Makita (Australia) Pty Ltd v Sprowles
[2001] NSWCA 305
•14/09/2001
NEW SOUTH WALES COURT OF APPEAL
CITATION: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 revised - 17/09/2001
FILE NUMBER(S):
40357/00
HEARING DATE(S): 20 July 2001
JUDGMENT DATE: 14/09/2001
PARTIES:
Makita (Australia) Pty Ltd (Appellant)
Vicki Jane Sprowles (Respondent)
JUDGMENT OF: Priestley JA Powell JA Heydon JA
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): SC 20841/97
LOWER COURT JUDICIAL OFFICER: James J
COUNSEL:
Mr J D Hislop QC/Mr P M Morris (Appellant)
Mr L King SC/Mr C P Heazlewood (Respondent)
SOLICITORS:
Moray & Agnew (Appellant)
Shephard & Shephard (Respondent)
CATCHWORDS:
Torts - Negligence - Liability - Slip and Fall - Whether employer failed to provide a safe means of access between car park and offices - Whether stairs slippery - Whether expert evidence on slipperiness of stairs should have been accepted by trial judge - Discussion in obiter dicta about credibility of party-witness - Where employee injured whilst walking between roof-top car park and office - Where lack of previous slipping accidents on stairs
Evidence - Opinion - Expert evidence - Admissibility and use - Discussion of common law and statutory requirements - Need for expert witness to reveal factual and intellectual basis of opinion - Evidence Act 1995 (NSW), ss 76, 77, 78, 79 and 80 - D
LEGISLATION CITED:
Evidence Act 1995 (NSW)
Suitors Fund Act 1951 (NSW)
Supreme Court Act 1970 (NSW)
DECISION:
See para 110
JUDGMENT:
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40357/00
SC 20841/97
PRIESTLEY JA
POWELL JA
HEYDON JA14 September 2001
MAKITA (AUSTRALIA) PTY LTD v VICKI JANE SPROWLES
Torts – Negligence – Liability – Slip and Fall – Whether employer failed to provide a safe means of access between car park and offices – Whether stairs slippery – Whether expert evidence on slipperiness of stairs should have been accepted by trial judge – Discussion in obiter dicta about credibility of party-witness - Where employee injured whilst walking between roof-top car park and office – Where lack of previous slipping accidents on stairs
Evidence – Opinion – Expert evidence – Admissibility and use – Discussion of common law and statutory requirements – Need for expert witness to reveal factual and intellectual basis of opinion – Evidence Act 1995 (NSW), ss 76, 77, 78, 79 and 80.
On 30 June 1986 the plaintiff (the respondent to this appeal) fell at her workplace on stairs leading from a roof top car park to the office below where she worked. The plaintiff successfully sued the defendant (the appellant) for negligence and was awarded $1,153,886 in damages, plus costs. The defendant appealed.
Held by Priestley, Powell and Heydon JJA, allowing the appeal:
The trial judge erred in finding that the defendant had breached its duty of care to the plaintiff.
(Per Priestley JA):
The trial judge erred in accepting the opinion of Professor Morton that the stairs were slippery since there was a lack of evidence of any other slipping accidents occurring on the stairs. Considering that the stairs were used daily, the lack of previous falls indicates that the stairs were not slippery in any ordinary meaning of the word.
(Per Powell JA):
The trial judge erred in accepting the opinion of Professor Morton that the stairs were slippery since his evidence revealed internal inconsistencies and confusion.
(Per Heydon JA):
a. A critical examination of the conclusions in Professor Morton’sEvidence revealed that they were not convincing. It was preferable to draw an inference from the history of incident-free use of the stairs, than from Professor Morton’s conclusions.
i.Despite the fact that Professor Morton’s evidence was uncontradicted, neither the trial judge, nor the Court of Appeal was bound to accept it, especially where it was on ultimate issues.
Brodie v Singleton Shire Council (2001) 75 ALJR 992, referred to.
ii.An expert witness must “furnish the trier of fact with criteria which enable it to evaluate the validity of the expert’s conclusions” (Heydon JA at [59]). Professor Morton had not done this sufficiently.
Evidence Act 1995 (NSW), ss 76, 77, 78, 79,80.
Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 and HG v R (1999) 197 CLR 414, applied.
b. Non-compliance with the standard in Ordinance 70 does not of itself establish a breach of duty.
c. The trial judge’s conclusion that there was probably grit on the stairs cannot establish a breach of duty since it was difficult to support a conclusion that grit was definitely present, and it was impossible to quantify the extent to which the grit increased the slipperiness of the surface.
ORDERS:
The appeal is allowed.
The verdict and judgment for the respondent at trial are set aside.
The order of the trial judge that the appellant pay the respondent’s costs of the proceedings is set aside.
The Statement of Claim is dismissed.
The respondent is ordered to pay the appellant’s costs of the trial and of the appeal.
The respondent is to have a certificate under the Suitors Fund Act in relation to the costs of the appeal.
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40357/00 SC 20841/97
PRIESTLEY JA
POWELL JA
HEYDON JA14 September 2001
MAKITA (AUSTRALIA) PTY LTD v
VICKI JANE SPROWLESJUDGMENT
PRIESTLEY JA: All the relevant facts and materials are set out in the reasons of Powell and Heydon JJA. I arrive at the same conclusion as they do, but by a shorter way.
The plaintiff’s description of her fall was brief and uninformative. As the trial judge said in his reasons: “In her evidence the plaintiff merely said that her foot went out from underneath her”.
The trial judge’s conclusion that the plaintiff’s fall was because of the slipperiness of a tread on the stairs rather than because she simply lost her footing was based on Professor Morton’s expert opinion that the stairs were slippery. It seems clear that without Professor Morton’s opinion, the trial judge would not have found the plaintiff fell because of the slipperiness of the stairs.
In my view the trial judge erred in accepting Professor Morton’s opinion of slipperiness. This opinion contradicted uncontradictable facts that showed that the stairs were not slippery in any ordinary meaning of the word. For the stairs (or any single step) to be slippery in a sense relevant for the present case, they (or it) must in my opinion have the characteristic that persons walking on them (or it) with ordinary care will, from time to time, slip.
The plaintiff began work with the defendant on 16 January 1984. She suffered her fall on 30 June 1986. She walked up and down the stairs every working day. There were more than fourteen steps in the stairway. On the basis of a five day working week and four weeks annual holidays this means that she walked down over the step on which she fell at least 575 times. Absences may have reduced this number. Call it 500 and the point still seems to be irresistible. (Since all the steps seem to have been of the same composition, the relevant figure is probably at least 7000.) The plaintiff fell once. She gave no evidence that she had ever slipped. There was no evidence that any one else ever slipped. One fall in more than 500 uses of a step (or 7000 uses of all the steps in a stairway) is not evidence that the step (or the steps in the stairway) is (or are) slippery in any relevant use of the word. It is evidence of the opposite. The only conclusion, in my opinion, is that Professor Morton’s opinion about the slipperiness of the steps in the stairway was so clearly wrong that even his impressive qualifications could not rescue it.
