Francis v Lewis - [2003] NSWCA 152

NEW SOUTH WALES COURT OF APPEAL

CITATION: FRANCIS & ORS v LEWIS [2003] NSWCA 152

FILE NUMBER(S):
40863/02

HEARING DATE(S): 19 May 2003

JUDGMENT DATE: 19/06/2003

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 infringe any relevant Ordinance or building code, but the stairway was correctly described by the primary judge as steep. It is not located under a roof or otherwise protected from the elements.
It was not in issue that the appellants had control over the stairway. They were the owners of the building, the stairway was cleaned and maintained by them, and there were two separate tenants on the upper floor.
The stairway was in place when the appellants purchased the premises in 1989, but there is otherwise no evidence as to when it was erected.
As one stood at the bottom of the stairs and looked up, the left side was adjacent to a wall. The handrail was on the right side. It was a single rail consisting of a 35mm diameter pipe at a height of 865mm. The appellants’ expert Dr Cooke described the handrail as “easily grabbed” and its height as “appropriate”. This much about the balustrade is not in dispute.
There were vertical supports for the handrail, made of similar material. Moving up from the bottom, they appear to rise from the level of the ground floor and the fourth, sixth, twelfth and seventeenth steps.
There was a sign at the top of the stairs which read:
FIRE ESCAPE
Persons using stairs otherwise do so at their own risk.
I do not think that this sign contributes much to the resolution of the issues in this appeal. The sign conferred a licence for use otherwise than as a fire escape, but the licence was coupled with a warning. (After the accident, new signs were erected with a more restricted licence.)
The nature of the stairway called out for caution having regard to its length, steepness, metallic surface and the absence of closely-spaced vertical balustrades or additional railings parallel to the handrail at the top. The parties in this appeal are at one in emphasising the obvious risks presented to users, particularly users not taking proper care for their own safety. The parties disagree markedly on the legal consequences flowing from this in the present case.
The primary judge, Judge Sorby held that the appellants knew that the stairs were used other than as a fire escape. This finding was assailed by the appellants, but it was in my view correct having regard to the evidence of Mr Henry Francis as to his frequent use of the stairs and his observation and admission concerning use by others (Tr 23/05/02 pp13, 14). The finding was also correct in light of the evidence of the respondent and her co-worker as to their extensive use of the stairs, and the proximity to the subject premises of a business operated by most of the appellants (Tr 23/05/02 p9). The stairs offered a natural means of entry to the upper floor from the rear carpark and such use was not prohibited by the sign in place at the time of the accident. This was not a case where an unauthorised user effectively imposed a tortious duty on the occupier.
On the other hand, the appellants were not the insurers of the safety of users. There was an internal stairway available to persons wanting to gain access to the upper storey. And the sign conveyed the obvious message that the external stairs had been built as a fire escape, coupled with a warning that users should take care for their own safety. Nothing about the stairway constituted a hidden trap for an adult.
The accident occurred on a rainy day and the back laneway was puddled. The respondent parked her car at the back of the building, traversed the laneway and climbed the stairs. Her boots had rubber soles with heels that were one and half inches high.
About halfway up the stairs the respondent slipped as she placed her left foot onto a step which she knew had anti-slip strips on it. She believes that she put her foot down correctly, but after she had put about three-quarters of her foot on the step it slipped or kicked forward 20cms or so. Her hand was not on the handrail at the time. Her handbag was over her right shoulder. She started to fall backwards and down, put out her left hand and grabbed at the step in front of her, but she swung to the right and passed under the handrail. She fell to the concrete below.
The particulars of negligence in the respondent’s statement of claim alleged breach of duty in the following respects:
