Cutts v O'Neil & Dann No. Scgrg-98-719 Judgment No. S6921

CUTTS v O'NEIL and DANN
[1998] SASC 6921

FULL COURT: Millhouse , Olsson and Debelle JJ

MILLHOUSE J. My brother Olsson has set out the facts amply and accurately. I accept what he has written in his Reasons about the facts and damages but, I cannot accept his conclusion on liability nor the way in which he reached his conclusion.
I regret that I must differ from him but it seems to me that the respondents should not be held responsible at all for the appellant's unfortunate injuries.
I accept of course the principle which Mason J set out in The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 @ 47 - 48. I refer, though, also to what Barwick CJ said in Maloney v Commissioner for Railways (1978) 18 ALR 147 @ 148:-
"It is, in my opinion, proper to remark at the outset that the respondent's duty was to take reasonable care for the safety of his passengers. It is easy to overlook the all important emphasis upon the word 'reasonable' in the statement of the duty. Perfection or the use of increased knowledge or experience embraced in hindsight after the event should form no part of the components of what is reasonable in all the circumstances. That matter must be judged in prospect and not in retrospect. The likelihood of the incapacitating occurrence, the likely extent of the injuries which the occurrence may cause, the nature and extent of the burden of providing a safeguard against the occurrence and the practicability of the specific safeguard which would do so are all indispensable considerations in determining what ought reasonably to be done. Of all these elements, evidence is essential except to the extent that they or some of them are within the common knowledge of the ordinary man. The fertile but unqualified imagination of counsel or judge can never be a substitute for such evidence."
I suggest that the two sets of dicta should be read together. Otherwise Australians are in danger of becoming a nation of wimps trying to protect itself against the most fanciful of risks.
The respondents had lived in the house for ten years. It had been up for seven years before they moved in. No untoward incident had ever been known to have occurred before. There was a balustrade on the left of the passage for some metres before the steps down into the lounge room. It continued on the left of a person going down the steps. Not only was the balustrade a protection against falling down into the lounge but it was a guide to anyone walking along the passage and down the steps.
Mr Hugh Abbott, for the appellant, made much of what the learned trial judge called the "dim" lighting. Mr Michael Bell, for the respondents, pointed out, nowhere in his Reasons did the learned judge say that the lighting was inadequate. Indeed in the passage quoted by my brother Olsson he says, "Dimly lit as the lounge and passageway may have been, I find it difficult to accept that the plaintiff could possibly have failed to have observed. ........".
As for the argument that the step should have been replaced by a ramp, with respect I regard it as fanciful to the point of absurdity. Who knows whether a person's balance might not as easily be upset by unexpectedly putting her foot on a sloping surface as it was by missing a step? That apart altogether from the practicality of replacing the step with a ramp and the aesthetics of doing so.
If the respondents were to be found liable to the appellant it would be tantamount to saying that any split level house, simply because it is split level, is a dangerous place
I suggest that the learned judge was quite right in his opinion that, "- the real cause of the plaintiff falling down into the lounge ... was the fact that her attention was somewhat distracted by other people in the patio outside." Perhaps, as I suggested during argument, she also was a bit tense and nervous in coming to a party where she would know only Mr and Mrs Snell, not even her host and hostess. Yet she was following close behind Mrs Snell who turned to her left down the step. Had the appellant been paying even the slightest attention to where she was going she must have seen Mrs Snell go down the step immediately in front of her.
I suggest dismissing the appeal.

