Freyling v West Toowoomba Bowls Club (Inc)

[1993] QCA 345

THE COURT OF APPEAL

[1993] QCA 345

SUPREME COURT OF QUEENSLAND

Appeal No. 90 of 1993.

Brisbane

Before Pincus J.A.
Ambrose J.
White J.

[Freyling v. West Toowoomba Bowls Club]

BETWEEN

PATRICIA GLADYS FREYLING

Plaintiff (Appellant)

AND

WEST TOOWOOMBA BOWLS CLUB (INC)

Defendant (Respondent)

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 17/09/93.

I have read the reasons of Ambrose J and agree with their purpose, so far as the evidence showed, for many years; that although there was uncertainty as to the precise dimensions of the stairs, which had been demolished, they "could have been safe"; that a protruding tread could cause a person to catch her foot and topple; that there was no evidence that the fall was caused by a protruding tread and that the steepness of the stairs was within acceptable limits. These views were not challenged by Mr Geraghty who appeared for the appellant. Mr Geraghty, however, argued that the judge should have held that the narrowness of the treads caused the injury. The mechanism Mr Geraghty suggested was this: he said in effect that awkwardly narrow treads could cause a person moving a foot down from one tread to a lower one to keep the foot back so as to ensure that it fitted on the lower tread - increasing the risk of catching a heel on the edge of a higher tread. The appellant, when asked before the primary judge how she came to fall, said :

them. In my opinion the hypothesis which was put forward on
behalf of the appellant as to the way in which the accident
happened was no more than that; there was simply no
evidence on which the primary judge might have based a
finding that the appellant fell because she subconsciously
made allowance for a narrower tread.

"Well, I think - I put my left foot down and my heel caught the ridge of the step and I couldn't balance myself".

The appellant, however, did not explain how it was that her heel caught the "ridge" of the step, by which she meant the edge. It seems to me possible that some such cause as Mr Geraghty postulates, operated. However, it is at least equally likely that the appellant simply made a mistake or a misjudgment in moving down the steps, perhaps caused by her having had a previous leg injury. It seems that the appellant's initial inclination was to attribute her fall to the steps being slippery; the suggestion that narrowness of treads had something to do with it was an afterthought. It is my opinion that the cause of the appellant's catching her heel on one of the treads was not established; for the judge to have attributed the fall to such a mechanism as Mr Geraghty puts forward would have been mere guesswork.

The difficulties of the appeal cannot, of course, stop there. Assuming it had been shown that the appellant fell because the treads were a certain width rather than slightly wider, which is the appellant's case, the judge was not satisfied that the condition of the steps was such as to justify a finding of negligence against the respondent. His conclusion was, in essence, that he was not satisfied that the dimensions of the relevant set of stairs were outside acceptable limits. There was evidence, namely that of the witness Grigg, on which that conclusion might rationally be founded, supported as it was by the apparent lack of any previous difficulty with the steps, which had been in use for many years.

In my opinion the conclusion of the learned primary judge was correct and should not be disturbed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 90 of 1993

Brisbane

[Freyling v. West Toowoomba Bowls Club Inc]

BETWEEN:

PATRICIA GLADYS FREYLING

(Plaintiff) Appellant

AND:

WEST TOOWOOMBA BOWLS CLUB (INC.)

(Defendant) Respondent

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

Mr. Justice Pincus
Mr. Justice Ambrose

Justice White

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

Judgment delivered 17/09/1993

Separate reasons prepared by Pincus JA., Ambrose J. and

White J. all concurring as to the order made.

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

APPEAL DISMISSED WITH COSTS TO BE TAXED

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

CATCHWORDS:	WHETHER STEPS DESIGNED NEGLIGENTLY - causation - Plaintiff with previous injury.
Counsel:	Mr. K. Geraghty for the Appellant. Mr. S. Jensen for the Respondent.
Solicitors:	Hogan & Young t/a for Shine Murdoch for the Appellant. McInnes Wilson and Jensen for the
Respondent.
Hearing date:	25/08/1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 90 of 1993

Brisbane

Before Mr. Justice Pincus

Mr. Justice Ambrose

Justice White

[Freyling v. West Toowoomba Bowls Club Inc]

BETWEEN:

PATRICIA GLADYS FREYLING

(Plaintiff) Appellant

AND:

WEST TOOWOOMBA BOWLS CLUB (INC.)

