Hanna-Pauley v AMP Shopping Centres Pty Ltd - [2006] WADC 7

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HANNA-PAULEY -v- AMP SHOPPING CENTRES PTY LTD [2006] WADC 7

CORAM: HH JACKSON DCJ

HEARD: 1314 JUNE 2005

DELIVERED : 30 JANUARY 2006

FILE NO/S: CIV 2523 of 2000

BETWEEN: CABARINI FRANCES HANNA-PAULEY
Plaintiff
AND
AMP SHOPPING CENTRES PTY LTD
Defendant

Catchwords:

Occupiers liability - Negligence - Step at exit from shopping centre - Liability in issue

Legislation:

Occupiers Liability Act 1985 s 5

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: Mr K J Bradford
Defendant: Mr M H Zilko SC

Solicitors:

Plaintiff: Bradford & Co
Defendant: Jackson McDonald

Case(s) referred to in judgment(s):

Apex Holiday Centre v Lynn [2005] WASCA 58
Baulkham Hills Shire Council v Pascoe [1999] NSWCA 431
Fox v Percy (2003) 214 CLR 118
Francis & Ors v Lewis (2003) NSWCA 152
Hoyts Pty Ltd v Burns [2003] HCA 61
Johnson v Johnson, unreported; NSWCA; BC9101576; 10 September 1991
North Sydney Council v Plater (2002) NSWCA 225
Richmond Valley Council v Standing (2002) NSWCA 359
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588
Swain v Waverley Municipal Council [2005] 213 ALR 249
Turnbull v Alm [2004] NSWCA 173
Wilkinson v Law Courts Ltd [2001] NSWCA 196
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Baker v Gilbert [2003] NSWCA 113
Barclay Oysters v Ryan (2002) 211 CLR 540
Chappel v Hart (1998) 195 CLR 232
Commissioner of Main Roads v Jones [2005] HCA 27
Drotem Pty Ltd v Manning [2000] NSWCA 320
Hackshaw v Shaw (1984) 155 CLR 614
Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201
Phillis v Daly (1988) 15 NSWLR 65
Rasic v Cruz [2000] NSWCA 66
State of New South Wales v Broune & Anor [2000] NSWCA 3
Thompson v Woolworths (Q'Land) Pty Ltd [2005] HCA 19

HH JACKSON DCJ:

Background

The plaintiff was born in August 1968 and was at the material time employed as a café supervisor in shop premises at Garden City Shopping Centre, Booragoon by Aherns Ltd, now David Jones Ltd. The premises were owned and controlled by the defendant which was an occupier of them in terms of the provisions of the Occupiers Liability Act 1985. Aherns Ltd leased the premises from the defendant.
The plaintiff claims that on 6 April 1998 she ‑
"attempted to exit a rear door of the premises. In the course of so doing, she was required to step on to a narrow section of kerbing from a step of approximately 350 millimetres deep. As the plaintiff existed the door she was caught off balance by the kerbing and stumbled on to a driveway located next to the kerbing and as a result suffered pain and injury".
The plaintiff alleges that the accident occurred as a result of negligence and a breach of s 5 of the Occupiers' Liability Act 1985 (WA) on the part of the defendant, its servants or agents.
The following particulars are pleaded:
5.1Failed to modify or adjust the kerbing which was too narrow for the Plaintiff to step on.
5.2Failed to erect any or sufficient warning signs to advise the Plaintiff that the kerb was narrow and a danger.
5.3Failed to otherwise warn or advise the Plaintiff of the danger posed by the narrow section of the kerb.
5.4Failed to relocate the door away from the narrow section of the kerbing.
5.5Failed to extend the kerbing which was too narrow in the circumstances.
5.6The premises were unsafe in all the circumstances by virtue of the step which was too deep and the kerbing which was too narrow, individually and in combination.
Reference to the step being too deep was added to the pleadings on the first morning of trial before evidence was called.
The defendant's case was argued on the basis that the step and associated structures were not dangerous and that the cause of any fall or stumble was the plaintiff's own inattention and carelessness, and not any negligence on the part of the defendant.
Further and better particulars of the kerbing and step are contained in a photograph lettered "A" comprising part of amended further and better particulars dated 9 June 2005 filed at trial. The doorway has since been altered and so the original measurements can now only be estimated approximately.
The matter came to trial solely on the question of liability, damages having been provisionally agreed to be heard together with claims in other proceedings.