Once I reach this conclusion, it seems to me to follow that the judgment in this case should be set aside, and in its place judgment entered for the defendant.
I agree with the orders proposed by Heydon JA.
POWELL JA: I have read in draft the Judgment which has been prepared by Heydon JA. Since the facts which are said to have given rise to these proceedings and which gave rise to this appeal are recorded in some detail in his Honour’s Judgment, it is not necessary that I repeat them here.
Reduced to its most simple form, the case which the Respondent sought to make at trial was that the Appellant had failed to fulfil its duty of care to her in that it failed to take reasonable care to provide a safe means of access from the roof-top car park to the office where the Respondent worked (RAB 72). The manner in which the Respondent set about attempting to establish that case was to lead evidence to establish, first, that the stairs were slippery, and, second, that there were reasonable practical steps which the Appellant could have taken to obviate the risk of injury to its employees arising from that fact, but which steps the Appellant had not taken.
It seems to me, however, that the Respondent faced three, not inconsiderable, difficulties in her attempts to establish that case, they being:
a.the evidence of the lay witnesses – including that of the Respondent herself (Black AB 40) – appeared to demonstrate that, notwithstanding that those of the Appellant’s staff who drove to work were, on a daily basis, accustomed to park on the roof-top car park and use the stairs as a means of access to the Appellant’s premises on the first and ground floors of the building, the only occasion upon which any of those employees was said to have slipped when doing so was that of which the Respondent complained – that occasion being 2½ years after the Respondent commenced to work for the Appellant and almost 9 years before she left its employ – a fact which cast more than a shadow of doubt over any assertion that the stairs were slippery and that the Respondent ought to have taken steps to obviate the risk of injury to its employees arising from that fact;
b.neither the Australian Standard for surface friction of floors (AS 3661.1:1993) – which, in any event, had not been adopted at the time of the incident of which the Respondent complained – nor the British standard for steps and stairs (BS 5395) – was tendered in evidence, so that it is not possible to know whether what Professor Morton wrote in his report (Blue AB 1-6-107) – upon which the Respondent relied – as to their contents was either accurate or complete, and still less is it possible to know whether the conclusions as to the slipperiness of the steps which Professor Morton sought to base upon his tests – which tests, in any event, do not appear to have been carried out in accordance with the Australian Standard method (Blue AB 111) - can be seen to have been validated;
c.far from it being seen that those conclusions have been validated, it seems to me, for the reasons to which I will now turn, that the process by which Professor Morton reached those conclusions reveals internal inconsistencies and confusion such that his conclusions are of no real value.
In his report, Professor Morton wrote (inter alia) as follows (Blue AB 106):
“3.6 Standards for frictional grip and safety
Until recently there have been no Australian or other national standards for surface friction of floors or footwear. An Australian Standard (AS 3661.1:1993) was issued in October 1993. This document sets a minimum value of 0.4 for the dynamic friction, dry or wet, when tested against a certain standard simulated shoe sole (4S) hard rubber material for a floor to be considered as slip-resistant. It should be noted however that a floor satisfying this requirement is not necessarily safe, and particularly not for use by other types of footwear or under other conditions. A second part of the Standard (AS 3661.2:1994) dealing with methods of reduction of slipping hazards has been issued (February 1994). British Standard BS 5395 for steps and stairs also indicates that a dynamic coefficient below 0.4 is unsatisfactory. Whilst there are no universally agreed standards for floor friction it is usually accepted that dynamic friction coefficients below 0.4 are unsafe whereas above 0.5 they are safe.”
That passage seems to me to invite the following comments:
a.at the time of the incident of which the Respondent complained there was no Australian Standard for surface friction of floors;
b.if the passage accurately, and completely, records the relevant parts of AS 3661.1:1993, what is there established is a standard for floors, not a standard for floors and various types of footwear;
c.that standard is a single standard, which, when met, indicates that the relevant floor is to be regarded as slip resistant;
d.the test for determining whether or not, in any particular case, the standard has been met involves the use of a simulated shoe sole of a standard (4S) hard rubber material, not the use of a variety of materials;
e.if this be not so, then, given the wide variety of materials of which the soles of shoes may be composed, it would be virtually impossible to know whether, in any particular case, the standard has been met and the floor in question is to be regarded as slip resistant.
In his report, Professor Morton also wrote (Blue AB 110-111):
“4.4.2 Measurement methods
I made measurements of coefficients of friction on the treads following procedures based on the standard of the American Society for Testing Materials, method D1894 modified as necessary for testing floors ‘in the field’. For this purpose I used a number of test sliders of typical shoe-sole materials and the 4S rubber material of AS3661.1, for which I have extensive experience and reference test data and some of which were used in particular for the acquisition of the date of Table 1. I also made measurements using Ms Sprowles’ shoes. In these measurements the test weight was concentrated separately on sole and heel so as to distinguish the properties of these two components. Measurements were made with freshly cleaned 50 mm square sliders under a load of 3.6 kg, and at a speed of 100 mm/sec for dynamic coefficients.
I am satisfied that when using the 4S rubber sole material this method gives results which agree with those of the Australian Standard method, usually to within about 10%. However, I prefer the ASTM method for accident investigations because of its versatility in allowing the use of various sole materials and actual footwear, its applicability in confined situations, on sloping surfaces, or in the presence of contamination, and the possibility it provides in some cases to investigate the effects of variations in sliding speed and vertical load.
Results are given in Table 3 and are discussed below (section 4.4.4)”
Table 3 referred to in this part of the report was as follows (Blue AB 117):
“TABLE 3
Friction coefficients – Concrete fire stairs
Unit A, 24 College Street, Gladesville
Sliding S D
Surface ======
Old leather .28 .25
Rubber .72 .61
4S rubber .67 .57
Urethane synthetic .50 .33
PVC .48 .44
Steel .17 .14
New leather .22 .17
Sprowle shoe sole .45 .34
Sprowle shoe heel .56 .53”
Paragraph 4.4.2 of the report makes it clear that the testing method adopted by Professor Morton differed – but, in the absence of AS 3661.1:1993 and the ATSM method, in what respects cannot be ascertained – from that provided for in AS 3661.1:1993, and, further, would seem to indicate that the results produced by each test are likely to differ by up to 10%, the test producing the higher result not being revealed.
In his report, Professor Morton also wrote (Blue AB 111):
“4.4.3 Slipperiness of Ms Sprowles’ shoes
I understand that Ms. Sprowles was wearing shoes as shown in Figures 8 and 9, which are photographs of the shoe I retained for measurement purposes. The shoes are marked as ‘made by Grosby’ and are shown as having synthetic uppers, linings and soles.
Whilst it is unlikely that the accident would be considered to have been caused by the unsuitability or dangerous nature of Ms. Sprowles’ footwear, I considered it desirable to establish that the shoes themselves are not excessively slippery. I made measurements of the frictional grip of the sole and heel of the shoe against a number of typical walking surfaces. Results of the measurements are given in Table 3 and are discussed below (section 4.4.4).”