(Defendant) Respondent

REASONS FOR JUDGMENT - AMBROSE J.

Judgment delivered 17/09/1993

The appellant is a 58 year old lady who suffered a fracture to her right femur extending into the knee joint when she fell down a flight of steps, giving access to a club house occupied by the respondent, in the early hours of the morning on 1st January 1990.

On 1st June 1989, the appellant had suffered a fracture to her right knee which required operative treatment and resulted in a long convalescence which prevented her from following her occupation as a cook, between the time of that injury and the occasion of her fall on 1st January 1990. The learned trial Judge found that at the time of her fall she was suffering from a disability to her right leg to the extent of from 10 per cent to 15 per cent loss of function.

In fact, the evidence disclosed that it was only in
September 1989 that plaster was removed from her right leg.
Subsequently for some time she used a walking stick. She

attended for physiotherapy treatment and used a walking stick until about November 1989. Her leg disability at the time of her fall caused her to descend steps one at a time by first stepping to the next lower tread with her left foot and then bringing her right foot down to that tread, while maintaining a grip on the hand rail with her hand. This procedure was followed each time she descended from one step to the next lower step.

At about 7.30 p.m. on 31st December 1989, the appellant attended a New Year's Eve function at the respondent's club house in Toowoomba. During the course of the evening she had a couple of dances. That was the first occasion she had danced since suffering her injury on 1st June 1989. She had no alcohol to drink and eventually commenced to leave the premises at between 1.30 a.m. and 2.00 a.m. on 1st January 1990 - about six hours after her arrival at those premises.

There were two flights of steps separated by a distance of only a couple of feet, each having six step treads between the ground and the landing to which they led, which gave access to the club house. She proceeded to descend one flight of the steps and the learned trial Judge found that in the course of stepping down from the top step to the one below it, following the method of descending steps to which I have referred, her right heel caught on the front edge or nose of the top step causing her to lose balance and fall down the steps as far as the second step up from ground level.

It was in this fall that she fractured her right femur. The appellant gave evidence that she was looking at where she was putting her feet and holding onto the stair

rail beside her with her right hand when, to use her own
words:

"... I was on the second step going down to the third step if I remember rightly and I had my good leg, left leg, going down and I must've caught my heel. That's all I can think of and understand.

I lost my balance - I was holding onto the side
and I lost my balance and rolled down the steps.
I landed on the second bottom step."

On another occasion in the course of her evidence, the appellant said that she had put her left foot down onto the second step from the top and as she was bringing her right foot down, her right heel caught on the edge of the step tread above the one on which her left foot was resting.

The learned trial Judge found that her right heel got caught on the leading edge of the step tread above the second tread from the top - that is, on the top step tread.

In the circumstances of this case it seems immaterial whether the appellant caught her heel on the nose or edge of the top step tread or that of the step tread second from the top of the flight of steps she was descending.

After a careful evaluation of the evidence, the learned trial Judge found that the appellant's fall was not caused by any slipping on her part but that "she lost her balance because she unexpectedly caught the heel of her right shoe on the nose of the top step, overbalanced and fell". It is a tripping case not a slipping case". His Honour then correctly stated the issue of fact for his determination:

"Thus it boils down to the question whether the design and construction of the stairs as at 1 January 1990 were such as to lead to the conclusion that the defendant failed to take reasonable care to avoid a foreseeable risk of the plaintiff tripping."

An evidentiary problem which the appellant had to overcome to prove the negligence she relied upon against the respondent in respect of the design and construction of the flight of step which she alleged caused her injury, was the fact that some months after her fall both flights of steps giving access to the club house were demolished in the course of renovation work and additions being effected to that club house.

