Hutch v Ryan
[2015] WADC 16
•20 FEBRUARY 2015
HUTCH -v- RYAN [2015] WADC 16
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 16 | |
| Case No: | CIV:3413/2011 | 30 SEPTEMBER AND 1 & 2 OCTOBER 2014 | |
| Coram: | DAVIS DCJ | 20/02/15 | |
| PERTH | |||
| 33 | Judgment Part: | 1 of 1 | |
| Result: | Action dismissed | ||
| PDF Version |
| Parties: | JANE HUTCH CHRISTOPHER GEOFFREY RYAN |
Catchwords: | Negligence Personal injury Duty of care of landlord Intoxicated plaintiff Fall over first floor balustrade Turns on own facts |
Legislation: | Civil Liability Act 2002, s 5B, s 5K, s 5L Road Traffic Act 1974 (WA), s 63, s 64, s 64AA |
Case References: | Adeels Palace Pty Ltd v Bou Najem (2009) 260 ALR 628; [2009] HCA 48 Ahluwalia v Robinson [2003] NSWCA 175 Collaroy Services Beach Club Ltd v Haywood [2007] NSWCA 21 Department of Housing and Works v Smith (No 2) [2010] WASCA 25 Francis v Lewis [2003] NSWCA 152 Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341; (2005) 222 ALR 631 New South Wales Department of Housing v Hume [2007] NSWCA 69; (2007) Aust Torts Reports 81-879 O'Meara v Australian National University [2002] ACTSC 115 Onetech v Shaw [1999] WASCA 289 Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330 Sakoua v Williams [2005] NSWCA 405, (2005) 64 NSWLR 588 Strong v Woolworths Ltd [2012] HCA 5; (2012) 86 ALJR 267 Waverley Council v Ferreira (2005) Aust Torts Reports 81-818; [2005] NSWCA 418 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
CHRISTOPHER GEOFFREY RYAN
Defendant
Catchwords:
Negligence - Personal injury - Duty of care of landlord - Intoxicated plaintiff - Fall over first floor balustrade - Turns on own facts
Legislation:
Civil Liability Act 2002, s 5B, s 5K, s 5L
Road Traffic Act 1974 (WA), s 63, s 64, s 64AA
Result:
Action dismissed
Representation:
Counsel:
Plaintiff : Mr J R Brooksby
Defendant : Mr D R Clyne
Solicitors:
Plaintiff : Donna Percy & Co
Defendant : SRB Legal
Case(s) referred to in judgment(s):
Adeels Palace Pty Ltd v Bou Najem (2009) 260 ALR 628; [2009] HCA 48
Ahluwalia v Robinson [2003] NSWCA 175
Collaroy Services Beach Club Ltd v Haywood [2007] NSWCA 21
Department of Housing and Works v Smith (No 2) [2010] WASCA 25
Francis v Lewis [2003] NSWCA 152
Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341; (2005) 222 ALR 631
New South Wales Department of Housing v Hume [2007] NSWCA 69; (2007) Aust Torts Reports 81-879
O'Meara v Australian National University [2002] ACTSC 115
Onetech v Shaw [1999] WASCA 289
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330
Sakoua v Williams [2005] NSWCA 405, (2005) 64 NSWLR 588
Strong v Woolworths Ltd [2012] HCA 5; (2012) 86 ALJR 267
Waverley Council v Ferreira (2005) Aust Torts Reports 81-818; [2005] NSWCA 418
1 DAVIS DCJ: On Christmas Eve 2009, the plaintiff rented a two storey townhouse in Doubleview from the defendant, with the intention of living there with her adult son and daughter.
2 On the following morning, on Christmas Day, the plaintiff met her son at the townhouse for a celebratory drink and they were later joined, at about 12.45pm, by her daughter.
3 While the plaintiff's son and daughter were upstairs together looking at one of the bedrooms, the plaintiff also went upstairs. Somehow, she then fell over the balustrade of a landing at the top of the stairs, falling several metres onto the floor below. She suffered head and spinal injuries and is now a paraplegic.
4 The plaintiff has sued for damages from the defendant as the landlord of the premises on the basis that the balustrade constituted a danger and posed a reasonably foreseeable risk of injury. It was submitted that the plaintiff had ingested 'a reasonable amount of alcohol', that she leant over the balustrade, and unfortunately 'she leaned too far and simply toppled over' (plaintiff's opening submissions pars 9 - 11). The essence of the plaintiff's case was that the balustrade was too low and once the plaintiff started to fall she was unable to stop herself from falling.
5 While not disputing that he owed the plaintiff a duty of care, the defendant denied that the balustrade was a danger, submitted that he had not breached his duty of care, and said that the accident was caused by the plaintiff's intoxication.
6 This matter came for trial before me on the question of liability alone. For the reasons which follow I find that the defendant is not liable to the plaintiff.
General legal principles relevant to liability
7 The plaintiff's pleaded case included a claim on the basis of the Occupiers Liability Act 1985, however, it was the plaintiff who at the relevant time occupied the premises and there was no allegation of a failure to maintain and repair the premises (s 9 of the Occupiers Liability Act; cp Department of Housing and Works v Smith (No 2) [2010] WASCA 25). It was subsequently conceded by the plaintiff's counsel that the Occupiers Liability Act did not apply, a concession, in my view, correctly made: Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 [45] - [50] (Gleeson CJ); [79] - [80] (Gaudron J); [153] - [157] (Gummow and Hayne JJ).
8 The Civil Liability Act2002 (CLA) applies in this case when determining whether the defendant has breached his duty of care to the plaintiff. However, the CLA does not modify or supplant the common law principles which determine whether a duty of care exists: Department of Housing and Works v Smith [74] – [77] (Buss JA).
9 A lessor of residential premises (landlord) owes a duty of care to his or her lessee to take reasonable care to avoid foreseeable risks of harm to the lessee having regard to all the circumstances of the case: Jones v Bartlett [84] (Gaudron J), [100] (McHugh J).
10 The content of the landlord's duty to the tenant is coterminous with a requirement that the premises be reasonably fit for the purpose for which they are let, namely habitation as a domestic residence. The duty requires a landlord not to lease premises that suffer defects of which the landlord is aware or ought to be aware: Jones v Bartlett [171] and [173] (Gummow and Hayne JJ),Sakoua v Williams [2005] NSWCA 405, (2005) 64 NSWLR 588 [8] (Mason P; Brownie AJA agreeing); New South Wales Department of Housing v Hume [2007] NSWCA 69; (2007) Aust Torts Reports 81-879 [82] - [83].
11 A 'defect' means something more than a condition capable of causing injury: Sakoua v Williams [8].
12 A residential landlord does not owe a duty to ensure there is an absence of defects: Jones v Bartlett [193] (Gummow and Hayne JJ). As stated in Ahluwalia v Robinson [2003] NSWCA 175 [23] (Hodgson JA; with whom Sheller JA and Bryson J agreed):
Jones v Bartlett makes it clear that, in the absence of a contract supportive of a higher duty, the duty of a landlord in relation to the safety of premises does not in general require a landlord to commission experts to inspect premises to look for latent defects, nor is it a duty to make premises as safe as reasonable care can make them. In general terms, the duty of the landlord is to be determined by reference to foreseeable risk of harm and what a reasonable person would do in response to that risk.
13 Pursuant to CLA s 5B(1), when considering breach the court is required to identify what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk: Waverley Council v Ferreira (2005) Aust Torts Reports 81-818; [2005] NSWCA 418 [27]; Department of Housing and Works v Smith (No 2) [20] (Pullin JA, with whom Newnes JA agreed) and [85] - [88] (Buss JA.
