Marshbaum v Loose Fit Pty Ltd - [2010] NSWSC 1130

No judgment structure available for this case.

CITATION: Marshbaum v Loose Fit Pty Ltd and Anor [2010] NSWSC 1130
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 20/09/2010; 21/09/2010; 22/09/2010; 23/09/2010

JUDGMENT DATE :
11 October 2010

JUDGMENT OF: Hoeben J

DECISION: There will be judgment in favour of the plaintiff against the defendant for $433,441.57.
The defendant is to pay the plaintiff’s costs of the proceedings.
In the cross-claim by the defendant against Mr Kocx and Ms Hickie, there will be judgment for the cross-defendants.
The defendant is to pay the cross-defendant’s costs.
I grant leave to the parties to approach the Court within seven days of the date hereof if any special costs orders are sought so that the Court can give appropriate directions for the hearing of that issue.

CATCHWORDS: TORTS – liability of occupier of fitness centre – content of duty of care – breach of duty – section 5B Civil Liability Act 2002 – CONTRACT – plaintiff contractual entrant – implied warranty as to suitability of premises – breach of implied warranty – CROSS-CLAIM – content of duty of care owed by landlord/owner to plaintiff – whether deficiency in stairs constituted “dangerous defect” – terms of lease – whether cross-defendant/owners in breach of terms of lease – DAMAGES – quantification – past and future paid assistance – past and future gratuitous services – whether preconditions under ss 15 and 15B Civil Liability Act 2002 were satisfied.

LEGISLATION CITED: Civil Liability Act 2002
Motor Accidents Compensation Act 1999

CATEGORY: Principal judgment

CASES CITED: Adeel’s Palace Pty Limited v Moubarak [2009] HCA 48, (2009) 239 CLR 420
Allianz Australia Insurance Ltd v Roger Ward [2010] NSWSC, Hidden J, unreported, 6 July 2010
Angel v Hawkesbury City Council [2008] NSWCA 130
Carey v Lake Macquarie City Council [2007] NSWCA 4
CSR v Eddy [2005] HCA 64, (2005) 226 CLR 1
Harrison v Melhem [2008] NSWCA 67
Jones v Bartlett [2000] HCA 56, (2000) 205 CLR 166
MacLenan v Segar (1917) 2 KB 235 at 332/3
Morawski v State Rail Authority of NSW (1988) 14 NSWLR 374
Roads and Traffic Authority (NSW) v McGregor [2005] NSWCA 388
Teuma & Anor v CP & PK Judd Pty Ltd [2007] NSWCA 166
Thompson v Woolworths (Q’land) Pty Limited [2005] HCA 19, (2005) 221 CLR 234

PARTIES: Ellen Marshbaum - Plaintiff
Loose Fit Pty Limited - Defendant
Marea Anne Hickie and John Francis Kocx - Cross Defendants

FILE NUMBER(S): SC 2008/00289559

COUNSEL: Mr JO Anderson - Plaintiff
Mr W Austron - Defendant
First Cross-Defendant in person
Mr RJM Foord - Second Cross-Defendant

SOLICITORS: Mr Terence Stern - Plaintiff
Walker Hedges & Co - Defendant
First Cross-Defendant in person
Marea Anne Hickie - Second Cross-Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Monday, 11 October 2010

2008/00289559 – Ellen MARSHBAUM v LOOSE FIT PTY LTD & Ors
JUDGMENT

1 HIS HONOUR:

Nature of Claim

2 The relevant particulars of negligence were that there was no handrail installed on the staircase, the steps were constructed of pale coloured polished timber without visually contrasting nosings, the steps were constructed with differing riser heights and the steps were constructed with a varying tread depth.

3 At the time of the fall Loose Fit was operating the business of a gymnasium and fitness centre on the first floor of a building in a shopping centre at Mosman (the premises). It occupied the premises pursuant to a lease between it as lessee and the cross-defendants Mr Kocx and Ms Hickie as lessors. Mr Kocx and Ms Hickie were the owners of the premises.

4 In addition to the claim in negligence the plaintiff alleges that her injuries were caused by a breach of contract by Loose Fit in that it failed to exercise reasonable care in providing premises which could be safely used by persons such as her, in particular that it failed to provide a staircase which was safe for use by her.

5 In a cross-claim Loose Fit claims contribution and/or indemnity from Mr Kocx and Ms Hickie on the basis that they knew or ought to have known about the imperfections in the staircase. Additionally or alternatively it asserts that the plaintiff’s injuries were caused by a breach of the lease by them.

6 There is a fourth cross-claim brought by Ms Hickie. The cross-defendants are Mr Kocx and Simon Gates, a solicitor who acted on behalf of Ms Hickie in preparing the lease of the premises which commenced on 1 September 2006. That fourth cross-claim was not ready to proceed when this matter was listed for hearing and is not presently before the Court.

Factual Background

7 Unless otherwise indicated, I find the facts to be as follows.

The Fall

8 The plaintiff was born in 1946. Accordingly, she was aged 60 at the time when she fell and is now aged 64. She is married with two sons aged 26 and 29. She has not worked since 1979. She is left-handed.

9 For a number of years the plaintiff had participated in regular exercise with a personal trainer. When that arrangement ceased the plaintiff sought a new means of keeping fit. One of her sons had attended a presentation by Vision Personal Training (Vision) and suggested that its mode of operation (i.e. the provision of an individual training program with a designated personal trainer) might be helpful for her. Harold Marshbaum, her husband, agreed to accompany her by way of support and to improve his own fitness.

10 The plaintiff and her husband attended the Loose Fit premises at Mosman (which were part of the Vision franchise) on 1 November 2006. They were each assessed on that occasion and given personal training programs. The plaintiff’s assessment was conducted by Chris Jessop, the manager of the fitness centre. Both the plaintiff and her husband signed up for a course of fitness sessions intending to train twice weekly on Mondays and Fridays. A personal particulars form entitled “Lifestyle Screen” was signed by the plaintiff and became exhibit 1.