OLSSON J. This is an appeal against the dismissal by a District Court Judge of a plaintiff's claim for damages against the respondents in respect of personal injury sustained by her when, on 5 April, 1994, she visited their home at 10 Indee Crescent Craigmore. She fell down some steps leading to a sunken lounge room and sustained injury to her right knee.
The circumstances giving rise to this incident are simply stated.
The appellant is a 56 year old pensioner who lives in Cairns, Queensland.
She visited Adelaide in 1994. On the day of the accident she was staying with friends, Mr and Mrs Snell.
These friends had been invited by the respondents to join them at a barbecue party at their Craigmore home to celebrate their daughter's 24th birthday. Mrs Snell contacted Mrs Dann and sought and obtained her permission to bring the appellant to the party.
The three of them arrived at the respondent's house at about 7.00 pm, by which time it was dark outside. Mrs Snell preceded with the appellant to the front door. The appellant followed her, carrying a container with food and a bottle of wine. Mr Snell followed behind at a distance, because he was locking the car.
According to Mrs Snell the front door of the house was shut. When she rang the bell Mrs Dann, who was in the kitchen area near the front of the house, called out "Come in!". Mrs Snell opened the door and entered a passageway leading from it. She was followed by the appellant.
As I understand the situation the hallway from the front door led past the doorway of a bedroom on the right and then gave access, to the left down two steps, to a sunken lounge room. For a distance of about two or two and a half metres prior to the steps, on the left there was a wooden balustrade, over the top of which it is possible to look down into the sunken lounge. Beyond the steps the passage continued on, through an archway, to other rooms at the top level.
The total drop down to the floor of the lounge, from the level of the passageway was 310mm. The top step rise was 180 metres and the bottom step rise was 130mm. The depth of the step tread was 240mm. On the left side of the steps there was a wooden balustrade joining the other balustrade at right angles. On the right there was a wall end extending out about half the width of the tread of the step.
Across the sunken lounge there were sliding glass doors in the opposite wall. These opened out onto an outside patio. This area was to be seen from the passage across the top of the hall balustrade before arriving at the steps.
An elevated dining room and kitchen area was accessible, to the left side of the lounge, up two other steps. I infer that this, being at the same level as the passageway was also to be seen, back to the left, at something of an angle, across the top of the balustrade.
The learned trial Judge found that both the hall and the lounge were dimly lit. There was a 75 watt yellow globe light set in the ceiling of the hall, adjacent to the steps down into the lounge. In that general area the flooring was carpeted.
In the lounge area there was a light with a green cone shaped shade suspended from the ceiling near the passageway steps. The only other relevant light was a standard lamp, with a shade, adjacent to the wall on the left side of the patio door. Both lights were each fitted with clear 100 watt globes.
A reasonable impression of the overall layout can be gleaned from the photographs comprising exhibit D1.
The learned trial Judge found that the lounge area derived some additional, indirect, light from the general patio area.
After entering the hallway and pausing near the bedroom door to speak with Mrs Dann's daughter for a short time, Mrs Snell walked on towards the end of the hall balustrade, turned left and descended into the lounge. The appellant, who was visiting the house for the first time and was not familiar with its layout, simply followed along behind her.
At the time there was a number of other guests present. They were on the patio area and making a good deal of noise. The learned Judge opined that, as likely as not, the presence of these persons and the noise generated by them distracted the appellant's attention from looking to see where she was going. It was the appellant's evidence (which seems to have been accepted by the learned trial Judge) that she did not, at any stage, see any steps down into the lounge and was unaware of their presence until she fell when stepping down on them.
According to the appellant she was aware of the presence of Mrs Dann in the dining area, almost at the end of the balustrade. She was also aware of her greeting Mrs Snell. The appellant conceded that she saw Mrs Snell turn to her left and step into the lounge, although she asserted that she did not appreciate, at the time, that Mrs Snell was actually descending down into it.
In the event, as the appellant followed along behind Mrs Snell, she lost her balance and fell down the steps into the lounge, injuring her right knee. She testified that she “did a normal step out” and “hit the edge of the step” which she did not know was there. In cross examination she explained that the middle, or ball, of her foot landed on the forward edge of the step tread and she fell forward.
In the course of his reasons for decision the learned trial Judge commented-
"Dimly lit as the lounge and passageway may have been, I find it difficult to accept that the plaintiff could possibly fail to have observed -
(a)     that the lounge was at a lower level than the passageway;
(b)     that there were two steps down from the passageway into the
         lounge when one turned left to enter the lounge;
(c)     that Mrs Snell descended into the lounge when she turned left
in front of the plaintiff;

and

(d) that the continuation of the balustrade at right angles to the
balustrade, adjacent to the passageway sloped downwards adjacent
to the steps.”

The photographs comprising exhibit D1 certainly reinforce these comments, although it is to be noted that the disruptive pattern hall carpet flows down the steps in a manner which would not readily define their presence - particularly in a dim light.
It seems to me that the learned trial Judge was undoubtedly correct when he concluded that the only logical explanation for the appellant, in effect, falling down the steps was that her attention was distracted by the presence of persons and noise in the patio area; coupled, no doubt, with the effect of the relatively dim light.
As the learned trial Judge correctly identified, the duty of care which the respondents owed to the appellant is spelt out in s17C of the Wrongs Act 1936. That section provides as under:-
"17C. (1) Subject to this Part, the liability of the occupier of premises for injury, damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.
(2) In determining the standard of care to be exercised by the occupier of premises, a court shall take into account -

(a) the nature and extent of the premises; and
(b) the nature and extent of the danger arising from the state or
condition of the premises; and

