Given v The President of the Sydney Union

[1999] NSWCA 233

CITATION:	Given v The President of the Sydney Union & Ors [1999] NSWCA 233
FILE NUMBER(S):	CA 40624/98
HEARING DATE(S):	24 May 1999
JUDGMENT DATE:	24 May 1999
PARTIES :	Amanda Jane Given - A The President of the Sydney Union - 1R University of Sydney - 2R Anchor Moprtlock & Woolley Pty Ltd - 3R
JUDGMENT OF:	Handley JA at 12; Giles JA at 13; Brownie AJA at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 6585/97
LOWER COURT JUDICIAL OFFICER:	George ADCJ

COUNSEL:	Appellant - L T Grey & V J Webster First and Second Respondents - G M Gregg & I D Faulkner Third Respondent - N/A
SOLICITORS:	Appellant - Phillips Fox First and Second Respondents - Colin Biggers & Paisley Third Respondent - Minter Ellison
CATCHWORDS:	Turns on its own facts.
DECISION:	Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40624/98
DC 6585/97

HANDLEY JA
GILES JA
BROWNIE AJA

Monday 24 May 1999

GIVEN V. THE PRESIDENT OF THE SYDNEY UNION & ORS.

JUDGMENT

1   BROWNIE AJA: The appellant was injured on 25 May 1989 when she fell whilst descending a flight of stairs. The first and second respondents can be taken for present purposes to have been the occupiers of the relevant building. The third respondent was the architect who had designed the stairs. The appellant sued the respondents for damages for negligence and the learned trial judge, George AJ, found that negligence had not been established as against any of the respondents.

2   The appellant was at the time an executive officer at the University of Tasmania Union. She attended a conference of the International Association of College Unions held at the University of Sydney and on the last day of that conference she was to have gone to a dinner held at the Wentworth Building. Pre dinner drinks were served in a room in the Wentworth Building called the Art Gallery situated on level 5. The dinner was to be held in a room referred to as the banquet room located on level 4. The plaintiff was injured when going from level 5 to level 4. There were two staircases available for use referred to as the main staircase and the fire stairs. The appellant was in a group of people directed to use the fire stairs.

3   The term fire stairs is accurate enough in one sense but it is also something of a misnomer. The building had been the subject of a good deal of work and the fire stairs were only some six months old. Part of the instructions given to the third respondent when it was asked to design what was then new work, was to the effect that the stairs were to be capable of being used to enable people attending functions such as the function held on this night on levels 5 and 4, to move between those two levels. In these circumstances the fire stairs came to be called sometimes the ceremonial stairs.

4   The appellant walked down a curved section of stairway, across a landing, and then changed direction and started to walk down a straight set of stairs. She was holding the bannister with her left hand and walking in company with other people. She lost her footing and fell. The difficulty with her case is that she could not herself say how or why she lost her footing. In these circumstances a number of suggestions of negligence were made on her behalf. In brief, the stairs were too steep and too narrow, they were slippery, they were insufficiently lit, the bannister was inadequate, there were too many people using the stairway at once so as to create circumstances of noise and confusion; and the plaintiff and others were not warned of the dangers associated with all these factors and when people such as the plaintiff were wearing high heeled shoes and calf length dresses. George AJ found against the appellant in relation to each of these matters.

5   At this stage it seems to me that some of these findings by his Honour are beyond appellant review. The stairs were neither too steep nor too narrow. They had been built with a non-slippery topping and anti skid strips. They were not inadequately lit, the bannister was not defective in any relevant way and the stairway was generally in a good condition.

6   The appellant attacked the finding that there were no anti slip strips installed. In my judgment this attack must fail, having regard to the findings of fact of George AJ. It is true that a number of witnesses who were present on the night of the accident said that they had not seen any strips, but none of them seems to have been qualified in the sense that someone such as an architect might have been qualified to recognise such strips. None of them seems to have said much more than that "I saw grey steps but did not see black strips on the grey steps". As against that, Mr Wollstonecroft, the clerk of works on the construction job when the stairway was being built, described in some detail how during the course of the job he checked what work had been done. The trial judge accepted Mr Wollstonecroft's evidence. It is clear that Mr Wollstonecroft must have checked that the strips were installed no later than November 1988 because he finished on the site then and indeed became ill so that he could not work for some months. When one couples Mr Wollstonecroft's evidence with the evidence of Mrs Grey, an architect who saw the strips there afterwards, it is difficult to see how his Honour's conclusion can be attacked. The only possibility seems to be that somehow the strips were added after the accident and before tiles were put across the steps, seemingly a maximum of something like five weeks after the accident. On the evidence that seems to be totally unlikely.

