Colaco and Colaco t/as Sports Physiotherapy South v Neil

[2004] NSWCA 56

CITATION:	Colaco & Colaco t/as Sports Physiotherapy South v Neil [2004] NSWCA 56
HEARING DATE(S):	24/02/04
JUDGMENT DATE:	12 March 2004
JUDGMENT OF:	Meagher JA at 1; Handley JA at 16; Hodgson JA at 19
DECISION:	1. Appeal allowed; 2. Verdicts and judgments below set aside; 3. In lieu thereof, verdicts and judgments in favour of each defendant in the District Court; 4. The first respondent to pay the costs of each defendant of the proceedings below, and of the appeal, but to have a Certificate under the Suitor's Fund Act in respect of the latter. 5. The building owners should have an indemnity from the physiotherapists in the event that the first respondent does not pay their costs, to the extent of such non-payment.
CATCHWORDS:	APPEAL - COMPENSATION - PERSONAL INJURY - DAMAGES - LESSOR /LESSEE APPORTIONMENT - COSTS - Appeal against DCT award for personal injury damages, apportioned between lessor/lessee regarding public stairway. Held: Appeal allowed - first respondent to pay costs of each defendant of the proceedings below - first respondent to pay the costs of the appeal, and to have a Certificate under the Suitor's Fund Act for the costs of the appeal - second respondents to have an indemnity from the appellants in the event that the first respondent does not pay their costs, to the extent of such non-payment.
CASES CITED:	Wilkinson v Law Courts Ltd (2001) NSWCA 196 Tempo Services Ltd v State of NSW [2004] NSWCA 5
PARTIES :	Jan Colaco & Glen Colaco T/as Sports Physiotherapy South v Alison Neil & Peter Nicholas Coundouris & Georgina Coundouris
FILE NUMBER(S):	CA 40403/03
COUNSEL:	A: D O'Dowd 1R: S Norton SC & E Welsh 2R: P Blacket SC & J Turnbull
SOLICITORS:	A: James Tuite & Associates 1R: Castagnet 2R: Holman Webb

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 10796 of 2001
LOWER COURT JUDICIAL OFFICER :	Twigg DCJ

CA 40403/03

MEAGHER JA
HANDLEY JA
HODGSON JA

Friday, 12 March 2004

JAN COLACO & GLEN COLACO t/as SPORTS PHYSIOTHERAPY SOUTH v ALISON NEIL & PETER NICHOLAS COUNDOURIS & GEORGINA COUNDOURIS

FACTS
The appellants operated a physiotherapy business (Sports Physiotherapy South) on the first floor of a property owned by the second respondent, which was accessible to the public by a stairway.
The first respondent, a patient/client of the appellants, had attended the appellant’s business on the said premises several times, including three times on crutches between the 6th to the 23rd December 1999. Whilst leaving the appellants’ business premises, after a consultation, on 23 December 1999, the first respondent slipped and fell on the stairs as she was descending them.
The first respondent then sued both the appellants and the second respondents in the District Court, for damages resulting from injuries arising from the fall. She won her action there, based upon a District Court finding of negligence, against both parties, apportioned as 25% liability against the now second respondents (the property owners / lessor) and 75% against the now appellants (the physiotherapists / lessee), subject to a [20%] degree of contributory negligence. This decision was based upon findings which included the premise that the stairs were demised to the appellants/tenants. The appellants appeal against that decision.

THE DECISION:

1. Appeal allowed;

2. Verdicts and judgments below be set aside:

3. In lieu thereof, enter verdicts and judgments in favour of each defendant in the District Court;

4. The first respondent to pay the costs of each defendant of the proceedings below, and of the appeal, but to have a Certificate under the Suitor’s Fund Act in respect of the costs of the appeal;

5. The second respondent to have an indemnity from the appellants in the event that the first respondent does not pay their costs, to the extent of such non-payment.

CA 40403/03

MEAGHER JA
HANDLEY JA
HODGSON JA

Friday, 12 March 2004

JAN COLACO & GLEN COLACO t/as SPORTS PHYSIOTHERAPY SOUTH v ALISON NEIL & PETER NICHOLAS COUNDOURIS & GEORGINA COUNDOURIS

Judgment

1 MEAGHER JA: On 23 December 1999 Miss Neil, the first respondent, suffered an accident when she fell down some stairs leading from the first floor premises of the appellant physiotherapists to the ground floor in a building owned by the second respondents, Mr and Mrs Coundouris. The building was situated somewhere in Caringbah, a suburb of Sydney apparently in the Manly area. In a District Court action, his Honour Judge Twigg held that both the appellants (the physiotherapists) and the second respondents (the owners) were liable to Miss Neil in damages, although she was also held guilty of contributory negligence. It is a judgment which should strike terror into all persons who own or occupy first floor premises.

