. Yes. Q. Had you had or experienced any difficulty with walking over the surface of that floor? A. No. Q. In particular did it ever feel slippery to you? A. No. Q. Prior to September 1998 had anybody else ever complained to you about there being a problem with the bathroom in terms of there being pooling of water? A. No. Q. Or the presence of water on the floor? A. No. Q. Had anybody ever complained to you about there being any problem with traction or slipperiness in relation to the bathroom tiles? A. No. Q. Prior to September 1998 had anybody ever complained to you about there having been any falls or slips in the bathroom on the first floor? A. No. Q. Let me finish the question? A. Sorry. Q. Had anybody ever complained to you in relation to there having been any falls or any slips on the bathroom on the floor of the bathroom on the first floor? A. No." 119 Mr Harding said that the Plaintiff had not complained to him at any time from September 1998 until HRA ceased as managing agents of the premises in March 1999, concerning any problem with pooling of water or slipperiness on the floor of the men's toilet on the first floor of the premises (T609.45). In my view, Mr Harding was an impressive witness and I accept his evidence. 120 Under cross-examination, Mr Harding confirmed that Mr Kasunic had an active interest in the day-to-day running of the building (T613.14). 121 Mr Catsanos asked Mr Harding (T609.13): "Q. Prior to September 1998, I think you have said that over your time as an agent there, you had dealings with Mr Gaskell. Leaving aside this alleged time when he took you to the bathroom, leaving that aside, had he ever mentioned to you prior to September 1998 any problem at all with water on the floor of the bathroom or slipperiness of the bathroom? A. No." 122 The Plaintiff has asserted that his conversation with Mr Kasunic was in context of providing a quotation for airconditioning repairs. 123 Mr Rogers gave evidence that his agency adopted a practice of not seeking quotations from tenants (T521.4): "Q. I want you to assume that Mr Gaskell says in the middle part or thereabouts of 1998 he was requested to provide a quote in relation to some problems with the air conditioning system, some work that needed to be done on the air conditioning system. Now you had mentioned in the past there had been a discussion of issues with Mr Gaskell in relation to air conditioning? A. Yes. Q. Was Mr Gaskell ever, or his company or any organisation that he worked with or for, were they ever requested to provide a quote and/or do any work on the air conditioning system? A. I don't believe so. Q. Did you ever request them to do that? A. Definitely not. Q. Did you have a policy about asking tenants to do work on a building they occupied? A. We did. Q. Why was that? A. We had a general policy of not getting tenants involved in work in the buildings they occupied. It leads to issues." 124 Mr Harding gave evidence that it came to his attention that the Plaintiff had provided a quotation for airconditioning repair (T606.27): "Q. I want you to assume it has been suggested by Mr Gaskell that in relation to an airconditioning problem that was occurring at the premises at 35 37 Railway Parade, he was requested by either, he says, the agent or the owner to prepare a quote in relation to doing some work on the airconditioning system. You can only speak for yourself obviously. Did you ever request Mr Gaskell to do any work on the airconditioning system? A. No. I recollect seeing the quote, but I never requested one. Q. As far as you are aware, did anybody from the third defendant request him to provide such a quote? A. No." The Failure of Denkas to call Mr Kasunic 125 The letter dated 27 May 1998 from Hydrofix to the agents (part Exhibit D) indicates that the Plaintiff provided a quotation in writing in relation to the airconditioning. The letter provides some support to the Plaintiff's claim that he had a conversation with Mr Kasunic in relation to the airconditioning. 126 Mr Kasunic was not called to give evidence. Counsel for the Plaintiff submitted that an inference in accordance with Jones v Dunkel (1959) 101 CLR 298 should be drawn. 127 The Plaintiff asserts that it was during the course of an examination by him of some of his own documents on the evening of the first day of the trial that he recalled that the quotation concerning air conditioning occurred in mid-1998 and that, in the course of dealings with Mr Kasunic concerning that quotation, he took Mr Kasunic down to the men's toilet and showed him the pooling of the water with Mr Kasunic saying that the matter would be attended to. What is the evidentiary consequence of the failure of Denkas to call Mr Kasunic? 128 In Manly Council v Byrne (2004) NSWCA 123, Campbell J (Beazley JA and Pearlman AJA agreeing) said at paragraph 51: "Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn." 129 Counsel for the Plaintiff submitted that it is the second type of inference which should occur in this case as a result of the failure of Denkas to call Mr Kasunic to give evidence. 130 Of course, the fact that Denkas has not called Mr Kasunic to give evidence does not entitle the Plaintiff to an automatic finding in his favour on this issue. It is necessary for the Court to assess the Plaintiff's evidence on this question to determine what findings should be made, on the balance of probabilities. It is reasonable for the first type of inference referred to by Campbell J in Manly Council v Byrne at paragraph 51 to be drawn in the circumstances of this case, namely that the evidence of Mr Kasunic, if called, would not have assisted Denkas. However, there remains a range of difficulties with the Plaintiff's evidence which have been referred to in the assessment of his evidence on these issues generally. 131 I accept that the Plaintiff had direct dealings with Mr Kasunic with respect to the air conditioning in 1998. However, to move to the next step and make a finding on the balance of probabilities, that the Plaintiff spoke to Mr Kasunic concerning the alleged pooling of water problem involves an assessment, on the probabilities, having regard to all the evidence. 132 It is pertinent to note the Plaintiff's propensity to complain in writing, as illustrated by Exhibits D and F, and his oral testimony (T86.31): "Q. Turning to the letter from Richardson & Wrench of 15 December 1993, that letter was received by you at about that time? A. That's right. Q. Did you take advantage of the offer contained in the first paragraph of that letter? A. Yes, we did. We addressed any problems that we had to Richardson & Wrench. Q. What problems were they, sir? A. There were mainly issues with the airconditioning and issues with car parking and we had also complained about dripping taps on one occasion. Those were all in writing. Generally in writing they followed up earlier verbal requests. So there were other requests made and invariably when the verbal requests weren't followed through, it went in writing." 133 No written complaint has been made about the water pooling before the fall. Nor is there any written complaint after the fall indicating that he had slipped in a pool of water about which he had made prior complaint. Bearing in mind the Plaintiff's propensity for written complaint, it is difficult to accept that he would have made no such written complaints, had the conversations about the water pooling occurred with Mr Kasunic. 