The reference, in paragraph 4.4.3 of the report to “Table 3” appears to me to have been intended as a reference to “Table 4”, which was as follows (Blue AB 177):
“TABLE 4
Friction coefficients – Ms. Sprowles’ shoes
Floor Sole Heel
Surface S D S D
===== ===== =====
Unpolished vinyl tiles .46 .42 .58 .54
Smooth glazed ceramic tiles .44 .39 .49 .47
Embossed glazed ceramic tiles .44 .37 .51 .47
Polished wood .41 .34 .48 .44
Smooth concrete .48 .35 .58 .50
Rough concrete .58 .54 .71 .68
‘Non-slip’ ceramic tiles .55 .51 .69 .68
Loop-pile woollen carpet .61 .58 .80 .75”
The differing friction coefficients of the sole and heel of the Respondent’s shoes are – since they were made of the same compound (Black AB 121) – odd, a fact which was, in my view, not adequately explained by Professor Morton in the course of his cross-examination and re-examination (Black AB 121-123).
Professor Morton’s “discussion” of the results of his testing was as follows:
“4.4.4 Slipperiness of the surfaces and safety
From the results of Table 3 and judged on the basis of the criteria set out in Section 3 it is clear that for only footwear materials having a fairly high level of inherent grip are the treads sufficiently slip-resistant for safe use, even when dry and free of contamination. Although the treads have adequate grip for a rubber sole such as that specified for the requirements of AS3661.1, for other common synthetic sole materials such as those used in Ms Sprowles’ shoes the treads are sufficiently slippery to be dangerous and for soles of modest grip such as ordinary part-worn leather they are very dangerous. For inherently slippery materials such as hard smooth new leather the steps would be very dangerously slippery indeed.”
That “discussion” invites the following comments:
a.notwithstanding that the passing of some 9½ years between the date of the incident of which the Respondent complained and the date of Professor Morton’s inspection, the surface of the stairs in question met – by a significant margin – the standard for surface friction laid down AS 3661.1:1993 and, seemingly, by BS 5395;
b.that being so, the surface of the stairs was then to be regarded – but not by Professor Morton – as slip resistant;
c.Professor Morton’s view would appear to be that meeting the standard laid down in AS 3661.1:1993 is not an adequate test of whether or not the surface of a floor is slip resistant and that the only way to determine whether or not a surface is, or is not, to be regarded as safe is by having regard to the coefficient of friction of the surface of the floor and the coefficient of friction of the type of sole actually, or likely to be, worn by those walking on the surface;
d.if this is a correct assessment of Professor Morton’s view then it is quite impossible to reconcile that view with the existence of an Australian Standard, and Professor Morton, in my opinion, has provided no defensible reason for his view being preferred to that standard.
My view as to the value which might properly be attributed to Professor Morton’s report leads me to conclude that the Respondent, at trial, failed to make out an essential element – namely, that the stairs were slippery, and, thus, that the Appellant failed to take reasonable steps to secure her safety – in the case that she sought to make at trial, it following that the proceedings should have been dismissed.
I agree with the orders proposed by Heydon JA.
HEYDON JA:
This is an appeal from orders of James J made on 27 April 2000. He entered a verdict for the plaintiff (respondent) in the sum of $1,153,886 and ordered the defendant (appellant) to pay the plaintiff’s costs. He did so after a six day trial, following which reasons for judgment were delivered on 22 December 1999, 14 April 2000 and 27 April 2000.
The Notice of Appeal contains two groups of challenges to the conclusion that the defendant was liable to the plaintiff, and several challenges to the quantum of damages.
Grounds 1-3 on liability: was the defendant negligent?
The facts
On 30 June 1986 the plaintiff fell at her place of employment on stairs leading from a car park on the roof of the building to the offices below where she worked. Associate Professor Morton, a physicist who specialised in the investigation of slipping accidents, was called as a witness in her case. After conducting various tests on the shoe which she said she was wearing on 30 June 1986, he reached the following conclusions about the stairs.
“6.3 The tread surfaces are very smooth and are not provided with a non-slip finish throughout as is required by Ordinance 70. Neither are they fitted with non-skid strips near the edge of the nosings as required by Ordinance 70 as an alternative provision.
6.4 In the clean, dry condition the treads are adequately slip-resistant for safety only for footwear of inherently high-grip materials.
6.5 For other common footwear, including the shoes worn by Ms Sprowles the treads are sufficiently slippery to be dangerous even when clean and dry and would be very dangerous when wet, or if contaminated by loose powdery materials. The latter could well have been the situation at the subject time, due to the cracked condition of the stairway structures.
6.6 The dangerous condition of the treads could have been avoided easily and at low cost by the use of a wood-float or cross-brushed finish to the concrete treads, or the application of abrasive non-skid strips to the tread noses. The use of both provisions would have been preferable and in my experience would have been the usual practice in the industry at the time.
6.7 The accident to Ms Sprowles was caused by the dangerously slippery condition of the stairs provided for her use, in footwear such as she would reasonably have been expected to wear in the circumstances.
6.8 Ms Sprowles’ accident and consequent injuries resulted from a lack of proper care for her welfare on the part of those persons responsible for the provision of the stairs she used for access to her place of work.”
The trial judge made the following findings:
“Counsel for the defendant did not dispute that on 30 June 1986 the plaintiff had fallen on the stairs leading from the car park on the roof of the building at Gladesville. Mr Firth said in his evidence that the plaintiff had told him some time in 1986 that she had had a fall on the stairs.
It was also not disputed by counsel for the defendant that the defendant owed a duty to the plaintiff to take reasonable care to provide a safe means of access from the car park to the office where the plaintiff worked. Nor was it disputed that, if the plaintiff could establish that the stairs were slippery and that she had fallen because of the slipperiness of the stairs, she was entitled to a verdict. It was conceded that, if the stairs were slippery, there was a reasonably foreseeable risk of injury to the defendant’s employees including the plaintiff and there were reasonably practical steps the defendant could have taken which would have obviated the risk, which the defendant had not taken.
I am prepared to accept the plaintiff’s evidence that the shoe which she produced to Professor Morton and which Professor Morton tested and which was later admitted as an exhibit, was one of the shoes she had been wearing at the time of the accident. I am also prepared to accept the plaintiff’s evidence that she had not worn those shoes much after the accident.
If these matters are accepted, then I consider that Professor Morton’s conclusions should be accepted. Professor Morton was not really shaken in cross-examination (except at one stage when he fleetingly seemed to suggest that a coefficient of friction could depend on the pressure exerted on a surface) and there was no competing expert for the defendant. Professor Morton concluded that the surfaces of the treads of the stairs were very smooth, were not provided with a non-slip finish throughout or with non-skid strips near the edge of the nosings and for common footwear, including shoes of the type worn by the plaintiff, were sufficiently slippery to be dangerous, even when the stairs were clean and dry.
