Maudsley v the Proprietors of Strata Plan Number 39794

NEW SOUTH WALES COURT OF APPEAL

CITATION: MAUDSLEY v. THE PROPRIETORS OF STRATA PLAN NUMBER 39794 [2002] NSWCA 244

FILE NUMBER(S):
40177/01

HEARING DATE(S): 3 December 2001

JUDGMENT DATE: 22/08/2002

PARTIES:
GREVILLE MAUDSLEY (Appellant)
THE PROPRIETORS OF STRATA PLAN NUMBER 39794 (Respondent)

JUDGMENT OF: Meagher JA Powell JA Beazley JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 70252/98 (Gosford)

LOWER COURT JUDICIAL OFFICER: English DCJ

COUNSEL:
R.S. Toner SC and J.L. Gruzman (Appellant)
S.E. Torrington (Respondent)

SOLICITORS:
Orchiston Ranzetta Finney (Gosford) by their City Agents Boyd House & Partners (Appellant)
Hunt & Hunt (Respondent)

CATCHWORDS:
EVIDENCE - Opinion evidence - Expert evidence - Duty of expert in giving opinion evidence - NEGLIGENCE - Occupier's liability - Dangerous premises - What is unusual danger - Knowledge of by occupier - Slippery surface - Tiles alleged to have been slippery when wet D

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs

JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40711/01
MEAGHER JA
POWELL JA
BEAZLEY JA
22 August 2002

