Kernich v IOOF Australia Trustees Limited No. Scgrg-97-616 Judgment No. S6580

[1998] SASC 6580

KERNICH v IOOF AUSTRALIA TRUSTEES LIMITED

AS EXECUTOR OF THE ESTATE OF GRACE ELLEN KERNICH

Full Court
Coram:  Doyle CJ, Prior and Debelle JJ

Doyle CJ

This is an appeal against a decision of the District Court.

The plaintiff sued the defendant, claiming damages for personal injuries sustained by the plaintiff in a fall.  The plaintiff alleged that the injuries from the fall were caused by the negligence of the defendant.  The judge dismissed the claim.  The judge was not satisfied that the fall was caused by any negligence on the part of the defendant.  The plaintiff has appealed, and seeks a finding in his favour that the defendant was negligent, and an order that the matter be remitted to the District Court for the damages to be assessed.

Facts

The original defendant was Mrs Kernich, the mother of the plaintiff, and the owner and occupier of a house.  Before the action came to trial she had died and her executor was substituted as the defendant.  I will continue, for convenience, to refer to her as the defendant.  The house was at Port Elliot, a seaside town south of Adelaide.  The plaintiff is the son of the defendant.  At the time that he sustained the injury he was staying with his mother.  He was having a holiday at her beach house.  It was summer time.  The plaintiff was 37 years of age.  Also staying at the house at the time were the plaintiff’s wife, a Mr O’Loughlin (a friend of the defendant), and a Mr Watson (who was apparently a friend of the plaintiff).

The floor of the house is elevated several feet above ground level.  At the rear of the house is a timber deck, approximately 2.44 metres wide.  The deck is about seven feet above ground level.  The decking consists of narrow timber slats, laid parallel to the exterior wall of the house.  There is a small gap between each slat.  As best I can tell from the photographs, which were tendered in evidence, there are about 25 such slats.  The slats are nailed to a series of bearers across which the slats were laid.  The bearers are at right angles to the wall of the house and rest upon some form of support.  The slats are not as long as the deck.  The slats are laid end on to each other, with their butt ends hard up against each other.  The photographs suggest that the slats are laid so that joints between alternate slats formed a line across the deck.  The slats are nailed to the bearers at their butt ends, and also at other points along their length.

At one end of the deck there are stairs leading to the ground.  The stairs are parallel to the exterior wall of the house.

At the edge of the deck there is a timber railing 920mm high.  This appears to be a normal height.  No criticism was made at the trial of the adequacy of the rail.

The kitchen of the house is adjacent to the deck.  A sliding door leads from the kitchen to the deck.  A person going through the kitchen onto the deck steps down onto the deck, a step of about six inches.  There is no suggestion that the step down is in any way abnormal, or presents any sort of danger.

The plaintiff said that in the early hours of the morning in question, at about 3.00 am, he wished to relieve himself.  He decided to do that outside, to avoid disturbing other occupants who were sleeping in the house.  He opened the sliding door.  He turned on two lights that illuminated the deck:  AB36.  He put on a pair of thongs:  AB88.  He stepped onto the decking.  He said that he took one or two steps but then:-

"... my right foot I jammed under the decking rail;  I actually jammed my right foot under the decking rail which caused me to sort of stumble and I just sort of hopped on my other foot to keep my balance.  As I was thinking of what my foot was jammed on, as it released I threw both my hands forward and I expected to hit the balcony rail and I just went straight over it."

The reference here to a "rail" is a reference to one of the slats referred to earlier by me.

The plaintiff said that he fell heavily onto paving bricks on the ground below.  In this fall he sustained the injuries for which he claimed damages.

The plaintiff sued his mother as occupier of the house.  There is no dispute that she owed him a duty to take reasonable care for his safety:  see section 17C of the Wrongs Act.

The plaintiff claimed that the decking was unsafe, in that some of the slats were raised or protruded above the level of other slats, giving rise to the risk of a person tripping on them.  The plaintiff claimed that some of the slats just outside the kitchen door were in this condition.  He claimed that his mother failed to take reasonable precautions to prevent him suffering harm, either by giving some warning of the dangerous condition or by having the problem fixed.

There was evidence that, due to exposure to the elements, the slats had a tendency to twist or warp.  It is not clear to me how that was relevant to the case.  But, more relevantly, there was evidence that, at their ends, the slats tended to weather and split.  I mention again that the evidence was that the slats were nailed to the bearers at their ends.  The evidence was further that there was a tendency for the splitting at the ends to cause the slats to pull free of the nails at the ends.

The plaintiff had performed some repair work on the slats in about December 1992.  Some slats were warped and were lifting:  AB31.