2 The case was fought on the basis that the stairs were in the premises demised to the appellants.

3 Miss Neil’s counsel has always contended that the treads of the stairs should have been at least 250 mm in width instead of the 210 mm which they were, apparently a difference of about 2 inches. The Judge found that the treads should have been 250 mm wide, and seemingly, that this defect caused, or perhaps helped cause, Miss Neil’s accident. The actual width of the stairs is not in dispute.

4 The stairs were steep. They were also rather narrow, although nothing hangs on this.

5 Miss Neil’s counsel also alleged that the stairs should have been nose-capped but were not; his Honour seemed to uphold this complaint.

6 Other facts relevant to the stairs would seem to be the following:

(a) Although the stairs did not comply with the relevant Code at the date of the accident (1999), that Code was dated 1990.

(b) The owners purchased the premises in 1994, and the stairs were in existence at the date of the purchase.

(c) One does not know what (if any) width was specified in whatever Code applied before 1990, or applied at the date of the construction of the stairs – assuming any Code at all applied at either date.

(d) For the stairs to be there at all, one must surely assume that they complied with whatever Codes and/or standards were applicable at the date of the construction.

(e) The owners (the second respondents) had at least constructive notice of the requirements of the 1990 Code when they applied to effect building alterations to another part of the building in May 1999, but in a context which hardly alerted them to the deficiencies in the subject stairs.

(f) There is no record of any other person falling on the stairs in the 1994-1999 period, or indeed in the period preceding 1994. One cannot assume that any such falls took place.

(g) There was no evidence about how the stairs compared, at the date of their construction, to other stairs in other buildings. There is, therefore, no reason why one should assume there was anything unusual about them at that time.

(h) There was no elevator or stair lift on the stairs, nor had anybody, directly or indirectly, ever suggested there should be.

7 Shortly before the accident on 23 December 1999, Miss Neil had (if you please) fallen off a lamp post and broken her ankle. This occurred on 6 December 1999. The appellants placed her foot in a fibreglass slab in connection with this accident, after which she had to use crutches.

8 She had attended the appellant’s premises on many occasions before the 23 December accident, including on two occasions when she was on crutches.

9 As to the mechanics of the accident, it would seem that the situation was as follows: standing on one step, she tried to place the tip of her crutch at the point where the tread of the next step met the intervening riser; but, because the first step overhung the second step, her crutch did not get to that point, so that when she put her weight on the crutch, the tip of the crutch went backwards, and the top of the crutch went forwards.

10 In these circumstances, what was the alleged negligence? Against the building owners, it was that they should have removed the old stairs and installed new ones which complied with all presently necessary Codes and standards. Against the physiotherapists, it was that they should have assisted her down the stairs.

11 As far as the owners are concerned, I can see no negligence. As was stated in Wilkinson v Law Courts Ltd (2001) NSW CA 196:

“Stairs are inherently, but not obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is usual under the circumstances.”

12 In the present case, having due regard to all the factors which I have endeavoured to list, I see no reason why a reasonable person in the position of the building owners should bestir himself to do anything to alter the stairs.

13 The case against the physiotherapists is very different. It is said they ought to have, but did not, assist Miss Neil down the stairs. In this regard the relevant facts seem to be:

(a) Miss Neil did not ask for assistance; if she had asked, she would have received assistance.

(b) She had negotiated the stairs many times before, both on crutches and without them, to the knowledge of the physiotherapists.

(c) She assured them, before her descent, that she was “fine”.

(d) There was a contest in the evidence about what the physiotherapists’ secretary said to Miss Neil. According to the secretary, she offered to assist Miss Neil down the stairs; according to Miss Neil, she did not, she merely wished Miss Neil luck. His Honour believed Miss Neil on this issue, but on rather defective reasoning. Curiously enough, though, his Honour twice suggested that the physiotherapists had “obliquely” offered assistance.

