Dekort v Closter
[2010] VCC 1640
•8 November 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-09-05189
| DONNA DEKORT | Plaintiff |
| v | |
| DENISE JOY CLOSTER | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14, 15, 18 October 2010 |
| DATE OF JUDGMENT: | 8 November 2010 |
| CASE MAY BE CITED AS: | Dekort v Closter |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1640 |
REASONS FOR JUDGMENT
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Catchwords: Personal Injuries – Occupiers’ Liability – slip and fall upon stairs at commercial premises – artificial and natural light alleged to be dim at the time – carpeted stairs alleged to be slippery – negligence of owner – PART X Wrongs Act 1958 – knowledge of the owner – no prior incidents.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D J N Purcell | Robinson Gill |
| For the Defendant | Mr R W Dyer | Wotton & Kearney |
| HIS HONOUR: |
Preliminary
1 The plaintiff slipped and fell down a staircase leading from the first floor to ground level of premises at 444 Burwood Highway, Wantirna (“the premises”) on 3 June 2008. She suffered significant injury, in particular to her right ankle (“the incident”).
2 The plaintiff brings this proceeding against the defendant, the owner of the premises. The proceeding was originally brought against the owner and Barry McDonald & Associates, the tenant of the first floor premises. That part of the proceeding against the tenant was resolved.
3 The plaintiff alleges negligence and breach of occupier’s duty against the defendant. As the evidence transpired, the allegations made by the plaintiff centred upon the light which was said to be dim at the time of the incident, and that the carpet, particularly on the nose of the stair, was slippery. It was said the defendant ought to have affixed a non-slip strip to the nose of each stair, both to make the surface more slip resistant and to provide a contrasting colour and material to allow the nose to be more easily seen in the light.
4 I was informed at the commencement of the trial that should I make a finding in favour of the plaintiff on liability, the quantum of the plaintiff’s damages had been agreed. All of the evidence was thus directed only as to the question of liability.
The Pleadings
5 By her Amended Statement of Claim, the plaintiff relevantly alleged:
• The defendant was the owner of the premises; •
The defendant was the occupier of the premises and owed the plaintiff a duty pursuant to s.14B(3) of the Wrongs Act 1958;
•
The incident arose as a result of the negligence of the defendant in failing to:
ƒ ensure the stairs were safe; ƒ ensure the stairs did not pose a slipping hazard; ƒ ensure there was an appropriate non-slip surface on the stairs; ƒ ensure there was adequate artificial lighting in the vicinity of the
stairs.
• The same allegations were made by the plaintiff as evidencing a breach of the occupier’s duty. 6 By her Defence, the defendant:
• Admitted that she was the registered proprietor of the premises; • Did not admit she was the occupier of the premises; • Denied the allegations of negligence or breach of occupier’s duty; • Alleged contributory negligence on the part of the plaintiff in:
ƒ failing to keep any proper lookout; ƒ failing to look where she was walking; ƒ failing to concentrate on the task at hand; ƒ failing to pay any sufficient attention so as to avoid slipping; ƒ failing to watch her step or where she was placing her feet.
7 The proceeding is affected by the amendments to the Wrongs Act 1958, in particular PART X – Negligence.
8 Mr Dyer did not contest the defendant was the occupier of the stairwell.
The Evidence
9 Evidence was given by the plaintiff. Before 3 June 2008, the plaintiff had made an appointment for her husband, who was a self-employed bricklayer, and herself to attend the accounting offices of Barry McDonald & Associates on the first floor of the premises. The appointment was for about 9.30 am. They drove there with their eighteen-month-old son and parked nearby. The premises are in a suburban shopping centre strip. They had not been to the premises before. When they arrived, the premises appeared dark and they were uncertain whether they were open. Her husband left the car to ensure that the front door was open. Then the plaintiff got out of the car and opened the door at ground level, inwards. The plaintiff was presented with a flight of stairs up to the first floor immediately in front of her, which were covered by a mid blue-grey coloured carpet. It was an overcast day and she said the light inside the staircase was dim.
10 There were about fifteen stairs up to the first level, and the plaintiff ascended, carrying her son. In order to gain entrance once at the top of the stairs, it was necessary to walk through a further door to the right at the top of the steps.