MAUDSLEY v. THE PROPRIETORS OF STRATA PLAN NUMBER 39794

JUDGMENT

MEAGHER JA: On 5 December 1995 Mr Maudsley, the appellant/plaintiff, fell in the common area of a building situated at 131 Donnison Street, Gosford known as the Kensman Building, which was (and is) owned by the defendant/respondent. He sued the defendant for damages in the District Court, and her Honour Judge English dismissed his action. Hence this appeal.
The Kensman Building is a block of commercial premises. One approaches the building by ascending a small flight of stairs and then comes to a patio, off which there are a number of smallish business premises, each of which was occupied by a tenant of the defendant, one party which occupied one of those business premises was called “Waterways”, and it was thither that Mr Maudsley repaired on the day in question.
It was after lunch. He went up the stairs and to the Waterways office. He was there about half an hour. He renewed his boat licence there, collected some literature and chatted to the staff. It was not raining when he went in. When he came out it, apparently, had rained, and it would seem that the patio outside “Waterways” was slightly wet. When he went out he fell. He suffered two broken ribs, although he was able to drive himself home. He was in good health before his fall, suffering no physical disabilities as far as his walking or balance was concerned.
The exact details of the incident are a little unclear, but that lack of clarity is perhaps due to the unfortunate fact that Mr Maudsley has suffered a number of strokes since the incident.
Evidence was given on behalf of Mr Maudsley by two witnesses; Mrs Butcher and Mr Neil Adams. Mrs Butcher was the officer in charge of the “Waterways” office. She had worked there on a part-time basis since 1991, the same year the building opened. She gave evidence that the tiles were there when she came in 1991, and had not bee altered since. During that time she had noticed from time to time that “Waterways” customers had slipped on the tiles. But such events had not happened in recent times, and she had made no complaint to anyone over such episodes.
The plaintiff’s other witness was a Mr Neil Adams, an expert of sorts, who produced (or, rather, co-produced) a report after visiting the premises in 2000. He made various measurements of the slip-resistance of the tiles. He came to the conclusion that the co-efficient of friction of the tiles (when wet) was .017, which is potentially dangerous. The two difficulties about his evidence, however, were that he used a machine other than the one recommended is the standard; and that he did not inspect the sites until 4 or 5 years after the accident.
For the respondent, two witnesses of considerable importance were called. The first was a Mr Stephen King who was the builder of Kensman Building. His evidence was unchallenged. He installed the tiles, which were nominated by the architect. He used tessellated exterior tiles which were commonly used at the time. The second was Mr John Brown, the chairman of the Executive Committee of the respondent, who said that the building manager of the Kensman Building had never made any complaint about the alleged slipperiness of the tiles, or given any notification of any falls.
Her Honour’s conclusion, which seems to me to be almost inevitable, was:
“I cannot be satisfied that as at the date of the accident on 5 December 1995 the tiles which were laid four years earlier, which had been deemed suitable for outside use, would constitute a danger to persons using the premises on wet days.”
I cannot see how her Honour erred.
I would dismiss the appeal with costs.
POWELL JA: This is an appeal from a Judgment delivered, and verdict found, by English DCJ on 2 March 2001, on which day her Honour dismissed with costs the proceedings which had been brought by the Appellant in the District Court at Gosford.
In those proceedings the Appellant had sought to recover from the Respondent damages in respect of the injuries which he claimed to have suffered when he fell while on the Respondent’s premises on 5 December 1995.
The Respondent’s premises, known as the Kensmen Building, located at 131 Donnison Street, Gosford, might be described as a commercial building, occupied by administrative or professional offices.