Plaintiff

The plaintiff was born in August 1968 so at trial was almost 37 years. She commenced employment with Aherns Ltd on 30 March 1998 as a café supervisor at the premises concerned with in this action. The alleged accident occurred, she says, on 6 April. About two months later she took a photograph (exhibit 1) of the relevant part of the premises from the exterior and measured the dimensions. In evidence she recalled the dimensions from the top of the concrete floor as being a step of about 35.5 centimetres on the higher side reducing to one of about 28 or 28.5 centimetres on the lower side. The ledge or landing was 20 centimetres wide and below it a concrete kerbing falling 23 centimetres to the flat area.
Below that was a sloping area of concrete which fell vertically to the external bituminised vehicle area.
About a week prior to trial the plaintiff took another photograph of the area (exhibit 2). It is clear that in the interim period the doorway has been significantly widened on the lower side.
The plaintiff says she was instructed to use the particular door but there is no question that, in any event, it was there to be used by her and others. There was no warning sign inside the premises regarding the step and ledge nor was there any handrail. Leaving the building the door is hinged on the right hand side where the step is deeper. However, the plaintiff had used the doorway to leave the building a number of times. Her account of the events at trial is as follows:
"I opened the door and went to step out like I normally have in the past and I came down hard on my left foot on the landing and over – basically overstepped it by an inch or two and my foot slid down the slope of the kerbing into – basically nearly onto the roadside and I swung my right leg around to sort of keep my stance, so I twisted and arched my back and basically I arrested my fall but kept standing and then once I was upright I basically started walking again across down into Kmart, another entry into the thing.
You say that you twisted and arched your back. How soon after – was there any time after that where you became aware that you had suffered an injury? ‑‑‑ Well, during that split second I felt something in – like, twinge or pull, but it was after I regained my stance, my upright stance, and made a – you know, walked a few steps, that I started just getting tight and sore.
Did you report the accident? ‑‑‑ Yes, I did.
How soon after that did you manage to see a doctor? ‑‑‑ I couldn't get an appointment the night after at work, so I made an appointment for the next day.
…
Yes, from the inside, standing on the surface of the floor before you step down, what are you able to see ahead of you? ‑‑‑ Well, you see the bitumen roadside because once you've opened the door you are actually a step back.
Yes? ‑‑‑ You know, you can't see the landing or the kerbing, you see the roadside.
The landing that you have referred to, how is that observed? When do you see that for the first time? ‑‑‑ Once you're already in the momentum of the step.
Yes? ‑‑‑ Unless you bent over. You know, you sort of bend to have a look.
What do you mean by that, 'Bending if you have a look'? ‑‑‑ Well, if you were to bend and then take your step, then you'd obviously see it as you would – before you were taking your step, but ‑ ‑ ‑
But if you had a normal posture what would happen? ‑‑‑ No, you wouldn't see it.
On how many occasions prior to the accident did you come out of that building? ‑‑‑ It would have to be at least 10 times.
Did you have any accidents on the other 10 occasions? ‑‑‑ No.
Was there any sign inside the premises of Aherns, warning of the ‑ ‑ ‑ ? ‑‑‑ Not that I noticed."
There is no suggestion that such a sign was in fact in place.
The plaintiff measured the length of her foot at 25 centimetres.
"If the landing onto which you stepped was wider, what do you think would have happened? ‑‑‑ Nothing would've happened. I would've just kept going to Kmart.
Now, did you continue to work for Aherns after this accident had occurred? ‑‑‑ I went back after the accident and had a meeting with my manager and I basically left early that day … The next morning I actually did attend work … but after a couple of hours I couldn't maintain work and I left to go to the doctors.
And subsequent to that did you return to work at the premises? ‑‑‑ Yes, I did.
When you did return to work at the premises, did you exit through that doorway again at any time? ‑‑‑ Yes.
And on those occasions how did you go about exiting the doorway? ‑‑‑With more caution …
… Well, I held onto the side of the wall when I went down.
Yes. So you held onto the left‑hand side of the doorway? ‑‑‑ Yes.
Which side of the door did you hold on? ‑‑‑ Well, just going out it would be the left‑hand side of the doorway.
What did you do? ‑‑‑ Just stepped out and as I did before – obviously I held on with more caution and looked down with more caution and stepped out.
…
Were you walking normally at the time? ‑‑‑ I was – when I was using it the second time?
Yes? ‑‑‑ I basically – I had a bit of a limp happening."
Cross‑examined the plaintiff agreed that the internal width of the doorway might be 79 centimetres. She did not accept that the height difference from the step to the landing over that width varied by only 2.5 centimetres. It became clear under cross‑examination however that her evidence as to the dimensions she had measured was not based on written notes she had kept, but on memory as to which she asserted she was confident but on which she was somewhat vacillating. The plaintiff said she had written down the measurements at the time and "given the measurements to the lawyers when I first took the photos" but had lost or misplaced them. She had returned to the scene shortly before trial to reconstruct her memory but the structure had been altered making this difficult.
The plaintiff said that on the day in question and on the other occasions she used the step, she had been wearing new tight lace‑up work shoes with rubber soles and heels. She had used the step to exit at least 10 and perhaps 20 times before she fell, and about another 18 after. There had been no other incidents.
The door had to be opened manually and is heavier than a normal door. It is self‑closing.
The plaintiff was asked:
"Did the door push you in any way? ‑‑‑ It was closing, like, as I was leaving.
Did it push you in any way out the door? ‑‑‑ No, the step made me – the kerbing made me lose my balance.
Are you sure? Are you sure about that? ‑‑‑ Yes."
The plaintiff was then asked questions about a claim made by her in District Court Action 737 of 2004 against David Jones Ltd as defendant. In that action in a statement of claim dated 8 March 2005 (exhibit 3) the plaintiff alleges that:
"On 6 April during the course of her employment with the defendant –
