Carusi v St Mary's Anglican Girls School Inc
[2024] WASCA 137
•8 NOVEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CARUSI -v- ST MARY'S ANGLICAN GIRLS SCHOOL INC [2024] WASCA 137
CORAM: MITCHELL JA
HALL JA
VANDONGEN JA
HEARD: 16 AUGUST 2024
DELIVERED : 8 NOVEMBER 2024
FILE NO/S: CACV 102 of 2023
BETWEEN: ROSA CARUSI
Appellant
AND
ST MARY'S ANGLICAN GIRLS SCHOOL INC
First Respondent
WEST COAST DANCE FESTIVAL INC
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEWART DCJ
Citation: CARUSI -v- ST MARY'S ANGLICAN GIRLS SCHOOL INC [2023] WADC 103
File Number : CIV 3647 of 2018
Catchwords:
Tort - Personal injury - Negligence - Occupiers' liability - Appellant suffered injury when she fell while moving between levels of an aisle at a performing arts centre while house theatre lights were dimmed - Whether trial judge properly identified risk of harm - Whether appellant's formulation of risk of harm was too narrow - Whether risk of harm was foreseeable and 'not insignificant' - Whether respondent breached its duty of care to the appellant by failing to install an intermediate step between levels of the aisle and to install additional floor lighting in the aisle - Whether any breach of duty was a cause of the appellant's injury - Turns on own facts
Legislation:
Civil Liability Act 2002 (WA), s 5B, s 5C, s 5D
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | D J Bayly and J N Trigg |
| First Respondent | : | F A Stanton and D S Vijayakumar |
| Second Respondent | : | No appearance |
Solicitors:
| Appellant | : | A & E Legal |
| First Respondent | : | Wotton + Kearney Lawyers |
| Second Respondent | : | Gilchrist Connell |
Case(s) referred to in decision(s):
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
Bunnings Group Ltd v Giudice [2018] NSWCA 144; (2018) Aust Torts Rep 82‑402
Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183; (2018) Aust Torts Reports 82-409
Collins v Insurance Australia Ltd [2022] NSWCA 135; (2022) 109 NSWLR 240
East Metropolitan Health Service v Ellis [2020] WASCA 147
Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65; (2020) 103 NSWLR 103
Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; (2014) 201 LGERA 314
Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 90 ALJR 679
Russell v Carpenter [2022] NSWCA 252
Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562
Tame v The State of New South Wales [2002] HCA 35; (2002) 211 CLR 317
Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2022] HCA 11; (2022) 273 CLR 454
The State of New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Venues NSW v Kane [2023] NSWCA 192
Warren v Coombes (1979) 142 CLR 531
Wyong Shire Council v Shirt (1980) 146 CLR 40
JUDGMENT OF THE COURT:
Summary
The appellant (Mrs Carusi) fell and suffered an injury while descending a step in a theatre aisle during a dance competition at the Lady Wardle Performing Arts Centre (PAC). She claimed damages from the first respondent, St Mary's Anglican Girls School Inc (St Mary's), as occupier of the PAC. Mrs Carusi claimed St Mary's breached its duty of care under the common law and the Occupiers' Liability Act 1985 (WA) (OLA). St Mary's made a third party claim against the second respondent, West Coast Dance Festival Inc (WCDF), which used the PAC for a dance competition pursuant to a hire agreement at the time Mrs Carusi fell.
On the morning of 3 October 2015, Mrs Carusi's daughter was a participant in a dance competition conducted by WCDF at the PAC. Mrs Carusi was a volunteer at the dance competition. Mrs Carusi ascended the right centre aisle and collected reports from the dance adjudicator, who sat some rows up from the ground floor level. Mrs Carusi then descended the same aisle to the ground floor level where she fell and injured her right ankle on the last step. At trial and on appeal, Mrs Carusi contended that St Mary's breached its duty of care by failing to install an intermediate step at the last step and failing to sufficiently illuminate the area of the last step.
On 1 September 2023, the trial judge dismissed Mrs Carusi's action on the basis she had not shown, on the balance of probabilities, that her injuries were caused by the negligence or breach of statutory duty of St Mary's. Accordingly, St Mary's third party claim against WCDF was also dismissed.
In dismissing Mrs Carusi's claim against St Mary's, the trial judge identified the relevant risk of harm as being the 'risk of a person misplacing a step or tripping, and falling, when descending the aisle in the PAC and suffering personal injury'. Her Honour held that this risk was neither foreseeable nor 'not insignificant'. Her Honour was also not satisfied that a reasonable person in St Mary's position would have added an intermediate step or increased the illumination as a precaution against that risk of harm. Further, the trial judge found that, if St Mary's breached its duty of care by failing to install an intermediate step or additional lighting, Mrs Carusi had not established that breach to be a cause of her injury.
Mrs Carusi now appeals against the dismissal of her claim against St Mary's. For the following reasons, while some of Mrs Carusi's grounds of appeal are established, the appeal must be dismissed. In summary:
1.In relation to breach of duty, the trial judge properly formulated the relevant risk of harm. The trial judge ought to have found that risk of harm to be foreseeable and not insignificant. However, the evidence did not establish that a reasonable person in St Mary's position would have installed an intermediate step or additional lighting as a precaution against that risk of harm.
2.In relation to causation, having rejected Mrs Carusi's account of the incident, the trial judge ought to have considered the inferences which might nevertheless be drawn as to the cause of Mrs Carusi's injury. However, the evidence did not establish, on the balance of probabilities, that the absence of an intermediate step or additional lighting materially contributed to Mrs Carusi's injury.
Therefore, the trial judge was correct to conclude that St Mary's had not been shown to have breached its duty of care, and that any alleged breach of duty had not been shown to be a cause of Mrs Carusi's injury.
Findings of primary fact
The trial judge made the following findings of primary fact. None of those findings are challenged on appeal.
Construction of the PAC
In 1995, the St Mary's school board decided to construct a performing arts centre.[1] Toussaint Rayner Associates Pty Ltd was engaged to provide an initial design concept and to work with architects to be approved by St Mary's in the design of the PAC.[2] RJ Ferguson and Associates Pty Ltd was selected by St Mary's as architects.[3] The contract for the building of the PAC was awarded to GEO.A.Esslemont & Son.[4] The City of Stirling issued the building licence for the PAC on 30 September 1998.[5]
[1] Carusi v St Mary's Anglican Girls School Inc [2023] WADC 103 (primary decision) [38].
[2] Primary decision [39].
[3] Primary decision [40].
[4] Primary decision [44].
[5] Primary decision [45].
The PAC was officially handed over to St Mary's on 3 December 1999, when St Mary's assumed control and occupation of the PAC.[6]
Layout of the PAC
[6] Primary decision [47] - [48].
The PAC consists of a stage, backstage areas, seating for 515 people, a control room at the rear of the auditorium, a lower foyer and upper foyer. There are steps and changes in level throughout the PAC.[7]
[7] Primary decision [52] - [53].
The seating in the auditorium consists of 13 rows, 11 of which are tiered. The first two rows are removable so that the area in front of the stage can be converted into an orchestra pit. The rows are labelled from A at the front through to N at the back.[8]
[8] Primary decision [54] - [55].
