Clarke v Banfield & Ors [1999] QDC 271

DISTRICT COURT OF QUEENSLAND REGISTRY: BRISBANE NUMBER: 1093 OF 1998 Plaintiff: BARRY ANTHONY CLARKE AND Defendants: KENNETH F. BANFIELD AND ANNE G. BANFIELD AND Third Party: NOELIB PTY LTD JUDGMENT - SAMIOS D.C.J. Judgment Delivered: 29 November 1999 Catchwords: LANDLORD AND TENANT - personal injuries - tenant locked out on balcony - fell when trying to regain access to unit - liability of managing agent - quantum of damages Simon-Beecroft v. The Proprietors “Top of the Mark” Building Units Plan Number 3410 (1997) 2 Qd.R. 635 Northern Sandblasting v. Harris (1996-1997) 188 CLR 313 March v. E & M H Stramere Pty Ltd (1991) 171 CLR 506, 519, 522, 524 Alexander v. Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310) Havas v. Cornish & Company Pty Ltd (1985) 2 Qd.R. 353 Astley & Anor v. Austrust Ltd (1999) 73 ALJR 403 Residential tenancies Act 1994 s.103(2)(b) and (c) Property Law Act 1974 s.106(1) Counsel for the Plaintiff: Mr. R. Lynch Counsel for the Defendant: Mr. G. Sowden Counsel for the Third Party: Mr. R. Myers Solicitors for the Plaintiff: Richardson & Lyons Solicitors Solicitors for the Defendants: Morrisons Solicitors Solicitors for the Third Party: Carter Newell Solicitors Hearing Dates: 4, 5 and 11 November 1999 -- 1 of 21 -- DISTRICT COURT OF QUEENSLAND REGISTRY: BRISBANE NUMBER: 1093 OF 1998 Plaintiff: BARRY ANTHONY CLARKE AND Defendants: KENNETH F. BANFIELD AND ANNE G. BANFIELD AND Third Party: NOELIB PTY LTD REASONS FOR JUDGMENT - SAMIOS D.C.J. Delivered the 29 th day of November 1999 The plaintiff claims damages against the defendants for personal injuries he alleges he suffered on or about 31 October 1996 (the accident). He was at the time of the accident 55 years of age, having been born on 2 April 1941. On the date of the accident, the defendants were the registered proprietors of Unit 8, 243 Old Cleveland Road, Coorparoo (the unit). The plaintiff entered into a tenancy agreement in writing with the defendants in respect of the unit (the tenancy agreement). The tenancy agreement commenced on 27 January 1994, and was for a term of two years. At the expiration of the term the plaintiff continued to occupy the unit and paid rent to the defendants. The third party carries on business as a licenced real estate agent and property manager under the business name Raine and Horne Coorparoo. The third party carried on this business from premises at 164 Cavendish Road, Coorparoo. The third party and the defendants entered into a property management agreement on 19 December 1992 (the management agreement). Pursuant to the management agreement, the defendants appointed the third party to let and manage the unit in accordance with the management agreement. -- 2 of 21 -- 2 The unit is situated on the upper floor of a two level block of units and contains a balcony situated approximately 2.5 metres from ground level accessible by a single door (the door) from the living room of the unit. With respect to the door, the plaintiff’s evidence was that he was never given a key to that door. Further, the lock on the door was such that if the door was blown shut the locking mechanism would lock the door. If the plaintiff was on the balcony and that happened, he could not get back in. To prevent this occurring, the plaintiff was in the habit of placing a vacuum cleaner against the door to hold it open. The plaintiff’s evidence was that there were two persons employed by the third party whom he told he did not have a key to the door and that the door could shut and lock him out on the balcony. These persons were Roselle Walker and Sandra Smart (now Sandra Jardine). According to the plaintiff, he told Mrs Walker he did not have a key to the door and that he could be caught outside if the door blew shut. He said after that a person did come to the unit. However, this person took one of the bedroom handles off the door to the bedroom and then told the plaintiff that he had to go downstairs to his van and he would be back but never returned. The plaintiff also said that other doors in his unit would not close properly. According to the plaintiff, he told Mrs. Walker what this person had done. In about June 1995 Mrs. Jardine took over from Mrs. Walker. After Mrs. Jardine took over, according to the plaintiff he was shut out on the balcony and he had to climb down a pipe. On this occasion he did not hurt himself. He claimed he told Mrs. Jardine when she came to the unit on an inspection that this event had occurred. He also claimed he told her he had never been given a key and that the door had blown shut on him. He claimed he told her it had been like that ever since he had moved in. According to the plaintiff, Mrs. Jardine said nothing, nor was anything done about the problem. The plaintiff’s evidence was that at about 9 o’clock at night on 31 October 1996, he decided to have a shower. He went outside to get a towel from the balcony. Because he thought he was just going to grab his towel he did not put the vacuum cleaner against the door. Just as he got out on the balcony to grab the towel, he heard the front door shut and he knew then that the balcony door would also blow shut. The balcony door did blow shut and he was left out on the verandah. -- 3 of 21 -- 3 The keys to the front door were in his shorts. Before climbing down he tried the windows without success. He then started singing out to other people in the units but could not attract anyone’s attention. He tried that for about 15 to 20 minutes. The options open to him were either to break a window or go down the pipes. He decided to climb down using the pipe as he had done on the prior occasion. However, on this occasion he lost his grip and fell and landed on his back. At first he could not feel his legs. Eventually he got up and he took a couple of steps and he fell over again, hitting his head on the bricks. He then crawled back to his unit. Some time later the plaintiff’s neighbour in Unit 7 looked in on him and inquired whether he wanted an ambulance called. The plaintiff declined this offer. However, about a week later the plaintiff’s sister and his niece called on him and steps were taken for him to be taken to hospital. He was admitted to hospital where he remained for about three days. After the accident, the