(i)the plaintiff was leaving the premises via the staff exit;
(ii)the staff exit door which was large and heavy closed behind the plaintiff forcing her onto a narrow section of kerbing;
(iii)as a result the plaintiff lost her balance and fell onto a driveway adjacent to the kerb".
The plaintiff answered:
" ‑ ‑ ‑ The version I gave this morning is correct. The fact that the door pushed me out – I think that's just unfortunate miswording because the door closed on me. It didn't push me. It didn't push me out onto the kerbing. The door closed on me."
That statement of claim then alleges that as a result the plaintiff suffered injury to the cervical and lumbar spine, right knee, right shoulder and pain in both legs. She responded that that must be an error by counsel because "I didn't hurt my right shoulder in this accident". Nor was her neck hurt in the accident. The door had closed behind her without pushing her forward. After stepping out she had been in the motion of falling but did not actually fall to the ground but regained her stance. Then followed further cross‑examination:
"Where were you looking before you stumbled or fell, whatever it might be? Where were you looking? ‑‑‑ I was looking in the direction in which I was travelling.
Were you looking at the steps to make sure that you went down them safely? ‑‑‑ Like I said, you have to be halfway in your step before you can notice the kerbing.
But you'd been down these steps between 10 and 20 times, Mrs Hanna‑Pauley, hadn't you? ‑‑‑ Yes.
You knew all about the steps, didn't you? ‑‑‑ Yes, but that ‑ ‑ ‑
I'll ask you again; on 6 April did you look at the steps? Because you clearly knew that you had to look down to adjudge the best place to put your foot? Did you look down immediately before you stumbled or fell on 6 April? ‑‑‑ Not immediately before, no.
…
… I mean you do have to look down but it's hard to do so when – you know, unless you're already sort of in the middle of the step.
… Did you leave the door and look down and then carefully plant a foot down? ‑‑‑ No. Like I said to you, you can't look down, you can't leave the door and look down. There's just no room. As you walk out, it's a matter of doing it then. There's just no room and time to be able to do that.
Were you in a hurry? ‑‑‑ … I wasn't in an extreme hurry but I was leaving as I normally would leave.
What was the time problem? ‑‑‑ There wasn't a time problem. It was after my lunchtime rush and I wanted to get back within a half an hour to see my manager.
I put it to you that there was no reason why you couldn't have looked down? ‑‑‑ But as I'm trying to explain to you, there isn't – the door is the step down, so as you open the door you ‑ ‑ ‑
…
Now what is it about – and you yourself traversed it between 10 and 38 times, didn't you? ‑‑‑ Yes, numerous times.
Yes; 38 times without trouble. What is it about this particular day which differentiates it from any other day? ‑‑‑ Okay, because I was – for one thing, I was actually travelling in a different direction than I normally would. I wasn't going left. I was going right at the door.
But you've told me … that you appreciated that you needed to have a look before you … put your foot down, didn't you? ‑‑‑ You look to where you're putting your foot down. Unfortunately, on that day I was an inch over where I should have landed and I slid down the slide of the kerbing.
Do you agree that it's just a matter of commonsense and common care ‑ ‑ ‑ ? ‑‑‑ No, unfortunately, I disagree. The fact is it's actually a dangerous step. It is a dangerous step.
…
Do you agree that it's a matter of commonsense that whenever you go downstairs or steps of any kind, you have a look where you're placing your feet? ‑‑‑ For me, I always go to the railing and I hold the railing when I go down steps most of the time, but there is no railing.
If there's no railing, and you must have been down steps in your life where there has been no railing, do you agree that as a matter of commonsense you don't look out into the distance or you don't look to the left or the right, you look to see where you're putting your feet? ‑‑‑ Well, obvious. I mean you do that. It's instinctual when you go down steps that you're not going to you know ‑ ‑ ‑
It's instinctual and you say it's obvious that that's a matter of commonsense, don't you? ‑‑‑ For me it is, anyway.
And yet despite the fact that it's obviously a matter of commonsense, you didn't do it? ‑‑‑ I did, but unfortunately the drop was deeper than I recall the other side which I would normally exit out of. See, if you were to go out like I would, going back to the car park, it's actually a five centimetre drop less going that way than it is if you were going that way, which makes it steeper.
…
The proposition is that over the width of the door there was a one‑inch difference? ‑‑‑ Yes.
…
Over the width of a door would you agree with me that a one‑inch difference in gradient is negligible and should not cause you any difficulty? ‑‑‑ With the depth of the step, I'd have to disagree with you because … it's a deep step and you can't see it. As you're walking out immediately onto it you literally have to bend over to see the step to step out on it.
The plaintiff agreed that by the day in question she had known these things, that the step was deep and that she had to look where she was going both for that reason and as a matter of commonsense. The plaintiff had not complained of the step to her employer because her instinct was to get back to work. She did however report the accident to her manager.
The plaintiff was shown her written report (exhibit 4): "6 April, 1.40 pm, nature of injury ‑ hip, pulled muscle ‑ out of staff entrance … stepped down on left leg, pulled muscle."
She said that the injury turned out to be greater than a pulled muscle. She said she reported to her manager that she had hurt her back. The plaintiff agreed she may have said she had misjudged the step. In a report (exhibit 5) signed two days after the incident the plaintiff wrote "Stepping down the step, misjudged depth of step. Landed hard on left leg". She denied that she had only recently decided that the problem lay at all in the depth of the step and had only recently so instructed her solicitors. She agreed that in describing the incident to medical specialists and others, she may have used the expression that she "misjudged her step" or "misjudged the step".
A bundle of extracts from various doctors' notes of the history taken from the plaintiff later was tendered by consent as exhibit 8.
The defendant did not put it to the plaintiff that the incident had not occurred; the defence is based entirely on denial of negligence. The defendant attributes the incident to the plaintiff's own lack of care, she being the author of her own misfortune.

