Jenolan Caves Resort Pty Ltd v Turner

NEW SOUTH WALES COURT OF APPEAL

CITATION: Jenolan Caves Resort Pty Ltd v Turner [2000] NSWCA 381

FILE NUMBER(S):
40514/99

HEARING DATE(S): 24 November 2000

JUDGMENT DATE: 24/11/2000

PARTIES:
Jenolan Caves Resort Pty Ltd - Appellant
Iris Turner - Respondent

JUDGMENT OF: Meagher JA Handley JA Giles JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 1704/99

LOWER COURT JUDICIAL OFFICER: Gamble ADCJ

COUNSEL:
G Curtin - Appellant
C R Hoeben SC - Respondent

SOLICITORS:
Sparke Helmore - Appellant
Stacks, The Law Firm - Respondent

CATCHWORDS:
NEGLIGENCE - slipping case - on facts, slipping not caused by failure to guard against risk. ND

LEGISLATION CITED:

DECISION:
Appeal allowed. Judgment in favour of the plaintiff set aside, and in lieu thereof judgment for the defendant. The plaintiff to pay the costs of the appeal and of the trial. The cross-appeal is dismissed and the plaintiff is to pay the costs of the cross-appeal.

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40514/99
DC 1704/99

MEAGHER JA
HANDLEY JA
GILES JA

Friday 24 November 2000

JENOLAN CAVES RESORT PTY LTD v TURNER

JUDGMENT

GILES JA: This is a defendant’s appeal from a judgment in the District Court in favour of the plaintiff for $170,000. The appeal is against the finding of liability and the extent of contributory negligence found against the plaintiff. A cross-appeal was filed, but it is not maintained and in due course must be dismissed.
The plaintiff, Mrs Iris Turner, arrived together with her husband at Caves House at Jenolan Caves for a holiday. Caves House was owned and conducted by the defendant. After they booked in the plaintiff’s husband took their luggage upstairs, leaving the plaintiff in the guest lounge adjacent to reception.
After sitting in the lounge for a few minutes the plaintiff went to walk into an adjoining room, described as an ante-room or library. The trial judge found that the lounge was dimly lit and the ante-room was more brightly lit, and that the plaintiff was caused to walk to the ante-room by the shaft of light coming through the doorway. This may not have been entirely accurate, but the plaintiff certainly went with a view to looking into the ante-room.
There was a small step up from the lounge into the ante room, 38 millimetres high. It was not hidden or disguised in any way, and the trial judge said that it was probably visible to a careful person paying attention to where they were walking but was not obvious or expected where it occurred. The defendant contested the second element of this on appeal. The plaintiff tripped on the step and fell, and was injured.
The trial judge considered that the step presented a risk to guests at Caves House, saying that as it was an area raised above the normal height of an elderly persons step it must present a risk of tripping to some of the guests. This was founded in part on expert evidence that young pedestrians walking on a surface perceived to be smooth lift their feet by what was at one point said to be about five millimetres, while elderly pedestrians may lift their feet only about three or five millimetres. The evidence to this effect was not the subject of cross-examination . The plaintiff was aged seventy-seven at the time.
The trial judge considered that the risk was a significant one. Then turned to the “alleviating action” the defendant could have taken to avoid it, she considered that the risk could have been alleviated, saying that some warning of the possibility of tripping over the step “would seem sensible and responsible” and that provision of a ramp would not seem to be out of the question in terms of costs and convenience. Moving immediately to contributory negligence, her Honour said that the plaintiff must bear some of the responsibility for her fall as she did not look in circumstances in which it seemed there was sufficient light to enable her to see the step, and did not give attention to securing her footing as she passed from one type of floor surface to another.
In moving directly from alleviating action to contributory negligence her Honour did not clearly address causation, that is, whether the plaintiff’s fall was the result of the defendant’s failure to take the alleviating action to which she referred. That was one of the matters argued on appeal. In my opinion the plaintiff’s claim against the defendant should have failed on the issue of causation, and it is not necessary to consider the arguments on appeal going to what was called the standard of care required of the defendant and other matters. I am content to assume that there was a risk in relation to which some alleviating action was called for as postulated by the trial judge.