(c)     the circumstances in which the person alleged to have suffered
                  injury, damage or loss, or the property of that person, became
                  exposed to that danger; and

(d).... the age of the person alleged to have suffered injury, damage or loss, and the ability of that person to appreciate the danger; and

......... (e) the extent (if at all) to which the occupier was aware, or ought to
......... have been aware, of-

......... (i) the danger; and

......... (ii) the entry of persons onto the premises; and

......... (f) the measures (if any) taken to eliminate, reduce or warn against
......... the danger; and

......... (g) the extent (if at all) to which it would have been reasonable and
......... practicable for the occupier to take measures to eliminate, reduce or

warn against the danger; and

(h) any other matter that the court thinks relevant.

(3) The fact that an occupier has not taken any measures to eliminate, reduce or warn against a danger arising from the state or condition of premises does not necessarily show that the occupier has failed to exercise a reasonable standard of care.

(4) Subject to any Act or law to the contrary, an occupier's duty of care may be reduced or excluded by contract but no contractual reduction or exclusion of the duty affects the rights of any person who is a stranger to the contract.

(5) Where an occupier is, by contract or by reason of some other Act or law, subject to a higher standard of care than would be applicable apart from this subsection, the question of whether the occupier is liable for injury, damage of loss shall be determined by reference to that higher standard of care.

(6)     An occupier owes no duty of care to a trespasser unless-
(a)     the presence of trespassers on the premises, and their consequent exposure to danger, were reasonably foreseeable; and
(b)     the nature or extent of the danger was such that measures which were not in fact taken should have been taken for their protection."

Section 17E of the same statute renders it quite apparent that those provisions were intended by the legislation to constitute an exclusive code on the topic of occupier's liability, save in certain circumstances not here relevant.
Save for a need, specifically, to address the issues adverted to in s17C, claims of this type fall to be disposed of on the basis discussed by the High Court in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479.
In addressing the application of s17C to the circumstances of this case the learned trial Judge noted that the respondent's premises were about thirteen years old and had been occupied by them for about ten years. They were unaware of the occurrence of any previous untoward incident in relation to persons traversing the steps in question.
Whilst the learned trial Judge, who took a view of the locus, acknowledged that the width of the tread of the step was only 240mm, he did not consider that to be a danger. It was his assessment that the step down situation did not present as a danger "if one is taking reasonable care and keeping a proper look out." He considered that, as the appellant was an active and alert person, it should not have presented as a danger. She should have appreciated its presence.
In apparent reliance on Short and Anor v Barrett (1990) Aust Torts Rep para 10-335 the learned trial Judge was of the view that occupiers in the position of the respondents are not acting unreasonably in taking their house as they find it and assuming it to be perfectly safe, unless and until they actually come to know that it is unsafe or receive some warning that it may be unsafe.
He further said that there was no evidence before him as to the extent to which (if at all) it would have been reasonable and practicable for the respondents to take measures to eliminate or reduce and warn anyone against the danger, if there was a danger in the nature of the step.
He concluded that the appellant had not demonstrated that the respondents had failed to exercise a reasonable standard of care. The appellant's claim was therefore dismissed.
The initial challenge mounted by the appellant was to the effect that the reasons expressed by the learned trial Judge indicated that he had erred in principle in his approach to the case. It was argued that he ought to have proceeded, by two successive stages, to consider:
(1) whether, in the circumstances, there was a foreseeable risk
of injury; and, if so,
(2) what a reasonable person would do in response to the risk.

As to this he adverted to the familiar authorities of Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48, Western Suburbs Hospital v Currie (1987) Aust Torts Rep 80-120 at 68, 916 - 68, 922, Phillis and Anor v Daly (1989) Aust Torts Rep 80-234 at 68, 469, 68, 471 - 2 and Inverell Municipal Council and Anor v Pennington (1993) Aust Torts Rep 81 - 234. These authorities were not, he said, inconsistent with the tests postulated by s17C of the Wrongs Act.
So it was, counsel argued, the learned trial Judge fell into error in that he did not consider the foreseeability of injury from a fall down the step by reason of the dim light and/or short step tread. (To this might be added the lack of definition of the edge of the tread due to the nature of the carpet on it).
In this regard it was submitted that a risk of injury will often be reasonably foreseeable, even if the injury could and would be avoided by exercise of reasonable care (Nagle v Rottnest Island Authority (1992-1993) 177 CLR 423 at 430 - 1). It was contended that the finding as to causation was erroneous.
In amplification of those arguments counsel made these points:-
·.. it was readily apparent at the view that the step tread was too short and the appellant's evidence was that this was what actually caused her to fall;
·.. the appellant did not know the house layout, was carrying several items and following Mrs Snell down a narrow, dimly lit hall; and
·.. the evidence indicated that the appellant was distracted partly by the patio guests and (possibly) partly by being greeted by her hostess from across the sunken lounge on the same level. Such distractions from the change in levels was patently foreseeable.