134 The Plaintiff's failure to assert that such an event occurred in further and better particulars provided prior to the trial, the highly unsatisfactory nature of the Plaintiff's evidence given on the first and second days of the trial on this issue and the absence of any contemporaneous record of complaint that the very problem that he had allegedly complained about to Mr Kasunic had caused him to fall in the men's toilet and suffer injury, lead me to a finding that the Plaintiff has not discharged the civil burden of proof on this factual issue, even taking into account a Jones v Dunkel inference arising from the failure of Denkas to call Mr Kasunic. As stated earlier, the evidence of Mr Rogers and Mr Harding fortifies that conclusion. Even if the second type of inference referred to by Campbell J in Manly Council v Byrne was to be drawn in this case, I would still not be satisfied, on the balance of probabilities, that the Plaintiff complained to Mr Kasunic concerning the pooling of water. Some Other Issues Affecting the Plaintiff's Credit 135 Counsel for Denkas and HRA have submitted that a number of areas of evidence reflect adversely upon the Plaintiff's credit. There is force in these submissions and I have regard to the following matters as well in assessing what findings ought be made based upon the Plaintiff's evidence. The Reason for Leaving Connell Wagner 136 At a time when the Plaintiff was resisting a motion by the Defendants that the proceedings be dismissed for want of prosecution, the Plaintiff swore an affidavit on 18 November 2003. In that affidavit, the Plaintiff said (T273.11): "Since August 2001 I was employed by Connell Wagner Engineers but I was unable to continue this employment due to the injuries I sustained in the within incident." 137 The evidence indicated that the Plaintiff left Connell Wagner for a number of reasons, including his ability to earn a higher salary from Maunsell and differences with another employee at Connell Wagner (T271-273). In asserting in an affidavit sworn in November 2003 that he was unable to continue his employment with Connell Wagner due to injuries sustained in the fall of 10 September 1998, I consider that the Plaintiff was being less than frank. It is troubling that the Plaintiff would assert on oath a single reason for his departure from Connell Wagner which might be perceived as advancing his interests in the litigation, but which does not reflect the true position. I accept that this issue reflects adversely upon the Plaintiff's credit as a witness in these proceedings. 138 In re-examination, the Plaintiff said that he became unhappy about Connell Wagner because of a clash with his immediate superior who stood in his way and made his life fairly difficult (T414.12). This evidence tends to confirm that the reason for the Plaintiff's departure form Connell Wagner was unrelated to any injury sustained in the fall of September 1998. Financial State of Plaintiff's Business Between 1993 - 2000 139 It is common ground that the Plaintiff did not lodge an income tax return for the years 1992/1993 to 2002/2003 until 2 December 2003. The tax returns lodged on that date (Exhibits 1 to 7) reveal a pattern of losses sustained by the Plaintiff's business between 1993 and 1999 with an improved financial position in 2000. 140 The Plaintiff was cross-examined concerning the financial success or otherwise of his business between 1993 and 1998. After being shown a number of tax returns (Exhibits 1 to 7), counsel for Denkas asked the Plaintiff (T134.16): "Q. I mentioned before that your recollection could be that your conduct of your business as a civil engineer in the years leading up to the accident was an abject financial disaster, a proposition with which you disagreed. Do you wish to recant on that answer? A. That was your suggestion and I can't agree with the phrasing that you used. Q. Could I put some propositions to you? Isn't the object of running a business to generate profit? A. Yes. Q. Have you seen anything so far in those three years which indicates profit? A. In those three years there was a net loss. Q. So the answer to my question directly is, 'No, I haven't seen it'? A. I haven't seen a profit. Q. And, therefore, the business was by that small criteria an abject failure, wasn't it? A. No, it may well have been producing a profit but repaying a loan. Q. Tell us about the loan then, sir, so far as you recollect? Who was it by, what was it for, how did it relate to the business, was it for your personal use, things of that order? A. It was a repayment of an overdraft that we had had, so the business was not running with an overdraft but had paid off a previous overdraft." 141 A little later, the Plaintiff was asked (T137.34): "Q. You now have a situation where demonstrably for four years leading up to the June prior your accident the business is not earning an income, don't you? A. It's demonstrating a loss, yes." 142 The Plaintiff said that the taxation returns lodged in 2003 for the previous decade were truthful and confirmed that he had no other sources of income personally for the four-year period up to 1998 which he had not declared in his tax returns (T138). The Plaintiff was reminded that his solicitor had stated in a letter dated 26 March 2003 that "at the time of the accident, the plaintiff was in receipt of approximately $50,000.00". He maintained that he believed that information to be true at the time although he agreed that it was not a true representation of what was reflected in the income tax returns filed in December 2003 (T147.30-148.15). 143 The Plaintiff was asked (T149.11): "Q. Well, sir, doesn't it demonstrate this fact, that in truth your business was getting more money simply by reason of your activities after the accident? The documents self evidently show that, don't they? A. Yes, and that's what I had stated in the thing that you brought out earlier. We actually restructured again after the accident and for a short period of time, as is often the case, when you downsize then the profit increases." 144 It was submitted for Denkas and HRA that the Plaintiff's evidence concerning the profitability or otherwise of his businesses between 1993 and 2000 did not assist him both on issues of credit in the proceedings generally and specifically with respect to his claim for economic loss. 145 As the Plaintiff conceded ultimately under cross-examination, the picture presented by this evidence is one of continuous financial difficulty for the Plaintiff's businesses for a period of five years before the accident on 10 September 1998 and thereafter until the sale of the business in 2001. The letter from the Plaintiff's solicitor dated 26 March 2003 (T147-148) does not appear to have any objective foundation. The fact that the Plaintiff instructed his solicitor to provide such financial information at that time does not assist the Plaintiff's credit. The Plaintiff's Physical Disabilities Since September 1998 146 The Plaintiff said that, after September 1998, he experienced difficulty in vacuuming floors and that he did not carry out this task anymore and it was generally left to his children (T65.66). He gave evidence in chief of difficulties in the performance of other domestic tasks. He said that a walkway was installed in the backyard of his home with the assistance of friends to assist him to gain access to the yard (T66-67). 147 The Plaintiff said that, on 4 September 2003, he went to Kosovo where he remained for a month assisting missionary friends in house rebuilding. According to the Plaintiff, he supervised work which was carried out by others (T67). 148 The Plaintiff said he walked with a slight limp in his left leg (T70). He attempted to maintain his cycling and surfing after September 1998, but these activities involve difficulties for him (T71). 