Because of the fall of the land in Donnison Street, which fall is from left to right as one approaches it from the front, the main part of the building sits on a podium which appears to be set back several metres from the boundary between land comprised in Strata Plan 39794 and the street. Access to the podium from the street appears to be reached, first, by way of a tiled walkway and, then, by a flight of steps said (Combined AB 19) to comprise four treads and five risers with a total fall of approximately 900 mm over a horizontal distance of approximately 1000 mm, there being handrails fitted at each side of the steps. The stairway is said to have had an available width between the handrails of approximately 7.15 metres. Immediately adjoining the podium on the street side and on each side of the stairway are what appear to be planter boxes running along the front of the podium, which planter boxes appear (Exhibit C, Combined AB 3) as if they may have been planted with occasional shrubs and a low box hedge.
Although the building above the podium level appears to have been built to a line above the street side of the podium - so that the offices in the upper levels of the building come to that line - on the podium level the entry into the building and the offices of each side of it have been set back so that one has the effect of a colonnade between the edge of the podium and the entry and the forward side of those offices, that colonnade running the full width of the building. In addition, the slab at the first floor level protrudes in an irregularly shaped way beyond the line of the podium so as to provide the effect of a canopy over part, at least, of the stairway leading to the podium. On the left hand side of the stairway as one approaches it from the street, the canopy or awning appears to protrude for a distance of perhaps half a metre beyond the line of the podium, the canopy or awning then curving outwards so that, at the right hand side of the stairway it appears to cover the whole of the stairway.
The podium area and the steps forming part of the stairway were tiled with what was described by Mr. King, who had built the Kensmen Building (Combined AB 70), as a tessellated terracotta exterior grade surface tile, each tile on the podium seemingly being 300 mm2 in area (Combined AB 16). The leading edge of each of the tiles at the top of the stairway and of each of the tiles forming treads in the stairway was grooved, the grooves apparently having in them some substance designed to prevent slipping (Combined AB 20). Although the tiles were described by Mr. King in the manner which I have just set out, in a report which he provided to the solicitors for the Appellant, Mr. Neil Adams described the tiles (Combined AB 16) as “square ceramic tiles, which have a very smooth finish”.
Whatever be the correct description of the tiles on the podium and the stairway, Mr. King (Combined AB 70-73) said that, at the time – which was in 1991 – when the erection of the Kensmen Building was completed, the tiles were in common use, that they had not been chosen by himself, but had been specified by the firm of architects who had designed the building and had been supplied by an organisation called “Master Tiles” then located in Norton Street, Leichhardt.
The two principal – perhaps they were the only two – tenants occupying premises on the podium level in December 1995 were an organisation then known as the Waterways Authority, which occupied offices to the left of the main entrance to the building as one approached it from the street, and an optometrist which occupied premises to the right of that entrance as one approached it from the street. The distance from the main entry into the building to the edge of the podium at the head of the stairway appears to be of the order of 3-4 metres.
The “wall” on the street side of the premises occupied by the Waterways Authority appears to be plate glass, the entrance into those premises being by way of a plate glass door situated in a side wall adjacent to the entrance into the main building.
Mr. Adams’ report suggests (Combined AB 16) that the podium slopes downwards from the main entrance in the building toward the head of the stairway at an angle of approximately 10.
On 5 December 1995, Mr. Maudsley was aged 50 years. Although the nature of his then occupation is not made clear, it is said that, at the time, he held both a commercial agent’s licence and a private inquiry agent’s licence and, as it is said (Combined AB 45) that he was, at the time, actively employed, the likelihood is that he was employed in some activity for which the holding of one or other or both of those licences was a requirement. At the time, so the Appellant seemed to suggest (Combined AB 45), he was endeavouring to “kick off a business in Waterfront security”.