(a)         Failing to provide a safe stairway at the premises.
(b)         Failing to ensure that the runs on the stairway to the premises were treaded with anti-slip finish.
(c)          Failure to provide a mid rail or balustrade on the stairway.
(d)         Failure to fix stair securely at its base.
(e)          Failure to provide a stairway that was suitable for use in wet conditions.
(f)           Failing to properly warn the plaintiff as to the danger presented by the stairway by use of sign or otherwise or at all.
(g)         Failure to comply with the provision of the Building Code of Australia.
The trial took place in Wagga Wagga before Judge Sorby. Oral evidence was given by the respondent, a work colleague, and by one of the appellants, Mr Henry Francis. Each side tendered an expert’s report, which was admitted without objection and not made the subject of cross-examination.
The learned trial judge rejected so much of the respondent’s case as relied upon any failure to treat the stairs with an anti-slip finish. He also observed that there was no evidence that the stairs were not properly maintained or cleaned. If (which I doubt) the respondent’s counsel at trial pressed the particularised claim regarding failure to fix the stairway securely at its base, there was no finding on this topic. However, this is hardly surprising given that such a problem would have had no causal impact on the accident or the injury.
It was also found that there was no mud on the respondent’s boots.
His Honour found the appellants to be negligent in failing to make the stairs safe by ensuring that there was a mid-rail, ie a second rail approximately halfway between the existing handrail and the stairs. The judge said this:
There was a significant gap between the edge of the stairs and the handrail. The plaintiff fell through the gap after slipping on the stairs. Mr Henry Francis gave evidence that he was aware that the stairs were used by people entering and leaving the building and he had seen people using the stairs on his regular inspections of the defendants’ premises.
The defendants owed a duty of care to the plaintiff. The defendants breached this duty knowing that the stairs were used other than for their designed purpose, and that is emergencies by tenants or their staff in the premises, but did not ensure that a mid-rail was in place on the stairs. These stairs are both steep and exposed to the weather and it was foreseeable in my opinion that persons such as the plaintiff using the stairs may slip, fall and need a mid-rail to prevent their falling off the stairs and injuring themselves.
The risk of injury was neither far-fetched nor fanciful, but in the circumstances it was real. A mid-handrail was a practical and relatively cheap preventative measure. I therefore find the defendants guilty of negligence.
The issue in the appeal is whether this finding of negligence should stand. The appellants submit that there were particular errors in his Honour’s reasoning, and they invite this Court, having dealt with the appeal as on a re-hearing, to find a verdict for the defendant. Our attention was drawn to the recent guidance of the High Court in Fox v Percy [2003] HCA 22 at [22]-[25].
Shortly before the passage I have just set out, his Honour said that, on the basis of Dr Cooke’s report as to the relevant code and ordinance, he accepted that a mid-rail was not mandatory.
The respondent’s expert, Mr Kendall (a consulting civil and structural engineer) had said in his report that:
Current building codes require stairs to be fitted with balustrades and previous codes required … stairs to be fitted with a handrail consisting of both a top rail and mid rail.
This stair complies with neither the current nor previous building codes.
The appellants’ expert was Dr Cooke, a consulting architect with extensive academic qualifications. His report was much more detailed than that of Mr Kendall and it was accompanied by extracts from relevant Ordinances and Building Codes. Dr Cooke said that it was apparent from the architectural style and approximate age of the stair that it dated from the period when Ordinance 71 under the Local Government Act 1919 applied to the construction of buildings in New South Wales. Ordinance 71 commenced in 1921 and was superseded by Ordinance 70 on 1 July 1974. Ordinance 70 was in turn superseded by the Building Code of Australia on 1 January 1993.
The respondent accepts that the stairway was built during the Ordinance 71 era.