I have reached the conclusion that the stairs were slippery, without resort to the evidence about there having been loose grit on the stairs, which, in Professor Morton’s opinion, would, had it been present, have increased the slipperiness of the stairs. I would not accept the evidence of either the plaintiff or Ms Blanch that they observed loose grit on the stairs. However, it does seem to me that, more probably than not, there would have been, by reason of the nature of the walls of the stairway, some grit on the stairs, which would have increased their slipperiness, even though the degree by which the slipperiness was increased cannot be quantified.
The remaining question on liability is whether the plaintiff slipped because of the slipperiness of the tread of a step on the stairs or simply lost her footing. In her evidence the plaintiff merely said that her foot went out from underneath her. I find on the balance of probabilities that the plaintiff fell because her foot slipped owing to the slippery surface of the stairs. If a person is going down stairs and the stairs are slippery and the person loses her footing, then it is likely that the slipperiness of the stairs contributed to her losing her footing.
I find a verdict for the plaintiff.”
Grounds 1-3 in the Notice of Appeal were:
“1.His Honour erred in finding that Appellant was negligent.
2.His Honour [erred] in concluding the shoe tendered in evidence was a shoe worn by the respondent at the time of injury and that its condition at the time of trial was indicative of its condition at the time of the fall.
3.His Honour erred in accepting Professor Morton’s evidence.”
The defendant on the appeal advanced two groups of arguments against the conclusions of the trial judge. One group of arguments depended on attacking the trial judge’s substantial but not complete acceptance of the plaintiff’s credibility. The other group of arguments turned in large measure on attacking the trial judge’s reliance on Professor Morton.
The defendant’s written submissions
The defendant’s written submissions on these topics took the following form.
“8. The respondent was not an honest witness. She lied both in and out of Court, exaggerated in her evidence and attempted to mould the evidence so as to advance her case. His Honour so found (RB 68D-J).
9. In these circumstances, principle required His Honour ‘to carefully assess the rest of her evidence in order to determine its honesty and reliability. Some of her evidence may have been acceptable because it was confirmed by other independent or objective evidence. However, where the (respondent’s) evidence was not independently supported it clearly had to be assessed with great care to determine whether it could properly be accepted as proof of any matter that was in issue in the proceedings’ (Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 per Handley JA at 118D-E).
10. His Honour failed to approach the respondent’s evidence (other than that which the appellant had actually shown to be false) with the necessary caution or to subject it to appropriate analysis. As a result he accepted evidence which was not corroborated adequately or at all and which, on proper analysis, should have been rejected. This contributed to His Honour reaching erroneous conclusions as to all major issues in the trial.
11. His Honour concluded the stairs were slippery and that because of this the respondent had slipped and fallen (RB 72K-73T).
12. As a number of liability aspects were conceded by the appellant (RB 71S-72J) these findings enabled His Honour to find a verdict for the respondent which he did (RB 73U).
13. The appellant submits His Honour erred in finding that the stairs were slippery, that because of this the respondent slipped and fell and that the appellant was negligent. There was no evidence to sustain such findings as:
(i)the Australian Standard provides that for a floor to be considered slip resistant a minimum value of 0.4 for the dynamic friction when tested against a certain standard simulated shoe sole (4S) hard rubber material must be obtained (Professor Morton, Blue Book 106R-T). This test was met (Blue Book 117H).
(ii)It is generally accepted that above a coefficient friction of 0.4 a floor is safe (Black Book 120W-121C). The red shoes which the respondent said she was wearing at the time were not shown to have had a coefficient of friction of less than 0.4 at the time of the fall as:
(a)the coefficient of friction of the shoe when measured by
Professor Morton was above 0.4 save for one
measurement of the dynamic friction of the sole (Blue
Book 117P-Q);(b) Professor Morton’s measurements were made in
December, 1995, some 9½ years after the event, by
which time the surface of the stairs had suffered
further wear (Blue Book 110M-O);(c) the shoes at the time of the fall would have been less
worn than when tested and would have had more tread
on them (Black Book 41H-J);(d) Professor Morton conceded that the coefficient of friction
may have been affected by the shoe being worn after the
accident, and that it may have been at the time of the
occurrence that the coefficient of friction of the shoe was
well within the parameters of safe walking (Black Book
121V-X).(iii)The evidence of the respondent was that she had been using
the stairs every day for the period of her employment (Black
Book 7J) without any problems (Black Book 41K-L). Mr
Firth said that he wore leather-soled shoes and never had
trouble negotiating the stairs and did not find them slippery
(Black Book 162J-M). The evidence of Ms Blanch as to the
state of the stairs was expressly rejected by his Honour
(RB 71F-K).(iv) The respondent’s evidence that the shoe tested by Professor
Morton was one that she had been wearing at the time of the
accident and that she had not worn the shoes much after the
accident (RB 72K-Q) should not have been accepted because -(a)the respondent in a statement dated 26 February, 1992
had said ‘she had disposed of the shoes since the
accident’ (Blue Book 13P-R). When cross-examined
her explanation was unconvincing (40Q-41D) and
uncorroborated;(b) the respondent’s evidence as to the wearing of the shoes
after the fall (8T-X, 40L-O) was inconsistent with the
appearance of the shoe produced by Professor Morton
(photograph Blue B 122) and her own comments as to
the loss of tread (Black Book 41J);(c) the unsatisfactory and opportunistic nature of the
respondent’s evidence (see paragraphs 8, 9 and 10
above). This was further illustrated in respect of the
issue of the alleged grit on the stairs (an issue which
ultimately was not relied upon by respondent’s counsel
(RB 19B)). The respondent had not asserted her fall
was the result of grit on the stairs prior to the hearing
(Blue Book 107S-T). She did, however, accompany
Professor Morton on his inspection of the premises and
became aware that in the Professor’s opinion grit on the
stairs could cause them to be slippery. When she came
to give evidence she sought to take advantage of this
(Black Book 9B-G, 41N-43H);(d) His Honour’s reasons for believing the respondent on
this issue are unsatisfactory (RB 72K-P).”The particular significance of the attack on the trial judge’s conclusions on credibility was that if the attack as framed were made good, considerable doubt would be cast on the plaintiff’s evidence that the shoe tested by Professor Morton was the one she was wearing at the time of the accident and also on her evidence that she had not worn the shoe much after the accident. If that were cast in doubt, the whole of Professor Morton’s testing, and the conclusions based on it, would cease to have validity. That in turn would make the plaintiff’s case on liability, which depended heavily on Professor Morton, extremely fragile. On the other hand, if the credibility findings and the testing stood, the plaintiff’s position would be improved, though the defendant did have numerous specific criticisms of Professor Morton’s conclusions even if the plaintiff’s credibility were accepted.
The plaintiff’s credibility in general
Accordingly it is convenient first to examine the defendant’s arguments on credibility.
The trial judge dealt with the plaintiff’s credibility in considerable detail in the following way.
