By: Jonathan Maher and Arriane Garcia


Alan Bernard McKenzie v Charles Stewart & Company Proprietary Limited (trading as Colac Rental Management) [2024] VCC 429

At a glance

  • In the decision of Alan Bernard McKenzie v Charles Stewart & Company Proprietary Limited (trading as Colac Rental Management) [2024] VCC 429, the County Court of Victoria has reminded us that a personal injury plaintiff cannot succeed without first proving the circumstances of the incident.
  • While it can be difficult for defendants to dispute the facts of an incident if it is unwitnessed, this case confirms that the plaintiff still bears the onus of proving to the satisfaction of the court that the incident occurred as alleged.

The facts

The plaintiff, a 58-year-old man, claimed to have injured his ankle after stumbling on concrete steps at the rear of his rental property in regional Victoria in September 2019, injuring his ankle.

He issued proceedings in the County Court of Victoria against his landlord and the local managing agents, alleging that the steps were unsafe because they were old, cracked and in a state of disrepair. There was also no handrail.

The defendants denied that the steps were unsafe and denied any breach of duty to the plaintiff.

The plaintiff’s case

There were no witnesses to the plaintiff’s incident, but he alleged that he stumbled while coming back from the clothesline, carrying a basket of laundry, because of the cracked and worn nature of the steps.

He gave evidence that, prior to the incident, he had complained to the managing agents that he felt unsafe using the steps and had requested that a handrail be installed, but that this was not actioned.

He also argued that the incident could have been avoided had the managing agents trained their staff generally to detect abnormalities in steps and to assess whether they required a handrail. He argued that this would have allowed the agents’ employees to assess the steps during their routine inspections as unsafe, and recommend that the landlord repair them and/or install a handrail.

The managing agents’ case

The managing agents argued the plaintiff’s evidence regarding the circumstances of the incident was unreliable and that he could not satisfy the court as to how it actually occurred.

They highlighted discrepancies in his evidence at trial and other accounts:

  • the plaintiff’s oral evidence about the time of the incident was markedly different to what he had previously deposed in sworn answers to interrogatories
  • significantly, in his oral evidence the plaintiff claimed that his foot had slipped off the step because of a large crack in its edge. However, video taken shortly after the incident showed him explaining that it had occurred because he had tripped on the step, catching his foot as he ascended. There were also contemporaneous medical records stating that he had tripped, and
  • the plaintiff described his foot twisting outwards at the time of his fall, but there was unchallenged expert medical evidence that his foot had twisted inwards.

The managing agents also argued that the steps, whilst old, did not pose a safety issue anyway. They relied on the fact that inspection did not reveal any issues with them, that there was no contemporaneous evidence of the plaintiff’s alleged complaints, and there had never been any other mishap or fall on them.

The decision

Her Honour Judge Meyers found that the plaintiff had not established the circumstances of the incident.

She was not satisfied that he placed his foot onto the step at the point of the cracked section, because:

  • he gave inconsistent evidence about how much of his foot actually landed on the step
  • his account of his path of travel did not accord with normal human behaviour from someone returning from the direction of the clothesline, particularly where he had intimate knowledge of the condition of the steps and the location of the crack, and had given evidence that he could see where he was going despite holding the laundry basket, and
  • as stated, his evidence about the mechanism of his injury conflicted with other, more contemporaneous sources (including from himself).

Her Honour also concluded that although the steps were reasonably old, uneven in places and had no handrail, they were not in a significant state of disrepair. They were solid, reasonably fit for purpose and had a long history of uneventful use. Her Honour characterised the risk posed by the steps as remote and obvious.

Her Honour found that none of the features of the steps, individually or collectively, were sufficient to prompt an ordinary reasonable managing agent to think they required maintenance or repair. While she accepted that repairing the steps would have been inexpensive, the risk of harm posed by them did not necessitate such precautions. In her reasoning, Her Honour referred to the High Court’s decision in Jones v Bartlett (2000) 205 CLR 166 that a house is not dangerous or defective merely because it could be made safer.

Judge Meyers went on to find that even if she had concluded that the steps were unsafe, the plaintiff had not provided compelling evidence to establish that, on the balance of probabilities, their condition had caused the incident, or that a handrail would have prevented his injury. She described the manner in which the plaintiff gave his evidence as unsatisfactory and that, ultimately, the plaintiff’s evidence supported an alternative and equally plausible cause of the incident – that he simply misstepped.

Finally, Her Honour advised that, even if the plaintiff had established liability against the managing agents, she would have reduced his damages as a result of his own contributory negligence by 70%.

Implications

Although it can be difficult for personal injury defendants to dispute the facts of an incident if it is unwitnessed, this case confirms that the plaintiff still bears the onus of proving to the satisfaction of the court that the incident occurred as alleged.

Wotton + Kearney acted for the property landlord, released from the case on the first day of trial.