149 The Plaintiff stated that he can drive a manual motor vehicle, but not with comfort (T71.39). He continued his car racing, but has been "more restricted" and experienced difficulty in using the clutch (T71.45). He races cars off road, but he said "I'm not competitive and I am a competitive person" (T72.6). 150 The Plaintiff admitted under cross-examination that, since September 1998, he had carried out fencing and clearing work on a south-coast property (T286ff). This involved walking on uneven surfaces, bending and lifting (T287). He had carried out fencing on several occasions with the last time being Easter 2005 (T289). He drove a tractor to the site (T290). 151 With respect to car racing, under cross-examination, the Plaintiff said that he was selective in the races which he entered after the September 1998 fall. He said that he did not go in every race and the races which he entered, he was restricted in what he could do (T295). The Plaintiff said that he raced on four or five occasions in 2003 and 2004 (T295.49). 152 The Plaintiff was asked in cross-examination about his involvement in a race meeting at Colo Park on 7 and 8 February 2004 (T296ff). The Plaintiff said that he had won a race in February 2005 (T299). He completed in a race meeting driving a buggy at Cataract Park in March 2005 (T302). The Plaintiff was shown photographs of him getting in and out of a buggy at the March 2005 car race meeting (T304ff). He agreed that he raced buggies on bumpy or uneven surfaces, but explained that the vehicle was "moving quickly" and was "a special vehicle" (T306.9). He agreed that he was bouncing around inside the vehicle, but said that he was "in a full race harness and in a contoured seat" (T306.25). Mr Catsanos contrasted, in cross-examination, the Plaintiff's evidence concerning difficulty in performing domestic tasks and his ability to move in and out of the racing car and to drive it at speed on a bumpy surface (T306). 153 Counsel for HRA then asked the Plaintiff about pushing the racing vehicle (T307.21): "Q. Have you ever taken your hands and put them on this buggy, braced yourself against it, started to push it and then broken into a run as you have pushed it? A. I did on that particular occasion, supporting myself. Again, I have said that running is something that I could do but generally chose not to. Q. You are struggling now, Mr Gaskell. A. Okay, on the particular day that you took the photographs, we push started the car a couple of times, yes. Q. And you ran when you did it, on one occasion at least? A. I did. Q. On one occasion, you did it with assistance; on a second occasion, you did it on your own; then you got a young bloke to come and give you a hand as well, didn't you? A. I was never able to start the vehicle by myself. Q. Sorry? A. There was one occasion I may have started it by myself Q. No, I'm talking about when you started pushing the vehicle. Someone was in it and you were pushing it on your own. A. Yeah, I started to push it. Whether I was successful in starting it I don't believe so." 154 The Plaintiff explained that in the photographs shown to him, he was pushing the racing car downhill, but would have difficulty pushing it uphill (T308). The Plaintiff was asked (T308.53): "Q. This business of difficulty pushing a lawnmower is another example of you exaggerating or distorting the truth, isn't it? A. Again, when questioned earlier yesterday and asked about the action of pushing a lawnmower I said it was the action of the pulling and pushing of the lawnmower that I actually found difficult. It was the sweeping action. We had actually, following the advice, bought a Flymo mower and I can tell you that in the last 17 years I have not had a lawn, except for just recently. I have mowed that lawn twice. Q. You can push a one tonne buggy. Are you saying you can't mow the lawn? A. I'm saying it is a different action. It is a going forward and coming back action. It is the rocking action. Q. Does it rock more than the movement you get in the buggy when you are driving it? A. It is a different sort of action altogether. In the buggy, you are sitting in a seat which is a fully moulded seat with a harness. You do not move in the seat." 155 The Plaintiff agreed that he had driven the buggy in races, but said "that doesn't mean it doesn't cause me pain" (T309.37). 156 The Plaintiff agreed that he could bend over to the ground and was able to lift and carry things in the context of carrying out mechanical work on motor vehicles (T357.26). He continued to do work of that type as a hobby (T357.57). 157 The video tape depicted the Plaintiff pushing the buggy at a quick walk or run for at least 10 steps (T400-401). 158 It is true that the Plaintiff mentioned in his evidence in chief that he still engaged in car racing. Nevertheless, the impression gained in his evidence in chief was that his injuries inhibited, if not prevented, him from carrying out a range of domestic tasks involving a level of physical exertion. 159 The revelation in cross-examination of a range of activities which he was able to undertake, including car racing, moving in and out of low racing buggies, pushing a racing buggy, fencing and driving a tractor in a rural setting, provide a somewhat stark contrast with the word picture which the Plaintiff presented in his evidence in chief. In my view, these features do not assist the Plaintiff on credit in these proceedings. 160 Taken with other significant issues affecting his reliability and credibility, including the altering account as to whether he had observed pooling of water prior to September 1998 and complained about it to representatives of Denkas and HRA, I have very real reservations concerning the reliability and credibility of the Plaintiff with respect to significant issues in the case. The Evidence of Mr Giles 161 The Plaintiff called Mr Alan Giles to give expert evidence concerning the safety of the premises. Mr Giles holds a Masters Degree in Applied Science (Occupational Health and Safety) (T541). He holds a Graduate Diploma in Occupational Hazard Management (T541.57). Mr Giles provided a report dated 16 December 2002 (Exhibit B1) on the letterhead of Safety Audit Services Pty Limited. 162 Mr Giles conducted a site inspection on 28 November 2002, some four years and two months after the Plaintiff's fall. He was asked to make certain assumptions for the purpose of his report (Exhibit B1, page 5). The assumptions related to the Plaintiff's account of the fall on 10 September 1998 and his alleged observations after the fall. There was no reference in the assumptions provided to Mr Giles of any prior history of observations of water pooling by the Plaintiff nor of complaints allegedly made by him concerning the pooling of water. 163 Mr Giles described the tiles on the floor of the men's toilet as "untextured" (T548.42). He said that the more textured a tile is, the less slippery it will be (T548.46-549.17). 164 Mr Giles undertook wet testing of the floor using methodology contained in Australian Standard 4663:2002. He referred further to a publication of the WorkCover Authority of New South Wales issued in November 1998 entitled "Preventing Slips, Trips and Falls - Guidance Note". He undertook a pendulum swing test in accordance with Australian Standard 4663:2002. Using this methodology, Mr Giles concluded (Exhibit B1, page 10): "The writer is of the opinion that, based on the testing carried out, the physical characteristics of the ceramic tiled surface and the assumption of the presence of water/urine on the ceramic tiled surface at the material time, that with such a slippery non textured ceramic tiled surface any unsuspecting person stepping onto the floor as described would be at foreseeable risk of injury." 