In the afternoon of 5 December 1995, the Appellant, who had earlier been to the Imperial Centre in Gosford, had walked from there to the Kensmen Centre with a view to renewing the licence for his boat. Since the Appellant was later to tell Mr. Adams that, at the time, “he was on his way to his boat” (Combined AB 18), the probability is that, at the time, he was casually dressed – certain it is that, at the time, he was wearing what he described (Combined AB 48) as “Beach Comber sandals type things” which appear (Combined AB 19) to be slip-on sandals without any heel restraint, with a rubber or synthetic sole and with little, if any, heel.
In the course of his evidence in chief (Combined AB 47-48), the Appellant gave the following evidence:
“Q. Had it been raining that day can you recall? A. I can’t recall it being raining at all that day, like that’s what I said, I was in there for quite a while and I was picking up literature and things for the waterfront security business while I was in there as well, so I was in there for quite a while talking to them.
Q. Well when you walked into the building that is up the stairs and along the path to the Waterways office, what was the surface, was it dry or wet or what was it, as you walked in? A. As I walked in it was dry.”
As appears to be a not uncommon occurrence in proceedings in the District Court seeking to recover damages for personal injury, the evidence as to the critical event was, in this case, left in a singularly confused and confusing state. That this was so is revealed by the following evidence given later in chief by the Appellant (Combined AB 48-49):
“Q. You have to, I know you told us what happened at the view, but we will need to have it recorded now. So if you can tell us what you did as you left the --? A. Well as I came out the door, my left leg went from underneath me and I fell down, I put both my hands out to try and save me and I came down on my right side and my right hand went up under my ribs and broke two ribs. I cut my leg, I ended up on the steps.
Q. That’s probably all we need for that at the moment, but your left leg how did it come out from under you? A. Well just as I was walking it just slid out from underneath me.
Q. Now where were you when that took place? A. On the top platform going towards the pole there, where the handrail is attached to going down the steps.
Q. And is that what you were heading for? A. Yes.
Q. And where did you end up, were you, when you fell were you on the steps or on the landing or on the footpath? A. I was on the steps, I can’t remember whether I was on the top step or on the second step down, but …
Q. And did you notice something about the area where you’d slipped? A. It was all wet.
Q. And did you notice anything about the area around there, that is around the steps and around the outside of the footpath. A. Just that it was all wet where we’d had a shower of rain.
Q. Were you aware that it had been raining? A. No.
Q. As you were walking out towards the handrail from the Waterways office did you see that the area was wet? A. Not really I can’t remember seeing it wet.
Q. About how many steps would you have taken from the door to where your left leg slid out? A. It was only a few steps, it was in between the pole, in the front door, I can’t remember exactly but …
Q. By a few steps is that one, two, three, four, five? A. Two or three it could have been.”
At the outset of his cross-examination the Appellant gave the following evidence (Combined AB 50):
“KELLEHER: Q. Mr. Maudsley the Waterways area that you were in is a glassed in area is that right? A. That’s right.
Q. You can see outside that glass door outside is that right? A. That’s right.
Q. And you can see very easily if it has been raining is that right? A. I suppose if you were looking for that right, yes.
HER HONOUR: Q. I am sorry I missed the answer? A. If you were looking for the rain, it wasn’t raining when I went in so I didn’t go looking for it.
KELLEHER: Q. But it was obvious to you wasn’t it that the street was wet when you came out? A. I can’t remember, I didn’t see, all I saw I was heading back to the Imperial Centre and I slipped over.”
The Appellant’s evidence is to be contrasted with the version which, so Mr. Adams said in his report, was later given to him by the Appellant. That version was as follows (Combined AB 14):
“When Mr. Maudsley arrived at the Waterways office, it had not yet rained, and the entrance area was quite dry. He indicated that he was in the Waterways office for up to approximately 30 minutes, transacting his business and chatting with the staff, who were known to him. While he was in the office, there was a heavy shower of rain, which was also associated with some wind.