third party arranged for a person to replace the lock on the door with a new lock. After it was replaced the plaintiff did not experience the same problem with the door as he had before and he also had a key to the door. This new lock had a latch that could be moved to immobilise the locking mechanism. The cost of that work and other work performed at the same time was $178.06. There was no dispute in these proceedings between the parties that the plaintiff did not complain about the door directly to the defendants. The plaintiff’s evidence was that he told Mrs. Walker and Mrs. Jardine about the door. The plaintiff’s niece, Mrs Dejanovic, and the plaintiff’s neighbour, Mr. Smyth, gave evidence. Neither of these people witnessed the immediate events leading up to the plaintiff’s fall and subsequent injuries. However, Mrs Dejanovic, being a regular visitor to the plaintiff’s unit before the accident, observed that the lock on the door was faulty and that it never had a key. Further, that the plaintiff used his vacuum cleaner to keep the door open. She also gave evidence of her observations of his physical condition when she found him. That is, according to her, he was very ill in bed and he had swelling to his head and was in considerable pain. The plaintiff’s niece also rendered him assistance after the plaintiff was discharged from hospital. Regarding the door, Mr. Smyth’s evidence was that before the accident the plaintiff had pointed out to him that he had no key to get in if the door closed, and that the latch needed fixing. Mr. Smyth also observed the door being kept open by the vacuum cleaner. -- 4 of 21 -- 4 The defendants’ bought the unit in 1990. According to the male defendant, Mr. Banfield, no one from the third party made any complaint to the defendants that the key was missing to the balcony door, nor that there was some fault in the lock of the door. Mr. Banfield’s evidence was that the third party had managed the unit from 1992 and the defendants did not have the keys as it was the third party that managed the unit. The defendants, up to the time of the accident had no reason to believe there was a key missing to the lock, nor that there was some fault with the lock. According to Mr. Banfield, the way things worked between the defendants and the third party was that if there was a non-urgent item to be rectified with respect to the unit, the defendants would receive an inspection notice listing the items for their consideration and then they would go about rectifying those items. The alternative was that if there was something more urgent then they would be phoned and authority would be given to carry those repairs out. The management agreement did give the third party authority to arrange repairs to be done provided the expenditure was not in excess of $200 without the prior approval of the defendants. Notwithstanding that provision in the agreement, Mrs. Jardine’s evidence was that it was the policy of the third party to contact the owners and seek permission before any repairs were undertaken. Mrs. Walker, who had been employed at Raine and Horne Coorparoo between March 1990 and June 1995 as property manager, knew the plaintiff. Mrs. Walker was asked about the procedure when a tenant signed up a lease. She was asked to be specific with respect to what the plaintiff’s instance with herself. Her response was: “Well, I’m going by memory here. Normally when a lease is signed up, the tenants signs the lease. All monies must be paid over before the keys are handed over. In respect of the plaintiff, do you recall from your own recollection involving keys, any keys involved at all?-- Well, all available keys would have been given to him at the time.” Her evidence was that Mr. Clarke did not complain to her about the lack of a key or any defect with respect to the lock on the door. Regarding any complaint if made, her evidence was with respect to procedure: “I would take note of any repairs and maintenance given to me. Definitely.” -- 5 of 21 -- 5 According to Mrs. Walker, there was no record in the records of Raine and Horne relating to the key and any faulty lock on the balcony. When asked how often the plaintiff would come in and pay rent, Mrs. Walker said: “Look, I honestly can’t remember now. I think he was in and out of the office fairly regularly. I honestly cannot remember.” When asked questions by counsel for the third party regarding the maintenance in the office of a set of books known as Repair and Maintenance books, she said: “There would have been, yes”. She was then asked: “Can you just tell His Honour what - where they were maintained and what the purpose of those books was?-- Well, I’m going from memory here. There were always repairs and maintenance books of some type maintained. Anything that was reported to me was put in that repairs and maintenance book and then actioned. And when you say it was actioned, are you able to say what your practice was in respect of actioning?-- As quickly as possible. Straight away. We didn’t carry repairs at all. They were always actioned. And so what was the procedure? Let me ask? Where were these books stored or kept?-- Well, they were probably kept in my part of the office - from memory.” Books were then identified by Mrs. Walker commencing 26 May 1995 and running through to 23 January 1997 and tendered as Exhibit 22. Her evidence was that with respect to repairs and maintenance to be done, either referred to the office from the tenant or from an inspection, they would be entered in these books. Her evidence was the nature of the defect would normally be noted and that the actioning of it would be noted. According to Mrs. Walker, had the plaintiff complained, then his complaint would have been noted in the repair and maintenance book and permission would have been sought from the owner to spend money, and if there was no permission, the owner would be rung straight away. Mrs. Walker said there would never be a situation where a complaint, or at least a defect, would not be entered in these books. Regarding books or records before 26 May 1995, Mrs. Walker’s evidence was that registers were kept before that period. Her response to a question regarding this was: “There were definitely registers kept. Right from the time I started.” -- 6 of 