11 The following week the plaintiff and her husband attended the Loose Fit premises and participated in a full training session. This involved training by a personal trainer for half an hour and then exercising on machines for another half an hour.

12 On 10 November 2006 the plaintiff’s husband was unable to attend the fitness centre and so she attended on her own. She arrived at about 10am and completed a training session with the personal trainer. The session was relatively light and she was not unduly tired afterwards. After the personal training session, she spent some time on a treadmill at a moderate speed of about 5.6 kms per hour.

13 Since the plaintiff was going to the hairdresser, she then changed out of her gym clothing into street clothing including changing her shoes from training shoes to street shoes. These were black, low-heeled sandals. Nothing turns on the plaintiff’s footwear.

14 At this stage I should say something about the plaintiff’s physique and her state of fitness. In her oral evidence the plaintiff said that at the time of the accident she was able to jog 10 kms, used to walk every day for 4 kms and swam regularly at the Lane Cove swimming pool. The plaintiff’s husband’s description of her state of fitness at the time was somewhat different. His evidence was:

^th

15 The plaintiff was a person of short stature being 147cms (4 foot 10 inches) in height. Her build could best be described as solid. The plaintiff said that her weight had increased by approximately 2 kgs between the date of the accident and the date of trial. Accordingly, her appearance at trial would have been similar to how she looked in November 2006. Exhibit 1 referred to some health issues such as low blood pressure and arthritis.

16 On that material, I cannot accept that the plaintiff was jogging a distance of 10 kms once per week at about the time when she first attended Loose Fit’s fitness centre. She may well have done so some years before. In making that observation I do not wish it to appear that I do not accept the plaintiff, or that she was deliberately seeking to deceive the Court. I am of the opinion that the plaintiff was simply mistaken when giving that evidence. I do accept, however, that the plaintiff was an active person in November 2006 before her fall although her level of fitness was not as high as she described.

17 It is also necessary to say something about the staircase at the time that the plaintiff had her fall. The staircase was inspected by Mr Cowling, engineer, on 23 April 2009 on behalf of the plaintiff and by Dr Cooke, architect, on 9 July 2009 on behalf of Loose Fit. Both those experts prepared a joint statement, dated 6 September 2010. It would be fair to say that both experts were in complete agreement, not only as to the various dimensions of the staircase, but as to its deficiencies.

18 It was a timber staircase which connected the first floor of the fitness centre to an internal entrance area at ground floor level. The staircase comprised hardwood timber treads and risers with a clear polyurethane surface coating. The staircase had two parallel flights with an intermediate landing. The staircase was the sole means of access to and egress from the fitness centre.

19 At the time of the plaintiff’s accident, the lower flight of stairs had a timber handrail fixed to the side wall but the upper flight did not have any handrail. The upper flight of stairs was made up of 12 risers. Those upper risers were constructed of pale coloured polished timber without visually contrasting nosing. Measured from the top in the direction of descent, the height in millimetres of the risers on the upper flight of stairs was as follows: 143, 183, 167, 170, 176, 170, 174, 167, 172, 163, 167 and 157. Measuring from the top in the direction of descent, the dimensions in millimetres of the tread depth of the upper flight of stairs was: 273, 263, 257, 271, 258, 268, 270, 265, 272, 263 and 265.

20 For a person descending the upper flight of stairs the wall on the right side was described as a stub wall. Its surface had a painted white matte finish and its height was somewhere between 120 to 130 centimetres (4 feet to 4 feet 4 inches) (T.178.35, 230.49, 231.4). The width of the stub wall at its top was between 10 and 15 centimetres (4 and 6 inches) (T.178.48, 231.9).

21 The plaintiff said that as she left the fitness centre, she was carrying her handbag and a plastic bag which contained her sneakers and gym clothing in her left hand. She said that as she approached the top of the upper flight of stairs, she put her right hand against the stub wall to steady herself. She demonstrated by holding her palm and fingers outstretched flat against a wall.

22 The plaintiff described what happened as follows:

“Q. Where were you looking?
A. Where I was going.

Q. Meaning what?
A. I was looking down the staircase ahead of me.

Q. How would you describe the lighting?
A. Adequate.

Q. What happened as you started stepping down the stairs?
A. Yes.

Q. What happened?
A. I did the first step, I did the second step and I lost my footing on the third step.

Q. When you say you lost your footing, can you tell us exactly what happened?
A. I went to go down the third step and didn't reach it.

Q. What happened?
A. I then fell down the flight of stairs.

23 The plaintiff was unable to remember with what leg she moved onto the first step. She was unable to explain what caused her to fall.

24 In her evidentiary statement of May 2009 (exhibit B(2)) she described what happened as follows:

“As I started going down the stairs, I placed my right hand on the wall to steady myself and I stepped down to the first tread and then on the second tread while still touching the wall with my hand. On the third step, I lost my footing.

The wall was shiny and slippery and I was unable to hold onto it. I was not able to prevent myself from falling and I tumbled down the stairs sustaining multiple impacts until I hit the landing at the bottom of the first staircase.”

25 The managing director of Loose Fit was Ben Lucas. He described seeing the plaintiff walking towards the stairs immediately before the fall. He described the plaintiff as holding the bag with her gym clothes in one hand and her handbag in the other with her arms by her side. He described what then happened as follows:

“Q. Fair to say that as Mrs Marshbaum walked passed you looked up at her, exchanged pleasantries?
A. Yes, something we pride ourselves on. Saying hello, goodbye, yes.

Q. You resumed your attention on the computer?
A. Yes.

Q. She walked off towards the staircase?
A. Yes.

Q. And your evidence is, is it not, you did not see or hear from her again until you heard a noise and found she had fallen on the stairs?
A. Yes.

26 Mr Jessop also saw the plaintiff just before she fell. His evidence was:

“Q. Did you notice her either leaving the gym after you had that conversation?
A. I noticed her walking towards the stairs of the gym.