The appellant also attacked the reasoning of the learned trial Judge as to his reliance on Short v Barrett (supra), the fitness and alertness of the appellant and lack of evidence of what could have been done to eliminate danger.
As to Short v Barrett (supra) he pointed out that this was a latent defect case whereas the instant case focused on a patent danger.
He argued that the very fact that the appellant was a fit, alert person and still fell simply seemed to indicate the danger which existed.
Finally, he submitted that the learned trial Judge ignored the common sense of the situation as to what could have been done to eliminate the danger by improving relevant lighting, widening the step tread or converting the step down to a ramp and giving a warning to mind the step.
It seems to me that all of these submissions merit serious consideration.
With all due respect, the very structure of the judgment of the learned trial Judge was, to say the least, unusual. Having dealt with the narrative facts he first proceeded to a review of the medical evidence and an assessment of damages. Having done so he next discussed and arrived at a conclusion as to the issue of contributory negligence. It was not until the very conclusion of his reasons that he proceeded to discuss the primary issue of liability. It seems to me that, in the end, this almost reverse process may well have deflected his consideration from the sequential logic which the authorities demand in cases of this type. In particular he appears to have confused the quite separate concepts of foreseeability and causation.
There can be no question but that the initial issue to be addressed, in relation to the primary facts as found, was that of foreseeability. As to this one commences with the well known dictum of Mason CJ in Wyong Shire Council v Shirt and Ors (supra) at 47 - 8 to the following effect:-
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved the risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the plaintiff may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”

With respect I agree with what fell from Mahoney JA in Phillis and Anor v Daly (supra) at 68,472 when he made the point that, seen from the viewpoint of an occupier of premises prior to the accident, three questions necessarily arise. These are:-
does the condition of the premises involve a risk of injury to an entrant upon them?;

may that risk be ignored because it is far fetched or fanciful?; and

what should a reasonable person do to avoid injury from it?

As that learned Judge went on to point out, seen from the viewpoint of the court, after the accident, the questions which arise are:-
what was it that actually physically caused the plaintiff’s injury?;

was the risk of injury from it far fetched or fanciful?; and

if it was not, what would a reasonable person have done to avoid injury from it; and did the defendant do it?

Of course, those questions must be posed and responded to in light of a number of considerations now well settled by the authorities.
Those which are particularly relevant for present purposes are:-

.each situation should be judged in prospect and not in retrospect. The likelihood of an incapacitating occurrence, the likely extent of the injuries which the occurrence may cause, the nature and extent of the burden of providing a safeguard against the occurrence and the practicability of the specific safeguard which would do so are all indispensable considerations (Mahoney v Commissioner for Railways (1977-1978) 18 ALR 147 at 148);
.a risk may constitute a foreseeable risk even though it is unlikely to occur. It is enough that the risk is not far fetched or fanciful (Wyong Shire Council and Anor v Shirt (supra) at 48;
.a person who owes a duty of care to others must take account of the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety (Nagle v Rottnest Island Authority (1992-1993) 177 CLR 423 at 431).

