Boyd v Strata Plan 6758

[2008] NSWDC 161

CITATION:	Boyd v Strata Plan 6758 [2008] NSWDC 161
HEARING DATE(S):	13,14,15/05/2008
JUDGMENT DATE:	30 May 2008
JURISDICTION:	Civil
JUDGMENT OF:	Williams DCJ at 1
DECISION:	Verdict for Defendant
CATCHWORDS:	negligence - slip and fall on wet stairs - reasonableness of response to perceived danger - differing expert reports as to slip resistance - relevance of unsubstantiated complaints by residents not called to give evidence - duty of care of ocupiers - large home unit complex
PARTIES:	Michelle Boyd The Owners Strata Plan 6758
FILE NUMBER(S):	No: 567/07
COUNSEL:	Beale for Plaintiff Cavanagh for Defendant
SOLICITORS:	CMC Lawyers Moray & Agnew

JUDGMENT:

Liability

1. The Plaintiff, Ms Boyd (now Mrs Thomas), was entering a home unit complex at 90-94 St Georges Crescent Drummoyne at about 8.30pm on 16 May 2005. It had been raining heavily during the day but at that time had reduced to a sprinkle. The unit complex was below street level and access was achieved from the street by two flights of stairs, separated by a short landing. The area was tiled. Ms Boyd had not been to these units before.

2. As she descended the first flight of stairs and was about two or three steps from the landing, she noticed water pooled on the landing. She continued walking normally and put her foot down on the landing but when she transferred her weight to it, it slipped out from under her and she fell. She didn’t think to take hold of the handrail and indeed was not particularly aware of it. The stairs appear to be quite wide, although I can’t find any measurements in either of the experts’ reports. They appear to be the principal pedestrian access for a large unit complex.

3. Ms Boyd says the water appeared to be about 1.5cms deep. She was wearing shoes with a grip sole and heels about 1.5cms high. She was attending the units to look at a place for the purposes of renting it. She denied she was hurrying and there is no evidence to suggest that she was. Indeed, Ms Boyd is a very impressive young woman who, despite a severe injury to her wrist, has not sought to exaggerate her disabilities in any way and has sought to obtain suitable employment wherever possible. That impression is one that has been commented on by virtually all the medical and vocational experts who have seen her, and I see no reason not to accept her evidence.

4. Whilst there was some suggestion she was hurrying, having regard to her description of having once slipped, ending up at the bottom of the next set of stairs without touching the intervening steps, as Mr Fogg said in evidence, people often only remember two things in such incidents - the slip and where they ended up. Two other matters mitigated against her hurrying, (1) the fact that it was still sprinkling and (2) the fact that she saw water pooled across the landing as she descended. The stairs in question and the landing have been depicted in several photographs tendered during the hearing of this matter and I will not attempt to describe what is patently observable in exhibits.

5. There is no discernable dispute in regard to Ms Boyd’s injury or her ongoing disabilities, although the economic effects of her disabilities are in issue.

6. The only evidence on liability came from Ms Boyd and Mr Dorman, the chairman of the Strata Plan Executive. Mr Fogg, an expert in regard to the slipperiness of the tiles, also gave evidence for the Plaintiff and a similar expert, Dr Cook’s report was tendered for the Defence, but both these experts’ evidence suffers from the fact that Mr Fogg’s examination took place on 24/7/06 and Dr Cook’s on 3/5/07, 1 and 2 years after the events. There is also a fairly substantial difference in the slip measurement undertaken by both experts, which has not been adequately explained, given that both used the same methodology and that Mr Fogg regarded Dr Cooke, who was unavailable, as a competent person. The parties also tendered a number of documents from the Body Corporate files, being exhibits 5 and 6, minutes and documents relevant to an extraordinary general meeting of 24/9/03, and correspondence arising, exhibit K – a letter from residents dated 26/9/05; exhibit H – a letter from a resident dated 22/10/05; and exhibit J – Agenda minutes; and a letter from an executive meeting of 14/2 06.

These documents were tendered to;

A – establish that the Body Corporate had replaced the public access tiles in 2004 and
B – that there had been complaints about the tiles and inferentially that the Body Corporate was on notice as to problems with the tiles.

Exhibit 4 is an invoice for the coating of the tiles with a commercial product called Magic Grip, which is dated 12/12/05.

7. There was no dispute that the Body Corporate owed Ms Boyd a duty of care. At its highest, the Plaintiff’s case revolved around the findings of Mr Fogg. He measured the slipperiness of the tiles in question on 24/7/06, which was at a time after the Magic Grip coating had been applied, and the result was found to be 31 BPN in two separate places, which is a high risk of slipping. Dr Cook, on 3/5/07, measured the slipperiness as a mean of 42.