14 What is reasonable is to be assessed prospectively, and not by applying the benefit of hindsight and asking what would have avoided the particular injury: Adeels Palace Pty Ltd v Bou Najem (2009) 260 ALR 628; [2009] HCA 48 [31]; Department of Housing and Works v Smith (No 2) [34] (Pullin JA); [87] and [88] (Buss JA).
15 Other relevant principles in the determination of what, if anything, a reasonable person in the defendant's position would have done as discussed by Buss JA in Department of Housing and Works v Smith (No 2) [87] and [88] include that:
(a) It involves an assessment of what would have been reasonable and practicable for the defendant to have done.
(b) Contemporary standards within the community are relevant in determining what is reasonable in the circumstances of a particular case.
(c) Reasonableness may require no response to a foreseeable risk that is not insignificant.
(d) The occurrence of a foreseeable risk, that was not insignificant, does not establish unreasonableness.
The issues in this case
16 Having regard to the pleadings, the evidence, the submissions of the parties at trial and provisions of the CLA, I consider that the following factual issues are relevant to liability:
1. The condition and history of the balustrade.
2. What was the level of the plaintiff's intoxication and how did this affect her?
3. How did the plaintiff fall? (including what part the plaintiff's intoxication played in the fall).
17 With that factual background I can then consider whether there was a breach of duty by the defendant in all of the circumstances, causation and contributory negligence.
The condition and history of the balustrade
18 The stairs in the townhouse went from the ground floor to a first floor landing (as it was described by the defendant's expert), or vestibule (as it was referred to by the plaintiff's experts). I prefer to refer to it as the landing.
19 After going up the stairs, standing on the landing, to the right was an enclosed passageway which led to two bedrooms. On the left was what was referred to as a return which led to another bedroom (later referred to as bedroom 1).
20 The stairs, landing and return were guarded by a balustrade. The balustrade was solid timber with a plinth at the bottom, vertical wooden balusters (slats) and an upper railing which was rectangular in shape with a rounded top and measured 124 mm x 30mm (exhibit 2 pages 3 and 5). From the photographs it is what I would describe as a solid construction.
21 Standing on the landing, if one looked directly below, the dining area could be seen. There was a drop of some distance to the tiled floor below. It was this section of balustrade over which the plaintiff fell.
22 An issue arose at this trial as to whether the balustrade met the relevant building standards at the time of construction.
23 The townhouse was one of a block of three constructed in 1989 with the building licence having been granted by the City of Stirling on 11 April 1989. At that time, under the Uniform Building By Laws of WA 1974 (UBBL) there was a requirement for a 'handrail or balustrade' to be provided along the side of any stairway or landing and this was required to be of a height not less than 865 mm above the floor surface.
24 There was no requirement in the UBBL in relation to the handrail or its profile, only the height from the floor.
25 The UBBL was replaced with an Australia wide building code, the Building Code of Australia (BCA). The height now required for the construction of balustrades under the BCA is 1 m. That height was introduced in 2009, BCA 2009/10. I heard no evidence as to exactly when BCA 2009/10 became effective, however, it is well established and both parties proceeded on the basis that safety standards for building design have a prospective and not a retrospective operation: Jones v Bartlett [23]; O'Meara v Australian National University [2002] ACTSC 115 [13] and [14]. Accordingly the relevant standard which applied at the time of construction was the UBBL.
26 The plaintiff's case was that this balustrade did not meet the required height of 865 mm which applied under the UBBL.
27 There was a slight discrepancy between the measurements of the height of the balustrade taken by the experts for each party.
28 The plaintiff relied on the measurements taken by her two experts, Mr Don Meikle, an academic in the area of structural and applied anatomy, and Mr Geoffrey Hosford, an academic in the field of biomechanics and kinesiology, both directors of Perform Enhance Pty Ltd, trading as Accident Analysis. They were instructed to investigate and report on 'the anatomical and biomechanical movement patterns imposed on [the plaintiff] following a lean and subsequent forward rotation over a balustrade' and to explain 'the contribution of the balustrade geometry to the [plaintiff's] failure to restore equilibrium following the introduction of any saving strategies' (report exhibit 2).
29 Mr Meikle gave evidence that he and Mr Hosford attended the premises on 17 December 2012. They measured the height of the balustrade at the landing at the top of the stairs (the point where the plaintiff fell) to be 857 mm. This measurement was taken from the carpet surface to the top of the railing.
30 The defendant employed the services of an experienced registered builder and building surveyor, Mr Darren Mouchmore, to measure the height of the balustrade. He did so earlier than the plaintiff's experts, on 9 December 2010. He produced a report and a number of photographs evidencing the way he took the measurements. Mr Mouchmore measured the height of the balustrade from the carpeted floor to the top of the balustrade railing going up the stairs (exhibit 14.6) which he measured at 900 mm, at the landing at the top of the stairs (exhibit 14.9) which he measured at 865 mm, and along the return of the balustrade toward bedroom 1 (exhibit 14.12) which he also recorded as 865 mm. He considered that the balustrade complied with the UBBL height of 865 mm.
31 There was an attempt in cross-examination to suggest that Mr Mouchmore had not properly or adequately measured the height because he had done it on his own, with one hand holding the tape measure and the other holding a camera in order to take photographs. From all of the evidence I heard from Mr Mouchmore and his report I am satisfied that he properly measured the height of the balustrade.
32 It was also suggested in cross-examination that in one photograph taken by Mr Mouchmore, exhibit 14.12, the 865 mm mark on the tape measure was above the top of the railing. Mr Mouchmore accepted that 'with that area there, on top of the carpet, yes it would be' but it would be only by 1 mm or 2 mm and he explained that at the time there was a plus or minus 5 mm variable, which was permissible (ts 180). He explained that this was to allow for shrinkage in timber and concrete, both of which expand and contract continually, depending on the time of year and weather. He also gave evidence that it was building industry practice that the measurement of the height of the balustrade would be taken from the floor of the concrete or timber, before floor finishings.
33 The area shown in exhibit 14.12 was not the area from where the plaintiff had her fall, however. The section of balustrade over which the plaintiff fell is the subject of exhibit 14.9. I have examined this photograph carefully and consider that this does show a measurement of 865 mm from the carpet to the top of the railing.
34 I found Mr Mouchmore's evidence truthful and reliable and further, given his experience as a builder, I accept his evidence that the height of this balustrade was, as measured in accordance with industry practice, 865mm. In relation to the specific part of the balustrade from which the plaintiff fell, the landing, I find that height of the balustrade from the carpeted floor to the top of the railing was 865 mm as shown in exhibit 14.9.
35 The lower height of 857 mm as taken by the plaintiff's experts can be explained by evidence from the defendant (which was not challenged) that between the date of Mr Mouchmore's measurement and the date of the measurement by the plaintiff's experts, the carpet was replaced. It was replaced by the defendant in 2012, shortly before he sold the property.
36 I find that the balustrade met the UBBL required height of 865 mm.
37 The fact that there was compliance with the UBBL does not, however, determine the issue of liability. It is just one of the factors to look at in determining whether there has been a breach of duty: Jones v Bartlett [110] (McHugh J); Francis v Lewis [2003] NSWCA 152 [43]; Onetech v Shaw [1999] WASCA 289.
38 The defendant gave evidence about the history of the balustrade, which was unchallenged, and which I accept.
39 The defendant was not the original owner of the premises. He purchased the premises by way of a contract of sale dated 4 June 1999. Before the purchase was finalised he arranged for a building inspection by a registered builder.