165 Mr Giles had regard to Australian Standards 3661.1:1993 entitled "Slip Resistance of Pedestrian Surfaces - Part 1: Requirements" and 3661.2:1994 entitled "Slip Resistance of Pedestrian Surfaces - Part 2: Reduction of Slip Hazards" (Exhibit U). Although there is no evidence as to the date when the subject building was transformed from squash courts into an office building, it seems clear that this process was undertaken at least several years before 1993. The Plaintiff commenced to occupy office premises as a tenant in 1993. 166 According to AS3661.1:1993 (paragraph 2), the Standard is intended as a test method to establish the slip resistance of a pedestrian surface in either the "wet" or the "dry" condition. The Standard states: "Unless otherwise stated, the method specified for the measurement of wet slip resistance is used for all wet areas. Wet areas are all external pedestrian areas plus those internal pedestrian surfaces that are normally wet during use." 167 AS3661.2:1994 was approved on behalf of the Council of Standards Australia on 10 December 1993 and was published on 21 February 1994. The Standard is said to be intended to give guidance on the selection, installation, care and maintenance of flooring and other surfaces in domestic, public and commercial areas for the purpose of reducing the slip hazard to pedestrians, including people with disabilities (paragraph 1). The Standard states (paragraph 4.4): "As a rule, textured surfaces provide better slip resistance than smooth, the extent depending on the type of texturing." 168 Mr Giles referred specifically in his report to paragraph 6.4 of the 1994 Standard: " Elimination of water Water is arguably the substance which most often makes floors slippery. Spills of tea, cleaning solution, rinse water and other liquids are too hazardous to leave until the cleaners arrive. Water on the floors is primarily the responsibility of the person who has spilt it and that person should remove the water immediately and signpost the hazard while attending to it. Large quantities of rainwater may be tracked inside on rainy days. Architects may sensibly provide foyers with adequate drainage and walking surfaces that are slip-resistant when wet. Failing this, carpet runners or mats can provide walkways with sufficient capacity to absorb water. Runners will need to be cleaned and dried after use." 169 Paragraph 7 of the 1994 Standard relates to reduction of slip hazards on existing floors. Paragraph 7.1 and Table 1 of the 1994 Standard suggests that suitable methods of improving the slip resistance of an existing ceramic tile floor include blasting (sandblast or captive blast), grind, paint and sand, groove (diamond saw), proprietary treatment or adhesive strip. Paragraph 7.2 provides for special precautions in the home environment. These include: "7.2.2 Bathrooms - Special precautions for bathroom areas include: (a) Using a slip-resistant mat or tapes in bath or shower. (b) Treatments to improve slip resistance are also available (refer to Note 6 of Table 1). (c) Strong handrails are helpful, particularly for the elderly or people with disabilities. (d) Be careful with talc or bath oil which can make surfaces particularly slippery. In some situations it may prove desirable to consider various means of reducing the slip hazards of existing floors." 170 As part of his test, Mr Giles applied a pool of water to the tiled floor and he observed that it did not run anywhere but remained pooled (T552.54). No drainage system was evident (Exhibit B1, page 8). Mr Giles determined that the contribution of the ceramic tiled surface to the risk of slipping when wet would be very high (Exhibit B1, page 8). He stated that a number of methods could have been adopted to reduce the risk of slipping on this surface (Exhibit B1, pages 9-10): (a) replace the current ceramic tiled surface with a surface that complies with the coefficient of friction specified in the relevant Australian/New Zealand Standards; (b) apply some form of anti-slip treatment to the existing untextured ceramic tiled surface; (c) develop and implement a system of inspections to ensure that hazards (water leaks) are identified and assessed; (d) develop and implement a system of maintenance to ensure that hazards that are identified are corrected in a timely manner; (e) develop and implement a system to respond to reported building faults reported by the occupants and/or trades persons working on the premises; (f) provide a cleaning service to regularly monitor the ceramic tiled surface and ensure it is clean and dry; (g) provide appropriate signage warnings of the hazards of the wet and slippery tiles; (h) cordon off any wet area until the area is dry; (i) correct the method of the drainage. 171 Mr Giles stated that anti-slip treatment of the type referred to in sub-paragraph (b) above was readily available in the 1990s (T553.33). 172 Mr Giles relied upon a publication of the WorkCover Authority of NSW issued in November 1998 and entitled "Preventing Slips, Trips and Falls - Guidance Note". Particular reference was made to the Appendix of that publication which stated (part Exhibit B1, page 40): "Legislation and standards on slip-resistant floor surfaces There is a specific regulation concerning floors. This is called the Occupational Health and Safety (Floors, Passageways and Stairs) Regulation 1990 and it calls up Australian Standard (AS) 1657 (in the 1985 version). The Standard states that all floors (or coverings) must have an even unbroken slip-resistant surface, free from holes or obstructions likely to cause a person to trip or stumble. The term 'slip-resistant' is not defined in AS 1657. However, there is an Australian Standard on the slip-resistance of pedestrian surfaces (AS/NZS3666.1-1993). This Standard requires that the Coefficient of Friction for floor materials shall be not less than 0.4 when measured by specified means (the Tortus floor friction tester for dry surfaces and a pendulum test for 'skid test' of wet surfaces). Accident investigations by WorkCover NSW have shown that slip and fall accidents are often associated with floors that do not meet this standard and sometimes occurs on floors that do. Employers would be well advised to ensure that floors meet the standard (preferably for both dry and wet conditions). The slip-resistance of floors should exceed the minimum requirements of AS/NZS3666.1-1993. … AS 1657 contains specifications for concrete floors, metal plate floors and grated floors. It recommends that concrete be wood-float finished or rendered slip-resistant by some other suitable means." 