Ms V C D'Silva

The defendant called Ms V C D'Silva. She was an employee at the Aherns Garden City store from about 1991 to 1996 and then again from about 1998 for a period. Amongst her duties she was to train the plaintiff as a supervisor. Staff were expected to leave and enter the building by a staff exit at the rear and were recommended to wear rubber soled shoes.
Ms D'Silva was asked to describe the exit:
"It was a single door that opened inward into the complex.
Once you had opened the door, … what would you do? What happened? What did you see? ‑‑‑ You would step down onto the ledge and then step down onto the road.
You called it a ledge. It has been called a landing? ‑‑‑ Landing.
… What came after the landing? ‑‑‑ The road.
… Was there a kerbing? ‑‑‑ There was a kerbing, yes.
… When you called it a ledge, what is it exactly? ‑‑‑ It's the concrete – the kerbing which goes from the side of the building, from one side to the end."
She indicated that on the photo taken by the plaintiff:
"How many days a week did you work in the period 91 to 96 and then again when you came back to train Mrs Hanna‑Pauley? … Five days a week.
… in that period, 91 to 96 and again in 98, how many times per day do you estimate you left that door and went outside? ‑‑‑ Three times.
…
… Now, in that time doing that, did you ever have an accident of any kind? ‑‑‑ No, sir.
Did you ever see ‑ ‑ ‑ ? ‑‑‑ No.
Did you ever misjudge your footing? ‑‑‑ No.
Now, in your position at the premises did you ever receive any account of anyone else slipping, falling, stumbling et cetera? ‑‑‑ Not that I can recall."
Ms D'Silva said that on coming out the door "if you looked down you saw the landing and then the road". She agreed that as you approached the landing it was the last thing seen and the step had to be judged whilst being approached. The step down was greater on the left side than on the right because of the fall of the land. Standing still at the top of the step and looking down, the landing can be seen.