8. Accepting Mr Fogg as being correct for the time being, he said that the Plaintiff’s injury was foreseeable and preventable for 7 primary reasons. They were that the Body Corporate had:

“1 – Failed to ensure that the stairs accessing the premises were safe, effective and fit for purpose at all times.

2 – Failed to ensure that the stairs accessing the premises complied with the requirements of the access and egress provisions as set out in the Building Code of Australia (BCA).

3 – Failed to effectively maintain the appropriate pedestrian working surfaces and specifically to ensure that the walkways and stairs were free of hazards and provided a safe and fit for purpose pedestrian access path within the premises.

4 – Failed to warn tenants and visitors using the stairs, of the injurious potential posed by introduced surface contaminants, such as water, in times of wet or inclement weather.

5 – Failed to ensure that water and other surface contaminants were directed away from the pedestrian walking surface used by the Plaintiff and other tenants and visitors within the premises.

6 - Failed to ensure that the stairs within the premises complied with the requirements of Australian/New Zealand Standard AS/NSZ 4663-2004 Slip resistance measurement of existing pedestrian surfaces.

7 – Provided a pedestrian walkway that was below recommended safe levels for normal walking access (walking).”

9. Mr Dorman’s evidence, amongst other things, was that he went to Amber tiles and sought their expertise as to suitably slip resistant tiles for public access means and was advised that the tiles the Body Corporate eventually purchased were appropriate, being First Quality Carrera stone Rococco tiles with a 1210 Class W slip resistance. The work to lay the tiles was carried out in August 2004, about one (1) year before the accident. [Exhibit 6 – Order confirmation – Paid 14/8/04 – 30/8/04].

10. Mr Fogg conceded that 1210 tiles were fit for the purpose of public access. This disposed of his criticisms 1 and 3 referred to above. I do not see that it was necessary and thus unacceptably negligent for the Body Corporate not to have obtained some sort of professional expert assessment of the tiles and stairs within such a short time of them being laid. Mr Fogg indicated that they were unlikely to have deteriorated in such a short time from then or even longer.

11. There is no evidence before me that the stairs and landing were not constructed in accordance with appropriate building standards. The Body Corporate sought advice from a reputable supplier of tiles as to the suitability of tiles for the purpose in question. There can be no suggestion of lack of due care in that regard.

12. The stairway is an exterior stairway and thus open to the elements. It has handrails on both sides and appears to be wider than normal. I am satisfied that there was no garden areas adjacent to the stairway that were likely to allow excess water, leaves and other debris to run off them and onto the stairs in the event of heavy rain. I am not satisfied that there was any likelihood of leaves, grass or other debris being deposited on the stairs from the street above, except perhaps in an extreme storm event leading to the overload of the gutters. I accept that Mr Dorman was unaware of heavy rain causing such material to be washed onto the stairs. His uncontested evidence is that there were no grassed areas above the stairs. Ms Boyd says that after her fall, she complained to the tenant of the unit she was hoping to rent and on her return up the stairs, noticed that the landing had “pools of water with dirt and leaves washed down from above”.

13. If that was the case, and I see no reason not to accept that it was, I am satisfied that this was an unusual situation, probably created by the heavy rain that had been falling just before Ms Boyd arrived.

14. At this point, it is perhaps important to look at what the Body Corporate actually knew about any slip potential of the tiles, as opposed to the inherent danger imposed for persons using any stairway, remembering that such persons have an obligation to take reasonable care for their own safety.

15. The tiles on the public walkways were replaced in August 2004. Ms Boyd suffered her injury on 15/5/05. That injury was not drawn to the attention of the Body Corporate until process was served some years later. On 26/9/05, the Body Corporate received a petition from the occupants of seven (7) units (exhibit K). This letter raised the issue of a cover over the walkway from level 3 to the car-park, which is nowhere near where the Plaintiff fell. The letter said, amongst other things, that “Apart from getting wet whilst crossing the walkway which causes difficulty for all, particularly the elderly, it is extremely dangerous underfoot with several residents having fallen and injured themselves. Owners have contacted the Committee on numerous occasions and have apparently been ignored”. Apart from the document itself, there is no evidence of which residents had fallen, where and why.