14 In my view, whatever the resolution of the factual problem in paragraph 13 (d), there was no reason why the physiotherapists, acting reasonably, should have suspected that any mishap might befall Miss Neil, and therefore no reason why they should have assisted her.

15 For those reasons I would make the following orders:

i. Appeal allowed;

ii. Verdicts and judgments below set aside;

iii. In lieu thereof, verdicts and judgments in favour of each defendant in the District Court;

iv. The first respondent to pay the costs of each defendant of the proceedings below, and of the appeal, but to have a Certificate under the Suitor’s Fund Act in respect of the latter.

v. The building owners should have an indemnity from the physiotherapists in the event that the first respondent does not pay their costs, to the extent of such non-payment.

16 HANDLEY JA: I agree that the appeal and cross-appeal should succeed and generally for the reasons given by Meagher JA and Hodgson JA.

17 The plaintiff had twice previously negotiated these stairs on crutches to obtain access to the rooms of the physiotherapists accompanied but not assisted. She also had to use crutches on the stairs where she lived.

18 While first floor premises are not an ideal location for a physiotherapy practice one cannot find that it was negligent for the appellants to practice their profession there.

19 HODGSON JA: I agree with the orders proposed by Meagher JA.

20 In my opinion, it was open to the primary judge to conclude that, whether or not the stairs complied with any applicable standards at the time they were built, the treads were narrower than usual, and the stairs were somewhat steeper and for that reason somewhat more hazardous than usual.

21 The question then arises, was the associated risk such that a reasonable owner or occupier should have taken measures to reduce it, and if so, what measures? That question was not addressed by the primary judge and in my opinion this Court should address it.

22 In my opinion, in circumstances where the evidence suggested there had been no previous accident on the stairs since 1994, it could not be said that a reasonable owner or occupier should have had the stairs rebuilt, or installed a lift or elevator of some kind.

23 Ms. Norton SC for Miss Neil submitted that the stairs should have been nose-capped, and that the appellant should have ensured that Miss Neil had assistance going down the stairs on crutches (on previous occasions, she had been accompanied by her boyfriend). On the former, Ms. Norton submitted that, although nose-capping or even extending the treads would not have prevented the initial loss of balance in this case, either measure would probably have prevented the fall, because Miss Neil’s foot only just failed to grip the edge of the tread after her loss of balance.

24 In my opinion, even if nose-capping may have prevented the fall in this case, it was not a measure that would appreciably have reduced the general risks associated with the somewhat steeper than usual stairs; and, particularly having regard to the apparently accident-free history of the stairs, was not a measure that a reasonable owner or occupier should have undertaken.

25 As regards assistance, it was common ground that (one way or another) the appellant’s receptionist expressed interest in Miss Neil’s safety on the stairs, and that Miss Neil did not signify any request or need for assistance. Miss Neil was an adult and familiar with the stairs and with the use of the crutches. In my opinion, it could not be said to be a breach of duty of care in this case not to have made a positive offer of assistance, when Miss Neil was in at least as good a position as the appellant’s receptionist to make a judgment whether she required assistance.

26 The owners of the building put on a cross-appeal, but the only matter requiring separate consideration concerns the provisions of clause 16 of the lease from the cross-appellants to the appellants. For the cross-appellants, it was contended that, if they do not recover their costs of the proceedings from Miss Neil, they are entitled to an indemnity from the appellants pursuant to this clause.

27 Clause 16 is relevantly as follows:

The tenant agrees:
16(a) to compensate and meet all claims of:
(iii) any person for personal injury or death as a result of any accident or neglect or a deliberate or careless act on the premises or breach of any condition of the lease by the tenant, his employees or agents or any person present on the premises with the consent of the tenant, his employees or agents.

(b) In these circumstances the tenant shall meet all claims whether they are made directly against him or against the landlord. Any resultant repairs to the premises or to any other parts of the building shall be carried out at the expense of the tenant by a builder approved by the landlord.

28 In my opinion, Miss Neil’s claim in this case was a claim of personal injury as a result of an accident on the premises, and thus within clause 16(a). There is no basis on which this provision should be given other than its ordinary meaning: cf. Tempo Services Ltd. v. State of NSW [2004] NSWCA 5. In my opinion, the cross-appellants are pursuant to clause 16 entitled to the indemnity in order v. proposed by Meagher JA.

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Last Modified: 03/12/2004