“The extent to which the plaintiff’s evidence should be accepted is obviously crucial to a determination of this case. There was no witness, other than the plaintiff, to the alleged fall on 30 June 1986. Professor Morton’s conclusions were based on information supplied by the plaintiff that the shoes she produced to him were the shoes she had been wearing at the time of the accident and that she had not worn the shoes much after the accident. There is little or no orthopaedic evidence to support the plaintiff’s complaints of the symptoms and disabilities she says she has experienced. There is no evidence from Louise Adam, who was the first person to treat the plaintiff after the alleged accident, except a letter saying that Ms Adam’s notes about the plaintiff have been lost. The only medical evidence adduced on behalf of the plaintiff is the evidence of Dr Wilson, who first saw the plaintiff in January 1994, more than seven years after the accident. Dr Wilson accepted that the views he had formed depended on his accepting the plaintiff as a witness of truth about her symptoms. If the plaintiff is in fact able to do things which she claimed to Dr Wilson she could not do, then Dr Wilson would have to doubt the level of symptoms claimed by the plaintiff and, ultimately, even his diagnosis of fibromyalgia. There are other reasons as well why the plaintiff’s evidence is important.
A strong attack was mounted by counsel for the defendant on the credibility of the plaintiff. Grounds for attacking the plaintiff’s credibility include the following.
The plaintiff admitted that she had lied in part of her evidence. She initially denied that there had been any intentional acts of violence by Mr Dormer during their relationship. The breaking of her nose by Mr Dormer had been an accident. Later in the plaintiff’s evidence in chief she admitted that there had been incidents of violence, both before and after the accident, but ‘only a couple’. In cross-examination the plaintiff admitted that Mr Dormer had struck her ten to twelve times during the relationship.
The plaintiff admitted that she had told lies out of court, for example, in complaining in 1984 to a counsellor at the Pre-Term Foundation that she had abdominal pain.
The plaintiff gave some evidence which was inconsistent with previous out of court statements she had made. For example, she said in her evidence that her pregnancy had been terminated in 1990 because she was having problems with her breathing, whereas she had told a counsellor in 1990 that she felt she could not cope emotionally and financially with raising a child on her own, after her relationship with her partner had ended. The plaintiff had not mentioned to the counsellor any problems with her breathing. Furthermore, the plaintiff had said in her affidavit of 20 December 1995 that her problems with her breathing had started in August 1993. The plaintiff said in her evidence that there was grit on the stairs at the time of the accident, whereas she had informed Professor Morton at the time of their inspection on 11 December 1995 that, so far as she was aware, there was ‘no contamination or other adventitious material on the surface of the stairs’. She said in her evidence that she was getting worse in 1991 and 1992, which was contrary to what she had said in her affidavit of 20 December 1995 and what she had told Dr Wilson.
It was submitted by counsel for the defendant that the plaintiff had exaggerated in her evidence. A notable example was that the plaintiff had exaggerated the difficulty she claimed she had in raising her right arm. In one of the videos the plaintiff was shown as extending her right arm vertically above and behind her head and maintaining that position for many seconds, without any apparent difficulty or any apparent discomfort. Dr Shand said in his last report that some of the results he obtained on his physical examination of the plaintiff contrasted significantly with her ability, when not actually being tested but while still being observed by Dr Shand, to move without restriction or signs of discomfort.
It was also submitted that the plaintiff had attempted to mould parts of the evidence in such a way as to advance her case. An example was her evidence about there having been grit on the stairs at the time of the accident. It was submitted that the plaintiff had given this evidence, because she had been asked about the subject by Professor Morton at the time of the inspection and had come to appreciate that evidence from her that there was grit on the stairs would assist her case. Another example was her letter written to the Pre-Term Foundation in August 1996, seeking, six years after her pregnancy had been terminated, to supply an ex post facto reason for the termination which would assist her case.
Counsel for the defendant pointed to the histories given by the plaintiff to some of her early carers, in which she had given a history of some incident or incidents other than, or as well as, the fall. The plaintiff had given Julie Chenery a history of having been the victim of domestic violence. The first item of history recorded by Mr Goodrich in his report was that the plaintiff had been pushed down on the top of her head. Louise Weavers recorded a history of a car accident in November 1988, which the plaintiff in her evidence denied had ever happened. It was submitted that the plaintiff’s attempts to explain why these histories had been recorded were unconvincing. Even Mr Firth said that the plaintiff had said to him that she had had a fall from a horse.
It was submitted that the incident of the pushing down on the plaintiff’s head was particularly important. It was the first item of history recorded by Mr Goodrich in his report. Moreover, Mr Goodrich recorded that he had been told that it had happened two weeks before the ‘fall’. When the plaintiff initially gave evidence about this incident of Mr Dormer pushing down on her head, she said that it had happened about two weeks before the accident on 30 June 1986. Then she changed her evidence to saying that it had happened two weeks before her birthday on 14 October 1985.
It was also submitted that the plaintiff had fixed ideas and had closed her mind about her medical condition and what had caused it. Everything, even catching glandular fever in 1989, was attributed by the plaintiff to fibromyalgia resulting from her fall. Any medical opinion or any medical advice which did not fit in with her fixed ideas about her condition and its cause was disregarded by her.
It is clear that the plaintiff did, in one part of her evidence, lie and that she has lied out of court. I accept that some of her evidence was inconsistent with previous out of court statements she had made and I reject those parts of her evidence. I also accept that the plaintiff exaggerated in parts of her evidence, that she made some attempts to mould the evidence in such a way as to advance her case and that the plaintiff has fixed ideas about her condition and what caused it.
I give weight to the submissions made concerning the histories given by the plaintiff. However, I note, as against the points made by counsel for the defendant, that Mr Goodrich did refer in his report to ‘a fall’ as being part of the history given to him; that Louise Weavers said quite explicitly in her report that, apart from the whiplash injury for which Ms Weavers was treating the plaintiff, the plaintiff said she had low back and left leg pain for which she was being treated by other practitioners, being an osteopath and a chiropractor; and that Anne Petrie said in her report ‘the history given was onset of symptoms occurred after falling at work on 30 June 1986’. I do not give any weight to Mr Firth’s rather vague evidence that the plaintiff had said that her condition ‘was something to do with a fall from a horse’. The only evidence of a fall from a horse is of a fall in about 1971. I accept generally that it is likely that the plaintiff was asked by those from whom she sought treatment whether she could remember any incident which could have contributed to her condition.
I have concluded that the incident in which Mr Dormer pressed down on the plaintiff’s head did involve more physical force than the plaintiff conceded in her evidence.
Despite these well founded criticisms of the plaintiff’s credibility, I have concluded that she was not generally malingering and I have also concluded that I should accept most of her evidence, even though rejecting some parts and discounting some other parts to some extent as being exaggerated. I have explicitly referred in this part of my judgment to most parts of the plaintiff’s evidence which I have decided I should reject.