16. On 22/10/05, the Body Corporate received a letter from the female resident of unit 11, Mrs Callaghan (exhibit H). The reason for this letter seems to have been the proposal to cover the walkway referred to in exhibit K, which would appear to be adjacent to her unit and which would block some of the light to her kitchen. In her letter she says, amongst other things, “I am well aware of the new tiles and the danger they present when wet. Same applies to the front entrance, steps, and walkways, despite partial cover. As we live in drought conditions 80% of each year, the tiles are the problem not rain – unless they are scuffed or treated with “Non Slip”.

17. On 27/11/05 the Body Corporate, at an executive meeting, approved a covered walkway on level 3 and accepted a quote for a non-slip surfacing over the

“Floor tiling to main entrance form letterboxes to front doors. Foyer areas from car parking levels 1 & 3. BBQ area quotation: $34,930.”

This work was apparently carried out on 12 December 2005 (exhibit 4).

18. At an executive committee meeting on 14/2/06, the cleaner was requested to wash down the tiles and stairs at the front entry on a weekly basis:

“Cleaning of tiles at front entrance - Cleaner to be requested to wash down tiles and stairs at front entry on a weekly basis.” (exhibit J).

19. Mr Dorman indicated in evidence that the Body Corporate had not received any complaints, reports of accidents or complaints of slipperiness in regard to the tiles in question after they had been laid. He said that the non-slip material had been placed on the tiles because someone had slipped over at the intercom area, which is at a point past the stairs in question, and which, I presume, is somewhere inside the buildings.

20. He said that if someone wanted to complain about anything in regard to the unit complex, they were asked to put it in writing. Given the nature of unit complexes and the responsibilities of bodies corporate, I do not see Mr Dorman’s attitude as somehow significant in regard to a neglect of duty as seems to be suggested by Mr Beale, counsel for the Plaintiff. If a resident’s concern is of sufficient seriousness to require attention by the Body Corporate, I see no reason why asking for it to be put in writing constitutes some sort of dereliction of duty.

21. I am not prepared to speculate on the generalised complaints referred to in exhibits H and K and, consequently, I am not satisfied that there were any relevant complaints to the Body Corporate, prior to Ms Boyd’s accident, such as to place them on notice as to any problem with the tiles on the stairs.

22. Another criticism made of the Body Corporate was that they did not have a system of keeping the stairs clean. In fact, according to Mr Dorman, the stairs were swept twice a week and, prior to February 2006, the cleaner was asked to wash down the tiles and stairs at the front entry, on a weekly basis. However, it is difficult to see what relevance such a system, or lack thereof, had to the particular circumstances of this accident, which occurred shortly after heavy rain when the landing in question was extremely wet.

23. There is no question that the Body Corporate was responsible for the care and maintenance for the public access way in question. Much is made of the Body Corporate’s decision to coat the public access ways with a non slip coating in December 2005 and the complaint letter of Mrs Callaghan, exhibit H, that the new tiles were dangerous when wet. It needs to be born in mind that these remarks were made in the context that she was endeavouring to persuade the Body Corporate not to have an awning over the access way outside her kitchen, as it would reduce the available natural light. I dare say all tiles and stairs are more dangerous when wet than when dry. However, there is no evidence of any accident on the stairs prior to Ms Boyd’s fall and, I might say, none since, despite the fact that the same tiles are still there, and despite that fact that after a non slip coating was applied, Mr Fogg measured their slipperiness when wet at 31. I am not prepared to accept Mr Beale’s criticism of Mr Dorman’s evidence as being faulty or unreliable, even having regard to exhibits H and K. In my view, his evidence was no more or no less reliable than Ms Boyd’s, having regard to all the circumstances and the passage of time.

24. Defence counsel, Mr Cavanagh made a number of points. Whilst it is true that, according to Mr Fogg, Ms Boyd said to him that she did not see water on the landing until after her accident but in evidence said that she saw it before, I do not see that a great deal turns on that inconsistency. Although complaint was made as to the level of lighting on the stairs, it appears to have been adequate enough for Ms Boyd to see the water on the landing before she stepped into it. Perhaps it was insufficient to show leaves and detritus within the water because those things were not observed until some short time after the event, although there is the possibility of course that they could have been deposited there between Ms Boyd falling and her going back up the stairs after speaking to the unit resident. I note that in photos 4, 5, and 6 of exhibit 1, photo 1 of exhibit 3 and particularly photo 2 of exhibit 2, there is a lighting fixture near the doorway leading off the landing in question. Other lights are clearly visible in the portico and the gardens. In any event, both experts found the lighting level to be adequate for the purpose.