In my opinion the learned trial Judge did not approach his task in that way.
He seems to have commenced with an assumption, based on Short and Anor v Barnett (supra) that the respondents were entitled simply to assume their house to be safe unless they have some warning or contrary knowledge. With all due respect, as counsel for the appellant pointed out, that case does not stand for such a proposition. It arose from a latent defect in a balcony which, at first sight, appeared sound and safe. There was nothing whatsoever which could possibly have caused the occupier to consider the existence of possible danger in that case.
He then proceeded direct to the conclusion that the real reason for the accident was the inattention of the appellant, due to her distraction with other people on the patio.
What he failed to do was to pose the critical question of whether or not the condition of the premises posed a more than fanciful risk of injury to an entrant such as the appellant. Moreover, the assessment made of how it was that the injury came about really missed the vital point.
The very occurrence graphically illustrated the patent, foreseeable risk which actually materialised, and it did not require the wisdom of hindsight to perceive it.
It seems to me inescapable that a real risk arose from the facts that a short tread step had to be negotiated in a dim light by a person who was a stranger to the premises, in circumstances when other distractions arose due to the very activity being conducted on the premises by the occupiers themselves. This fundamental fact is not to be gainsaid by the circumstance that there may have been some lack of attention by the visitor for her own safety, because she allowed herself to be distracted (Nagle v Rottnest Island Authority (supra)).
But a moment’s consideration suggests that, in the circumstances postulated, which were generated by the occupiers themselves, it was quite foreseeable that a person could stumble down the steps, particularly if she had no clear vision ahead of her due to the presence of another person.
I agree with counsel for the appellant that quite simple and effective steps could have been taken to obviate the risk. Improved lighting, coupled with a warning to a stranger coming into the premises were obvious strategies - as was some attention to the construction of the step and/or replacement of it with a simple ramp.
The fact that no previous incident had occurred is by no means conclusive, although it is a factor to be considered. However, the fact remains that here was a risk, that in certain circumstances, was plainly waiting to materialise - as, indeed, it did. The occupiers had not even given thought to any ameliorating action.
I consider that the learned trial Judge fell into error in not finding a breach of duty on the part of the respondents. He was seemingly overborne by his view of the perceived failure of the appellant to take what he considered to be proper care for her own safety. Indeed, his assessment of a mere 20% contributory negligence seems to me both incongruous and inconsistent with his own primary conclusion as to the real cause of the accident. It seems to confirm that he did not adopt the proper conceptual approach to the problem before me.
I would hold that, on the found primary facts, a finding of negligence against the respondents was inevitable. I would therefore allow the appeal, set aside the order of dismissal of the appellant’s claim and substitute for it an adjudication that the respondents were liable in damages for negligence to the appellant.
As against that I consider that a finding of contributory negligence against the appellant was also inevitable. She was a stranger in a dimly lit house, she did allow herself to be distracted from concentrating on where she was going and it is somewhat inexplicable why, as the learned trial Judge stressed, it did not register on her that the various features to which he adverted did not cause her to realize that she was probably about to negotiate some steps.
I would apportion liability as to 60% against the respondents and 40% against the appellant.
The learned trial Judge assessed damages in the sum of $36461.88. The appellant challenged the propriety of that assessment in several respects.
First, it was said that the failure to make a full allowance for the cost of a knee replacement and also to reflect this trauma in an award for future non economic loss did not realistically reflect the effect of the evidence.
As to this the learned trial Judge felt that a significant discount ought to be allowed for contingencies and the obvious reluctance of the appellant to undergo such major surgery, certainly in the immediate future - given the potential complications associated with that type of operative treatment.
Whilst I appreciate the points made by Mr Abbott, of counsel for the appellant, I remain unpersuaded that the learned trial Judge erred. He heard the evidence and was in a much better position than this court to make the requisite judgment. It was a view reasonably open to him.
Much the same must be said of the claim for orthotics. This needed to be assessed in the light of all of the medical evidence and I cannot say that the learned trial Judge was patently wrong in concluding that the need essentially arose from factors extrinsic to the result of the accident.
Complaint was also made that the allowance for future voluntary and paid assistance. I accept that the sum of $11,560 to cover both the past and future on this score was by no means generous. Equally, I find myself unable to conclude that it is manifestly too low.
I would therefore adopt the assessment made for the purpose of computing any damages payable to the appellant.

DEBELLE J. The main issue in this appeal is whether the respondents (defendants) were negligent in failing to take reasonable care to avoid the risk of the appellant (plaintiff) falling down two steps and injuring herself. There are subsidiary questions concerning the assessment of damages. For convenience I will refer to the parties respectively as “the plaintiff” and “the defendants”.
The defendants own a house property at Craigmore. It contains a sunken lounge room. The lounge room is reached by steps from a passageway leading from the front door. The plaintiff visited the defendants’ house one night. She fell down the steps leading from the passageway to the lounge and sustained an injury to her right knee. The plaintiff’s claim against the defendants for damages for negligence was dismissed. The plaintiff appeals to this court.

A Visit to a Stranger’s House

The plaintiff was visiting friends in Adelaide, Mr and Mrs Snell. On 5 April 1994 she went with the Snells to the defendants’ house. The defendants were celebrating their daughter’s 24th birthday. The plaintiff had never been to the house before. It was dark when the plaintiff and the Snells arrived at the defendants’ house at 7.00pm. Mrs Snell rang the front door bell. On being invited in, Mrs Snell entered, followed by the plaintiff. Mr Snell followed a little later. He did not see the plaintiff fall.