40 The report from that inspection was produced at trial (exhibit 10). It was described as a report 'initiated for the purpose of confirming the structural integrity and maintenance requirements' of the premises. The report appears to me to be a thorough report. It canvassed all aspects of the exterior and interior, including an inspection of the staircase, and listing areas requiring maintenance. There was nothing in that report which mentioned any deficiency in or issue with the balustrade.
41 After the purchase the defendant permitted some tenants who were in possession to remain living in the premises until their lease expired. He and his girlfriend (now wife) then lived in the premises from October 1999 until May 2002. After that time he rented out the premises on an ongoing basis to a variety of tenants.
42 The defendant's unchallenged evidence was that while he occupied the premises he never experienced any problems with the handrail or the balustrade, and he never had any issues with the handrail or balustrade reported to him.
43 He sold the premises, without any alterations to the balustrade, in 2012.
The level of the plaintiff's intoxication
44 The level of the plaintiff's intoxication is a matter relevant to liability and contributory negligence.
45 The plaintiff described herself as a 'social' drinker. She would drink a couple of glasses of wine a night and on social occasions like a party, she would drink 'probably a bottle of wine'.
46 The plaintiff's evidence was that she had consumed two or three glasses of wine the night before the fall. On the morning before the fall at approximately 10.30 am she had started to consume, with her son, one bottle of sparkling wine. It was established at trial that this sparkling wine had an alcohol content of 11% and contained 6.5 standard drinks. Her son then opened another bottle and her evidence was that in total she 'probably' had a bottle.
47 In cross-examination she conceded that there was a possibility that her son could have filled up her glass, so that she had an extra glass, while she was talking on the phone. She gave evidence that she had finished drinking at about midnight the night before and had not drunk any other alcohol in the morning other than the sparkling wine.
48 Immediately after the fall an ambulance was called and arrived at 1.33 pm. Very soon afterwards when the plaintiff was admitted to hospital a blood sample was taken. This was received by the laboratory at 14.35 (2.35 pm). It was assumed in the trial that delivery to the laboratory occurred within minutes of the testing. On testing the sample, the plaintiff was found to have a plasma ethanol (alcohol) level of 0.36%. It was formally admitted on behalf of the plaintiff that this was her reading (exhibit 4).
49 The evidence I heard from Professor David A Joyce, a very experienced toxicologist called by the defendant, was that allowing for the alcohol concentration to have risen or fallen in the time between the fall and when the blood sample was tested and delivered to the laboratory (the Road Traffic Act 1974 (WA) allows a rise of 0.016% per hour for 2 hours, followed by a fall at the same rather thereafter), this plasma level translates to a blood alcohol level within the range of 0.29% - 0.33%. In other words, if a person with a plasma alcohol level of 0.36% was breathalysed, the breath test result would be in that range of 0.29% - 0.33%.
50 This is about six times more than the legal limit of 0.05% (Road Traffic Act s 64AA) more than three times the limit which applies for the offence of drunk driving of 0.08% (Road Traffic Act s 64), and twice the level for the offence of driving under the influence of 0.15% (Road Traffic Act s 63). This indicates a significant degree of intoxication, or as Professor Joyce described, it 'severe alcohol intoxication'.
51 Professor Joyce also observed that the plaintiff's alcohol intake greatly exceeded her recalled amount. The two to three glasses of wine she consumed on the night before the accident would have been entirely eliminated from her body at the time of the fall. A woman of the plaintiff's approximate weight would be able to metabolise and eliminate around one standard drink per hour, starting as soon as alcohol arrived in her body. That would mean that in the 3 1/2 hours from when she started drinking on Christmas Day to when she was tested following her fall, she would have removed around 4.5 to 5 standard drinks. If the plaintiff had consumed what she said in her evidence she had consumed on the morning of her fall (which was one bottle of the sparkling wine which contained 6.5 standard drinks), her plasma alcohol level would have been 0.05% - 0.07%. That corresponds to a blood alcohol level of between 0.04% - 0.062%. Consumption of a bottle with an extra glass, or say 7.5 standard drinks, would have resulted in a plasma alcohol level of between 0.07% and 0.09%. Thus the plaintiff's alcohol consumption must have been very much greater than she said it was.
52 It was put to Professor Joyce during his evidence (ts 155):
Can I just ask you this: is there any possible way that the consumption of six and a half standard drinks over the three and a half [hour's] time from commencement to testing could have resulted in a reading of .36 per cent plasma?---No.
53 When Professor Joyce was asked further questions about this in cross-examination based on the alcohol content of the sparkling wine consumed on the day by the plaintiff, he calculated that the plaintiff must have consumed 20 to 21 standard drinks (ts 158).
54 The plaintiff's admitted plasma alcohol level of 0.36%, and the evidence of Professor Joyce as to what alcohol she must have consumed to have reached that level, raises serious issues about the plaintiff's credibility, not only about her consumption of alcohol on the day and the evening before and her evidence that she was a 'social drinker', but also her evidence generally.
55 As to the effect on, or impairment of, a person with a blood alcohol level within the range of 0.29% - 0.33%, Professor Joyce stated in his report that that it made no difference whether the plaintiff's blood alcohol level was at the top or bottom of that range. The interpretations are the same throughout the range. He also gave evidence that the consumption of food made no difference, as it is the alcohol level in the plasma or blood that determines impairment. When people are not drinking heavily then taking food is useful. However, when a very large amount of alcohol has been consumed, the benefit of food to sobriety may be indiscernible. The alcohol intake would just overwhelm any benefit of the food.
56 It is best to reproduce the section of Professor Joyce's report (exhibit 12) which sets out the effects of alcohol on a person (BAL referring to blood alcohol level):
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Increases self-confidence, decreased inhibitions Diminution of attention, judgement and control Loss of efficiency in fine motor tasks |
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Loss of critical judgement Impairment of memory and comprehension Decreased sensory response: decreased reaction time Some muscular incoordination |
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Exaggerated emotional states (fear, anger, grief, etc.) Disturbance of sensation (double vision, etc.) and of perception of colour, form, motion, dimensions Decreased pain sense Impaired balance; muscular incoordination; staggering gait, slurred speech |
The signs of drunkenness worsen progressively as alcohol level increases above 0.15%. A blood alcohol of 0.29% – 0.33% will confer severe drunkenness even in the habituated drinker, with very few exceptions. . The signs of severe drunkenness include staggering gait, slurred speech, double vision, loss of pain sensibility and loss of ability to protect oneself from physical harm. Memory impairment always accompanies this degree of intoxication. Blood alcohol levels about 0.18% associate with memory impairment which is commonly severe enough to completely prevent the formation and retention of memory for events occurring during intoxication. This sometimes goes by the name 'alcoholic blackout', even though there is no loss of consciousness, just complete failure to form memory. At a blood alcohol level of 0.29% - 0.33%, severe memory impairment would be inevitable and would commonly be complete.
57 In cross-examination (ts 160) Professor Joyce explained that the loss of memory that comes with alcohol is an inability to lay down memories, because the biochemical processes required for a memory to become permanent is inhibited by alcohol. So while someone who is intoxicated can still recall things that have happened while sober, that person is not laying down memories for what is actually happening at that moment. It is a defect in laying down memory rather than a defect in recalling memory.
