SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title: Kone Elevators Pty Ltd v Shipton

Kone Elevators Pty Ltd v Massouras
Kone Elevators Pty Ltd v Pattinson
Kone Elevators Pty Ltd v Soesman

Citation: [2021] ACTCA 33

Hearing Date: 8–9 February 2021

Decision Date: 5 November 2021

Before: Murrell CJ, Loukas-Karlsson and Stewart JJ

Decision: See [312]–[316]

Catchwords: CIVIL LAW – NEGLIGENCE – Personal injury – appeal from

Supreme Court – where persons injured by reason of
intermittency of power to lift – where intermittency of power
caused by broken wire – whether sufficient evidence to establish
that cause of broken wire was a casual act of negligence by
appellant’s employee – appeal dismissed

Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth) s 33

Civil Law (Wrongs) Act 2002 (ACT) s 100
Civil Procedures Act 2004 (ACT) s 5A
Civil Procedures Rules 2006 (ACT) r 1010, 1705, 1721
Evidence Act 2011 (ACT) ss 69, 136
Limitation Act 1985 (ACT) ss 16A, 16B, 36
Motor Accidents Compensation Act 1999 (NSW)
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 62,
64, 66, 72
Workers Compensation Act 1951 (ACT)

Cases Cited: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation

[1983] 1 NSWLR 1
Bale v Mills [2011] NSWCA 226; 81 NSWLR 498
Bradshaw v McEwans Pty Ltd (1951) 217 ALR
Broughton v B & B Group Investments Pty Ltd [2017] VSCA 227
Browne v Dunn (1893) 6 R 67 (HL)
Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR
305
Fox v Percy [2003] HCA 22; 214 CLR 118
Holloway v McFeeters (1956) 94 CLR 470
House v The King (1936) 55 CLR 499
Jackson v Lithgow City Council [2008] NSWCA 312
Jones v Dunkel (1959) 101 CLR 298
Kennedy Cleaning Services v Petkoska [2000] HCA 45; 200
CLR 286
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11;
243 CLR 361
Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363
 Lardis v Lakis [2018] NSWCA 113
Lewis v Chief Executive Department of Justice and Community
Safety (No 2) [2014] ACTSC 196
Luxton v Vines (1952) 85 CLR 352
Massouras v Kone Elevators Pty Ltd [2020] ACTSC 66
Massouras v Kone Elevators Pty Ltd (No 2) [2020] ACTSC 181
Masters Home Improvement Pty Ltd v North East Solution Pty
Ltd [2017] VSCA 88; 372 ALR 440
Minister for Immigration and Ethnic Affairs v Wu Shan Liang
(1996) 185 CLR 259
Oliver v Roberts (No 2) [2018] ACTCA 44
Palmer v Dolman [2005] NSWCA 361
Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 1 WLR
948
Sanderson v Blyth Theatre Co [1903] 2 KB 533 (CA)
Seeley International Pty Ltd v Jeffrey [2013] VSCA 288
Shepherd v The Queen (1990) 170 CLR 573
Shipton v Kone Elevators Pty Ltd [2020] ACTSC 129
Smith v Alone [2017] NSWCA 287; 82 MVR 309
Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310

Parties: Kone Elevators Pty Ltd (Appellant)

Alison Shipton (1st Respondent in ACTCA 29 of 2020)
Kellie Maree Massouras (1st Respondent in ACTA 30 of 2020)
Jane Angela Pattinson (1st Respondent in ACTCA 31 of 2020)
Jessica Soesman (1st Respondent in ACTCA 32 of 2020)
The Trust Company Ltd (2nd Respondent)
Cromwell Corporation Ltd (3rd Respondent)
Cromwell BT Pty Ltd (4th Respondent)
Cromwell Property Securities Ltd (5th Respondent)
Cromwell Property Services Pty Ltd (6th Respondent)
Cromwell Funds Management Ltd (7th Respondent)
Cromwell Project & Technical Solutions Pty Ltd (8th Respondent)
Cromwell Property Group (9th Respondent)
Cromwell Property Fund (10th Respondent)
Cromwell Diversified Property Trust (11th Respondent)

Representation: Counsel
J E Sexton SC with B K Nolan (Appellant)
D Campbell SC with J Ronald (1st Respondents)
N Polin SC with D Shillington (2nd to 11th Respondents)

Solicitors
Moray & Agnew (Appellant)
Ken Cush and Associates (1st Respondents)

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 McCabe Curwood (2nd to 11th Respondents)

File Numbers: ACTCA 29 of 2020; ACTCA 30 of 2020; ACTCA 31 of 2020;

ACTCA 32 of 2020

THE COURT:

Contents
Introduction 4
Grounds of appeal and notice of contention 5
Grounds 1–3: Insufficient evidence to conclude cause of poorly terminated wire 7
The primary judge’s reasoning 7
Submissions 8
Evidence 9
Consideration 15
Grounds 4–5: No breach 18
Submissions 18
Consideration 18
Grounds 6–9: Foreseeability of injury and causation 19
Submissions 19
The primary judge’s reasoning 19
Evidence 20
Consideration 27
Shipton damages 29
Grounds of appeal 29
Shipton appeal ground 10: Business records – s 69(3) of the Evidence Act 30
Shipton appeal ground 13: Past out-of-pocket expenses 32
Shipton appeal grounds 14–16: Past and future attendant care services 33
Shipton appeal grounds 17–18: Superannuation benefit 37
Pattinson damages: Past and future attendant care 37
Grounds of appeal 37
The primary judge’s reasons 38
The evidence 38
Consideration 38
Massouras damages: past and future attendant care 39
Grounds of appeal 39
The primary judge’s reasons 40
The evidence 40
Consideration 41
Pattinson: the limitation issue 41

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 Grounds of appeal 41
Consideration 42
Sanderson orders 44
Costs to the plaintiffs 47
Indemnity to Cromwell parties 47
Clause 28.1 of the Maintenance Contract 48
Clause 22 of the Maintenance Contract 49
Costs of the appeal 49
Disposition 49

Introduction
1. These four related proceedings arise out of an incident of intermittent stoppages of lift
number 2 in a high-rise office tower located in Woden, ACT, on the morning of 4
September 2013. The plaintiff in each proceeding (Mmes Shipton, Soesman, Pattinson
and Massouras) was a passenger in the lift during the incident and each claimed
damages in negligence against:

(a) Kone Elevators Pty Ltd (Kone), the company engaged by the building
manager to conduct maintenance of the lifts in the building; and
(b) the Cromwell parties, comprised of The Trust Company Ltd (the building
manager) and various Cromwell companies (the building owners).

2. Kone was the first defendant in each proceeding and is the appellant on appeal. The
Cromwell parties were the second to eleventh defendants in each proceeding and are
the second to eleventh respondents in each appeal.

3. In single reasons for judgment delivered on 3 April 2020, Massouras v Kone Elevators
Pty Ltd [2020] ACTSC 66 (primary judgment), the primary judge found that the plaintiff in
each proceeding was injured as a result of the stopping of the lift on two occasions during
its descent, that Kone was vicariously liable in negligence for the injuries and ordered
that there be judgment against Kone in the following sums (as corrected on 14 April
2020):

(a) In favour of Mrs Shipton: $2,140,246.48;

(b) In favour of Mrs Soesman: $24,194.35;

(c) In favour of Mrs Pattinson: $127,867.37; and

(d) In favour of Mrs Massouras: $98,232.95.

4. It is uncontroversial that the cause of the lift stopping on two occasions was an
intermittency of power to the lift occasioned by a broken or detached wire connected to
a transformer within the lift control unit. The critical issue insofar as liability is concerned
is what caused the wire to be broken or detached.
5. The primary judge found that the wire was broken or detached during maintenance
conducted by a technician employed by Kone and that it would not have been onerous
for the technician to have taken the precautionary step of checking the wires connected
to the control unit.

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6. On 28 May 2020, the primary judge delivered a further judgment in relation to Mrs
Shipton’s case (proceeding SC 400 of 2016) following submissions by the parties in
respect of some aspects of his Honour’s quantum assessment: Shipton v Kone Elevators
Pty Ltd [2020] ACTSC 129 (second judgment). Relevantly, the primary judge ordered
that there be judgment for Mrs Shipton against the appellant in the sum of $2,181,073.17
(i.e., an increase of about $40,000).
7. On 13 July 2020, the primary judge delivered a further judgment in respect of costs and
a cross-claim for an indemnity made by the Cromwell parties against Kone in each
proceeding: Massouras v Kone Elevators Pty Ltd (No 2) [2020] ACTSC 181 (costs
judgment). Relevantly, the primary judge ordered that:

(a) Kone pay the plaintiff’s costs of each proceeding as agreed or assessed at
the ACT Supreme Court scale on a party and party basis save in the Shipton
case where costs were ordered on a solicitor and client basis;
(b) Kone pay the Cromwell parties’ costs of each proceeding on an indemnity
basis; and
(c) with regard to the notice of contribution or indemnity, that Kone indemnify
the Cromwell parties for all losses suffered by them including legal fees and
costs incurred in defence of the claim brought against them by the plaintiffs
under the terms of a Maintenance Contract.
8. Kone appeals from the orders awarding judgment to the plaintiffs, all costs orders and
the award of the indemnity to the Cromwell parties.

9. Unless otherwise indicated, references below to the judgment of the primary judge are
references to the primary judgment.

Grounds of appeal and notice of contention

10. The notices of appeal filed in each proceeding identify between 19 and 28 independent
errors said to have been made by the primary judge. The appeal was, however, argued
by grouping the grounds of appeal as follows (the grounds being numbered in
accordance with the Shipton notice of appeal unless otherwise indicated):

(a) Liability: grounds 1–3

The primary judge erred in finding that it was probable that the loosely
terminated wire occasioning the intermittency in power was broken or
disconnected because it was damaged by Kone’s staff, and ought to have
found that the plaintiff failed to discharge her onus in relation to causation.
(b) Breach of duty: grounds 4–5

The primary judge erred in finding that Kone breached its duty of care and
that if Kone had exercised reasonable care, it would have detected the
loosely terminated wire.

(c) Foreseeability of injury and causation: grounds 6–9

The primary judge erred in accepting the evidence of one expert that it was
well-accepted in the lift industry that sudden stops for lifts travelling at the
speeds of the lift in question can easily cause damage to passengers, and
should have accepted the uncontradicted findings of another expert that any

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 sudden stop would have been “well below any possibility of injury” and that
the plaintiffs had thus not discharged their onus to establish that their
asserted injuries were in fact caused by the lift incident.

(d) Damages: grounds 11–18

There are a number of issues raised in relation to the primary judge’s
quantification of damages in the Shipton, Massouras and Pattinson
proceedings, with some differences between them. These will be identified
in due course.

(e) Limitation: Pattinson grounds 10–12

Having found that Mrs Pattison’s injury was an aggravation or acceleration
of a pre-existing injury, the primary judge erred by going on to find that the
injury satisfied the requirements of s 16A of the Limitation Act 1985 (ACT)
(Limitation Act). And, having found that s 16A applied, s 16B could therefore
not, and the primary judge ought to have found that the claim, having been
brought after 5 August 2016, was outside the required time for the purposes
of s 16A.

(f) Costs: grounds 19–28

The primary judge erred in making a Sanderson order, in awarding costs to

the plaintiffs, in awarding indemnity costs to the plaintiffs, in awarding the
Cromwell parties their costs on an indemnity basis, in his construction of
clause 28.1 of the Maintenance Contract and thus in ordering that Kone
indemnify the Cromwell parties for their costs in defending the plaintiffs’
claims.
11. Some of the grounds of appeal are stated in general terms and no submissions, whether
in writing or orally, were made expressly in support of them. In what follows, it is assumed
that those grounds of appeal are either not pressed or are swept up in the specific
submissions that were made.

12. In the Pattinson appeal, there is a notice of contention by Mrs Pattinson in relation to the
limitation issue. The notice contends that the proceeding was maintainable as it was just
and reasonable that the limitation period be extended to 3 September 2018 in
accordance with s 36 of the Limitation Act.

13. In each appeal, there is a notice of contention by the Cromwell parties which contends
that the order that Kone pay the Cromwell parties’ costs of the proceedings on an
indemnity basis should be confirmed on the following grounds:

(a) The primary judge erred in allowing Kone to effectively re-open its case to
serve and rely on the affidavit of Lauren Gail Smith dated 18 May 2020.
(b) The primary judge erred in not finding that Kone acted in breach of clause
22 of the Maintenance Contract in failing to effect the requisite policy of
insurance required by that clause.

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Grounds 1–3: Insufficient evidence to conclude cause of poorly terminated wire
14. The primary judge held (at [50]) that the incident was due to a poorly terminated wire
causing an open circuit to the lift drive. This, in turn, caused the lift to intermittently lose
power, stop and restart twice in quick succession.
15. This finding is not subject to challenge. Rather, what is challenged on appeal are the
factual findings of the primary judge with respect to the cause of the poorly terminated
wire.

The primary judge’s reasoning

16. After summarising the evidence in some detail, the primary judge concluded this part of
his reasons as follows:
49. Mr Stevens plainly discounted the possibility that the screw had been overtightened.
He discounted the possibility that the wire “hadn’t been put in properly”, saying “it
must have been put in properly because we didn’t have this problem leading up to
this event.” I find this to be a persuasive argument. In addition, as the person who
actually observed the relevant wire and connector while it was damaged, a great
deal of weight should be given to Mr Steven’s opinions.

50. Counsel for the plaintiffs submitted that I should find that the malfunction of the lift on
4 September 2013 was due to a “poorly terminated wire causing in turn an open
circuit to the lift drive which caused the lift to intermittently lose… power and come to
two abrupt and unexpected stops and restarts in quick succession.” This summation
of the evidence is accurate, so far as it goes. It does not, of course, address the
likely cause of the wire being poorly terminated. Bearing in mind the evidence of Mr
Stevens that the possibility that the wire had not been “put in properly” was unlikely,
and the unlikeliness of the possibility that the wire had broken because of
overtightening of the screw, in my opinion it is probable that the wire broke or
became disconnected because it was damaged by Kone staff performing
maintenance checks. As Mr Stevens said, “we pulled on the wire a little bit too hard
at some stage.” It was apparent from the evidence of Mr Stevens that a competent
technician would be aware of the need to exercise care in the degree of force
applied to wires in the process of checking whether they were soundly connected to
the transformer. The clear inference is that the wire broke because of a failure by a
Kone technician to exercise that care.

17. To summarise, the primary judge discounted the possibilities that the wire was
disconnected because: (1) the screw had been overtightened, or (2) it had not been
secured properly when the control unit was originally assembled. The primary judge did
not make any express conclusion on possible cause (3), namely that vibrations over a
long period of time had caused the wire to break. Prior to Mr Stevens giving evidence,
that possible cause was considered by the experts at their first conclave to be the most
likely cause of the wire becoming disconnected. Nevertheless, his Honour must be taken
to have impliedly discounted that possibility because it is inconsistent with his ultimate
finding.

18. Later, after considering Mr Stevens’s evidence, the experts agreed that the wire was
disconnected because it had been poorly terminated. The two possibilities of what that
entailed were that the wire was broken or that the terminal screw was overtightened.
None of the experts said that he thought that the wire had been pulled loose by a lift
maintenance technician.

19. His Honour concluded that the “clear inference” was that the wire broke because of the
failure by “a Kone technician to exercise care”. That inference was said to arise from Mr

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 Stevens having said “we pulled on the wire a little bit too hard at some stage” and his
evidence that a competent technician would be aware of the need to exercise care in the
degree of force applied to wires in the process of checking whether they were soundly
connected to the transformer.

20. It should be observed that later in the judgment (at [80]), dealing with the plaintiffs’ case
against the Cromwell parties, the primary judge concluded that “the evidence which
finally emerged from Mr Stevens plainly put an end to any case, on behalf the plaintiffs,
based upon vibration in the drive unit as the mechanism in the lift’s malfunction, or that
the malfunction was connected with any fault in the lift motor which Kone had earlier
recommended be replaced.” Also, his Honour stated the following:
82. Before considering damages, and for the sake of completeness, I make it clear that
the evidence does not support the proposition that the lift maintenance regime adopted
by Kone was deficient. The evidence satisfies me that the defect that caused the lift
to malfunction was not the result of an inadequate service regime, but a single instance
of carelessness. The records of the maintenance attendances by Kone staff in the
month leading up to the 4 September 2013 do not support the proposition that the
defect which caused the lift to malfunction was longstanding.

Submissions
21. Kone advances four primary submissions in relation to liability.

22. First, Kone submits, the circumstances that one of the many wires in the lift control unit
breaks does not bespeak negligence. The very reason that Kone provides a service
which responds to lift breakdowns is because lift components do fail from time to time,
notwithstanding reasonably competent maintenance. Similarly, the principal reason that
lifts are designed and constructed with “failsafe” stopping mechanisms is because faults
can and do occur.
23. The primary judge gave a “great deal of weight” to a hypothesis for a broken wire
proffered by Mr Stevens, a senior elevator technician for Kone, that the screw fastening
the wire to the terminal was overtightened (primary judgment at [49]), despite Mr Stevens
saying that he saw no evidence to support this hypothesis and absent an adverse
credibility finding on this issue, or at all.