The plaintiff had told her that she had fallen and hurt her hip, saying she had misjudged the step. Ms D'Silva said she had told the plaintiff to notify someone.
She had never measured the length or drop of the step but estimated it as probably the height of a wine bottle. On a folder she estimated it at 28 centimetres. The width was probably larger than a size 7 ladies foot (or 21 centimetres). However, she could not say whether this included any part of the kerbing. She had not seen the step since 1998 and had only recently been asked to recall it.
About 30 people working at the store used the door.

Mrs W O Ford

The plaintiff also called Mrs Ford, a deputy store manager who had visited the premises regularly whilst overseeing the café and recalled the plaintiff working there in 1998, and also the staff entrance. She identified the photograph (exhibit 7):
"So when you are leaving the premises through that door, what would do? … Approaching the door from the inside, what would you do? ‑‑‑ You would open the door and then step out.
Did you experience any difficulty in doing that? ‑‑‑ No.
How often do you consider you would have done that … ‑‑‑ Well, I would have gone there several times a week, so, say, two to three times a week over the year.
When you say over the year, 1998? ‑‑‑ Yes.
…
Did you go there in 97 at all? ‑‑‑ Yes.
So you went there from January 97 two or three times a week? ‑‑‑ Yes.
And then you went there at the start of 98 before Mrs Hanna‑Pauley's accident … Did you go there after her accident? ‑‑‑ Yes, I did.
And did you use that entrance? ‑‑‑ Yes, I did.
Have you ever fallen there? ‑‑‑ No.
Have you ever stumbled or slipped? ‑‑‑ No."
She recalled the plaintiff telling her of the incident. She said that when she had "gone out the back, the staff entrance, she had misjudged the step". She had not learned of any other injury or incident at that step involving catering staff.
She identified exhibit 4 as being a standard form used in such occurrences and exhibit 5 as being the plaintiff's workers compensation report form in the matter.
There had been about 200 staff in all at the store, of which about 30 were catering staff.

Mr C L Proctor

The defendant called an insurance assessor, Mr Proctor, who had undertaken an assessment in relation to the matter in September 1999. He inspected the staff exit which he described as a single door which "went on to a small – a ledge and then down onto a bituminised driveway". He measured the door and its surrounds and noted the measurements on notepaper (exhibit 6). The doorway internally had measured 204 centimetres in height and 79 centimetres wide. The distance from the edge of the door sill to the point at which the concrete falls downwards is 9 centimetres or, in other words, the door is recessed 9 centimetres from the wall. The step down measures 28.5 centimetres at the higher end and 26 centimetres at the lower end. The width of the landing is 35 centimetres. The kerbing then falls a height of 18 centimetres to the driveway. He was uncertain as to exactly where he took the latter measurement but certain it was correct.
A bundle of documents from the file of project managers comprising a plan dated 26 February 1999, a memo dated 14 December 1999, facsimile with attached plans dated 25 January 2000, facsimile with attached plans dated 21 February 2000, facsimile with attached plans dated 13 March 2000, and facsimile with attached documents including plan dated 21 March 2000 were tendered by the plaintiff as exhibit 7. Despite Mr Bradford's submissions referred to below, I am not able to see their relevance.
The defendant also tendered by consent a copy of the lease under which the defendant leased the premises to her employer (exhibit 9).
No evidence was tendered of any relevant building or design standards.