Objective matters which lend support to the general tenor of the plaintiff’s evidence include that she had worked virtually continuously from about 1971 up to June 1986; that she was clearly ambitious to succeed in her career; that prior to 30 June 1986 she had made few if any complaints and had sought very little medical or paramedical attention; that commencing from 10 July 1986 the plaintiff constantly over many years and at considerable expense to herself sought paramedical attention; that the plaintiff continued working from 1986 to 1992, although constantly seeking and receiving treatment; that the plaintiff made a formal claim for compensation in late 1991, before Mr Weekes commenced employment with Makita and hence before the sexual harassment started.
The plaintiff’s evidence is corroborated in a number of respects by the evidence of her mother, Lois Dinuzzo, Georgina Morgan and Natalie Blanch. I generally accept the evidence of those witnesses, except that I do not accept that Ms Dinuzzo had any real recollection that the telephone call she received from the plaintiff was ‘towards the end of 1986’ and I do not accept Ms Blanch’s evidence about the state of the concrete stairs in the building at Gladesville. Her evidence that she had used the concrete stairs to go from one floor to another in the building seems to be inconsistent with the evidence of Mr Firth, whose recollection would be likely to be accurate, that there were internal stairs for persons moving from one floor to another within the building. Of these witnesses I was particularly impressed by Georgina Morgan, who, apart from her generally persuasive demeanour, had the advantage of having lived with the plaintiff and Mr Dormer from February 1986 to early June 1986, that is until just before the accident.”
Counsel for the defendant at numerous stages in his oral argument pointed to the aspects in respect of which the trial judge had noted that the plaintiff lacked credibility, and gave further illustrations.
Counsel for the defendant appeared to disavow any attempt to fit the present circumstances into any exception to the general immunity which the findings of trial judges based on credibility enjoy. This is understandable. It cannot be said that the trial judge failed to use or palpably misused the advantage he had of seeing and hearing the plaintiff, or that the trial judge relied on evidence which was inconsistent with facts incontrovertibly established by the evidence, or that the trial judge acted on evidence which was glaringly improbable, or that the trial judge fell into some error of principle, or that the trial judge mistook or misapprehended the facts, or if the effect of the overall evidence was such that it was not reasonably open to make the findings he did: Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; Rosenberg v Percival (2001) 75 ALJR 734 at [37]-[42] and [92] per McHugh J and Gummow J. Nor can it be said that the case is one “where in a complex pattern of events incontrovertible evidence can only be fitted into the pattern if a different view of the credibility of a witness is taken by the court on appeal”: Agbaba v Witter (1977) 51 ALJR 503 at 508 per Jacobs J; approved in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588 at [4] by Gaudron, Gummow and Hayne JJ. The reasons for judgment of the learned trial judge in all respects appear to be the product of the most painstaking analysis of the facts in an extremely unusual and difficult case. His comments are detailed, well-organised, careful and balanced. Counsel for the plaintiff submitted that the trial judge had provided “a model of judgment writing”, and that is true. He had excellent opportunities to observe the plaintiff over long periods she was in the witness box on different parts of three days. If it matters, the trial judge has immense experience in presiding over trials, including trials involving factual conflicts even more acute than the acute conflicts involved in this case and trials where much more was at stake than the large sums of money involved in this case.
Instead, counsel for the defendant contended that the trial judge had not complied with the passage set out above from Handley JA’s reasons for judgment in Malco Engineering Pty Ltd v Ferreria (1994) 10 NSWCCR 117 at 118. That contention is not made out. Handley JA did not say that where a party-witness has lied, the balance of the testimony can never be accepted without corroboration. All he said was that the balance of the testimony in that case called for careful assessment. What the trial judge here provided was careful assessment. Counsel for the defendant fell back onto the contention that while the trial judge could have accepted parts of the plaintiff’s evidence, he could not do so without “proper reason”. He said: “Just because they say something, you can’t just accept that when you know they’re a liar.” But though the trial judge gave no reason for accepting the evidence of the plaintiff about the fact that the shoe Professor Morton tested was the shoe she wore, and about how much she wore it after the accident, he was entitled to accept her evidence on the basis of the overall character of her testimony, part of which was to be disbelieved for particular reasons, part of which was to be believed because it was corroborated, and part of which was, though not corroborated, not affected by any particular reason not to accept it. Finally, counsel for the defendant said that even if the approach for which he was contending was not a universal rule, it was appropriate to employ it in particular cases, and this was one. The difficulty is that it has not been shown that the trial judge failed to assess and analyse the totality of the plaintiff’s evidence against the background of the other evidence in such a way as to cast doubt on his conclusions that substantial parts of her evidence could be accepted. It is common enough in litigation for witnesses with a truthful story to succumb to the temptation of gilding the lily or over-egging the pudding. The test for the trier of fact is to separate the truthful parts from the rest. While it may be that other triers of fact would have arrived at conclusions different from those of the trial judge in this case, the fact is that the conclusions that he arrived at were not implausible. The weaknesses of parts of the plaintiff’s evidence here, while troubling, were not so great as to call for a rejection of all the uncorroborated parts of it.
The plaintiff’s credibility about her shoes
Counsel for the defendant did not limit himself to the generalised attack on the trial judge’s credibility findings just discussed. As indicated above, he offered particular arguments critical of the findings about the shoes. One category of these arguments turned on supposed inconsistencies within the plaintiff’s evidence, and between her evidence and a photograph of one of the shoes. The inconsistencies in the plaintiff’s evidence in this respect, if they exist at all, are only slight. The photograph appearing in the appeal book does not point strongly towards any inconsistency between its condition and her evidence, if only because the detail of the surfaces of the shoe does not show up clearly. The other particular argument advanced turned on a statement supplied to an insurance investigator by the plaintiff on 26 February 1992. In it she said:
“At the time I was wearing a pair of flat red shoes which I have since disposed of.”
On 11 December 1995 the plaintiff gave Professor Morton a pair of shoes which she told him she was wearing on 30 June 1986, and he tested them. In chief the plaintiff gave the following evidence:
“Q. Do you recall now how long you had owned those shoes prior to the accident?
A. Not very long, probably two months.
Q. Had you worn them often during the time you had owned them?
A. Probably once a week.
Q. Subsequent to the accident did you continue to wear the shoes?
A. For a short period of time and then I stopped.
Q. Do you recall how long that was now after the accident that you continued to wear [the] shoes?
A. I would be guessing.
Q. With what frequency, daily, weekly?
A. I would never wear them more than once a week.”
In cross-examination the plaintiff gave the following evidence:
“Q. You had a pair of shoes which you produced to the court yesterday which you had for some two months and only wore once a week?
A. I think I had them longer than two months. I always wore them two or three months after the fall.
Q. I think you said in your evidence yesterday that you had them for two months and that you wore them for a few months after the accident as well?
A. Could be right, it was a long time ago.
Q. They were relatively new shoes I take it?
A. Yes.
Q. And you have kept them all this time?
A. I put them in [a] box to throw away and thought I had thrown them away but I found them by accident when I was cleaning out my shed, I found a box full of old shoes and I went through the box and thought: Oh there is my red shoes, I thought I had thrown them away.