21 -- 6 However, although these previous books were called for they were not produced. Although Mrs Walker no longer works for the third party, her evidence was that these books would have gone into archives and nothing was destroyed. Work had been done on the unit. Exhibit 23 is a copy of an invoice relating to repairs to the unit and it is dated 28 February 1995. As earlier records were not produced, a reference to the repairs the subject of this invoice could not be checked against those records. Mrs. Walker maintained that any complaints relating to general maintenance was always noted when it came into the office. However, when specifically asked whether she had a recollection of any complaint that the plaintiff made in relation to the property, she said: “I cannot remember now”. When it was suggested to her that she could not recall now any complaints made unless she went and looked at some document that showed her either an invoice or some entry in the books, she said: “I have no recollection of him ever making a complaint about a door lock on that balcony door”. When asked by counsel the following question, she made the following reply: “MR. LYNCH: I suggest to you that he did, and did so regularly?-- No, I suggest he didn’t. I’m sorry, because it wouldn’t have gone past the first time. It would have been fixed; it was a lock complaint.” I asked Mrs. Walker whether it was within her experience that previous tenants sometimes took the keys and never returned them. My questions and her answers in this respect were as follows: “HIS HONOUR: Mrs. Walker, was it within your experience that previous tenants sometimes took the keys and never returned them?-- Oh, not really, no. But it could happen. But you suggest it never happened?-- I wouldn’t say - how would you say it, to our knowledge we would get all keys back. You haven’t experienced occasion when a tenant had not returned keys at the end of a tenancy?-- If a tenant did not return keys at all, the key barrel - keys would normally be changed, the lock would be changed, if there was a problem that way. You see, it’s obvious on the photographs that this door that led out to this balcony which was not the balcony that was adjacent to all the units, it was the balcony for Mr. Clarke’s unit, had a key lock. Now in this case he says there wasn’t a key and is it possible that the previous tenant may have had a key but lost it or didn’t return it or-----?-- I’ve said I----- -----mislaid it??-- I’ve already said I couldn’t remember, all available keys were given to Mr. Clark, this far on. Normally all keys would - a lock would have a key normally. -- 7 of 21 -- 7 But this a door that led out to his balcony, it wasn’t really a door-----?-- It wasn’t a major door, no.” Mrs. Jardine started work for the third party in June 1995. She finished some time in 1997 and is now self employed with her husband who is a builder. She knew the plaintiff. According to her he was a good tenant. However her evidence was he at no time complained to her about the lack of a key to the balcony door, nor that there was anything faulty about the lock on that door. Her evidence was that she saw the plaintiff at a time close to Christmas in 1996 when he had his back brace on and he did not look well. This was at the third party’s office. That was when she asked him what happened and she found out that he claimed he had locked himself out on this balcony when he had gone out to get a towel, and the door slammed behind him. Her evidence regarding what else he told her was as follows: “All right. Now what else did he say to you that followed on from that conversation?-- He said that it had happened before and he normally sort of went down the drain pipe or jumped over the balcony or something like that. He’d done it before successfully. He did it again. I think he must have fallen awkwardly and hurt himself.” With respect to the procedure, if a complaint was made that something is not working right, her answer was: “If a tenant came into the office with a maintenance problem we had a maintenance register book and either I or our receptionist would take the details in the maintenance book and we would often refer to that during the day. We would ring the appropriate trades people and the maintenance would be carried out.” When Mrs. Jardine was cross-examined by counsel for the third party she identified the maintenance registers that had been tendered in evidence through Mrs. Walker. She said if the plaintiff had come in during the period she was property manager, and regularly complained that there was a defect with the lock on the balcony, it would have been written in the maintenance book and the appropriate trades people would have been rung. Her evidence was that after seeing the plaintiff near Christmas 1996, she did carry out an inspection of the unit. However, this was not recorded in the books. She recorded it in a separate document. This document records that there was a need for a key for the back door and “Lock needs to be fixed”. Mrs. Jardine said that authority was obtained from the owners and these items were then fixed. Going back a little earlier in time, Mrs. Jardine said she had inspected the unit in December 1995 and as a consequence of that inspection sent a report to the owners. That report was Exhibit 24. It was -- 8 of 21 -- 8 undated and after referring to a recent “quarterly inspection”, it noted four items: “1. Taps in kitchen leaking - tenant getting high electricity bill. 2. Door handle in bedroom doesn’t work. 3. Holes in tiles in shower. Water going behind them. 4. Tenant has re-painted and recarpeted unit himself”. Mrs. Jardine’s evidence was that had the plaintiff told her anything about the absence of a key to the door, or anything defective about the door, it would have been written on that report. Regarding how quickly items requiring rectification could be rectified, when asked whether they could be attended to within a month Mrs. Jardine responded it depended if she could contact the owner and organise the trades people within that time. When it was put to her rhetorically it would not take any longer than that surely, she responded: “You’d be surprised.” She conceded it could take two months to rectify items. No invoices corresponding to the items