The seats are accessible via four aisles, one on each side of the auditorium and two in the middle, which have been described as the right and left centre aisles. Each of the aisles has a landing at each row.[9]
[9] Primary decision [56].
Seats in rows A and B are on the floor adjacent to the stage. Rows C to N are each located on a separate level. From rows C to J, there is one intermediate step between each row and the row below it. From rows K to N, there are two intermediate steps between each row and the row below it. The floor of the seating area is carpeted. On the nosing edge of each step, there is an anti-skid strip known as a 'nosing strip'.[10]
[10] Primary decision [59].
The layout of the right centre aisle of the auditorium is depicted in the following photographs taken on 26 April 2017:[11]
[11] Primary decision [57] - [58].
The horizontal plane of a step or landing is called a 'going' and the vertical height is the 'riser'.[12] At the time of Mrs Carusi's fall, the going of the landings in the aisle that allowed people to access the rows of the seats was in the order of 93 cm. The evidence did not establish the going of the steps in the aisle. The risers of the steps were as follows:[13]
[12] Primary decision [61].
[13] Primary decision [283].
Row M
175 mm
155 mm
160 mm
Row L
165 mm
155 mm
160 mm
Row K
205 mm
200 mm
Row J
205 mm
210 mm
Row H
200 mm
205 mm
Row G
180 mm
180 mm
Row F
175 mm
175 mm
Row E
160 mm
155 mm
Row D
135 mm
130 mm
Row C
250 mm
Row B
N/A
Row A
N/A
No localised aisle light on the side of the aisle seat has been fitted to either row A or row B since Mrs Carusi's fall. There is a localised aisle light on a seat adjacent to the aisle at row C which was in existence at the time of Mrs Carusi's fall. After the school year ended in 2018, St Mary's replaced the carpet in the aisle. At this time, St Mary's replaced the nosing strips and installed LED strip lighting below the nosing edge of each of the steps and landings in the aisle. Also at about this time, an intermediate step between row C and row B was installed at the direction of St Mary's director of business operations, Ms Houwen, without any input of a professional or engineering nature.[14] The expense and difficulty of installing an intermediate step was minimal.[15]
[14] Primary decision [342], [391], [397].
[15] Primary decision [398].
The centre aisles had not changed from the time of the completion of the PAC in December 1999 until the aisles were modified after the conclusion of the school year in 2018.[16]
Use of the PAC[17]
[16] Primary decision [190].
[17] Primary decision [359].
The PAC was well utilised by people of all ages from its first use in 1999. The PAC was used on almost a daily basis, from morning until night, during school terms and outside school terms by not only the school community but also a variety of organisations including WCDF.
The range of ages and number of people using the PAC means it would have been used by people of all levels of physical ability. Given the diversity of people using the PAC, the physical and mental capacity of the users would vary significantly.
St Mary's had in place an incident management system from 1998 onwards to report accidents and incidents. In 2017 an online system was initiated. The theatre operations manager, Mr Jensen, was responsible for ensuring that the incident management system was utilised by both staff and audience members for all incidents in the PAC. He had done so since his employment in 2007. No person, except for Mr Jensen, had ever reported a stumble or fall on the right or left centre aisles before or after Mrs Carusi's fall. Mr Jensen never observed anybody fall or stumble in either of the two centre aisles.
Lay witnesses never observed anybody stumble or fall in either of the two centre aisles or had any difficulty descending the aisles.
As in any theatre, audience members leave the PAC during performances when the main 'house' lights are turned off.
The incident on 3 October 2015
On the morning of 3 October 2015, Mrs Carusi's daughter was a participant in a dance competition conducted by WCDF at the PAC. Mrs Carusi arrived at the PAC that morning at about 8.30 am.[18]
[18] Primary decision [3], [103].
Mrs Carusi 'put her hand up' to help as a volunteer at the competition. Mrs Carusi knew what was expected and what she had to do because she had been to many WCDF dance competitions and observed the volunteers many times.[19]
[19] Primary decision [3], [161].
Mrs Carusi and another mother, Ms Walker, volunteered to collect reports, return them to the front desk, and distribute trophies. Mrs Carusi and Ms Walker agreed how to do the job between themselves. Initially, Ms Walker collected the reports and returned them to the foyer and Mrs Carusi presented trophies. They then swapped roles, and it was Mrs Carusi's turn to collect the reports and return them to the foyer.[20]
[20] Primary decision [162] - [163].
Mrs Carusi ascended the right centre aisle from floor level at row A to where the dance adjudicator was at row F to collect the reports. Once Mrs Carusi had collected the reports, she descended the same aisle from row F back to the ground floor level where she fell and injured her right ankle. The section of the dance competition had finished and there was nobody on the stage. Mrs Carusi was not rushing and was not descending the aisle in a 'regular or patterned way'.[21] This was the first occasion on which Mrs Carusi had descended that part of the aisle.[22]
[21] Primary decision [164].
[22] Primary decision [454]. This passage of the primary decision is somewhat ambiguous as to whether this was the first time Mrs Carusi descended that part of the aisle on the day of the incident or the first time she had ever descended that part of the aisle. However, the passage of the reasons is to be read in light of Mrs Carusi's evidence that this was the first time she had ever gone down that part of the aisle: see trial ts 106.
There was enough light for Mrs Carusi to see the changes in level, the steps and the landings as she ascended and descended the aisle. Mrs Carusi did see the changes in level, the steps and the landings as she ascended and descended the aisle. The step down from the landing at row C to row B on the ground floor level was not unexpected.[23]
[23] Primary decision [156] - [157], [164].
Mrs Carusi knew that she was descending the aisle of the PAC. Mrs Carusi knew there were no handrails. Mrs Carusi knew the main 'house' lights in the PAC were off. Mrs Carusi knew there was an obvious risk of falling if she misjudged her footing or tripped. Mrs Carusi knew that the circumstances of her ascent and descent of the aisle required her to be careful.[24]
[24] Primary decision [439].
The trial judge found that the configuration of the aisle was such that Mrs Carusi was required to take two to three steps across the landing of each row and so there was no pattern in her gait as she descended the aisle from row F to row B.[25] Mrs Carusi's descent from row C to row B did not involve an unexpected change to a pattern.[26]
[25] Primary decision [141] - [148].
[26] Primary decision [149] - [151].
The trial judge did not make any findings as to the mechanism by which Mrs Carusi fell. It appears to have been common ground at trial,[27] and St Mary's accepts on appeal,[28] that Mrs Carusi fell as she traversed from the landing at row C to the ground floor at the step between row C to row B ('last step').
[27] See statement of claim par 4 (Blue AB 149); substituted defence pars 9.5 - 9.7 (Blue AB 160 - 161).
[28] Appeal ts 42; first respondent's supplementary submissions filed 6 September 2024, par 2.2.