58 Professor Joyce's evidence was that at a BAL of 0.29% - 0.33%, the manifestations of intoxication vary between people. As set out in his report (page 7), the individual's tolerance of alcohol (which is acquired through consistent use of alcohol (page 5)), the underlying personality, the social environment and many other factors influence the manifestations of intoxication. If the plaintiff had been a customary heavy drinker, she may have better function than a social drinker with the same BAL. However, with a BAL of 0.29% - 0.33% only a tiny minority of hardened drinkers might pass for normal socially and none would pass on closer scrutiny.
59 Professor Joyce also gave evidence that alcohol is a well-recognised risk factor for accidents generally including falls, climbing accidents and falling from height.
60 Among other things set out in his report (page 7), alcohol impairs balance and coordination, judgment of speed, distance and physical relationships, diminishes inhibition, increases impulsiveness and impairs the capacity to estimate hazard, impairs memory and leads to disorientation and confusion. Professor Joyce explained in his report that intoxication can increase accident risk because of the effect on:
(a) risk-taking behaviour (with increased self-confidence and decreased inhibitions);
(b) perception (including motion, distance and dimensions);
(c) judgment, both in a psychomotor sense (appropriate strength, or distance) and social (appropriate activity to undertake);
(d) balance and co-ordination;
(e) reflex response (reaction time).
61 In the plaintiff's case, Professor Joyce was of the opinion that the alcohol present in the plaintiff's blood (or plasma) would have affected many physiological and cognitive functions that are necessary to keep activity safe including judgment, perception, agility and the capacity to exercise reasonable care and skill (exhibit 12 page 7; ts 154).
62 I accept Professor Joyce's report and evidence as I have set out above, which was not challenged in any material way in cross-examination.
63 What was raised in cross-examination was evidence that the plaintiff had been able to function and communicated with others both before and immediately following her fall.
64 Counsel for the plaintiff referred Professor Joyce to the ambulance records (exhibit 8) relating to the ambulance officers' communications with and observations of the plaintiff, in particular the recorded results from a testing process known as the Glasgow Coma Scale. The plaintiff scored well on that scale. When the results from the Glasgow Coma Scale were put to Professor Joyce, while admitting that they were 'pretty good' for someone with the plaintiff's alcohol level, he explained (ts 160) that an intact Glasgow Coma Scale just means that a person 'is able to open their eyes when they're asked to. They can tell you where they are, and they're able to do simple things in response, like move a hand or something. So provided the drinker is still conscious most of them will still be able to do that even [with] relatively high blood alcohols.'
65 Counsel for the plaintiff also referred to the hospital emergency department medical notes (exhibit 13) which indicated that the plaintiff was able to communicate with hospital staff in order for them to take a history from her and other observations indicating that the plaintiff was orientated. The following cross-examination took place (ts 166):
Okay. And again, the complaints are - appear, as they do on that. Yes, so what we have, as I understood your evidence-in-chief to be, Dr Joyce, is someone who was, to use the vernacular, paralytic, or would have been paralytic at about 1.15 at the time she – or at about 2.30 when the bloods were taken?---Well, certainly she was not accustomed to high alcohol concentration, she'd be paralytic. People who drink a great deal of alcohol do tolerate it a lot better and we – we do encounter them from time to time, still up and walking around with blood alcohol's around .3.
Well, if we accept, for the purposes of the next question, that she was accustomed to a couple of glasses of wine in the evening for a social drinker, that presentation would be, for example, inconsistent with her appearing to be sober, firstly, to observers?---Umm.
She couldn't appear to be sober, with that amount of alcohol in her blood, shortly prior to this accident?---It – it would be – well, it depends on what opportunities they had to – to make observations on her because even determining that somebody is drunk does – does require some degree of active observation, and common - - -
Even if you're paralytic, to use that term?---If you've –if you've, for other reasons, laying immobile on a hospital gurney or on a floor, then commonly the first thing that that alerts a doctor to alcohol intoxication is the smell of alcohol, rather than anything in the patient's behaviour. The – the things which you pointed out, which are unusually mild for this degree of intoxication in a non-habituated drinker, is the fact that she's still orientated.
66 The plaintiff gave evidence to the effect that immediately before her fall she was able to function: she had conversed with her son and daughter and made a number of phone calls to family and friends that morning. The plaintiff also relied upon the evidence given by her two children that they thought her mother's behaviour was 'normal' and she did not appear to be affected by alcohol. Her son gave evidence that while his mother's mood was happy, she did not slur her words or stumble or anything like that. He daughter also gave evidence that her mother was happy, her speech was good and her walking was 'fine', 'not off balance or anything' and her mother was not 'very drunk'.
67 The substance of this evidence was put to Professor Joyce in cross-examination (ts 167):
And she wouldn't be able to hold, presumably, lucid conversations with her son or daughter?---Umm.
No, sorry, I – I should qualify that by saying immediately prior to this accident?---If – if she was unaccustomed to blood alcohols in this range, then I – I'd be surprised if she could hold a lucid conversation.
Making phone calls to friends?---Again, if she was unaccustomed to this sort of blood alcohol it's – it's – she's manifesting an unusually mild degree of intoxication if she can telephone.
And moving around her property generally?---Well, moving's - - -
Well, I – I suppose – again, I should qualify that, doctor, I'm sorry?---- - - probably less demanding than – than that – yeah.
Moving normally around her property would not be possible for her, shortly prior to this accident?---Yeah, I – I think we'd probably have to address the question to something a little bit more specific than simply moving normally.
Walking around her property, without either falling over or tripping or stumbling?---Yes, most people – practically everybody who's unaccustomed to substantial alcohol intoxication would be obviously drunk at a blood alcohol of .3.
68 The evidence of the plaintiff's son and daughter, and the matters from the ambulance and hospital records, combined with Professor Joyce's evidence in cross-examination, only highlights for me that the plaintiff was not truthful in her evidence at trial, either as to what levels of alcohol she normally consumed, or her consumption on the day of the fall. The fact that she could in some way function, did not appear to be very drunk to her children or may have been able to give appropriate answers to questions by ambulance or hospital staff, indicates that she must have been accustomed to substantial alcohol intake.
69 The evidence of her actual plasma alcohol level is beyond contradiction and was, as I have noted, admitted by the plaintiff. There is no getting around the fact of her plasma alcohol level of 0.36% and that can only mean that she was severely intoxicated. I am simply unable to accept the plaintiff's evidence about her alcohol consumption, nor can I accept the submissions made by her counsel that she was not affected by alcohol to the extent suggested by Professor Joyce.
70 Further, the evidence that the plaintiff could in some ways function and communicate with others does not alter the evidence from Professor Joyce in relation to the other impairments set out in his report, which I have set out in [60] and [61] above and which I accept.
71 As Professor Joyce summarised in the conclusion of his report as to the effect of the plaintiff's intoxication:
In summary, alcohol is most influential on safety when safety depends on well preserved behaviour, judgment, risk perception, visual perception and cognitive functions. The plasma alcohol level in this case is sufficient, per se, for a conclusion that Ms Hutch would have been impaired in all these functions. As a result she faced a very substantially increased risk of accidental harm through intoxication, regardless of any habituation to high alcohol intake.
72 Based on her plasma and blood alcohol level and Professor Joyce's evidence, I find that the plaintiff was severely intoxicated and that this influenced her behaviour when it came to matters of safety. While her state of intoxication might not have affected all aspects of the plaintiff's behaviour or cognitive function, I am satisfied that it affected her judgment, riskperception, and the capacity to exercise reasonable care and skill, as well as her agility, balance, co-ordination and reflex response, as discussed by Professor Joyce.