After having completed his business, Mr. Maudsley made his exit from the Waterways office, and began to leave the premises. He walked across the tiled area … towards the broad stairway that provided the main access to and from that building, and quite close to the pillar at the edge of the stairway. He was well aware that rain had fallen, as he could see that it was wet outside, but he did not notice that the tiled area at the top of the stairway was also wet. He recalls that, at a point approximately three tiles from the top of the stairway, his feet simply went from under him. He completely lost his balance, and fell heavily down most of the stairway towards which he had been walking. He could not clearly recall his precise movements during the slip and fall, and indicated that, in addition to the physical injuries that he sustained, he has experience three strokes since the slip and fall.”
If the Appellant slipped at the point indicated by Mr. Adams, the following would seem to have been the position:
(a)that point would have been about 2 metres or a little more from the external edge of the canopy or awning near the pillar and about 1 metre from the edge of the podium;
(b)the Appellant would have walked about 3 or 4 metres from the doorway into the offices of the Waterways Authority in the direction of the pillar at the head of the stairway;
(c)the rain which is said to have fallen and to have been blown in onto the podium would have been blown in about 2 metres or more from the external edge of the canopy or awning and about 1 metre from the edge of the podium.
Support – although it was but little – for the fact that the Appellant had fallen was provided by a statement (Exhibit H – Combined AB 37) given in September 1999 – one assumes to an investigator retained on behalf of the Appellant – by a Ms. Cumpstay-Wall which statement, although Ms. Cumpstay-Wall was not available to give evidence, was admitted by English DCJ despite the objections taken on behalf of the Defendant. Insofar as it had any relevance, that statement was as follows:
“I am employed by Waterways Authority and have been since October, 1995. I was transferred to the Tamworth office in April, 1998.
On the 5 December 1995 I was on duty at the Gosford office. I remember that it was raining. I also remember a male person who had been into our office and conducted some business.
He left and I continued on with other duties, for some reason I looked out of the glass at the front of our office and observed that this same person had fallen down some steps which are just out from our front door. I immediately went out and helped him up, he was visibly shaken, I picked some papers up and asked if he was all right. I noticed that he had some blood on him, he came back into the office and an attempt was made to contact a person of his choice by telephone with no result.
He rested for a while then stated that he was alright and left the area. I don’t know where he went after that and I did not see him for a while until he came back in, I think to conduct more business, he asked something about his teeth or tooth that he had lost when he fell and mentioned that he had an arm injury.
There was no record kept of the fall as it occurred outside the Waterways Office and I am unaware if this man reported the matter to the management of the building.”
Despite the fact that the Appellant claimed to have sustained a number of injuries, the detail of which was not explored on the hearing before English DCJ, as the result of his fall and to have sustained a significant financial loss as the result of the sequelae of those injuries, these proceedings were not commenced until 1 December 1998 (RAB 1).
In the Statement of Claim which was filed on the Appellant’s behalf, the particulars of negligence which were given (RAB 2-3) were as follows:
“5.The defendant was negligent in that the defendant –
a)Failed to take any adequate precautions for the safety of the plaintiff;
b)Exposed the plaintiff to risk of damage or injury of which it new (sic) or ought to have known;
c)Failed to provide a safe floor and/or failed to provide a floor that was safe after the accumulation of water upon it.
d)Failed to place suitable signs warning entrance (sic) such as the plaintiff of the danger of slipping on the floor.
e)Failed to take any adequate precautions so as to ensure that the floor did not become slippery when wet.
f)Failed to cover the said floor with some appropriate material to prevent the plaintiff or other visitors to the premises from slipping on such floor.
g)Failed to observe that the plaintiff was in a position of peril in the circumstances.
h)Failed to provide a hand rail.”

