Little, J.L. v Commonwealth of Australia

[1987] FCA 471

Re: JOHN LEONARD LITTLE
And: COMMONWEALTH OF AUSTRALIA
No. ACT G27 of 1986
Appeal

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fisher(1), Gallop(2) and Davies(3) JJ.

CATCHWORDS

Appeal - weight to be given to findings of fact by trial judge - no new question of principle.

Evidence Act 1905 (Cwlth), s. 7B

Uranerz (Aust) Pty Limited v. Hale (1980) 30 ALR 193

Warren v. Coombes (1978-79) 142 CLR 531

HEARING

CANBERRA

#DATE 31:8:1987

ORDER

The appeal be dismissed.

The appellant pay the respondent's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

I have had an opportunity to peruse the reasons for judgment prepared by Mr Justice Gallop. I agree with them and with the order in which his Honour proposes dismissing the appeal with costs.

JUDGE2

This is an appeal by an unsuccessful plaintiff in an action for damages for personal injuries in the Supreme Court of the Australian Capital Territory.

1. The appellant's cause of action arose out of an accident at work on 3 February 1982. The appellant was employed as an Inspector Class 8 in the National Library, Canberra. He suffered a fall just after he finished work and was leaving the building via a staircase. He was on his way from the first floor to the ground level. The staircase consisted of two flights of stairs. He was half way down the upper flight when he felt his left foot slip forward and away from him. He seized the handrail, which was on his left, managing to save himself from falling completely. His right foot went forward and struck a lower step. In so doing, he went through some form of twisting movement and felt immediate pain in his lower back.

2. The learned trial judge found that the accident happened in that way. He also found that the staircase was about 800 millimetres wide and there were on each step extending across the nosing of the step two parallel precast grooves each about one centimetre deep and about one centimetre wide. In each of these grooves there was or should have been a carborundum strip which would serve as an anti-slip surface.

3. Amongst the particulars of negligence set out in the statement of claim were the following:
   
   

"(e) Failing to take any or any adequate measures to replace the portion of missing carborundum inset so that the step would not be slippery.

. . .

(1) Permitting and/or requiring the plaintiff to use the premises which had portion of a carborundum inset missing thereby rendering it (sic.) slippery."

1. At the hearing paragraph (d) of the particulars was amended to read as follows:
   
   

"(d) Failing to take any/or any adequate measures to provide a safe surface on which the plaintiff could walk whilst engaged in his work in that part of a carborundum strip was missing and the other one was worn."

1. By its defence the respondent denied that part of the carborundum strip was missing as alleged by the appellant and also denied that any part of the carborundum strip was worn down.

2. In his reasons for judgment the trial judge identified the primary issue of fact in the action to be whether a portion of the carborundum strip was missing at the time of the appellant's fall. On the hearing of the appeal to this court, counsel for the appellant conceded that the trial judge had accurately identified the primary issue of fact, although later in his address in reply he qualified that concession.

3. The appellant's case as given by him in evidence was that three-quarters of the front carborundum strip was missing and the rear one was just barely discernible.

4. The respondent's case on liability depended strongly on the testimony of Mr James Daly, a workmate of the appellant, who was following the appellant down the stairs when he suffered his fall. He corroborated the evidence of the appellant that he in fact slipped, seized the handrail, appeared to be in pain and complained that he had hurt his back.

5. Mr Daly said that he inspected the steps on the first flight in the area where the appellant slipped and the carborundum inserts in the steps were of "variable condition". He denied that there were any segments of the carborundum strip missing, although he conceded that some "particles" may have been missing where the cracks appeared. He added that some of the segments of the particular strip were loose. He did not mention any other faults or defects and the trial judge declined to conclude that any looseness was such that it contributed to the appellant's fall. His Honour noted that any such cause was not relied upon by the appellant's counsel or pleaded.

6. His Honour decided that on the balance of probabilities the appellant's account of the condition of the step at the time he received his injury should not be accepted where it conflicted with the account given by Mr Daly. In coming to that conclusion his Honour had regard to the appellant's evidence in general, both on matters relating to liability and damages, a statement signed by the appellant in the form of a "Report of Personal Injury by Accident" dated 4 February 1982, a similar statement by another workmate, Mr John Purtell, entitled "Accident Report by Witness", the unexplained failure of the appellant to call Mr Purtell as a witness, and, of course, the evidence of Mr Daly.

7. It was submitted on behalf of the appellant that the finding of fact that the front carborundum strip was not missing was not reasonably open on the evidence. Counsel for the appellant acknowledged the force of the principles laid down by the High Court in Uranerz (Aust) Pty Limited v. Hale (1980) 30 ALR 193 and Warren v. Coombes (1978-79) 142 CLR 531, but submitted that his Honour's finding of fact should be reversed because it was inconsistent with established facts proved by contemporaneous material. In support of that submission counsel for the appellant relied upon the accident reports by the appellant and Mr John Purtell referred to above and the report and evidence of Mr Mervyn Willoughby-Thomas, an architect, who inspected the staircase some 15 months after the subject accident, namely on 18 May 1983 and made a report to the appellant's solicitors on 25 May 1983.

8. It was submitted on behalf of the respondent that accepting the evidence of Mr Daly, as he was entitled to do, and preferring his evidence to that of the appellant, was precisely the resolution of conflict respecting primary facts which the trial judge had to do and which an appellate court will rarely, if ever, disturb. Counsel for the respondent also referred to the well settled principles laid down in Warren v. Coombes, supra.