How the plaintiff fell
73 There is little known about how the plaintiff fell. Her son and daughter did not witness her fall.
74 The plaintiff's evidence at trial was that she had had gone upstairs and into her bedroom to look for her bag. Her bedroom was one of the two bedrooms off the enclosed passageway from the right of the landing.
75 When she did not find her bag she thought she would have a 'quick look' over the balustrade to see if it was in the kitchen area underneath. As the plaintiff agreed in cross-examination, the kitchen area was back and underneath where she was standing (ts 41) and she was trying to look 'down back underneath' her (ts 43).
76 She gave evidence that after leaving the bedroom she walked to the balustrade (on the landing). She came around the corner from the bedroom, went left and walked towards the middle of the balustrade. She was wearing nothing on her feet and holding nothing in her hands. She walked at a normal pace and as she approached the balustrade she only had to slightly lift her hands to put them over the balustrade. She demonstrated this by lifting her hands palm down on the top of the bench in the witness box and her fingers down and over the edge of the bench. She later said that she placed her hands on and over the top of the railing.
77 As to then what happened as she described it (ts 33) as follows:
Well, then pretty much I – it happened so quickly, I – with the lean, I ended up going over the side of the balustrade.
78 She was asked if she could recall how far she had leaned over before going over and what else she had done (ts 34):
Can you recall far you leaned over before you toppled over?---Well, it wasn't anything ridiculous. It was just a slight lean. It wasn't like a gymnastic, like, full frontal, or anything like that.
Right?---No, just a slight lean forward.
And to the best you can remember can you describe what you felt as you leaned into the void over the balustrade, as the accident happened?---Am I allowed to say an expletive?
Well - - -?---Sorry - - -
- - - I'm concerned with your actions and what you did as you fell?---So as I fell, I recollect I must have grasped something, but it was so quick - - -
You must have grasped something? I mean, can you expand on that a bit?---Well, like, to feel yourself go, like, instinctively I'm sure I would have, like, like, pulled up my hands but, like, nothing happened. I was already gone.
What about your hips?---I was already - - -
What about your hips? Did you feel anything as your – did your hips pass over the rail? I mean, how did that happen?---Well, I had leaned up against the balustrade with my hips, so then – to peer over, so I just straight away went.
Right. And what's the next thing you remember?---The next thing I remember was – was in hospital when I was in shock.
79 Later in her evidence she was asked to clarify how she approached the balustrade immediately before the fall and her answer was 'I was pretty much sure I was on, like, straight on to it'.
80 In cross-examination the plaintiff did not agree that she had a poor recollection of this incident and claimed that she could remember it clearly.
81 There were some inconsistencies in what the plaintiff stated in her evidence and what she had said about her recollection of the fall in other previous out of court statements, which were explored in cross-examination.
82 In answers to interrogatories sworn on 4 February 2013 the plaintiff provided answers which indicated she was leaning over the balustrade with both her legs against the balustrade, the top half of her body leaning over the top of it and that she was not holding the handrail (exhibit 6, answers 2 and 3). When this last matter was put to her in cross-examination, she answered that while her hands were up on the balustrade she did not hold the balustrade at any time, but simply rested her hands on top of it (ts 42). I must say, I had real difficulties with the evidence from the plaintiff about this, particularly given her demonstration in court.
83 On 31 December 2009 after the fall when the plaintiff was still in hospital she was visited by a clinical psychologist. The plaintiff told that psychologist that she had no recollection of how she had fallen and that her last memory had been looking down at the tiled floor below. The note made by the psychologist (exhibit 7) read as follows:
Pt [patient] described no recollection of how she fell from second storey balcony. Last memory described as looking down tiled floor below.
84 When the plaintiff was cross-examined about this, she maintained that she now had some recollection, offering the explanation (ts 47) that 'I think when you go through such a traumatic experience that you like to suppress the events of it. You go into survival mode too yourself, so I think that's what happened with me.'
85 As to the prospect that the plaintiff could now remember I asked Professor Joyce the following (ts 168):
Now, you've talked about people not being able to lay down memory if they have a high blood alcohol content. What is the prospect that someone who can't remember six days later certain events when they are intoxicated would later be able to recover a memory of that event?---That would be – that shouldn't happen.
Shouldn't?---No. I would qualify it by saying that there might be other reasons for memory disturbance in this case, if she has genuinely been concussed and so that the absence of memory for the – a week later could reflect – could represent a combined effect of alcohol intoxication and – and concussion. Now, whereas I can say that alcohol intoxication is definitely going to impair memory to some degree and that which is lost is mostly unreclaimable. I'm not quite so sure that memory loss through concussion is entirely unreclaimable.
86 Professor Joyce also gave evidence that if the moment of looking over the balustrade was truly the moment that preceded the fall it was unusual that the plaintiff had that memory (ts 169).
87 In order to prepare a report, Mr Meikle asked the plaintiff about how she had fallen, noting the answers she gave on a copy of a list of questions on a document entitled 'Hutch Questionnaire' (exhibit 3). I reproduce the more relevant questions and the answers given by the plaintiff (with Q representing the question and A being the answer recorded by Mr Meikle):
(a) Q: Approach pathway
A: oblique from bedroom, access from right
(b) Q: Body orientation at rail – front left side, right side, back.
A: front, right side. Perhaps squared hips to railing on approach.
(c) Q: Body orientation going over rail
A: not sure – leaning forward moderately at the railing
(d) Q: Erect at rail or leaning into rail, body straight or flexed from hips.
A: standing erect in contact with rail, flexion at hip
(e) Q: Arm positions left and right, vertical and horizontal displacement, height above rail.
(f) Q: Hand positions left and right in relation to rail. Grasp orientation on rail.
A: No memory. Hand over.
(g) Q: Feet orientation and distance from plinths.
A: Comfortable standing position, toes at plinth close to.
88 In relation to the question of grasp orientation on rail, Mr Meikle drew a sketch diagram in response to a description from the plaintiff. Over the top of a quick sketch of the rectangular profile of the railing he drew the palm of the hand with the fingers extending over and beyond – in other words with the hand reaching forward and over on to the top of the railing (ts 80). Mr Meikle in cross-examination agreed that it was his understanding that the plaintiff was holding on to the railing at the time she leant forward, although she demonstrated this with only one hand (ts 91 – 92; ts 94).
89 In cross-examination Mr Meikle also said it was his impression from meeting with the plaintiff that she had comparatively little recollection of what had transpired before the accident. Mr Meikle also stated that there was 'a vagueness' about her answers (ts 92).
90 Following the information provided by the plaintiff, Mr Meikle and Mr Hosford then recruited a female subject, of similar height and weight as the plaintiff, to fall over a reconstructed first floor landing and 'replica balustrade' at three heights. The first height was 865 mm (86.5 cm) which was the UBBL requirement. The second was a height of 918 mm (91.8 cm), the height of the female subject's centre of mass (the calculated centre of balance of the female subject). The third height was a height of 1 m. At each height the female subject leaned forward until she began to fall over the reconstructed balustrade. The female subject's reactions in each case was recorded and explained in the report.
91 Because the plaintiff was uncertain in the answers she had given to Mr Meikle as to how she had approached the balustrade, and the two experts were 'not sure whether she had met that barrier at moderate walking pace, or whether she had, in fact stopped, squared up and then leant over' (ts 88), the reconstruction was carried out on two bases – the first with the female subject using what was described as an 'oblique' approach (side on with one foot forward) and the other described as the 'straight' approach, with weight evenly distributed over both feet with pelvis square to the railing.