The Layout of the House

A passageway leads from the front door to the lounge room. The first metre or so of the passageway is tiled. Thereafter, the passageway is carpeted to the lounge room. The same carpet covers the floor of the passageway and the lounge room. Not far from the front door there is a door to a bedroom on the right of the passageway. The door was open and the light in the bedroom was on. The light provided some illumination to the first part of the passageway.
A plan of the house was not tendered. There are no measurements of the passageway. The evidence was that at about 3-3.5 metres from the front door the passageway opens on the left hand side to the sunken lounge room. There is a balustrade on the left hand side of the passageway which, it can be reasonably inferred, is intended to prevent persons from falling into the lounge room. From this point it is possible to look left over the sunken lounge to rooms which open off from the lounge. At the end of the balustrade, a step provides access left from the passageway to the lounge room. At the end of the balustrade, there is a handrail to the left of the steps which can be used when using the steps. The passageway continues beyond the steps to other rooms in the house.
The floor of the lounge room is 310cm (just over 12 inches) below the passageway. The rise from the floor of the lounge room to the top of the step is 130mm and the rise from that step to the passageway is 180mm. The step is 240mm deep. In that area, there is, therefore, only one step between the passageway and the lounge room. It was on this step that the plaintiff stumbled and fell.
At the end of the balustrade, there is a handrail to the left of the step.
Across the lounge room and opposite the passageway are glass doors leading to an outdoors patio. On the left side of the lounge there are one or two steps up to a dining room, beyond which is a kitchen.

The Lighting

The trial judge found that the lounge room and passageway were “dimly lit”. There was only one light in the passageway. It was a light recessed into the ceiling almost over the point where the step leads from the passageway into the lounge. The light consisted of a 75 watt yellow globe. The lounge room did not have a central light. There was, however, a light suspended from the ceiling adjacent to the steps from the passageway. In addition, there was a standard lamp to the left of the lounge room. Both lights had 100 watt clear globes in them. The lights and their proximity to the step is shown in the first of the photographs comprising Exhibit D1. In addition, the lounge room derived light from the dining room and from lighting on the patio.

The Plaintiff Falls

The plaintiff followed Mrs Snell along the passageway. She was walking immediately behind her. It was the plaintiff’s evidence that she was following Mrs Snell because she was unfamiliar with the defendant’s house. The plaintiff was carrying a container with some food and a bottle of wine. She had a bag over one shoulder. Mrs Snell stopped at the bedroom to speak briefly to the defendants’ daughter. She then continued along the passageway to the end of the balustrade. The plaintiff saw the defendant Mrs Dann greet Mrs Snell. Mrs Snell then turned left and stepped down into the sunken lounge room. However, the plaintiff’s evidence was that she did not know that Mrs Snell had descended into the lounge room. In her evidence, she said that she did not see either the balustrade, the handrail sloping down, the steps, or Mrs Snell stepping down into the lounge room. The plaintiff followed Mrs Snell. She said that she did not know whether there was a step into the lounge room and that she did not see a step. As she stepped into the lounge room, the plaintiff lost her balance on the step and fell onto her right knee in the lounge room.
Other guests were present. According to the plaintiff, they were boisterous and making a good deal of noise. The trial judge found that they were on the patio outside the lounge room “and that, as likely as not, the plaintiff’s attention was distracted from looking to see where she was going.”
The trial judge made the following observations:
“Dimly lit as the lounge and passageway may have been, I find it difficult to accept that the plaintiff could possibly fail to have observed -
(a) that the lounge was at a lower level than the passageway;
(b).... that there were two steps down from the passageway into the lounge when one turned left to enter the lounge;
(c)that Mrs Snell descended into the lounge when she turned left in front of the plaintiff;
and
(d)that the continuation of the balustrade at right angles to the balustrade adjacent to the passageway sloped downwards adjacent to the steps.”

Though not expressed as such, they are tantamount to findings of fact. The trial judge is finding that, although the lounge room and passageway were dimly lit, the lighting was not so dim that the plaintiff could not have seen that the lounge was at a lower level, that there were two steps, that Mrs Snell had stepped down into the lounge, the handrail sloping down at the side of the steps. The effect of this finding is that the plaintiff ought to have been able to see each of those things.