24. Secondly, Mr Stevens said that the wire must have been put in properly because the lift
did not have the problem of intermittent stoppages leading up to the event. Therefore, it
was necessary for the primary judge to consider that it was likely that the poorly
terminated wire had not been present on the last occasion when a Kone technician, being
Mr Stevens, conducted a maintenance check two days prior to the event and the
probabilities were that the wire broke for some reason not associated with the
maintenance.

25. Thirdly, the primary judge accepted Mr Stevens’s evidence that were he to have bumped
the wires, he would, as a reasonable precaution, have physically checked all the wires
to ensure that one was not damaged or loose: at [76]–[77]. The quality of Mr Stevens’s
care was never put in question (at [82]). The absence of cross-examination on a matter
“will often be a very good reason for accepting the witness’s evidence upon that matter”:
Broughton v B & B Group Investments Pty Ltd [2017] VSCA 227 at [110] per Kyrou,
Ferguson and McLeish JJA, cited in Lardis v Lakis [2018] NSWCA 113 at [48] per
Meagher JA (Macfarlan and White JJA agreeing). Thus, there was no evidence upon
which it was open to infer that the damage to the wire occurred on 2 September 2013.

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26. Fourthly, it follows that there was no evidence upon which it was open to infer that the
damage to the wire was capable of detection on 2 September 2013. The 4 September
2013 incident was the first occasion that the lift had run, stopped and reset itself in that
fashion so as to suggest a poorly terminated wire was the cause. Therefore, the only
available finding was that the loosely terminated wire could not be detected prior to 4
September 2013 using reasonable care and skill, even if it were loosely terminated prior
to 2 September 2013.

27. The plaintiffs submit that the primary judge ultimately accepted Mr Stevens’s evidence
that it was unlikely that the wire had been improperly inserted or that it had, through
overtightening of the screw behind which it was placed, been broken. Instead, his Honour
accepted that in the course of what Mr Stevens described as “pulling on the wire in a way
that was a little bit too hard at some stage”, the wire had become disconnected by Kone
staff at some point when they were doing maintenance checks: at [50].

28. Further, the plaintiffs submit there was no direct evidence available to establish what had
caused the offending wire to become loose. It was thus necessary for the primary judge
to look at the circumstantial evidence that was available, and to then seek to determine
what inferences were available by reason of those circumstances: see Shepherd v The
Queen (1990) 170 CLR 573 at 579 per Dawson J. The conclusion derived results from
the proof of circumstances in which it was reasonable for the primary judge to find a
balance of probabilities in favour of the conclusion reached: Bradshaw v McEwans Pty
Ltd (1951) 217 ALR 1 (Bradshaw v McEwans) at 5 per Dixon, Williams, Webb, Fullagar
and Kitto JJ.
29. The plaintiffs submit that there was no suggestion that on 2 September 2013, Mr Stevens
conducted a full inspection of the wiring. The primary judge considered the weight to be
given to the united force of all of the circumstances put together, then weighed up the
possibilities settling on the drawn inference as the one having the greatest likelihood, as
he was entitled to do: Palmer v Dolman [2005] NSWCA 361 at [41] per Ipp JA; Masters
Home Improvement Pty Ltd v North East Solution Pty Ltd [2017] VSCA 88; 372 ALR 440
at [101] per Santamaria, Ferguson and Kaye JJA; Seeley International Pty Ltd v Jeffrey
[2013] VSCA 288 at [45]–[48], [51] per Warren CJ, Nettle and Whelan JJA.
30. In response to Kone’s submission that the primary judge accepted Mr Stevens’s
evidence that he would have checked the wires had he bumped them, the plaintiffs
submit that this is misplaced. Instead, the plaintiffs submit, the primary judge was
explaining what was required to avoid the risk at hand; no factual finding was made in
those paragraphs. Accordingly, there was no requirement for the plaintiffs’ counsel to
cross-examine Mr Stevens.

Evidence
31. Kone’s submissions draw on the totality of the evidence relevant to the question of
liability. Given that, and the central contention that the evidence does not justify the
primary judge’s conclusion, it is necessary to canvass the evidence at some length.

John Tibbitts
32. John Tibbitts, a consulting engineer, was retained by the solicitors acting on behalf of
Mrs Shipton to provide an expert opinion on the way in which the lift operated and the
likely cause of the incident.

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33. Mr Tibbitts conducted a site inspection on 16 June 2016 (i.e., nearly three years after the
incident) to determine the functioning of the lift during the incident and possibly the cause
of the incident. This included inspecting the lift in question. In a report dated 17 August
2016, Mr Tibbitts concluded that the controller of the lift in question was experiencing
excessive vibration due to the operation of some of the elements mounted within or on
the controller.
34. Mr Tibbitts then went on to address the most likely cause of the incident, stating that the
most likely cause of the perceived fall of the lift was the excessive vibration of the
equipment mounted in the lift controller; the same vibration would be causing minor
flexing of the wires connected to the drive transformer which in time could cause the wire
to break.
35. Mr Tibbitts was asked to address the risks created by vibration generally, as well as
excessive vibration, occurring in a lift controller. His view was that a wire that undergoes
continual vibrations is being constantly bent, which will cause metal fatigue and eventual
breaking of the wire.

36. Excessive vibration in the lift controller was said by Mr Tibbitts to likely cause either or all
of the following:

(a) a wire connected to the drive unit in the controller to break;

(b) a terminal connection to the drive unit in the controller to become too loose;
and

(c) a malfunction of the contactor of the drive unit on the controller.

Ian McWaters
37. In response to Mr Tibbitts’s report, Kone sought the opinion of Ian McWaters, a director
of WSP Building Pty Ltd (a building consulting practice). On 12 May 2017 (i.e., more than
three and a half years after the incident), Mr McWaters conducted a site inspection. This
included inspecting the drive components of the lift in question.
38. In his report dated 21 September 2017, Mr McWaters addressed the possibility that
various drive components of the lift could produce levels of vibration which were sufficient
to cause the incident. Mr McWaters noted two sources of vibration: a large contactor
mounted above the transformer, and an auto-transformer and filter choke installed in
proximity to the lift controller. In respect of the latter, Mr McWaters concluded that:
[N]either these [sic] transformer/choke components would produce enough ‘movement’ of
small wiring such as that associated with the incident, to cause the wire to fail due to long
term exposure to low amplitude vibration.

39. In respect of the large contactor, Mr McWaters concluded that:

In my view the contactor may have produced sufficient vibration over time to cause a wiring
fault, but other contributing factors such as accidental knocking of the wire or a poorly
stripped and installed wire connection at the time of installation or during maintenance are
more likely causes of a failure of the type that occurred.
…
I believe that whilst vibration is a possible cause, other factors such as disturbance and
shortcomings are also relevant.

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Peter Ward
40. The Cromwell parties sought the opinion of an expert, Peter Ward, a director of JCA Lift
Consultants (a lift consultancy practice). In respect of vibration, Mr Ward noted that:
Many components in and around lift controllers such as relays, contacts and transformers
when operating will generate some vibration as part of their normal function.

41. Mr Ward agreed with Mr Tibbitts and Mr McWaters that it was possible that vibration
could have been a contributing factor to the incident, stating that:
The actual fault was acknowledged as a loose wire on a transformer that caused the lift to
do an emergency stop when the connection open-circuited.
Vibration from the transformer or contactors may have been a contributing factor in causing
the intermittent open circuit…

42. However, Mr Ward noted that at the time of his initial site visits in September 2013, there
was no indication that vibration levels were excessive. Mr Ward went on to agree with
Mr McWaters that vibration was not the only potential cause of the fault, stating:
In my opinion from our inspections and the Kone Elevators call report, the fault causing the
incident was a broken wire which Kone Elevators rectified at the time. And all of the identified
causes by Mr Ian McWaters it was reported possibly played a part in the fault occurring.

Experts’ joint report

43. An expert conclave, consisting of Mr Tibbitts, Mr McWaters and Mr Ward, was convened
on 20 March 2019 (approximately a month before the hearing commenced). The
conclave agreed that “the likely cause [of the incident] was vibration inside the control
cabinet, causing either or all of a wire connected to the drive unit in the controller to break;
a terminal connection to the drive unit in the controller to become too loose, or a
malfunction of the contactor of the drive unit in the controller.” However, the conclave
accepted that:
With respect to the cause of the incident being due to a broken wire because of vibration, we
agree that the incident could have been caused for other reasons.

John Stevens
44. A senior elevator technician of Kone, Mr Stevens, was called by Kone to give evidence
on day 14 of the hearing. As is customary in such proceedings, no affidavit, witness
statement or brief of evidence giving notice of what Mr Stevens’s evidence would be was
given in advance. Nevertheless, on 29 June 2016 Mr Stevens had provided a letter
addressed “to whom it may concern” regarding his observations on the day of the incident
on 4 September 2013. In the letter Mr Stevens said:
Upon checking the EMC (Monitoring Computer) in the High Rise Lift Motor Room at 9:45 am
I found Lift 2 had performed 2 correction runs. This told me that the lift had stopped and then
reset itself to the nearest floor.

I removed the lift from service and upon investigation found a broken wire to a Terminal
connection on transformer 240 intermittently going open circuit.

45. Although there is some dispute as to whether Mr Stevens’s letter was provided to Mr
Tibbitts before his first report, it is common ground that Mr Stevens’s letter was otherwise
available to the experts for their reports and conclave.

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46. Mr Stevens had been employed as an elevator technician, principally by Kone, for a
period of 42 years. At the direction of his manager Mr Stevens would attend the site of
the lift, Lovett Tower, several times per week to check on the operation of the lifts.

47. The area which contained control cabinets was only accessible to Kone personnel and
the lift control cabinets themselves were kept locked.

48. Kone service records established that it was Mr Stevens who had performed all relevant
maintenance on the lift in question between June and September 2013.

49. Mr Stevens performed several different types of maintenance. In a “system inspection

and service”, also described as “routine maintenance”, Mr Stevens would perform a
“general check of the elevator”. Among other things, this involved an inspection of the lift
control cabinet. Mr Stevens’s preferred method of inspection used a screwdriver. He
would:
put it on the terminals. I might tap the wires just to make sure the wires are secure, those
sorts of things. I’m looking for discolouration in case that relay or contactor might be getting
hot. I’m listening…for noise, buzzing, those sorts of things.

50. It was Mr Stevens’s evidence that he would not inspect every terminal during a system
inspection and service. Instead, his practice varied depending on whether the lift being
inspected had previous “problems and calls”. He stated that:
It can take up to 30 minutes or so to do a real thorough full check. I wouldn’t always do a
check to that degree. So I would check the main contactors and the main things that I think
would stop the lift.

51. An “Item 33” service was more detailed. It required that, among other things, the tightness
of all connections be tested and all flexible leads and components be checked for
deterioration. This again was performed using a screwdriver. Mr Stevens indicated that
this type of service was performed approximately every six months.
52. Mr Stevens would also check the terminal connections if he was “fault-finding”. That is,
he would:
[G]o through with a screwdriver…so that I can focus on each individual component and look
and see if there’s anything wrong.

53. Although he could not state definitively how frequently the terminal connections were
checked in this manner, he considered that they were checked at least every two months.
54. Mr Stevens attended Lovett Tower on 2 September 2013, i.e., two days before the
incident in question. Kone Maintenance visit records reflect that Mr Stevens was
performing a system inspection and service on the relevant lift. During cross-
examination, Mr Stevens agreed that he was performing “routine maintenance” on this
occasion.

55. Mr Stevens also attended Lovett Tower on 3 September 2013 between 6:00AM and
7:00AM. Mr Stevens acknowledged that this was before his ordinary starting time of
7:30AM. Mr Stevens could not recall what he was doing at Lovett Tower on that particular
occasion. There were no maintenance records indicating the purpose of the visit. He
stated that “perhaps he had a problem to fix”.

56. During cross-examination, it was put to Mr Stevens that the likelihood was that he was
there because there had been a problem with the lift. He replied that he didn’t know.
When asked about other possible reasons for his attendance, he stated:

12
 Well, I don’t know. I might have been asked to go there because they needed someone to
do a standby to move furniture or something. I don’t know why. I must have been instructed
to go there early.

57. Mr Stevens again visited the site at 7:45AM on 4 September 2013. He gave evidence
that he had not been called and that the visit was for a routine check. In the elevator
control room he discovered that an alarm had activated on the elevator monitoring
computer, indicating a problem with the lift.

58. Upon inspection of the lift controller, Mr Stevens identified a loose wire on the supply
transformer. He was able to detect this because the wire moved out of its socket when
force was applied to it with a screwdriver. This loose wire occasioned the loss of power
to the lift intermittently, causing the electrical current to go into open circuit.
59. Mr Stevens observed that the screw which ordinarily connected the wire to the terminal
was still tight. Mr Stevens considered that this was unusual and that it indicated that:
[E]ither the wire wasn’t terminated correctly, or it had broken for some reason.

60. By “not terminated correctly”, Mr Stevens meant that the wire was not properly behind
the screw. He accepted that it was possible that the wire was “just sitting against the
screw making contact with it”, particularly as it was curved around like a hook.
61. Based on his inspection on the date of the incident, Mr Stevens was unable to
conclusively determine the reason why the wire had become loose. He did, however,
hypothesise on possible ways by which the wire could have come loose, saying:
I was asked how could a wire come loose like this and I thought perhaps over tightening may
have caused the problem. Or I also thought that maybe it had been bumped or damaged by
us whilst doing our maintenance checks. Generally speaking, the screws for the terminals
are designed so that if you get to a point where you’re trying to over tighten the screw, the
screw head starts to strip.

62. During cross-examination, Mr Stevens was asked about that and said that it could be
possible that the screw had been over tightened if a larger screwdriver had been used.
In re-examination, Mr Stevens said that he did not observe anything on that day to
suggest that the screw had been overtightened.

63. Mr Stevens was also asked in cross-examination about having said that “maybe it had
been bumped or damaged by us whilst doing our maintenance checks”. This led to the
following exchange:
So it’s just human error. Someone can bump the wire and it breaks? --- Well, we tap the
wires with a little screwdriver. You give it a light—we pulled on the wire a little bit too hard at
some stage. I don’t know.

64. Mr Stevens explained that he did not see anything during his inspection on 4 September
2013 which would suggest that the wire had been bumped. This notwithstanding, Mr
Stevens still accepted that it was plausible that he might have bumped the wire during
his maintenance checks.
65. It was not put to Mr Stevens during cross-examination that he was at fault in relation to
the manner in which he had undertaken maintenance on the lift, or that he had pulled or
bumped the wires and not then checked them.
66. During cross-examination it was put to Mr Stevens that “minimal vibration” could have
caused the wire to move for a split second, causing a break in contact between the wire

13
 and the terminal. Mr Stevens did not assent to this proposition, stating that he did not
believe that vibration “played any part”.
67. Mr Stevens was also asked about the level of vibration created by various lift
components. While he accepted that there was componentry which created vibration, he
stated that vibration had never been a “major issue” with this equipment, and he had
never noticed any level of vibration that caused him concern that wires might become
loose because of the vibration.
68. Mr Stevens also gave evidence which bore upon the possibility that the wire was not
properly installed. He noted that the wire was installed into the terminal as part of the
manufacturing process. Mr Stevens said that the wire could have failed but he discounted
the possibility that the fault was caused by the wire not being inserted into the terminal
at the time of manufacture, stating:
[I]t must have been put in properly because we didn’t have this problem leading up to this
event.

69. It is to be observed that this is inconsistent with his evidence referred to at [59]–[60]
above. He was not asked about the possibility of a poorly terminated wire becoming loose
over time because of, for example, vibration.

70. It was established that the transformer had been installed as a pre-manufactured or pre-
assembled unit in 1996 and that it was not supplied by Kone. It came from Finland. It
was still in its original condition.

Experts’ second joint report

71. Mr Stevens’s evidence at trial was provided to the expert conclave, which then
reconvened on 24 September 2019. The conclave was asked to assume that Mr
Stevens’s evidence with respect to what he found on the day was correct. They were
asked their opinion on what was the most likely cause(s) of the loose wire in the
transformer in the drive unit. They concluded that:
The most likely cause of the loose wire was a poorly terminated wire.

72. The experts gave no reasons in their second report for that conclusion, or any
explanation of what they meant by it.

Experts’ concurrent evidence

73. The three experts gave concurrent evidence on 24 September 2019 following the
reconvened conclave. Each agreed that Mr Stevens’s practice of using a screwdriver to
check the security of the connection of the outgoing wires in the transformer was a
standard precaution expected of lift mechanics. That is the practice of “pulling” on the
wires with a screwdriver to check that they are secure.

74. The conclave was also asked about what they meant by the term “poorly terminated
wire”. Mr Tibbitts’s explanation was:
That the wire was not held in place by the screw that should be fastening it onto the terminal
itself.