The precise dimensions, design and construction of the flight of steps upon which the appellant suffered her injury, had therefore to be inferred from only some of the step treads that had been salvaged and kept for use for another purpose, and a photograph of the steps taken before their demolition. Observations of an insurance loss assessor who inspected the steps in April 1990 and those of other persons generally familiar with them before their demolition and well before the institution of this action, gave little assistance on those matters.

Two expert witnesses were called to give opinion evidence as to the safety of the construction and design of the steps upon assumptions based upon and inferences drawn from the evidence available to them relating to that construction and design without having the advantage of actually examining the flight of steps in situ.

The critical aspect of design and construction upon which the appellant relied to support her case was that the step tread upon which she had her left foot when she caught the heel of her right foot as she brought it down from the tread above to that tread causing her to overbalance and fall, was less than 250mm in width.

Two persons connected with the running of the respondent's bowling club gave evidence which was accepted by the learned trial Judge that the steps had been used for about 20 years prior to the appellant's fall and that neither was aware of anybody, other than the appellant, ever having fallen upon them during that time or of any formal or informal complaint about the steps ever having been made to the respondent until a complaint was first made a couple of months after the occasion of the appellant's fall. One of those persons had been a member of the club for 20 years and both had been members of the executive of the club for some years.

The insurance loss assessor, who examined the flight of steps on 9th April 1990, expressed the view that they were in good order, the treads were tight and they had sturdy hand rails. He examined them from the point of view of safety and could find nothing wrong with them. He was able to walk up and down them without any difficulty.

An expert called on behalf of the appellant, to some extent at least, based his expert opinion upon facts that were not proved upon trial. One of the facts upon which he expressed his opinion was that the appellant had fallen after both feet had slipped on steps. Apparently this was information he had obtained from the appellant in the course of an interview with her. There were some other factual matters which it is unnecessary to examine, assumed by that expert for the purpose of expressing an opinion, which on the findings of the learned trial Judge were not established.

The engineer called on behalf of the respondent on the other hand based his expert opinion upon various matters which were proved to the satisfaction of the learned trial Judge. A critical aspect of the safe design of the particular steps insofar as it emerged from the evidence available to him, was the fact that there was nothing to suggest that the person building the steps had not followed the usual practice of setting the step treads with identical distances between the top of one tread and the top of the step tread next above it (or next below it). More importantly there was no evidence to suggest that the leading edge or "nose" of each of the step treads was not upon the same plane such that if a straight edge was laid down the flight of steps the nose or leading edge of each step tread would just touch and be in line with that edge. This according to the expert called for the respondent was the critical issue in safe design - even assuming that some of the step treads may have varied in their overall width by 10mm or thereabouts.

Upon the evidence then given by the experts and upon the finding of the learned trial Judge, counsel for the appellant was forced to contend that the learned trial Judge ought to have inferred, as this court ought infer upon the evidence, that as she was descending the flight of steps at the material time, the appellant must subconsciously have held back the movement of her right foot more than she would ordinarily have done had the step tread been 250mm in width rather than 240mm in width (on the assumption that in fact it was of that width) and thus clipped the nose or forward edge of the step from which she was removing her right foot.

The appellant, of course, did not give evidence that she did any such thing but it was contended on her behalf that it ought be inferred that she did subconsciously make that allowance when she perceived the step tread on which her lower left foot was resting was slightly narrower than 250mm.

Ultimately, counsel for the appellant was driven to contend upon the evidence that what might have been done to avoid the risk of injury to which the appellant allegedly succumbed, was to tack onto the rear edge of the offending step tread a piece of material to bring it up to a width of 250mm (on the assumption that it was not in fact of that width). This would have resulted in the appellant not being driven subconsciously to keep her right heel so close to the leading edge of the upper step as to cause her to clip it as she lowered it to the tread upon which her left foot was resting.

The expert witness for the appellant expressed the view that the width of the step tread was of minor importance compared to what he described as the width of the "going". The width of the going of the steps in issue was the distance from the leading edge of the step tread across tread to a position which was beneath the perpendicular of the leading edge of the step above (or the step below). That expert expressed the view that the width of the step tread beyond the "going" so measured, was of very little, if any, significance to a person descending the steps. To my mind the learned trial Judge was justified in preferring this evidence to the evidence of the expert witness called for the respondent.