Q. Did she have anything in her hands?
A. I believe she had a bag or bags in her hand.

Q. What did you notice next?
A. The next I noticed I've turned around and Ben looked like he was going for the stairs and then after that obviously Ben came up the stairs and said she had fallen down them.

27 Loose Fit submitted that the Court should find that the plaintiff did not have her right hand resting on the stub wall but had a bag in each hand as she was descending the upper flight of stairs.

28 I am not prepared to so find. On this as in most matters, I found the plaintiff to be a generally reliable witness. On this issue her evidence is corroborated by that of Mr Jessop. His evidence clearly placed both the handbag and the plastic bag in one hand as she approached the top of the stairs. Not only is that consistent with the plaintiff’s evidence, it is consistent with the fact that her left hand was her dominant hand.

29 In any event, the plaintiff’s evidence is not necessarily inconsistent with that of Mr Lucas. Mr Lucas observed the plaintiff as she was walking towards the stairs but did not actually see her at the top of the stairs or as she commenced to descend them. The plaintiff may well have moved any bag she was holding in her right hand into her left hand preparatory to descending the stairs after she walked past Mr Lucas.

30 I find that the plaintiff commenced to descend the upper flight of stairs while holding her handbag and the plastic bag in her left hand and while steadying herself against the stub wall with her right hand.

31 After the fall Mr Lucas rendered assistance to the plaintiff, took her to his office and offered to ring an ambulance. The plaintiff who was experiencing pain in her left shoulder and arm did not want to be taken to a hospital but thought that she would get better treatment from her general practitioner. She telephoned her husband and told him what had happened. Mr Lucas then drove the plaintiff to her home from where her husband took her to her general practitioner who ordered x-rays and prescribed painkillers. The x-rays showed a fracture of the left humeral head with partial dislocation. In due course the plaintiff came under the care of professor Sonnabend, orthopaedic and trauma surgeon.

The premises

32 At the hearing of this matter, Ms Hickie was legally represented but Mr Kocx represented himself. Ms Hickie and Mr Kocx were no longer married and had been divorced in very acrimonious circumstances. That ill feeling continued as of the date of trial. It was the evidence of Mr Kocx that he and Ms Hickie had not spoken to each other for almost two years. In the past there had been litigation between them and he had been the subject of AVO’s obtained by her.

33 Ms Hickie did not give evidence in the proceedings. Medical reports dated 13 and 21 September 2010 from Dr Bruce Walker, cardiologist, were tendered (exhibit XD(2)) on her behalf. I am satisfied from those reports that at the time of trial Ms Hickie was seriously disabled by a heart condition and was not fit to give evidence. Accordingly, the evidence as to the acquisition of the premises and the modifications which were carried out came solely from Mr Kocx. Mr Kocx advised the Court that he was representing himself because he did not have money to pay for legal representation. Mr Kocx was called to give evidence by counsel appearing for Ms Hickie.

34 Mr Kocx and Ms Hickie purchased the premises on 17 June 2003. The premises comprised the first floor of the property in Military Road, Mosman. The purchase did not include the two shops which were on the ground level and which had separate and direct access at street level. At the time of the acquisition of the premises, Ms Hickie was practising as a solicitor and Mr Kocx, who had a commerce degree from the University of New South Wales, was practising as an accountant.

35 Mr Kocx described the premises as being in a very poor state of repair in June 2003. They had apparently been used as a traditional type of gym for a number of years without much maintenance being carried out. He described torn carpets, broken floorboards, considerable water damage from ceiling leaks and the need to upgrade facilities such as the bathroom and kitchen. Mr Kocx said that initially he approached a builder, Mr Shaun Mowbray, to repair the floor of the premises. Eventually Mr Mowbray carried out significant renovations to the premises at a cost of approximately $200,000. Exhibit XD(1) contained invoices received from Mr Mowbray for some of that work.

36 Mr Mowbray was not a licensed builder and no council approval was sought or obtained for the renovation of the premises. Mr Kocx said that he believed Mr Mowbray when he said that he was licensed and that he accepted Mr Mowbray’s assurance that because the work was internal, council approval was not necessary. This renovation work included the construction of the staircase on which the plaintiff fell. Mr Kocx said that he remembered that when he and Ms Hickie acquired the premises there were existing stairs made of concrete, but he could not say whether there was a metal tubular rail along each flight of stairs. The renovation work carried out in relation to the staircase was to cover the concrete steps with Blackbutt timber and to construct the stub wall along one side of the upper flight of stairs.

37 The renovations to the premises were completed in early 2004. Thereafter Mr Kocx and Ms Hickie conducted a health and wellbeing centre there. The centre offered natural therapies, yoga, Pilates and meditation classes. Mr Kocx described the business as follows:

“Q. And did you yourself have any financial interest in any of those businesses?
A. My wife and I were running a health and well-being centre. Part of that business was conducting classes on the floor which we were responsible for. Part of that business also sub-let rooms to therapists who paid rent and conducted their own businesses. So in that sense my wife at the time and I were operating our own business and part of the business was collecting rents from other businesses of comparable or sympathetic nature. “ (T.273.6)

38 In April Mr Kocx was approached by Mr Lucas concerning the leasing of part of the premises as a fitness centre. Negotiations to that effect took place in April and May 2005. Mr Lucas, whose background was that of a rugby league player and fitness instructor, had little experience in such business dealing. He was assisted by a friend, Mr Halaby, and by Mr Simmons, who was the principal of Vision.

39 Eventually a lease was entered into between Loose Fit as lessee and Ms Hickie and Mr Kocx as lessors for part of the premises. The lease was for three years and was to commence on 1 June 2005. The lease covered approximately 125 square metres of the premises. Exhibit 2 was a copy of the lease and some introductory documents.