Dr Cooke’s report set out to demonstrate the inaccuracy of Mr Kendall’s rather global propositions by reference to the detailed terms of Ordinance 71:
14.         Ordinance 71 does not contain a comprehensive set of provisions regulating the design of stairs. Ordinance 71 contains General Provisions in Part II (relating to all buildings) and provisions in other parts relating to specific building types. The defendant’s premises consists of a two-storey commercial building. No provisions in Part V (applicable to Commercial Buildings) apply to any of the stairs as the building has only two storeys. A fire escape designed in accordance with Part II is required under cl 77 in a commercial building of more than three storeys in height. That is merely the minimum statutory requirement. Although the fire escape is not required by Ordinance 71, a building owner is not precluded from providing a fire escape in a commercial building of only two storeys.
15.         The fire escape provisions in Part II of Ordinance 71 are in cl 40. Among other things, a fire escape is required to be constructed of fire-resisting construction (cl 40(b)), with a maximum of 18 risers (200mm) (cl 40(g)). On my measurements (and the measurements given by Mr Kendall on page 4) the risers were generally less than the permitted maximum (about 180-185 mm), and the goings comply with the permitted minimum. …
16.         The stair has 19 risers (one more than the permitted maximum). That is not relevant to causation, in my view.
At §§17-20 of his report Dr Cooke addressed the standards and regulations concerning anti-slip devices on stairways. He gave reasons why this stairway complied. The trial judge obviously accepted them.
At §§21-22 Dr Cooke said:
21. The stair had an adequate handrail consisting of an easily grabbed 35mm diameter pipe handrail at an appropriate height of 865 mm. As a guide to good practice in handrail design, the handrail complies with AS 1657-1992 cl 4.6.2 (see Appendix C). The upper surface of the handrail is coated with slip resistant material to give an improved grip in wet conditions (Photographs Nos 1, 2, 3 and 13). Mr Kendall correctly points out on page 5 that there is no mid rail or balustrading. None is required. Under Ordinance 70 cl 44B (which commenced on 1 April 1972) a protective rail was required on the open side of a stair at a minimum height of 34 inches (865 mm). The handrail complies. There is no requirement for a mid rail. Even if a mid rail were required, its absence has no bearing on causation, as the plaintiff is not alleged to have fallen off the side of the stair.
22. Mr Kendall correctly says at the top of page 5 that the stair is not protected from the elements. There is no requirement for an external stair to be covered. As the treads are slip resistant under wet conditions, no covering is required for the treads to be kept free of water.
The views expressed in the final sentences of these two paragraphs are debatable conclusions. Reliance on the former is expressly abrogated by senior counsel for the appellants. These opinions had no bearing on the trial judge’s conclusions and I have also ignored them in my consideration.
The detailed analysis in these paragraphs of the report amply supports the primary judge’s acceptance of Dr Cooke’s conclusion ”as to the relevant code and ordinance, that a mid-rail was not mandatory”.
The respondent seeks by notice of contention to support the decision below upon the additional ground that the fire-stairs did not comply with the following building ordinances and codes:
(a)Clauses 40(f) and 44B of Ordinance 71 made under the Local Government Act 1919 (NSW);
(b)Clauses 24.27 and 53.9 of Ordinance 70 made under the Local Government Act 1919;
(c)Clause D2.16 of the Building Code of Australia 1990;
(d)Clause D2.16 of the Building Code of Australia 1996; and
(e)Clause 3.2.1.1 of Australian Standard 1657-1985.
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]).
In recent years, this Court has emphasised that no stairs are perfectly safe and that it is wrong to suggest that a plaintiff who is injured by falling on stairs has prima facie some cause of action (see Baulkham Hills Shire Council v Pascoe [1999] NSWCA 431 at [12], North Sydney Council v Plater [2002] NSWCA 225 at [43]-[44], Owners Strata Plan 30889 v Perrine [2002] NSWCA 324). In Wilkinson v Law Courts Ltd [2001] NSWCA 196, Heydon JA, with whom Meagher JA and Rolfe AJA agreed, said at [32]:
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.