11 The plaintiff and her husband then spent approximately half an hour discussing their accounting affairs with Ms Belinda Geyer, an accountant. At the end of this period, the plaintiff and her husband left and the plaintiff recalls Ms Geyer saying words to the effect, “Watch the step – especially the first one”. There was one step onto a landing and then the descent back down the stairs. Because of the warning, the plaintiff handed her son to her husband, who went down the stairs first.
12 The plaintiff followed, five or six steps behind. She had a folder of papers in her right hand, but nothing in her left. There was a handrail on the left hand side. She went fairly slowly down the stairs and took more time than normal because of what she had been told by Ms Geyer, and the fact that the stairwell was dim. She led with her right foot and took the stairs one at a time.
13 The plaintiff was looking down at her feet, and was able to see them and was able to see the stair. She found the descent quite difficult. She was approximately two-thirds of the way down when she put her right foot on a step and it slipped on the nose of the step. It slipped forward and then rolled to the right. The plaintiff tried to regain her balance but was unable to do so and her foot then went to the left. She fell down approximately five steps. At the time, her husband was standing in front of the glass door on ground level and she thought that affected the natural light which was coming in through the door. The plaintiff had a brief conversation with Ms Geyer and was then taken to hospital.
14 In cross-examination, the plaintiff acknowledged that she had no problem in ascending the stairs. She did not recall a sign on the door at the top of the stairs with words to the effect “Watch the step”.
15 The plaintiff was taken to a number of histories in the clinical notes and reports of the practitioners, and it was put that she had not told those persons that her foot had in fact slipped.[1]
[1] See reports of Dr Blomberry (Court Book (“CB”) 49A; Angliss Hospital (CB 54); Dr Strauss (CB 61); Mr Shannon (CB 117); Mr Sim (CB 65); Answers to Interrogatories (CB 37); Report of Mr Dohrmann, engineer (CB 76)
16 She was unable to say whether a fluorescent light on the ceiling of the stairwell was on at the time.
17 It was suggested that in fact she did not slip on the nose of the stair, but rather twisted her ankle. She denied that allegation.
18 The plaintiff described the incident in examination-in-chief as follows:[2]
[2] Transcript (“T”) 15 L2
“Q: What happened?--- A: As I put my foot on the step, it slipped on the nose of the step, I
rolled my foot, tried to get my balance but my foot had … .Q: You are able to see your right foot?--- A: Yes. Q: And does it go on the flat part of the stair or the nose or what
happens?---A: The right foot goes on like the nose of the step. Q: Right, and when it goes onto the nose, what happens to your foot
then?---A: Then it slips from the nose. Q: So you are moving your hand in a forward direction?--- A: Yes. Q: So your foot slipped?--- A: Forward, yes. Q: Was that slippage off the step or remaining on the step?--- A: Sort of slipping off to the side … Q: Your ankle rolls to the right?--- A: Yes. Q: What happened then?--- A: Then I tried to regain my balance. I was unable to regain my
balance.Q: And did you then fall down the stairs?--- A: Yes. I’m not complete memory on how I went down but I ended
up at the bottom … of the stairs then.”
19 In the course of cross-examination, the plaintiff gave a further explanation:[3]
[3] T 29 L26
“Q: I suggest you didn’t slip, that you simply lost your footing as you
were descending the stairs, you had a fall?---A: No, well, I had said to people that I hadn’t – had slipped, I had
fallen.Q: Can you explain to the Court if you were watching your feet?--- A: Yes. Q: And you could see your feet and see the stairs how it was that you
came to have the fall?---A:
I was taking my time coming down the stairs, watching – I can actually see my feet every time I talk about it. I can actually see how it happens, placing my feet down as the foot went down, it just slipped at the very end of it, rolled to the right, I tried to get my balance, it went over to the left. I still tried to hold myself up, get my balance and by that time I couldn’t weight bear and then had just fallen down … .”
20 In re-examination, the plaintiff said it was difficult to see where she was placing her feet.
21 Evidence was given by Mr Mark Dohrmann, a consulting engineer, and his report of 21 September 2010 tendered into evidence.[4] Mr Dohrmann interviewed the plaintiff and inspected the premises on 17 September 2010. He received instructions the plaintiff was wearing a pair of black shoes with a narrow heel.