40 The lease did not extend to common property such as the entrance, staircase, the foyer and waiting area, the kitchen, change room and toilet although Loose Fit was to have access to those common areas. The lessors were to be responsible for soundproofing and modifications to existing walls, doorways and flooring for which Loose Fit made a contribution of $5000.

41 It was common ground that before Loose Fit became involved with the premises there were no railings on either the upper or lower flight of stairs. Mr Lucas produced a photograph of the staircase taken in May 2005 (exhibit 3) which confirmed that fact. When Loose Fit commenced occupation of its part of the premises under the lease in June 2005 it is clear that a railing had been installed on the wall of the lower flight of stairs. Mr Lucas and Mr Kocx disagreed as to how that railing came to be installed.

42 Mr Kocx’s evidence on this issue was as follows:

…

Q. Is that a conversation that took place between you and who?
A. Mr Lucas and myself.

Q. Doing the best you can, can you recall what the conversation was, doing it in the--
A. Mr Lucas said words to the effect that, "Johnny, we really need to get the handrail up".

Q. What was that referring to?
A. That was referring to the handrail on the lower level of the flight of stairs.

43 It was common ground that either just before the commencement of the lease or just after, Mr Kocx installed the handrail on the lower flight of stairs. When asked why he had not previously installed such a handrail, either on the lower flight of stairs or on the upper flight of stairs, Mr Kocx responded that he was never asked to do so (T.259.10) and that no-one had ever told him that there was a requirement to do so (T.280.18, 280.45). In answer to a question from the bench, Mr Kocx said that insofar as the upper flight of stairs was concerned he had never turned his mind to whether or not there should be a handrail along it (T.281.16).

44 It was suggested to Mr Kocx that he had installed the handrail on the lower flight of stairs of his own volition without it being suggested by anyone else. He denied this and said:

“A. The reason I installed a handrail was because Mr Lucas was pursuing me to install it.” (T.279.48)

45 The evidence of Mr Lucas was somewhat different. He denied any recollection of a conversation with Mr Kocx about the erection of a handrail on the staircase (T.157). He gave the following evidence in cross-examination:

“Q. And you raised with Mr Kocx that this handrail on the lower level needed to be installed, is that right?
A. I?

Q. Did you raise with Mr Kocx that the handrail on the lower level needed to be installed, didn't you?
A. No, I don't believe so.

Q. You don't have any recollection of that at all?
A. No.

Q. Notwithstanding you have had an hour or so to think about it?
A. No, yeah, I don't recall.

Q. Are you prepared to deny that you had such a conversation with him, in other words I am suggesting to you it might have been possible that you have forgotten having the conversation with him about the handrail?
A. It's possible I had the lower level one but not about the upper level.

Q. You have no recollection at all of saying you did not require a handrail on the upper level?
A. I definitely would not have said that. He wouldn't have asked to put it in either because he would have looked to save a buck any way he can, knowing John, and he wouldn't have looked for more ways to spend money, if he didn't have to, that's for sure. “ (T.162.49)

“Q. I want to suggest to you that you did have a discussion about the handrail and that once the handrail was mentioned Mr Kocx installed it soon after you requested the handrail, do you agree or disagree with that?
A. I agree, the bottom one.

Q. And that at the time that the lower handrail was being discussed you specifically said you did not require one for the upper flight of stairs?
A. I disagree.” (T.164.21)

“Q. You didn't raise any difficulty with Mr Kocx about needing a handrail, did you, to the upper flight of stairs?
A. No, I did not.

“HIS HONOUR: Q. Whose idea was it to put a rail on the bottom flight of stairs?
A. Yeah, I can't recall sir.

Q. You don't know whether it was Mr Kocx or your own?
A. Yeah, I don't know, sir.

46 I have concluded that the erection of a handrail on the lower flight of stairs was raised in the lease negotiations and that it was raised by, or on behalf of, Loose Fit. I found Mr Lucas to be a genuine type of person and to be trying to assist the Court. I formed the opinion that even now his business expertise is not particularly great. I suspect that the impetus for a handrail on the lower flight of stairs probably came from Mr Simmons who appears to have been a very astute businessman. I accept that Mr Lucas genuinely had no specific recollection of any discussion concerning the handrail on the lower flight of stairs.

47 I do not accept the evidence of Mr Kocx to the effect that he suggested a handrail on the upper flight of stairs but that this was refused by Mr Lucas. There is considerable force in Mr Lucas’ evidence that Mr Kocx was only prepared to spend the bare minimum on any modification to the premises and that he was doing much of the work himself (T.163.29).

48 Moreover, I was not particularly impressed with Mr Kocx as a witness. Unlike Mr Lucas he was clearly an experienced businessman and was well aware of the case which was sought to be made against him. His evidence as to not being aware of the need for council approval when carrying out $200,000 worth of renovations to the premises after their acquisition, was at best disingenuous.

49 I do, however, find that to the extent that Mr Lucas turned his mind to the upper flight of stairs, he concluded that there was no need for a handrail.

“Q. Prior to the plaintiff, that's this lady here (indicated), having her fall you hadn't perceived a need for a handrail on the upper level, is that right?
A. No I hadn't.

Q. And--
A. Just because it had functioned as a yoga and Pilates centre with many clients and had not needed one and it had functioned as a gym before and not had one.

50 By way of explanation of the above question, Mr Lucas had previously agreed that when he used the upper flight of stairs before the plaintiff’s accident he had been able to obtain support by gripping the top of the stub wall with his right hand. Mr Lucas was 180 centimetres (5’ 11”) in height, was very fit and had large hands.

51 The marriage between Ms Hickie and Mr Kocx broke up in September 2005 and from that date he ceased to have any further contact with the premises. Ms Hickie took control of all relevant bank accounts and books of account in November 2005.