173 In cross-examination, Mr Giles agreed that he did not know how long the tiles on the floor in the men's toilet had been in place as at September 1998 (T555.21). Nor was he aware of any changes which may have occurred in the tiled surface between September 1998 and September 2002 (T555.40). Mr Giles was reminded of the Plaintiff's evidence that he had used the men's toilet two or three times on each working day while he was present over the five-year period between 1993 and 1998 (T556.22). Mr Giles was asked (T556.53): "GRACIE: Q. Now you would regard the fact that he himself did not slip over at all in that decade as indicative of one of two matters, would you not, either he was extraordinarily fortunate that would be one possibility, would it not? A. It's one possibility. Q. Or separately that the water was so rarely there that the possibility of him slipping over was almost non existent, that would be another possibility, would it not? A. Or it could be a combination of both. Q. Or thirdly it could be that water was on the floor but when he stepped on it in those years leading up to 1998 it was sufficiently textured so as to not cause him to slip, that's a possibility as well, isn't it? A. It is a possibility no, it's not sufficiently textured yes, your question is right, sufficiently textured not to cause him to slip. Q. Now you have no real knowledge, do you, of how often he himself observed pooling of water in this bathroom over that decade, do you? A. Over the decade, no. Q. And of course you've no knowledge, nor do you have instructions, as to how often any of the other men who attended upon this first floor bathroom over that decade observed pooling, do you? A. No, I have no instructions." 174 Mr Giles was asked about the application of the 1993 and 1994 Australian Standards to surfaces constructed before the commencement of those Standards (T567.32): "Q. It has no work to do, does it, in respect of, for example, a toilet floor surface constructed in, for example, 1926? A. What the Australian Standard does is give very precise numeric information about the floor, when it's wet on a slip, circumstances and methodology. The application of that to a 1926 building clearly can't be built to that Standard, clearly. However, in answering that question, if I had I will say from that context if I had a building that, for example, was clearly in breach an electrical safety Standard that had just come out, I would be concerned about that. If there was change to a Standard in a electrical or say, machine guarding or say, coefficient of friction of tiles, one of the things organisations/ companies do to resolve it is to audit and inspect, and sometimes retro fit." 175 Soon after, Mr Giles was asked (T568.24): "Q. You have no knowledge whatsoever of when this building was constructed? A. That's correct, yes. Q. And you have no knowledge whatsoever when the tiles were installed preparatory? A. Yes. Q. That is before September 1998? A. That's correct. Q. It may be, for example, the tiles were installed in 1988? A. It may be. Q. It may be the building was built in 1970? A. It may be. Q. You would acknowledge you would need to know those critical facts in order to try to ascertain the relevant standards which existed at the time of construction? A. There is no relevant Standard at the time which expect descriptive term which is the floors should be non slippery. It was not quantified as per Australian Standard." 176 Mr Giles confirmed that the WorkCover publication to which he had referred had been published in November 1998, after the Plaintiff's fall in September 1998 (T569). There was no similar WorkCover publication prior that time (T570.8). He agreed that the term "slip-resistant" had not been defined in AS1657:1985 (T571.49-572.13). Mr Giles agreed that AS1657:1985 dealt with specific types of floors as referred to in the final paragraph of the Appendix to the WorkCover publication (part Exhibit B1, page 40) - concrete floors, metal plate floors and grated floors (T572.24-36). 177 Mr Giles agreed that he had no knowledge whether any substance had been applied to the tiled surface prior to the time of his inspection in November 2002 which could have made them more slippery (T593.24-34). He did not know the identity of the manufacturer of the tile nor the date of manufacture (T594.39). Mr Giles conceded that it was possible that a test conducted upon the tiled surface in 1998 would have yielded a different slip result (T595.24). 178 In re-examination, Mr Giles stated that the use of a mop or a mat would be simple ways of reducing the risk of slipping on the tiled floor (T599.26). Summary of Findings of Significant Facts Concerning Liability 179 Before moving to consider the legal principles applicable with respect to liability, it is appropriate to summarise my findings of significant facts concerning liability. The Plaintiff as a Tenant 180 A written lease was entered into in 1993 between Denkas and Durussi (as lessors) and Hydrofix (as lessee), with the Plaintiff being guarantor for Hydrofix. In 1996, Hydrofix was deregistered as a corporation. No further written lease was entered into between 1996 and September 1998. However, the Plaintiff continued to conduct his businesses from the office premises which had been leased to Hydrofix throughout that period. The Plaintiff paid rent to Denkas and Durussi which was accepted on their behalf by the managing agent, HRA. 181 As at 10 September 1998, I find that the Plaintiff was the tenant of leased office premises on the first floor at 35-37 Railway Parade, Engadine. A tenancy-at-will existed by operation of s.127 Conveyancing Act 1919. 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. The Plaintiff was entitled to use, in common with the lessor and other persons entitled to use them, the common areas in the building, including the men's toilet, for the purposes for which those areas were designed and intended (clause 10.8, Hydrofix lease, part Exhibit 12). 182 Accordingly, the Plaintiff was a party to a tenancy as at 10 September 1998. Prior Observations of Pooling by Plaintiff and Prior Complaint about Pooling by Plaintiff 183 I accept the evidence of the Plaintiff that he used the men's toilet on the first floor on two to three occasions a day on two or three days per week in the five-year period up to September 1998. On this basis, the Plaintiff entered the men's toilet on the first floor in excess of 1,000 times prior to the fall on 10 September 1998. Clearly, the Plaintiff was familiar with the area and was in a position to observe features of the men's toilet, including any pooling of water on the floor. 184 I am not satisfied that the Plaintiff observed pooling of the water on the floor on an intermittent basis in the manner alleged by him in his evidence. I have set out earlier in this judgment my reasons for this view flowing from an examination of the various accounts given by the Plaintiff prior to and at the hearing concerning this and related issues. 185 Put shortly, the Plaintiff was a tenant who frequently raised issues of concern in writing with the managing agent, HRA. There was no written complaint from the Plaintiff concerning alleged pooling prior to the fall. Tellingly, in the aftermath of the fall on 10 September 1998, there was no written or oral assertion by the Plaintiff that there had been a history of pooling of water in the men's toilet. It may be that the Plaintiff observed liquids on the floor on occasions prior to September 1998. However, I do not accept that any observation made by him was such that he felt the need to draw it to the attention of the managing agent or the lessor. 186 I am not satisfied that the Plaintiff drew any alleged pooling on the floor of the men's toilet to the attention of any representatives of HRA or Denkas prior to 10 September 1998. Again, my reasons for this conclusion appear earlier in this judgment and flow from an analysis of the various accounts given by the Plaintiff by way of particulars before trial and evidence at the hearing. 