in Exhibit 24 were produced by the defendants nor the third party. Mrs. Jardine was unable to explain why there were no invoices relating to these complaints. Counsel for the plaintiff suggested that did not say much for the system. Mrs. Jardine replied: “Actually, I found that our system at Raine and Horne was very efficient”. Counsel for the plaintiff drew Mrs. Jardine’s attention in cross-examination to the invoice for the repairs carried out after the plaintiff’s accident where there is reference to other repairs. These repairs were carried out on 2 January 1997. These repairs included repairs to the bedroom door and morticing out more of the jam to fit the striker in the new position. Counsel for the plaintiff asked Mrs. Jardine whether this was the problem she had observed with the bedroom door lock on 6 December 1995. Mrs. Jardine agreed it therefore appeared that almost 13 months had gone by before that problem was fixed. She was unable to give an explanation why that had happened. Mrs. Jardine’s explanation for not writing something in the register book about the balcony door after seeing the plaintiff in the back brace was that she considered it was urgent and therefore noted the problem down on a separate piece of paper. When it came to how often inspections were carried out, Mrs. Jardine’s evidence was that all inspections were generally quarterly, except for tenants that they knew were taking care of the property and who were excellent rent payers, and whom they saw on a regular basis. With respect to those tenants they would carry out inspections every six or 12 months. She agreed that with the plaintiff, his inspections were 12 monthly. However, Mrs. Jardine also agreed that she had previously made a statement that with respect to the plaintiff’s unit she had carried out six monthly inspections. She agreed that -- 9 of 21 -- 9 previous statement was an inaccurate statement. Mrs. Jardine denied that the plaintiff had told her before the accident of the occasion that he had been locked out and he had climbed down successfully. Mrs. Jardine was questioned by counsel for the third party regarding the maintenance registers that were tendered. She was asked whether she was aware of any earlier books. Her response was that she did not know that the REIQ had them in print before then, and that she knew they were a fairly new book for them. Her final answer was she did not know that they were available before that time. She claimed that she did not know of any book before that time. She also said she did not know of any destruction of any books because she did not know what happened to the records of Raine and Horne. She thought there had been a change in the legislation perhaps early in 1995 which required them to write in a maintenance book put out by the REIQ and she thought that was when they came into print. The only witness called by the third party was Mr. McMaster, a private investigator. He had a conversation with Mr. Smyth on 9 September 1999. He also had a conversation with Mr. Smyth on 14 September 1999. It has been put to Mr. Smyth during cross-examination by counsel for the third party that he had made statements to Mr. McMaster regarding what the plaintiff had said to Mr. Smyth about the circumstances of his fall. Further, that Mr. Smyth had stated something quite different on the second occasion regarding what the plaintiff had told Mr. Smyth. Consequently, counsel for the third party sought to lead evidence from Mr. McMaster as to the prior inconsistent statement made by Mr. Smyth. I allowed the evidence of Mr. McMaster to be given provisionally so that I could have submissions from counsel regarding the admissibility of the evidence. Having heard the submissions from counsel, I allow the evidence of Mr. McMaster to be received. I do so on the basis that the evidence is admissible pursuant to s.18 of the Evidence Act 1997 (Simon-Beecroft v. The Proprietors “Top of the Mark” Building Units Plan Number 3410 (1997) 2 Qd.R. 635). Generally speaking, Mr. McMaster’s evidence was that when he spoke to Mr. Smyth on 9 September, Mr. Smyth said that the plaintiff had said to Mr. Smyth that he had the keys to the front door in his pocket and he had never been given a key to the balcony door. Whereas on 14 September, Mr. Smyth told Mr. McMaster that he had spoken to the plaintiff on 12 September and they had a few beers. On this occasion, according to Mr. McMaster, Mr. Smyth said to Mr. McMaster that the plaintiff said that when he went out on the balcony the keys were left in the front door. However, when Mr. Smyth was cross-examined by -- 10 of 21 -- 10 counsel for the third party it was put to Mr. Smyth that on 9 September Mr. Smyth told Mr. McMaster that the plaintiff had told Mr. Smyth that he had left the keys in the lock of the front door when he went on to the balcony and that he later told Mr. McMaster that the plaintiff had gone on to the balcony and that he had the key to the front door of the unit in his pocket. It should be noted that what was put to Mr. Smyth in cross-examination was inconsistent with Mr. McMaster’s evidence. In any event, Mr. Smyth denied in cross-examination he had made any inconsistent statements to Mr. McMaster. A number of criticisms were made by counsel for the defendants and counsel for the third party regarding the plaintiff’s evidence and a number of suggestions were made to him about his past and his medical condition immediately prior to his fall. The principal criticism of the plaintiff’s evidence is that he claims that regularly he complained to both Mrs. Walker and Mrs. Jardine about the lack of a key and the defective nature of the lock, whereas both Mrs. Walker and Mrs. Jardine deny that claim. In that respect, the plaintiff is in conflict with two persons. Further, that the complaints being regularly made were made over a substantial period of time. Yet the plaintiff claims nothing was done to rectify the situation with the door. Further, the plaintiff claims that he warned Mrs. Jardine that he had on a prior occasion been locked out and that something needed to be done about the door, and notwithstanding that warning, nothing was done. Therefore, having apparently complained on a regular basis to two persons over such a long period of time it is