52 On 1 September 2006 Loose Fit entered into a new lease for the whole of the premises. The lessors named on the lease were Mr Kocx and Ms Hickie. The lease was for a period of five years. It seems that the persons providing the other therapies had moved out and Mr Lucas took the opportunity of gaining access to the whole of the premises (T.147.2). A copy of the September 2006 lease formed part of exhibit 4. It is apparent that the last two pages of the document are missing. There was no evidence as to how that lease came to be negotiated or with whom. I am satisfied, however, that Mr Kocx had nothing to do with those negotiations. It is clear from the description of the property in the document that the whole of the first floor premises, together with the staircase, was included in the lease. The only part of the premises not included was a garage at the rear of the premises.

53 Within a short time after the plaintiff’s fall, Mr Lucas contacted a building contractor employed by Vision and asked him to make recommendations to prevent further accidents of that kind. As a result of the assessment carried out by that person, two bollards were installed at the top of the upper flight of stairs and a handrail was fixed to the stub wall just slightly below its top. Loose Fit paid for and arranged for their installation.

54 Since Mr Kocx arranged for the stairs to be renovated in 2003, those renovations were governed by the Building Code of Australia (BCA).

55 In their joint report of 6 September 2010 (exhibit B(6)) Mr Cowling and Dr Cooke expressed the following opinions in respect of the upper flight of stairs:

1. We agree that the difference in the heights of the risers exceeds the tolerance of ± 5 mm specified in AS 1657-1992 Clause 4.3.1 at various points on the upper flight, in particular in the first three risers from the top.

2. We agree that the difference in the depths of the goings exceeds the tolerance of ± 5 mm specified in AS 1657-1992 Clause 4.3.1 at various points on the upper flight, in particular in the first six goings from the top.

4. Upon the occasion of each of the inspections conducted by Mr Cowling on 23 April 2009 and Dr Cooke on 9 July 2009, did the staircase have dimensional inconsistencies which were capable of disrupting gait?

Answer: We agree that the answer to this question is “yes”.

5. Upon the occasions of each of the inspections conducted by Mr Cowling on 23 April 2009 and Dr Cooke on 9 July 2009 were the nosings of the stair not painted or fitted with strips or devices to visually differentiate the nose of one step from the goings of the steps immediately above and below?

Answer: We agree that the nosings were not painted or fitted with such strips or devices.

9. We agree that if the Building Code of Australia applied, Part D2 applied, relevantly Clauses D2.13,D2.14 and D2.17 and Table D2.13. We agree that AS 1657 had no statutory force in relation to the staircase. However, we agree that, in the absence of any definition of “constant” in Building Code of Australia Clause D2.13(b)(iii), AS 1657 specifies a construction tolerance of ± 5 mm for risers and goings that is regarded as establishing good building practice for staircase construction generally.

11. We agree that the risers and goings were not constant. We agree that, whilst all of the individual riser and goings and all of the riser and going combinations agree with Building Code of Australia Table D2.13, the lack of constancy in the riser and going dimensions is in breach of Building Code of Australia Clause D2.13(b)(iii). We agree that the upper flight of the staircase was not fitted with a continuous handrail as required by Building Code of Australia Clause D2.17.

56 In his report (exhibit B(7)) Mr Cowling said:

“Not one of the treads achieved a going of 276 mm. Instead the goings ranged from a minimum of 255 mm to a maximum of 272 mm thereby resulting in a stair that was steeper than the design. What is not generally realised is that the need for the ± 5 mm construction tolerance is due to the narrow clearance during ascent and particularly during descent beneath the underside of the user’s shoes and the nosing surface.

Where there are irregularities and a significant lack of constancy in the stair dimensions as in this matter, then such defective conditions lead to a greater likelihood that a user could suffer a misstep through confusion. In the said stair flight these dimensional variations are considerable. Nevertheless, observations have shown that such discrepancies are unlikely to be sufficiently apparent to be visually obvious to the user, particularly in descent. This is why poorly constructed stairs such as the said stair are dangerous and feature more prominently in injury reports … The greatest discrepancy in the said stair occurs within the first three steps and this coincides with the place where the plaintiff lost her balance with the resulting fall from about the third step.

In the preceding parts of this report I reviewed the values recorded for the first three treads at the top of the said stair upon which the plaintiff fell.

These reveal a discrepancy of 40 mm in the rise and 17 mm in the going. In addition, the results obtained from the formula reveal an even greater discrepancy of up to 80mm.

These values far exceed any reasonable dimensional tolerance limits of ± 5 mm …

On the balance of probabilities, it seems reasonable to suggest that the presence of a readily graspable handrail could have prevented the alleged fall.

In the event that the plaintiff lost her balance while holding onto a suitable handrail this should have enabled her to recover her balance and thus prevent her falling all the way to the half-landing.

It is also possible that through the benefit of grasping the handrail the plaintiff may not have lost her balance at all during descent and thus prevented any fall from occurring as a result of her loss of equilibrium.”

57 Dr Cooke expressed himself to similar effect in his report.

“When the BCA commenced in NSW on 1 January 1992 Clause D2.17(a) was as follows: “Suitable handrails must be provided where necessary to assist and provide stability to persons using a … stairway” (Appendix C). The stair is 1210 mm wide (measured between side walls). Clause D2.17(b) relevantly specified that handrails satisfied Clause D2.17(a) if they were located along at least one side of a flight of stairs. However, the provision of a handrail was not explicitly required until a later amendment to clause D2.17 (in 1996) required a handrail on one side of a flight such as the upper flight of the stair.

Given the length of the flight (twelve risers) and the nature of their use (by members of the public who could be expected to have been exerting themselves in the gymnasium), my opinion is that good practice required the provision of a handrail for both flights (not just the lower flight). The provision of a handrail was also indicated by the BCA, although not explicitly required until Clause D2.17 was amended in 1996. …

Ozanne-Smith

Jackson and Cohen

58 The relevant parts of the Building Code of Australia and extracts from the research articles referred to in the reports were annexed to them and my reading of that material confirms that both experts accurately recorded their content in their reports and that these regulations and research articles supported their conclusions.