92 In light of the inconsistencies between the plaintiff's evidence at trial and the out of court statements I have identified, together with the indisputable evidence of her state of intoxication on the day, there is an issue about whether I am able to rely upon the plaintiff's evidence at trial.
93 I am able to accept or reject all of the plaintiff's evidence, or I may accept part of her evidence and reject (or form no view) on other parts.
94 These are the findings I make as to what parts of the plaintiff's evidence I do and do not accept.
95 First, I accept her evidence that she was looking for her handbag in the kitchen behind and below the balustrade. That is, in my view, largely consistent with what she told Mr Meikle and Mr Hosford as they recorded in their report (exhibit 2, page 5). While they recorded she was looking for her phone, as she explained at trial her handbag contained her phone. While Professor Joyce's evidence suggests that with the level of the plaintiff's intoxication a memory like this might not be laid down, or given his evidence in [86] above it might be said it would be unusual for her to have that memory, it is not impossible that she might have had that memory. In my view, it is plausible that she does remember why she went to look over the balustrade.
96 Secondly, I accept that her last memory is of looking over the balustrade. While Professor Joyce's evidence is that it is unusual that the plaintiff had that memory, he did not say that it was impossible. This memory of looking over the balustrade is consistent with what she told both the clinical psychologist within a week of the fall and also Mr Meikle and Mr Hosford (exhibit 2, page 5).
97 Thirdly, I do not accept her evidence that when she looked over the balustrade, it was 'just a slight lean forward', for the following reasons:
(a) That evidence is inconsistent with her other evidence, which I accept, that she was looking for her handbag in the kitchen behind and below the balustrade. To perform that manoeuvre would require more than a 'slight lean'.
(b) It is inconsistent with what she told Mr Meikle during the questionnaire, which was that she was leaning forward 'moderately' (but the reliability of that description is, in itself, questionable, given Mr Meikle's observations that the plaintiff was generally vague in her recollection).
(c) It is also inconsistent with the lean of the female subject shown in the figures in the report of Mr Meikle and Mr Hosford (exhibit 2, figure 29 page 23 and figure 20 page 24) which show, in my view, more than a 'slight' forward lean before the female subject's balance was lost.
(d) Finally, in her answers to interrogatories the plaintiff described leaning 'over' the balustrade which indicates, at least to me, more than a slight lean forward.
98 On this issue I must also take into account the plaintiff's intoxication and the findings I have made in [72] above. While her state of intoxication may not have affected all aspects of the plaintiff's memory, it certainly must have affected her judgment,risk perception and the capacity to exercise reasonable care and skill, balance and co-ordination, as discussed by Professor Joyce and as I have found. I consider it implausible and improbable, given her level of intoxication and what she was attempting to achieve, that her lean forward lean was only a 'slight' one.
99 Fourthly, I have some difficulties with the evidence the plaintiff gave about what she did with her hands. Given the inconsistencies in the plaintiff's evidence at trial, and the inconsistencies between her evidence and the prior statements she made to Mr Meikle, I am not satisfied that she had both hands on top of the railing as she demonstrated at trial. There is a possibility that she had only one hand on the railing. Another possibility canvassed in the plaintiff's experts' report is that when the plaintiff leaned over the balustrade her hands were extended out and forward of her body (exhibit 2, page 20).
100 Fifthly, I am not satisfied that the plaintiff approached the balustrade as she described in her evidence, or as described in the report of Mr Meikle and Mr Hosford as the 'straight approach' with both legs facing forward. Her evidence at trial is inconsistent with the prior statements she made to Mr Meikle about this.
101 In relation to these last two matters, if the plaintiff was unable to remember exactly how she approached the balustrade and the placement of her hands when answering Mr Meikle's questionnaire on 17 December 2012, almost three years after the fall, I think it highly unlikely and improbable that she could recover a memory of either of these matters at the time of swearing her answers to interrogatories a matter of weeks later in early February 2013, or almost five years later at the time of the trial. Given Professor Joyce's evidence and in the absence of other expert evidence as to the ability of someone who is both intoxicated and concussed to recover memory, I am not prepared to accept the plaintiff's lay explanation of recovered memory after a traumatic event.
102 Some of these matters may affect the weight which I am to give to the report of the plaintiff's experts, Mr Meikle and Mr Hosford: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705;Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370. There was much debate during the trial about the admissibility of their expert report and whether the subject matter of the report was opinion evidence. After submissions I ruled the evidence admissible but, of course, subject to what weight to give the evidence (ts 133).
103 Since the trial the parties have drawn my attention to the decision of Collaroy Services Beach Club Ltd v Haywood [2007] NSWCA 21, a case where similar expert evidence was given by Mr Meikle and Mr Hosford in relation to a fall over a balustrade. In that case (which was an appeal following a jury verdict) McColl JA and Bryson JA observed [57] that the reconstruction of the circumstances of the accident undertaken by Mr Meikle and Mr Hosford was evidence of observations of an attempted reconstruction, not opinion evidence. Their expertise was relevant to the weight to be given that evidence. However, McColl JA and Bryson JA also observed [66]:
It was for the jury, reasoning on probabilities, to make a finding whether or not the exact events and conduct which caused the respondent to fall over the balustrade, whatever exactly they were, were a realisation of the danger inherent in the state of the staircase and balustrade: whether the fall was caused by the balustrade’s being lower than in the jury's view it reasonably should have been, whether the fall was caused by irregularities in the staircase, or some combination ….
104 In this case, Mr Meikle and Mr Hosford explained that once the female subject in their reconstruction leaned over the balustrade and her centre of mass point moved beyond what the plaintiff's experts referred to in their report as 'the point of no return', a fall was inevitable. After reaching that point of no return, this resulted in loss of balance and led to a forward rotation. Once the body began to rotate forward and over, there was nothing which could be done to prevent the rotation. This was because muscles in the body which a person would normally recruit to prevent the fall – the gluteus maximus, hamstrings and erector spine – in fact combined to produce the opposite result. This was a process referred to as 'functional reversibility' and resulted in a 'flipping' of the legs to bring about rapid forward rotation.
105 That was the case in relation to all reconstructed balustrade heights and whether or not the approach to the balustrade was the 'straight approach' or the 'oblique approach', although the higher the balustrade the more effort or movement was required by the female subject to reach the point of no return.
106 In addition, when the female subject's hands were not on the railing but extended forward of the body - 'a possible position taken up' by the plaintiff (exhibit 2, page 20) – the centre of mass would move forward and increase the risk of a fall.
107 In their conclusions in the report Mr Meikle and Mr Hosford stated relevantly:
We find the following:
1. In all trials, at all heights, the test subject without prior instruction demonstrated a forward lean into the balustrade. The resulting turning force exacerbated rotation over the railing permitting pelvic rotation and unobstructed accompanying trunk flexion.
2. Electromyography confirmed the reflex recruitment of the muscles most involved at all heights and in all trials. Any reflex saving strategy at the instant of foot separation, such as elevating the head and trunk in an attempt to return to the vestibule surface, caused functional reversal of all muscles recruited. This instead elevated the lower limbs, to exacerbate the severity of rotation and make freefall inevitable.
…
7. With the replicated railing at 86.5 cm (BCA requirement, 1990) the centre of mass of the test subject was located 5.8 cm above the railing for the straight approach and 4.7 cm for the oblique approach. In both cases rotation was rapid.
8. With the replicated railing raised to 91.8 cm, the precise centre of mass height of the test subject, the centre of mass was located 2.2 cm above the railing for the straight approach and 4.2 cm for the oblique approach. Once again an easy rotation was facilitated.