Those findings are readily understandable. The balustrade was quite substantial and easy to see. The photographs show that it was more than one metre high. Generally speaking, a balustrade is not constructive unless it is necessary to create a barrier between the level on which the balustrade stands and the lower level. The existence of the balustrade pointed to the fact that the lounge room was at a lower level than the passageway. At the point where the balustrade ends and the hand rail on the left hand side of the steps begins, there is a newell post with a protruding knob on the top. The hand rail ends on the lounge room floor with a newell post topped by a protruding knob. It is apparent that the hand rail slopes down. The balustrade and the hand rail draw attention to the existence of steps. Finally, as the plaintiff was following Mrs Snell she could hardly fail to have noticed that Mrs Snell had stepped down two steps. The findings made by the trial judge were made with the benefit of a view of the defendant’s house. They were plainly open to the trial judge. There is no ground on which this court should interfere with them.
The trial judge found that the steps did not constitute a danger and that the real cause of the plaintiff falling into the lounge was the fact that she had been distracted by the people on the patio outside. He said:
“Although the going on the step between the passageway and the lounge is but 240mm, I do not consider that to be a danger. True it is that when I stepped down on to the step myself the end of the sole my shoe extended beyond the edge of the step. However, I do not think that that presents a danger if one is taking reasonable care and keeping a proper look out. Furthermore, the real cause of the plaintiff falling down into the lounge, in my opinion, was the fact that her attention was somewhat distracted by other people in the patio outside.”

He also found that the defendants were not aware of any danger being constituted by the steps and that they had had no prior experience of any person being injured as a result of these steps.

The trial judge has failed to direct himself upon the question of the foreseeability of the risk of injury. It is curious also that he has found that the plaintiff was guilty of contributory negligence. If the plaintiff failed, there was no occasion for a finding of contributory negligence. These defects in the judgment were emphasised by the plaintiff’s counsel in the course of argument on this appeal. However, the defects in the reasoning do not necessarily require the judgment to be set aside.

The Test of Foreseeability

The defendants did not dispute that they owed the plaintiff a duty of care to prevent the plaintiff from suffering injury in their house because of any foreseeable risk. That duty is now expressed in s17C of the Wrongs Act, the relevant provisions of which are contained in subss (1) to (3).
“17C.       (1) Subject to this Part, the liability of the occupier of premises for injury, damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.
(2)     In determining the standard of care to be exercised by the occupier of premises, a court shall take into account -
(a)     the nature and extent of the premises; and
(b).... the nature and extent of the danger arising from the state or condition of the premises; and
(c)the circumstances in which the person alleged to have suffered injury, damage or loss, or the property of that person, became exposed to that danger; and
(d).... the age of the person alleged to have suffered injury, damage or loss, and the ability of that person to appreciate the danger; and
(e)the extent (if at all) to which the occupier was aware, or ought to have been aware, of -
......... (i)     the danger; and
(ii)the entry of persons onto the premises; and
(f)..... the measures (if any) taken to eliminate, reduce or warn against the danger; and
(g)the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger; and
(h).... any other matter that the court thinks relevant.
(3)     The fact that an occupier has not taken any measures to eliminate, reduce or warn against a danger arising from the state or condition of premises does not necessarily show that the occupier has failed to exercise a reasonable standard of care.”
Section 17E makes provision for the exclusion of conflicting common law principles. There is nothing in this case which calls s17E into operation. The principles of the law of negligence to which s.17C(1) refers were expressed by the High Court in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 when the court applied the observations of Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 662-663:
“it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.”

The duty required of the defendants was to take reasonable care to protect the plaintiff from risks of injury which could be foreseen and avoided. When considering whether the defendants had discharged their duty of care, regard must be had to the observations of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48:

“A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone [1951] A.C. 850, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being “foreseeable” we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors”.

These remarks are not intended to establish a régime of strict liability. The duty of care to one’s neighbour was not elevated to an obligation to be an insurer for one’s neighbour. Instead, the remarks identify whether a breach of the duty has occurred by reference to the response of a reasonable person.

When examining whether a given situation creates a foreseeable risk of injury, care must be taken to avoid the use of hindsight. As Thomas J observed in Jaenke v Hinton (1995) Aust Torts Reports 81-368 at 62808:
“In addressing the question whether a given situation creates a foreseeable risk of injury, it is not legitimate to use hindsight. Unfortunately the fact that an injury has in fact resulted tends to compromise the exercise, as hindsight of an actual mishap makes it difficult to address the question objectively and realistically. Knowledge of the fact that an injury has occurred, makes it difficult for a tribunal to hold that the risk of injury was not foreseeable, or to use the words of Mason J in Wyong Shire Council v Shirt at 47-48, to hold that such a risk was ‘far fetched’ or ‘fanciful’. ”

The test identified by Mason J must be applied to the circumstances of each individual case, bearing in mind that it is necessary to determine what is reasonably foreseeable, that is to say, what a reasonable person, as opposed to an unduly cautious person with the benefit of hindsight, would determine to be foreseeable given the guidelines expressed by Mason J: cf Pinkus JA in Jaenke v Hinton (supra) at 62807-62808.