Trial judge's approach
Credibility and reliability findings
The trial judge found Mrs Carusi to be an honest witness but one whose evidence was not reliable or accurate in some respects, including as to the events leading to her fall.[29] Her Honour did not accept as accurate or reliable Mrs Carusi's recollection of her descent down the aisle before her fall. She found that Mrs Carusi reconstructed the events leading to the fall rather than having a memory of how she fell.[30]
[29] Primary decision [77].
[30] Primary decision [139] - [140].
The trial judge found the other lay witnesses to be truthful, accurate and reliable in their recollection of events.[31]
[31] Primary decision [78].
Two expert witnesses gave evidence on matters relevant to this appeal. Mrs Carusi adduced the evidence of Dr Steven Chew, an engineer who also claimed to be an ergonomist. St Mary's adduced the evidence of Dr John Culvenor, an engineer and ergonomist.
The trial judge found that the only relevant evidence of Dr Chew concerned the measurements he made on his two visits to the PAC and his evidence as to the usual step lengths of a person.[32] Her Honour did not accept Dr Chew's evidence as to the cause of Mrs Carusi's fall,[33] because:
1.Dr Chew did not carry out a prospective risk assessment but rather a retrospective investigation of the cause of the fall;[34]
2.Dr Chew relied upon information supplied by Mrs Carusi's solicitors that had not been established by the evidence;[35]
3.Dr Chew compromised his independence by telling Mrs Carusi that the lighting of the PAC was a factor in her fall, without knowing the precise lighting that was in operation on the day of her fall and without measuring the illumination in the PAC;[36] and
4.Dr Chew attributed blame to the height of the last step without setting out the relevant circumstances, including the going dimensions of the steps and landings in the aisle, and gave no basis for expressing the opinion that those measurements were not relevant.[37]
[32] Primary decision [257].
[33] Primary decision [258].
[34] Primary decision [259] - [260].
[35] Primary decision [261] - [267].
[36] Primary decision [268] - [271].
[37] Primary decision [272] - [282].
Given the limited aspects of Dr Chew's evidence which the trial judge accepted, her Honour found it unnecessary to determine whether Dr Chew's opinions fell within the field of expertise of an ergonomist.[38]
[38] Primary decision [284].
The trial judge accepted that Dr Culvenor was qualified to give expert evidence in the field of ergonomics and accepted his evidence that a riser height of 250 mm was not outside the normal range and was not unreasonable.[39]
Duty of care
[39] Primary decision [352] - [358].
The trial judge noted that it was not in dispute that St Mary's, as the occupier of the PAC, owed Mrs Carusi a duty of care as set out in the OLA.[40]
Breach of duty
[40] Primary decision [165] - [168].
Her Honour recognised that s 5B of the Civil Liability Act 2002 (WA) (CLA) applied in considering whether there had been a breach of the duty.[41] Section 5B provides:
[41] Primary decision [169] - [170].
5B.General principles
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
Risk of harm
The trial judge identified the risk of harm as the 'risk of a person misplacing a step or tripping, and falling, when descending the aisle in the PAC and suffering personal injury'.[42] The trial judge said that the risk of harm existed irrespective of heights and/or height differences of the changes in level, steps and landings in the aisle.[43]
[42] Primary decision [182].
[43] Primary decision [184].
The trial judge rejected Mrs Carusi's formulation of the risk of harm, which focussed on the height of the 'anomalous step' and the height differences of the higher landings and steps, as too narrow.[44]
Foreseeability of risk of harm
[44] Primary decision [179].
The trial judge concluded that the identified risk of harm was not a risk of which St Mary's ought to have known.[45] Her Honour found that there was nothing about the right centre aisle or the corresponding left centre aisle which would have alerted St Mary's staff to the existence of a potential hazard.[46]
[45] Primary decision [364].
[46] Primary decision [359].
In reaching this conclusion, the trial judge found that the large number of people of varying ages and abilities who used the PAC, and in particular the aisles in the PAC, with no issue was a factor which had particular significance and was highly relevant in determining whether St Mary's ought to have known of the risk of harm.[47]
[47] Primary decision [362].
However, when finding that there was no duty to warn pursuant to s 5O of the CLA, the trial judge found that the risk of tripping or falling when ascending and/or descending aisles in theatres in dim lighting with no handrails was an 'obvious risk' that required no warning.[48] When finding that Mrs Carusi was contributorily negligent, the trial judge referred to the 'obvious risk of falling if she misjudged her footing or tripped'.[49]
Whether any risk of harm was not insignificant
[48] Primary decision [381], [383] - [384].
[49] Primary decision [439].
The trial judge was not satisfied that the risk of harm could be described as 'not insignificant'.[50] The trial judge identified the following matters as leading to this conclusion:
1.The centre aisles had been used by a range of people of various ages from kindergarten through to advanced adult age for some 15 years before Mrs Carusi's fall. They were then used without incident until the end of the 2018 school year when the entire aisle was modified.[51]
2.Aisles of this kind are commonly encountered in performing arts centres, theatres, auditoriums and concert halls. Aisles in theatres and performing arts centres are features of everyday life. Members of the public, including Mrs Carusi and other people who use the aisle, are well used to ascending and descending aisles in theatres and auditoriums. Members of the public adjust their gait to negotiate height differences in changes in level, steps and landings.[52]
3.There was no obvious defect in the aisle steps and landings at the time of Mrs Carusi's fall.[53]
Precautions which a reasonable person would have taken
[50] Primary decision [375].
[51] Primary decision [370].
[52] Primary decision [371] - [373].
[53] Primary decision [374].
The trial judge identified the precautions which Mrs Carusi contended would have been taken by a reasonable person in St Mary's position as installing localised lighting and installing an intermediate step (as had been done after the 2018 school year) at the time of taking possession of the PAC or soon thereafter.[54]
[54] Primary decision [390].
The trial judge rejected the contention that a reasonable person would have installed localised lighting in the following terms:[55]
I am not satisfied that in all the circumstances a reasonable person in the position of St Mary's would have or ought to have installed a localised aisle light at Row B. Row B was a removable row of seats. That precaution was not possible. That precaution to the present day has not been taken.
Furthermore as I have found, I am satisfied that on the evidence, Mrs Carusi could see the changes in level, steps and landings in the aisle when Mrs Carusi ascended the aisle to collect the reports and when Mrs Carusi descended the aisle immediately after collecting the reports. I am supported in this finding by the observations of Mr Jensen. He could see the changes in level, steps and landings in identical lighting to that Mrs Carusi encountered on the day of her fall.
[55] Primary decision [394] - [395].
The trial judge rejected the contention that a reasonable person would have installed an intermediate step as St Mary's had done in 2018 in the following terms:[56]
I accept that the expense and difficulty of installing an intermediate step was minimal. However, having regard to the expert evidence of the ergonomist, Dr Culvenor, I am not satisfied that the height of 250 mm was so outside any normal range, that, when coupled with the width of the landing at Row C of 93 cm, that Mrs Carusi walked across before stepping down, was a risk greater than the risk inherent in any other aisle in a theatre or PAC.
In circumstances where steps will always pose a risk of injury to a person, I am of the view that there is nothing to suggest that the subsequent installation of the intermediate step increased or decreased the overall risk of a person misjudging their footing and/or tripping when descending the aisle.
