Compensation awarded for women’s lift-malfunction injuries

A lift company has been ordered to pay four women a total of more than $2.39 million after they were injured when a Canberra high-rise building’s lift dropped eight floors.

Kellie Maree Massouras, Jane Angela Pattinson, Alison Shipton and Jessica Soesman took action against Kone Elevators Pty Ltd, The Trust Company Ltd, which was the building manager, and Cromwell Corporation Ltd and eight other Cromwell companies, which owned the building.

Kone was engaged by The Trust Company to maintain and service the lifts in the premises.

Justice John Burns in the ACT Supreme Court, found Kone liable, but dismissed proceedings against the other defendants.

On the morning of 4 September 2013, the four women, all part of a team working for the Department of Veterans’ Affairs (DVA), entered lift number two on the 19th floor of Lovett Tower in Woden, ACT.

They intended alighting from the lift on the ground floor for a meeting, but the lift malfunctioned. It stopped suddenly at the 14th and the 11th floors. On the 11th floor, after speaking to an operator at the Kone Service Centre, the lift doors opened, and the women exited and completed their descent to the ground floor by the fire stairs.

All four were injured, to varying degrees, when the lift malfunctioned.

One of Kone’s senior elevator technicians, John Stevens, gave evidence the elevator malfunction was caused by a loose wire in the lift’s supply transformer which was caused by negligent maintenance by Kone employees.
 
Initially, Justice Burns had to determine whether Ms Pattinson’s claim was statute barred. She did not join the proceedings until 3 September 2018, but Justice Burns found her claim was lodged within the limitation period because she had not been aware initially that the lift incident had contributed to her injuries, which required neck surgery to avoid possibly becoming a quadriplegic.

Ms Shipton, who managed the DVA team, gave evidence that when they were in the lift, she heard a loud, metallic sound and the lift started to descend. She said the decent did not “feel normal” and it felt like the lift was “dropping”. The lift suddenly stopped around the 14th floor, before it started dropping again. Ms Shipton described the initial stop as “a really hard jolt”.

The lift dropped again before suddenly stopping around the 11th floor. Ms Shipton said she felt terrified. When the lift stopped the second time, Ms Shipton pushed the alarm button and spoke to someone via an intercom. They instructed her how to open the lift and she and the other women alighted. They took the stairs to the ground floor, where they spoke to a security guard in the foyer and to a man with “Kone” on his shirt. Mr Shipton told the man: “The lift fell, you need to turn it off.”

Justice Burns said he accepted the evidence of Mrs Shipton - “a truthful and generally impressive witness” - that both stops were abrupt and “in the absence of visual cues, it was understandable [they] perceived the lift to be falling”.

He also accepted expert witnesses’ evidence that “sudden stops for lifts travelling at the speed of the lifts in the subject premises can easily cause damage to any passengers experiencing that sudden stop”. He found the women’s injuries resulted from the lift’s sudden stops.

He said Kone was critical of the evidence given by Mr Stevens, saying his “speculation” on why the wire may have come loose did not provide “a proper basis for the court to draw a conclusion as to breach”.

“I do not agree. Mr Stevens was best qualified of all the witnesses to comment on the cause of the incident, and the cause of the broken wire – he actually saw the wire in situ and was [someone] who regularly serviced and maintained the equipment”.

Kone suggested the incident was simply the lift operating as it was designed to do, and that the same thing would have happened if, for example, there had been a power blackout to the premises.

But Justice Burns said what occurred was not a simple power supply failure, the failure was due to a lack of reasonable care by Kone in maintaining the lift.

“I am satisfied Kone breached its duty of care by performing maintenance on the connection to the drive transformer without due care and attention, resulting in the wire breaking, which resulted in intermittent power loss to the lift. This resulted in the emergency brake operating, causing the lift to stop suddenly.”

He said the risk of harm was foreseeable and a reasonable person in Kone’s position would have taken steps to avoid the risk. “The defect that caused the lift to malfunction was not the result of an inadequate service regime, but a single instance of carelessness.”

Ms Shipton had surgery on her neck, but also experienced a lot of pain in her left wrist and pain and weakness in her right arm. She described the pain as “like an electric shock, it’s pins and needles”.

Ms Shipton agreed to surgery in February 2015 because she felt she had run out of options and she needed to get better and desperately wanted to return to work.

Since the surgery, Ms Shipton said she felt like she had lost everything. “I’ve lost my health. I’ve lost my career. I don’t plan for anything anymore. I’m just sick of being in pain.”

Justice Burns said Ms Shipton now had a chronic pain syndrome which was ongoing and unlikely to ameliorate. She suffered headaches and arm weakness. She  developed a lift phobia and an adjustment disorder with mixed anxiety and depressed mood.

“I accept Ms Shipton’s evidence that her continuous disabilities have had a severely detrimental effect upon her working, social and family life.” He awarded her a total of $2,140,246.48.

Ms Soesman experienced pain in her neck and shoulders soon after the lift incident.

Due to the pain, she left work on the morning of the incident. By that time, her neck was quite stiff, and she could not move it very much. She said that she was in shock after the incident, and  nervous about getting back into the lift. During the incident itself, she said she was “petrified”. She says she now avoids getting into lifts wherever she can.

She was referred to a physiotherapist for her neck and shoulders, and her lower back was aggravated by the lift incident. Ms Soesman was awarded a total of $24,194.35.

Ms Pattison 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 that she made a claim. She was awarded a total of $127,867.37.

Ms Massouras said she had suffered injury to her neck and shoulders and suffered shock. She now had a chronic fear of using lifts. She recounted one occasion when she had to attend a meeting on the 54th floor of a building and  had to use the elevator. She said she was a “blubbering mess” and vomited when she got to the 54th floor.

Ms Massouras said her psychological condition affected her relationships with others, particularly her husband. She had withdrawn from a lot of social networks, and no longer has the confidence she used to.

“Her mental state fluctuates regularly and she describes herself as being very different from the positive, happy person that she was. She now finds herself limited in undertaking housework and gardening because of pain in her lower back, hips and shoulders,” Justice Burns said. She was awarded a total of $98,232.95.

Massouras v Kone Elevators Ptd Ltd; Pattinson v Kone Elevators Ptd Ltd; Shipton v Kone Elevators Ptd Ltd; Soesman v Kone Elevators Ptd Ltd [2020] ACTSC 66 judgement 3/4/20