Despite the fact that the limitation period had virtually expired before these proceedings were commenced, and despite the fact that a further 5 years were to pass before the proceedings were called on for hearing before English DCJ, no attempt appears to have been made to obtain the evidence of anyone who might have witnessed the incident until September 1999 when the statement of Ms. Cumpstay-Wall was obtained, and no attempt appears to have been made to have the site of the incident examined by anyone qualified to express a view as to the slipperiness or otherwise of the tiling on the podium and steps until January 2000 – that is over 4 years after the incident – when Mr. Adams attended with the Appellant for the purpose of inspecting the area and carrying out his tests (Combined AB 13).
The document (Exhibit F- Combined AB 10-34) which purports to record what Mr. Adams observed on the occasion of his inspection, the results of the tests which he carried out, and the conclusions to which he came, is one which truly merits the description of being a pastiche and is, in my view, a thoroughly unsatisfactory document. Nor are what I regard as the deficiencies of Exhibit F removed by a later document (Exhibit G – Combined AB 35-36) – which may, or may not, have been written by Mr. Adams – which was tendered on the hearing before English DCJ.
Exhibit F, which bears date 3 March 2000, and which purports to be a report prepared for the Appellant’s solicitors by Dr. Neil Adams – who is Mr. Neil Adams’ father – and Mr. Neil Adams records, under the title “Introduction” (inter alia) the following (Combined AB 13):
“As arranged, Mr. Neil Adams attended with Mr. Maudsley at the front entrance to the Kensman (sic) building situated in Donnison Street, Gosford, on 27 January 2000. Mr. Adams inspected the area where Mr. Maudsley had experienced a slip, fall and injury on 5 December 1995, and made various measurements, including measurements of the slip resistance to the tiles on which Mr. Maudsley slipped. We note that it had been lightly raining for a short period prior to the inspection on 27 January 2000, and there was virtually no wind associated with that rain. The water which was seen during the inspection to be on the tiles in the area where Mr. Maudsley’s slip and fall occurred, was somewhat less than would have been there at the time of that slip and fall, as the rain had been heavier and was associated with wind on that previous occasion.”
Under a title “The Injury Occurrence and Relevant Characteristics of the Situation”, Exhibit F set out (inter alia) the passage to which I have earlier referred (see para. 16 (above)); later, under a title “The Relevant Characteristics of the Situation” Exhibit F recorded the following (inter alia) (Combined AB 17):
“Mr. Adams measured the dynamic coefficients of friction available on that tiled surface using the FSC 2000 (Floor Slip Control) machine which we regard as providing more valid and realistic indications of a floor’s frictional characteristics than can the Tortus recommended in the relevant Australian Standard. Our reasons for favouring the FSC 2000 over the Tortus includes the facts that it moves at a more realistic speed – 20 cm per second instead of 17 mm per second – to which the Tortus is restricted; and it uses a slider of considerably larger area than the minuscule 9mm diameter disc used in the Tortus. The FSC 2000 also provides for the use of a variety of materials more representative of common shoe sole materials than the “Four S” rubber used in the Tortus. The results obtained with the FSC 2000 are presented in Table 1 below.”
Table 1, which is headed “Measurements of the Surface when Dry using the FSC 2000” purports to record, in respect of three substances, leather, rubber – whether or not the “Four S” rubber referred to above is not explained – and synthetic, what are said to be the maximum coefficient of friction, the average coefficient of friction and the minimum coefficient of friction. It is not necessary to record what were the several coefficients recorded for leather and synthetic, it being sufficient to record that in respect of each of the coefficients recorded for rubber, it was said that the coefficient of friction was greater than 1.0, “detailed results not possible.”
Exhibit F then continued:
“For measuring the slip resistance of the wet surface Mr. Adams used the Pendulum device which may be seen in photograph 5, as recommended in the Australian Standard. Measurements were made across the slight slope which existed on that surface. The surface appeared reasonably clean and was tested in the ‘as found’ condition. In accordance with the required procedure for the pendulum the surface was re-wet with a spray of clean tap water after each measurement. The dynamic coefficient of friction determined with the pendulum was 0.17, measured in accordance with AS/NZS 3661.1, Appendix A (under revision). The measurements and average dynamic coefficient of friction for the surface when wet are presented in table two below.”
Under a title “Measurements of the surface when Wet using the Pendulum” Table 2 purports to record the “Skid Resistance Value” and “Coefficient of friction” of what were said to be “Tiles near where Mr. Maudsley slipped” – under the heading “Skid Resistance Value” five differing figures being recorded, and the “Coefficient of friction” being recorded as 0.17.
The only explanation – if such it can be called – for the five differing figures given for “Skid Resistance Value” and how those five differing figures produced the single figure given for “Coefficient of friction” is to be found in the following passage in the oral evidence given by Mr. Adams on the hearing before English DCJ (Combined AB 60):
“QUICKENDEN: Q. Now Mr. Adams you also prepared, or perhaps before I get to that, have you a copy of your report still there? A. Yes I do, except I don’t have all the appendices.
Q. Well I’m not going to take you to any appendices, but at page 6, at the bottom you refer to a table, I withdraw that. You refer to measurements of the surface when wet using a pendulum? A. Yes.
Q. You have there put down a number of columns skid resistance value, one, two, three, four, five, and then a number next to each of those, could you tell us what the one, two, three, four, five stand for? A. One, two, three, four, five, are five successive numbers, they’re indications that I took five successive measurements so the number under one is the first measurement, the number under two is the second measurement and so on.