Legal Principles

There is agreement that the defendant owed the plaintiff a duty to take reasonable care that the premises, including the area here involved, were safe and so to avoid foreseeable risk of injury.
A number of general propositions may be stated which expand and explain that general statement.
The duty of care is not confined to a person using reasonable care for his or her own safety and inadvertence must be allowed for; see for example Richmond Valley Council v Standing (2002) NSWCA 359 and Turnbull v Alm [2004] NSWCA 173.
As stated by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40:
"A risk which is not far‑fetched or fanciful is real and therefore foreseeable".
In Francis & Ors v Lewis (2003) NSWCA 152 it was pointed out though that:
"Foreseeability of risk of injury is not determinative of breach of duty of care. … 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]).
41 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 Pasco [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.'
57 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])."
In determining reasonable care regard must be had to the gravity of the risk and the likelihood of injury.
In retail or commercial premises as distinct from purely domestic ones, there is an obligation to pay attention to accident prevention. In some cases there is a positive obligation to put in place a system of regular monitoring and inspection of the condition of premises so that the standard of care requires more than a reaction when a danger is made known. There is no evidence that the defendant in this case conducted any regular inspection of the premises in the nature of a safety audit. The law imposes on occupiers of retail and commercial premises to which members of the public are invited an obligation of regular inspection to ensure that they are maintained in a condition which is safe for general public use. See for example Johnson v Johnson, unreported; NSWCA; BC9101576; 10 September 1991.
In Swain v Waverley Municipal Council [2005] 213 ALR 249, McHugh J commented:
"In some cases, common knowledge or common sense is all that is required to prove a reasonably practicable alternative. In other words, the plaintiff may be able to discharge the evidentiary onus of establishing a practicable alternative without the benefit of technical or expert evidence. In Maloney v Commissioner for Railways, Barwick CJ said that evidence of the practicability of the proposed alternative course of safeguard 'is essential except to the extent [that it is] within the common knowledge of the ordinary man.' Similarly, in Tressider v Austral Stevedoring and Lighterage Co Pty Ltd [1968] 1 NSWLR 556 the New South Wales Court of Appeal said that in some cases:
'[N]o more than common knowledge or common sense is necessary to enable a judge or jury to perceive the existence of a real risk of injury and to permit the tribunal of fact to say what reasonable and appropriate precautions might appropriately be taken to avoid it'."
In Apex Holiday Centre v Lynn [2005] WASCA 58 Simmonds J with whom Wheeler J agreed noted that in Richmond Valley v Standing [2002] NSWCA 343:
"Stress was … laid on the fact that the unevenness in question was 'obvious', involving 'no concealment', 'inadequacy of lighting', or 'obscuring of the hazard by grass of otherwise' " (at [54] per Heydon JA, Handley and Sheller JJA agreeing).
"It is also clear that, as the learned Commissioner herself noted at ([101]), while steps are 'inherently, but obviously dangerous', and many measures might be taken to make them 'as safe as human skill could possibly make them', nonetheless 'the duty is only to take care which is reasonable under the circumstances' (Wilkinson v Law Courts Ltd [2001] NSWCA 196, at [32], per Heydon JA, Meagher and Rolfe JJA agreeing)."
Mason J pointed out in Wyong Shire Council v Shirt (1980) 146 CLR 40 that:
"The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
In Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Hayne J said:
"Usually the gravity of the injury that might be sustained, the likelihood of such an injury occurring and the difficulty and cost of averting the danger will loom large in that consideration. But it is not only those factors that may bear upon the question. … But all of these matters (and I am not to be taken as giving some exhaustive list) are no more than particular factors which may go towards judging what reasonable care on the part of a particular defendant required. In the end, that question, what is reasonable, is a question of fact to be judged in all the circumstances of the case."
Brennan CJ explained that in that case:
"… the risk existed only in the case of someone ignoring the obvious.
In putting the matter in that way, there is a danger of drawing in the question of contributory negligence of the plaintiff to what is a consideration of the duty of care on the defendant. For that reason we think it is preferable to approach the matter on the footing that there was a duty of care on the respondent to take any steps that were reasonable to prevent the foreseeable risk becoming an actuality.
…
A sign might serve as a warning to someone unfamiliar with the area. But to someone who was familiar, as the appellant was, a warning sign would serve no purpose."
In that case there was no reasonable alternative.
In Hoyts Pty Ltd v Burns [2003] HCA 61, Kirby J discussed both the value of evidence given, obviously, by a plaintiff after the event of what effect a warning sign would have had and the factors relevant to whether such a sign is called for. At par 54 his Honour said:
"… the evidence of what a claimant would have done if a non‑existent warning had been given by a hypothetical sign is so hypothetical, self‑serving and speculative as to deserve little (if any) weight, at least in most circumstances."
At pars 71 – 72 his Honour said:
"Considerations relevant to the obligation to provide a warning notice will include (1) whether the occupier has an economic or other interest in the entry of the plaintiff; (2) whether, because of previous incidents, public discussion or otherwise the occupier could be expected to know of any particular risks against which warnings should be given; (3) whether there was any hidden feature of the place or activity that might not be plain to an ordinary entrant but which should be known to, or reasonably discoverable by the occupier, calling for a warning; (4) whether, if the risk eventuated, the consequences would be likely to be minor or significant for the person affected; (5) whether the imposition of a requirement to give a notice could be confined to a particular place or places or would have large implications, costs and other consequences; and (6) whether the nature of the activity in question was such as to render the presence of a sign irrelevant to the actual prevention of injury.