[4] Exhibit A
22 When he attended the premises, he took various measurements and photographs. He described the stairs as a single flight, carpeted and 1.14 metres wide. There were fifteen steps from top to bottom. He noted there was a single fluorescent light illuminating the staircase. He described the carpet as acrylic, tight packed, fully looped and brown/beige in colour.[5] He said the nose of each step was quite rounded. He measured the co-efficient of friction on the third step from the bottom as 0.58. This compared with the static co-efficient of friction of 0.48 on a smooth, dry melamine laminate (benchtop), or unpolished vinyl floor tiles.
[5] In fact the carpet on the stairs was a mid blue-grey colour
23 He measured the levels of light at the four bottom steps at 5 lux, when measured with his back to the ground floor door, and 7 lux when he faced the door. The measurement was taken at approximately 9.15 am in overcast conditions.
24 He noted that the 1996 Building Code of Australia[6] requires a stairway have:
“Treads which have a non-slip finish or an adequate non-skid strip near
the edge of the nosings … . ”
[6] Clause D 2.13(e)
25 It was conceded by Mr Purcell that he did not rely upon any breach of the Building Code of Australia, or any building regulations. No evidence was led as to when the building was constructed, and whether any, and if so what regulations or code of practice applied.
26 According to Mr Dohrmann’s report:[7]
“Stair slips occur most frequently (and are generally more serious) during stair descent. The descending slip that occurs during first foot contact is the most dangerous. It occurs as the leading foot is lowered onto the next tread, when the body weight is thrown forward and outward. The slip may result from misplacement of the foot on the next tread, or it may result where there is insufficient frictional force between the foot and the step to allow the required weight transfer to occur. The body can then be thrown off balance and since the body weight is already thrown forward in the swing phase of descent, a fall is likely to follow … .
. . .
A ‘toe-off’ slip during descent may also occur. Again, body weight is being transferred and sufficient frictional force is required to allow the transfer to occur smoothly. The body can be thrown off balance if this smooth transfer is interrupted. However, at toe-off the centre of gravity of the body is held back so a toe-off slip will usually result in a backward or sideways fall rather than a headlong fall down the stairs … .”
[7] paragraph 6.9
27 Mr Dohrmann identified several aspects of the stairs which he considered had contributed to the plaintiff’s fall. He said firstly, that there was relatively low light at the foot of the stairs, even in daylight. Australian Standards stipulated a minimum illuminance of 40 lux on stairs at offices. In 2008, a revision of the Standard increased the acceptable light level to 80 lux. The light level in the stairs at the time tested was very much lower than these Standards.
28 Secondly, he said that the edge of the steps were not easy to see, particularly in relatively low light. Thirdly, there was an unusual irregularity of 35 millimetres in the consecutive “going” length over the last steps which could disturb the gait of a person making their way down. Mr Purcell did not pursue this as an element of negligence.
29 Finally, and most importantly, according to Mr Dohrmann, the stairs were unlikely to have provided sufficient grip on the nose to allow a safe descent, causing a slip and twist of the ankle. He said the minimum traction required under foot on the flat section of the stair was less than was required at the nose of the stair. Friction was reduced because of the increasing slope at the rounded nose of the stair. According to the 1993 Australian Standards,[8] the nose of the stair required a minimum slip resistant co-efficient of 0.63 around the curve of the nose. In such circumstances, it would have been appropriate to have a slip resistant strip affixed to the width of the stair at the nose and the failure placed the plaintiff at risk when descending the stairs. He said it would be a relatively simple and inexpensive matter to provide metal or plastic strips along the staircase. Various photographs from his report were tendered into evidence.[9]
[8] No. 3661.1-1993 “Slip Resistance of Pedestrian Surfaces”
[9] CB 91-94
30 On 15 October 2010, I attended the premises with the parties and made observations of the premises and some surrounding premises. At the view, the plaintiff indicated that the light on the day was similar to the day of the incident. In standing on the staircase, approximately a third of the way up, and facing towards the door with a person standing at the door, I was able to see my feet without difficulty, and the stairs. Care should be taken when comparing the circumstances and conditions at the time of the incident, as compared to the time of the view. Any comparison can only be approximate. At the time, I was taking particular note of the state of the light, which the plaintiff would not have been doing at the time. I was considering all of the factors in retrospect. Further it was two years since the incident, although I was advised there had been no significant change to the surface of the stairs.