9. With the replicated railing raised to 1.0 m, (BCA requirement, 2009), the centre of mass of the test subject was located 3.3 cm below the railing for the straight approach, and a mere 1.2 cm below the railing for the oblique approach. Given its close proximity to railing height, it required only a moderate force to rotate the test subject's centre of mass over the railing. At the 1.0 m height, the test subject was restrained although moderate adjustment of segments could still facilitate passage over the railing, highlighting the precarious dynamics of the segmented form.
10. In all trials, the centre of mass at address to the railing was raised significantly higher than that predicted from an anatomical stance. Ms Hutch's centre of mass at a static 91.1 cm in the anatomical stance, but becoming dynamic during address of her segmented form, would elevate it to a precarious level at railing heights up to 91.8 cm and possibly to a height of 1.0 m.
11. Force data revealed that for both the straight and oblique approach, no significant antero-posterior forces were generated by carpet/foot contact. With any friction effect being insignificant, the feet did not 'scuff' the carpet as rotation commenced, but rather elevated vertically from the floor. Once destabilisation occurred there was no further recourse to slow or prevent rotation over the railing.
108 On behalf of the plaintiff it was submitted that in light of Mr Meikle's and Mr Hosford's findings, the fact that the plaintiff was intoxicated made no difference to how she fell.
109 While the report and evidence of Mr Meikle and Mr Hosford does, in my view, go some way to explain how, once she leaned past the point of no return, the plaintiff fell, their report and evidence is only useful to a limited extent. The real issue in this case is how the plaintiff leaned over the balustrade so that she got to the point where a fall was inevitable. It is a matter for me, reasoning on probabilities, to make a finding on the exact conduct which caused the plaintiff to get to that point.
110 It is of some significance, in my view, that the plaintiff was not just attempting to look at the floor immediately below. She was attempting to see if her handbag was in the kitchen which, as she agreed and as is demonstrated in the photographs, was underneath and back from the balustrade. In other words, what the plaintiff was attempting to do was to lean over and look underneath the landing.
111 It is also of significance, in my view, that that the female subject in Mr Meikle's and Mr Hosford's reconstruction had both hands on the railing (something which I am not satisfied the plaintiff did), wore a safety helmet and was to fall into a safe sponge pit below. In other words, in the trials conducted by the plaintiff's experts the female subject was required to do what a reasonable and sober person would not do, that is lean so that she lost her balance and toppled over the reconstructed balustrade.
112 I consider that any sober and reasonable person would have realised that it would not be possible to look down and back at the kitchen underneath the landing.
113 I find on the balance of probabilities that the reason the plaintiff leaned beyond the point of no return was because of her state of intoxication. Because the plaintiff was so intoxicated and her judgment, perceptions, balance and co-ordination so impaired, and in the absence of any reliable evidence from the plaintiff as to her approach, where she had her hands and how far she leaned forward, I find that the only reasonable inference open on all of the facts, on the balance of probabilities, is that in her decision to look over the balustrade for her handbag in the kitchen she leaned beyond the point of no return.
114 To put it in terms of the trial submissions, unfortunately 'she leaned too far and tumbled over' because of her severe intoxication.
Was there a breach of duty by the defendant?
Section 5B of the CLA provides that:
(1) A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
116 In considering whether the defendant breached the duty of care owed as a landlord to the plaintiff, in the context of a consideration of s 5B, the essential questions are whether the defendant knew or ought to have known there was a danger in the balustrade and whether, in these circumstances he failed to take reasonable steps by way of precautions to either rectify or address that danger.
117 The plaintiff's case was that even if the balustrade complied with the UBBL, it was a danger. The defendant should have recognised this balustrade as a danger and should have done something in response.
118 I find that the plaintiff has failed to establish that the balustrade was a danger about which the defendant knew or ought to have known and the plaintiff has therefore failed to establish that the risk of harm was foreseeable within the meaning of s 5B(1)(a). My reasons for this finding are as follows.
119 First, the balustrade did comply, as I have found, with the relevant building standard at the time of its construction.
120 Secondly, based on the defendant's evidence which I have set out in [39] - [43] and which I accept, there was no danger with respect to the balustrade of which the defendant was aware. He had obtained an expert report before the purchase of the premises which did not raise any issue with the balustrade and he was not aware of any deficiency. He had lived in the premises himself after he purchased it and did not notice anything deficient in the balustrade. There were no other reported issues to him about the balustrade before he leased the premises to the plaintiff.
121 It could not be said that the matters which are set out in the plaintiff's experts' report are common knowledge, unlike other items in residential premises such as glass doors (as to which see Hunt v Roads and Traffic Authority of NSW [192] and [193]).
122 As the plaintiff's experts themselves stated in their report (exhibit 2, page 6):
… it has been suggested by some authorities that railings having heights in excess of an individual's centre of mass will prevent rotation, either forward or backward, over that railing. While this may be correct in terms of rigid models such as a length of timber rested against or impacted with a railing, it cannot be said of the segmented human form where its component parts are held in apposition by hands and chords which are elastic retractable and contractile. These structures exhibit characteristics which make the relative heights of centre of mass and railings irrelevant. They are characteristics which seem to have been ignored by staircase designers having little understanding of anatomical principles…
123 Thirdly, from the time of the defendant's purchase of the premises in mid-1999, until the plaintiff's fall in 2009 the stairs and balustrade were used over a period of more than 10 years without a problem.
124 It is true that that the absence of prior history of accident on premises may not always relieve a defendant from liability: see for example in Francis v Lewis[2003] NSWCA 152, a case which involved external stairs at commercial premises. However, it is still a relevant factor and in this case I consider it to be a weighty one, given the content of the duty of care of a landlord of residential premises. As the High Court has stated there is no such thing as absolute safety in residential premises. All residential premises contain hazards to their occupants and to visitors. Most houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean that it is dangerous or defective: Jones v Barlett[23] (Gleeson CJ); Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341; (2005) 222 ALR 631 [8] (Gleeson CJ); [96] (Hayne J).
125 Finally, in Jones v Barlett [178] Gummow and Hayne JJ explained a defect in residential premises will only be a dangerous defect if it will, or may, cause injury to persons using the premises in an ordinary way:
The thread running through these cases is that a dangerous defect will, or may, cause injury to persons using the premises in an ordinary way. They are defects in the sense that they are more than dangerous; they are dangerous in a way not expected by their normal use. Many domestic items might be said to be dangerous: gas ovens, caged fans, hard floors, electrical circuits and panes of glass may cause serious or even fatal injuries. However, they are ordinarily only dangerous if misused. They will only be defective if they are dangerous when being used in a regular fashion and ordinarily would not be dangerous when so used.
126 Other authorities, dealing with an occupier's liability, have held that in assessing foreseeability of harm, a defendant is generally entitled to assume that a person on premises will take care for his or her own safety: O'Meara v Australian National University [49] and [50]; Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330 [45]; Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 [159] - [160].
127 In this case the plaintiff was severely intoxicated and, as I have found, this had an effect on matters relating to her safety. I do not consider that it was foreseeable that a person taking care for his or her safety and using the balustrade in the ordinary way, would attempt to look underneath and behind towards the kitchen, or would be so severely intoxicated that he or she could not attempt to do so safely.
128 Having regard to all of these matters, I do not consider that the defendant, or any reasonable person in his position, would have appreciated that the balustrade was a danger or significant risk that he needed to respond to in some way.