It is clear from the judgment of the learned trial Judge that he was not satisfied upon the evidence that it had been demonstrated that the noses or leading edges of the step treads were not aligned.

A witness called for the appellant gave estimates of dimensions inconsistent with calculations made by the expert witness called on behalf of the respondent, which the learned trial Judge declined to accept. The same witness gave evidence that he had tripped two or three times while descending those steps catching his heel on the nose of the tread. The learned trial Judge commented upon the fact that no details were given of the circumstances of the alleged trips nor, importantly, as to "what part of the stairs they occurred on". His Honour commented that it was curious that that witness had not mentioned his criticism of the step construction when he gave a statement to an insurance loss assessor investigating the safety and design of the steps.

The learned trial Judge found that thousands of people had descended the steps annually over a period of many years, but that no similar mishap to that of the appellant had been reported to the committee or any criticism of the construction or design of the steps made to the committee. The learned trial Judge said that he was unpersuaded that at the time in question the stairs upon which the appellant suffered her fall presented any foreseeable risk to someone employing reasonable care while descending them. His Honour was unpersuaded that the appellant had proved that the respondent breached any duty of care which it owed to her with respect to the steps. He concluded that the appellant had inadvertently "probably because of her bad right knee failed to lift her right leg sufficiently to clear the nose of the top step". Thus the appellant failed to prove any causal connection between any departure from the standard of construction required of the steps and the fall of the appellant leading to her injury.

On my evaluation of the evidence, such a finding was open to the learned trial Judge. The expert witness called for the respondent gave evidence in any event that upon his calculations and based upon the evidence available to him, the construction of the steps insofar as the "rises" and "goings" were concerned, did conform with the relevant Australian Standards applying to such matters.

Much of the case conducted on behalf of the appellant was devoted to demonstrating that more probably than not there was a failure to comply with the requirements of the Standards. Even if such a failure had been proved - and on the evidence it was not proved - such a failure in itself would only be one matter from which an inference of negligence might (not must) be drawn, and of course unless that failure could be demonstrated to be a cause of the appellant's fall would not entitle her to judgment. It has not been demonstrated that the learned trial Judge erred in any way in his analysis of the expert evidence called by both parties. He pointed out that the expert witness called for the appellant did not really know what the relevant dimensions of the rises in the flight of steps were which was essential to calculate what the appropriate "going" upon the step treads should be to comply with the Australian Standards. He summed up the evidence correctly in my view when he said:

"I think he established no more than that this flight of stairs could have been somewhat dangerous."

He then summarised the evidence of the expert witness called for the respondent in the following terms:

"Dr. Grigg on the other hand established to my
mind that the stairs could have been safe."

In essence the dismissal of the appellant's action was based upon her failure to show on the balance of probabilities that the steps were unsafely designed and/or constructed. She also failed to prove that the design and construction of the steps was a relevant cause of her tripping as she descended them. An evaluation of the evidence and the judgment of the learned trial Judge, shows that those findings were open. Applying the principles stated in Warren v. Coombs (1979) 142 C.L.R. 531 I am unpersuaded that the learned trial Judge erred in dismissing the plaintiff's action and I agree with the conclusion to which he came.

I would dismiss the appeal. that the appellant pay the respondent's costs to be taxed.

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Toowoomba Plaint No. 136 of 1991

Appeal No. 90 of 1993

Brisbane

Before Pincus J.A.

Ambrose J.

White J.

[Re Freyling v West Toowomba Bowls Club ]

BETWEEN:

PATRICIA GLADYS FREYLING

Plaintiff (Appellant)

AND:

WEST TOOWOOMBA BOWLS CLUB (INC)

Defendant (Respondent)

REASONS FOR JUDGMENT - WHITE J.

Judgment delivered 17/09/93

I have read the reasons for judgment of Ambrose J. and agree with them and the order which he proposes. I agree with the opinion of Pincus J.A. that there was no evidence upon which the trial judge could have concluded that the appellant fell because she allowed sub-consciously for a narrow tread when moving her foot forward.