I am not satisfied that, in all the circumstances, a reasonable person in the position of St Mary's would have, or else ought to have, installed an intermediate step against the risk of harm.
Causation
[56] Primary decision [398] - [400].
The trial judge made findings as to whether Mrs Carusi had made out her 'claim in causation' against the contingency that her Honour was wrong in her conclusion that there was no breach of duty.[57] After referring to s 5C and s 5D of the CLA, the trial judge said:[58]
On the basis of the existing evidence and the findings that I have made, it is not possible to be satisfied that the height of the 'last step' and/or the lighting played any causative role in Mrs Carusi's fall.
As I have set out earlier in these reasons Mrs Carusi could see the changes in level, the landings and steps as she ascended and descended the aisle.
Mrs Carusi has not shown it to be more probable than not that, but for the absence of an intermediate step, she would not have fallen.
I am of the view that the absence of an intermediate step did not cause or materially contribute to the occurrence of Mrs Carusi's injury.
Mrs Carusi has not shown it to be more probable than not that, but for, the absence of an intermediate step and localized lighting at Row C/B, she would not have fallen. Mrs Carusi has not discharged the onus that remains on her.
Contributory negligence
[57] Primary decision [401].
[58] Primary decision [408] - [412].
The trial judge addressed the question of whether, if she was wrong in her conclusion about St Mary's liability, Mrs Carusi was contributorily negligent.
The trial judge rejected the allegation that Mrs Carusi was distracted or rushing as she descended the aisle.[59] However, the trial judge found Mrs Carusi to have been contributorily negligent in the following terms:[60]
[I]n this case, Mrs Carusi knew that she was descending the aisle of the PAC. Mrs Carusi knew there were no handrails. Mrs Carusi knew the main lights in the PAC were off. Mrs Carusi knew there was an obvious risk of falling if she misjudged her footing or tripped. Mrs Carusi knew that the circumstances of her ascent and descent of the aisle required her to be careful.
Having regard to the statements of principles and applying the principles in s 5K of the CLA, I find that contributory negligence on the part of Mrs Carusi is established and assuming the most likely breach was her failure to take reasonable care in descending the aisle, I would assess Mrs Carusi's contributory negligence at 30%.
Other matters
[59] Primary decision [436].
[60] Primary decision [439] - [440].
The trial judge dealt with, and dismissed, the third party claim by St Mary's against WCDF.
The trial judge also made a provisional assessment of Mrs Carusi's damages (before making any deduction for contributory negligence) in the amount of $1,191,278.34.
There is no challenge in this appeal to either of the above findings. It is therefore unnecessary to set out the detail of the trial judge's reasoning in respect of these matters.
In the course of considering whether St Mary's breached its duty of care, the trial judge considered whether the right centre aisle had been constructed otherwise than in accordance with the Building Code of Australia (BCA) and the Health (Public Buildings) Regulations 1992 (WA) (Regulations). The BCA and the Regulations referred to 'steps' and 'landings'. The trial judge accepted Dr Culvenor's evidence that the drop between row C and row B was a change of level rather than a 'step'. The trial judge held that the parts of the BCA and the Regulations which provided for a lower rise of steps did not apply to the change of level between the landing at row C and the ground floor of the PAC.[61]
[61] Primary decision [313] - [314], [324] - [326].
The trial judge also considered the application of reg 39 of the Regulations, which relevantly provided for effective safety lighting to be provided for main aisles between blocks of fixed seats.[62] The trial judge found that this regulation only applied to main aisles between blocks of fixed seats, and did not apply to the removable seats in row B and row A.[63]
[62] Primary decision [334].
[63] Primary decision [335] - [336].
Grounds of appeal which challenged the trial judge's findings as to the application of the BCA and the Regulations were abandoned when the grounds of appeal were amended. It is therefore unnecessary for this court to further consider the trial judge's findings as to those matters.
The appeal to this court
Mrs Carusi appeals against the order dismissing her claim against St Mary's essentially on six grounds.
Breach of duty
Grounds 1 - 5 challenge the trial judge's conclusion that no breach of duty was established.
Ground 1 contends that the trial judge erred in formulating the relevant risk of harm as being the risk of a person misplacing a step or tripping irrespective of the heights and/or height differences of the changes in level, steps and landings in the aisle. Mrs Carusi contends that the relevant risk of harm was the anomalous height of the last step in the theatre negotiated in dim light which created the (increased) risk of a person misjudging that step and falling.
Ground 2 contends that the trial judge erred in failing to assess and determine whether the relevant risk was a risk that was objectively and prospectively reasonably foreseeable.
Ground 3 contends that the trial judge erred in determining whether the risk of harm ought to have been known to St Mary's on the basis of 'whether there had been any falls at the step' prior to Mrs Carusi's fall. Mrs Carusi contends that foreseeability is rather determined by reference to the foresight of a reasonable occupier having regard to the class of persons 'who might negotiate the step in different situations and lighting conditions'.[64]
[64] Appellant's grounds of appeal (White AB 6).
Ground 4 contends that the trial judge erred in assessing and determining whether the risk of harm was 'not insignificant' without reference to the height of the last step in comparison to the immediately preceding steps, the absence of an intermediate step (unlike other steps between landings) and the class of persons who might negotiate the steps in different situations and lighting conditions.
Ground 5 contends that the trial judge erred in assessing whether there had been a reasonable response to a foreseeable risk by reference to the facts of this accident (and what may have prevented it), rather than what a reasonable occupier would have done (if anything) in the exercise of reasonable foresight in response to a foreseeable risk of harm.
Causation
Ground 6 contends that the trial judge erred in failing to find causation. Mrs Carusi contends that the assessment of causation needed to be made on the basis of what would have been the situation if an intermediate step and/or localised lighting had been installed, and whether their absence contributed to her fall. Mrs Carusi says that this required an analysis of the last step compared to the immediately preceding steps and how the state of the lighting affected the level of perception and detection of the difference.
By an application in an appeal filed on 22 August 2024, made pursuant to leave given at the hearing of the appeal, Mrs Carusi seeks leave to amend ground 6 of her appeal. The proposed amendment introduces the following contention:
The learned trial Judge erred in law and fact in failing to determine causation by way of factual inference. The learned trial Judge should have found by inference that the absence of an intermediate step and/or localised lighting, having regard to the geometry of the immediately preceding steps and the lighting in the auditorium at the time, more probably than not caused or materially contributed to [Mrs Carusi's] fall.
While St Mary's contends that the amended ground is not established, it does not oppose the grant of leave to amend. St Mary's, which has been given and taken the opportunity to make supplementary written submissions in relation to the amended ground, is not prejudiced by the late amendment of the ground of appeal. In all the circumstances, it is in the interests of justice for leave to amend the ground of appeal to be granted.
Other grounds
Grounds 7 and 8, which challenged findings made in relation to the Regulations and the BCA, and ground 9, which challenged a finding of contributory negligence, were abandoned prior to the hearing of the appeal.