31 In addition, I was shown various other staircases in the same shopping centre. At 440A Burwood Highway there were concrete steps ascending to the first floor with rounded grooves cut into the concrete. At number 434a, there were concrete stairs with yellow plastic non-slip strips affixed to the nose of the stair. Also, a double tube of fluorescent light was overhead, and the staircase appeared to have better artificial lighting. At number 450A, there was a staircase ascending to the first floor with carpet on the stairs and no non-slip strip. The stairwell was said to be more “open”.
32 Evidence was given by the plaintiff’s husband, Mr Steven Dekort. He confirmed he attended the premises with his wife on 3 June 2008. He was concerned whether the premises were open when the parties arrived. He described the stairwell as “dark”, even “very dark”. When he and his wife were descending, he carried Jack and went first down the stairs. He got to the bottom and was standing in the doorway and then felt his wife strike him from behind as she fell down the stairs. He was unable to say whether the fluorescent light was on or not. He disagreed that it was only at the court case that his wife had said that she had “slipped” on the stairs.
33 On behalf of the defendant, evidence was given by Ms Belinda Geyer. She is and has been an accountant and formerly worked as an employee of Barry McDonald & Associates. Since Mr McDonald’s retirement, she is the principal of the firm and still practises on the first floor. She said there was a sign upon a glass door at the top of the stairs as one leaves the premises with “Watch your step” painted on the inside. She confirmed in June 2008, the plaintiff and her husband came to discuss their accounting affairs. As they were leaving, she told them to watch their step because sometimes people turn around when they are upon the landing to talk to you, and do not look where they are going. She did not observe the plaintiff’s fall. She had worked at the premises since 1999, and there had been no other incidents nor complaints about the stairs or the lighting, that she was aware of.
34 She disagreed that when the fluorescent light in the stairwell was on, it was relatively dim. She said there was also natural light from the top and bottom doors. She disagreed that it was a usual practice for a person’s foot to overlap the stair and be placed over the nose.
35 Evidence was given by Mr Barry McDonald, an accountant, who was the tenant in the upstairs premises until his retirement in 2008, when he sold the practice to Ms Geyer. He had been a tenant on the first floor from 1999. Initially he had taken a lease from a Ms Diana Opat and exercised various options. The Lease of the premises and the letter exercising an option were tendered into evidence.[10]
[10] Exhibit 1
36 Mr McDonald said that the carpet on the stairwell was fine, there were no problems with it and no tears upon its surface. He had made some calculations as to the number of times clients and staff had ascended and descended the stairs, and calculated this to be approximately 10,000 times per year since 1999. He did not think there was any need to replace the carpet on the stairs. He was not certain whether the lighting was his responsibility, and said that the light at the top of the stairs was always on during the day. Since 1999, there had been no other client, staff member nor visitor who had made any complaint or reported any slip upon the stairs. He thought capital works, including work on the stair was the owner’s responsibility.
37 He thought the stairwell lighting was adequate and did not consider it dim. He had no trouble going up and down the stairs because of the light. The warning painted on the door at the top of the stairs was there when he arrived in 1999. He said the stairs were all of the same colour and there was nothing to highlight the nose of the stair. He did not think any contrasting strip or different colour was necessary. He said natural light came in from the top and bottom doors. He had seen slip resistant treads on stairwells, but did not consider them necessary upon the subject stairs. He wore a size 7 to 7½ shoe and did not recall his foot going over the edge of the nose of the stair. Maintenance of the stairs never really was an issue.
38 Evidence was given by the defendant, Mrs Denise Closter, the registered proprietor of the premises. Before 2003, her husband ran a real estate agency “A R Closter & Associates” on the ground floor. In 2003, she purchased the ground and first floor. Her husband’s business had been a tenant from 1993 until 2003. In 2005, her husband’s business ceased on the ground floor, and another tenant came into occupation.
