Cecil v Property Unit Nominees (No 3) Pty Ltd
[1993] QCA 182
•20 May 1993
IN THE COURT OF APPEAL [1993] QCA 182
SUPREME COURT OF QUEENSLAND
Appeal No. 143 of 1992
Brisbane
[Cecil v. Property Unit Nominees No. 3]
BETWEEN
Dennis Gregory Cecil
(Plaintiff) Respondent
- and -
Property Unit Nominees (No. 3) Pty Limited
(Defendant) Appellant
The President
Mr Justice Pincus
Mr Justice Derrington
Judgment delivered 20/5/93
Joint reasons of the President and Pincus J.A., Derrington J. separately. All concurring as to the order made.
APPEAL ALLOWED. JUDGMENT VARIED BY REDUCING THE AMOUNT AWARDED (INCLUDING INTEREST) TO $592,558.52. ENTRY OF JUDGMENT IN THIS COURT TO BE DATED AS OF THE DATE OF THE JUDGMENT BELOW, 25 JUNE, 1992. RESPONDENT TO PAY APPELLANT ONE HALF OF THE APPELLANT'S COSTS OF THE APPEAL, TO BE TAXED.
CATCHWORDS: NEGLIGENCE - PERSONAL INJURIES - Failure to warn. Fall off escalator - whether appellant failed to warn respondent with respect to stationary escalator - whether respondent contributorily negligent by failing to look down at escalator as stepped on it.
Counsel:R. Mulholland Q.C., with him D.K. Boddice for the appellant.
S.C. Williams Q.C., with him A.J. Williams for the respondent.
Solicitors:McInnes, Wilson & Jensen for the appellant
Phillips Fox for the respondent
Hearing Date: 08/03/93
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 143 of 1992
Brisbane
BeforeThe President
Mr Justice Pincus
Mr Justice Derrington
[Cecil v. Property Unit Nominees No. 3]
BETWEEN
Dennis Gregory Cecil
(Plaintiff) Respondent
- and -
Property Unit Nominees (No. 3) Pty Limited
(Defendant) Appellant
JOINT REASONS FOR JUDGMENT - THE PRESIDENT AND PINCUS J.A.
Judgment delivered 20/05/93
This is an appeal against a finding of negligence in a personal injury case. The respondent, a tall man, was seriously injured in 1987 when he fell off a stationary escalator in the Wintergarden Centre, Queen Street, Brisbane in the early hours of the morning. It was found in the Supreme Court that the plaintiff's injuries were due to the negligence of the appellant as occupier of the relevant area. The Court held the appellant to have been negligent in failing to warn potential users of the escalator that, as was the fact, it was stopped at the relevant time. The respondent's case, which the judge held to have been made out, was that he fell because when he got on he did not appreciate that the escalator was stopped; he thought it was moving.
The argument for the appellant was that the judge should not have accepted the respondent's evidence as to how he fell and that, if his Honour did accept it, he should nevertheless have found the respondent guilty of contributory negligence. The appellant did not contend that if the judge's findings as to the way in which the respondent fell were correct, his Honour was wrong in concluding that there was negligence on the part of the appellant.
The respondent fell from one of two adjacent escalators whose function is to carry people up and down between the second and third levels of the centre. Immediately beneath those two escalators is another pair, between the first and second levels. The respondent fell from one of the higher escalators, apparently collided on the way down with the structure holding the lower set of escalators and fell a considerable distance to the floor below. All the escalators in question are modern and there is no suggestion that there is anything wrong with their design or construction. They are built in a void or atrium, there being no intervening floors which would arrest the fall of a person falling from the second to third level escalator till he or she hit the first floor.
In accordance with its practice, the appellant turned off the third to second floor escalators at 1 a.m., after which time a restaurant on the third level and a tavern on the lower level still remained open. The area was well-lit. The respondent, who had imbibed a substantial amount of alcohol from about 6 p.m. on the previous day, walked to the escalators about 2.40 a.m. It appears that the judge did not believe the respondent to have been drunk. The judge found that he did not notice that the escalators had stopped and took one or two steps onto the right-hand escalator, moving "at an ordinary walking pace". The judge went on:
"He found himself off balance, lurched, put his left hand out to try to regain his balance but was unable to do so and fell to his left over the handrail to a place on the first level below the space between the escalators from the second level to the first level".