75. Mr McWaters, with Mr Ward agreeing, gave a similar explanation, saying that:

14
 It’s likely—given that the wire was tested a number of times but came loose on this
occasion—that the wire was secured partly by the screw but not sufficiently and at some
point it decided to part company with the terminal.

76. In response to counsel for the Cromwell parties, Mr McWaters agreed that it was
probable that either the wire was never put behind the screw such that the screw was
tightened but did not actually secure the wire, or that the wire was broken, leaving a small
piece of residual copper secured behind the screw. Messrs Tibbitts and Ward agreed
that those were the two possibilities.

Consideration
77. As there was no direct evidence on what caused the wire to be or become disconnected,
any conclusion on that question had to be reached on inferential reasoning from the
circumstantial evidence. That directs attention to the terms of the task at hand.

78. In Luxton v Vines (1952) 85 CLR 352 at 358 per Dixon, Fullagar and Kitto JJ, with
reference to Bradshaw v McEwans, it was said that in a civil case:
[W]here direct proof is not available, it is enough if the circumstances appearing in evidence
give rise to a reasonable and definite inference: they must do more than give rise to
conflicting inferences of equal degrees of probability so that the choice between them is mere
matter of conjecture. But if circumstances are proved on which it is reasonable to find a
balance of probabilities in favour of the conclusion sought then, though the conclusion may
fall short of certainty, it is not to be regarded as a mere conjecture or surmise.
(Citations omitted.)

79. In Jones v Dunkel (1959) 101 CLR 298 at 305 (Jones v Dunkel), Dixon CJ referred to
Holloway v McFeeters (1956) 94 CLR 470 at 480–481 (Holloway v McFeeters) and
Bradshaw v McEwans. After setting out a passage from Bradshaw v McEwans, he said:
But the law which this passage attempts to explain does not authorise a court to choose
between guesses, where the possibilities are not unlimited, on the ground that one guess
seems more likely than another or the others. The facts proved must form a reasonable basis
for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may
reasonably be satisfied.

80. Although Dixon CJ was in dissent, this passage can be taken to reflect the essential
content of Holloway v McFeeters, and of the views of the justices in Jones v Dunkel:
Jackson v Lithgow City Council [2008] NSWCA 312 at [10] per Allsop P, Basten JA and
Grove J agreeing.

81. In Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [34] per French CJ, Gummow,
Crennan and Bell JJ, it was said that a plaintiff must prove their case on the balance of
probabilities and it is no answer to the question whether something has been
demonstrated as being more probable than not to say that there is a another possibility
open; the determination of the question turns on consideration of the probabilities.

82. It also has to be borne in mind that a trial judge does not have to choose between
competing possibilities if there is no reasonable basis to affirmatively draw a definite
conclusion on which they can reasonably be satisfied. There is another possibility, which
is that the burden of proof is not discharged:
[T]he judge is not bound always to make a finding one way or the other with regard to the
facts averred by the parties. He has open to him the third alternative of saying that the party
on whom the burden of proof lies in relation to any averment made by him has failed to
discharge that burden.

15
 (Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 1 WLR 948 at 955 per Lord
Brandon of Oakbrook; quoted with approval in Kuligowski v Metrobus [2004] HCA
34; 220 CLR 363 at [60] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan
and Heydon JJ.)

83. It is to be recalled that on the evidence the following possible causes of the wire breaking
or becoming detached were proffered:

(a) Excessive vibrations (Tibbitts report);

(b) Vibration, accidental knocking or a poorly stripped and installed wire

connection (McWaters report, and Ward agreeing);
(c) Vibration or “other reasons” (first joint report);

(d) Not terminated correctly, or broken for some reason, or overtightening, or

bumped or pulled too hard (Stevens);

(e) Poorly terminated (second joint report); and

(f) Not put behind the screw or broken (McWaters, Tibbitts and Ward in oral
testimony).
84. In this case, the primary judge, as mentioned, chose the alternative that a maintenance
technician had applied too much force on the wires in the process of checking whether
they were soundly connected to the transformer. That was on the basis of Mr Stevens’s
evidence that “we pulled on the wire a little bit too hard at some stage”.

85. That statement by Mr Stevens needs to be understood in context. Various alternatives

were being put to him. He agreed that “either the wire was not terminated correctly or it
had broken for some reason”, he said that it “would be a possibility” that the screw was
over-tightened and then this exchange took place:
And the other thing you said “or I also thought that maybe it had been bumped or damaged
by us while doing our maintenance checks”?---Yes.

So it’s just human error. Someone can bump the wire and it breaks?---Well, we tap the wires
with a little screwdriver. You might give a light—we pulled on the wire a little bit too hard at
some stage. I don’t know.

86. That evidence, fairly read, puts the “wire was bumped or pulled” alternative no higher
than one possibility amongst others, including that the wire broke. Mr Stevens’s
statement “I don’t know” makes it clear that he was not saying that he thought that that
is what happened. That was made clear in re-examination when Mr Stevens explained
that the suggestion that the wire could have been bumped was made by him because he
“was trying to think of things that may cause that wire to come loose”. He went on to
agree with the proposition that “it’s plausible that in the course of doing your maintenance
checks that you might bump wires”. In context, that meant no more than that that was a
possibility, particularly as he had explained his practice of carefully checking that no wires
had come loose.

87. By the end of the evidence, vibration as a possible cause had essentially fallen way.
None of the experts favoured it, and Mr Stevens spoke against it. We consider that there
is no error in the primary judge having rejected that as the likely cause. So the remaining
possible causes were: (1) poor termination at the time of manufacture, (2) over tightening
or (3) pulling or bumping. Poor termination at the time of manufacture would not have

16
 saddled liability on Kone because it was not responsible for assembling the control unit,
but over tightening and pulling or bumping would have been Kone’s responsibility.
88. Given Mr Stevens’s evidence and the opinion of the experts, it can be accepted that the
wire was poorly terminated. But, Mr Stevens also said that they had not had the problem
before and the unit had been in place since 1996—some 17 years earlier. So, what
caused the poorly terminated wire to break free? The only remaining causes are over
tightening or bumping or pulling. Either would have been a casual act of negligence by a
Kone technician.
89. It is necessary to consider the effect, if any, of the failure of anyone to put to Mr Stevens
that he most probably pulled or bumped the wire loose.

90. The well-known rule of practice is that unless notice has already clearly been given of
the cross-examiner’s intention to rely upon such matters, it is necessary to put to an
opponent’s witness in cross-examination the nature of the case upon which it is proposed
to rely in contradiction of his evidence, particularly where that case relies upon inferences
to be drawn from other evidence in the proceeding: Browne v Dunn (1893) 6 R 67 (HL);
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16
per Hunt J.
91. The rule applies not only to cross-examining counsel, but also to trial judges: Kuhl v
Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [75] per Heydon,
Crennan and Bell JJ.

92. The consequence of not observing the rule of practice, which is really a rule of fairness
both to the witness and to the party who called the witness, is that cross-examining
counsel may be taken to accept the witness’s evidence and may not be permitted to ask
the trial court, or the appeal court, not to accept it: Bale v Mills [2011] NSWCA 226; 81
NSWLR 498 at [46]–[47] per Allsop P, Giles JA and Tobias AJA; Craine v Colonial Mutual
Fire Insurance Co Ltd (1920) 28 CLR 305 at 318–319 per Knox CJ, Isaacs and Starke
JJ.
93. There is also the consideration that the last time that a technician had visited the site was
the previous day, on 3 September 2013 between 6:00AM and 7:00AM, when Mr Stevens
was there for a reason or reasons that he could not later recall. If the cause of the wire
being disconnected was that it was bumped loose by a technician who then did not
realise that that had occurred, realistically that was most likely Mr Stevens—since he was
the only technician who visited the site over the previous four months—and it was most
likely that morning the day before. However, it was never suggested to him that it was
him, and it was never suggested that he had done it that previous visit.

94. It is submitted on behalf of the plaintiffs that cross-examining counsel was not required
to put to Mr Stevens that he must have dislodged the wire on his previous visit because
Mr Stevens had said that he could not recall what he had been doing on site that morning.
We do not accept that that is a valid or recognised exception to the important rule of
practice. That is because if cross-examining counsel had put the point, whether as to that
morning or the morning before (i.e., 2 September) or more generally, Mr Stevens would
have been given the opportunity of explaining himself. There may have been a general
explanation available to him that did not depend on him having remembered the reason
why he was on site the previous morning.

17
95. However, for a different reason it was not necessary to put to Mr Stevens that it was likely
that he bumped or pulled the wire loose. That is because in cross-examination he said
that it was possible that he had done so and in answer to a question in re-examination
he said that it was “plausible” that he did so. He thus had the requisite opportunity to
explain himself, and there is little more that could have been put. It could have been put
to him that it was more than merely “possible” or “plausible” that he had bumped or pulled
the wire loose, and that it was likely that he had done so. Nevertheless, we do not
consider that the failure to have put that caused any unfairness to Mr Stevens or to Kone,
especially where the ultimate finding did not contradict his evidence but was rather
entirely consistent with it.

96. In the circumstances, the primary judge was quite justified in drawing the inference that
he did which is that the wire was broken loose by a casual act of negligence by a Kone
technician. The ground of appeal in each appeal therefore fails.

Grounds 4–5: No breach

97. The primary judge held that the appellant breached its duty of care by performing
maintenance on the connection to the drive transformer without due care, which resulted
in the wire breaking, which in turn resulted in intermittent power loss to the lift (at [78]).
Appeal grounds 4 and 5 assert that the primary judge erred in this respect.

Submissions

98. Kone advances a number of submissions in relation to these grounds.

99. First, Kone submits, in the context of the evidence of the testing that Mr Stevens did on
the day of the incident, a failure to detect a loosely terminated wire did not amount to a
breach; that is, the exercise of reasonable care would not have resulted in the loosely
terminated wire being detected. In this respect, Kone submits that it is unimaginable what
other precautions a reasonable person might otherwise have taken, and that the duty
owed to the plaintiffs was only to exercise reasonable care and not a duty of absolute
perfection in remedying all faults in the system.
100. Secondly, Kone submits that the primary judge erred by considering what measures
could have prevented the injuries sustained by the plaintiffs and then to take that as the
basis for determining the scope of the appellant’s liability. That is to say, that his Honour
engaged in hindsight reasoning.

101. The plaintiffs submit that his Honour made no finding that Kone’s service regime was
inadequate but rather that what caused the lift to malfunction was a single instance of
carelessness (primary judgment at [82]).
Consideration

102. There is no substance to these grounds of appeal. As dealt with in relation to the cause
of the wire becoming detached, the evidence sufficiently supported the primary judge’s
finding that it was a casual act of negligence by a Kone technician that caused the purely
terminated wire to become detached from its terminal. It was doubtless the very act of
checking that the wire was attached which caused it to become detached. Mr Stevens
said that it was “plausible” that that is what occurred. Once having caused it to become
detached, it can be no answer to that act of negligence to say that he employed a proper
system of checking whether it was attached.

103. This ground of appeal in each appeal therefore also fails.

18
Grounds 6–9: Foreseeability of injury and causation

Submissions
104. By these grounds of appeal, Kone submits that the primary judge erred:

(a) in accepting the evidence of Mr Tibbitts that it was well-recognised in the lift
industry that sudden stops of lifts travelling at the speeds of the lift on the
premises can easily cause damage to any passengers experiencing such
sudden stop;

(b) in failing to be satisfied that the uncontradicted and unchallenged findings

on the simulation conducted by Mr McWaters accurately reproduced the
circumstances of the incident the subject of the proceedings or the forces
to which each plaintiff was exposed in the incident;

(c) in failing to have accepted the uncontradicted and unchallenged findings of

Mr Gibson that the forces that would have been exerted on the body of each
plaintiff in any sudden stop by operation of the emergency brake would have
been “well below any possibility of injury”; and

(d) in failing to find that each plaintiff had failed to discharge her onus that the
injuries that she asserted she had sustained by reason of the lift incident
were, in fact, caused by the lift incident.

105. In essence, Kone submits that Mr Tibbitts’s general statement as to it being known in the
industry that the sudden stop of a lift travelling at a high speed can cause damage to
passengers should not have been accepted over Mr McWaters’s tests of the actual lift in
question which showed that it was subjected to a gradual stop which would have put
forces on the body which Mr Gibson concluded would not have caused injury. On that
basis, Kone submits that the plaintiffs testimony as to having been injured in the lift
incident should not have been accepted

The primary judge’s reasoning

106. The primary judge identified the relevant risk that was required to have been foreseeable
as the risk that passengers in the lift may be injured if the lift malfunctioned due to
intermittent loss of power (at [58]). The primary judge then placed reliance on the
statement in Mr Tibbitts’s first report that “within the lift industry it is recognised that
sudden stops for lifts travelling at the speeds of the lifts in the subject building, can easily
cause damage to any passengers experiencing that sudden stop.” His Honour noted that
Mr Tibbitts was not cross-examined on that statement.
107. The primary judge described Mr McWaters’s inspection and tests of the lift in May 2017
and his finding that the rate of deceleration of the lift was about 1/3 of gravity whereas
the applicable code allows a deceleration rate equal to 1 gravity or 9.8 m/s2 (at [59]). His
Honour then referred to the opinion of Mr Gibson that Mr McWaters’s calculation for the
rate of deceleration, or even twice that rate, would produce a load on the human body
well below any possibility of injury (at [60]-[63]).
108. The primary judge noted that Mr McWaters did not take issue with the statement by Mr
Tibbitts that it is recognised in the lift industry that a sudden stop of a lift can cause
damage to passengers and that Kone did not lead any evidence to contradict that
statement (at [64]). His Honour went on to say that the statement by Mr Gibson that the

19
 forces exerted on the human body would have been “well below any possibility of injury”
must be approached with caution saying that it must be understood in the context of the
claimed injuries in this case appearing to be the result of pre-existing conditions being
exacerbated by the lift incident (at [65]).

109. The primary judge then dealt further with Mr Waters’ and Mr Gibson’s evidence in the
following paragraph which attracted the most criticism by Kone ([66]):
In addition, the weight to be attributed to Mr Gibson’s opinions depends on the extent to
which the simulation conducted by Mr McWaters accurately reproduced the circumstances
which existed on 4 September 2013, and the resultant forces to which the plaintiffs were
exposed. The simulation conducted by Mr McWaters involved an empty lift. On 4 September
2013, there were four adult females in the lift. There is no evidence of what additional weight
this would have added to the lift, and how this may have affected the speed of the lifts
descent. Mr Tibbitts referred in his report to the lift being equipped with “safety gear” intended
to stop the lift in the event that it “over speeds” in its descent, but there was no evidence of
the speed at which the equipment was to commence operation. I cannot assume that the
additional weight carried by the lift on 4 September 2013 would not have significantly affected
its rate of descent. In addition, for the simulation conducted by Mr McWaters to accurately
reflect the situation which occurred on 4 September 2013 a number of assumptions must be
made. It must be assumed that the means used by Mr McWaters when “tripping the brake”
on the lift on 12 May 2017 produced the same result in terms of stopping the lift that was
produced by the loss of power on 4 September 2013. In his report, Mr McWaters said that
he tripped the brake “in a manner similar to what would have occurred in the incident”, but
there is no indication in that statement that what he did was identical to what would have
occurred with a loss of power. In addition, the comparability of the simulation conducted by
Mr McWaters with what occurred on 4 September 2013 depends on the assumption that no
relevant effect on the rate of descent of the lift, or the operation of the emergency brake, has
occurred by reason of maintenance, use or deterioration of the equipment in the nearly four
year period between the incident and Mr McWaters conducting his simulation.

110. The primary judge was not satisfied that the simulation conducted by Mr McWaters
accurately reproduced the circumstances of the incident in which the plaintiffs were
injured or the forces to which they were exposed (at [71]). On the basis of the evidence
of Mr Tibbitts and Mr Stevens, the primary judge found that the risk of injury to a
passenger in the lift by reason of the lift suddenly stopping in the course of a descent by
reason of a loss of power caused by inadequate maintenance was clearly a foreseeable
risk (at [72]). The primary judge rejected the contention that Mr Tibbitts’s statement
should be afforded no weight, including because it had not been objected to and he was
not cross-examined on it (at [75]).

111. The primary judge referred to the evidence of Dr Stephen Buckley, a consultant physician
in rehabilitation medicine, who said that he did not believe it was possible to precisely
calculate the axial load to which Mrs Shipton’s neck was exposed by the sudden stopping
of the lift without knowing the precise position of the head and neck as the lift descended
and stopped. His Honour regarded that to be “a sensible statement” (at [67]). The primary
judge added that he was satisfied that the plaintiffs did suffer injuries as a result of the
sudden stopping of the lift (at [69]).

Evidence
112. There was expert evidence admitted which addressed whether the incident was capable
of causing the injuries complained of by the plaintiffs.

20
113. In his report of 17 August 2016, after describing the construction and operation of the lift,
Mr Tibbitts stated:
Within the lift industry it is recognised that sudden stops for lifts travelling at the speeds of
the lifts in the subject building, can easily cause damage to any passengers experiencing
that sudden stop.