59 In July 2007 Mr and Mrs Marshbaum returned to the fitness centre. Mr Marshbaum took a number of photographs. Those photographs reveal that as of that date the bollards had been placed in position at the top of the upper flight of stairs, as had the handrail on that upper flight. I am satisfied that the main reason for this visit was to refresh their recollection as to the layout of the premises for the purpose of subsequent litigation.

60 While there they met with the manager of the fitness centre, Chris Jessop. In her evidentiary statement the plaintiff said:

“On about 6 July 2007, Chris Jessop, whom I understood to be the Manger of Vision, said to me and Harold words to the following effect:

“When the gym premises were set up, we were advised that the handrail was only necessary on the lower flight of stairs, but not the upper as there was a wall to hold onto.

After the accident, we reviewed the safety of the premises and we decided to put in a handrail on the upper flight of stairs.””

61 In her oral evidence, the plaintiff said:

“Q. Was it Mr Jessop?
A. Yes.

Q. What did he say?
A. I pointed to the handrail which had not been there previously and he said at the time that they had taken-- OBJECTION

62 Harold Marshbaum’s evidentiary statement was prepared shortly before the trial. In that statement he said:

“Ben Lucas was not present, but we spoke to Chris Jessop. We observed that there was a handrail on the upper level of the staircase and metal bollards at the top of the stairs which had not been there previously.

Jessop explained that, following the accident, the insurers had assessed the safety of the premises and requested certain modifications such as these. He also stated that, at the time they were fitting out the premises, they considered whether to put in a handrail on both levels, but concluded that it was only necessary at the lower level as there was a wall to hold on to at the upper level.”

63 In his evidence Mr Marshbaum said:

“Q. Try to use the exact words?
A. I would have said, "Hello Christopher, we have just come to have a look because we haven't heard anything from the insurance company, we wondered what was happening. I see there's now the handrail here." And he said, "Oh yes, after the accident the insurance company came in here, they spent about three days in here. They reviewed the safety of the premises and they told us to make some alterations, including putting in the handrail and putting in the metal bollards at the top of the stairs".

64 Mr Jessop gave evidence. He commenced employment with Loose Fit in late November 2005 as a fitness instructor and after twelve months became manager. At the time of trial he was no longer employed by Loose Fit but was the owner of two fitness businesses which were part of the Vision franchise system. Mr Jessop agreed that he had had a conversation with Mr and Mrs Marshbaum in about July 2007 but denied that he had said some of the words which had been attributed to him.

“Q. He suggests that he approached you and said, Hello Christopher, we have just come to have a look because we haven't heard anything from the insurance company. We wondered what was happening". Did he say those words to you when he visited in July 2007?
A. I believe that was the conversation.

Q. "I see there is a handrail there now". Do you recall him saying that?
A. Yes.

Q. And he says that you said to him in response to that, "Oh, yes, after the accident the insurance company came in here and they spent about three days in here". Did you ever say those things to him?
A. No, because the insurance company hadn't been out.

Q. He says that you there said, "They reviewed the safety of the premises and they told us to make some alterations including putting in the handrail and putting in the metal bollards at the stop of the stairs". Did you ever say those words to him?
A. No, I didn't.

…

Q. I want you to assume that Mrs Marshbaum has given similar evidence about you having a conversation with her in relation to the gym being set up. Did you ever have a conversation with her on the occasion she visited with her husband in July 2007?
A. I believe the conversation was to both of them.

65 Under cross-examination by counsel for Ms Hickie, those same matters were put to Mr Jessop and he maintained his denial that he said those same words which had been attributed to him by Mr and Mrs Marshbaum.

66 Objection was taken by counsel for Loose Fit to that evidence concerning Mr Jessop being given by the plaintiff and her husband. The basis for the objection was that Mr Jessop did not have authority to make admissions of that kind. I provisionally allowed the evidence but deferred ruling upon it.

67 It is clear that a conversation did take place between the plaintiff and her husband on the one hand and Mr Jessop in July 2007. I am not satisfied, however, that all of the evidence is admissible or that the plaintiff and her husband have accurately recalled the conversation.

68 Mr Jessop was not employed by Loose Fit when the lease was entered and the fit out took place. Accordingly, he could not have been privy to any conversations with Mr Lucas or anyone else concerning handrails at that time. Any information which he conveyed to the plaintiff or her husband in July 2007 could only have been in the nature of hearsay. The source of that hearsay evidence was not identified although it was probably Mr Lucas. It was never put to Mr Lucas that he had had such a conversation with Mr Jessop concerning handrails.

69 The other difficulty with the conversation is that part of it is clearly incorrect. There was no visit by a representative of the insurance company after the plaintiff’s accident for the purpose of assessing the premises and providing guidance as to what should be done to improve safety. This was something done at the instigation of Mr Lucas and it involved advice from a builder employed by Vision. I cannot think of any reason why Mr Jessop would have made statements to the plaintiff and her husband about the attendance of the insurance company if that were not correct.

70 Even if the evidence about the handrail is admissible, I propose to disregard it. I regard that part of the conversation as essentially unreliable and it does not substantially advance the plaintiff’s case.

Liability

71 Loose Fit accepted that it owed the plaintiff a duty of care. It did not otherwise identify the content of that duty. It disputed that it breached the duty of care which it owed. It made no submissions in relation to the plaintiff’s claim in contract.

72 I accept that the duty owed by Loose Fit to the plaintiff in her negligence claim involved an obligation to exercise reasonable care for her safety when she came onto its premises (Thompson v Woolworths (Q’land) Pty Limited [2005] HCA 19, (2005) 221 CLR 234 at [27]). In relation to her claim in contract, I accept that MacLenan v Segar (1917) 2 KB 235 at 332/3 accurately states the law where McCardie J said:

“Where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties (unless it provides to the contrary) contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of anyone can make them.”

73 That statement of principle was unanimously approved by the Court of Appeal in Morawski v State Rail Authority of NSW (1988) 14 NSWLR 374 at 377D, 379D and 381F.