Accepting expert evidence to this effect, the judge held that a stationary escalator constitutes a danger, caused by the variation in riser heights at the extremities. The judge then said:
"The plaintiff was a person who was in the habit of walking onto escalators and then continuing to walk. My conclusion as to what happened on the day in question is that the plaintiff, with his senses dulled somewhat by alcohol and fatigue, stepped on the escalator without noticing that it had been stopped since he came into the building on his way to the restaurant. He then almost immediately lost his footing at the top of the escalator because of the variation in riser heights. He tried to retrieve his balance, but, because of his height and the instinctive movement he had made in an effort to retrieve his balance, achieved a force of sufficient moment to overcome the effect of other forces acting on his body and so cause him to topple over the rail".
Having so held, the judge concluded that there was negligence on the part of the appellant, as we have mentioned, and that further step is not now challenged.
The judge said there should have been a notice warning that the escalators were stopped and reminding people to use them with caution, or a chain across the entrance coupled with a notice directing people to the lifts. The correctness of the views just mentioned not being in issue now, we find it unnecessary to comment upon that subject.
In our opinion, determination of the questions raised in the appeal requires close attention to the evidence given by the respondent. It is convenient to do so under three headings.
What caused the respondent to fall?
It was a central part of the judge's reasons that the respondent fell because of the variation in riser heights; implicit in the reasons is the notion that the fall was connected with the respondent's lack of knowledge that the escalator was stopped. Mr. Mulholland Q.C., senior counsel for the appellant, pointed out that according to Dr. W.E. Davies, a physician who saw the respondent at Princess Alexandra Hospital about 3.20 a.m. after the accident, the respondent was "unable to recall the accident". Mr. Williams Q.C., who led for the respondent, argued that this could be taken to refer only to the respondent's recollection of the precise way in which he fell. Whether or not that is so, the respondent's evidence makes it plain that his recollection of the means of falling was not very reliable. He said in evidence he had "no recollection of the actual fall itself" and that he walked "maybe one or two steps" onto the escalator before he fell. The respondent said he remembered lurching and putting his arm out for balance. At one point, he claimed to recall that he "jumped" to get his balance again. He said that he came to be off-balance because he tripped, but did not say what he tripped on.
The respondent also said, in response to the question "Would you say you remember the accident?":
"The start of the accident as to the actual trip itself? I can remember the sensation of tripping and then waking up at the bottom. That is all I can describe of the actual accident".
He did not give any account of how he came to trip and when questioned further on that subject, said that "maybe 'slipped' would be a word you could use there as well". In cross-examination, the respondent said that he "would have to surmise that I tripped or whatever" and that he presumed he tripped.
The judge's finding that the respondent "... lost his footing ... because of the variation in riser heights" was an inference his Honour drew from evidence of the kind to which we have just referred. The vagueness of that evidence might make the inference seem a rather uncertain one, but it is convenient to defer a statement of our conclusion on that question.
Manner of walking onto escalator.
Implicitly, the judge appears to have accepted that on the occasion in question the respondent adopted his usual practice of "walking onto escalators and then continuing to walk". The point appears to be that the respondent might have been safe had he simply moved onto the top step of the escalator and waited for it to carry him down. In response to questioning from his counsel, the respondent said, in effect, that in the past when entering onto an escalator, he would not in any way have adjusted his gait or speed; on the same subject, he later said that he was "walking normally as he entered onto the escalator" but indicated some uncertainty on that topic in cross-examination. At that stage, he said in effect that he "would remember" if there was a reason for haste and added that he could not remember walking at a normal pace.
Consciousness that the escalator was stationary.
The judge found that the respondent did not notice that the escalator was stopped. The respondent was asked about that subject and the related question of what his habit was when entering upon an escalator. When asked whether he would look down at the escalator when he got on, the respondent answered:
"Possibly. I can't say whether I looked down or not. I have never, ever - I don't have to guess at that".
He added that he could not recall whether or not he was conscious of the fact that the escalators were stationary. In apparent contradiction of that, he said shortly afterwards:
"I remember that I was not expecting it [the escalator] to be not moving - I was expecting it to be moving, yes. There was nothing to tell me later on that - nothing that I did that I can remember that would have told me the escalator was turned off".