129 Even if I had found that the height of the balustrade was 857 mm and that it did not comply with the UBBL, I would not have found the balustrade to have been a danger or a significant risk about which the defendant knew or ought to have known. The height difference is 8 mm which is the width or thickness of a pencil. That small difference in height is not, in my view, of significance having regard to all of the other factors as I have discussed.
130 In relation to the matters in s 5B(1)(c) of the CLA, the plaintiff pleaded that the precautions the defendant should have taken were to provide a balustrade 'of sufficient height' (which height was not stipulated), to provide a warning, and to provide a 'suitable railing on top of the balustrade which would have allowed the plaintiff to gain some purchase thereon in order to prevent herself from falling from the balustrade'.
131 The issue of a warning was not addressed in either the evidence or submissions. There was no evidence or suggestion of what a warning sign would say or alternatively what other form a warning should have taken.
132 In both opening and closing submissions the precaution emphasised by counsel for the plaintiff was the installation of a circular handrail. This was based on the plaintiff's experts' criticism of the design of the existing railing on the balustrade. They described the railing as 'robust' but anatomically deficient because its rectangular profile 'denied the occupant a power grip in which the thumbs and fingers can be opposed'. A suitable railing was said to be a circular one with a diameter of 38 mm which would enable a closed grasp and a thumb to forefinger grip.
133 For the purpose of considering the precautions I will include the raising of the height of the balustrade, assuming that what was suggested by the installation of a circular handrail would effectively raise the balustrade height.
134 Whether the defendant ought to have taken these precautions is, as I have already observed, an inquiry not to be undertaken in hindsight but must be answered prospectively, looking at the situation before the plaintiff's fall occurred.
135 Taking into account the factors set out in s 5B(2) it is the case that the harm to someone falling over the balustrade was likely to be serious. However, given that before the plaintiff's fall there had been no incident or problem with the balustrade either experienced by or reported to the defendant and the fact that the plaintiff fell because she was severely intoxicated, I find the probability of that harm occurring if the precautions were not taken to be extremely low.
136 The burden to the defendant of taking the precautions submitted by the plaintiff would be a significant one. While I heard no evidence about the costs of increasing the balustrade's height or installing a circular handrail, it must be said that neither of these would be a simple precaution which might have been easily put in place by the defendant. They would involve a renovation of all of the balustrading on the stairs, landing and return.
137 Finally in relation to the social utility, it has been held that the provision of rental housing has a high social utility: Hunt v Roads and Traffic Authority of NSW[196].138 Weighing all of these matters I find that a reasonable person in the position of the defendant would not have taken the precautions submitted by the plaintiff.
139 In all of the circumstances, the plaintiff has failed to prove that the defendant was in breach of his duty of care to her.
Causation
140 Given my finding that the defendant did not breach his duty of care to the plaintiff it is not strictly necessary to deal with causation. However, for completeness I consider it to be appropriate that I address causation.
141 Proof of causation as set out in s 5C of the CLA involves two inquiries. The first is whether the fault was a necessary condition of the occurrence of the harm (factual causation). The second is whether it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).
142 Section 5D of the Civil Liability Act requires that the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
143 Under the Civil Liability Act the test for factual causation is the 'but for' test. It must be shown that it is more probable that not that, but for the negligence of the defendant, the plaintiff's injury or harm would not have occurred: Adeels Palace Pty Ltd v Bou Najem [45], [53] - [56]; Department of Housing and Works v Smith (No 2) [92] - [94].
144 Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred: Strong v Woolworths Ltd[2012] HCA 5; (2012) 86 ALJR 267 [31] and [32]. In this case the plaintiff must prove that had the balustrade been higher or a circular handrail been installed, it is likely that this would have prevented her fall.
145 On the evidence in this trial I am not satisfied on the balance of probabilities that, had I found a breach of duty on the part of the defendant, this breach of duty caused the plaintiff's fall.
146 I am not satisfied on the balance of probabilities that raising the height of the balustrade or the installation of a circular handrail would be likely to have prevented the plaintiff's fall.
147 The plaintiff's expert's report confirmed that with the balustrade at 1.0 m and the female subject's centre of mass below the railing, 'the body can still rotate over the railing' (exhibit 2 page 27; see also the conclusions in the report as I have set out in [108] above). Thus, a fall would have been inevitable even if the height of the balustrade had been 1 m.
148 Further, given the uncertainties concerning the plaintiff's evidence about whether she had only one or both of her hands on the existing railing of the balustrade, and the possibility that her hands were extended beyond the railing, I am not satisfied on the balance of probabilities that, if there had been a circular handrail, the plaintiff in her intoxicated state would have been likely to grasp it, and if she did, whether she would have grabbed it with two hands. Holding the railing with one hand would not be as effective as two hands. However, even holding with two hands, as I understood Mr Meikle's evidence, would not prevent a forward rotation (ts 94):
I should perhaps mention that I was a level 10 gymnast until my late 20s. I taught and coached gymnastics for 25 years. I can state quite categorically that a forward contact with the railing followed by a forward lean will result only in a forward rotation.
149 The plaintiff was 47 years old at the time of her fall and she was severely intoxicated. Her judgment, riskperception, and the capacity to exercise reasonable care and skill, as well as her agility, balance, co-ordination and reflex response were affected by her intoxication. She was, as I found, attempting to look down and behind at the kitchen underneath the landing where the balustrade was situated. In this situation, even assuming she was able to grab a circular railing, I consider that in her intoxicated state, she would have leaned past the point of no return. It would then be highly improbable that she would be able to prevent herself from rotating, and then maintain her grasp once she did rotate.
150 Accordingly, I am not satisfied that either increasing the height of the balustrade or adding a circular handrail would have prevented the plaintiff from falling, once she did lean over and past the point of no return.
151 On the evidence in this case the plaintiff has failed to prove that it is more probable than not that, but for the negligence of the defendant (had I found him negligent), the plaintiff's injury or harm would not have occurred.
Contributory negligence
152 For the sake of completeness and in the event I am held to have erred in my findings on liability and causation, I consider it to be appropriate to make a finding on contributory negligence.
153 The issue of contributory negligence is governed by the Civil Liability Act s 5K and s 5L which deals with the issue of intoxication of the plaintiff. Unlike the relevant legislation in some other Australian jurisdictions, s 5L does not permit me to make an apportionment of contributory negligence of 100%.
154 I find that the plaintiff was at the time of her fall intoxicated within the meaning of s 5L(4). Accordingly, pursuant to s 5L(3) she is presumed to have been contributorily negligent.
155 Further, I find that the plaintiff has not established on the balance of probabilities that her intoxication did not contribute in any way to the harm suffered by her. For the reasons I have already given, I find that she was significantly intoxicated and I further find that this did contribute to her harm. Given the findings I have made in [113], the plaintiff's excessive consumption of alcohol created a situation where a fall from the balustrade, in the circumstances of her attempt to look below and behind at the kitchen underneath the landing, was highly probable. Her intoxication led to her leaning beyond the point of no return.
156 The culpability of the defendant, on the other hand, must be looked at in light of the evidence that even if the balustrade had been 1 m high, a forward rotation was inevitable once the plaintiff reached the point of no return.
157 Having regard to all of the circumstances, any culpability of the defendant would be massively outweighed by the plaintiff's culpability. I would, therefore, have assessed the plaintiff's contributory negligence at 90% with a 10% apportionment against the defendant.
Findings on liability
158 For the reasons I have discussed the plaintiff has not proved on the balance of probabilities that the injuries she suffered on 25 December 2009 were caused by a breach of any relevant duty of care owed to her by the defendant.
159 The plaintiff's claim must be dismissed.
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