These, and doubtless other, considerations must be weighed in the particular circumstances, to decide whether the duty of care owed to the entrant extended to the provision of a warning and, if it did, whether a sign containing the warning would have prevented injury in the particular case."
Mr Zilko for the defendant referred me to a number of relatively recent cases, mainly from the New South Wales Court of Appeal
In Wilkinson v Law Courts Ltd [2001] NSWCA 196, Heydon JA (now of the High Court of Australia), with whom Meagher JA and Rolfe AJA agreed, said:
"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' ".
That decision was approved in this State in Apex Holiday Centre v Lynn [2005] WASCA 58 (supra).
In Wilkinson the trial judge had recognised that variations in the width or height of stairs may be unsafe. Here the argument is simply that the height of the step made it unsafe. But that is not the only question. In Baulkham Hills Shire Council v Pascoe [1999] NSWCA 431 in the judgment of Brownie AJA with whom Sheller and Giles JJA agreed it appears that the plaintiff failed on the question of causation. There was evidence that the steps were worn and that a non‑slip strip may have helped users. Brownie AJA commented:
"That is obviously correct. It is equally obviously correct to say that there is no such thing as a perfectly safe stair. But of course that is not the legal test. I would allow the appeal, … on the basis that there is no evidence which would justify a finding that the accident occurred by reason of any defect in the stairs.
[10] We were referred to a decision of the Court in Ryan v Coles Myer Ltd, 9 November 1995, not reported. In that case at p3 Justice Clarke spoke of the situation there, where the plaintiff's case had been left with no basis upon which one could prefer one of two possibilities to another. It seems to me that this case is in the same position.
[11] There is a further reason, in my view, why the appeal should be allowed, … That is that on the evidence it does not seem to me to have been established that a reasonable person in the position of the respondent ought to have done anything to avert the danger to which Dr Cook referred. As I said, no stairs are perfectly safe, and that although they complied with the appropriate standard they could have been made a bit safer. Many people had used this set of stairs, so far as the evidence goes, without incident. The plaintiff himself had used the stairs on a number of occasions without incident and without, it seems, any sense of alarm."
In North Sydney Council v Plater (2002) NSWCA 225 Giles JA with whom Handley JA agreed said:
"[43] The claimant was not obliged to take care to ensure that the stairs offered as much friction at the nose as possible. It was required to take reasonable care for the safety of users of the stairway. From the evidence of the opponent's prior usage without incident, and the lack of evidence of other slips or falls, the stairs fulfilled that requirement. From the expert evidence of the friction offered, they met that requirement, and there was no evidence on which it could properly have been found that the surface at the nose of the steps was unreasonably slippery. As has been said on a number of occasions, no stairs are perfectly safe (see for example Balkham Hills Shire Council v Pascoe (1999) NSWCA 431), and the opponent's description of her fall did not point to any deficiency. …
[44] It is necessary to recall what was said by Brownie AJA in Baulkham Hills Shire Council v Pascoe at [12] –
'It seems that there is a school of thought to the general effect that if a stairway or something else is not perfectly safe, then a plaintiff who is injured in connection with that lack of safety has prima facie some cause of action. …' ".
In Turnbull v Alm (supra), Bryson JA, with whom Giles and Tobias JJA agreed said:
"[42] In Waverley Municipal Council v Swain[2003] NSWCA 61 at [114] Spigelman CJ noted decisions from which it is possible to identify a change in the law in the direction of greater weight’s being given to the proposition that people will take reasonable care for their own safety. This is a proposition for consideration, with other considerations, which present themselves when addressing the succession of questions which a negligence case raises, including the question of reasonable response to foresight of risk: it is not a rule of law and does not impose a clear or 'bright line' limit to responsibility. Allowance must be made for inadvertence: Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512 581 [163] and a shopkeeper owes a duty of care even to careless customers: see David Jones Ltd v Bates[2001] NSWCA 233 at [17] to [19] (Davies AJA) and authorities there cited.
[43] In the Shirt Calculus the consideration that a duty is owed to persons who take ordinary care for their own safety is only one of the elements in the calculus; the nature and the difficulty of the measures which would overcome the risk, and the likelihood that the risk will come to realisation at some time in the course of use of the footpath by the public are also elements in the calculus; all have to be taken together. … While an adjudication on what is reasonably required should take place in each case on the facts and circumstances of each case, and the development of standard responses and patterns of interpretation for recurring situations of fact should be received with caution, what should be regarded as reasonable care for their own safety and as acceptable inadvertence on the part of entrants to retail premises, even on the periphery as in this case, is likely overall to be less exacting of them than what is regarded as reasonable care for their own safety on the part of persons exercising their legal rights to use roads over which public authorities have powers of maintenance and repair imposed by public law. The relationships are completely different, and the calls for self-regarding vigilance are different."