He added that he was expecting it to be moving, but did not recall where he was looking at the time when he was about to step onto the escalator. In re-examination, he said he did not recall looking down at his feet. He then gave further evidence on that subject:
"Was it your practice, when using escalators many times prior to the accident, to watch your step; that is, to watch your feet move onto the escalator?--No, no"
and added, in response to another question, that he could not say what his actions were when he walked onto an escalator.
Mr. Mulholland submitted that it was highly improbable that the respondent would have fallen, as he did, over the railing of the escalator unless there was some "extraordinary careless or deliberate act". Mr. Mulholland further submitted that the evidence of two witnesses, de Bruin and McIntosh, made it unlikely that the respondent had fallen, as he claimed to have done, from near the top of the escalator.
There was much discussion before us as to the effect of the evidence of those two witnesses, which related to the question where the respondent's injured body was found after the fall. At the best for Mr. Williams, as he fairly conceded, it placed the body about the middle of the length of the horizontal projection of the escalator on the floor; put another way, the body had gone forward about half the length of the escalator before reaching the floor. Evidence of a supposedly expert character was given with respect to the likelihood of this occurring, consistently with the respondent's version of events and, in particular, consistently with the assertion that the respondent moved only one or two steps onto the escalator at "normal" pace and then fell. We do not find the opinion evidence of much assistance; indeed, we are uncertain whether the persons called had made such a study of the movements of persons falling in similar circumstances as to make their opinions worth hearing. Plainly, the position in which the body was found is a factor which would tend to make one doubt the correctness of the respondent's claimed recollection as to what happened, vague though that was. The fact that the body traversed the rail, which was admittedly at a satisfactory height, and finished up where it did both operate to diminish the likelihood that the respondent's recollection of events was right. Nevertheless, as Mr. Williams pointed out, the point is essentially one of credit. One could not say that the circumstances we have mentioned disproved the respondent's case, nor in our opinion do they entitle this Court to upset the trial judge's findings giving general acceptance to the respondent's version. Although, merely from perusing the record, it is easy to gain the impression that the respondent had very little idea how he came to fall, the principles limiting this Court's right of interference with findings of primary fact are such as to require that his Honour's findings on the point be left undisturbed. The case comes, perhaps, close to the point at which interference would be justified, but does not reach that point.
There remains to consider the question of contributory negligence. Although there was plainly evidence upon which the judge might have found that the accident was caused in part by the respondent's failure to look down at the escalator as he entered upon it, his Honour did not deal with the allegation of contributory negligence in detail, but simply declined to find it made out. Common experience suggests that it is usual for persons entering upon a down escalator to at least glance at it to make sure that their feet are properly placed. The respondent's case, which was accepted, was that he thought it was moving. It would, in our opinion, have been odd for the respondent to have moved onto a moving escalator without placing his feet deliberately. That is necessary because, although the first two steps after the "comb" would be level, after that the steps would fall away; unless the respondent's feet were properly placed, he would be likely to find, as the escalator treads moved forward, that one foot was awkwardly perched on the edge of a tread.
Although there was no direct evidence that the respondent did not look down as he came onto the escalator, he did not say that he did so and the inference that (accepting the judge's primary findings) he did not seems to us strong. The merest glance would have disclosed that the escalator was in that state which the judge held to create a danger, namely stationary. Nor do we accept Mr. Williams' contention that a failure to look down, even if causative, should not be classified as negligent.
To keep a due proportion between the appellant's and the respondent's responsibility for the injury requires some comparison of their respective faults. It is true that, in our opinion, the appellant's fault was by no means grave. All it did was to fail expressly to draw attention to the fact, an easily observable fact, that the escalator was stationary; that was not an extraordinary condition for an escalator to be in. We see the force of the contention that the substantial cause of the respondent's injury was his carelessness of his own safety, but on the whole we are inclined to think that the major share of responsibility should fall upon the appellant. It was, or should have been, conscious of the fact that persons moving around the area very late at night might not be in a condition to take ordinary care.
We would allow the appeal to the extent of reducing the award in favour of the respondent by 20% on account of his contributory negligence.
The orders will therefore be as follows:
Appeal allowed.
Judgment varied by reducing the amount awarded (including interest) to $592,558.52.
Entry of judgment in this court to be dated as of the date of the judgment below, 25 June, 1992.
Respondent to pay appellant one half of the appellant's costs of the appeal, to be taxed.
JUDGMENT ‑ DERRINGTON J.