114. Mr Tibbitts then referred to portions of the Australian Standards for lifts which, in his view,
indicate the concern for the effect of sudden stops on passengers. In particular, he noted
that:
[O]n operation of the safety gear which stops the lift in the event that it over speeds in the
down direction, it must apply progressive pressure to the guide rails thus bringing the lift to
a gradual stop.
…
[W]hen the safety gear is operated, the retarding force must be such that the passenger is
retarded by between 0.2 of the standard acceleration of free fall measured in m per sec
squared and 1.0 of the standard acceleration of free fall measured in m per sec squared.

115. However, Mr Tibbitts was of the view that, where the cause of a lift stopping was due to
the lift control system detecting a fault, the stop would not be a gradual one. This is
because, where a fault is detected in the lift control system, it is considered urgent to
stop the lift before serious damage to life or property can occur. There was, on Mr
Tibbitts’s evidence, no requirement for a gradual stop in these circumstances. This
opinion was not the subject of cross-examination.
116. Mr McWaters proffered a contrary view in his report dated 21 September 2017. Mr
McWaters’s site inspection included, among other things, conducting a simulation with
the lift in question. Mr McWaters noted that, based on his observations and advice
received from Kone, it appeared that the lift equipment had not been substantially
upgraded or altered between the date of the incident and the date of the inspection.
117. In relation to his methodology for conducting the simulation, Mr McWaters stated that he:
[S]imulated the incident by stopping the lift as it approached full speed, by tripping the break
in a manner similar to what would have occurred…

118. This simulation was undertaken to determinate an approximation of the rate at which the
lift would have stopped during the incident. Mr McWaters calculated the average rate of
deceleration of the lift during the simulation as:
[O]f the order of 1/3rd of a “g” (gravity), whereas the code allows a deceleration rate of 1g
(9.8m/s2) for buffers and safety gear.

119. On the basis of these calculations, Mr McWaters concluded that:

I do not agree that the Lift stopped more abruptly than would be the case for safety gear and
buffers, as indicated by Mr Tibbitts…
I do not agree that the rate of deceleration that was experienced was outside the range
anticipated by the Codes that Mr Tibbitts’ report references.

120. This opinion was also not the subject of cross-examination. It was also not put to Mr
McWaters that the simulation did not accurately reproduce the circumstances which
occurred on 4 September 2013.
121. Thomas Gibson, a biomechanical engineer, was also retained by Kone to express an
opinion on, among other things, the likelihood of injury to a passenger riding in the lift

21
 when the emergency brake was activated. Informed by Mr McWaters’s calculations,
Mr Gibson opined that (the symbol +GZ in the extract represents the vector of
acceleration, being head to foot):
Mr McWaters in his Report dated 21 September 2017, measured the normal acceleration of
the lift as 1 m/s2 (0.1 g), the duration of the emergency braking pulse to be 1 s and the peak
deceleration to be 5.4 m/s2 (0.55 g). Based on human tolerance for +GZ this loading level is
well below any possibility of injury.

122. Mr Gibson was provided with copies of medical records and reports relating to each of
the plaintiffs. Mr Gibson was asked to express an opinion on whether the injuries and
disabilities sustained by each of the plaintiffs were consistent with a lift decelerating at a
rate of 3.4 m/s2 and stopping. Mr Gibson concluded that:
The plaintiff(s) had no specific injury recorded as a result of the incident on 4 September
2013. The medical opinion is that the claimed disabilities appear to be more likely the result
of pre-existing conditions being aggravated by the incident in the lift. Based on human
tolerance date for +GZ loading a lift decelerating at a rate of 3.4 m/s2 and stopping is well
below any possibility of injury.

123. Mr Gibson was also asked to consider the possibility that the lift had been decelerating
at twice the simulated rate (i.e., 6.8 m/s2). He reached the same conclusion—that it was
still well below any possibility of injury.
124. The plaintiffs engaged a biomechanical expert, who attended the site, but no report was
tendered.
125. This expert evidence has to be considered in light of the evidence of the plaintiffs, as well
as various medical experts, addressing the cause of the plaintiffs’ injuries.

Shipton
126. Mrs Shipton gave evidence that she felt a sharp pain in her neck immediately following
the incident and also experienced feelings of terror and shock. She stated that, during
the day following the incident, she felt like every muscle in her body was hurting and her
neck was very sore.
127. Mrs Shipton continued to experience neck pain. She also developed sharp pains and a
burning sensation in her right arm, which she considered was getting weaker. She later
developed pain in her left wrist.
128. Her general practitioner, Dr Ian Brown, referred Mrs Shipton to Dr Pik, a neurosurgeon.
Dr Pik diagnosed Mrs Shipton with “fairly typical right C7 radicular pain due to the right
C6/7 disc herniation and nerve root compromise.” He recommended that Mrs Shipton
undergo surgery on her neck. This surgery was ultimately performed in February 2015.
During the period leading up to the surgery, Mrs Shipton noticed clumsiness in her right
arm. She also experienced a pain which she described as “like an electric shock, it’s pins
and needles”.
129. Following the surgery, Mrs Shipton considered that there was no real improvement to the
pain in her arm, but that she was not as clumsy as before.
130. On 12 January 2017, Dr Stephen Buckley, a consultant physician in rehabilitative
medicine, assessed Mrs Shipton. Dr Buckley’s diagnosis was Mrs Shipton had a cervical
fusion, complicated by a sensation of choking, which did not appear to be related to the
cervical fusion. She also had bilateral shoulder traumatic capsulitis. While Mrs Shipton
complained of right arm weakness, there was no other good evidence for radiculopathy

22
 following the operation. Dr Buckley presumed that, at the time Mrs Shipton saw Dr Pik,
radiculopathy was present in the right C7 nerve root. With regard to prognosis, Dr
Buckley stated that the fusion is permanent, and it was likely that her deficits in both
shoulders would also be permanent.

131. Dr Buckley also addressed the matter of causation. In his view, MRI scans dated prior to
the incident demonstrate that Mrs Shipton had a large C6-C7 disc protrusion.
Accordingly, he was satisfied that Mrs Shipton had a pre-existing disc injury. He
concluded that this pre-existing disc injury was asymptomatic prior to the incident. Dr
Buckley went on to state that:
[I]t is well known that a rupture in annulus fibrosis (the tough outer covering of the disc) does
not heal, and a consequent incident, such as sudden axial loading, in a falling lift which stops,
might well cause re-extrusion of nucleus pulposis [sic] material.

132. As, on Dr Pik’s account, radiculopathy was present following the incident but prior to the
surgery, he was satisfied that Mrs Shipton suffered exacerbation of this pre-existing
intervertebral cervical disc injury which was attributable to the incident. He was also
satisfied that, as a result of the extent of pain and radiculopathy, Mrs Shipton developed
traumatic capsulitis of both shoulders.

133. During cross-examination Dr Buckley explained that it was not possible to determine with
precision the axial load on Mrs Shipton’s neck during the incident, as it would be
dependent on a number of variables such as the precise position of Mrs Shipton’s neck.

134. It was put to Dr Buckley that it was possible that Mrs Shipton was feigning pain. While Dr
Buckley accepted that this was possible, he considered himself reasonably good at
judging when this is occurring. It was also put to Dr Buckley that there was no objective
evidence to support the proposition that the events of 4 September 2013 caused Mrs
Shipton’s ongoing pain and disability. Dr Buckley responded:
We don’t have a video in her cervical spine which revealed that the nucleus pulposus material
came out. We don’t—how can we know? All we know is that this lady was substantially okay
with respect to her neck until that incident and pretty much immediately after that incident
she’s trying to get more help because her neck is much worse. She gets a scan, she gets a
referral to surgeons and ultimately gets an operation.

Pattinson
135. Mrs Pattinson gave evidence that following the incident she experienced neck pain,
shoulder pain and headaches. Following consultation with her general practitioner, she
underwent physiotherapy and chiropractic treatment. She would still experience
intermittent neck pain after this treatment.

136. In September 2017, Mrs Pattinson stated that she developed numbness in her left thumb.
She was referred to a neurosurgeon, Dr Justin Pik, who recommended surgery. This
surgery was ultimately performed in February 2018 by Dr Rebecca Webb-Myers. Mrs
Pattinson had been informed by both Dr Pik and Dr Webb-Myers that if she did not have
the surgery, there was a possibility she could become a quadriplegic.
137. Dr Le Leu, an occupational physician, diagnosed Mrs Pattinson’s condition as:
Probable exacerbation of pre-existing cervical spondylosis made symptomatic by the subject
incident; alternatively, due to the forces involved in the incident, she could have suffered
neck trauma which has developed into cervical spondylosis over five years. Her left shoulder
problems are more likely to be secondary to the neck rather than due to an intrinsic shoulder
injury.

23
138. Dr Le Leu accepted that the lift incident, as described by Mrs Pattinson, “could quite
possibly have resulted in sufficiently strong acceleration and deceleration forces to injure
her neck and initiate the process which led to her needing a cervical decompression
operation”.

139. During cross-examination, Dr Le Leu was questioned about his use of the word
“possibly”. He stated that:
One cannot be 100 per cent certain about these things, because I wasn’t there at the time
and I can’t look into the patient to see what’s happening inside their neck.

140. Dr Kathiravel Nadanachandran, a neurosurgeon and spine surgeon, also examined Mrs
Pattinson. Dr Nadanachandran noted that the history provided by Mrs Pattinson indicated
that she initially suffered with symptoms in the neck, with headaches occurring soon after
the incident. He considered that:
The kind of rapid descent that she suffered twice during this incident could have caused
some injury to the neck similar to a whiplash injury. This caused neck pain and headaches.

141. Dr Nadanachandran also noted that in September 2017, Mrs Pattinson developed
symptoms of a neurological nature and was found to have quite marked disc protrusion
at the C5/6 level, and a mild bulge at the C3/4 level. In respect of the cause of these
symptoms, Dr Nadanachandran opined that:
The cause of the disc protrusion causing the spinal cord compression of major nature in
September 2017 is unclear. From the history, there was probably no spinal cord compression
soon after the accident. At that time she had neck pain and headaches. Unfortunately, there
are no scans of either CT or MR done soon after that. The records indicate that she has seen
the doctors with neck pain and headaches in 2013 twice. Prior to the incident in 2013, she
claims to have had no symptoms in her neck.
…
It would therefore seem that the incident in September 2013 may have lead (sic) to an injury
to the disc/discs causing the initial neck pain and leading to recurrent neck pain and
headaches. The C5/6 disc then ruptured in September 2017 spontaneously or was
aggravated by some unknown stress on the neck.
It is possible for a weakened disc to bulge or rupture when stressed by normal or heavy
activities. The incident of 4 September 2013 in my view is possibly a contributing factor to
the disc protrusion at C5/6 in 2017.

142. In a supplementary deport dated 8 October 2018, Dr Nadanachandran explained that he

considered that it was more probable than not that Ms Pattinson’s disc was weakened in
the incident of 4 September 2013.

143. During cross-examination, Dr Nadanachandran accepted that he could not be certain

about whether Mrs Pattinson’s symptoms were due to an injury caused by the incident
or degenerative disc disease related to her age. However, he clarified that it was not
common to see the degree of Mrs Pattinson’s symptoms in a person of her age.
144. Dr Peter Bentivoglio, a neurosurgeon retained by Kone to assess Mrs Pattinson,
provided a report dated 26 March 2019 in which he said:
My working diagnosis in (semble, “is”) Ms Pattinson is a lady with degenerative disease in
her cervical spine with a significant C5/C6 disc prolapse, which was causing cord
compression and cord changes. I do believe that the original jarring injuries back in 2013
started the problems in her neck, which progressed over the next four years, having recurrent
bouts of chiropractic treatment for neck pain and then there was a sudden deterioration in
2017 simply brought on by lying in an inappropriate situation in bed, which indicates that the

24
 discs were quite unstable. The disc bulge resulted in a cord myelopathy, which required fairly
urgent surgery.

145. During cross-examination, Dr Bentivoglio accepted that prior chiropractic treatment may
have been the cause of Mrs Pattinson’s spontaneous disc rupture in 2017. However, he
considered that this was “very hard to prove”.

Massouras
146. Mrs Massouras gave evidence that the description of her injuries contained in the WHS
Incident Report Form was accurate. In that report, she said she had suffered injury to her
neck and shoulders. She also recorded that she had experienced shock, by which she
meant a difficulty forming words and breathing.
147. She consulted a chiropractor because she was experiencing pain and limited movement
in her hip and lower back. At the date of the hearing, she was continuing to experience
trouble with her neck and shoulders. She also reported that she had developed a chronic
fear of using lifts.

148. Mrs Massouras accepted that she gave varying accounts of the lift incident to various
medical practitioners who examined her for the purpose of the claim. These versions
were more dramatic than the account of the lift incident contained in the WHS Incident
Report Form.
149. During cross-examination Mrs Massouras denied the suggestion that she had
deliberately exaggerated what had occurred in the lift to each of the medical practitioners
to inflate her claim. She also denied suggestions that she had deliberately
underperformed in medical examinations with the doctors who prepared reports for use
in the current proceedings.
150. Dr Slesenger, a specialist occupational physician, examined Mrs Massouras on 20
December 2016. Dr Slesenger recorded that Mrs Massouras advised him that the
incident occurred as follows:
[S]he entered the lift and the lift suddenly dropped from the 19th floor to the 11th floor, returned
to the 19th floor and then dropped down to the ground floor. The lift came to a halt between
floors and she and 3 others had to be assisted out of the lift by the security crew.

151. Mrs Massouras advised Dr Slesenger that she had immediately developed left hip and
shoulder pain, but that she did not seek medical attention immediately because she was
concerned about her job security. She did, however, attend a chiropractor the following
day (i.e., 5 September 2013) and has been undertaking chiropractic care since.
152. Mrs Massouras complained of ongoing pain in her left shoulder, wrist, and left hip. She
described the left hip pain as more severe and noted that her hip was prone to “giving
way”. On the basis on the examination, as well as a review of documentation from Mrs
Massouras’s chiropractors and general practitioner, Dr Slesenger concluded that there
was evidence to support:
(a) Soft tissue injury to the left shoulder with possible ongoing left shoulder
adhesive capsulitis;

(b) Soft tissue injury to the left hip with possible trochanteric bursitis; and

(c) Right wrist fracture.

153. As to the cause of these injuries, it was Dr Slesenger view that:

25
 Based on the narrative, the workplace exposures are a plausible cause of Mrs Massouras’
left hip and left shoulder impairment. Clinical examination shows evidence of an ongoing
impairment in the left shoulder and left hip. It would be useful for the treating chiropractor to
provide a transcript of the records in order to identify a continuum link between the workplace
exposures and her current impairment.

154. Dr Slesenger was also satisfied that, assuming that there is a causal link between the lift
incident and Ms Massouras’s left hip and left shoulder impairment, there were ongoing
restrictions affecting Mrs Massouras’s capacity for work. Owing to a lack of investigation
and treatment, Dr Slesenger did not proffer any view on the nature, extent, or duration of
any economic impairment. He recommended that Mrs Massouras undergo further
assessment before these questions were addressed.

155. During cross-examination, Dr Slesenger accepted that the main basis of his opinion was
what he had been told by Mrs Massouras and that he was primarily dependent on her
narrative. However, he considered that the findings made during his clinical examination
were consistent with this history and that there was no evidence of “overplay”.

156. Mrs Massouras was seen by Dr Zeeva Cohen, a consultant psychiatrist, on 23 March
2017. Dr Cohen provided a report dated 4 April 2017. Dr Cohen recorded that:
Ms Massouras is a 47-year-old woman who presents in the context of an incident in a lift
some three years ago where according to her self-report the lift malfunctioned falling almost
19 floors and becoming dislodged between floors 3 and 4 where she and others were able
to exit the lift. She reported ongoing pain and mobility problems related to her hip and arms
since then as well as phenomena suggestive of posttraumatic stress disorder including
avoidance of lifts, intrusive re-experiencing phenomena of nightmares and flashbacks,
hyperarousal related to anxiety symptoms particularly on exposure to triggers and some
general loss of resilience. She reported a move from Canberra to Melbourne shortly after the
incident and adjusting to life in a new city.
Ms Massouras presents as a woman whose capacity to be independent, self-sufficient and
ability to work forming an important part of her identity and feelings of vulnerability appear to
have particular psychological significance for her. There appears to be short-term treatment
for symptoms of anxiety and depression in approximately 2011 in the context of work-related
difficulties, but having fully recovered. There also appear to have been some symptoms in
the context of bullying and harassment in the workforce which she was less able to manage.
There appears to be a positive family history for major mental illness; however, Ms
Massouras herself does not appear to have demonstrated such illness at any time.

157. Dr Cohen concluded that Mrs Massouras met the criteria for post‑traumatic stress
disorder due to symptoms of intrusive re-experiencing phenomena, avoidance and
anxiety particularly related to using a lift. Her opinion was that this condition was related
to the incident on 4 September 2013 as the psychiatric phenomenology particularly
relates to lifts and there were no other traumatic events to account for the symptoms.