I have already mentioned Mr O’Loughlin, a friend of Mrs Kernich, who was staying at the house on the night in question.  He said that before the plaintiff fell he himself had, on one or two occasions, tripped on the decking: AB177.  The effect of his evidence seems to be that he did not fall, but rather stubbed his toe or something like that.  When asked to explain what made him trip, he said that the decking tended to warp and twist:  AB177.  He had spoken to Mrs Kernich about this problem, and had suggested that she ought to get someone to deal with it.  He himself had done some minor repair work to the decking.  He thought that some time before the fall was when he had done that work:  AB185.  He had pulled the old nails out, straightened them out and re-positioned them:  AB186.  My impression is that he had nailed the slats back down in this way.  On the other hand, his evidence was that he had not noticed any particular problems with the slats at about the time of the plaintiff’s fall:  AB187.  Similarly, the plaintiff said that he had walked across the decking on "numerous occasions" in the two weeks before his fall, but he had not noticed anything that caused him any concern:  AB29.

I should add that the effect of the evidence is that at about this time people were in the habit of walking on the deck at the back of the house.

Evidence was also given by a tradesman, Mr Rothall.  His evidence was that in 1995, about two years’ after the fall, he was hired by Mrs Kernich to do some repairs to the decking.  The evidence was admitted by the judge on the basis that it explained the sort of problem that might occur with the slats, but was not evidence about the state of the deck at the time of the fall.  Mr Rothall explained that some of the slats were cracked and warping, and that some of the nails were lifting out at the ends of the slats where they were weathering.  This tended to happen at the joins where two slats butted up against each other.  Mr Rothall re-nailed some of the slats, and lifted and re-positioned some others.

More significantly, evidence was given about the slats by Mr Watson.  As I have mentioned, he was a friend of the plaintiff who was staying at the house on the night in question.  He learned of the plaintiff’s fall the following morning.  He had been fishing with the plaintiff the day before.

He observed that, outside the sliding door that led from the kitchen, some of the slats had lifted at their ends and were not firmly fixed to the supporting bearer.  It is not easy to tell from his evidence whether the relevant slats were in fact protruding above other slats, or were merely not firmly fixed to the supporting bearer, but my impression is that some slats were protruding above other slats:  see, for example, AB283, where he says that one of the slats had lifted, "Three quarters of an inch, maybe an inch".  He certainly said that some of the joins, where abutting slats met, had lifted and needed to be re-nailed:  AB282.  The slats at these points were no longer firmly fixed to the bearer underneath.  He said that when he walked on the relevant bearers he could feel their movement:  AB283.  Several of the slats were in this condition, and he re-nailed them and in that way dealt with the problem:  AB283-4.

The plaintiff’s case was, then, that he had tripped on one of the loose slats, and that this had caused his fall.  He relied upon the evidence from Mr O’Loughlin and Mr Watson to support his claim that the decking was in an unsafe condition.

The trial

The circumstances of the accident were closely scrutinised in evidence.  The defendant’s case was that the plaintiff was an unreliable witness.  There were suggestions that the plaintiff had consumed a fair quantity of alcohol before going to bed.  The defendant argued that the plaintiff might have been affected by alcohol, or might have been sleep walking at the time in question, but that in any event his version of the accident should not be accepted.  Unless his version was accepted, it was argued, there was no basis for a finding of negligence.

Both the plaintiff’s wife and Mr O’Loughlin said that on the night in question, a very short time after the plaintiff had fallen, the plaintiff told them that he had tripped on the decking.  This evidence was admitted by the judge to rebut a suggestion of recent invention.  On appeal it was submitted that it should also be received as evidence of what happened that night, under the so called res gestae rule.

On the other hand, the judge heard evidence from an ambulance officer who attended at the house to take the plaintiff to hospital.  By reference to notes made at the time, he said that he was told that the plaintiff was "unable to say how he landed", that he may have been sleep walking at the time, and that he had consumed approximately ten glasses of beer on the night in question:  AB424.  He had no independent memory of the occasion, and what was in his notes might have come from the plaintiff or from someone else:  AB422.  However, the only other people who might have spoken to him had no reason to say such things, especially in light of what the plaintiff had said to them.
A nurse at the hospital to which the plaintiff was admitted also gave evidence from notes taken by her.  Her evidence was that the plaintiff told her that he had consumed eight to ten schooners of beer on the evening preceding his fall, that he dreamt that he was falling and landed on his back and that when he woke up he was lying on the paving outside the house under the balcony.  She had no independent recollection of the conversation, but her evidence suggests that this information must have come from the plaintiff:  AB446.

Finally, the doctor who attended the plaintiff when he was admitted to another hospital on the morning in question gave evidence from notes that the plaintiff told her that he could not remember how the accident happened.  She had no independent recollection of the conversation, but from her notes was confident that this information came from the plaintiff:  AB302.