improbable that nothing would be done about the door. Thus it was submitted the plaintiff’s evidence was not creditable nor reliable. Further, regarding the lock to the door, the plaintiff’s evidence was inconsistent with that of Mrs. Dejanovic. That is, the plaintiff said the device to lock the tongue of the lock in place was on the knob that was turned to open the door. That is, there was no separate latch that would be turned to secure the tongue in place. Whereas Mrs. Dejanovic said that there was a device which could be pushed up to lock the tongue in place which was something separate to the handle. Mrs. Dejanovic marked Exhibit 8 which is a photograph of the lock where she said this device was. However, she said it could not be seen because the lock has been painted over. Further, that the plaintiff by way of further particulars, asserted he had complained on a number of occasions to the agents of the third party on diverse dates between late 1993 and 31 October -- 11 of 21 -- 11 1996, whereas his lease commenced on 27 January 1994. Further, that in a letter of demand from the solicitors for the plaintiff the allegation made was about the inadequate state of the door leading to the balcony with no specific allegation being made about the lack of a key. Further, that the plaintiff said in his evidence-in-chief that he was on the balcony for between 15 to 20 minutes calling out for help before he attempted to go over the balcony, whereas in his further particulars he claimed that period was approximately 30 to 45 minutes. The plaintiff was also criticised for failing to wrap the towel around his arm and use that to try and break the window rather than do what he did. Further, that as he had been warned by his niece when he had previously successfully climbed down after being locked out that it was a dangerous thing to do, he ought not to have attempted to climb down, or at least not do so until much more time had passed during which the prospect of some help coming his way would be increased. That is, that there were opportunities to attract attention. There was a McDonalds close by that could generate pedestrian traffic and bring people into a car park close by. It was suggested he could have called for help. There was a bus stop across the road from the unit at which a bus could pull up and passengers may have got out in due course. However, the plaintiff’s response to these suggestions was he had already tried to call for help and no one responded. He said he called for help to two groups of pedestrians that passed by and they ignored him. Further, he said only the entrance to the car park was visible from his unit and nobody in the interval of time he was on the balcony came by, except for those groups from whom he had tried to seek assistance. Further, it was suggested that in the past he had abused alcohol. He agreed he had abused alcohol in the past. He was asked could it have been the case that he was affected by alcohol on this occasion. He denied that suggestion. There was no evidence that he was affected by alcohol at the time of the accident. Evidence from his niece and Mr. Smyth was to the effect there were no signs the plaintiff had been abusing alcohol before the accident. Further, it was suggested that he may have attempted suicide. He was suffering from depression. He was on a disability pension for depression. The day before apparently the plaintiff was severely depressed. Unfortunately it was not squarely put to the plaintiff that the doctors record -- 12 of 21 -- 12 was to the effect that he was severely depressed. In any event the plaintiff conceded that he had been depressed for years. However, the doctor was not called, nor any other medical evidence was called to provide a persuasive connection between the plaintiff’s condition of depression and the plaintiff’s fall. I found when the plaintiff was asked questions he did not reply by qualifying his answers in terms of stating that his answers were as best as he could recall or according to his memory. Mrs. Walker’s evidence was that the available keys would have been given to the plaintiff at the commencement of the tenancy. In my opinion, that could mean that if the key to the door was not available it would not have been given to the plaintiff. That, I consider, is consistent with the plaintiff’s claim not to have been given a key for the door. Mrs. Walker also said that the door was not a major door. In my opinion, that could mean that as it was not a major door the need to provide a key for that door did not have for the third party the same importance as the front door to the unit. In my opinion, the plaintiff was not shown to have made any overstatements, nor did he have to concede that something stated by him was an error. On the other hand, Mrs. Walker’s evidence was punctuated by qualifications that matters that she was deposing to were qualified by what she could remember. While witnesses give evidence from memory, the giving of answers qualified by statements that something is according to the witness’s memory as Mrs. Walker often did in her evidence, does not, in my opinion, lead to having confidence in the witness’ evidence or memory. Further, the reliability of the third party’s management of the unit, in my opinion, could not be confidently judged because no records were produced for the period prior to 26 May 1995. In my opinion, that is important. That is because the plaintiff said someone did come to the unit after he complained about the door and other doors and after starting some repairs that person left. Without being able to see the previous records the plaintiff may have been denied an opportunity to prove he in fact complained to Mrs. Walker or Mrs. Walker may have been able to point to the entry in those books in support of her evidence. That is of course provided those books ever did exist. Mrs. Walker was adamant these books would exist, whereas in the course of Mrs. Jardine’s evidence, the third party in my opinion engaged in an attempt to prove books pre-dating those tendered would never have existed because of certain reasons advanced to Mrs. Jardine. If Mrs. Jardine is correct, then Mrs. Walker was wrong to claim such books did exist. I would have thought Mrs. Walker was more likely to be right