Ground 10 contends that the trial judge erred in failing to find that St Mary's was negligent, and that this negligence caused the fall and injury to Mrs Carusi. This ground does not add anything to grounds 1 ‑ 6.
Grounds 1 - 5: breach of duty
Identification of the relevant risk
As noted above, the trial judge held that the relevant risk for the purposes of s 5B of the CLA was the 'risk of a person misplacing a step or tripping, and falling, when descending the aisle in the PAC and suffering personal injury'. By ground 1, Mrs Carusi contends, in effect, that the risk should have been identified as the risk of a person falling by misjudging the anomalous height of the last step in the right central aisle in dim lighting. At the appeal hearing, counsel for St Mary's appeared to support that formulation as the only risk which could be engaged with on appeal.[65]
[65] See appeal ts 20 - 23.
Despite the position adopted by the parties, in our view the trial judge formulated the relevant risk of harm at the appropriate level of abstraction.
The identification of the risk of harm to which the provisions of s 5B of the CLA are to be applied is of central importance. As Gummow J observed in Roads and Traffic Authority (NSW) v Dederer,[66] it is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be. The CLA, by various provisions which focus on the risk of harm (including s 5B), crystallises that position.[67]
[66] Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330 [59].
[67] Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65; (2020) 103 NSWLR 103 [50].
While the identification of the risk of harm is the starting point for analysis under s 5B, there is no single correct way of describing the risk of harm and there are 'leeways of choice between formulations that are more or less general or specific'.[68] In Bridge,[69] Leeming and Payne JJA identified the following matters concerning the formulation of the risk of harm:
1.The formulation of the risk of harm should identify the true source of potential injury and the general causal mechanism of the injury sustained.
2.Necessarily, the risk must be defined taking into account the particular harm that materialised, and the circumstances in which that harm occurred.
3.What is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning, because, for example, it obscures the true source of potential injury, or because it too narrowly focusses on the particular hazard which caused the injury, or because it fails to capture part of the plaintiff's case.
[68] Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183; (2018) Aust Torts Reports 82-409 [20] (Leeming & Payne JJA).
[69] Bridge [22], adopted in Menz [52].
The danger of focussing too narrowly on the particular hazard which caused the injury was illustrated by the decision of the New South Wales Court of Appeal in Port Macquarie Hastings Council v Mooney.[70] In that case, the plaintiff, who was walking along an unlit temporary footpath at night, stepped off the path and into a stormwater drain at a deviation in the path. The trial judge in that case had identified the risk of harm as a risk that a pedestrian, particularly at night, would fall into that particular drain. The trial judge held that the defendant local government could have avoided the accident by erecting barriers and flashing lights at minimal cost. The trial judge was held to have erred in focusing unduly on the steps which could be taken to avoid the particular accident.[71] The Court of Appeal formulated the risk of harm as being that a pedestrian using the footpath at night might encounter an unseen hazard, whether on the path or nearby, and suffer injury as a consequence.[72] The evidence did not establish that a reasonable person in the defendant's position would have taken any additional precautions against that risk of harm. Mooney was referred to with approval by the majority of the High Court in Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd.[73]
[70] Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; (2014) 201 LGERA 314.
[71] Mooney [81].
[72] Mooney [70].
[73] Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2022] HCA 11; (2022) 273 CLR 454 [107] (Gordon, Edelman & Gleeson JJ).
An overly particular formulation of the risk of harm can distort the resulting analysis in various ways. At the point of inquiring whether the risk is foreseeable it can unduly favour the defendant by effectively requiring the plaintiff to show that the precise way harm was suffered was reasonably foreseeable.[74] In other respects, formulating the risk of harm too narrowly can unduly favour the plaintiff at the stage of ascertaining the precautions which a reasonable person in the defendant's position would take. As in Mooney, it can lead the court to underestimate the scope of the steps which would be required to address the risk. Too narrow a focus risks the court underestimating the burden of taking precautions to avoid the risk of harm, by looking to the cost of dealing with a specific issue rather than the precautions required to remove or reduce a broader risk. Further, too narrow a focus can detract from the required prospective assessment[75] of what a reasonable person would have done before the accident occurred. This is likely to occur where the focus is placed on the particular site of an accident to which there would be no cause for a reasonable person in the defendant's position to give any attention prior to the occurrence of an accident.
[74] Tapp [108] - [109].
[75] See Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 [31]; The State of New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 [56] - [58].
Mrs Carusi's formulation of the risk of harm in ground 1 suffers from these defects. The risk identified by ground 1 is the 'risk of a person falling by misjudging the anomalous height of the lowest step or change of level whilst traversing the designated descent of the right central aisle in the PAC in dim lighting'. That risk is closely tied to the alleged circumstances of Mrs Carusi's accident on 3 October 2015. A theatre occupier in St Mary's position would have no reason to focus on that particular step in the absence of an incident occurring at that step. Further, focussing on that mechanism for the fall tends to focus attention too narrowly on the precautions (for example, increased lighting and the installation of an intermediate step) which might have been taken to prevent the particular accident, rather than the precautions which a reasonable person would take against a more general risk of persons slipping or tripping in the PAC.
In our view, the trial judge's formulation of a 'risk of a person misplacing a step or tripping, and falling, when descending the aisle in the PAC and suffering personal injury' was not too broad a formulation. If anything, by focussing on a person descending the particular aisle (as opposed to the risk of misplacing a step or tripping, and falling, when ascending and descending steps in the auditorium generally) the trial judge's formulation was too narrow.[76] However, any error in that respect would, in the circumstances of the present case, operate only in Mrs Carusi's favour.
[76] See Venues NSW v Kane [2023] NSWCA 192 [54] - [55].
We note that counsel for St Mary's submitted in effect that, having defined the relevant risk of harm in the way referred to above, the trial judge's subsequent references to risk of harm were to the different risk of harm formulated by Mrs Carusi.[77] We do not accept that submission. It is inherently unlikely that, having analysed and formulated the relevant risk of harm in the way described above, the trial judge would then employ the term her Honour had defined in some different sense. We see nothing in the primary decision which suggests that the trial judge adopted such an unorthodox approach.
[77] See appeal ts 24 - 26.
For these reasons, ground 1 is not established.
Foreseeability and significance of risk
In our view, the trial judge did err in failing to find that the risk of harm which her Honour identified was foreseeable and not insignificant.
The question raised by s 5B(1)(a) of the CLA is whether the risk of harm was foreseeable (that is, it is a risk of which the person knew or ought to have known). The common law test of foreseeability is often described as 'undemanding'.[78] In Tame, McHugh J said that an affirmative answer to the question of whether damage was reasonably foreseeable was 'usually a near certainty'.[79] While his Honour questioned the utility of the current test, it is a test which authority requires this court to apply. In Shirt,[80] Mason J described a risk which is not far-fetched or fanciful as real and therefore foreseeable. In Sullivan v Moody,[81] the High Court referred to a risk of harm which was 'foreseeable, in the sense of being a real and not far-fetched possibility'.