39 Before she left the premises in 2005, she would go up the stairs approximately once a week to drop mail into Mr McDonald. She was never concerned about the slipperiness of the carpet and found the lighting normal. She never noticed any problem with the light. She acknowledged there was no formal system for inspecting the stairs nor the lighting. In her view, the area of the staircase was not dimly light. She did not apply any non-slip strip as she had never been told to do so. She thought perhaps it might be a good idea.
40 Finally, evidence was given by Mr Allan Closter, the husband of the defendant. He was occupier of the ground floor premises over a considerable period as tenant until 2003. At that time the whole premises were purchased in the name of his wife. He maintained the downstairs business as a real estate agent until 2005 when the business was sold and moved to other premises. From 2005 through to the present time, he attended the premises each month or more to collect rent, both from the ground floor and the first floor tenants. He did not use a real estate agent, but managed the premises himself.
41 In that time he did not receive any complaint in relation to the condition of the stairs, nor any requests either as to the stairs or the lighting in the stairwell. He acknowledged that structural matters at the premises were his wife’s responsibility, and not the tenants’ responsibility. He considered the building was probably constructed in approximately the 1960s. He had never received any requests from the local council to carry out any work to the stairs.
Part X – Wrongs Act 1958
42 PART X of the Wrongs Act 1958 applies to this proceeding. Save as provided however, the common law still has application.[11] While the provisions of PART X do not substantially change the common law, some sections have relevance.
[11] s.47
43 Section 48 provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, the risk was not insignificant and a reasonable person would have taken those precautions. Sub-section 48(2) provides that in determining whether a reasonable person would have taken precautions against the risk of harm, the Court is to consider the probability that the harm would occur if care were not taken, the likely seriousness of harm, the burden of taking precautions to avoid the risk of harm and the “social utility” of the activity that creates the risk of harm.
44 According to s.51, in order to determine whether negligence caused a particular harm, the negligence must be a necessary condition of the negligence of harm (factual causation) and that it is appropriate for the scope of the defendant’s liability to extend to the harm so caused (scope of liability).
45 Section 55 provides that a person is not liable in negligence for harm suffered by another as a result of the materialisation of an inherent risk. An inherent risk is defined as a risk of something occurring that cannot be avoided by the exercise of reasonable care.
46 Sections 62 and 63 deal with contributory negligence.
The Credibility of the Plaintiff
47 While Mr Dyer did not mount any significant attack on the plaintiff’s credit, he nonetheless said of the plaintiff that in the histories provided to a number of the doctors,[12] she did not describe that her foot had slipped upon the nose of the stair. In particular, Mr Dyer pointed to the history provided to Mr Dohrmann, engineer, where, according to his report,[13] he described the plaintiff’s fall as:
“Somewhere towards the bottom of the stairs (perhaps five or six stairs from the bottom, perhaps closer to the bottom), Ms Dekort’s right ankle twisted as she placed her weight on it, with her right foot leading.”
[12] See paragraph 14 of this Judgment
[13] CB 76
48 Further, in Answers to Interrogatories sworn 1 September 2010, the plaintiff stated:[14]
“I was descending the steps after visiting my accountant at the premises. I had successfully negotiated approximately fifteen steps and so I was relatively close to the bottom of the stairs. As I was descending a step my right ankle was in front of my left going down and the right ankle twisted to the right. My ankle then twisted to the left and I was unsuccessful in retaining my balance and fell down approximately six steps as my ankle was twisting to the right and forwards … .”
[14] Answer 2 - CB 37
49 In cross-examination,[15] it was suggested that while the plaintiff described a twisting of her right ankle, she did not describe the slipping until more recent times. It was suggested to her that she had made this aspect of her evidence up for the purposes of the Court case. I reject that proposition.
[15] T 20-25, 28-29
50 The plaintiff could not be expected to give a precise and invariably accurate description of events in the course of providing a history to the medical practitioners. When questioned in relation to the history to Mr Dohrmann, and in particular when the plaintiff was asked to confirm what she told Mr Dohrmann in his report, she said that what she had said was similar to what was stated in the report but “not quite that”.
51 Even accepting there is some slight discrepancy between what the plaintiff said in evidence, and her history to Mr Dohrmann (which I do not necessarily accept), the plaintiff did not agree she gave Mr Dohrmann the precise history as set out in his report.