158. During cross-examination, Dr Cohen was questioned about the inconsistent account of
the lift incident given to her by Mrs Massouras. It was Dr Cohen’s view that what was
important was the person’s perception of the threat, rather than the actual detail itself.

159. Professor Richard Mattick, a clinical psychologist, also authored a report regarding Mrs
Massouras. He disagreed with Dr Cohen’s diagnosis of Post-Traumatic Stress Disorder.
He diagnosed Mrs Massouras with a lift or elevator phobia, which he considered
consistent with the incident she had described.

26
Soesman
160. Mrs Soesman gave evidence that she experienced immediate pain in the neck and
shoulders following the incident. She also considered that her lower back was
aggravated. Following a visit to her general practitioner, she was referred to a
physiotherapist, who treated her for neck and shoulder pain. At the date of the hearing,
she continued to have some pain in her neck and shoulders.
161. Mrs Soesman was seen by an occupational physician, Dr Leon Le Leu, on 8 February
2017. Dr Le Leu observed evidence of a reduction in the range of movement of the neck
which was unusual in a 28 year old, bilateral reduction in shoulder movement with
posterior pain, and midline lumber tenderness. Dr Le Leu was satisfied that Ms Soesman
had suffered a musculoligamentous injury to the neck, musculoligamentous injuries to
both shoulders with possible rotator cuff injuries, and temporary exacerbation of previous
mechanical lumbar back pain.

162. Dr Le Leu was subject to cross examination. He accepted that, at the time of his
examination of Mrs Soesman, she presented with minimal symptoms in her neck and did
not complain of any shoulder injury. He explained that, based on Mrs Soesman’s account
and her medical history, it was his view that she had suffered a musculoligamentous
injury to the neck attributable to the incident, but that it was resolved by the time he had
examined her.
163. He also attributed the musculoligamentous injuries to both shoulders with possible rotator
cuff injuries to the incident. He explained that he discounted the possibility that a previous
motor vehicle accident had impacted these symptoms because Mrs Soesman had
complained of right shoulder pain following the lift incident, but, to the best of his
knowledge, did not do so following the motor vehicle accident.
164. Dr Le Leu accepted that he could not be certain of this conclusion, but noted that the
reduction in Mrs Soesman’s range of motion was:
[A]n unexpected finding and there didn’t seem to be any other causation that I could…
identify.

Consideration
165. The detailed survey of the evidence of the plaintiffs and their medical expert witnesses
set out above demonstrates that the there was ample material on which the primary judge
accepted each plaintiff’s evidence that she was injured in the lift incident. That followed
the cross-examination of the plaintiffs including by challenges to their credit. The primary
judge’s findings of fact may only be set aside on appeal where incontrovertible facts or
uncontested testimony demonstrate that the judge’s conclusions are erroneous or where
it is concluded that the decision at the trial was glaringly improbable or contrary to
compelling inferences in the case: Fox v Percy [2003] HCA 22; 214 CLR 118 at [28]–[29]
per Gleeson CJ, Gummow and Kirby JJ.
166. The basis upon which Kone challenges the primary judge’s reliance on the plaintiffs’
evidence is via its challenge to the primary judge’s treatment of the expert evidence. That
is demonstrated by Kone’s written submissions which, after setting out the submissions
in relation to the expert evidence, then have one sentence dealing with the plaintiffs’
evidence (at [35]): “Accordingly, the primary judge ought to have found that the plaintiffs
had failed to discharge the onus that the injury they asserted they had sustained by
reason of the lift incident, in fact, were caused by the incident.” (sic)

27
167. No challenge is otherwise made to the primary judge’s acceptance of the plaintiffs’
evidence of the pain and other sequelae that they experienced in and following the
incident. However, the primary judge’s acceptance of that evidence stands substantially
in the way of Kone’s contention that causation was not established on a balance of
probabilities. The fact of the incident involving two sudden stops was common ground.
The primary judge found that the sudden stops were caused by the negligence of a Kone
technician. The primary judge then accepted the plaintiffs’ evidence that the sudden
stops caused them injury. Factual causation was thus at least prima facie established.
168. Further consideration of the expert evidence with regard to the lift’s stoppages is
therefore directed to whether it was possible, as a matter of the lift’s characteristics and
physics, that the plaintiffs were correct in their evidence that it was the stoppages that
caused their injuries and whether the risk of injury was sufficiently foreseeable such that
legal causation was established.

169. It is convenient to deal with foreseeability first. There is in our view no error in the primary
judge’s acceptance of the evidence of Mr Tibbitts that it is a known fact in the industry
that the sudden stop of a lift travelling at speed can cause damage to any passengers.
Kone appears to accept in its submissions (at [27]) that Mr Tibbitts’s evidence was
sufficient to establish that it was possible that the sudden stopping of a lift could cause
injury to passengers. The fact that Mr Tibbitts was not challenged on the statement, and
no contrary evidence was adduced, also justifies its acceptance.
170. Insofar as Kone’s submission that it did challenge Mr Tibbitts’s evidence by adducing the
evidence of Mr McWaters and Mr Gibson is concerned, that evidence is relevant to the
factual question of whether the stopping of the lift in question actually caused the
plaintiffs’ injuries and not to the question of foreseeability of the harm caused which is
relevant to the question of legal causation. Thus, Mr Tibbitts’s evidence of the risk of
harm from a sudden stoppage of a lift was rightly accepted. There can thus be no serious
doubt that the risk of the type of harm in question was reasonably foreseeable.
171. Insofar as the particular lift is concerned, the primary judge was faced with a choice
between, on the one hand, the evidence of simulation tests done on the lift nearly four
years after the incident and opinion as to the human body’s ability to withstand the forces
in question without injury, and, on the other, the opinion evidence as to the different
impact the forces in question would have on the human body depending on just how it
was standing at the time in question and what pre-existing injuries it had and the plaintiffs’
evidence that they suffered injury in the incident.

172. Kone’s evidence did not establish that Mr McWaters’s simulation exactly replicated what
had occurred in the incident nearly four years previously. Mr McWaters stated in his
report that he had not had “an opportunity to examine the equipment in the condition it
would have been in at the time of the incident” but that “it appears that the lift equipment
has not been substantially upgraded or altered in the period between the incident in
September 2013 and the time of my inspection and May 2017”. He did not address
whether there may have been matters other than the absence of a substantial upgrade
or alteration that might have meant that the lift responded differently under his simulation
to how it would have behaved in the incident. For example, he did not address what
differences there might have been in the “condition” of the lift including by way of regular
maintenance and testing.

173. Based on that evidence, it cannot be said with confidence that the simulation reproduced
relevantly the same conditions. The apparent failure of the plaintiffs to challenge this

28
 aspect of Mr McWaters’s evidence is of little consequence when the unchallenged
evidence does not go far enough to establish what was necessary. The primary judge
was therefore justified in not accepting the comparability of the simulation with what
actually happened in the incident.

174. However, more telling is the consideration that it was not known just how each of the
plaintiffs was positioned in the lift—the exact position of her head, neck, shoulders and
legs—or how pre-existing injuries or weaknesses may have exacerbated their
vulnerability to injury. Thus, even accepting Mr McWaters’s evidence that the lift would
have behaved in the incident in the same way that it did in his simulation, the primary
judge was justified in rejecting the conclusion of Mr Gibson that the forces thus produced
were not sufficient to produce injury. That was on the basis of the acceptance of the
evidence of Dr Buckley.

175. In the result, these grounds of appeal must fail in each appeal.

Shipton damages

Grounds of appeal
176. In the Shipton matter, the following are the grounds of appeal on the primary judge’s
quantification of damages:
(10) The primary judge erred in finding that the clinical records the subject of Exhibit “8”
were not prepared or obtained for the purposes of conducting, or for, or in
contemplation of or in connection with an Australian proceeding as defined in the
Evidence Act 2011 (ACT).

(11) The primary judge erred by failing to give adequate reasons for the bases which
led to his conclusion concerning disputed facts or questions and failed to make
findings on principle contested issues of damages.

(12) The primary judge erred by failing to make a real attempt to grapple with the
medical evidence that was relied upon by the parties in respect of, and in particular,
to rationalise why he rejected the appellant’s expert evidence, which was
unchallenged, and not inherently improbable.

(13) In awarding past out-of-pocket expenses, the primary judge relied upon the opinion
of Associate Professor Stark who referred to the first respondent’s treatment “so
far”, as necessary. That treatment was “tablets, dry needling, physiotherapy,
Pilates, and attendance upon a neurosurgeon.” The evidence of past treatment
expenses in those categories totalled $78,090.60. The primary judge erred in
awarding damages above this amount for this head of damage.

(14) The primary judge erred in awarding damages for past attendant care services in
excess of the quantum of actual financial loss the first respondent had proved on
the evidence. The only evidence of actual loss was found in the Comcare schedule
which records the provision of commercial care services in the amount of $576.84.
The primary judge ought to have only awarded this amount.

(15) Having found that the first respondent was in receipt of gratuitous domestic
assistance, the primary judge erred in awarding damages for future attendant care
services in the absence of evidence that the gratuitous domestic assistance was
actually being provided.

29
 (16) The primary judge ought to have found that the first respondent had failed to
discharge her onus that she was entitled to damages for future attendant care
services on any basis.

(17) The primary judge erred in awarding $866,027.70 for future economic loss by
failing to take into account the $80,000 per annum superannuation benefits that
the first respondent receives.

(18) Based on the primary judge’s finding of pre-injury earnings of $1,932.58 nett per
week, less $1,171.95 nett per week that the first respondent receives from her
superannuation, this provided a gap of $760.63 nett per week, less 15% for
vicissitudes, which equals $340,853.52, the primary judge should properly have
awarded $340,853.32 for future economic loss.

177. It is convenient to deal with these grounds separately or in groups as indicated below.

Shipton appeal ground 10: Business records—s 69(3) of the Evidence Act
178. The primary judge (at [105]) admitted medical records of Mrs Shipton on the basis that
they were within the “business records” exception to the rule against hearsay as provided
for in s 69 of the Evidence Act 2011 (ACT) (Evidence Act). His Honour recorded that
Kone did not dispute that the records were of the type referred to in s 69(2) but submitted
that their admission was precluded by s 69(3). Kone’s objection was that the impugned
records were created for the purpose of conducting, or in connection with, a claim for
workers’ compensation by Mrs Shipton with Comcare.

179. The relevant subsections of s 69 of the Evidence Act provide as follows:

69 Exception—business records
…
(2) The hearsay rule does not apply to the document (so far as it contains the
representation) if the representation was made—
(a) by a person who had or might reasonably be supposed to have had
personal knowledge of the asserted fact; or
(b) on the basis of information directly or indirectly supplied by a person who
had or might reasonably be supposed to have had personal knowledge of
the asserted fact.
(3) Subsection (2) does not apply if the representation—
(a) was prepared or obtained for the purpose of conducting, or for or in
contemplation of or in connection with, an Australian or overseas
proceeding; or
(b) was made in connection with an investigation relating or leading to a
criminal proceeding.
180. The short point is whether the records in question were prepared or obtained “for the
purpose of conducting, or for in contemplation of or in connection with, an
Australian…proceeding” within the meaning of s 69(3)(a). A component of that question
is whether a claim for workers’ compensation from Comcare is an “Australian proceeding”
within the meaning of that provision.

181. As noted by the primary judge (at [106]), “Australian or overseas proceeding” is defined
in the dictionary to the Evidence Act as meaning “a proceeding (however described) in
an Australian court or foreign court”. “Australian court” is in turn defined to mean:
Australian court means—

30
 (a) the High Court; or
(b) a court exercising federal jurisdiction; or
(c) a court of a State or Territory; or
(d) a judge, justice or arbitrator under an Australian law; or
(e) an entity authorised by an Australian law, or by consent of parties, to hear, receive
and examine evidence; or
(f) an entity that, in exercising a function under an Australian law, is required to apply
the laws of evidence.
182. Kone relied in particular on paragraph (e) of that definition to submit that Comcare was
such an entity. Kone identifies no basis for a conclusion that Comcare is authorised to
“hear, receive and examine evidence”. As the primary judge identified (at [108]), in
performing the function of making “determinations accurately and quickly in relation to
claims and requests made to Comcare” (s 69(a), Safety, Rehabilitation and
Compensation Act 1988 (Cth) (SRC Act)), Comcare “is not required to conduct a hearing”
and “is not bound by the rules of evidence” (s 72, SRC Act). Also, in an administrative
decision-making process there is a qualitative difference between “evidence” and
material that might be considered: Minister for Immigration and Ethnic Affairs v Wu Shan
Liang (1996) 185 CLR 259 at 282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
On that basis, the primary judge was correct in concluding that the administrative process
of making a claim to Comcare is not an Australian proceeding within the meaning of s
69(3)(a) of the Evidence Act.

183. The SRC Act provides, in s 62, for a determination by Comcare to be reconsidered and
following such reconsideration, in s 64, for a merits review to the Administrative Appeals
Tribunal (AAT). Section 66 of the SRC Act makes provision for the consideration of
“evidence” by the AAT. By s 33(1)(c) of the Administrative Appeals Tribunal Act 1975
(Cth) (AAT Act), the AAT “is not bound by the rules of evidence but may inform itself on
any matter in such manner as it thinks appropriate”. The AAT is not confined to the
documents or other material that served before the original decision-maker.

184. It would appear that there is some justification for saying that a representation that “was
prepared or obtained for the purpose of conducting, or for in contemplation of or in
connection with” (Evidence Act, s 69(3)(a)) a proceeding in the AAT would be a
proceeding in an “Australian court” on the basis that the AAT is “an entity authorised by
an Australian law … to hear, receive and examine evidence” (Evidence Act, definition (e)
of “Australian court”) albeit that it is not bound by the rules of evidence. The AAT Act is
replete with references to receipt and consideration by it of “evidence”. However, the
same cannot be said for a claim for a determination by Comcare because a
representation “prepared for the purpose of conducting of or in contemplation of or in
connection with such a claim” is not covered. A subsequent review by the AAT is its own
separate proceeding that is not confined to the same material.

185. In the present case, the representations in question were “prepared” by treating medical
practitioners, and for the most part they were not prepared even in contemplation of a
claim to Comcare let alone a review by the AAT. The documents are listed at [113] of the
primary judgment. The documents identified at sub paragraphs (a)–(d) and (i) make no
reference to even the Comcare claim. They constitute correspondence between medical
professionals with regard to examinations and treatment of Mrs Shipton, a standard
report on an operation conducted on her and a radiologist’s report following a standard

31
 non-contrast MRI of the cervical spine. There is nothing about them that suggests that
they were prepared in contemplation of even the Comcare claim.
186. Turning now to the remaining documents, the document identified at sub-paragraph (e)
is a letter on behalf of Dr Justin Pik, a neurosurgeon, to Comcare. It clearly was prepared
in contemplation of the Comcare claim, but it contains no relevant representation other
than that Dr Pik believed that it was necessary for Mrs Shipton to undergo a C6/7 anterior
cervical discectomy and fusion procedure. That representation was in any event admitted
through other evidence, including the document considered in the next paragraph.
187. The document identified at sub-paragraph (f) is a letter from Dr Pik to Dr Brown dated 12
August 2014. In it, Dr Pik reports on a consultation with Mrs Shipton a few days earlier
and records his recommendation that she have the procedure mentioned in the previous
paragraph. At the end of the letter it is recorded that if Mrs Shipton wishes to proceed to
surgical treatment, Dr Pik would write to Comcare to seek approval. There is however
nothing in the letter itself which indicates that it was prepared or obtained for the purpose
of or in contemplation of a claim to Comcare. It is a standard report from a treating
specialist to the patient’s general practitioner.
188. The document identified at sub-paragraph (g) is a letter from Dr Pik to Dr Brown dated 5
February 2015. It is a report of a consultation with Mrs Shipton on 3 February 2015.
Although it has in its subject line, amongst other information, the Comcare claim number
as a reference and it is recorded as being copied to Comcare, there is otherwise nothing
in the letter to indicate that it was prepared in contemplation of or in connection with the
claim to Comcare. It is a standard letter between a medical specialist and the patient’s
general practitioner. It would not appear to be caught by the exclusion from the business
records exception to the hearsay rule.

189. The document identified at sub-paragraph (h) is a letter from Dr Brown to Dr Pik dated 7
August 2014. Although it records a Comcare claim number in its subject line as a
reference, it too is a standard letter between a general practitioner and a medical
specialist. It reports on Mrs Shipton’s condition and medications and thanks Dr Pik for
again agreeing to see Mrs Shipton. It too would not appear to be caught by the exclusion
from the business records exception to the hearsay rule.

190. To summarise, only one of the relevant documents contained a representation that might
be regarded as having been “prepared or obtained for the purpose of conducting, or for
or in contemplation of or in connection with” Mrs Shipton’s Comcare claim. However,
such a claim is not an Australian proceeding because even though a subsequent review
by the AAT might be regarded as such a proceeding, it and the Comcare claim process
are sufficiently distinct that preparing the representation in contemplation of such a claim
does not without more entail its preparation in contemplation of any subsequent review
to the AAT. In any event, the representation in question was contained in other
admissible evidence so even if that particular letter was wrongly admitted it made no
difference.