that books did exist as she had -- 13 of 21 -- 13 worked for the third party since 1990 and had contact with the records, whereas Mrs. Jardine took over after the relevant period. I was not satisfied a satisfactory explanation was given by the third party in these proceedings for the non-production of the earlier books. Further, Mrs. Walker said that there was a record kept of inspections. There was a card system according to Mrs. Walker. No cards were tendered in evidence. With respect to Mrs. Jardine, although she asserted the system to deal with complaints was very good, she had to concede that one matter of repair that was noted on an inspection took 13 months before it was repaired. That repair after 13 months was as a consequence of the inspection she carried out after the plaintiff’s fall. Mrs. Jardine asserted in a prior statement that six monthly inspections had been carried out with respect to this unit. She had to concede that was wrong, and that at best 12 monthly inspections may have been carried out with respect to the unit. Further, after she had seen the plaintiff in the back brace and had determined to carry out an inspection, the substance of the repairs required were not entered in the record books but were kept on a separate sheet of paper to be actioned. This sheet itself asserts that her inspection was following a quarterly inspection which was not the case at all. That is, the third party was representing to the defendants that a quarterly inspection had been carried out. In fact, no such inspection was carried out nor regular inspections were being carried out. While the document may have been a standard form, it demonstrates in my opinion that in the course of managing the unit not everything was done as Mrs. Walker or Mrs. Jardine would now claim was done. The repair carried out 13 months after it was to be actioned is an important example in my opinion that not everything was actioned as claimed by the third party. Therefore, I am not confident about the evidence of Mrs. Walker and Mrs. Jardine, primarily because the prior books were not produced and their absence satisfactorily explained. In addition, I have said Mrs. Walker’s evidence contained qualifications and her recollections depended on what she assumed must have been the case rather than confidently recalling the management of this unit. Mrs. Jardine, as I have said, was shown to be too confident in the system of the third party and to have overstated and incorrectly stated matters regarding management of the unit. -- 14 of 21 -- 14 Therefore, despite the criticisms of the plaintiff’s evidence and the suggestions made that there may have been some other cause for his injuries, I prefer the plaintiff’s evidence to the evidence of Mrs. Walker and Mrs. Jardine. In my opinion, the plaintiff’s evidence is supported by the evidence of his niece and Mr. Smyth. Although Mrs. Dejanovic was anxious when she gave her evidence because her child had suffered from an asthma attack and she wanted to be with her child rather than be in the court room, nevertheless I do not consider that anxiety detracted from the truthfulness of her evidence. Although she was in conflict with the plaintiff regarding the make up of the lock, I do not consider the differences were fully explored in evidence. The difference in her description of the lock compared to that of the plaintiff may be because of what she claimed the lock should have had, whereas the plaintiff claimed the device to keep the tongue retracted was part of the handle itself. In any event I would prefer the evidence of the plaintiff on this issue as he was, in my opinion, more likely to be more familiar with the lock than his niece. Regarding Mr. Smyth, he made his position quite clear during his evidence that he never wanted to be involved in this matter. He also was very animated in giving his answers, particularly under cross-examination. However, that animation was not taken by me as detracting from his reliability. His instinct not to be involved in the matter was vindicated when it was suggested to him that he had made oral statements to a private investigator that were inconsistent after he had spoken with the plaintiff and had a few beers with him. It was submitted that Mr. Smyth’s evidence was crucial in this case because the evidence of Mr. McMaster showed that Mr. Smyth had stated that the plaintiff had made a statement at one stage to the effect he did not have the keys to the unit on him when he was locked out on the balcony. According to counsel for the third party, the implication of this is that the plaintiff well knew he had to say he had the keys on him to demonstrate that the alleged failure to give him a key led to the circumstances of his having to try to climb down from the balcony when he was locked out. Of course what Mr. McMaster said in his evidence arguably does not bear out this implication because of the order of what Mr. McMaster alleged Mr. Smyth said things. That is, I would have thought Mr. Smyth would have said things the other way around on the two dates Mr McMaster spoke to him. However, that was not Mr. McMaster’s evidence. Putting aside the fact that Mr. Smyth was not in cross-examination given the opportunity to respond to the sequence of statements relied upon -- 15 of 21 -- 15 by the third party supported by the evidence of Mr. McMaster, as the alleged statements made by Mr. Smyth to Mr. McMaster were not recorded nor reduced to writing, I am not persuaded that I ought to reject Mr. Smyth’s evidence. I formed a favourable view of Mr. Smyth. If Mr. Smyth made inconsistent statements, which I am not prepared to accept he did, I am not prepared to accept those inconsistent statements were to the effect stated by Mr. McMaster. I also consider Mr. Smyth’s persona or demeanour could well lead to misunderstanding on the part of the listener. The inconsistencies in the plaintiff’s further particulars and the solicitor’s letter do not persuade me that the plaintiff’s evidence ought to be rejected. It is obvious his complaints must have started after he commenced his tenancy of this unit on 27 January 1994. In my opinion, late 1993 is not significant in this context. Further, the solicitor’s letter is capable of being consistent with the plaintiff’s