74 In relation to breach of duty and negligence, the test is that provided by ss 5B and 5C of the Civil Liability Act 2002 (CLA). Those sections relevantly provide:

5B(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

5C In proceedings relating to liability for negligence:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

75 The plaintiff submitted that the risk of her suffering injury in the way in which she did was readily foreseeable in that Loose Fit knew, or ought to have known, in respect of the upper flight of stairs, that there were discrepancies in the height and size of the risers and goings, that there was a lack of constancy in those dimensions, that there was an absence of a continuous handrail, that these issues involved breaches of the BCA and that the failure to address these issues rendered the flight of stairs dangerous to those using them.

76 I do not accept that Loose Fit had actual knowledge of these problems with the upper flight of stairs. There is no evidence to that effect. This is particularly so given the lack of business experience on the part of Mr Lucas. In relation to whether Loose Fit should have had such knowledge, I have reached the same conclusion in relation to the discrepancy in the risers and going of the stairs. These matters would only have been obvious to an expert who carried out measurements. No basis or occasion was identified which would have required Loose Fit to carry out such an investigation.

77 The situation in relation to the handrail is different. It should have been obvious to Mr Lucas and therefore to Loose Fit that there was a need for a handrail on the upper flight of stairs. This is particularly so when such a handrail had been fixed to the lower flight of stairs. At the very least this should have led to a line of reasoning or enquiry on the part of Mr Lucas as to whether or not such a handrail was required elsewhere and in particular on the upper flight of stairs. If he were in any doubt on that issue, he should have sought advice and if he had done so, he would almost certainly have been told that such a handrail was required by BCA 2.17.

78 Even without such expert advice, a reasonable person operating a fitness centre when considering the differing physiques, ages and stature of persons likely to be using the centre, should have concluded that there was a risk of injury to such persons if a handrail were not provided. It was obvious that a person of small stature would not be able to grip the top of the stub wall as a means of support.

79 If it were the opinion of Mr Lucas that the stub wall provided an adequate support or handhold, that was an unreasonable conclusion when one took into account the likelihood that females of short stature may be using the upper flight of stairs. Since the top of the stub wall was between 10 and 15 cms in width, this would be difficult for a person with small hands to grip even if that person were able to conveniently reach it in order to grab hold of it.

80 Looking at the question prospectively, and putting oneself in the position of Mr Lucas, I find that a reasonable person in his position, would have concluded that there was a foreseeable risk of injury to females of short stature, particularly if that person had small hands when descending the upper flight of stairs. Applying the other provisions of ss 5B and 5C, it is clear that a breach of duty has been established by reason of Loose Fit’s failure to install a handrail on the upper flight of stairs. The risk of a fall was not insignificant in that there was a real likelihood of it occurring. If such a fall did occur, the consequences were likely to be serious and perhaps even life threatening. The burden of taking precautions to avoid the risk was small, both by way of inconvenience and expense.

81 Loose Fit submitted that even if a fall on the stairs were foreseeable the response of a reasonable person was to do nothing but to rely upon the existence of the stub wall. This was because there had been no previous accidents on the stairs and there was no evidence of any previous complaints about the stairs. In addition, Loose Fit submitted that the plaintiff could not explain what caused her to fall.

82 The absence of any previous falls on the upper flight of stairs is not decisive. The history of the premises is only known since early 2004 after Mr Kocx carried out his renovations and the health and wellbeing centre was opened. The state of the stairs and their history before those renovations is not known. What is known is that the specifications approved by the council in respect of the stairs in their pre 2003 state made provision for a handrail on both the upper and lower flights of stairs. Accordingly, the amount of time over which there was an absence of any accidents is relatively brief. In any event, that is merely one factor to be taken into account when determining foreseeability and reasonable response as prescribed by s 5B. In my opinion the likelihood of a fall occurring on these stairs, in the absence of a handrail, had such a strong likelihood as to outweigh the fact that there was no history of any previous falls.

83 That the plaintiff could not explain what caused her to fall is largely irrelevant. We can surmise that the cause was the significant difference in riser heights and going dimensions which existed in respect of the top three steps. Leaving that aside, however, the likelihood of a fall down any flight of stairs, particularly one involving twelve risers, is always high. The annexures to the report of Dr Cooke are replete with statistics which indicate how frequent is the occurrence of falls on stairs. That being so, some response was necessary and the most appropriate was the installation of a handrail.

84 While no submissions were directed towards s 5G CLA, I should for completeness deal with whether that section applies. That section limits liability where the risk is obvious. One answer is to rely upon the dicta of McClellan CJ at CL in Carey v Lake Macquarie City Council [2007] NSWCA 4 at [34] and that of Beazley and Tobias JJA in Angel v Hawkesbury City Council [2008] NSWCA 130 which restricted the operation of s 5G to situations where a defence of voluntary assumption of risk might arise. This was not such a situation.

85 Even if s 5G were to be given a wider interpretation it would not assist the defendant in this case. Whereas a fall down the flight of stairs may have been “obvious” what was not obvious in the sense required by the section was that if a fall did occur, the stub wall would provide no assistance to a person of small stature or for a person with a small hand or someone having both attributes. Looked at in that way, the risk of the plaintiff falling in this case was not an obvious one as defined by s 5F.

86 In relation to the plaintiff’s contractual count and the implied warranty, it is clear from the above analysis that the premises were not as safe for use by the plaintiff as reasonable care and skill on the part of Loose Fit could make them.

87 I am satisfied that the plaintiff has established breach of duty in her negligence claim and breach of the implied warranty in her contractual claim.

88 No submissions were made by the defendant in respect of causation and the application of s 5D CLA. This is understandable in that the evidence was all one way. As Clause D2.17 of the BCA makes clear, the purpose of a handrail is to assist and provide stability to persons using a stairway. As Mr Cowling made clear in his report, the absence of a handrail meant that the plaintiff had nothing with which to stabilise herself once she had lost her balance and had commenced to move forward. To put the matter in “but for” terminology, the plaintiff would not have fallen but for the absence of a handrail (Adeel’s Palace Pty Limited v Moubarak [2009] HCA 48, (2009) 239 CLR 420 at [41 – 45]).