187 In my view, the evidence of the Plaintiff is inconsistent and contradictory on key issues. The first time he alleged a complaint by himself to representatives of HRA and Denkas was on the second day of the hearing in April 2005 against the background of a prior denial that this occurred. I am not satisfied that the evidence of the Plaintiff of prior complaint is credible or reliable. Again, the failure of the Plaintiff to assert in writing in or after September 1998 or orally (in his telephone conversation with Mr Rogers on 11 September 1998) that he had complained about pooling of water on earlier occasions and that, despite his complaint, the problem remained and had led to a fall causing him injury, supports a conclusion that no such complaint had been made by him. The evidence discloses that the Plaintiff would regularly write to the managing agents raising issues concerning the premises. Letters were written at his direction on 11 September and 30 September 1998 concerning the fall. Neither letter asserted that the fall occurred against the background of earlier complaints by the Plaintiff concerning pooling on the floor of the men's toilet. 188 The Plaintiff's evidence itself is internally inconsistent and unreliable on this issue. The evidence of Mr Rogers and Mr Harding denying that any such complaint had been made fortifies a conclusion that no such complaint had been made by the Plaintiff. The failure of Denkas to call Mr Kasunic enables the Plaintiff to call in aid the principle in Jones v Dunkel. The appropriate inference is that the evidence of Mr Kasunic would not assist Denkas' case. The difficulty for the Plaintiff is that his own evidence, on this issue, is seriously inconsistent and contradictory. In my view, it is not reliable or credible. Even with the benefit of a Jones v Dunkel inference concerning Mr Kasunic, I am not satisfied, on the balance of probabilities, that the Plaintiff made any prior complaint concerning alleged pooling on the floor of the men's toilet. 189 I accept the evidence of Mr Rogers and Mr Harding that they had not themselves seen any pooling of water in the men's toilet nor had they received any report of such pooling prior to 10 September 1998. The Fall on 10 September 1998 190 I am satisfied that the Plaintiff fell to the floor in the men's toilet on the afternoon of 10 September 1998. 191 In a telephone conversation with Mr Rogers the next day, the Plaintiff said that he had slipped on "urine or something". I accept Mr Rogers' evidence to this effect. This represents the Plaintiff's earliest complaint about the substance which was on the floor and which had apparently played some part in the fall. 192 It is the Plaintiff's evidence that he did not see any substance on the floor at the time he entered the men's toilet on 10 September 1998 until after he fell to the ground. I accept the Plaintiff's evidence in this respect. Had there been a history of prior pooling which he had observed and drawn to the attention of the agent or lessor, it is likely that he would have been vigilant for the presence of any liquid on the floor. The Tiled Floor 193 At a time not specified in the evidence, but well before 1993, the building at 35-37 Railway Parade, Engadine was transformed from squash courts into an office building. The evidence does not reveal whether the floor of the men's toilet on the first floor was laid at the time of that transformation or at an earlier time. 194 The evidence of Mr Giles, following an inspection in November 2002, was that the tiles on the floor of the men's toilet were untextured. The less textured the tiles, the more slippery they would be when wet. 195 Prior to 1993, AS1657:1985 contained specifications for concrete floors, metal plate floor and grated floors. It appears that there was no specification for tiled floors. AS3661.1:1993 and AS3661.2:1994 made extensive provision with respect to slip resistance of pedestrian surfaces, including tiled floors. However, those standards were not in existence at the time when the subject tiled floor was constructed. 196 On the evidence, there had been no slip-and-fall incident in the men's toilet prior to the Plaintiff's fall on 10 September 1998. The evidence of Mr Rogers and Mr Harding, which I accept, was to this effect. Further, the Plaintiff himself who had been a tenant of the premises for five years prior to his fall had no knowledge of any slip-and-fall incident in the men's toilet. The evidence reveals that a number of offices were leased on the first floor of which the Plaintiff's business was one. The Plaintiff's evidence reveals in excess of 1,000 journeys by him into the men's toilet without incident prior to 10 September 1998. I infer a large number of other journeys were made by other males into the men's toilet prior to September 1998. There is no evidence before me that any slip-and-fall incident had ever occurred. 197 I accept the evidence of Mr Rogers and Mr Harding of the system used for cleaning the premises including the men's toilet on the first floor. The evidence reveals regular attendance by a cleaner. 198 In November 2002, Mr Giles conducted tests on the tiled floor of the men's toilet and determined that there was a significant level of slipperiness when wet. In my view, it is an open question as to whether the surface of the tiled floor was in a comparable state at that time as it had been in September 1998. I note that Denkas had sold the building in late 1998 and that HRA ceased as managing agents of the building in 1999. The involvement of those parties with the premises ceased at those times. They had no association with the building in November 2002. 199 Mr Giles acknowledged that he was in no position to say whether the tiled surface examined in November 2002 was comparable to the surface in September 1998. Assuming, for present purposes, that it was comparable, a most significant feature is the absence of any slip-and-fall incidents in the men's toilet in the years prior to September 1998 despite the large number of occasions on which persons, including the Plaintiff, used that facility. 200 On the evidence, there was no statutory or building requirement at the time when the tiled floor in the men's toilet was laid which required the use of tiles other than those used. However, it is necessary to keep in mind the actual circumstances prevailing in the premises in having regard to features of the 1993 and 1994 Australian Standards. In particular, the absence of any history of slip-and-fall incidents in the men's toilet and the absence of any complaint concerning pooling on the floor are very significant factors to be considered on the question of liability. Legal Issues Concerning Liability 201 The claim in negligence by the Plaintiff against Denkas involves consideration of legal principles applicable where such a claim is made by a tenant against a landlord of commercial premises. A number of principles are relevant to the determination of this question. 202 Firstly, there is no issue that Denkas owed a duty of care to the Plaintiff. The question for consideration is the nature of the standard of care owed and whether there was a breach of the relevant duty by Denkas. 203 Secondly, it is the duty of the landlord to take reasonable care to put and keep premises in a safe state of repair: Jones v Bartlett (2000) 205 CLR 166 at 193 [93]. The applicable standard of care is that "which arises under the ordinary principles of the law of negligence, namely, a duty to take reasonable care to avoid foreseeable risk of injury to the [Plaintiff]": Jones v Bartlett at 214. 