25. The submission regarding running down the stairs I have already dealt with. Related to that issue, Ms Boyd said that she was not aware of the hand rails and certainly did not think to use them as she stepped into the water. As to what difference that would have made to any slip and fall is speculative in the extreme, bearing in mind that if the hand rail was also wet, as it probably was, it would be unlikely to provide a secure reference point. I have also dealt with the prospect of leaves and debris washing down from a garden and the lighting.

26. Mr Beale suggested that the landing was perhaps not properly constructed because it allowed water to pool in it. However, neither expert felt there was any constructional problem and nothing has been suggested as a means of overcoming such a problem, if it indeed is one, short of covering the whole walkway. That hasn’t been suggested and in any event would not prevent water getting on the tiles.

27. I agree that the Body Corporate’s decision to coat the access way with a non slip material may have been a prudent response to Mrs Callahan’s complaint, but that does not mean that the failure to do that at some earlier point in time constitutes actionable neglect of a duty of care that existed at the time of injury. Indeed, there is a quandary posed by the application of this substance in that Mr Fogg’s and Dr Cook’s measurements of the difference in slip factor when wet after the application of the substance, disagree fairly significantly. Both used the same type of testing equipment but the different results cannot be readily reconciled or explained. Despite the fact that Mr Fogg gave evidence and Dr Cook did not, apparently being unavailable, there are a number of reasons why I feel Dr Cook’s measurements of the slip resistance are likely to be more accurate.

(1) Mr Fogg substantially under-estimated the age of the complex whereas Dr Cook did not.

(2) Dr Cook tested in three places and Mr Fogg in two.

(3) Dr Cook’s results had internal variations where as Mr Fogg’s were substantially all the same.

(4) Dr Cook’s results coincided with his tactile assessment of the slipperiness of the tiles.

(5) Dr Cook’s results coincided with the stated slipperiness factor of the tiles as purchased.

(6) There was a misconception, it seems to me, by Mr Fogg of Dr Cook’s results. Dr Cook’s average BPN of 42 relates only to the tile on which he understood the plaintiff slipped. His overall test results from that tile and the two other sites close by gave a BPN of 47 (see paragraph 33 and 34 of his report). There is no doubt that a reading of 47 equates to a low slip risk factor but a reading of 42 only equates to a moderate slip risk factor. (see Fogg’s report at 2.4 page 12). As the precise tile on which the Plaintiff slipped cannot be accurately determined, I do not see any criticism of Dr Cook’s findings that the tiles generally presented a low risk of slipping, consistent with the stated manufacturers description.

28. Another submission made was that there was no sign that the stairs were slippery when wet. I am unaware of any necessity for such signage except where, for some reason out of the ordinary, a walkway becomes wet, such as when cleaning of a public area takes place. To require all public walkways exposed to the elements to have signage warning of the obvious risk posed by the elements, cannot be a reasonable response to a perceived risk of injury, unless the surface is for some reason, more slippery than it should be expected to be. Stairs are inherently and obviously dangerous and a person using them has to take care for that person’s own safety. The duty of the occupier is only to take that care that is reasonable under the circumstances.

29. The defence submissions made reference to much more being required to establish negligence other than the fact of slipping, “particularly in the context of the liability of an occupier of domestic premises”. As with most situations, the occupier’s liability will depend upon the nature of the premises. What may be appropriate and reasonable for one place would not be for a different place. What applies in that regard to occupiers of a supermarket does not necessarily apply to a home owner. By the same token, what might be appropriate and reasonable for a home owner, may not be so for the body corporate of a large block of home units.

30. Given the age and apparent suitability of the tiles, the Plaintiff has failed to establish that the Body Corporate were failing in their duty of care to her by not having a safety audit prior to her fall. Apart from the dubious nature of such an audit, it is unlikely to have turned up anything substantially different to what was observed and measured by the experts.

31. It was suggested that the evidence of discolouration in the grout on the stairs somehow established either a lack of appropriate cleaning or the existence of water flowing where it should not have, and presumably, depositing dirt and/or mould or moss on the stairs, resulting in their becoming slippery. Unless the stairs were steam or pressure cleaned, just washing the stairs would tend to contribute to the build up of mould. In any event, there is simply no evidence from anyone that, at the time, mould, fungus or moss has ever been on the stairs and created a slippery hazard. None of the residents the plaintiff relies on make any mention of dirt, leaves, mould or moss as being something that was firstly ever on the stairs, or that made the stairs slippery or that was commonly ever on the stairs.

32. Ultimately, I am not satisfied on the balance of probabilities that the Plaintiff has established that there was any lack of reasonable care on the part of the Body Corporate that was instrumental in her fall.