89 It follows that I am satisfied that the plaintiff has established liability, both in negligence and for breach of contract, against Loose Fit.

90 Loose Fit did not make any submissions in relation to contributory negligence. It was, however, raised in its amended defence and needs to be dealt with. The particulars relied upon were:

(i) Failed to take sufficient care and precaution for her own safety.

(ii) Failed to negotiate the steps referred to in the said Statement of Claim with appropriate care and caution.

(iii) Failed to observe where she was walking.

91 Contributory negligence has not been established by Loose Fit. I have found that when the plaintiff was descending the upper flight of stairs, she was carrying her handbag and gym gear in her left hand and was attempting to support herself with her right hand. Because of her height, and the dimensions of the stub wall, no more could have been expected of her. It would have been extremely difficult, if not impossible, for her to grip the top of the stub wall because of her height and the size of her hand.

92 There was no evidence that the plaintiff failed to observe where she was walking or that this caused her to fall. On the contrary, the strong inference from the expert material is that it was the deficiency in the risers at the top of the stairs which caused the plaintiff to fall.

93 For the above reasons, Loose Fit has failed to establish that the plaintiff failed to take reasonable care for her own safety and accordingly has failed to establish contributory negligence to the standard required by s 5R CLA.

94 That does not end the consideration of liability. It is necessary to decide whether and if so to what extent, Loose Fit has established liability against Mr Kocx and Ms Hickie in its cross-claim. In relation to negligence Loose Fit’s claim was that Mr Kocx and Ms Hickie were persons who if sued by the plaintiff would have been found liable (s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. In order to resolve that question it is necessary to consider the position as between the plaintiff on the one hand and Mr Kocx and Ms Hickie on the other.

95 A useful start point is the statement of principle by Gummow and Hayne JJ in Jones v Bartlett [2000] HCA 56, (2000) 205 CLR 166 at [195 – 197]. This is so even though their observations were made in respect of residential premises.

Australian Safeway Stores Pty Ltd v Zaluzna

Cavalier v Pope

Northern Sandblasting

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10/11/2010 - Application of Slip Rule - Para [170] - Paragraph(s) [139], [168] and [169(1)]

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Citations

Marshbaum v Loose Fit Pty Ltd [2010] NSWSC 1130

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Amy Savage v The Nominal Defendant [2016] NSWDC 33

Cases Citing This Decision

1

Amy Savage v The Nominal Defendant [2016] NSWDC 33

Cases Cited

12

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2

Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19

Hill v Van Erp [1997] HCA 9

Coulton v Holcombe [1986] HCA 33

CITATION:	Marshbaum v Loose Fit Pty Ltd and Anor [2010] NSWSC 1130 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	20/09/2010; 21/09/2010; 22/09/2010; 23/09/2010
JUDGMENT DATE :	11 October 2010
JUDGMENT OF:	Hoeben J
DECISION:	There will be judgment in favour of the plaintiff against the defendant for $433,441.57. The defendant is to pay the plaintiff’s costs of the proceedings. In the cross-claim by the defendant against Mr Kocx and Ms Hickie, there will be judgment for the cross-defendants. The defendant is to pay the cross-defendant’s costs. I grant leave to the parties to approach the Court within seven days of the date hereof if any special costs orders are sought so that the Court can give appropriate directions for the hearing of that issue.
CATCHWORDS:	TORTS – liability of occupier of fitness centre – content of duty of care – breach of duty – section 5B Civil Liability Act 2002 – CONTRACT – plaintiff contractual entrant – implied warranty as to suitability of premises – breach of implied warranty – CROSS-CLAIM – content of duty of care owed by landlord/owner to plaintiff – whether deficiency in stairs constituted “dangerous defect” – terms of lease – whether cross-defendant/owners in breach of terms of lease – DAMAGES – quantification – past and future paid assistance – past and future gratuitous services – whether preconditions under ss 15 and 15B Civil Liability Act 2002 were satisfied.
LEGISLATION CITED:	Civil Liability Act 2002 Motor Accidents Compensation Act 1999
CATEGORY:	Principal judgment
CASES CITED:	Adeel’s Palace Pty Limited v Moubarak [2009] HCA 48, (2009) 239 CLR 420 Allianz Australia Insurance Ltd v Roger Ward [2010] NSWSC, Hidden J, unreported, 6 July 2010 Angel v Hawkesbury City Council [2008] NSWCA 130 Carey v Lake Macquarie City Council [2007] NSWCA 4 CSR v Eddy [2005] HCA 64, (2005) 226 CLR 1 Harrison v Melhem [2008] NSWCA 67 Jones v Bartlett [2000] HCA 56, (2000) 205 CLR 166 MacLenan v Segar (1917) 2 KB 235 at 332/3 Morawski v State Rail Authority of NSW (1988) 14 NSWLR 374 Roads and Traffic Authority (NSW) v McGregor [2005] NSWCA 388 Teuma & Anor v CP & PK Judd Pty Ltd [2007] NSWCA 166 Thompson v Woolworths (Q’land) Pty Limited [2005] HCA 19, (2005) 221 CLR 234
PARTIES:	Ellen Marshbaum - Plaintiff Loose Fit Pty Limited - Defendant Marea Anne Hickie and John Francis Kocx - Cross Defendants
FILE NUMBER(S):	SC 2008/00289559
COUNSEL:	Mr JO Anderson - Plaintiff Mr W Austron - Defendant First Cross-Defendant in person Mr RJM Foord - Second Cross-Defendant
SOLICITORS:	Mr Terence Stern - Plaintiff Walker Hedges & Co - Defendant First Cross-Defendant in person Marea Anne Hickie - Second Cross-Defendant