The judge accepted the evidence of these witnesses, and found that the plaintiff had told the three of them that he did not know how he came to fall off the balcony:  Judgment page 7.

In my opinion that finding cannot be disturbed.  Of course, the judge had to consider the limited information that the notes conveyed, the possibility of the information not in fact having come from the plaintiff, and the fact that the plaintiff was in pain.  But the judge’s reasons indicate that he was alive to these issues.  He had the benefit of seeing the witnesses.  It would be wrong for this Court to interfere with that finding.

Having made that finding, the judge said that he found "... the plaintiff to be vague and unsatisfactory":  Judgment page 7.

The judge then went on to say:-

"I find the significance of what he [the plaintiff] said to the various medical people which is inconsistent with his testamony in this Court about how this accident happened has been greater than the evidence of what he said to his wife and Mr O’Loughlin."

A few lines later he said:-

"I was not impressed with him [the plaintiff] as a witness and I gain no comfort from the inconsistent statements that he made to the medical people as described above."

While the judge’s findings in this respect are not as clear as they might be, my firm impression is that, having regard to the conflicting accounts which the plaintiff gave within a short time of the accident happening, the judge was not prepared to place any reliance upon the plaintiff’s own account of his fall.  In other words, the judge was not prepared to act upon the plaintiff’s claim that he remembered tripping and in fact had tripped on one of the slats comprising the decking.

It is clear that this finding did not rest solely upon the conflict between the evidence of Mrs Kernich and Mr O’Loughlin on the one hand, and the evidence of the ambulance driver, the nurse and the doctor on the other hand.  I refer again to the judge’s finding that the plaintiff was "vague and unsatisfactory".

In my opinion this is a finding that was clearly open to the judge, and, depending as it does in part upon his assessment of the plaintiff as a witness, it is a finding that the judge was best placed to make.  I would not be prepared to interfere with that finding.  It follows, in my opinion, that while that is not the end of the case for the plaintiff, the evidence from the plaintiff that he tripped on the decking has to be put to one side.

It follows that it does not matter whether the evidence of what the plaintiff said just after the fall was admitted to rebut a suggestion of recent invention or should have been admitted as evidence of the truth of the evidence that he later gave.

That leaves for consideration the evidence about the state of the decking, coupled with the fact, which does not appear to be seriously disputed, that the plaintiff had some sort of fall at the rear of the house on the night in question, and sustained injuries when he fell.  The judge made no specific  finding about the state of the decking or the evidence about raised slats.  On the other hand, there is nothing in the evidence to suggest that he rejected the relevant evidence of Mr O’Loughlin and Mr Watson.

The difficulty for the plaintiff, and the reason for the dismissal of the claim, lies in a further finding that the judge has made.  The judge said:-

"Most importantly I find that the evidence he [the plaintiff] has given as to how the accident happened is difficult to believe and indeed almost impossible to comprehend.  His evidence is clearly that he stepped out of the kitchen area without any momentum and tripped in an area which is quite close to the slide door and somehow moved at a speed which allowed him to be catapulted over the balcony railing which is about 920mm high.  I really do not know how he came to fall off the balcony but cannot say on the balance of probabilities it was how he said it happened.  I was not impressed with him as a witness and I gain no comfort from the inconsistent statements he made to the medical people as described above.  Irrespective of the state of the decking I cannot find it proved to the requisite degree that that state caused him to be catapulted over the balcony railing and thus causing his injury.  Consequently I find that it has not been proved on the balance of probabilities the accident happened in the way that he has described and that the condition of the decking caused that accident.  Consequently the plaintiff’s claim must fail."

In effect, the judge found that even if some of the slats were raised, and raised in a manner that might cause a person to trip, the evidence before him did not satisfy him, on the balance of probabilities, that the plaintiff had in fact tripped and then fallen off the deck.

That is how I understand the judgment.  Counsel for the plaintiff complained that the judge had made no finding on the question of the plaintiff’s alcohol consumption on the night in question, no finding about the state of the slats of the deck, and no finding about how the accident had happened.

I agree, and it would have been better if the judge had made findings on these matters.  But what the judge did was to examine the version put forward by the plaintiff, and to reject it as not being credible.  To do that he did not have to make the findings referred to.  It was sufficient for him to decide whether or not he could accept the claim that the plaintiff made.  In my opinion the process of reasoning that the judge adopted was not erroneous.

As to the conclusion itself, I share the difficulty that the judge had in accepting the plaintiff’s version.  It is very difficult to understand how a person walking out of the double door in a normal fashion could, as a result of stubbing or catching his foot on a slightly raised slat, finish up falling over the railing and onto the ground below.  Whether I would ultimately have accepted the evidence of the plaintiff about his fall, is not to the point.  In my opinion one cannot say that the judge’s rejection of the plaintiff’s version was wrong.  That being so, that aspect of the appeal must fail.