9. I turn to the evidence at the trial. The starting point is the appellant's own "Report of Personal Injury by Accident", which he made out on the day after the accident. In the boxed section of the report form, under the heading "Description of Accident. How did it actually happen? Concise description of circumstances", the appellant stated:
   
   

"I had ceased work for the day and was leaving the building by way of the stairway from first to ground floor. About half way down the first flight I slipped on the edge of a step from which the non-slip tread-strip was missing. I landed heavily on a lower step on the heel of my right foot, with the result that my back (particularly the right side) became very painful".

1. That "Report of Personal Injury by Accident" was tendered in evidence by the appellant over objection and was admitted pursuant to s.7B of the Evidence Act 1905 (Cwlth).

2. The appellant's own evidence was that as he was proceeding down the stairs he put his left foot forward on to a step and it slipped forward and away from him and he commenced to fall. He described how he was suspended with his right foot thrust forward on to a lower step, his left arm draped over the handrail and his right hand actually on the step from which he had slipped. He described how, while in that position, one finger of his right hand had disappeared into the groove of the place where there was supposed to be a carborundum strip. He looked at the place where his finger was and observed that there was approximately three-quarters of the carborundum strip missing from the front groove designed to take the carborundum strip. He said the rear groove was just barely discernible under his hand.

3. In cross-examination the appellant said that he was certain that the step on which he placed his right hand was the step from which he had slipped. He denied that there was no carborundum missing from any strip on the step. He estimated that there was approximately 40 centimetres of carborundum missing.

4. The appellant also tendered in evidence over objection an Accident Report dated 4 February 1982 by Mr John Purtell, a fellow employee who was descending the stairs at the same time as the appellant. The Report was admitted in evidence pursuant to s.7B of the Evidence Act 1905 (Cwlth). In answer to the question "7. State exactly what was seen", Mr Purtell said:
   
   

"Mr Little slipped on the stairs and stumbled against the guardrail twisting his back. Inspection revealed that the stair was damaged. As Mr Little was obviously in considerable pain I assisted him to his vehicle and ensured that he was capable of driving home."

1. In his reasons for judgment his Honour said it was not easy to assess the probative value of the appellant's "Report of Personal Injury by Accident" and Mr Purtell's Accident Report. He considered that there was an unexplained failure on the part of the appellant to call Mr Purtell as a witness and drew the inference that, if Mr Purtell had been called, he would not have assisted the appellant's case. He regarded Mr Purtell's statement that "Inspection revealed that the stair was damaged" as ambiguous. These findings by the trial judge were not subjected to any criticism on the hearing of the appeal to this court.

2. The next witness called to give evidence on behalf of the appellant was Mr Mervyn Willoughby-Thomas, an architect. His report to the appellant's solicitors dated 25 May 1983 was also in evidence. In his report he stated that at the request of the appellant's solicitors he had inspected the staircase at the National Library in company with the appellant on 18 May 1983 and, in particular, the step identified to him by the appellant. He noted that the step was missing its carborundum insert for a width of 500 millimetres out of 860 millimetres. Portions of the insert remaining were loose and could be picked out with the fingers. He stated that the insert had been cast insitu (sic) and had cracked due to drying shrinkage. He said that neither insert was proud of the surface of the tread and to be effective the inserts should be proud of the floor surface. He said that the step was significantly more slippery than other steps. He concluded that the omission of the leading carborundum insert of the step was dangerous to a person descending the stair.

3. He gave evidence in accordance with the terms of his report. When objection on the grounds of relevance was taken to the admissibility of his evidence about the effect of the carborundum strip on the particular step being level with the surface of the step, counsel for the appellant applied for leave to amend Particular (d) set out above by adding the words "in that part of a carborundum strip was missing and the other one was worn". The trial judge granted leave to amend the particulars accordingly.

4. It is to be noted that the appellant did not base his case upon the slippery nature of the particular step due to the worn condition of the rear carborundum strip to such an extent that it was not proud of the surface of the step. Nor did he rely specifically upon the generally worn condition of the staircase although the particulars of negligence were amended by leave to embrace such a case. This court should keep the conduct of the trial and the issues of fact which had to be determined by the trial judge firmly in mind when determing this appeal. The trial judge correctly, in my view, identified the primary issue of fact, namely whether the portion of the carborundum strip closest to the nose of the particular step was missing at the time of the appellant's fall. The respondent denied that factual situation, relying upon the evidence of Mr Daly, and in the resolution of that conflict the trial judge preferred the evidence of Mr Daly to that of the appellant.

5. In his reasons the trial judge went on to deal with the evidence of Mr Willoughby-Thomas. He found no support for the appellant's case in that evidence. Having accepted Mr Daly's evidence that there were no parts of the carborundum strip missing on the day of the accident, he also accepted Mr Willoughby-Thomas' factual observations about the condition of the step when he examined it on 18 May 1983. He concluded that the step had deteriorated between the date of accident and 18 May 1983 which, in his Honour's view, was consistent with the evidence of Mr Daly.

6. It is true that his Honour was factually wrong in stating that the appellant's estimate of the length over which the carborundum was missing at the time of the accident was 500 millimetres, and that that measurement co-incided with the observation of Mr Willoughby-Thomas at the time of his examination. As stated earlier, the appellant described the portion missing as being three-quarters of the carborundum strip and later about 40 centimetres. The factual error is of no significance once the evidence of Mr Daly had been preferred to that of the appellant.

7. In my opinion no basis has been established for reversing the finding of the trial judge, based as it was on his view of the credibility of the witnesses. The evidence which was accepted was not inconsistent with the facts established by evidence independent of the appellant, it was not so improbable that no reasonable person could accept it, nor was the conclusion reached affected by some error of law or fact (Uranerz v. Hale, supra, per Gibbs J. at p 193).

8. I would dismiss the appeal with costs.

JUDGE3

I have had an opportunity to consider the reasons for judgment prepared by Mr Justice Callop. I agree with the with the order which his Honour proposes.