191. In the circumstances, the ground of appeal that asserts the erroneous admission of
“business records” fails.

Shipton appeal ground 13: Past out-of-pocket expenses

192. Associate Professor Richard Stark, neurologist, examined Mrs Shipton on 15 May 2017.

32
193. Mrs Shipton provided Associate Professor Stark with a history of the treatment she had
undergone to date in respect of her injuries. Associate Professor Stark recorded that this
included tablets, dry needling, physiotherapy, Pilates, Feldenkrais, cortisone injections,
and neurosurgery. Associate Professor Stark stated that:
Treatment provided so far, is outlined above. I think this treatment was reasonable and
necessary although the surgical intervention proved not to be effective.
…
Future treatment is likely to be along the lines of a pain management program. I am not
convinced that further surgery would be helpful. Usually a course of pain management is
prescribed. I am not able to give an estimate of the likely costs.
(Emphasis added)

194. As at 4 November 2019, the past out of pocket expenses that had been paid by Comcare
for treatment amounted to $114,883.52 as evidenced by a Claims Cost Details Report
produced by Comcare.

195. The primary judge detailed the contents of the Professor Stark’s report at length at [122]–
[123] of the primary judgment where it was recorded that in Professor Stark’s opinion
future treatment was likely to be along the lines of a pain management program. At [167]
the primary judge reasoned as follows:
Kone submitted that much of that treatment was unnecessary or not connected to the
incident on 4 September 2013. I do not agree. I accept the evidence of Associate Prof Stark
that the treatment provided to Mrs Shipton had been reasonable and necessary. I will also
allow the sum of $114,883.52.

196. In its submission on appeal, Kone seeks to reduce the amount of $114,883.52 awarded
for past out-of-pocket expenses to the sum of $78,090.60 on the basis that the treatment
identified by Associate Professor Stark was limited to the five categories identified in
ground of appeal 13, viz. “tablets, dry needling, physiotherapy, Pilates, and attendance
upon a neurosurgeon.”

197. There are two principal reasons why this ground of appeal must fail.

198. First, Associate Professor Stark’s report, fairly read, does not limit his opinion on
reasonable and necessary expenses to those specifically listed by him. He said that the
treatment provided to Mrs Shipton, which he had only “outlined” in his report and had not
set out in detail, was reasonable and necessary. He was also not cross-examined to
suggest that his opinion was or should be limited.

199. Secondly, the reports of Dr Giblin, an orthopaedic surgeon, and Professor Dennerstein,
a psychiatrist, both of whom were made available for cross-examination, record that they
were of the opinion that Mrs Shipton’s past treatment was reasonable and necessary.

200. In the circumstances, there was ample justification in the evidence for the primary judge’s
award of past out-of-pocket expenses.

Shipton appeal grounds 14-16: Past and future attendant care services
201. Kone makes two essential points in relation to these grounds of appeal. First, it submits
that Mrs Shipton’s need for attendant care services as a consequence of her injury from
the lift incident was not proved by admissible evidence. That is principally because of the
primary judge’s reliance on the reports of experts who in turn relied on what they had
been told by Mrs Shipton which was limited under s 136 of the Evidence Act as not being

33
 admissible as proof of the hearsay admissions, and, it is said, Mrs Shipton did not give
evidence to support those facts. Secondly, Kone submits that Mrs Shipton is not entitled
to financial compensation for gratuitous services she receives from her husband.

202. It is convenient to begin with a consideration of the evidence. In that regard, very little of
the transcript of Mrs Shipton’s evidence was made available to the Court on appeal. As
mentioned, the Court must thus assume that what was not furnished is not relevant to
the points on appeal.
203. Mrs Shipton gave evidence regarding the impact of her injuries on domestic tasks. She
accepted that she was not able to do all that she was previously able to do. Mrs Shipton
considered that this was because she was limited by the pain that these tasks caused
her. She explained that:
If I try and lift things without putting it to my chest that’s very painful. So I do try and carry
things to my chest. Lifting my arms up high creates pain. If I try and move my neck quickly it
creates a stabbing pain. Cooking, like cutting vegetables causes pain. Everything I do
creates pain.

204. In respect of the allocation of domestic tasks prior to the accident, Mrs Shipton
considered that she had generally performed the cleaning inside the house, although
responsibilities were shared between herself and her husband.
205. During cross-examination, Mrs Shipton gave examples of the distribution of domestic
tasks between herself and her husband after the accident, saying:
Occasionally I would sweep the floor. Just push the microfibre pad across the floor. I would
stack the dishwasher. We would share the bathroom…He did the outside and would help me
inside the house…If he needed to, he would vacuum or sweep, mop. If he—he would clean
the shower for me, he would help me with washing. We share a lot of the chores.

206. Mrs Shipton accepted that the performance of some domestic chores had become a
choice. She was physically capable of performing various domestic chores despite the
fact they caused her pain. If her husband was available, he would perform these tasks.
If he was not available, she would perform them herself or leave them unperformed,
depending on how she felt.
207. It was put to Mrs Shipton during cross-examination that the account she had provided of
her limitations was fabricated. Mrs Shipton rejected this proposition.
208. The primary judge (at [101]) summarised respects in which Mrs Shipton is affected by
injuries insofar as household chores are concerned. That summary includes that since
the lift incident Mrs Shipton has reduced the amount of housework that she undertakes
because it causes her pain. She and her husband have modified their home to cope with
her problems, and have purchased a robotic vacuum cleaner, a self-drive vacuum
cleaner and a robotic window cleaner. Mrs Shipton sprays the shower, and her husband
scrubs it. She sprays and wipes the basins. They have a steam mop to do the floors. Her
husband has always been responsible for the garden work.

209. Mrs Shipton was examined by Dr Peter Giblin, an orthopaedic surgeon, on 16 November
2017 at the request of her solicitors. Dr Giblin formed a provisional diagnosis of a soft
tissue injury to her cervical spine with referred symptoms to the right upper extremity.
210. In Dr Giblin’s view, Mrs Shipton’s ongoing symptoms necessitated a degree of physical
assistance in relation to her daily personal and household activities.

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211. As mentioned, on 12 January 2017, Mrs Shipton was also assessed by Dr Stephen
Buckley, a consultant physician in rehabilitation medicine. Dr Buckley stated that Mrs
Shipton is unfit to carry out ordinary handyman duties and ordinary housekeeping duties.
In his view, she required:

(a) Three hours a week of handyman assistance for outdoor domestic

maintenance, should she choose to live in an average domestic cottage;
and
(b) Five hours a week of housekeeper assistance to carry out the ordinary
indoor domestic maintenance tasks of cleaning scrubbing, washing and
vacuuming, should she choose to live in an average domestic cottage.

212. It is to be noted that Dr Buckley’s assessment was based on the following account
recorded by him to have been given to him by Mrs Shipton:
She said that she used to share the vacuuming and bathroom cleaning prior to the accident,
but now her husband completes them almost always. She will undertake some brief light
tasks one item at a time, but is very restricted with what she can do, and would do little over
any one day. She said, for example, if she wipes out the basin, that would be the only job
she would do that day. Similarly, if she used the toilet brush one day, she would [not] do
other chores until the next day.
She said that with regard to the grocery shopping, she attends a new supermarket with small
trolleys and parks very close, so she does not have to push the trolley as far.
She has great difficulty with cooking, and goes very slowly now, doing a little at a time over
the whole day. She cannot carry heavy pots or stir food vigorously.

213. Much of that account, in particular with regard to how much Mrs Shipton was able to do
each day, is not supported by the evidence that Mrs Shipton gave in court.
214. Ms Susan Miller-Ravagnani, an occupational therapist, also reviewed Mrs Shipton. She
concluded that, as a result of her injury, Mrs Shipton required 6.9 hours of domestic
assistance per week.
215. Ms Miller-Ravagnani’s opinion was based on the account that Mrs Shipton gave to her.
Insofar as household chores are concerned, that account includes the following:
v) Housework—Mrs Shipton, as stated, was responsible for the bulk of the housework before
the accident and this included heavier outdoor tasks. She explained that since her husband
is unable to perform heavier tasks (because of his injuries) she has had to work out ways of
doing things so she can manage on a day to day basis. She explained, for example, that
grocery shopping (which she used to do weekly) is now too heavy for her so she shops every
day and buys small loads. Mrs Shipton also explained that she has reduced the size of her
washing basket (to minimise lifting and carrying) and broken her tasks up (she previously did
all of the housework in one hit). Mrs Shipton finds housework difficult and painful but ‘at least
this way she can manage’.
Mrs Shipton reported specific difficulty with washing and hanging heavy items such as towels
and sheets (she has to look up and lift overhead) as well as vacuuming and mopping,
scrubbing the bathroom and toilet and changing bed linen (lifting and tucking under the
mattress).
Mrs Shipton explained that she is much slower than she was and less attentive to detail as
housework aggravates her neck and shoulder pain.
w) Cooking—Mrs Shipton is able to manage light meals that are quick to prepare. She
described difficulty with heavier preparation which involves prolonged standing and leaning
forward, heavy stirring and whipping and lifting heavy / hot pans from the oven. Mrs Shipton
has difficulty with her hobby of preserving as this is a laborious task which can take a whole

35
 day—it involves hours of peeling and seeding fruit and vegetables, stirring and lifting heavy
pots and pans. Mrs Shipton stated that she is unable ‘to do it like she used to’.

216. The report also records that Mrs Shipton is able to manage the lighter aspects of her
domestic routine but she reports difficulty with heavier tasks and tasks which require
repetitive or sustained neck movements or repetitive, full range or above shoulder
movements of her body.

217. In her recommendations, Ms Miller-Ravagnani relevantly stated the following:

As a result of her ongoing pain and restricted movement Mrs Shipton requires regular
assistance with domestic tasks which are heavy, above shoulder or at floor level. She
requires assistance with tasks which require repetitive or sustained lifting and carrying, with
tasks which load the upper body and with tasks which require rigorous movements of the
upper body (such as scrubbing movements).

218. The primary judge concluded (at [168]–[169]) that:

Suzanne Miller-Ravagnani considered that Mrs Shipton requires approximately seven hours
of domestic assistance per week. This is supported by the evidence of Dr Buckley, although
he arrived at a slightly higher figure. Ms Miller-Ravagnani estimated approximately 2071
hours of past assistance, a figure which accords with the evidence. Ms Miller-Ravagnani
allowed some of those hours at $47.74 per hour, and some at $54.23 per hour. In my opinion,
it should all be assessed at $35.00 per hour, making a sum of $72,485.00.
I accept that Mrs Shipton will require continuing support for seven hours a week. At $35.00
per hour, with a life expectancy of 31 years and applying a multiplier of 1059.2, this would
equate to $259,504.00. In my opinion, some reduction of this sum should be made to allow
for the fact that Mrs Shipton would probably have required increasing assistance as she grew
older, even without the injuries she suffered on 4 September 2013. I will reduce the assessed
sum by 25 per cent to $194,628.00.

219. Turning to Kone’s first criticism of the primary judgment, it is apparent that the opinions
of Dr Buckley and Ms Miller-Ravagnani on which the primary judge relied were not based
on the evidence given by Mrs Shipton in the proceeding, but rather on what she had told
them. On the primary judge’s ruling, what she had told them was not admitted to prove
the truth of the facts asserted. Also, what she told them and what she said in her evidence
was not the same—some of it was the same but important details were not and it is not
apparent from either of the experts’ reports or evidence exactly how they came to their
conclusions or what details they relied on and what they did not rely on. Kone’s point is
accordingly well made. The appeal ground should be upheld and the question of the
quantum of Mrs Shipton’s entitlement to damages for past and future attendant care
should be remitted to the primary judge for reconsideration according to the evidence.

220. Kone’s contention (in appeal grounds 16) that Mrs Shipton failed to discharge her onus
on the quantification of future attendant care costs should be considered in the remittal.
It cannot conveniently be decided in the appeal.

221. Kone’s second point is wrong. It relies on Smith v Alone [2017] NSWCA 287; 82 MVR
309 at [72]–[76] per Macfarlan JA (with whom Meagher and White JJA agreed) in support
of the proposition that Mrs Shipton is not entitled to damages for future care unless she
proves that the gratuitous care that she was receiving from her husband would not
continue to be available. However, that case was in respect of damages for personal
injury arising from a motor vehicle accident governed by the Motor Accidents
Compensation Act 1999 (NSW). In contrast, the claim under consideration is governed
by s 100(2)(c) of the Civil Law (Wrongs) Act 2002 (ACT) which expressly provides that
in an action for the recovery of damages for loss of capacity to perform domestic services,

36
 it does not matter that the injured person has not been, and will not be, obliged to pay
someone else to perform the services. Kone rightly withdrew the submission at the
hearing of the appeal.

222. To recap, appeal ground 14 in Mrs Shipton’s appeal should succeed and the question of
quantification of Mrs Shipton’s claim for past and future attendant care services should
be remitted to the primary judge.

Shipton appeal grounds 17–18: Superannuation benefit

223. Kone contends that the primary judge failed to take into account an $80,000 per annum
superannuation benefit Mrs Shipton is said to receive with the result that her loss of
earnings damages should be decreased by $1,171.95 per week. This would lead to a
reduction of loss of earnings as found at $866,027.70 by $525,174.18 to $340,853.52.

224. The primary judge (at [163]) assessed both past and future loss of earning capacity on
the basis of a forensic accountant’s report dated 31 May 2017 prepared by Ms Julia
Bossert, a chartered accountant. The primary judge noted that at trial Kone restricted
itself to submitting that Mrs Shipton had a continuing capacity for employment and made
no criticism of Ms Bossert’s report or calculations. On that basis, his Honour accepted
Ms Bossert’s calculations.
225. Ms Bossert’s report takes into account various matters with regard to superannuation. It
is not apparent on the evidence that has been furnished to the Court on appeal where
Kone’s figure of a superannuation benefit of $80,000 per annum comes from. It does not
appear to be mentioned in Ms Bossert’s report. Kone’s cross-examination of Ms Bossert
was limited to putting to her certain assumptions with regard to employer contributions to
superannuation and a statutory entitlement to an invalidity pension which Ms Bossert
said that she took into account. No challenge was made to the assumptions made by her
in her report, or her calculations.
226. It is apparent from Kone’s written submissions at trial that no point was made with regard
to the need to take into account the superannuation benefit referred to in this ground of
appeal. The point has been raised for the first time on appeal. There is no reason why
Kone should have leave to raise the point only on appeal, in particular because on the
submissions that have been made and the evidence that has been made available on
appeal it is impossible to work out just what the point is.

227. These grounds of appeal therefore fail.

Pattinson damages: Past and future attendant care

Grounds of appeal
228. The relevant grounds of appeal grounds are 13–16. These appeal grounds are the same
as the Shipton appeal grounds 11–12 and 15–16 that out above (at [176]).

229. Kone’s one point is that there can be no recovery in respect of gratuitous services. We
have already rejected that point which is dependent on inapplicable NSW legislation.

230. Kone’s other point as presented on appeal is essentially that the primary judge’s
conclusions with regard to past and future attendant care are not supported by the
evidence or his reasons. We now turn to that point.

37
The primary judge’s reasons
231. The primary judge (at [180]) found Mrs Pattinson to be an honest witness, who had no
intention of making a claim for what she initially considered to be modest injuries arising
from the lift incident. It was only when it became clear that she had suffered a significant
injury connected to the lift incident that she determined to make a claim. His Honour had
no hesitation in accepting her evidence of her history and her symptoms.

232. At [186], the primary judge stated that:

Little, if any, evidence was led in Mrs Pattinson’s case to support a claim for domestic
assistance. It appears that there has been some reallocation of domestic duties within her
household, but the evidence does not establish with any precision the number of hours per
week that domestic assistance is provided because of her injuries. I would be comfortable
with allowing one hour per week, both for past and future domestic assistance. There are
approximately 110 weeks between Mrs Pattinson’s surgery and 3 April 2020. Allowing one
hour per week at $35.00 per hour results in a sum of $3850.00 for past domestic assistance.
I would allow a further five years (as claimed by Mrs Pattinson) at one hour per week, for
future domestic care, amounting to $8491.00.

The evidence
233. At trial, Mrs Pattinson was asked about the impact of her injuries on day-to-day activities.
She accepted that there had been an impact, stating:
I don’t—I can’t garden. Like, I like to garden but I can’t do it for the same level that I used to
be able to do it, so I just—housework and everything I just do a little bit and—you know,
maybe an hour at the most and then stop and have a break.