Findings

Mr Bradford criticised a number of aspects of Mr Proctor's evidence. No photographs of many he said had been taken by him were produced. He measured the kerbing not at the area of the doorway but, it seems, at the end, assuming its dimensions were constant. His evidence did not clearly indicate whether he measured the step down as including the concrete top of the step. He also criticised the rather scrappy nature of Mr Proctor's sketch of the dimensions of the step.
On the issue of the measurements of the step however, I prefer the evidence of Mr Proctor to that of the plaintiff. He was independent and produced his written notes whereas the plaintiff's evidence, based on memory, was unconvincing: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 and Fox v Percy (2003) 214 CLR 118.

Acceptance of the plaintiff's evidence is also reduced by the fact that in other civil proceedings on foot in this court she has in her pleadings described the facts of the event somewhat differently.
The defendant argues that there is nothing about this step or landing which is unusual or which constitutes an obvious or unusual risk or which required a safety audit or rectification. No other accidents, complaints or reports were in evidence. No expert evidence was called nor was there evidence of any relevant standards of design or construction. The plaintiff has the burden of proof. Mr Bradford pointed out that there was no evidence of inspection or audit of the premises by the occupier and that the evidence of lack of other incidents or complaints was limited. Mr Bradford pointed out the evidence of both the plaintiff and of Ms D'Silva that vision of the step and landing on exiting was only available at the last moment and whilst in proceeding.
Whilst until shortly before trial the essence of the plaintiff's case was that the landing was of insufficient width, in my view it is not established that a width of 35 centimetres (as put by the defendant) is insufficient.
Nonetheless, whatever the position in relation to the responsibility for the pleadings, and the plaintiff said this was a matter she had raised with her solicitors, the earlier paperwork at least raised the issue of the depth of the steps.
The step down is, it seems to me, although no evidence was led on this, somewhat deeper than the usual step found on stairs or public steps. It is slightly deeper than the step down described by E M Heenan J in Apex Holiday Centre (Inc) v Lynn (supra) as "a large drop". It is true also that the doorway and exit has since been altered, but not I think, for any relevant purpose.
I find that because of the depth of the step and the placement of the landing such that it abutted rounded kerbing descending to the pavement, there was a foreseeable risk of injury to users which was not remote or fanciful, but which rendered the exit dangerous especially to those not using reasonable care for their own safety. It might be thought though that the risk of serious injury was not great.
By way of response, Mr Bradford argues and the particulars of negligence outline, the defendant should have erected a warning sign and altered the physical arrangement of the step and kerbing. No evidence was led as to either such proposition however. Although he argued that the photograph (exhibit 2) and the plans or drawings (exhibit 7) show that the step had been converted into two, there is no real evidence about when or why that was done or its safety effect. In argument, Mr Bradford suggested the step should have been converted into two and the landing extended. There is however, no evidence that these latter proposals were practicable or would have been effective.
Although the plaintiff pleads as a particular of negligence the absence of any warning sign, no evidence was led as to any role such a sign might play. The plaintiff herself knew the step concerned. The event occurred in daylight. The plaintiff herself subsequently in describing what had occurred used the expression that she had misjudged the step, without complaining that it was inherently unsafe. In my view given the plaintiff's familiarity with the step I am not satisfied such a sign would have contributed to the prevention of the incident.
I am not prepared on the evidence to infer that the change or changes to the doorway were made in order to render the step down safe or safer. The evidence is lacking or inconclusive. Nor do I accept Mr Bradford's submission that, on the evidence, the evidentiary burden passed to the plaintiff, for the same reasons.
The day was apparently fine and there is no suggestion either of the step being wet or slippery or of the plaintiff being other than able‑bodied and of good sight. No suggestion was made that a handrail or edging strips or other aids should have been provided. No expert evidence was called as to the design or construction of the steps. There is no evidence other than that of the plaintiff that the incident was caused by the fall of the land which resulted in the step down being deeper at one end than the other.
In my view the risk was obvious as it often is with steps. The plaintiff knew of it. A warning sign in general may have been helpful and was an obvious precaution, but in the present case would have added nothing to the plaintiff's knowledge.
Whilst there was a duty of care and the step presented foreseeable risk of injury which should have been at least warned of, I am therefore not prepared to find that breach of the duty in the plaintiff's case was causative of her injury, if any.

Contributory negligence

If I am wrong and if liability is in fact established, the question would then arise of any contributory negligence on the part of the plaintiff. I would find in that case that such was established and apportion liability 50/50.