Q. When did you find them?
A. I was living at Kellyville at the time so it would have been after October 1990. When it was exactly I don’t know.
Q. Some time in the 90’s. Is that right?
A. Yes, this was in the 90’s.
Q. Was that before or after you had commenced action against your employer?
A. This action?
Q. Mmm?
A. Before.
Q. Why did you keep them? Were you thinking about bringing action at that stage?
A. No, I went through the box and I threw out some of them and those ones I thought: They are unlucky but maybe I will wear them in the future.
Q. Did you have other red shoes?
A. Yes, I had a pair of red shoes in the 70’s, the old clog style shoes.
Q. There is no doubt in your mind that they were the shoes you were wearing on that day?
A. Yes.”
This Court was not taken to any passage in which the plaintiff was confronted with the statement she gave to the insurance investigator on 26 February 1992 and asked to reconcile it with Professor Morton’s evidence and her own cross-examination. The failure to challenge her explanation in that way would have made it easier for the trial judge to accept that explanation. The written submissions advanced on behalf of the defendant at the trial do not appear to have challenged the explanation. Perhaps for that reason, the trial judge does not appear to have dealt specifically with the conflict between the 26 February 1992 statement and the plaintiff’s sworn evidence. The trial judge’s conclusions involve an implied acceptance of her explanation in cross-examination. That acceptance is not something which can be upset on appeal unless some exception to the Abalos doctrine applies. None has been pointed to.
It follows that the defendant’s contention that the plaintiff’s evidence about the identity of the shoe and the degree of its use after the accident should not have been accepted fails. That in turn means that Professor Morton’s reasoning can stand on its merits, because the assumptions of primary fact underlying it were sufficiently established. One explicit assumption was the identity of the shoes, and that was totally established. Professor Morton said in cross-examination that he assumed that the relevant shoe had not been significantly worn after the accident. That corresponds substantially with the fact, namely that it had not been worn much. Complete precision in proof of facts intended to support the assumptions of an expert is not called for; it is enough if the case proved is sufficiently like the case assumed to render the expert’s opinion valuable: Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844.
The defendant’s attack on Professor Morton
Counsel for the defendant, however, contended that Professor Morton’s reasoning, even accepting that the assumptions underlying it had been established, was invalid.
In order to understand Professor Morton’s reasoning and the defendant’s criticism of it, it is necessary to appreciate that at its heart were certain tests he conducted. They were conducted in order to assess compliance of the stairs with certain tests for friction suggested by standards described by Professor Morton as follows (para 3.6):
“Until recently there have been no Australian or other national standards for surface friction of floors or footwear. An Australian Standard (AS 3661.1:1993) was issued in October 1993. This document sets a minimum value of 0.4 for the dynamic friction, dry or wet, when tested against a certain standard simulated shoe sole (4S) hard rubber material for a floor to be considered as slip-resistant. It should be noted however that a floor satisfying this requirement is not necessarily safe, and particularly not for use by other types of footwear or under other conditions. A second part of the Standard (AS 3661.2:1994) dealing with methods of reduction of slipping hazards has been issued (February 1994). British Standard BS 5395 for steps and stairs also indicates that a dynamic coefficient below 0.4 is unsatisfactory. Whilst there are no universally agreed standards for floor friction it is usually accepted that dynamic friction coefficients below 0.4 are unsafe whereas above 0.5 they are safe.”
Professor Morton conducted two types of tests.
The first type consisted of tests conducted on the stairs 9½ years after the accident using various shoe materials. The purpose of these tests was to measure the slipperiness of the stairs. One of the shoe materials tested on the stairs was the 4S hard rubber material referred to in the passage quoted above. Two others were the plaintiff’s shoe sole and the plaintiff’s shoe heel. That test revealed that for 4S rubber the static friction coefficient was 0.67 and the dynamic friction coefficient was 0.57. Those figures are well above the minimum value of 0.4 set out in AS 3661.1:1993 and the equivalent British standard. That test also revealed that for the plaintiff’s shoe sole the static friction equivalent was 0.45 and the dynamic friction coefficient was 0.34. For the plaintiff’s shoe heel the respective figures were 0.56 and 0.53.
The second type of test conducted by Professor Morton had the purpose of testing the slipperiness, not of the stairs, but of the plaintiff’s shoe (see para 1). Professor Morton took the plaintiff’s shoe sole and shoe heel and tested them, not against the actual stairs, but against a variety of surfaces of which the closest to the stairs was a surface described as “Smooth concrete”. For the sole the static friction coefficient was 0.48 and the dynamic friction coefficient was 0.35. For the heel the corresponding figures were 0.58 and 0.50. The significance of the figures for “Smooth concrete” stems from the following account by Professor Morton of the materials used on the stairs (para 4.3.2):
“The stairs are constructed of reinforced cast concrete. The tread surfaces appear to have received what is generally known as a wet steel trowel finish. This involves trowelling the wet partly-set concrete with a smooth steel tool, often with the addition of further dry cement to achieve a hard, dense and very smooth surface. The resultant moderately high shine of the concrete treads may be seen in Figure 7, a photograph taken in ambient light.”
He also spoke of “this highly and deliberately smoothed concrete surface” (para 4.3.2) and of “the very smooth concrete stair treads” (para 5.1).
In the first group of tests, the purpose of which was to measure the slipperiness of the stairs, the measurement of the dynamic friction coefficient of 4S rubber was well above both the 0.4 level and the 0.5 level. Thus the first group of tests placed 4S rubber well above both the 0.4 level and the 0.5 level. The first group of tests on the plaintiff’s shoe, however, revealed that her sole had a dynamic friction coefficient below 0.4. Professor Morton’s conclusion about this group of tests was put thus (para 4.4.4):
“From the results of Table 3 and judged on the basis of the criteria set out in Section 3 it is clear that for only footwear materials having a fairly high level of inherent grip are the treads sufficiently slip-resistant for safe use, even when dry and free of contamination. Although the treads have adequate grip for a rubber sole such as that specific for the requirements of AS3661.1, for other common synthetic sole materials such as those used in Ms Sprowles’ shoes the treads are sufficiently slippery to be dangerous and for soles of modest grip such as ordinary part-worn leather they are very dangerous. For inherently slippery materials such as hard smooth new leather the steps would be very dangerously slippery indeed.”
The tests in the second group were undertaken to test, not the slipperiness of the stairs, but the slipperiness of the plaintiff’s shoes (paras 1 and 4.4.3). At para 4.4.3 Professor Morton said:
“Whilst it is unlikely that the accident would be considered to have been caused by the unsuitability or dangerous nature of Ms Sprowles’ footwear, I considered it desirable to establish that the shoes themselves are not excessively slippery. I made measurements of the frictional grip of the sole and heel of the shoe against a number of typical walking surfaces. Results of the measurements are given in Table 3 and are discussed below (section 4.4.4).”