A Foreseeable Risk?

The question for the trial judge was whether it was reasonably foreseeable that, given the state of lighting, there was a risk that the steps could not be seen at night by a person unfamiliar with the house who might therefore stumble on the steps and fall. The findings of fact made by the trial judge demonstrates that that was not a foreseeable risk. The finding is the steps could have been seen even by a person unfamiliar with the house.
Steps and stairs are common features in many houses. There is nothing inherently dangerous in the existence of steps or stairs. They would be dangerous if there is some other factor present such as a defect in the steps or stairs themselves, an unusual location, or there is some factor which means they are not capable of being readily seen. In other words, the question whether steps or stairs constitute a danger depends on other factors than their mere existence. An absence of lighting might constitute one such factor. The trial judge’s finding is that poor lighting was not the factor in this case. He has found that the plaintiff would have been able to see the balustrade, the fact that the lounge was at a lower level than the passageway, the steps, the hand rail, and Mrs Snell stepping down into the lounge. For the reasons given earlier, there is no justifiable basis for interfering with those findings. The existence of the balustrade would alert a person unfamiliar with the house, at least to the possibility that there was a barrier between an upper and lower level. The hand rail, which sloped down from the passageway, indicated the existence of steps. In any event, the judge found the lighting was sufficient to see that the lounge was at a lower level than the passageway. Because she was unfamiliar with the house, the plaintiff was following Mrs Snell. She would, therefore, have seen Mrs Snell step down. These findings and the findings that the steps could be seen with the lighting existing that night are fatal to the plaintiff’s claim.
The additional fact that the plaintiff did not see Mrs Snell step down into the lounge is a further reason for upholding the finding that the defendants were not negligent. On the plaintiff’s own account, it was because she was unfamiliar with the house and had not previously met her host that she was following Mrs Snell. She said that she was looking at her back. It was apparent that she was several steps behind Mrs Snell because when she stumbled on the steps she did not fall against Mrs Snell. When asked why she did not see Mrs Snell step down into the lounge, she said that she was probably looking across at Mrs Dann. She later gave evidence of her intention being distracted by the persons on the patio outside. If the plaintiff had continued to watch Mrs Snell, she could not have failed to see her descend the steps. These facts only serve to reinforce the judge’s finding the plaintiff fell because her attention was distracted.
In other words it was not the fact that the lighting was dim which caused the plaintiff to fall but the fact that she was distracted and a momentary inattention on her part caused her to fail to look where she was going. She missed her foothold on the steps, stumbled forward and fell.
A householder is entitled to expect that persons ascending or descending steps or stairs in his house will exercise reasonable care and prudence in doing so. Ordinary prudence based on one’s everyday experience indicates that care should be taken when sending or descending steps or stairs to ensure that one does not miss one’s step. That is the position in this case. The lighting was sufficient to see features indicating the existence of the steps as well as to see the steps themselves. The defendants were, therefore, entitled to expect the plaintiff would see the steps and to expect that she would exercise ordinary care when stepping down into the lounge.
Furthermore, the defendants were unaware of any danger and had no prior experience of anyone falling on the stairs. They had owned the house for eight years. They had no knowledge that the previous owners had experienced any difficulty with the steps. There was, therefore, nothing in the experience of the defendants which pointed to a foreseeable risk of injury to a stranger descending the steps for the first time.
When stripped to its essentials, the plaintiff’s argument is that the lighting was not sufficient to see the steps and the defendants ought to have foreseen the risk that a stranger coming to that house for the first time might, because of a moment’s distraction caused by others at the house fail to see the stairs. The argument fails because of the trail judge’s finding that the lighting was sufficient to see the steps. It fails also because it is not reasonable for the defendants to foresee that a stranger coming for the first time to the house might be distracted and thus not see the steps. That would place an obligation on the defendants beyond what the law requires of a reasonably prudent householder. It places the defendants in the position of an insurer.
For these reasons, the defendants have not failed in their duty of care to the plaintiff. I would therefore dismiss the appeal.
It is unnecessary, therefore, to deal with the grounds of appeal concerning the assessment of damages. In any event, I agree with the substance of the reasons of Olsson J for dismissing that aspect of the appeal.
For these reasons I would dismiss the appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established