234. There were export reports which to some extent gave details of Mrs Pattinson’s
restrictions on doing domestic chores, but what she told the experts was not confirmed
in evidence by her.
235. In his report dated 8 October 2018, Dr Nadanachandran noted under the heading
“present symptoms” that:
[Mrs Pattinson] is not able to lift heavy washing basket and do heavy physical work around
the house, which is being done by her husband and children. (sic)

236. Dr Bentivoglio also expressed an opinion on domestic assistance in his report dated 26
March 2019. He stated that:
Ms Pattinson has required domestic assistance following the incident and her husband does
nearly all the heavy domestic duties. She is now getting back to some domestic duties. She
can cook, share the shopping and do the lighter domestic duties. The assistance that she
had was all gratuitous from her husband.
After the operation, she probably would have only needed assistance professionally for about
three months and then she could slowly but surely increase her own domestic duties, so at
most any assistance necessary would been for three to six months. If she was to have
assistance it was because she was not able to do the domestic duties that were required of
her. Now the assistance was necessary because of the surgery that she had in 2018. (sic)

Consideration
237. Kone made available to the Court on appeal the two expert reports referred to above. It
was not indicated to the Court that there was any restriction placed on that evidence
when it was admitted. Even accepting that evidence, and noting that where it is clear that
a plaintiff has suffered some real loss, the Court must do its best to place a value on that
loss, despite the paucity or even absence of evidence on the point, in our assessment

38
 the primary judge was not justified in making the assessment that he did with respect to
past and future attendant care or domestic services. The assessment was entirely
speculative based on a paucity of evidence, and it was apparently inconsistent with the
evidence of Dr Bentivoglio which was adduced by Mrs Pattinson.

238. Ground of appeal 16 in Mrs Pattinson’s matter should therefore succeed with the result
that the judgment in her favour should be reduced by $12,341.00.

Massouras damages: past and future attendant care

Grounds of appeal
239. In the Massouras appeal, the following grounds of appeal deal with the quantification of
damages:
(10) The primary judge erred by failing to give adequate reasons for preferring, as he
clearly did, the first respondent’s evidence on quantum, despite the adverse view he
took to her credibility more generally.
(11) The primary judge’s findings on quantum ought properly to have been dependent, to
a substantial degree, on the adverse credibility findings he made of the first
respondent.
(12) The primary judge erred in making the findings as to quantum, despite his credibility
adverse findings, by reason of the failure to use or palpable misuse of advantage and
acting evidence, which was inconsistent with acts incontrovertibly established or which
was glaringly improbable.
(13) Having found that the first respondent was in receipt of some gratuitous domestic
assistance, the primary judge erred in awarding damages for past and future attendant
care services on a buffer basis in the absence of evidence that the gratuitous domestic
assistance was actually being provided.
(14) The primary judge ought to found that the first respondent had failed to discharge her
onus that she was entitled to damages for past and future attendant care services on
a gratuitous or commercial basis.

240. Kone submits that the damages awarded to Mrs Massouras warrant appellate
intervention given how severely her credit was impugned. Kone submits that the primary
judge’s “credit findings” are inconsistent with other evidence which he accepted. It is
submitted that this justifies reversal of the decision on the basis that the primary judge
“failed to use or has palpably misused his advantage” and whether findings are “glaringly
improbable” and “contrary to compelling inferences” arising by reason of the credibility
findings. Reference was made to a number of cases from where those quotes are
extracted.
241. Kone also submits that it was incumbent on the primary judge to provide reasons why he
came to the conclusion as to the soft tissue injury suffered, and his acceptance of a
diagnosis as to psychological injury based on self-reporting. Kone submits that the
requirement for future treatment is not explained nor are there reasons in support of the
gratuitous care awarded.

242. In relation to grounds 13 and 14, which deal with attendant care services, Kone relies on
the same submissions as it made in support of the equivalent grounds in the Shipton
appeal, i.e., Shipton grounds 15 and 16.

39
The primary judge’s reasons
243. The primary judge noted (at [196]) that in March 2014, Mrs Massouras suffered a fall in
which she fractured her right wrist. She had been cooking, and as she turned from the
stove towards the sink her hip and left leg “gave out”. She had a plate inserted in the
wrist and continues to have problems with arthritis. Sometime after the kitchen fall, she
spent considerable time off work because she could not move due to pain and weakness
in the hip and continues to have trouble with strength and pain in her hip.
244. The primary judge found (at [221]) it difficult to assess Mrs Massouras’s credibility. His
Honour noted that she gave varying accounts of the lift incident to various medical
practitioners who examined her for the purpose of her claim. These versions were more
dramatic than the account of the lift incident given in the WHS Incident Report completed
on 4 September 2013. After further discussing matters relevant to her credit, the primary
judge then concluded as follows:
On balance, I accept that Mrs Massouras suffered soft tissue injuries to her hip and shoulder,
as well as injuries to her lower back and neck as a result of the lift incident. I accept that she
has some lingering minor problems with her neck, lower back and hips but she is able to
cope with these through conservative treatment mainly by a chiropractor or a general
practitioner.

245. The primary judge found (at [222]) that Mrs Massouras suffered a psychological injury in
the lift incident, which was described by Dr Cohen as post-traumatic stress disorder. The
primary judge reasoned that like many people, Mrs Massouras has encountered a
number of stressors in her life, all of which undoubtedly contribute to her current
condition. His Honour accepted that the lift incident is a contributor to that condition,
particularly as her current condition includes a lift phobia.

246. The primary judge also found (at [223]) that there is no medical basis for concluding that
Mrs Massouras will suffer any loss of earning capacity in the future, noting that she had
continued to work on a full-time basis.

247. The primary judge observed (at [214]) that Dr Slesenger noted in his report that Mrs
Massouras had told him that she has an ongoing disability affecting her capacity to
function within the home and to perform activities of daily living.
248. Specifically with respect to attendant care, the primary judge reasoned as follows (at
[225]):
Mrs Massouras gave evidence of being unable to undertake domestic duties because of the
pain in her hip, back and shoulders. She claimed a buffer of $10,000 for past gratuitous
assistance, and a buffer of $30,000.00 for future gratuitous assistance. These claims are
based on a modest claim of one hour per week, with a reduction of the future component by
reason of the possibility of improvement. I will allow these amounts.

The evidence
249. Mrs Massouras gave evidence at trial that she was particularly limited in respect of
“housework and gardening”. The cause of this limitation was the pain she experienced
in her lower back, hips and shoulders after performing these tasks.

250. It was Mrs Massouras’s evidence that, following the incident, these tasks were performed
by her husband and daughter or not performed at all. Mrs Massouras said that the time
spent by her husband and daughter (who lives with her parents) per week on domestic

40
 chores was a matter of hours rather than minutes, but could not give a more precise
indication, stating:
They do the cooking and the washing and the cleaning so I guess however long it takes them
to do it.

251. In his report of 27 December 2016, Dr Slesenger recorded that, during his examination
of her on 20 December 2016, Mrs Massouras had told him that she was reliant upon her
daughter for domestic tasks including shopping, cooking, cleaning, laundry, vacuuming,
mopping, changing the bed linen and cleaning the shower enclosures although the
evidence was subject to a s 136 limitation as not being admissible as proof of the
assertions.
252. Dr Slesenger was asked to address in his report whether, in his opinion, Mrs Massouras’s
social, leisure and any other activities have been impaired and, if so, his reasons “for
same”. Dr Slesenger wrote that:
Mrs Massouras advised that she has ongoing disability affecting her capacity to function
within the home and to perform activities of daily living.

Consideration
253. Kone appeal grounds based on inconsistency between the primary judge’s credit findings
and his Honour’s acceptance of aspects of Mrs Massouras’s evidence rests on a
misapprehension that the primary judge made adverse credit findings against Mrs
Massouras. He did not. The primary judge set out in some detail the inconsistencies in
what Mrs Massouras told different medical practitioners about the incident. It was those
inconsistencies which apparently gave rise to his Honour stating, as mentioned, that he
found it difficult to assess her credibility. There is, however, nothing inconsistent between
that and accepting aspects of her evidence, as his Honour did, and for which he gave
reasons. Those grounds of appeal accordingly fail.
254. Turning now to the question of attendant care assistance, neither in what she reportedly
told Dr Slesenger or in her evidence did Mrs Massouras attempt to draw a distinction
between the lift incident and her later fall while cooking in which she fractured her wrist
as the sources of her limited capacity to function within the home. Since she was cooking
when she fell, apparently she was not prevented from cooking by any injuries she
suffered in the lift incident, although we note that she originally claimed damages also for
her right wrist fracture.

255. On her evidence, it is simply not possible to say with any confidence at all what limitation
she suffered in her ability to undertake domestic chores as a consequence of the lift
incident. The primary judge made no particular findings in that regard, other than to allow
the amounts claimed. There was no basis in the evidence or explanation in the reasons
for such allowance. Kone’s appeal in respect of Mrs Massouras’s past and future
gratuitous assistance should accordingly succeed.

256. The result is that Mrs Massouras’s damages should be reduced by the sum of $40,000.

Pattinson: the limitation issue

Grounds of appeal
257. The relevant grounds of appeal on the limitation issue in the Pattinson appeal are the
following:

41
 (10) Having found that the first respondent’s injury was an aggravation or acceleration of
the injuries sustained on 4 September 2013, the primary judge ought to found that the
relevant injury, for the purposes of the Workers Compensation Act 1951 (ACT)
proceedings the subject of section 16A of the Limitation Act 1985 (ACT), was the injury
found to have been sustained on 4 September 2013.
(11) The primary judge erred in going on to find that the injury satisfied the requirements
of section 16A of the Limitation Act 1985 (ACT).
(12) Having found that section 16A of the Limitation Act 1985 (ACT) applied, section 16B
of the Limitation Act could therefore not, and, the primary judge ought to have found
that the claim having been brought after 5 August 2016, was without time for the
purpose of section 16A of the Limitation Act.

258. Kone submits that the primary judge’s reasons on s 16A of the Limitation Act were
erroneous as they misinterpret the reasons of the High Court in Zickar v MGH Plastic
Industries Pty Ltd (1996) 187 CLR 310 (Zickar) and Kennedy Cleaning Services v
Petkoska [2000] HCA 45; 200 CLR 286. Kone submits that those cases stand for the
proposition that a sudden or identifiable change constitutes an injury for the purpose of
the Workers Compensation Act 1951 (ACT) requirement that the injury occurred during
the protected period of the injured person’s employment, even if it is an extension of an
underlying pre-existing disease or condition.
259. Kone submits that on the primary judge’s analysis, the injury was the exacerbation of an
underlying condition: it was an aggravation, acceleration or recurrence of a pre-existing
injury. That occurred on the day of the incident: 4 September 2013, as the primary judge
found. The time to bring that claim therefore expired on 5 September 2016: s 16A,
Limitation Act. The claim was brought on 3 September 2018, nearly 2 years later.

Consideration
260. At the hearing of the appeal, senior counsel for Mrs Pattinson rightly conceded that the
primary judge had erred in concluding that the case was not covered by s 16A of the
Limitation Act. Being covered by s 16A, the claim was accordingly not covered by s 16B.
It was brought nearly two years after time expired. It became common ground that the
appeal on this point has to be decided with reference to Mrs Pattinson’s contention that
although her action for damages was brought out of time, the relevant time period should
be extended under s 36 of the Limitation Act to 3 September 2018 on the grounds that it
is just and reasonable to do so. It was also common ground that the appeal court should
itself deal with that question, rather than remitting the matter to the primary judge.

261. Section 36 of the Limitation Act is relevantly in the following terms:

36 Personal injuries
(1) This section applies to any action for damages if the damages claimed consist
of or include damages in relation to personal injuries to any person.
(2) If an application is made to a court by a person claiming to have a cause of
action to which this section applies, the court, subject to subsection (3) and after
hearing such of the persons likely to be affected by that application as it
considers appropriate, may, if it decides that it is just and reasonable so to do,
order that the period within which an action on the cause of action may be
brought be extended for the period that it determines.
(3) In exercising the powers given to it by subsection (2), a court shall have regard
to all the circumstances of the case, including, for example, the following:
(a) the length of and reasons for the delay on the part of the plaintiff;

42
 (b) the extent to which, having regard to the delay, there is or is likely to be
prejudice to the defendant;
(c) the conduct of the defendant after the cause of action accrued to the
plaintiff, including the extent (if any) to which the defendant took steps to
make available to the plaintiff means of ascertaining facts that were or
might be relevant to the cause of action of the plaintiff against the
defendant;
(d) the duration of any disability of the plaintiff arising on or after the date of
the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he or
she knew that the act or omission of the defendant, to which the injury of
the plaintiff was attributable, might be capable at that time of giving rise to
an action for damages;
(f) the steps (if any) taken by the plaintiff to obtain medical, legal or other
expert advice and the nature of the advice the plaintiff may have received.
(4) The powers given to a court by subsection (2) may be exercised at any time
notwithstanding—
(a) that the limitation period in relation to the relevant cause of action has
ended since the cause of action accrued; or
(b) that an action in relation to such personal injuries has been begun.
262. The factual findings relevant to the exercise of the power under s 36(2) to extend time
include the following:

(a) After the incident, Mrs Pattinson was initially off work by reason of the pain
and headaches stemming from the incident for two and a half days, and
then for “a few hours and days” over the next six weeks. After some initial
treatment, her neck continued to bother her intermittently for which she
used over-the-counter pain relief and continued working. (At [8].)
(b) In 2016, Mrs Pattinson was contacted by the firm of solicitors acting for the
other plaintiffs in the proceedings. She was told that she could also bring a
claim, but she did not act on that advice at that time because her symptoms
had settled down and she decided she did not want to make a claim. (At
[11].)
(c) In September 2017, Mrs Pattinson developed numbness in her left thumb.
She was advised by a neurosurgeon that she had a compressed spinal
cord. Although surgery was recommended, it was not undertaken at that
time. Ultimately it was performed in February 2018. (At [10] and [15].)
(d) In July or August 2018, Mrs Pattinson was contacted by telephone by the
solicitors representing Kone with a view to her being called as a witness.
After that contact, Mrs Pattinson contacted the solicitors acting for the other
plaintiffs and decided that she would make a claim. (At [12].)

(e) After Mrs Pattinson was contacted by the solicitors representing the other
plaintiffs in 2016, she could have arranged to speak to them and have
brought a claim at that time but did not do so because she did not think that
there was much wrong with her (at [13]). She was also aware at that time
that Kone “had been responsible for the behaviour of the lift” (at [14]).

(f) The medical evidence establishes, on a balance of probabilities, that Mrs

Pattinson suffered an injury on 4 September 2013 by reason of the incident

43
 which weakened her cervical spine. In September 2017, Mrs Pattinson
suffered a physiological change which may be described as a disc prolapse
or rupture and which was either caused or contributed to by the injury on 4
September 2013. (At [15]–[16], [21].)

263. There are a number of considerations which support a conclusion that it is just and
reasonable that time be extended to 3 September 2018 for Mrs Pattinson to have
commenced her action against Kone.
264. First, it was known by Kone almost immediately after the incident that it had occurred,
and it was known soon thereafter that claims might be brought. In particular, the claims
of the other three plaintiffs were brought within the three-year period. The result is that
there is no prejudice to Kone caused by the extension of time in the case of Mrs Pattinson
with reference to any delay in investigating the cause of the incident or gathering or
preserving evidence in relation to the incident itself.
265. Secondly, there is no suggestion that Kone is prejudiced by the extension of time with
reference to investigating or gathering or preserving evidence in relation to Mrs
Pattinson’s injury. The medical records from her various consultations and treatments
over time were available, and the severity of her injury did not present until approximately
four years after the initial incident so the occasion to investigate that deterioration did not
arise until after the three years had elapsed.

266. Thirdly, until the deterioration of her condition in September 2017, Mrs Pattinson had no
reason to commence an action—she admirably concluded that since her symptoms had
settled down she should not commence an action. It was only after that deterioration of
her condition, and subsequently surgery in early 2018, that Mrs Pattinson decided that it
was worth bringing a claim. So, although she was aware before the expiry of the three-
year time period that she could have brought a claim against Kone, it was not until well
after the expiry of that time period that she learnt that her condition was such that it was
worthwhile bringing a claim. She acted promptly and reasonably at that time.

267. Finally, there can be no question that a fair trial of Mrs Pattinson’s claim was possible
and was not prejudiced by the delay.
268. In the circumstances and for the reasons identified, it is just and reasonable to extend
time nunc pro tunc for Mrs Pattinson to bring her claim to the date on which it was
brought. Mrs Pattinson’s notice of contention should therefore be upheld.

Sanderson orders
269. In the costs judgment, the primary judge made Sanderson orders, i.e., orders in each
proceeding that Kone be directly responsible to the Cromwell parties for the unsuccessful
(as against the Cromwell parties) plaintiffs’ liability to the Cromwell parties for costs. Kone
appeals against these orders: see Sanderson v Blyth Theatre Co [1903] 2 KB 533 (CA).

270. The primary judge accepted (at [47]) that in order to justify the making of a Sanderson
order it is not enough for the plaintiffs to demonstrate that it was reasonable for them to
join the Cromwell parties in the actions; it must be demonstrated that the conduct of the
unsuccessful defendant (Kone) was such as to make it just that it bears the plaintiffs’
costs owing to the Cromwell parties.