These references appear to be erroneous: in fact the results of the measurements were given in Table 4 and discussed in para 5.1. Professor Morton’s only reference to the results of the second set of tests, set out in Table 4, is (para 5.1):
“Although not of the highest grip materials there is no reason to consider that the soles of Ms Sprowles’ shoes were excessively or unusually slippery (see Table 4). They are in my experience rather better than average in the level of grip afforded by ladies shoes.”
Professor Morton offered the following “discussion” of “accident causation”:
“It is evident that the accident to Ms Sprowles was caused by the inadequate frictional grip afforded by the very smooth concrete stair treads for her footwear. … Whilst the interface between Ms Sprowles’ shoes and the step treads should not be classed as very slippery, the level of grip afforded is below that needed for a reliable margin of safety. It might be possible for a user to walk on these steps many times without undue incident until one day, due to random variations in gait pattern, exerting slightly more lateral force on the floor contact than usual and consequently slipping and falling.”
He then discussed the possible impact of any loose grit on the stairs in a manner which need not be quoted, since the trial judge concluded that the stairs were slippery without reference to that factor, and said that while there probably was grit on the stairs, the degree by which it increased their slipperiness could not be quantified.
Professor Morton then offered the following “discussion” of “foreseeability, avoidability and liability” (para 5.2):
“The generally low slip-resistance of smooth surfaces, especially compared to the higher grip of roughened surfaces of the same material is a matter of common experience which may be readily appreciated without the need for any special experience or extensive study of the friction of surfaces. It thus would or should have been evident to those persons responsible for the provision of the subject stairs that they would be likely to be slippery and dangerous. It should also have been obvious to them that the stairs were likely to be particularly dangerous in the presence of any powdery or other loose particulate material such as sand or debris from building cracks.
Although not of direct relevance to Ms Sprowles’ accident, to have provided a smooth surface for fire stairs, in a location where, foreseeably, they are likely to become wet in rainy conditions is particularly imprudent. The extreme and dangerous slipperiness of wet smooth non-porous surfaces is well-known.
The evident lack of care for the welfare of users of the stairs exhibited by the choice of smooth surface as provided is magnified when it is considered that the use of a concrete wood-float finish would have greatly reduced the risks to which users are exposed. It is ironic that the costs of using such a finish probably would have been less than that involved in the skilled trowelling process used to produce the present smooth shiny concrete surface. Cross-brushing, which would have been even better, also is a simple and very low-cost process.
Some small extra cost would have been involved in fitting non-skid strips, but abrasive strips simply surface-applied by adhesive are widely and readily available. Even given the slippery nature of the smooth overall tread finish, reasonable safety could have been achieved by the application of such strips even after the stairs were built. Although not providing full slip-resistance, particularly on extended areas such as landings these are better than nothing and would formally satisfy the requirements of Ordinance 70. Had such strips been fitted, which in my view is essential to prevent the present treads being very dangerous when wet, or sandy, they would also probably have prevented the accident which occurred to Ms Sprowles.
Hence it appears that in this case the accident to Ms Sprowles was caused by the dangerously slippery condition of the stairs provided for her use, in footwear such as she would reasonably have been expected to wear in the circumstances. The danger which caused the accident would or should have been foreseen and could have been prevented by simple low-cost and readily available means. The question of liability of course must ultimately be for the Court to decide, but it appears that Ms Sprowles’ accident and consequent injuries resulted from a lack of proper care for her welfare on the part of those persons responsible for the provision of the stairs she used for access to her place of work."
Professor Morton then set out the conclusions quoted in [25] above.
In view of the conclusion reached in relation to Grounds 1-3, it is not necessary to consider the remainder of the Notice of Appeal or the Cross Appeal. However, in deference to the submissions advanced, the issues will be considered briefly.
Ground 5 of the Notice of Appeal was that the trial judge erred in finding that the injuries and disabilities which she complained of were caused by the fall. The trial judge accepted large parts, though not all, of the plaintiff’s evidence about her symptoms (at [207]). He accepted Dr Wilson’s diagnosis of fibromyalgia (at [208]-[211]) or in the alternative Dr Shand’s diagnosis of a psychiatric disorder (at [212]). He also accepted Dr Wilson’s opinion that there was a causal link between the fall and her condition (at [219]-[230]). Dr Wilson explained the medical basis of his diagnosis. In large measure there is concordance between various parts of the plaintiff’s evidence about her symptoms and experience, being evidence accepted by the trial judge, and the assumptions that underlay Dr Wilson’s evidence. The entire case excites suspicion, but Dr Wilson did give fairly clear evidence indicating the relationship between what can cause fibromyalgia and what he understood the plaintiff to be complaining of. The trial judge found that those complaints were in large measure genuine. Though other causes may have worsened the plaintiff’s condition, it is not possible for this Court in this case to reject the trial judge’s acceptance of Dr Wilson’s evidence.
Other grounds of appeal
The balance of the grounds of appeal were supported by submissions that the plaintiff’s complaints were exaggerated, or in the alternative that only some of them were related to the fall. These contentions must fail for the reasons given in relation to Ground 5.
Cross Appeal
The plaintiff cross-appealed on damages. In the end only two categories of matter were pressed.
The first was that the trial judge erred in finding that the plaintiff had a residual capacity to earn. The defendant demonstrated that at the trial in final address it had been conceded on the plaintiff’s behalf that the court might consider that she had some future earning capacity and that that equated to $200 net per week. The trial judge preferred that to a higher figure propounded by the defendant. The plaintiff’s complaint on this point is baseless.
The second matter, which was the subject of an application to amend the Notice of Cross Appeal, was that the trial judge failed to provide any amount for future pharmaceutical costs. These costs consisted of $19 per week for medication and two massage treatments at $50 per week. As to an allowance for medication, the defendant pointed out that the plaintiff itemised claims at the trial for “Future medical and rehabilitation expenses” totalling $76,860, including travel expenses of $6,121. The trial judge allowed the whole claim except for the travel expenses, which claim was not pressed. In later submissions, between the first and second sets of reasons for judgment, the plaintiff did not complain of, and indeed accepted, what the trial judge had done. Accordingly the claim now made for future pharmaceutical expenses should not be permitted because it goes beyond the case fought at the trial. As for the massage treatments, no claim for them was made below, and for that reason no claim should be permitted now. The application for leave to add the new ground of appeal is granted, but, if it became necessary to consider that ground of cross appeal, it ought to be rejected.
Orders
The following orders are proposed. They follow from the reasons set out above. However, since the reasoning above in relation to Professor Morton’s report was in large measure not advanced by the appellant, it is not entitled to an order that the respondent pay the costs of the appeal.
1.The appeal is allowed.
2.The verdict and judgment for the respondent at trial are set aside.
3.The order of the trial judge that the appellant pay the respondent’s costs of the proceedings is set aside.
4.The Statement of Claim is dismissed.
5.The respondent is ordered to pay the appellant’s costs of the trial and of the appeal.
6.The respondent is to have a certificate under the Suitors Fund Act in relation to the costs of the appeal.
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