[78] See, for example, Wyong Shire Council v Shirt (1980) 146 CLR 40, 44 (Mason J); Tame v The State of New South Wales [2002] HCA 35; (2002) 211 CLR 317 [99] (McHugh J); Allied Pumps Pty Ltd v Hooker [2020] WASCA 72 [9].
[79] Tame [99].
[80] Shirt (47 - 48).
[81] Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 [42].
The common law threshold of foreseeability has been raised by the requirement in s 5B(1)(b) that the risk be 'not insignificant', but 'not by very much'. The provision has been described as changing the test from one which is 'undemanding' to one that is 'not particularly demanding'.[82] The terms of the legislation reflect the recommendations made in the Final Report of the Review of the Law of Negligence (commonly referred to as the 'Ipp Report'), where it was said:[83]
The Panel favours the phrase 'not insignificant'. The effect of this change would be that a person could be held liable for failure to take precautions against a risk only if the risk was 'not insignificant'. The phrase 'not insignificant' is intended to indicate a risk that is of a higher probability than is indicated by the phrase 'not far-fetched or fanciful', but not so high as might be indicated by a phrase such as 'a substantial risk'. The choice of a double negative is deliberate. We do not intend the phrase to be a synonym for 'significant'. 'Significant' is apt to indicate a higher degree of probability than we intend.
[82] See Bunnings Group Ltd v Giudice [2018] NSWCA 144; (2018) Aust Torts Rep 82‑402 [54], adopted in Collins v Insurance Australia Ltd [2022] NSWCA 135; (2022) 109 NSWLR 240 [35] - [36] and Russell v Carpenter [2022] NSWCA 252 [20].
[83] Final Report of the Review of the Law of Negligence (September 2002), par 7.15.
In our view, the risk of a person misplacing a step or tripping, and falling, when descending the aisle in the PAC and suffering personal injury was both reasonably foreseeable and not insignificant. It is a risk of injury which is inherent in the operation of a theatre auditorium with tiered levels in which people are required to descend. In considering the issues of contributory negligence and the need for a warning, the trial judge correctly identified the risk of a person descending the aisle and falling if they lost their footing as an obvious one.[84] That risk of injury was also a 'not insignificant' risk of which a reasonable person in the position of St Mary's ought to have known. The trial judge erred in failing to so hold.
[84] Primary decision [439].
The trial judge's finding that the risk of injury which her Honour identified was neither foreseeable nor 'not insignificant' was based on the lack of any history of incidents prior to Mrs Carusi's accident and the unexceptional nature of the aisle.[85] However, an injury does not need to be likely to occur or exceptional for the risk of that injury to be foreseeable and 'not insignificant'. Those are matters which may go to the perception which a reasonable person in St Mary's position would have of the magnitude of the risk of harm and the precautions against that risk which the reasonable person would take. Those matters do not, in our view, gainsay the conclusion that the risk of a person misplacing a step or tripping, and falling, when descending the aisle in the PAC and suffering personal injury was both reasonably foreseeable and 'not insignificant'.
[85] See primary decision [359] - [364], [369] - [375].
Grounds 2 - 4 are established to the extent described above.
Precautions which a reasonable person would take
The critical issue in this case, as in many negligence cases, is concerned with the identification of the precautions, if any, which a reasonable person in the position of St Mary's would have taken against the relevant risk of harm.
Ground 5 contends that the trial judge erred in assessing the precautions which a reasonable person would have taken by reference to the facts of Mrs Carusi's accident and what would have prevented that accident rather than prospectively assessing the precautions (if any) which a reasonable person in her position would have taken. There is some merit to this criticism in relation to the trial judge's findings about lighting.[86] In other respects, it is not clear that the trial judge did commit the error alleged by this ground.
[86] Primary decision [395].
It is unnecessary for this court to determine ground 5 on its terms. There is a reasonable possibility that the errors made in determining whether the risk of harm was foreseeable and 'not insignificant' affected the trial judge's analysis of the precautions which a reasonable person in St Mary's position would take against the risk of harm. In circumstances where this court can reach a conclusion as to that matter based on the primary facts which were undisputed or which, having been disputed, are established by the trial judge's unchallenged findings, it is appropriate for this court to identify those precautions for itself. [87]
[87] Warren v Coombes (1979) 142 CLR 531, 551 - 552.
The precautions which Mrs Carusi contends would have been taken by a reasonable person in St Mary's position was the installation of an intermediate step between row B and row C and the installation of localised lighting at that point. For the following reasons, the evidence did not establish that a reasonable person would have taken either precaution.
Installation of an intermediate step
A number of factors count against the conclusion that a reasonable person would have taken the precaution of installing an intermediate step between row B and row C.
First, the PAC auditorium was designed by architects in consultation with Toussaint Rayner Associates Pty Ltd (who were theatre consultants)[88] and constructed by a reputable builder. A reasonable person in St Mary's position would rely on the expertise of those designers and builders to construct a safe auditorium which complied with relevant building codes. The building which was constructed was not shown to fail to comply with any applicable building code. The local government issued a building licence based on that design.
[88] Exhibit D43; primary decision [39].
Secondly, after taking possession of the PAC, St Mary's monitored its operation and did not record any significant incidents which would call for a relevant modification in a period of over 15 years prior to Mrs Carusi's accident.
Thirdly, part of the design of the auditorium, which it was not practicable for St Mary's to alter, was the increasing vertical height of rows of audience seating moving away from the stage. This made it impossible for the series of steps in the aisle to be of the same height.[89] This is reflected in the different step heights shown in the table at [14] above. The choice for the last step was either to have one step with a height of 250 mm or two steps each with a height of about 125 mm. It would not be obvious to a reasonable theatre occupier that one option was materially safer than the other. There was social utility in the design of the auditorium as it allowed for the audience to have a better view of the stage on which productions by users of the PAC were to take place.
[89] See exhibit DE1, page 8 (Green AB 66).
Fourthly, the different height of steps between different levels of the auditorium, together with the going of the landings of each row, meant that a person descending the aisle would not have the opportunity to establish a regular gait pattern which would be interrupted by the height of the step between row B and row C. The going of the landing at row C was 93 cm. Dr Chew's evidence was that the step length of an average person is 30 cm. Therefore, ordinarily a person descending from row C to row B would take one or two steps across the landing after stepping down to row C and before stepping down to row B.[90] Later in his evidence, Dr Chew accepted that three steps would ordinarily be required if a person's step length was 30 cm.[91] Dr Culvenor's evidence was that a more usual gait would be a step length of about 60 cm,[92] which would require one or two steps to traverse the landing at row C. Although the trial judge appears to have accepted Dr Chew's evidence,[93] in our view Dr Culvenor's evidence better accords with common experience. In either event, an ordinary person would take at least one or two steps across the landing of row C before stepping down from row C to row B.
[90] Trial ts 318 - 320.
[91] Trial ts 344.
[92] Trial ts 548.
[93] Primary decision [257](b), [145] - [147].
Fifthly, the evidence of Dr Culvenor, which the trial judge accepted, was that the 250 mm riser height of the last step was a reasonable design choice which was not outside the range of heights normally experienced by people walking in various situations.[94] We agree with the trial judge's assessment of Dr Culvenor's evidence in that respect.