The legal situation of a building erected in accordance with prevailing building standards has been considered in earlier cases. It is a subset of a wider body of law that holds in tension the proposition that a finding of negligence requires evidence capable of satisfying the tribunal of fact that there has been an unreasonable departure from the standard of care; and the proposition that lawful common practice is not determinative of liability in negligence. As Latham CJ put it in Mercer v Commissioner for Road Transport & Tramways (NSW) (1936) 56 CLR 580 at 589:
The mere fact that a defendant follows common practice does not necessarily show that he is not negligent, though the general practice of prudent men is an important evidentiary fact. A common practice may be shown by evidence to be itself negligent. A jury is entitled, for example, on sufficient evidence, to find that a proper regard for the safety of other people would require the adoption of some precaution which has only recently been discovered. But a jury is entitled so to find only if there is actual evidence to that effect.
In Lanza v Codemo [2001] NSWSC 845, Wood CJ at CL reviewed the authorities and said:
[168] It was submitted that the Australian Standard provided the measure of Moxham’s duty to the plaintiff, and that since the harness generally complied with its requirements, there was no breach of that duty. This submission is not made good.
[169] Mere compliance with a Standard, or even with common practice, does not solely or even primarily determine whether negligence exists or not: Florida Hotels v Mayo (1965) 113 CLR 588 at 593; Rogers v Whitaker (1992) 175 CLR 479 at 487; Mercer v Commissioner for Road Transport & Tramways (1936) 56 CLR 580 at 589. Evidence as to practice, or as to the existence of a Standard remains relevant, and it may help in determining what proper care and skill requires to be done in a particular context. However, in the end it is for the Court to adjudicate upon what is the appropriate standard of care: Ainsworth v Levi NSWCA 30 August 1995 unreported; Shead v Hooley [2000] NSWCA 362; and The Council of the Shire of Muswellbrook v Lettice [2000] NSWCA 359.
See also Jones v Bartlett (2000) 205 CLR 166 at 177[23] per Gleeson CJ.
It is convenient at this stage to address some specific arguments raised by the appellants.
The appellants submit that the judgment must be set aside because the trial judge failed to consider the issue of breach by reference to the calculus provided by Mason J in Wyong Shire Council v Shirt. I agree that the passage from the judgment below that I have already set out bears hints of the fallacy that reasonable foreseeability of injury is enough to establish an unreasonable omission. But I think this would be too harsh a reading of the reasons taken as a whole even though there is no discussion about the probability of the occurrence happening. Judge Sorby held the risk of similar accident to be “real” and he made a finding about the cost of preventing it. I shall, however bear this criticism in mind in my own assessment of the situation later in these reasons.
Alternatively, it was boldly submitted that his Honour should have modified the Shirt calculus by anticipating the approach later suggested by McHugh J in Tame v New South Wales [2002] HCA 35, 76 ALJR 1348 at [105]. But District Court judges are not provided with crystal balls when they go on circuit, nor are they (or we) authorised to depart from prevailing High Court orthodoxy, whatever the auguries might suggest. See also Julia Farr Services Inc v Hayes [2003] NSWCA 37.
Next, the appellants challenge the primary judge’s finding that a mid-handrail was a practical and relatively cheap preventative measure. There was no evidence, as the appellants correctly submit, that fitting a mid-handrail was possible or legally permissible, nor was there evidence as to its likely cost. This said, it was in my view open to a tribunal of fact to form a view on the point and to factor it into the Shirt calculus. The court is not bereft of common sense. I cannot conceive that a council would refuse building consent for such a minor modification, if consent is required and if the modification would promote safety. A number of things could obviously be done to supply a mid-rail or some equivalent, such as one or more wires strung through the existing balustrades or the provision of a second, parallel rail similar to the existing handrail but placed mid-way in the gap. This element of the Shirt calculus does not always depend upon precise costing, although it would be dangerous to take this decision as a precedent going beyond its particular facts.
The appellants next submit that there was no evidence grounding the finding that Mr H Francis knew that the stairs were being used generally. I have already indicated that I do not accept this. In any event, it is sufficient that there was evidence supporting the conclusion (which I would draw, at the very least) that the appellants ought to have known that the stairway was in regular use.
As to causation, it was submitted that there was no evidence supporting the finding that a mid-rail would have protected the respondent from falling off the stairs in the events that happened. I find this an extraordinary submission, rendered scarcely more plausible by senior counsel’s tactful submission that there is nothing in the appeal record as to the respondent’s body size. For one thing, the trial judge was in a superior position to this Court on that matter. Furthermore, it is well open to infer that a rail located approximately 430 mm above the surface of the stairs would have given the respondent a good opportunity to prevent her fall to the ground below by reaching out for such a railing. Even the thinnest of adults could reach a railing no more than 430mm above ground level, whereas many people falling in a prone position could not reach the existing handrail.
The significant issue in this appeal involves his Honour’s somewhat implicit conclusion that it was unreasonable for the appellants to have left this stairway in its present condition. The appellants submit that there was in the circumstances no material capable of supporting this conclusion. Alternatively, it is said to be a conclusion which this Court (being in as good a position as the primary judge) ought to reject.
In my view the conclusion was open to Judge Sorby and I am not persuaded that his Honour erred in reaching it.