claim. If the lock to the door was not defective and could be kept unlocked he would not have needed a key. As to the time he was on the balcony, his answer ought to be seen in the context of the question asked of him in his evidence in chief. He was asked how long he tried to call for help, not how long he was on the balcony before he attempted to go over the balcony. I do not consider the plaintiff was inconsistent on this aspect. In cross-examination it was assumed he had responded in evidence in chief to a question how long he was on the balcony before he attempted to climb down, which although he accepted the proposition it was 15 to 20 minutes, I do not consider his answer ought to be held against him. In any event, I am not persuaded the difference between his evidence and the particulars on this point is significant in the totality of the evidence The claim by Mrs. Walker and Mrs. Jardine that had the plaintiff complained about the lock on the door and the lack of a key are matters that would have been attended to is not a claim I am prepared to accept. Further, their claim he never raised the lack of a key for the door or that the door could lock him out if it was blown shut is also a claim I am not prepared to accept. I am satisfied the plaintiff was truthful in his evidence. I accept his evidence. I am satisfied on the balance of probabilities that when the plaintiff commenced his tenancy he was not provided with a key to the door. Further, that the lock to the door was defective in that the lock could not be kept retracted. -- 16 of 21 -- 16 I am satisfied on the balance of probabilities that the door lock was defective. I make this finding not only based upon the evidence of the plaintiff, but also because Mrs. Jardine found the need upon her inspection after the accident to have the lock repaired. That state of affairs with respect to the door I find on the balance of probabilities was how the door was throughout the tenancy. I am also satisfied on the balance of probabilities that the plaintiff regularly complained to Mrs. Walker and to Mrs. Jardine during his tenancy that he had no key to the door and that the lock was such that if the wind blew the door shut he would be locked out on the balcony. I find the agreement between the plaintiff and the defendants was subject to a term that obliged the defendants to provide the unit in good tenantable repair and fit for human habitation (clause 2(c) of the Agreement for Tenancy). Further or in the alternative there was at all material times between the plaintiff and the defendants an agreement for tenancy subject to obligations on the part of the defendants to ensure that the unit was fit for the plaintiff to live in and the unit was in good repair (s.103(2)(b) and (c) Residential Tenancies Act 1994), and to provide and maintain the unit in a condition reasonably fit for human habitation (s.106(1) Property Law Act 1974). These were contractual obligations imposed upon the defendants by force of the provisions of these Acts (Northern Sandblasting v. Harris (1996-1997) 188 CLR 313) I find the defendants were in breach of those obligations provided for in the Agreement for Tenancy by failing by their agent the third party to provide the plaintiff with a key to the door and further or in the alternative, by failing to have the lock repaired or replaced so that the lock could be kept retracted. That is because I find on the balance of probabilities the plaintiff gave notice to the third party’s servants or agents regarding the key and the condition of the lock on many occasions between 27 January 1994 and 31 October 1996 and within sufficient time for the third party to action the plaintiff’s complaints. Further, that if his complaints had been actioned, the door lock could have been repaired or replaced so that the plaintiff could keep the lock retracted if he wanted to access the balcony without any risk to himself of being locked out on the balcony or he could have been provided with a key which he could have carried on him to avoid the consequences of the door closing behind him and locking him out. In my opinion, the plaintiff acted reasonably in attempting to climb down from the balcony. He -- 17 of 21 -- 17 had tried to attract attention, however unsuccessfully. Two groups of people whom he sought assistance from had failed to assist him. From his experience of the surroundings, which I accept, it appeared unlikely to him that he would attract attention within a reasonable time. Further, even if someone else walked by as the plaintiff waited that does not, in my opinion, mean that person would have come to the plaintiff’s assistance. After all, that person would have to trust it was safe to enter the plaintiff’s unit. That person could think to themself that no one would know where they have gone and what risk they could be facing going to help a stranger. Therefore, even if the plaintiff waited a longer period of time than he did, that does not mean, in my opinion, a passer by would have helped the plaintiff. I also consider it was reasonable for him not to attempt to break the glass of the window as that may have also created a risk of injury to him. Perhaps even more risk of serious injury, as I consider it reasonable, for someone to think that glass might break and cut their arm, leading to a significant loss of blood. The plaintiff had also climbed down once before successfully. Therefore, I find the breach of the tenancy agreement caused the plaintiff to be locked out on the balcony and caused his personal injuries. (March v. E & M H Stramere Pty Ltd (1991) 171 CLR 506, 519, 522, 524; Alexander v. Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310). I find the third party owed to the defendants an obligation implied in the management agreement to exercise professional knowledge and skill, care and diligence to the advantage of the defendants (Havas v. Cornish & Company Pty Ltd (1985) 2 Qd.R. 353). I find on the balance of probabilities the third party breached that obligation owed to the defendants by failing to inform the defendants of the plaintiff’s complaints throughout the duration of his tenancy and to request the defendants’ authority to rectify the plaintiff’s complaints. I am satisfied it is more likely than not that had the third party sought the defendants’ permission to effect repairs, that permission would have been forthcoming. After all, even though it was the policy to seek permission before any repairs were effected, the management agreement gave authority to effect repairs without the authority of the principal up to an amount of $200. In any event, there is no good reason demonstrated that the defendants would not have approved of some action to provide a key or repair or replace the lock if they had known of the plaintiff’s complaints. Therefore, I find the plaintiff is entitled to damages for the defendants breach by their agent the -- 18 of 21 -- 18 third party of the tenancy agreement. It was claimed by the defendants and the third party that the plaintiff was guilty of contributory negligence . Even if I were to find the plaintiff guilty of contributory negligence which I would not be prepared to do, the plaintiff is not barred from recovering the full amount of his claim as his claim is one based on contract (Astley & Anor v. Austrust Ltd (1999) 73 ALJR 403). I also find that the defendant is entitled to damages from by the third party for the defendants loss. That loss being the damages the defendants are liable to pay to the plaintiff by reason of the third party’s breach of the obligations imposed upon the third party pursuant to management agreement. Dr. Gillett, an orthopedic surgeon, examined the plaintiff on 15 September 1997. Following his examination, he concluded that as a consequence of the plaintiff’s fall, he sustained a crush fracture of the lumbo-vertebrae associated with aggravation of asymptomatic pre-existing degeneration of the lumbo-sacral spine. In his opinion the plaintiff suffered a 17% impairment of bodily function, taking into account the fracture, the changes associated with the discs above and below the fracture, and the aggravation of the pre-existing asymptomatic degeneration. Dr. Gillett’s evidence was that had the plaintiff not had this fracture, he does not believe his back would have become symptomatic in any capacity. Dr. Gillett goes on to say the fracture has produced the pain, discomfort and aggravated the pre-existing condition. Further, in a sedentary lifestyle as the plaintiff lived prior to the accident, Dr. Gillett does not believe any significant stresses and strains would have been applied which would develop symptoms in his spine. He also believed the plaintiff’s condition was likely to remain much as it was at the time of his examination. In his opinion surgery was not required. He also believed the approach to the plaintiff’s problem was appropriate. Notwithstanding the plaintiff was trying to exercise, strengthen and live with the condition, Dr. Gillett was of the view the plaintiff would have ongoing pain. Dr. Gillett was of the view that if the plaintiff had to do mowing, gardening and the like he would have problems. However he was living in ground level accommodation and it was unlikely he would require specific assistance in the fullness of time. The plaintiff’s evidence was that he had pain constantly in the back. -- 19 of 21 -- 19 Dr. Gillett was the only doctor to give evidence regarding the plaintiff’s injuries. Cross- examination by counsel for the defendants and the third party did not lead Dr. Gillett to qualify the opinions he gave regarding the plaintiff except he said that depending on the extent to which the plaintiff’s prior alcohol abuse may have reduced his bone density, he may have been at some risk of developing a fracture at an earlier time. However, Dr. Gillett had the benefit of a bone density report regarding the plaintiff which he thought did not demonstrate that the plaintiff was at terribly great risk of developing an osteoporotic fracture until perhaps well and truly into his old age. Dr. Gillett conceded there was some risk that the plaintiff’s prior alcohol abuse could increase the risk of his suffering a fracture in the spine at an earlier stage. Although the plaintiff was relatively sedentary before the fall and has remained sedentary since the fall, he nevertheless complains of constant pain. There should be some discounting for the risk accepted by Dr. Gillett and for the normal contingencies of life. As I accept his evidence and the evidence of Dr. Gillett, I find the plaintiff has suffered a substantial permanent disability of his spine which has caused him and will continue to cause him constant pain. The plaintiff is now 58 years of age. There is no reason to suggest the plaintiff does not have other than a normal life expectancy, except for the usual contingencies of life.. As he lives alone he must do things for himself and although Dr. Gillett was of the view he could manage his domestic duties and personal hygiene into the future, I consider the plaintiff must do so with pain. In all the circumstances I assess the plaintiff’s damages for pain and suffering and loss of amenities of life in the sum of $30,000. I allow the plaintiff interest on the sum of $15,000 at the rate of 2% per annum for 3 years and 4 weeks which is the sum of $921. There was also a claim for Griffiths v. Kerkemeyer damages for the past. As I accept the evidence of the plaintiff and Mrs. Dejanovic on this issue, I find the plaintiff had a need for care and assistance for 174.5 hours for which a reasonable rate per hour would be $10 per hour. I therefore allow the plaintiff $1,745 for past Griffiths v. Kerkemeyer damages. I also allow the plaintiff interest on the sum of $1,745 at the rate of 2% per annum for 3 years and 4 weeks which is the sum of $107. -- 20 of 21 -- 20 I also allow the plaintiff his hospital costs in the sum of $1,796 and other medical expenses the subject of a refund to the Health Insurance Commission in the sum of $269.75. I also allow the plaintiff $156 for his past costs of medication for his pain and $685 for future cost of medication for his pain. For the future this is assessed at $1 per week over 21 years on the 5% interest tables. That is a total of $35,679.75. I therefore give judgment for the plaintiff against the defendants in the sum of $35,679.75 I also give judgment for the defendants against the third party in the sum of $35,679.75. I will hear submissions from the parties on the question of costs. -- 21 of 21 --