The trial judge found that the plaintiff had put her left foot on the step and was following with her right foot when the fall occurred, and that the plaintiff tripped as she moved her right foot to the step. Her Honour recorded that the plaintiff gave evidence that she did not look, that her attention was taken up with the shaft of light coming from the ante-room. It was found that the plaintiff did not notice the step in the doorway because she was concentrating on investigating the shaft of light coming from the ante-room.
There is, it seems to me, an inconsistency in this. If the plaintiff had put her left foot on the step, she must have noticed the step. If walking normally, her left foot would not have been lifted so as to be placed on the step, and it was not suggested that her left foot encountered the step unexpectedly, for example so as to initiate or play a part in the fall.
We were taken to the plaintiff’s evidence material to this in some detail.
In her evidence in chief the plaintiff said that as she got to the doorway “I moved my left foot forward my foot hit a step, a small step and I fell into the ante-room”. She later said that she remembered actually tripping and falling, and felt her right foot caught on the step.
In cross-examination this was amplified. The plaintiff said that she put her left foot forward but her right foot caught in the step that tripped her. The evidence continued -
“Q. Was your left foot past the step before you fell?
A. Well I must have lifted my left foot over and my right foot caught in the step.
Q. I see. So ---
A. That’s just how I assume it could’ve been done.
Q. Sure.
A. To my knowledge I wasn’t thinking of a step there and my foot just went over the step apparently.
Q. This was a step up or down?
A. Well it was up into the other room.
Q. So your left foot got up above the step?
A. Apparently so, yes.
Q. And was placed then, can I just say, on the top part of the step?
A. Yes.
Q. Then you move your weight forward?
A. Left foot forward.
Q. Yes you put your left foot down?
A. Yes.
Q. Then as you normally do your weight comes forward?
A. Yes.
Q. Onto your left foot, is that right?
A. Yes that would be and when I lifted my right --
Q. Sorry --
A. I didn’t lift it, tripped over --
Q. That’s right. You then go to lift your right foot to continue forward and that’s when you tripped --
A. I fell.
Q. But what I’m really concerned about is that before your right foot tripped your left foot was up on the step?
A. Yes. That just was the natural way that it happened to be --
Q. Yes --
A. – as I walked –“
Later again, the plaintiff gave the evidence -
“Q. That’s right. You put your left foot up on the step without any trouble?
A. Well I didn’t know that it was a left, that there was a step there --
Q. Maybe so, nevertheless you put your left foot up on the step --
A. Apparently I did --
Q. – with no trouble?
A. – apparently I did.”
Although it is evident that there was a degree of reconstruction on the plaintiff’s part, it is clear enough that her recollection was that her left foot preceded her right foot. The trial judge said that she gave no evidence of whether or not she saw the step, and certainly there was no explicit evidence. But the trial judge found, as was well open to her on the evidence I have described and set out, that she had put her left foot on the step and was following with her right when the fall occurred.
It seems to me that in failing clearly to address the issue of causation the trial judge did not pay regard to the important conclusion that the plaintiff must have noticed the step sufficiently to raise her left foot and put it on the step, albeit perhaps as part of normal walking and without a specific recollection of the existence of the step impinging on her mind. If that be so, it matters not that there was no warning of the possibility of tripping over the step, or that a ramp had not been provided. The cause of the fall was the plaintiff’s failure to match the movement of her left foot with movement of her right foot, so that she caught her right foot on the step and fell. That is something which can occur with any step or stair, and it did not occur in this case because of the defendant’s failure to guard against the risk.
Unfortunately for the plaintiff, therefore, in my opinion the appeal should be allowed, the judgment in favour of the plaintiff should be set aside, and in lieu thereof there should be judgment for the defendant. The plaintiff should pay the costs of the appeal and of the trial. The cross-appeal should be dismissed and the plaintiff should pay the costs of the cross-appeal.
MEAGHER JA: I am of the same view.
HANDLEY JA: I agree.
MEAGHER JA: The orders of the Court therefore are the orders proposed by Giles JA.

___________

LAST UPDATED: 21/02/2001

[2000] NSWCA 381

24 November 2000

Key Legal Topics

Areas of Law

Negligence & Tort

Civil Procedure

Legal Concepts

Appeal

Negligence

Causation

Costs