52 In any event, I am not satisfied there is any significant difference between the plaintiff, in the course of evidence, describing the incident as occurring when her foot slipped off the nose of the step and then twisted to the right, as opposed to the history given to the various doctors, and the answer to the interrogatory. In my view, the plaintiff’s credit was not affected. Further, I found the plaintiff to be a credible and honest witness. She made the concessions I would expect of an honest witness. I have no hesitation in accepting her evidence as to what occurred.
The State of the Light at the Time of the Incident
53 Light to the stairs at the time of the incident was supplied by the natural light coming in the windows at the front of the first floor office, and through the door at the top of the stairs, natural light through the door at the bottom of the stairs, and from the single tube fluorescent light on the ceiling above the stairs. I am satisfied the fluorescent light was turned on at the time.
54 The plaintiff described the light at the time as being dim. She said it was an overcast day. The light was somewhat reduced because her husband was standing in front of the door at the bottom of the stairs when she fell. She said she was able to see both her feet and the stairs as she descended.
55 Mr Dekort described the stairwell as “dark”, even “very dark”. Mr Dohrmann, the engineer, measured the light at the time of his inspection at approximately 7 lux, considerably less than the 1990 Australian Standards. However, there was no evidence to suggest that at the time of construction of the premises (whenever that was), that the light breached any standard. The fact that there may be some subsequent breach is not relevant.[16]
[16] See Jones v Bartlett [2000] HCA 56
56 I made an assessment of the light when I attended the premises. As earlier stated, care should be taken in comparing the assessment at a view as compared to the time of the incident. Even notwithstanding that, it seemed to me that the light was reasonably adequate for the purpose of ascending and descending the stairs. It was not acutely bright, nor was it dark. I reject Mr Dekort’s evidence that the light was “dark”, even “very dark”, at the time of the incident. In particular, I had no difficulty seeing my feet as I descended the stairs and making out the outline of the stair as I placed each foot, one in front of the other. This accorded with the evidence of the plaintiff.[17] Mr Dohrmann considered the light when he inspected the premises as “relatively low”. He made this comparison, however by reference to the 1990 Australian Standards.
[17] T 27 L18
57 The witnesses called on behalf of the defendant, Mr McDonald, Mr Closter and the defendant herself, all described the light as adequate. Clearly the stairs had taken a lot of traffic over the years – 10,000 ascents and descents per year according to Mr McDonald – without prior incident.
58 Looking at the light alone, I am not satisfied that it was sufficiently dim or dark at the time to represent a risk to persons descending the stairs, including the plaintiff, in the circumstances which prevailed at the time. Bearing in mind the general principles prescribed by s.48 of the Wrongs Act, I am not satisfied that a reasonable person in the position of the defendant would have taken steps to improve the light as it was at the time of the incident. While no doubt there was the risk that a person could slip and fall down the stairs, and could suffer serious injury as a result, there was no basis, particularly given the history of the use of the stairs, for the defendant to be concerned about the light.
59 However, Mr Purcell’s argument in relation to the light is somewhat more subtle. He submits the light should be considered in the context that the carpet on the stairway was a plain uniform colour and there was no delineation to show the rounded nose. He said the light was not adequate to properly delineate the nose.
The Slip Resistance of the Stairs
60 The witnesses called on behalf of the defendant said that they had noticed no problem with slip resistance on the stairs. Again, many thousands of people had traversed the stairs without difficulty.
61 When I attended the premises, and bearing in mind the cautions earlier expressed, I found the stairs did not present me with any particular difficulty in obtaining a secure footing.
62 Mr Dohrmann was critical of the surface of the stairs. His report states:[18]
“Finally, and most importantly, the stairs are unlikely to have provided sufficient grip at their nose to allow safe descent, again, causing a slip and ankle twist.”
[18] paragraph 7.5
63 At the time of the slip, the plaintiff’s foot was upon the nose of the stair with her weight upon her right foot. She was moving forward. The nose of the stair was rounded, and as the foot was placed upon the edge, then, as a matter of gravity, it would tend to slide off the stair as her weight moved forward.
