Foresti v Ace Ceramics Pty Ltd

[2004] NSWCA 202

CITATION:	Foresti v Ace Ceramics Pty Ltd [2004] NSWCA 202
HEARING DATE(S):	27 May 2004
JUDGMENT DATE:	25 June 2004
JUDGMENT OF:	Handley JA at 1; Hodgson JA at 2; McClellan AJA at 3
DECISION:	1. Appeal dismissed; 2. Appellant to pay respondent's costs
CATCHWORDS:	PERSONAL INJURY: - alleged breach of duty of care - slip ascending stairs - whether stairs unacceptably hazardous - whether water on stairs - absence of handrail - slip resistance requirements - reliance of Australian Standard AS1675-1992 "Fixed Platform, Walkways, Stairways and Ladders - Design Construction and Installation"
LEGISLATION CITED:	Occupational Health and Safety Act 1983 (NSW)
CASES CITED:	Stannus v Graham (1994) Aust Tort Reports 81-293
PARTIES :	Giuseppe Tomini Foresti (Appellant) Ace Ceramics Pty Ltd (Respondent)
FILE NUMBER(S):	CA 41121/03; DC5393/00
COUNSEL:	F Corsaro SC/J Young (Appellant) M Elkaim SC/P O'Connor (Respondent)
SOLICITORS:	McCabe Partners (Appellant) Lee & Lyons (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC5393/00
LOWER COURT JUDICIAL OFFICER :	Sorby DCJ

CA 41121/03
DC 5393/00

HANDLEY JA
HODGSON JA
McCLELLAN AJA

FRIDAY, 25 JUNE 2004

FORESTI v ACE CERAMICS PTY LTD

Judgment

1 HANDLEY JA: I agree with McClellan AJA.

2 HODGSON JA: I agree with the orders proposed by McClellan AJA and substantially with his reasons.

3 I would add that, in addition to the two principal matters considered by McClellan AJA, the appellant relied (somewhat faintly) on the proposition that the steps failed in two other respects to comply with the Australian Standard: first, on some measurements, the steps did not comply with the slip-resistance requirements of the Standard; and second, while the dimensions of both treads and risers were within the limits set by the Standard, there was a number reached by combining these dimensions that was outside the Standard.

4 It was not shown when the steps were constructed, or by whom. Even if the respondent as occupier had become aware of those marginal deviations from the Standard, I do not think, in the absence of any experience suggesting the steps could be dangerous, any action to repair or rebuild the steps or to place warning signs would have been reasonably required. In any event, there is no basis for any finding that the respondent was, prior to the accident, aware of these matters; and the primary judge made no finding that they contributed in any way to the accident.

5 McCLELLAN AJA: On 23 October 1998 the appellant was injured as he was ascending a stairway leading to the entry to the respondent's premises at 104 Bonds Road, Punchbowl. The appellant had parked his car in a car park close to the steps and was intending to enter the respondent's building to pay for some terracotta tiles which he had previously purchased.

6 The stairway was comprised of five steps. The steps had a rise of approximately 200mm. They were topped with a terrazzo material of a pink granite appearance. The rise was faced with a black tile. The stairs were approximately 2020mm wide which, having regard to the photographs in evidence, was noticeably wider than the doorway to the premises that was about 1185mm wide. There were no handrails on either side of the stairs.

7 The respondent's premises were in the nature of a shop where tiles were displayed to members of the public who could come and seek advice and make purchases. The appellant gave evidence that the accident occurred in the following manner:

"Going up the steps and I slipped and fell, with my knee. I had my keys of the car in my hands, I went right down, my knee and my hands. I grabbed my knee straight away because it was terrible painful, I sit down on the step and they come and pick me up, I remember was a gentleman which I never remember his name correctly, I call him Kojak because he is bald, and I saw another gentleman inside the door had a broom or something in his hand and they come and pick me up and they sat me down inside and I ask if they give me an ice pack, please."

8 The appellant was asked whether, if there had been handrails, he would have used them. He said:

"I would have walked on the side of the handrail."

9 Later in his evidence the appellant repeated that when he fell he had his keys in his hand and said:

"I went down on my hands and I had, I thought I had blood in my hand, I noticed I had water."

10 The appellant was assisted inside the premises by a staff member. He found that his knee was sore and later became swollen. The injury to the knee ultimately required a surgical procedure to alleviate pain and restore the use of the knee. The appellant has required ongoing medical assistance.

11 Shortly after the accident, the appellant recounted the circumstances of his injury to his wife. His wife wrote a letter to the respondent on 18 January 1999 in response to a request from the respondent for a letter indicating the circumstances of the appellant's fall. In that letter, the appellant's wife wrote:

"As he was coming up the front steps he slipped and landed on his left knee. Present that morning was your cleaner who was inside and salesman Rada, who asked my husband if he was alright, the cleaner got some ice for the knee."