271. The primary judge reasoned (at [49]) that it is “simply inconceivable” that in the process
of interviewing Mr Stevens “over the years” in preparation of the matter for trial Kone did

44
 not become aware of the nature of the evidence that Mr Stevens could give. That was
identified by the primary judge as being that when he checked the terminal in question
on 4 September 2013, the “wire was loose but the terminal was secure”.

272. The primary judge noted (at [50]) that there was never any attempt by Kone to call
evidence that it was unaware of the evidence that Mr Stevens could give regarding the
probable cause of the poorly terminated wire. He was also not re-examined or recalled
with a view to establishing that the evidence he gave went beyond any statement that he
had previously made to Kone’s lawyers.
273. The primary judge noted (at [53]) that by operation of s 5A of the Civil Procedures Act
2004 (ACT) (CPA), Kone had an obligation to assist the Court to achieve a just resolution
of the real issues in dispute as quickly, inexpensively and efficiently as possible. His
Honour reasoned that where a party “knowingly withholds information likely to be
significant in the just resolution of a dispute, and as a consequence another party is put
to increased inconvenience and expense, the party was holding the information may well
be called to account to the other party in costs.”

274. Finally, the primary judge held (at [54]) that Kone knowingly withheld information given
to it by Mr Stevens, effectively withholding information that would have made it the sole
target of the plaintiffs’ claims. The primary judge was satisfied that had the plaintiffs been
provided with a full account of the evidence that Mr Stevens could give, they would not
have commenced or continued with proceedings against the Cromwell parties. For those
reasons, his Honour made the Sanderson orders with regard to the costs each plaintiff
would otherwise be required to pay to Cromwell.
275. By appeal grounds 19 to 21 (in the Shipton appeal), Kone asserts that the primary judge
erred in making the Sanderson orders and that it was each of the plaintiffs who was
responsible for having kept the Cromwell parties in each proceeding and that the plaintiffs
should accordingly be liable to the Cromwell parties for the latter’s costs.

276. Kone accepts that in making the Sanderson orders the primary judge exercised a
discretion which is subject to appellate review only on the grounds identified in House v
The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ, i.e., that the
discretion was exercised upon a wrong principle, if extraneous or irrelevant matters
guided or affected its exercise, or if it was exercised upon some mistake as to the facts
or failing to take into account some material consideration.

277. In our view, the primary judge’s discretion miscarried.

278. First, the evidence in question, namely Mr Stevens’s evidence that the wire was loose
but the terminal was secure, does not have the requisite character of being decisive. It is
entirely consistent with the theory that the wire may have broken or come adrift on
account of vibration. It is thus not the case (as reasoned by the primary judge at [49] of
the costs judgment) that once poor termination of the wire at the time of assembly is
discounted as a cause, on that aspect of Mr Stevens’s evidence any remaining cause
lay at Kone’s door.
279. Insofar as Mr Stevens’s evidence that he or one of his colleagues may have “pulled” too
hard on the wire is concerned, as explained, Mr Stevens was clearly hypothesising that
as amongst a variety of other possible causes. It was only in re-examination that he
agreed that that was a “plausible” cause, but even then he did not say that he thought

45
 that that was the cause. As mentioned, it was never even put to him that that was the
most probable cause.
280. Moreover, all the experts agreed that Mr Stevens’s explanation as to how he and the
other Kone technicians tested the wires, which included “pulling” them with a screwdriver,
was commonplace and to be expected. Indeed, Mr McWaters had said in his report back
in September 2017 that accidental knocking of the wire during maintenance may have
caused it to part from the terminal, and Mr Ward in his report expressed agreement with
that. There was thus nothing novel or unexpected in Mr Stevens saying that a possible
cause of the wire having come adrift was that it was pulled too hard.

281. As is apparent from the discussion above of the question of liability, the question of what
caused the wire to come apart from the terminal was by no means clear cut. Although
we have concluded that the primary judge did not err in his conclusions on that question,
there remains significant doubt as to just what the cause was and a conclusion that the
plaintiffs failed to discharge their onus on the point may also have been open.
282. In short, Mr Stevens’s evidence was not decisive as to the cause and thus as to Kone’s
liability and it cannot found a conclusion that had the plaintiffs known of it at an earlier
time they would not have pursued the Cromwell parties.
283. Secondly, even if one was to conclude that the identified aspects of Mr Stevens’s
evidence was decisive, there is no basis to conclude that Kone should itself reasonably
have concluded that that evidence would be decisive. It would only be on the basis that
Kone had itself appreciated the decisiveness of the evidence that a finding could then be
made that it knowingly withheld that evidence and on that basis to justify a Sanderson
order.

284. Thirdly, even after the plaintiffs had heard Mr Stevens’s evidence, including their cross-
examination of him, and they amended their statements of claim to include for the first
time the allegation that Mr Stevens or one of his colleagues was responsible for “bumping
a wire connected to the transformer and dislodging it during maintenance”, they
maintained their claim against the Cromwell parties.

285. Fourthly, there is no property in a witness. There was no evidence to suggest that the
plaintiffs had sought to interview Mr Stevens before pleading a case against the Cromwell
parties but had been frustrated by Kone preventing that from occurring.

286. Fifthly, the procedure by which the proceedings were conducted did not require Kone to
give advance notice of the evidence that Mr Stevens would give, whether by way of
affidavit, witness statement or brief of evidence. It was open to the plaintiffs to seek
further information such as by applying for interrogatories or applying for case
management orders that Kone give advance notice of the evidence that Mr Stevens
would give.

287. In the circumstances, the Sanderson order made in each proceeding on 13 July 2020
that Kone pay the Cromwell parties costs of the proceeding should be set aside.

288. The Court’s discretion with regard to the question of the Cromwell parties’ costs
accordingly requires to be exercised afresh. In the ordinary course, the plaintiffs would
pay those costs. We do not see any reason why the ordinary rule should not apply.

289. Thus, there should be an order in each proceeding that the plaintiff pay the Cromwell
parties’ costs on a party/party basis.

46
Costs to the plaintiffs
290. In the costs judgment, the primary judge awarded costs to each of the plaintiffs. Save in
the case of Mrs Shipton where his Honour awarded costs on a solicitor and client basis,
the costs awarded to the plaintiffs were on a party and party basis. The reason for the
different award of costs to Mrs Shipton is based on Kone failing to accept two offers of
compromise: see Civil Procedures Rules 2006 (ACT) (CPR) r 1010.

291. By appeal grounds 23 to 25 (in the Shipton appeal), Kone asserts that the primary judge
erred in awarding costs at all to the successful plaintiffs and, in relation to Mrs Shipton,
costs on the higher scale of solicitor and client basis.
292. Kone submits that the primary judge failed to have regard, first, to issues in respect of
which each of the parties has been successful and, second, a late amendment to
pleadings to include bumping the wire as a cause of the lift to malfunction.

293. These contentions can be dealt with briefly.

294. As to the first matter, there is no error in principle of the primary judge in failing to
apportion costs in this way. By CPR r 1721, the costs of a proceeding are in the discretion
of the Court. The ordinary rule is that costs follow the event. The Court’s power to
apportion costs is expressly provided in CPR r 1705, the principles in respect of which
were summarised in Lewis v Chief Executive Department of Justice and Community
Safety (No 2) [2014] ACTSC 196. At [27]–[28], Refshauge J held that apportionment is
only appropriate in the clearest of cases where the successful party has wholly failed on
a separate and discrete issue. This is not one of those cases. Each of the pleaded
possible causes went to the ultimate issue of breach of duty, an issue in respect of which
the plaintiffs succeeded.
295. As to the second matter, the usual order for a late amendment to pleadings is that the
amending party pay the costs thrown away by the amendment. However, as counsel for
the plaintiffs rhetorically asked: what costs were thrown away? There was no
adjournment and no raft of new evidence suddenly created as a result of the amendment.
The amendment did not remove pleaded points such as vibration which, as previously
mentioned, is a hypothesis consistent with Mr Stevens’s evidence. In this respect we
repeat the observations made by this Court in Oliver v Roberts (No 2) [2018] ACTCA 44
(Oliver v Roberts (No 2)) at [11] per Murrell CJ, Loukas-Karlsson and Charlesworth JJ
that:
Any personal injury litigation is a dynamic process in which perceived merits and capacity to
predict outcome may fluctuate many times before the litigation concludes.

296. Finally, so far as costs on the solicitor and client scale in Mrs Shipton’s appeal is
concerned, that is in accordance with the ordinary rule: r 1010. There is in our view no
exceptional circumstance for the Court to order “otherwise”: see Oliver v Roberts (No 2)
at [9].

Indemnity to Cromwell parties

297. In the costs judgment, the primary judge identified (at [55]–[56]) that the Cromwell parties
relied on two bases to claim indemnity from Kone for its costs of defending the plaintiffs’
claims.

47
298. First, the Cromwell parties asserted a breach by Kone of cl 28.1 of the Maintenance
Contract between Kone and Cromwell. That clause provides as follows, noting that the
“Contractor” is Kone and the “Principal” is Cromwell:
The Contractor indemnifies, holds harmless and will defend the Principal from and against
all suits, actions loss, damage, expense (including, but not limited to, legal fees and costs of
defence and any GST thereon) and liability for injury or death of persons, or damage to
property or other damage or loss resulting from, arising out of, or in any way connected with:
(a) the breach by the Contractor or its personnel of any of the provisions of this
agreement; and
(b) the act, omission or negligence of the Contractor or its Personnel.

299. With regard to cl 28.1, the primary judge (at [72]) concluded that the clause required
Kone to indemnify Cromwell against any loss occasioned to it in two circumstances. The
first is where the losses are occasioned by a breach of the contract by Kone or its
personnel. The second is where loss is occasioned by any act, omission or negligence
of Kone or its personnel.
300. The primary judge found (at [74]) that the work undertaken by employees of Kone as
described by Mr Stevens was maintenance work under the contract. Thus, the
negligence that caused the failure of the lift was a breach of cl 28.1 giving rise to liability
to indemnify the Cromwell parties for the consequences. On that basis, Kone was
ordered to indemnify the Cromwell parties for all losses suffered by them including legal
fees and costs incurred by them in defence of the claims brought against them.
301. Secondly, the Cromwell parties asserted a breach of cl 22 of the Maintenance Contract.
That clause relevantly provided as follows:
22.1 The Contractor must keep current during the Term the following insurance:
(a) public liability insurance for not less than $20 million (or any other amount the
Principal reasonably requires) …
22.2 The insurance policy is taken out under this clause 22 must:
(a) …
(b) note the Principal’s interest …

302. The primary judge held (at [73]) that on the basis of a late affidavit of Lauren Gail Smith
which he received over Cromwell’s objection, Kone had taken out the requisite insurance.
It was therefore held that Kone had not breached cl 22. It was also held that there was
merit in Kone’s submission that there was no evidence that Cromwell had in any event
ever sought to make a claim against the policy.

303. Kone appeals against the indemnity orders on the basis of the finding of a breach of cl
28.1 and the Cromwell parties rely on a notice of contention in relation to the primary
judge’s rejection of their claim based on a breach of cl 22.

Clause 28.1 of the Maintenance Contract

304. With reference to the Shipton notice of appeal, the following grounds of appeal impugn
the costs judgment insofar as cl 28.1 of the Maintenance Contract is concerned:
(22) The primary judge erred in his construction of clause 28.1 of the Maintenance Contract
and in his finding that it was enlivened in the context of his factual findings in these
proceedings, or otherwise.

48
 …
(27) The primary judge erred in concluding that any monies, whether awarded by way of
damages, costs or otherwise, were owing pursuant to the indemnity housed in
Maintenance Contract, clause 28.1.
(28) Further and or, in the alternative to ground 27, the primary judge erred in failing to find
that the indemnity clause entitled Cromwell only to party/party ordinary costs and that
liability was met by an ordinary costs order made in their favour as against the
[plaintiff].

305. It is to be noted that cl 13.1 of the Maintenance Contract required Kone to “carry out the
Services in a good and workmanlike manner using best practice methods and with
materials of a suitable quality and in conformity with the Contract Documents.” There is
no dispute that the maintenance of the lift that was conducted by Mr Stevens was within
the “Services” under the contract. In the circumstances, the negligence of Mr Stevens as
found by the primary judge amounted to a breach of the contract. On that basis, the
indemnity in cl 28.1 was enlivened. There is no error in the primary judge’s reasoning in
that regard.

306. It is also to be noted that the indemnity in cl 28.1 in employing the wording of “damage
to property or other damage or loss resulting from, arising out of, or in any way connected
with” is very broad with reference to what enlivens it. Given the breadth, in particular, of
the wording “in any way connected with”, there is sufficient causal connection between
an act of negligence by Kone or its personnel leading to a reasonable albeit erroneous
assertion of a claim against the Cromwell parties and the Cromwell parties thereby
incurring costs in defending that claim.

307. Also, since the indemnity includes, but is not limited to, “legal fees and costs of defence”,
it by its terms does not only require Kone to defend a claim brought against the Cromwell
parties; if the Cromwell parties are required to defend a claim then Kone indemnifies
them for their legal fees and costs of defence.
308. Since we have concluded that the plaintiffs should pay the Cromwell parties’ costs on a
party/party basis, the indemnity will cover the difference between the party/party costs
and the solicitor and own client costs. However, to the extent that a party/party costs are
not recoverable from any one or more of the plaintiffs, then the indemnity will pick up that
which is unrecoverable.

309. It follows that in our view these grounds of appeal must fail.

Clause 22 of the Maintenance Contract

310. Given our conclusion with regard to cl 28.1 of the Maintenance Contract, the notice of
contention with regard to cl 22 falls away.

Costs of the appeal

311. Given the varying degrees of success of the parties on appeal and that the appeal court
has not heard submissions on the costs of the appeal, the parties should be given the
opportunity to make brief submissions in writing.

Disposition
312. In the result, in Mrs Shipton’s appeal we will make orders:

49
 (a) Upholding appeal ground 14 in relation to past and future attendant care
services;
(b) Setting aside the judgment for the plaintiff against the first defendant in the
sum of $2,181,073.17 made on 3 April 2020 as corrected on 28 May 2020
and substituting it with judgment for the plaintiff against the first defendant
in the sum of $1,913,960.17;

(c) Remitting the plaintiff’s claim for past and future attendant services for
decision;

(d) Upholding appeal grounds 19 to 21 with regard to the Sanderson order;

(e) Setting aside the order on 13 July 2020 that the first defendant pay the
second to eleventh defendants’ costs of the proceeding on an indemnity
basis and substituting it with an order that the plaintiff pay the second to
eleventh defendants’ costs.

313. In Mrs Massouras’s appeal, we will make orders:

(a) Upholding appeal grounds 13 and 14 in relation to past and future attendant
care services;
(b) Setting aside the judgment for the plaintiff against the first defendant in the
sum of $98,232.95 made on 3 April 2020 and substituting it with a judgment
for the plaintiff against the first defendant in the sum of $58,232.95;

(c) Upholding appeal grounds 15 to 17 with regard to the Sanderson order;

(d) Setting aside the order on 13 July 2020 that first defendant pay the second
to eleventh defendants’ costs of the proceeding on an indemnity basis and
substituting it with an order that the plaintiff pay the second to eleventh
defendants’ costs.

314. In Mrs Pattinson’s appeal, we will make orders:

(a) Upholding the notice of contention;

(b) Extending time nunc pro tunc for the plaintiff to commence her action to 4
September 2018;

(c) Upholding appeal ground 16 on past and future attendant care services;

(d) Setting aside the judgment for the plaintiff against the first defendant in the
sum of $127,867.37 made on 3 April 2020 and substituting it with a
judgment for the plaintiff against the first defendant in the sum of
$115,526.37;

(e) Upholding appeal grounds 17 to 19 with regard to the Sanderson order;

(f) Setting aside the order on 13 July 2020 that first defendant pay the second
to eleventh defendants’ costs of the proceeding on an indemnity basis and
substituting it with an order that the plaintiff pay the second to eleventh
defendants’ costs.

315. In Mrs Soesman’s appeal, we will make orders:

(a) Upholding appeal grounds 11 to 13 with regard to the Sanderson order;

50
 (b) Setting aside the order on 13 July 2020 that first defendant pay the second
to eleventh defendants’ costs of the proceeding on an indemnity basis and
substituting it with an order that the plaintiff pay the second to eleventh
defendants’ costs.

316. In each appeal we will make orders that:

(a) within 14 days of these orders the appellant file and serve written
submissions of no more than 10 pages (with at least one and a half line
spacing and 12 point font) on the costs of the appeal;
(b) within 14 days after service on them of the submissions referred to in Order
(a), the respondents file and serve written submissions of no more than 10
pages (with at least one and a half line spacing and 12 point font) in
response; and
(c) within 7 days after service on it of the submissions referred to in Order (b),
the appellant file and serve written submissions of no more than 5 pages
(with the same requirements as to line spacing and font size) in reply.

I certify that the preceding three hundred and sixteen

[316] paragraphs are a true copy of the Reasons for
Judgment of their Honours Chief Justice Murrell,
Justice Loukas-Karlsson and Justice Stewart.

Associate:

Date:

51