64 Mr Dohrmann said that as the ball of the foot went over the curved surface of the nose, the traction would become less. According to the Australian Standards of 1993, the slip co-efficient ought not be less than 0.40. He measured the slip co-efficient on the flat of the stair as 0.58 presuming a synthetic rubber sole. He said, however, as the slope on the nose of the stair increased, there was a greater requirement for a non-slip surface. He said[19] that at 5 degrees the slip co-efficient was 0.51. At 10 degrees, it was 0.63. However, when regard is had to Australian Standard 3661.1: 1993 – “Slip Resistance of Pedestrian Surfaces”, those calculations do not appear to coincide with the measurements set forth in Figure 2[20]. At five per cent, the slip resistance required is approximately 0.46. At ten per cent, it is approximately 0.525. I do not accept Mr Dohrmann’s calculations in this regard.
[19] paragraph 7.9
[20] Exhibit 2, page 6
65 There was evidence that an appropriate non-slip strip could be easily and cheaply obtained and affixed to the nose of the stairs. There is no doubt such a strip would provide a significantly increased non-slip surface. It would also have the effect of highlighting the edge of the stair.
66 Looking at the slip resistance upon the nose of the stair in isolation, however, I am not satisfied that the defendant was in breach of the duty of care she owed at the time by failing to apply a slip resistant strip. I am not satisfied upon the evidence of Mr Dohrmann that there was anything inappropriate about the slip resistance on the nose of the stair from which the plaintiff fell. There was nothing in the history of the staircase to indicate to the defendant that the stairs failed to provide an effective footing. Even if it could be argued there was a failure to adhere to the slip resistant requirements of the 1993 Standards, there is, again, no obligation upon an owner of premises to ensure the premises and any staircase complies with standards introduced after the construction of the building.[21]
[21] Jones v Bartlett (supra)
67 Again, however, Mr Purcell’s argument is more subtle. He says that the slip resistant surface must be seen in the context of the light which applied at the time, and the uniform colour and texture of the carpet on the stair. A slip resistance strip would have provided not only a slip resistant surface, but highlighted the edge of the stair.
Application of the Law
68 As stated, s.48 of the Wrongs Act 1958 sets forth the general principles in relation to the duty of care owed. In particular, s.48(1)(c) provides that a person is not negligent unless “… a reasonable person in the person’s position would have taken those precautions”.
69 Section 48(2) sets forth a number of criteria to be taken into account when determining whether a reasonable person would have taken precautions against a risk of harm. In particular s.48(2)(a) refers to the probability that the harm would occur if care were not taken. The evidence of the defendant, and witnesses called on her behalf indicated that she did not consider the stairs represented any risk because of the non-slip surface, or the quality of the light. In my view, the defendant was acting reasonably in that presumption.
70 As stated, the principles of Jones v Bartlett state that an owner of premises is not required to ensure the premises comply with all existing standards and regulations imposed after the construction of the premises. Further, there is no requirement that a landlord undertake a system to inspect any inherent defects which may exist.[22]
[22] Jones (supra) at paragraph 183
71 General principles relating to the common law in this area were stated by Gleeson CJ in Neindorf v Junkovic.[23] His Honour said:
“This development in the common law resulted in a generalised standard of care, described as what a reasonable person would, in the circumstances, do by way of response to a foreseeable risk. Developments in legal principle do not, however, alter the practical realities to which legal principle must be applied. … Those practical realities include the following. Not all people live, or can afford to live, in premises that are completely free of hazards. In fact, nobody lives in premises that are risk-free. Concrete pathways crack. Unpaved surfaces become slippery, or uneven. Many objects in dwelling houses could be a cause of injury. People enter dwelling houses for a variety of purposes, and in many different circumstances. Entrants may have differing capacities to observe and appreciate risks, and to take care for their own safety. An ordinary kitchen might be reasonably safe for an adult, and hazardous to a small child. The expression ‘reasonable response in the circumstances’ raises a question of normative judgment which has to grapple with all the practical problems that the law had earlier attempted to solve in the manner described by Professor Fleming. … The fundamental problem remains the extent to which it is reasonable to require occupiers to protect entrants from a risk of injury associated with the condition of the premises. … ”
[23] 2005 HCA 75 at paragraph 8
72 In Wilkinson v Law Courts Limited,[24] the New South Wales Court of Appeal considered the liability of an occupier of commercial premises where a person fell down external steps. Heydon JA (as he then was) said:[25]
”I have already dealt with the assertion that the stairs were non standard. I accept that they were of a dirty grey colour at the time of the accident. I am not persuaded, however, that to any sensible observer they did not give adequate depth perspective, or that they readily promoted a stumbling accident. There was no evidence of any previous accident to any person on the steps that could have been attributable to their size, colour or absence of edge delineation. That does not determine the matter, but it is relevant to a consideration of the ambit of the duty of care that the defendant owed to the plaintiff as he was using the steps.