[94] Primary decision [354] - [358].
Sixthly, while the risk of a person misplacing a step or tripping, and falling, when descending the aisle in the PAC and suffering personal injury was foreseeable and not insignificant, the risk was not particularly high. The aisle was carpeted with a nosing strip on the edge of each step. The height of the step was not unusual, and the risk which Mrs Carusi sought to identify arose not from the height being too great but from a break in the pattern of the step height. However, as noted above, the design of the auditorium did not give a person descending the aisle the opportunity to develop a patterned gait. It was not apt to create an expectation that the next step would be the same height as the previous step.
The fact that an intermediate step was added in 2018 does not significantly inform the assessment of the precautions which a reasonable person, acting without hindsight, would have taken. That modification was made at a time when substantial renovations to the auditorium were being undertaken in any event and in response to Mrs Carusi's accident. The circumstances in which the intermediate step was added were described in the following passage of cross‑examination of Ms Houwen by senior counsel for Mrs Carusi at trial:[95]
And the reason you took that occasion to add a further step in the staircase?---We were recarpeting the auditorium so all the seats had come out and all the carpet had been ripped up. So if we were going to do something that was the opportune time.
So why did you do something at that time? Why did you put the step in at all?---Obviously we were - I was then aware of [Mrs] Carusi's accident and we just wondered if there was something we could do to make it safer.
I take it it was because you were concerned about a possible repeat accident on that step?---Not necessarily but always concerned about making things as safe as possible for staff and students and visitors.
All right. And how did that improve the safety of it?---I couldn't say it did or it didn't. We just thought that that given the accident that it might be a way to make it safer.
[95] Trial ts 819 - 820.
Having regard to the above matters, we are not satisfied that a reasonable person in St Mary's position would have taken the precaution of installing an intermediate step between row B and row C prior to the incident on 3 October 2015.
Installation of increased illumination
The first two matters referred to at [89] and [90] above also count against the conclusion that a reasonable person in St Mary's position would have taken the precaution of installing additional lighting before the occurrence of Mrs Carusi's accident on 3 October 2015. In that regard, the architect's design included a lighting plan for the auditorium which included low-level lighting down the aisles of row C to row M but not the lowest level.[96]
[96] Exhibit D64 (Green AB 90).
There was also a practical difficulty in continuing the low-level lighting to row A and row B, as the seating in those rows was removeable to allow for an orchestra pit. The trial judge's finding that the installation of localised aisle lighting at row B was 'not possible'[97] has not been challenged on appeal. That finding was supported by the evidence of Dr Culvenor, which the trial judge evidently accepted, that the removable chairs put aside the possibility of aisle lighting in row A and row B.[98]
[97] Primary decision [394].
[98] See the passage of Dr Culvenor's report set out at primary decision [332].
Further, the configuration of the theatre was not such as to suggest that further lighting was required. The existence of the last step in the aisle would be apparent from the reflection of the localised light at the end seat of row C on the nosing strip of the last step. Row B was located at the lowest level of the theatre so there was no further step down which presented a tripping hazard that required further illumination. Further, row B and row C were close to the stage which would ordinarily be lit during performances while the main auditorium 'house' lights were dimmed. While the extent of the lighting would depend on the lighting design of the staged production, the stage lighting at the PAC was considerable.[99] The light from the stage would ordinarily be expected to illuminate the centre aisles between row B and row C to some extent. That was the effect of the evidence of Mr Jensen, which the trial judge evidently accepted.[100] Mr Jensen's evidence, from his own observations on many occasions, was that he could 'clearly' see where he was putting his feet in the area close to the stage which was brighter than the rear of the auditorium, which was darker.
[99] See exhibit D91 and the explanation of the stage lighting shown on that plan by Mr Jensen, St Mary's theatre operations manager, at trial ts 1236 - 1240.
[100] Trial ts 1203 - 1204, 1258 - 1259, 1269 (evidence of Mr Jensen, reproduced at primary decision [72] ‑ [75]).
Counsel for Mrs Carusi does not point to any evidence at trial that the strip LED lighting installed along the nosing edge of the steps in 2018 was available and a feasible option when the PAC was built in 1999. Nor does counsel point to evidence as to the cost and feasibility of subsequently retrofitting strip lighting independently of the large renovation which took place in 2018. The stage lighting of the PAC had also been changed to LED lighting in 2022,[101] but Mr Jensen gave evidence that the LED lighting was introduced because it gave greater flexibility for lighting colour and was cheaper to operate,[102] rather than because it was safer.
[101] Primary decision [69] - [70].
[102] Trial ts 1263 - 1264.
Further, Dr Culvenor's evidence was that lighting was more relevant to the identification of the edge of the step than the magnitude of the descent that follows.[103] That evidence counts against the presence of lighting being an effective precaution against Mrs Carusi's formulation of the risk of injury presented by an anomalous height of a step.
[103] Trial ts 939 - 940; exhibit DE1, page 12 (Green AB 70).
Having regard to the above matters, we are not satisfied that a reasonable person in St Mary's position would have taken the precaution of installing additional illumination at row B to address the risk of a person misplacing a step or tripping, and falling, when descending the aisle in the PAC and suffering personal injury.
Conclusion as to breach of duty
For the above reasons, while the grounds of appeal are established to some extent, the evidence at trial did not support the conclusion that a reasonable person in St Mary's position would have taken either of the precautions contended for by Mrs Carusi. Ultimately, breach of the duty of care owed by St Mary's to Mrs Carusi is not established, so that the appeal must be dismissed.
Ground 6: causation
Given the above conclusion, it is strictly unnecessary to deal with ground 6, which challenges the trial judge's conclusion that Mrs Carusi had not established that any breach of duty caused her injury. However, the trial judge's finding as to causation provides an alternative basis for finding that Mrs Carusi has not established a cause of action in negligence. We will therefore deal with the ground. In summary, while aspects of the ground concerning the trial judge's approach to the question of causation are established, the judge's ultimate conclusion that Mrs Carusi had not established causation was correct.
Installation of increased illumination
It is convenient to deal firstly with the allegation that the failure to install increased illumination was a cause of Mrs Carusi's injury. The allegation must fail given the trial judge's unchallenged finding of primary fact that:[104]
1.There was enough light for Mrs Carusi to see the changes in level, the steps and the landings as she ascended and descended the aisle; and
2.Mrs Carusi did see the changes in level, the steps and the landings as she ascended and descended the aisle.
That finding was supported by the evidence of Mrs Carusi and Mr Jensen to which the trial judge referred.
[104] Primary decision [156] - [157].
The purpose of the increased illumination for which Mrs Carusi contended was to illuminate the difference in level of the last step. The fact that the change in level was visible and seen at the time of Mrs Carusi's fall precludes a finding that the lack of lighting made any material contribution to the fall or Mrs Carusi's consequent injury. That conclusion is consistent with the evidence of Dr Culvenor, who doubted that lighting in row B would have prevented Mrs Carusi's accident.[105]
Installation of an intermediate step
[105] Exhibit DE1, page 12 (Green AB 70).