There is a further complaint.  It is submitted that, although the judge rejected the plaintiff’s evidence and the plaintiff’s claim that he had tripped and fallen in the manner described by him, the judge should have considered the objective facts.  In other words, even if the plaintiff’s detailed description of the manner in which the fall occurred was rejected, it was still incumbent upon the judge to consider whether a case of negligence could be made out on the basis of such findings of fact as might be made about the circumstances of the accident.  For example, even if the judge was not satisfied that the accident happened just in the manner described by the plaintiff, the plaintiff might succeed on the basis that the accident had happened in some such fashion.  Or, the plaintiff might succeed on the basis that, although one could not conclude just how the accident happened, the objective facts gave rise to an inference that negligence on the part of the defendant was the cause of the fall.

Counsel for the plaintiff complained that the judge had been inconsistent.  He had rejected the plaintiff’s description of the fall, but then had tested his claim only be reference to the version of events that he had rejected.

There is some force in this complaint, assuming that the plaintiff’s case was put on that alternative basis at the trial: cf Mifsud v Campbell (1991) 21 NSWLR 725 at 728-9. It is appropriate for the Court to deal with the case on that alternative basis.

It then becomes necessary to identify more precisely the basis upon which the case is to be considered.  The absence of findings by the judge creates a difficulty.  However, I am prepared to assume findings that the plaintiff walked onto the deck through the sliding door at about 3.00 am, that some of the slats on the deck were raised, and that shortly thereafter the plaintiff found himself on the brick paving, having fallen heavily.

The first two assumptions are favourable to the plaintiff.  I am not confident that the trial judge would have made those findings.  However, it is convenient to consider the plaintiff’s case on that basis, because if the first two findings were not made, there does not seem to be a case at all.

Nothing more can be assumed in the plaintiff’s favour.  In arguing the appeal on this basis, counsel for the plaintiff tended to introduce the further finding that the plaintiff had fallen over the railing, and sometimes the yet further finding that the plaintiff had tripped on a protruding slat.  But these are things asserted by the plaintiff and already rejected by the judge.  For present purposes, the plaintiff’s claim about how he tripped and fell must be set aside.  What the plaintiff is entitled to, and it is no more than this, is to have his case considered on the facts that remain after his own evidence is rejected.

In my opinion, those limited findings do not support a conclusion, on the balance of probabilities, that the plaintiff tripped on a protruding slat and fell to the ground. To begin with, the plaintiff’s case immediately meets the difficulty already identified by the judge. How could tripping or stumbling on a protruding slat have caused the plaintiff to fall over the rail? In my opinion this is not one of those situations in which the sequence of events (I repeat, the sequence is simply the plaintiff stepping onto the deck, the presence of raised slats, and the plaintiff finding himself on the brick paving) suggests, as a matter of common sense, that the accident happened in the manner suggested by counsel for the plaintiff: cf Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538. To my mind, common sense causes one to doubt whether the plaintiff could have fallen in the manner suggested by counsel for the plaintiff, rather than to lean towards the conclusion that he did fall in that manner.

To reason this way is not to revert to evidence already rejected.  It is merely to consider, as a matter of practicality, the likelihood that a fall which the plaintiff cannot explain, and the presence of the plaintiff on the brick paving adjacent to the deck, are attributable to some raised slats to be found outside the door through which the plaintiff walked.

In considering this matter, other possibilities arise.  It may be that the plaintiff was sleep walking, and fell for some other reason altogether.  It may be that the plaintiff simply missed one of the steps leading from the deck to the ground, due to the plaintiff not being fully awake.  The difficulty of linking the fall to the raised slat, and the presence of other plausible explanations for the fall, present a formidable obstacle to the plaintiff’s case.

Considering the matter afresh, and on assumptions favourable to the plaintiff, I am not satisfied on the balance of probabilities that the plaintiff has established that a negligent failure on the part of the defendant to maintain the deck in a safe state was the cause of his injury. I have considered this issue on the basis that the Court is in as good a position to make a finding as the trial judge, because it is a matter of drawing an inference from quite limited established facts. Considering the case on this basis does not depend in any way upon an assessment of the plaintiff: see Zuvela v Cosmaran Concrete Pty Ltd (1997) 71 ALJR 29 at 31.

For those reasons, even if the trial judge did err in failing to consider the case on the alternative basis identified, I conclude that the case could not have succeeded on that basis, and that for that reason a judgment dismissing the plaintiff’s claim should stand.

I would therefore dismiss the appeal.

Prior J

I agree that this appeal should be dismissed for the reasons given by the Chief Justice.

Debelle J

I agree with the reasons of the Chief Justice.  I agree that the appeal should be dismissed.