PARTIES: Henry William FRANCIS & Ors v Anne-Catreen LEWIS
JUDGMENT OF: Mason P Hodgson JA Tobias JA
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 175/01
LOWER COURT JUDICIAL OFFICER: Sorby DCJ
COUNSEL: Appellants: J Maconachie QC / P Arden Respondent: G O'L Reynolds SC / R Foord
SOLICITORS: Appellant: Henry Davis York Respondent: Denniston & Day, Wagga Wagga
CATCHWORDS: Negligence - Respondent slipped and fell off external stairway owned by appellants - stairway presented obvious risks to users - single pipe handrail at height of 865mm - whether appellants negligent in failing to install mid-rail - Breach of duty - reasonable care - "lawful common practice" - where handrail complied with Building Ordinance at time of construction - reasonable foreseeability of risk of injury - where stairway in regular use - where danger obvious to appellants - availability of preventative measures Procedural fairness - whether unjust to allow reliance on matters not litigated at trial - current building standards Appeal dismissed (D)
LEGISLATION CITED:
DECISION: Appeal dismissed
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40863/2002
MASON P HODGSON JA TOBIAS JA
Thursday 19 June 2003
Henry William FRANCIS & Ors v Anne-Catreen LEWIS
JUDGMENT
MASON P: The Court has heard concurrently a contested application for leave to appeal and submissions as on an appeal.
The claimants challenge a verdict and judgment entered in favour of the respondent in the District Court. The verdict was in the sum of $98,313.91 plus costs.
It is appropriate to grant leave to appeal given that this was a substantial final judgment of arguable correctness. It is also appropriate to extend the time for seeking leave to appeal, in light of the material in Mr Rumble’s affidavit of 24 September 2002 and the absence of any prejudice asserted by the opponent.
The appellants jointly own premises at 120 Fitzmaurice Street, Wagga Wagga. It is a two-storey building approximately 80 years old. The respondent was employed by a firm of valuers that leased part of the second storey. She had started working there in April 1999. The accident that led to this litigation occurred on 26 May 2000.
There was an internal front stairway, but the respondent used to get to and from her place of work by using a stairway easily accessible to the car park area at the back of the building. She used to go up and down the stairs three to five times per day and she had traversed the stairway hundreds of times before May 2000. The stairs were also used frequently by the respondent’s co-worker Ms Bennett and another man observed by Ms Bennett (Tr 23/05/02 pp3-4).
The stairway is made of steel, consisting of 19 steps without a landing. The total rise is approximately 3465mm. The height of the individual steps did not…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Francis v Lewis [2003] NSWCA 152
Case
[2003] NSWCA 152
Decision Date
CaseChat Overview and Summary
In this matter, the appellants, owners of a property, appealed a decision concerning a slip and fall incident where the respondent fell from an external stairway. The stairway featured a single pipe handrail at a height of 865mm. The central dispute revolved around whether the appellants were negligent in their duty of care to the respondent by failing to install a mid-rail on the stairway, which presented obvious risks to users.
The court was required to determine whether the appellants breached their duty of reasonable care to the respondent. This involved considering whether the risk of injury from the stairway was reasonably foreseeable, the relevance of "lawful common practice" at the time of construction, and the availability of preventative measures. Crucially, the court also had to address whether it was just to allow the respondent to rely on building ordinances and codes that were not litigated at trial, particularly those enacted after the stairway's construction.
The court reasoned that it would be unjust to permit the respondent to rely on ordinances and codes that came into effect after the stairway was built, as the appellants had no opportunity to present evidence regarding their impact on building practice. Similarly, reliance on specific clauses of Ordinance 71, such as cl 40(f) and cl 44B, was deemed unjust due to ambiguities regarding their application and the lack of evidence as to when the stairway was constructed. Consequently, the parties' rights were to be determined based on the stairway's compliance with Ordinance 71 at the time of its construction, without any obligation to reconstruct or upgrade it under subsequent regulations. The court affirmed that the issue of breach of duty is determined by the principles of reasonable care, considering the foreseeability of risk, but also acknowledging that plaintiffs are expected to act reasonably for their own safety.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
This contention raises issues that were not litigated below and in circumstances where it would be unjust now to depart from the way the trial was fought (see generally Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631). It would be quite unfair to permit reliance upon Ordinances and Codes coming into effect after the date on which the stairway was built, without the opportunity for the appellants to lead evidence about the way that such provisions could possibly have impacted upon this stairway as a matter of building practice. Accordingly, the instruments identified in pars (b)-(e) above cannot now be relied upon. I do not understand the respondent to suggest that those provisions operate upon this stairway according to their terms. The respondent’s position is only marginally stronger in relation to cll 40(f) and 44B of Ordinance 71 that are now relied upon for the first time. Clause 40(f) was part of Ordinance 71 from its inception and it relevantly requires a fire escape to have “protecting hand-rails, and either guard-rails or wire enclosure”. The appellants submit that this clause does not apply because the building did not require a fire escape to be built (see Dr Cooke’s report, §14, set out above). This proposition is arguable and I observe that Dr Cooke himself addressed cl 40(b) and (g) in §15 of his report. However he made no reference to cl 40(f), nor did Mr Kendall. The obligatory application of cl 40 and the scope of 40(f)’s reference to “guard-rails or wire enclosure” are sufficiently unclear to make it unjust, in my view, to permit the respondent to attempt to make out a case based on this provision for the first time on appeal. Likewise with cl 44B, which relevantly required a “protective balustrade or guard” to be provided along the exposed side of a stairway as high as this one was; and stipulated that it “shall be not less than 34 inches in height, such height in the case of a stairway being measured above the nosings of the stair treads”. Dr Cooke said that cl 44B imposed no requirement for a mid-rail (see §21 of his report set out above) and this view was never challenged or explored at trial. A second difficulty with reliance upon cl 44B is that it commenced on 1 April 1972 and there is no evidence to show that this stairway was built on or after that date. I therefore return to the case as it was fought at trial. In light of the foregoing, the rights of the parties must be determined on the basis that the stairway was built in accordance with Ordinance 71 and no ordinance, building code or standard required it to be reconstructed or upgraded, nor was any such obligation imposed on the appellants by decision of the relevant council made under the Local Government Act. In light of current High Court orthodoxy, the issue of breach is to be determined in accordance with the principles stated by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8. Foreseeability of risk of injury is not determinative of breach of duty of care. If, which I doubt, the learned trial judge overlooked this he would have been in error. The duty is one of reasonable care, not whether safety could have been improved by some modification. The duty is not confined to one owed to those who are careful for their own safety, but it is relevant to take into account that plaintiffs are themselves expected to act reasonably and take care for their own safety when determining what is reasonable (see generally Phillis v Daly (1988) 15 NSWLR 65 at 74, David Jones Limited v Bates [2001] NSWCA 233, Waverley Municipal Council v Swain [2003] NSWCA 61 at [114]).