Lifting Awareness of Risks for Building Owners and Occupiers

Background

Eugenie Schneider (the plaintiff at first instance and the appellant) claimed damages for injuries which she allegedly sustained on 12 August 2008 when she tripped upon exiting a lift at 20 Loftus Street, Sydney (the premises). Ms Schneider alleged that the lift had failed to level accurately at the floor upon which she was alighting, causing her to trip, stumble and then fall. She experienced immediate pain in her neck and across her shoulders.

The plaintiff commenced proceedings against the following parties:

• Kent Street Pty Ltd (Kent Street) the registered owner of the premises.
  
  
• AMP Capital Investors Pty Ltd (AMPCI) who occupied the premises, subject to individual tenancies.
  
  
• ThyssenKrupp Elevator Australia Pty Ltd (ThyssenKrupp) the company engaged by AMPCI to carry out servicing, maintenance and repair of lifts at the premises.
  
  
• ISS Integrated Services Pty Ltd (ISS) the company engaged by AMPCI to carry out facilities management at the premises, including managing and overseeing the performance of various managed contracts with respect to the premises.
  
  

At the time of the subject incident, Ms Schneider was in the course of her employment with AMP Office and Industrial Pty Ltd. She therefore received workers compensation payments. Recovery proceedings were commenced by the workers compensation insurer and both matters were heard concurrently.

The case proceeded to hearing before Justice Fagan (Eugenie Schneider v AMP Capital Investors Ltd & ors [2016] NSWSC 333). His Honour entered Judgment in favour of each of the defendants in both proceedings.

His Honour made the following findings in his Judgment:

• The subject lifts were rated to a floor levelling accuracy of +/-12mm under applicable standards. Ms Schneider was unable to provide evidence that established the lift level she tripped upon was greater than 12mm in height. Her recollection of the incident was challenged, and rejected in favour of contemporaneous evidence taken on the day of the incident, and the evidence provided by the building manager, Peter Ray.
  
  
• The expert evidence confirmed that even new lift technology would only improve levelling accuracy to +/-6mm, and could not guarantee that the lifts would level accurately on every single occasion they were used.
  
  
• With regard to maintenance of the lifts, the records of ThyssenKrupp demonstrated that despite any purported limitations of the lift technology, faults leading to levelling inaccurately, occurred extremely rarely.
  
  

Relevantly, His Honour held that AMPCI did not breach its duty of care owed to Ms Schneider by failing to upgrade the lift technology. Whilst ThyssenKrupp had recommended that the lifts be upgraded, His Honour accepted that this was part of a ‘sales pitch’ and did not justify AMPCI taking immediate steps to upgrade the lifts in circumstances where they were well-maintained and operating with only rare occurrences of levelling issues.

Although His Honour’s finding was sufficient to dispose of the proceedings, he went on to consider quantum. Ms Schneider had claimed in excess of $2.5 million on the basis that she had suffered a dramatic deterioration of a pre-existing neck condition. However, following a detailed consideration of the expert medical evidence, His Honour found that the subject incident had caused no more than a transient aggravation to Ms Schneider’s pre-existing medical conditions. As such, he determined that any damages, whilst not actually assessed, would be “very small indeed”.

Appeal

Ms Schneider appealed against Justice Fagan’s decision in respect of Kent Street and AMPCI.

The primary grounds of appeal were that the trial judge:

• Wrongly rejected Ms Schneider’s evidence as the size of the lift level being greater than 6mm, and also ought to have considered alternative ‘inferential’ reasoning; and
  
  
• Was in error in finding that AMPCI’s duty of care did not extend to replacing the lift mechanism with newer technology.
  
  

A unanimous judgment was delivered by Justices Basten, McColl and Leeming.

As there were no written or oral submissions directed to the appeal against Kent Street it was summarily dismissed. The appeal against AMPCI was also dismissed.

Findings

The appeal with respect to Kent Street was dealt with very simply: the common position between the parties at first instance was that Kent Street was not the occupier. On this basis, the trial judge found that there was no capacity in which it owed a duty of care to the plaintiff. Nothing was said in the course of the appeal to challenge that conclusion. Accordingly, the appeal with respect to Kent Street was dismissed.

This then left the two key issues on appeal: whether the trial judge had erred in rejecting Ms Schneider’s evidence as to how her trip and stumble occurred, and whether the trial judge had erred in his finding as to the scope of the duty owed by AMPCI. It was necessary for Ms Schneider to succeed on both grounds in order to succeed on the appeal.