12 The letter made no reference to the presence of water or any other liquid on the stair at the time of the fall. The letter contained no suggestion that the fall was due to the appellant slipping on any foreign substance.

13 In the course of his cross-examination, the appellant was asked about the circumstances of the fall. He said this:

"No, I know sir. Just don't, if you don't mind please don't confuse me because I know exactly, if you let me finish. It would have been the second step, sir, for certain that I sit down. When I sit down I twist and all this side on the right side I noticed I was wet, so I look at myself after I had myself on the side there, there was, I had my pants they were wet and I asked - "

14 Mr Ranislav Babic was an employee of the respondent. He was very familiar with the premises, having worked for the respondent for a period of approximately ten years. He used the stairs on many occasions to gain access to the building. Mr Babic gave evidence that he had never seen anyone previously fall on the steps. On the morning on which the appellant was injured, he had parked his car and was moving towards the steps when he noticed that the appellant had fallen. He approached the appellant after he had fallen, found he was "grimacing on the steps", and asked him what had happened. The appellant told Mr Babic that he had "tripped on the steps." There was no suggestion in that conversation of there being any water present on the steps. Mr Babic was not asked whether he observed any liquid on the steps.

15 The stairway led from an open area into the building. Although there was an eave overhang, it is apparent that if a wind was blowing, rain could fall on the steps and cause them to be wet. However, there was no evidence that it had been raining that morning or the previous evening.

16 Three experts' reports were tendered by the appellant at the trial. They were the report of Mr Henstock, consulting engineer, the report of Mr Daniel Burn of Forensic Floor Testing Pty Ltd, who carried out friction tests on some of the steps, and a further engineering report from Mr Max Hely.

17 Mr Henstock considered the matter having regard to instructions he was given, which included information from the appellant's solicitors that at the relevant time the stairs were wet. He visited the premises and observed that the overhang of the first storey to the building would not have protected the steps from wind blown rain. He observed that "the water would lie in the depressions of the texture of the surface until evaporation, unless removed by squeegee or similar application." Having regard to tests carried out by Forensic Floor Testing Pty Ltd which assessed the slipperiness of the steps, Mr Henstock concluded that the steps posed a "moderate risk of slip."

18 Mr Henstock drew attention to the requirements of Australian Standard AS 1657-1992 "Fixed Platforms, Walkways, Stairways and Ladders - Design, Construction and Installation." A copy of the standard was in evidence at the trial. Section 4 of the Standard deals with the requirements for stairs and stairways. Clause 4.6 provides:

"Every stairway shall be provided with at least one handrail which shall have a smooth continuous top surface throughout the length of each stairway flight. Where the width of the stairway exceeds 1000mm, a handrail shall be provided on each side. Ball stanchions may be used.
Handrails not more than 750 mm apart are also required on both sides of curved stairways where the radius to the centre-line of the stairway is 2000mm or less."

19 It was submitted to the trial judge that because the stairway at the respondent's premises had a width of 2020mm and did not have a handrail, it did not comply with the Standard and, accordingly, the respondent had breached the duty of care which it owed to the appellant. That submission was repeated before this Court.

20 Mr Hely was also instructed that there was water present at the time of the accident. He formed the opinion that the slip reported by the appellant "could have been caused by the slipperiness of the subject steps at that location when wet." He also said, without objection, that he "would consider it to have been quite foreseeable that, particularly in wet conditions, any person ascending or descending those steps would be at risk of suffering slips, falls and consequent injuries."

21 Mr Hely also relied on the testing carried out by Mr Burn. He concluded that by reference to AS/NZS 3661.1.1993 "Slip Resistance of Pedestrian Surfaces - Part 1: Requirements", "the only conservative conclusion would be that the steps over-all maybe, at best, marginally compliant." However, Mr Burn had some reservations about the reliability of the testing and believed that the steps may in fact be non-compliant with that Standard.

The findings of the trial judge

22 At the trial, the appellant put his case on two bases. Firstly, it was submitted on his behalf that the respondent had breached its duty of care to him by failing to maintain the stairs free of water. Secondly, it was submitted that a handrail should have been provided.

23 With respect to the water, the trial judge found that he could not accept the appellant's evidence. Although the appellant said that he had observed liquid on his hands and clothing after the fall, the trial judge found there was not "sufficient evidence before me to conclude that it was water of one kind or another that was on the step and caused him to slip." His Honour concluded that the mechanism of the appellant's fall was not explained and "if it was water how it got there and for how long it had been there was not in evidence. There was no evidence it had been raining that morning or the night before."

24 With respect to the handrail, his Honour again stated that there was no evidence as to how the appellant fell and held that there was "no evidence that a handrail would have prevented such a fall."

Water on the steps

25 The appellant submitted that his Honour erred by not concluding that there was water on the step which had caused the appellant to slip and fall. I do not accept this submission.