33. In any event, I would find that the Plaintiff was substantially responsible for what happened. It had been raining heavily. She saw the water on the landing. She chose to step into it without taking hold of the hand rail or altering her approach in any way. She would, in my view, have been 75% responsible for the accident if primary liability had been found in the Body Corporate.

34. Regrettably, there must be a verdict for the Defendant and judgment accordingly.

Damages

35. If my assessment of liability is incorrect, I should, briefly proceed to deal with the issue of damages.

36. There is no dispute as to her injuries. She suffered a sever injury to her left wrist, involving a fracture of the scaphoid and an injury to the ligamentous support structures of the carpal bones. She has required further surgery in February 2007 but the ligament was too badly damaged to repair and two bones had to be fused by pinning. She has early degenerative arthritis of the second CMC joint. She has significant muscle wasting in the left hand and may require further fusion of the wrist.

37. At the time of the accident she was employed as a day care assistant in a pre-school for very young children. She earned $500 nett per week. After some time off work, she returned to that industry but at a different place where the children were older and thus did not require her to use both hands as much as previously. However, her earnings in this new place were greater than her pre-injury earnings and thus she sustained no economic loss. She has been found unfit for her pre-injury occupation as far as very young children are concerned.

38 She has had various times off work due to her injury, but when in employment has earned more and sometimes substantially more than her wage as at the date of the accident. Apart from the initial re-employment in the industry, she has since married and because her husband is in the mining industry, she has been located in fairly remote areas where employment opportunities are available and where the salaries and conditions offered are substantial. She and her husband presently live in Western Australia near Karratha. Although she obtained a job doing clerical administration work, she stopped after 3 weeks because it involved a 2-hour drive each day, which was difficult with her injury.

39. I am satisfied that Ms Boyd’s general employability on the open market has been significantly reduced because of the physical strictures she has. I am also satisfied that these problems are likely to become worse in the future. I accept that she has difficulty with a large number of household tasks and that when she has children will need assistance, especially when they are very young. Of course, such a time in the future would also be a period during which she would be unable to work. Dr Champion suggests that she has a 5% overall inability to earn, whereas Dr Harvey Sutton puts it at 40%.

40. It is also apparent that Ms Boyd would have had the capacity to earn at a higher rate than she was receiving as at the date of the accident. Indeed, she has since the accident, on a number of occasions, earned more in wages and sometimes significantly more. However, the ability to sustain any employment involving sustained use of her left hand either by the work itself or travel thereto, is, in my view, substantially restricted. It is unlikely that, but for the accident, any other vicissitudes would have interfered with this ability, so that any reduction of the appropriate sum should be of the order of 15%.

41. As to Non Economic Loss, for the reasons given I would assess the Plaintiff’s injury as representing 45% of a most serious case.

42. The out of pocket expenses amount to $926.00

43. I see no reason not to accept Ms Boy’s evidence or the report of Trudie Warner, an occupational therapist, as well as the general thrust of the medical reports, particularly Dr Harvey Sutton at pages 9 and 10 of her report. I am satisfied that she does require domestic and handyman assistance and will need such assistance if she has children, at least for that period before they begin attending school. There is no evidence of any past gratuitous assistance but she has said that she would employ someone to help around the house. I would allow the Plaintiff three hours per week at $25 per hour. I am also of the view that she will, in the future, require ongoing gratuitous assistance for in excess of six months and for more than six hours per week.

44. Whilst an attempt was made to quantify her future economic loss, it was eventually conceded that the appropriate way to deal with that was by way of a general figure only. It is, in my view, impossible to mathematically calculate in any meaningful way, any loss that she will suffer and that this issue should be approached using the “cushion”, “buffer” or “global” concept. This figure also includes superannuation loss and is discounted as already indicated. I would allow the plaintiff $110,000.

45. A report from Robert Nielson Partners suggest that Ms Boyd’s past economic loss is in the vicinity of $22,000. However, that cannot be correct, as the only times she has been unable to work because of this accident has been 5 weeks after the accident, about 3 months in January 2007 when she had the operation, a further period of a few weeks in 2008, as well as a period mid 2007 when she had an operation to remove the pins from her left wrist. All in all, a figure of $13,000 should be sufficient to cover that loss.

46. There will be a verdict and judgement for the defendant. The plaintiff should pay the defendant’s costs. If any further or different order as to costs is to be sought I give leave to the parties to place the matter back in the list before me at an appropriate time.

J S Williams

Judge

30 May 2008