Mrs Carusi's claim was fundamentally based on the following account of the accident which she gave in her evidence-in-chief:[106]
So I was walking down the steps. The steps were a step and intermediate step, a step and intermediate step, a step and intermediate step and then this unexpected difference and drop. I put my foot down - it was my right foot - down with the intention to even put that on the next step. The step wasn't there. I wasn't expecting for there not to be a step there and I - my ankle rolled.
Well, before it rolled ---?---Yes.
---what happened to - to your balance?---Well, it - it was such a difference that was so unexpected that - it felt like I was falling to the floor. It was - it - the distance was so far that it just - gravity and there was no step that I was expecting my foot to stand on. It just wasn't there. And - so the - my ankle or my foot didn't reach the floor when I was expecting it to reach the floor.
[106] Trial ts 106.
This was the only direct evidence at trial of the circumstances of the accident. While the fact that Mrs Carusi fell was not in dispute, other witnesses called at trial who were present at the PAC at the time of the accident did not witness her fall.
Mrs Carusi's evidence, if accepted, would establish that any breach of duty in failing to install an intermediate step between row B and row C was a cause of her injury. However, the trial judge rejected this evidence on the basis that it reflected Mrs Carusi's reconstruction of the events leading to her fall rather than a memory of how she fell.[107] That conclusion was supported by the passage of Mrs Carusi's cross‑examination by counsel for WCDF quoted by the trial judge.[108] In these circumstances, there is no proper basis for this court to impugn the trial judge's credibility based rejection of Mrs Carusi's account of the accident.[109]
[107] Primary decision [139] ‑ [140].
[108] Trial ts 262 - 263, set out at primary decision [137].
[109] See Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43].
However, the conclusion that Mrs Carusi's account of the accident was a reconstruction did not mean that the accident did not occur in the manner she described. Having rejected Mrs Carusi's account of the accident on the basis that it was unreliable, it was necessary for the trial judge to consider what inferences could be drawn as to the circumstances of the fall from evidence which her Honour did accept.
The trial judge did not make any findings as to how, precisely where or why Mrs Carusi tripped and fell. Ground 6 is established to the extent that it contends that the trial judge erred in failing to determine the issue of causation by factual inference.
However, it remains necessary for this court to consider the inference which should be drawn, on the balance of probabilities, from the established primary facts. In our view, this court is able to undertake that task from uncontroversial evidence and the primary facts found by the trial judge which have not been successfully impugned.
The process of drawing inferences as to causation was described by this court in East Metropolitan Health Service v Ellis.[110] As the court recognised,[111] it is well established that causation may be proved by inference. If direct proof is not available, an inference of causation may be drawn if the circumstantial evidence is sufficiently strong and coherent to support a definite inference to that effect. However, before such an inference can be drawn, there must be more than two conflicting inferences of equal probability.
[110] East Metropolitan Health Service v Ellis [2020] WASCA 147 [264] - [281].
[111] Ellis [264].
In the present case, there is no direct evidence which was accepted by the trial judge of the mechanism of Mrs Carusi's fall. As noted above, it is common ground that Mrs Carusi fell as she traversed from the landing at row C to the ground floor at the last step between row C and row B. The evidence appears to admit two reasonable possibilities for the mechanism of Mrs Carusi's fall. The first is that Mrs Carusi lost her footing as she stepped on the landing at row C or the nosing edge of the last step, or that she missed the edge of that step with her foot. The second is that Mrs Carusi lost her balance as she stepped beyond the nosing edge of the last step because the height of that step to the ground floor was unexpected. In the first scenario, the height of the step could not have contributed to the fall, while in the second scenario it might be inferred that the height of the step materially contributed to the fall and consequent injury. In the circumstances, the critical issue is whether the evidence established the second scenario to be more probable than the first scenario.
Various findings of primary fact made by the trial judge count against the second scenario reflecting the mechanism of Mrs Carusi's fall. As noted above, the findings were that Mrs Carusi saw the change in level as she descended the step and her descent from row C to row B did not involve an unexpected change to a pattern. Those findings appear inconsistent with the existence of a causal connection between the identified negligent omission (to install an intermediate step) and Mrs Carusi's fall and consequent injury.
The facts to which counsel for Mrs Carusi points in support of the inference are essentially that Mrs Carusi had successfully navigated other steps in the aisle and fell at the point where there was a significantly greater height in the steps of the aisle which she had not previously descended. Counsel for Mrs Carusi submits that there is no other plausible explanation for the fall at that location.[112]
[112] Appellant's supplementary submissions in reply filed 19 September 2024, pars 2.1 - 3.2, 5.1 - 5.5.
We do not accept Mrs Carusi's submission that there was no other plausible explanation for the fall other than the anomalous height of the last step. She might have misjudged the edge of the step and placed her foot too far over the edge or missed the edge completely, causing her to lose balance. She might merely have misstepped or twisted her foot on the landing of row C. There seems to us to be a reasonable possibility that, as Mrs Carusi described in a Facebook message on 7 October 2015,[113] she 'tripped down one step' in a 'freak, silly fall' that 'couldn't be avoided or helped', and the location of the incident was merely coincidental.
[113] Exhibit D84.
The reasonable possibility of that alternative scenario was accepted by Dr Chew under cross-examination by counsel for St Mary's:[114]
Now, you've been asked to express your opinion about cases involving people falling on steps and stairways and staircases lots of times, haven't you?---Yes, I have.
And you know from your experience in these sorts of cases that it's common for people to have misplaced their foot on a step and fallen forward because not enough of the foot is on the step?---Yes.
And a fall by that mechanism could occur irrespective of the height of the step the person's on, couldn't it?---In this scenario, yes.
[114] Trial ts 316.
There was also evidence in reports by Dr Bairstow,[115] a specialist orthopaedic surgeon, and Dr Teng,[116] an occupational physician, both of whom independently evaluated Mrs Carusi after the incident, that Mrs Carusi had told each of them that she had 'missed' the last step and then fell onto her right foot, although Mrs Carusi gave evidence that she had not said this to either of those doctors.[117]
[115] Exhibit 7.1, page 4.
[116] Exhibit 13, page 3.
[117] Trial ts 117 - 118.
In our view, the evidence led at trial did not establish that the second scenario described at [114] above was more than one of at least two equally probable competing inferences. The evidence does not establish, on the balance of probabilities, that any breach of duty by failing to install an intermediate step between row B and row C was a cause of Mrs Carusi's injury.
Orders
For the above reasons, while the grounds of appeal are established to some extent, the trial judge was correct to conclude that Mrs Carusi had not established that St Mary's breached its duty of care or that any breach of duty was a cause of her injury. As a consequence, the primary orders were correctly made and the appeal must be dismissed.
Therefore, the following orders should be made in the appeal:
1.The appellant's application in an appeal filed on 22 August 2024, seeking leave to amend her appellant's case, is granted.
2.The appeal is dismissed.
We would hear from the parties on questions of costs, which prima facie should follow the event.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Honourable Justice Mitchell
8 NOVEMBER 2024
22
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