26 Apart from the benefit which the trial judge had in assessing the evidence of the appellant, his Honour was entitled to have regard to the fact that the appellant's wife did not refer to the presence of water or any other liquid when she wrote explaining the circumstances of the accident on 18 January 1999. There was also the evidence of Mr Babic who was told by the appellant that he had "tripped on the steps." If the appellant believed that water or some other liquid had been on the steps causing him to slip, I believe it was likely that he would have adverted to it in conversation with Mr Babic.

27 To my mind, the respondent's case that there was no water on the steps was compelling and this ground of appeal fails.

28 Beyond these matters, if it had been proved that water was present on the stairs that caused the appellant to slip, this would not be sufficient to establish that the respondent had breached its duty of care. In the absence of evidence as to how the water came to be on the steps and whether the respondent should reasonably have taken action to remove it, a finding of negligence could not be made. If water was present, it may have been due to a recent spillage by a stranger affording the respondent no opportunity to remove it or warn of a danger.

The handrail

29 The second error which it was submitted his Honour made was his conclusion in relation to the suggestion that the respondent should have installed a handrail. The appellant emphasised the evidence in which the appellant said that if there had been a handrail present, he would have used it and, it was submitted, his fall could have been avoided.

30 In my opinion, without evidence as to the mechanism of the appellant's fall, his Honour was entitled to conclude that, although the appellant said he would have "walked on the side of the handrail", it could not be concluded that if it had been present the appellant would not have been injured.

31 The stairway was comprised of five steps giving access to a doorway located at the centre of the stairs. In the ordinary course, a user of these stairs, apart from someone who may have been infirm or disabled, would not have found it necessary, and in my opinion would have been unlikely, to move up the side of the stairway in close proximity to the handrail. Ordinary human experience would indicate that most able bodied people would access the building using the centre of the stairs and ignoring the handrail. The appellant was an able bodied person and his Honour was entitled to conclude that it had not been demonstrated that the presence of a handrail would have protected the appellant from injury. It may have been different for persons descending the stairs, in which case some people might hold the handrail or move to a position where they could grab on to it if they stumbled.

32 In Stannus v Graham (1994) Aust Tort Reports 81-293 Handley JA said:

"The remaining ground on which the liability of the defendant was supported was her failure to install a handrail next to the steps. Since in my view there was no negligence in failing to observe and remedy any defect in the step it cannot, in the circumstances of this case, have been negligent for the defendant and her caretaker to fail to install a handrail. The steps were not otherwise dangerous and there were but four of them. 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."

33 His Honour's remarks are relevant to the present case. The risk that a person may trip or slip when ascending the stairs was an every day risk which an able bodied person could avoid by taking appropriate care for his or her own safety.

34 In my opinion, reliance by the appellant on Australian Standard AS1675-1992 "Fixed Platform, Walkways, Stairways and Ladders - Design Construction and Installation" was misplaced. As the description in cl 1.1 of the Standard under the heading "Scope" indicates, the Standard sets out the requirements for "fixed" platforms, walkways, stairway, and ladders which are intended to provide means of safe access to and safe working at places normally used by operating, inspection, maintenance, and servicing personnel." Other provisions of the Standard and the incorporated diagrams make plain that the Standard is intended to apply to premises where industrial activities are taking place.

35 Two further problems in the possible application of the Standard were suggested. Firstly, there is no evidence as to when the respondent's building was constructed. Accordingly, it is unclear whether AS1657-1992 was the standard made applicable by the Occupational Health and Safety Act 1983 (NSW) and the regulations and required to be complied with when this building was constructed. Furthermore, the respondent emphasised that s 22 of the Occupational Health and Safety Act appears to preclude a submission that a contravention of the Standard "confers a right of action in civil proceedings."

36 In my opinion it is not necessary to resolve these problems. The evidence does not suggest that the relevant stairway provided access to a place used by "operating, inspection, maintenance and servicing personnel." Instead, it provided access for staff and customers to premises where tiles and other items were displayed and could be purchased. It is obvious that in an industrial workplace, care must be taken to provide a safe work environment for persons who, by reason of the tasks they are required to undertake, may not be able to take adequate care for their own safety without particular arrangements being put in place. Employees may have to carry equipment or may be distracted by the need to move quickly or in many other ways which require particular care to be given to the provision of a safe working environment. However, this does not have the consequence that the level of facilities required for industrial premises is necessary for other situations within the common experience of most people.

37 In the circumstances of this case, I am of the opinion that the respondent was not required to provide a handrail for persons ascending the stairs to enter the respondent's premises.

38 For these reasons I am of the opinion that the appeal must fail.

39 I propose the following orders:

1. Appeal dismissed.
2. Appellant to pay the respondent's costs.

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Last Modified: 07/26/2004