204 The content of the duty is to take such care as is reasonable in the circumstances (Wilkinson v Law Courts Limited [2001] NSWCA 196 at paragraph 21), and not to make the premises as safe as reasonable care and skill on the part of anyone can make them. 205 As Bryson JA (Handley and Ipp JJA agreeing) observed in Barrett v Dubbo City Council [2006] NSWCA 65 at paragraph 22, Jones v Bartlett raised an issue of a kind which recurs in negligence cases relating to tenanted premises, in which the premises were adequately equipped according to the standards of the time when they were constructed, but do not accord with regulations or practices which apply to later construction. In Jones v Bartlett, Gleeson CJ said at 184-185 [54], [57]: "[54] The alleged negligence of the respondents was said to consist of an omission, rather than an act. The omission was said to be the failure to have an expert assessment of the premises at the time of the lease, in circumstances where it was supposed that such an assessment would, in turn, have resulted in a recommendation to replace the glass in the door (an unwarranted supposition). That occurred before the lease was entered into. Consequently, attention was directed to those parts of the judgments in Northern Sandblasting which dealt with a duty to arrange for an inspection before lease. … [57] There is no ground in principle for imposing upon the respondents an obligation greater than an obligation to take reasonable care to avoid foreseeable risk of injury to their prospective tenants and members of their household. The critical question is as to what is reasonable. The judgment of the Full Court, with which I agree, to the effect that there was no failure to take reasonable care, was a judgment of fact. It cannot be circumvented by an attempt to formulate the legal duty with greater particularity, in a manner which seeks to pre-empt the decision as to reasonableness." 206 Jones v Bartlett makes it clear that, in the absence of a contract supportive of a higher duty, the duty of a landlord in relation to the safety of premises does not in general require a landlord to commission experts to inspect premises to look for latent defects, nor is it a duty to make premises as safe as reasonable care can make them: Ahluwalia v Robinson [2003] NSWCA 175 at paragraph 23. In general terms, the duty of the landlord is to be determined by reference to foreseeable risk of harm and what a reasonable person would do in response to that risk. 207 An occupier is entitled to assume that most tenants will take care for their own safety: University of Wollongong v Mitchell [2003] NSWCA 94 at paragraph 33. 208 None of the justices in the majority in Jones v Bartlett went so far as to take any duty to repair beyond requiring the lessor to address defects of which he or she was aware or ought to be aware and each of their honours defined "defect" in this context to mean something more than a condition capable of causing injury: Sakoua v Williams [2005] NSWCA 405 at paragraph 8. 209 It is important to bear in mind that the circumstances of the present case are being viewed, in the words of Gleeson CJ in Rosenberg v Percival (2001) 205 CLR 434 at 441, "through the prism of hindsight". 210 In Jones v Bartlett, Gummow and Hayne JJ at 215 [171] observed that the landlord's duty to the tenant will be conterminous with a requirement that the premises be reasonably fit for the purposes for which they are let. In this case, the Plaintiff had a right to use the toilet as part of a tenancy of commercial office premises. 211 There is no duty to inspect premises for possible defects. Kirby J said in Jones v Bartlett at 240: "It is not always true that landlords are better able to detect defects in the demised premises than the tenants and their families and guests who occupy or visit them….. In terms of principle and logic, such inspections could not, in any case, be limited to examination of the possible defects of internal doors with glass panels. Inspections of gas, electricity, flooring, ceilings, balconies, railings and all aspects of the premises would be required by such a principle…. For a court to impose such obligations, involving duties of affirmative action, would be unusual. Necessarily, it would have a retrospective effect. In the great variety of tenancy arrangements that exist, it could work a serious injustice on particular landlords. Such landlords, until now, have been entitled to assume their duty was limited to that of taking reasonable care to avoid foreseeable risk of injury from defects of which they were on notice or of which (by appropriate inspection) they would reasonably become aware because they were obvious to a reasonable landlord or its agent." 212 Applying these statements to the present case, there is no ground in principle for imposing upon Denkas an obligation greater than an obligation to take reasonable care to avoid foreseeable risk of injury to their tenants, their employees and clients. The critical question is as to what is reasonable. This involves a judgment of fact. 213 Of importance to the resolution of this question, is the presence or absence of evidence of a history of slip-and-fall accidents in the men's toilet on the first floor at the premises. In the present case, the evidence reveals that the Plaintiff's fall was the only such accident which was known to have occurred. The Plaintiff was a long-standing tenant of the premises as at 1998. He was in a better position than most to know, directly or indirectly, of any slip-and-fall accidents which were said to have taken place in the men's toilet on the first floor of the premises. It was his evidence that he knew of no other fall except his own. 214 The evidence of Mr Rogers and Mr Harding was to the same effect. They had acquired knowledge of the premises in their capacity as managing agents and it might be expected that any falls would have come to their attention. 215 Accordingly, the evidence in the proceedings points to one fall in a five-year period, being the Plaintiff's fall on 10 September 1998. Evidence was adduced in cross-examination of the number of visits that the Plaintiff would have made to the men's toilet in the period of his tenancy between 1993 and 1998. More than one thousand trips were made by him to the area of the fall without any incident. The position is reminiscent of that in Makita (Aust) Pty Limited v Sprowles (2001) 52 NSWLR 705 at 750 where a slipping accident occurred on a staircase in circumstances where no prior accident had occurred despite a large number of uses of the relevant area by a number of persons. 216 All of this bears upon the question of foreseeability and reasonableness. In the circumstances of the present case, a factual determination is to be made as to the reasonableness of Denkas' position as landlord. There was a system for cleaning the leased premises including the men's toilet. There had been no other slip-and-fall incidents. No complaint had been made to the lessor or the agent of any pooling problem. No such problem had been detected by Mr Rogers and Mr Harding in the visits to the premises. In these circumstances, I am not satisfied, as a judgment of fact, that there has been a failure by Denkas to take reasonable steps with respect to the men's toilet. 