This stairway was in regular use, as the appellants knew or at the very least ought to have known. It was a convenient method of ingress and egress to the upper level and its use for that purpose was not prohibited at the relevant time.
The stairs were steep and exposed to the elements. The 19 risers were one more than the maximum permitted for a fire escape under Ordinance 71 and there was no landing. These matters made them inherently dangerous, more so than many stairways encountered in everyday life. Of course the dangers were obvious, with or without the assistance of the notice. The photographs confirm this. The very obviousness of the danger in no way absolves users from their own responsibility to take care for their own safety. But the dangers were also obvious to those having the control of the stairs, ie the appellants.
It was reasonably foreseeable that persons might slip and fall when ascending or descending these stairs. This could happen in circumstances either involving fault or absence of fault on the part of the user. It was equally foreseeable that some persons using the stairs would be carrying things and thus be impeded in their capacity to hold or grab hold of the handrail.
What to my mind was also quite foreseeable was the possibility that, if a person slipped and fell, then he or she might slide off the edge and fall to the concrete below. The gaps between the balustrades spanned six steps in the middle section and five steps at the top. The top step was three and half metres above the floor surface and it was obvious that a person who fell could suffer serious injury. On the Shirt calculus, the risk was “real” (in Sorby DCJ’s words) and the probability of its occurrence was in my view not negligible.
There were available and relatively cheap means of avoiding or minimising this risk by providing a mid-handrail or some equivalent barrier.
The fact that there were no recorded falls does not in itself absolve the appellants from a finding of breach so long as the circumstances would have alerted a reasonable person to the danger posed by the defect and so long as the court found it unreasonable to have ignored that danger (Baker v Gilbert [2003] NSWCA 113 esp at [38]).
The obviousness of the risk and the means to reduce it were reinforced by the legislative attention paid to the matter over the years. Merely because the stairway may have been erected in accordance with then prevailing legislative building standards does not conclude the issue of breach or justify the occupier in sitting pat. As Gleeson CJ remarked in Tame (at 14):
Reasonableness is judged in the light of current community standards. As Lord Macmillan said in Donoghue v Stevenson [1932] AC 562 at 619, “conception[s] of legal responsibility … adap[t] to … social conditions and standards.”
In the circumstances of this case it was in my view unreasonable for the appellants to have allowed the stairway to remain in the state that it was, at least once they knew or ought to have known that the stairway was in fairly regular use. The appellants arranged for anti-slip devices to be put on the stairs. Unfortunately, they did not arrange for something to be done to close the dangerous gap between the handrail and the stairs.
The primary judge considered and rejected contributory negligence. He said:
I now turn to contributory negligence. The grounds of contributory negligence as pleaded by the defendants are grounds that would have been applicable had the plaintiff been successful in her claim that muddy boots, and insufficient tread on the stairs had caused her to slip and fall. I do not think these grounds and contributory negligence are applicable where the defendants failed to ensure the safety of the plaintiff by installing a min-handrail.
The obvious purpose of a handrail is to assist persons on ascent or descent who wish to hold it for support and to provide a barrier to stop users of the stairs falling off the edge of the stairs should misadventure such as a slip or a stumble cause such a person to fall.
In the case before me there is nothing the plaintiff could have done or should have done to prevent her fall off the edge of the steps as she slipped. The claim for contributory negligence therefore fails.
The appellants challenge those findings on the basis that the respondent contributed to her fall by failing to hold the handrail or grab it when she fell. Her hands were free, although she had a handbag over one shoulder.
Given the mechanics of the fall the findings were well open to Sorby DCJ. And once he found that the respondent did not have mud on her boots the findings were unassailable by appellate review given the broad discretion involved.
I propose the following orders:
1.Grant leave to appeal.
2.Appeal dismissed with costs.
HODGSON JA: I agree with the orders proposed by Mason P, and subject to what I say below substantially with his reasons.
The stairs were very steep (the treads being only marginally larger than the risers) and were made of metal, and they were somewhat dangerous. Although this danger was obvious and although care was obviously required in using them, it was foreseeable that even a person using care could fall on them. It was also foreseeable that, in that event, the person could fall off the side of the stairs under the handrail. I agree with Mason P that it was open to the primary judge to find that “a mid-handrail was a practical and relatively cheap preventative measure” against this happening.
In those circumstances, in my opinion it was open to the primary judge to hold that the appellants had breached a duty of care to the respondent in not providing a mid-handrail or similar protection. I am not satisfied that the primary judge failed to apply the correct test in coming to that conclusion.
It is not necessary for a judge to spell out every detail of a process of reasoning. In this case, I think the primary judge sufficiently indicated the process of reasoning, although it is not set out in full detail. I would not infer that he did not consider the nature and seriousness of the risk of harm occurring, in assessing what if anything should reasonably have been done and whether the appellants fell short of doing it.
In those circumstances, I find no error in the primary judge’s decision, and do not need to come to my own view on the question of whether the appellants were negligent.
TOBIAS JA: I agree with Mason P.

**********

LAST UPDATED: 24/06/2003