Inferential reasoning

At trial, Ms Schneider relied upon an Evidentiary Statement which stated that following the subject incident “on later inspection” she saw that the fixed floor was approximately 4cm higher than the floor of the lift carriage. In examination-in-chief, she estimated that the height differential was between 1.5 – 2 inches. It was not until cross-examination, when it was put to her that the lift doors had closed and she never actually saw the height differential, that the plaintiff gave evidence that she had held the lift open, and Peter Ray had locked it in place, thus giving her the opportunity to observe the height differential. This evidence was directly contradicted by Peter Ray, and what was recorded in contemporaneous documents regarding the subject incident. The trial judge found that the plaintiff’s estimate was “for all practical purposes completely unsupported”.

On appeal, Ms Schneider did not challenge the finding that she had not seen the height difference. Rather, it was submitted that the trial judge had failed to apply inferential reasoning, when considering other evidence which supported a finding that the trip hazard was greater than 6mm. Specifically, Ms Schneider submitted that the evidence which ought to be considered by Justice Fagan was prior reports of lift levelling issues, and expert opinion that the subject lift would mis-level 10% of the time.

In rejecting Ms Schneider’s submission, Justice Basten noted:

• Ms Schneider’s case on this issue at trial was founded squarely upon her evidence that she had observed the height differential. No submissions were made to Justice Fagan that inferential reasoning be applied, which would lead to a different finding.

• The trial judge had properly reviewed the maintenance records of ThyssenKrupp and considered the historical performance of the lift, and correctly found that previous reports of mis-levelling were rare.

• The circumstantial evidence contended by Ms Schneider did not support a clear finding as to what the actual height differential was, such that no alternative inference could have been drawn by the trial judge.

• The lift expert’s evidence of levelling issues occurring 10% of the time was unclear, and could be read as the lifts operating perfectly 90% of the time, and of this remaining 10%, had “infrequent” occurrences of mis-levelling.

Justice Basten therefore concluded that the trial judge had not avoided the drawing of inferences from circumstantial evidence. Rather, he found that the trial judge had failed to identify any evidence which would have assisted in resolving the critical issue in Ms Schneider’s case, being the height of the lip she tripped upon. His Honour found that there was no error in that regard.

Scope of the duty owed by AMPCI

Ms Schneider submitted that AMPCI’s duty of care extended to an obligation to replace the lift mechanisms, after being advised that it should do so by ThyssenKrupp.

The Court of Appeal noted that the trial judge had considered and rejected the proposition that the duty required the replacement of the lift machinery, having regard to the following considerations:

• The evidence did not demonstrate any significant or frequent occurrence of the lifts mis-levelling (as discussed above);

• Although more reliable levelling could be achieved with new technology, the existing lifts could not be described as dangerous or defective in their present state;

• The cost of upgrading the lifts was a significant amount of $475,000; and

• The lifts were of an appropriate standard at the time of their installation, and did not require upgrade under regulatory requirement or accepted industry practice.

The Court agreed with the trial judge’s conclusion that AMPCI’s decision not to upgrade the lifts, based on the ‘sales pitch’ by ThyssenKrupp, did not demonstrate a breach of its duty.

Damages

Whilst not necessary, the Court also held that Justice Fagan’s findings as to the competing medical evidence were appropriately drawn, with adequate reasons provided for his rejection of much of the plaintiff’s expert evidence. In these circumstances, Justice Basten also commented that leave to appeal may have been refused on the basis of Justice Fagan’s determination that Ms Schneider’s damages would be “very small indeed”.

Implications

This decision is relevant for occupiers of commercial buildings and retail centres, as it confirms that knowledge of a potential risk does not require an occupier to ensure in all circumstances that the risk never eventuates.

In determining what constitutes a reasonable response to the risk, occupiers are entitled to take into account considerations such as the frequency of the risk occurring, the cost of minimising the risk, and relevant industry standards and expectations. This is the analysis that is required under the Civil Liability Act.

This decision also confirms the importance of scrutinising the alleged mechanism of injury and the evidence and assumptions on which such allegations are based. The retention of contemporaneous evidence as to how the incident occurred is critical. In this case, Ms Schneider’s inability to prove the height differential on which she tripped proved fatal to her claim.