Insofar as there was any risk of injury to people such as the plaintiff using the stairs it was the sort of danger that was inherent in the fact that they were stairs. Any danger that existed was obvious and such as could be avoided by the exercise of reasonable care by people without disability as they were descending them. I am not satisfied that their shape or colour required that the defendant, as a reasonable occupier, should have provided before the accident any edge delineation.”
Further:[26]
“ … Stairs are inherently, but 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 reasonable under the circumstances. Among the essential circumstances is the following fact: ‘persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety’: Stannus v Graham (1994) Aust Torts Reports 81-297 at 61,566 per Handley JA.”
[24] [2001] NSWCA 196
[25] paragraph 9
[26] paragraph 32
73 Further, in Raciti v Wadren Pty Ltd, the Victorian Court of Appeal considered the liability of an occupier in relation to stairs and a ramp which was said to have caused injury. Ashley JA said:[27]
“In all, as I see it, the situation was one in which a stairway which was very regularly used by many people of different ages contained a structural anomaly which carried with it a low risk of injury. Injury, if it occurred, could be, but would not always be, significant. The anomaly creating the risk could have been removed easily, and at no great cost. Balancing those circumstances, which tend in different directions, is not easy. But in the end, undertaking the balancing exercise, it seems to me that the quite long history of use of the premises, without (there being evidence of) a fall attributable to the risk which the anomaly created, tells against a finding that the defendant breached the duty of care which it owed the plaintiff … .”
[27] paragraph 59
74 Finally, given the defendant was the occupier of the premises, consideration ought be given to the matters referred to in s.14B(4) of the occupiers’ liability provisions of the Wrongs Act 1958. Those, relevantly, include:
ƒ the gravity and likelihood and probable injury; ƒ the circumstances of entry onto the premises; ƒ the nature of the premises; and ƒ the ability of the person entering the premises to appreciate the danger.
Conclusions
75 Mr Purcell’s careful argument is that one needs to have regard to all of the circumstances affecting the plaintiff at the time she descended the stairs. These include:
ƒ the low light in the stairwell; ƒ the lack of slip resistance on the nose of the stair where the plaintiff placed
her foot;ƒ the uniformity of colour of the stair at the point of the nose so as to make it
difficult to delineate the edge of the stair.76 It is relevant to have regard to the fact that over many years tens of thousands of persons have ascended and descended the stairs without incident. The defendant, and others who had occupied the first floor of the premises, considered the light adequate and the surface of the stairs appropriate. There had been no report to the defendant or her husband, or to Mr McDonald of any incident or any complaint. While that matter is not determinative of liability of an occupier, it is a matter to be taken into account in assessing whether the defendant acted reasonably in the circumstances.
77 Even accepting that the three factors referred to by Mr Purcell did give rise to a risk, in the light that existed at the time, that a person descending the stairs may slip on the nose of the stair, I am not satisfied that that risk was prominent or obvious. Given the fact there had been no prior incident, I regard the risk as somewhat remote.
78 More significantly, it was, in my view, not reasonable for the defendant in the circumstances which existed, to take the precaution of affixing a non-slip strip to the edge of each stair. While there is no doubt such strips exist in many staircases in commercial premises around Melbourne, there are also many staircases which do not have them. In my assessment, the defendant did not act unreasonably in not taking that precaution.
79 In forming this view, I have considerable sympathy for the plight of the plaintiff. I found her to be an honest witness, giving a reasonable account of events, and accept that she suffered significant injury when she fell down the stairs. However, the law, as I understand it, does not require a landlord in the position of the defendant to affix a slip resistant surface to the carpeted stairs which existed.
80 In these circumstances, the plaintiff’s case fails.
81 I shall hear from the parties in relation to costs.
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