Delivered the 20th day May, 1993
The facts and issues are set out in the joint judgment of the President and Pincus J.A. I respectfully agree with the orders which they propose but in some respects have reached these conclusions by a slightly different way which it is desirable to explain.
In order to succeed, the appellant must in effect displace the respondent's account and it attempted to do this by suggesting that it was not compatible with the objective facts. It tried to do this with the aid of expert evidence, which was of little use and doubtful admissibility.
More particularly it failed to take into account that on his account the respondent was moving forward at the time when he lost balance and lurched to his left, so that it is likely that his momentum was not at a direct right‑angle to the protective moving rail to his left, but somewhere between that and his former direct line of passage forward.
This angle of approach only had to lead him to the rail where it was sloping downwards in order to produce the result that the rail would be comparatively lower as he pitched forward at that angle onto the rail beyond the edge of the step on which his foot last rested. In other words, the protective height of the rail immediately beside the step on which his foot was last resting is greater than its height above the same step if the point of the rail from which it is measured is taken at a place further forward and downward where he might be expected to have encountered it by reason of his angle of approach. The effect of his reduced protection is enlarged by reason of the continuing declivity of the rail as well as the respondent's above average height.
For these reasons, the proposition that the respondent's centre of gravity was so far below the level of the protective rail that he could not have been carried over by the unrestricted top part of his body when the lower part was restrained by the rail as he lurched against it is flawed.
The second part of the appellant's submission relies on the disparity between the point immediately below the place where the respondent said he first lost his balance and the place where he was found lying injured and unconscious shortly afterwards. This whole proposition assumes that he fell cleanly directly or nearly directly over the rail immediately he encountered it.
This pays no regard to the impeding effect of the rail upon his lower body so that he may have lain across it as he overbalanced over it; and that while this was going on he might be expected to be sliding down as well or being carried forward by it before his legs followed his trunk over it. These factors, added to the forward element of his momentum, make it more likely that he would have fallen where he did than in the place where the appellant's hypothesis would place him.
Consequently there is no substance in the appellant's theoretical criticism of the respondent's account. The only remaining question is whether he was negligent in not providing against the possibility that the escalator might not be moving as he stepped onto it. It was his failure to do this that caused him to lose his balance because he stepped onto it in a way adjusted to his expectancy that it was moving, and this miscalculated movement brought his downfall.
It was not by reason of any factor associated with the positioning of his feet on its platform which subsequently form steps, though it is useful to refer to this as a comparable, if distinct, danger. Of course he should have been watching that too and if that had been the cause of his fall, it would have been significant.
Moreover, if he had fulfilled that duty before he stepped onto the platform he would have seen that the machinery was not operating and would have been warned against his error. But he could have taken this latter precaution in other ways, such as by looking at the rail, or at the steps further ahead, or by noting the absence of noise. Alternatively, he could have held the rail and this, apart from warning him of the position, would also have provided added security. It was not necessary to take any particular one of these precautions, but he should have taken at least one of them or a suitable alternative.
It is not uncommon in locations of that nature for such machinery to be shut down late at night, and a person who steps onto it has a duty to take care not to step onto it in a way that is totally inappropriate to its status, that is, whether it is moving or stationary, just as there is a duty to ensure that by the time its floor begins to convert into steps and begin to descend the person's feet are not dangerously placed by this operation.
Both of these processes are important for the safety of users of this convenience, and the precaution which may be taken in each case is simple and effective. Indeed as it has been indicated both precautions may be taken by the one act of looking at the moving platform as one is about to step onto it; but if it were intended to defer that until the steps began to form, the precaution against the other danger was required before the mobile part was mounted.
The danger from both these causes is about equal, though the danger threatened by badly‑positioned feet in relation to the subsequent formation of the steps is a little more apparent. The threat of such dangers and the seriousness of the possible consequences demand the attention of any user to appropriate precautions, and the ease and simplicity of the respective precautions available when added to this lead to the result that any failure to take either of them will, in circumstances such as this, amount to contributory negligence, depending on causation.
The respondent's conduct in walking onto the relevant part in such a way as to produce the result which it did but without taking any of the precautions available to him, is of such a degree of carelessness that it must be taken into account. It was not as serious overall as the negligence of the appellant who set up this dangerous situation, and so my agreement to the orders proposed extends to the approportionment of responsibility respectively attributed in the leading judgment. I agree with all other orders proposed in the joint judgment of the President and Pincus J.A.
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