217 Mr Catsanos submitted that the principles in Peter A Simon Real Estate Pty Limited v Ghabash [2004] NSWCA 467 have application to this case with respect to any liability of HRA. It was submitted that the evidence in this case does not support a finding that HRA were on notice of any alleged pooling problem in the men's toilet on the first floor of the premises. In those circumstances, it is submitted that no relevant breach of duty of care has been demonstrated. Further, as a matter of contract, it was submitted that the extent of the agent's responsibility under clause 12 of the management agency agreement (Exhibit 19) was restricted. The Plaintiff had not demonstrated any breach of contractual obligation on the part of HRA towards the Plaintiff. In these circumstances, HRA submitted that no liability in tort or contract had been demonstrated by the Plaintiff against it. 218 I accept HRA's submission. It has not been established that HRA was ever informed of any alleged pooling problem in the toilet. I am not satisfied that the Plaintiff has demonstrated liability in negligence on HRA's part. 219 The Plaintiff's claim in contract is against Denkas and is based on the tenancy contract for the premises called Suite 4A. 220 The Plaintiff asserts in paragraphs 12-14 of the Amended Statement of Claim that the following three terms were part of the tenancy contract and were breached by Denkas: (a) that Denkas maintain the leased premises in good, sound and safe condition and in safe serviceable repair; (b) that Denkas prevent, rectify or repair any defect, disrepair or unsafe conditions in the property in the leased premises as and whenever they occur; and (c) that Denkas warn the Plaintiff of any defect, disrepair, or unsafe condition that was or was likely to be dangerous, unsafe, or otherwise pose any risk of accident or personal injury or damage of any kind. 221 I have found that the Plaintiff was the tenant of Denkas at the time of the fall on 10 September 1998. The terms of the tenancy remained those clauses in the Hydrofix lease which were consistent with the tenancy-at-will between Denkas and the Plaintiff arising under s.127 Conveyancing Act 1919. I have referred earlier in this judgment to the clauses of the Hydrofix lease relating to the duties of the parties under the contract with respect to the state of the leased premises. In my view, the Plaintiff has not demonstrated any breach of contract on the part of Denkas in the circumstances of the present case. 222 In my opinion, the duty of Denkas under the contract was similar to the duty which it owed to the Plaintiff as tenant under the law of negligence. In circumstances where Denkas was unaware of any alleged pooling problem in the men's toilet and a system of cleaning was in place with respect to that facility, no basis has been demonstrated by the Plaintiff for a verdict under the claim in contract. There had been an accident-free history in the men's toilet for several years prior to 10 September 1998. The first slip-and-fall accident was that involving the Plaintiff. The premises were reasonably fit and safe for ordinary use as a men's toilet to be used by adult males in conjunction with commercial office premises: cf Jones v Bartlett at 178-180 per Gleeson CJ. 223 The Plaintiff has not demonstrated an entitlement to a verdict against either Denkas or HRA in these proceedings. 224 In my view, failure by Denkas to mop up a pool of liquid, of which it was unaware and could not reasonably be expected to have known, in the men's toilet of a building used by grown men, does not constitute a failure to take reasonable care to avoid foreseeable risk to the users of those toilet. 225 Denkas and HRA were not bound to make inspections of the premises. In any event, there was a system of cleaning which involved regular cleaning of the toilet area. The Plaintiff's alternative case against Denkas, based upon an alleged failure to have a system of inspection that would have picked up this alleged defect, is not made out in this case. 226 As I have set out in the facts above, Denkas was not aware of the pool of water in the men's toilet, nor could it be expected to have known of it. In addition to this, even if Denkas was aware of the pool of water, it did not render the property unfit for the purpose for which it was let. Gummow and Hayne JJ observed in Jones v Bartlett at 215-216: " Premises will not be reasonably fit for the purposes for which they are let where the ordinary use of the premises for that purpose would, as a matter of reasonable foreseeability, cause injury. The duty requires a landlord not to let premises that suffer defects which the landlord knows or ought to know make the premises unsafe for the use to which they are to be put ." 227 The men's toilet was used by "quite a number of" men, several times a day (T349.49). The Plaintiff himself used the toilets where the accident occurred more than 1,000 times in the five years preceding the accident. Each of these 1,000 or so visits was incident free. No other man was injured, or even complained about the risk of injury, from any pool of water in the men's toilet. I am not satisfied that the liquid on the floor on 10 September 1998 ought be characterised as a dangerous defect. 228 The position is analogous to that described by Powell JA in Makita v Sprowles at 708 [10]: "the evidence of the lay witnesses — including that of the respondent herself — appeared to demonstrate that, notwithstanding that those of the appellant's staff who drove to work were, on a daily basis, accustomed to park on the roof-top car park and use the stairs as a means of access to the appellant's premises on the first and ground floors of the building, the only occasion upon which any of those employees was said to have slipped when doing so was that of which the respondent complained — that occasion being 2½ years after the respondent commenced to work for the appellant and almost 9 years before she left its employ — a fact which cast more than a shadow of doubt over any assertion that the stairs were slippery and that the respondent ought to have taken steps to obviate the risk of injury to its employees arising from that fact" 229 With respect to the expert evidence of Mr Giles concerning the slipperiness of the tiles, the following statements of Heydon JA in Makita v Sprowles at 750 [102] are apt: "The conclusions in Professor Morton's report ought not to be accepted uncritically. On examination, it is difficult to be convinced by them. The lay history of incident-free use of the stairs suggests that they were not slippery. That inference from that history is preferable to Professor Morton's conclusions. If the stairs were not slippery, the defendant was not in breach of its duty of care as occupier and employer. The appeal should be allowed on that ground." 230 The Plaintiff's arguments that the slippery toilet floor constituted a "concealed trap or hazard" is inconsistent with the incident free history of use of the men's toilet for several years before 10 September 1998. 231 There is a further difficulty for the Plaintiff in the way in which he puts his case. Either the Plaintiff knew of the risk of the presence of water on the bathroom floor (which he contends he did before the incident on 10 September 1998) or he was unaware of it and fell without warning. The Plaintiff says that he did not see the liquid on the tiles before he fell. It does not seem to me open to the Plaintiff to claim that he did know about the risk of the presence of liquid on the floor on the one hand, and yet claim that the pool of water was concealed such that it came as a surprise to him after he fell in it. The liquid on the floor was not, in my opinion, a concealed trap or hazard. 232 It is appropriate to consider the level of visibility of any liquid on the toilet floor. There was no obstruction to its visibility by the Plaintiff, a frequent visitor to the area. In Brodie v Singleton Shire Council (2001) 206 CLR 512, Gaudron, McHugh and Gummow JJ said (footnotes omitted): "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. ********** 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.