7   The appellant also criticised the trial judge's reasoning in a number of ways. She said that his Honour focused upon the design and construction of the stairs and whether the stairs complied with the relevant regulations relating to their design and their construction, rather than upon the issue of negligence and more particularly how the stairs were used on the night of the accident. I am not confident that there is any real force in this criticism but even if the criticism is accepted, the appellant seems to me to suffer from the great difficulty at this stage that one cannot spell out of the evidence any causal connection between her injury and any supposed act of negligence.

8   The appellant also criticised the trial judge for not making a finding as to exactly how the accident occurred. However given that the appellant herself could not describe the accident, this seems a little unrealistic. It often happens that someone who falls is unable afterwards to describe exactly how he or she fell. It usually happens in a fraction of a second and the mechanics of the falling are not remembered with any precision at all even if the victim is asked questions very promptly. In the present case it seems to me to be more likely than not that the appellant slipped rather than that the accident occurred in one of the other ways suggested but I do not see on the evidence how one can make a positive finding about this.

9   The appellant and Mr Bushby gave descriptions of the accident which generally seem to me to suggest that she slipped, although not exactly how she slipped or why she slipped. In cross-examination she conceded that she could not say that she had not fallen simply by misplacing her feet. She could not say that she had not caught her heel in her skirt, or that somebody else had stood on her dress. Nor could she say that her shoe may not have touched the nose of the stair, causing her to fall. That is no criticism of her but it does point to the difficulty about her case. Assuming that she did slip, it does not seem to me to have been established that she slipped by reason of any negligence on the part of any of the respondents. In particular the finding of the learned trial judge that the stair tread itself was not slippery seems to me to result in the appellant's case failing.

10   Finally the trial judge was criticised for not dealing with the allegation that there was a concatenation of circumstances resulting a crowded stairway with some noise and confusion. It does not seem to me that there is any connection between that, assuming it to be negligent, and the fall itself, that is to say a connection established by the evidence. In the written submissions the appellant suggested that the respondents or at least the first and second respondents, should have directed the guests at the dinner to go down the main stairway rather than the fire stairs. Given the problems that I have mentioned it does not seem to me that even if this is regarded as something that could and should have been done, acting reasonably, there is causal connection between this supposed breach and the plaintiff's damage. I would therefore dismiss the appeal with costs.

11 There is a further question raised as to the learned trial judge's award of indemnity costs after particular dates. The first and second respondents had made an offer of settlement of the type commonly referred to as a Calderbank letter offering $5,000 inclusive of costs. That offer was made in November 1992, some three and a half years after the accident and some two years after litigation had been commenced. In the language of Sheppard J in Colgate Palmolive Pty Limited v Cousins Pty Limited (1993) 46 FCR at 225 there seems to me to have been an imprudent refusal of an offer to compromise and in my view it cannot be said that the trial judge's discretion miscarried in any way. In a practical sense it is probably true to say that it was an offer by the first and second respondents to pay their own costs and to pay $5,000 towards the appellant's costs, but given the factual circumstances and the timetable, it does not seem to me that any error has been demonstrated. It may be that the trial judge was persuaded by the appellant to as it were set the barrier too high but if so, nothing turns on this. The third respondent made an offer in 1996 to accept judgment for it with the appellant pay half of the third respondent's costs. I think much the same consideration applies to that. I would therefore not interfere with the trial judge's findings as to costs.

12   HANDLEY JA: I agree. The trial judge rejected all of the particulars of negligence provided on behalf and although a number of these rejections are challenged by Mr Grey for the appellant, I have not been persuaded that any of his criticisms should lead to the reversal of the judgment for the defendant in this case. I do not think for example that there is any reality in the suggestion that at a university function of the character here in question that somebody should have instructed the persons present to use one set of stairs rather than the other when the most convenient and accessible stairs had the configuration established by the evidence in this case, nor do I think that the consumption of alcohol at the pre dinner drinks in the higher level attracted any special duty in the circumstances of this case in the absence of some clear knowledge that a particular person was significantly affected by alcohol. There is no suggestion of any such affectation by alcohol in this case. I agree with Brownie AJA that given the findings based particularly on the documentary evidence and the evidence of Mr Wollstonecroft, the judge's finding that a non slip surface had been placed over the treads of these stairs and that non slip strips had been erected 25 millimetres and further back from the edge of the treads is really sufficient to dispose of this appeal. The stairs complied with the legal requirements under ordinance 70. Descending stairs is always fraught with some danger if care is not taken and the danger is not small where one is using high heels such as the plaintiff was on the evening in question. A railing was provided and was being used and in the circumstances the unfortunate slip which the plaintiff suffered which appears to have resulted in quite significant injuries for her, is not such as to attract any legal liability on the part of the defendants. There is still such a thing in our society as an accident for which nobody is really legally responsible. This seems to be the situation in the present case. I agree with the orders proposed.

13   GILES JA: I agree with both judgments and have nothing to add.

14   HANDLEY JA: The orders of the Court therefore are appeal dismissed with costs.

************