Q. And were they undertaken in the are where Mr. Maudsley had told you he’d slipped? A. Yes.
Q. And what are the numbers under each of the numbers, one, two, three, four, five? A. They are numbers that are read off the scale on the pendulum machine.
Q. I see? A. There’s a needle that points to a scale.
Q. So that gives you the result in a number form does it? A. Correct yes.
Q. And do you then correlate the number with a co-efficient of friction: A. That’s correct yes.
Q. How do you do that? A. There’s a table in the standard that I refer to that relates the number to a co-efficient of friction.
Q. Which specific standard is it that …? A. That’s in AS3661.1.
Q. When was that published? A. 1993.”
Despite the obvious importance of AS3661.1, no copy of it forms part of Exhibit F.
Exhibit G, which was admitted on the hearing before English DCJ despite the objection taken on behalf of the Respondent, contained the following (inter alia):
“It is not possible on the basis of a measured coefficient of friction to state that a surface is ‘safe’ or ‘unsafe’, because the likelihood of pedestrians experiencing slips on a surface is only partly dependent on the surface characteristics. The risk that a slip might occur on a surface is also partly dependent on a range of other contributing factors including: footwear, pedestrian awareness of the nature of the surface; gait, lighting, differentials between adjacent surfaces; and others. The relevant Standards (AS/NZS 3661.1 – 1993 and AS/NZS 4568:1999, which partially replaces the former) acknowledge this by not specifically referring to a specific coefficient of friction as being ‘safe’ or ‘unsafe’.
AS/NZS 3661.1 specifies that a wet tested pedestrian surface ‘shall have a mean coefficient of friction of not less than 0.40’. The tiles that I tested at the location where Mr. Maudsley slipped and fell, using the test method specified in that Standard, yielded a dynamic coefficient of friction of 0.17 and would clearly fail that requirement of the Standard. Those tiles would therefore be considered under that Standard as inadequately slip resistant for that location.
AS/NZS 4568:1999, which partially supersedes AS/NZS 3661.1, contains a table (Table 2) against which coefficients of friction may be compared in order to determine the contribution of a surface to the overall risk that a slip and fall might occur. The wet pendulum test method that I use, which also complies with AS/NZS 4568, yielded readings that place those tiles in the highest risk category in Table 2. The tiles would be categorised as making a ‘Very high’ contribution to the risk that a slip would occur on that surface when it was wet.”
Despite the obvious importance of AS/NZS 4568, no copy of that Standard accompanied Exhibit G.
The only evidence which, in addition to that of the Appellant and Mr. Adams and the statement of Ms. Cumpstay-Wall, was tendered on behalf of the Appellant on the hearing before English DCJ was that of a Ms. Butcher, an officer of the Waterways Authority who had worked in the Authority’s premises at the Kensmen Building since the building was opened. Although so employed, Ms. Butcher was not present in those premises on the occasion when the Appellant sustained his injuries, so that her evidence, such as it was, was of very limited value. Insofar as it had any relevance, that evidence was as follows (Combined AB 68-69):
“Q. The tiles that are there now in front of the front door of your premises, have they always been there? A. Yes they have.
………
Q. Have you observed it raining on occasions since 1991 til the present time? A. Yes.
Q. Has water come onto the landing area outside your premises? A. Yes it does.
Q. Has it done the same for the optometrist on each of those occasions or not? A. No, the optometrist’s area is covered.
Q. Have you noticed people in that period between 1991 and the present who have slipped outside your offices? A. Yes I have.
Q. Have you noticed what the surface was like on the tiles? A. It’s wet.
………
Q. Sorry in that period I’m talking about? A. In that period yes.
Q. It’s been wet has it? A. Yes.
Q. Were some of those people that you noticed your customers? A. Some were yes.
Q. Were they all people who walked in the vicinity of your door? A. The majority yes.
………
KELLEHER: Q. The people you say who slipped, that’s been of recent times is that right? A. No it hasn’t been of recent times.
Q. You’ve never made any complaint or suggestion to anybody about people slipping there have you? A. No, no I haven’t. I was more aware of what’s inside our door.”
Given the construction of the building and the layout of the premises on the podium level, I find this evidence incomprehensible, first, since it is clear that, just as the area outside the optometrist’s premises is covered so also is the area outside the Waterways Authority’s premises; and, second, since there is not the slightest suggestion, that rain penetrates to a point outside the door into the Waterways Authority premises.
The only evidence tendered on behalf of the Respondent on the hearing before English DCJ was that of Mr. King – the nature of whose evidence appears from what I have recorded above – and of Mr. Brown the Chairman of the Executive Committee of the Respondent Body Corporate, whose evidence (Combined AB 75-76) was to the effect that, at no time prior to 1995 had there been brought to his attention any complaints as to the slipperiness of the tiles at the entrance of the building or any complaints as to falls.
Only one other matter as to the hearing before English DCJ need be recorded, that being that, at a very early stage of the hearing, her Honour attended at the premises on a view. The transcript record of proceedings (Combined AB 47) records the following:
“KELLEHER: Perhaps for the record to be noted what your Honour was asked to observe on the view, which was the nature of the canopy over the top of the steps, the nature of the tiles themselves, and what was an apparent gloss effect from the shadow, and in my submission that when one looks at the tiles close up that gloss effect is not there.
HER HONOUR: Yes do you agree that’s an accurate representation of what took place Mr. Quickenden?
QUICKENDEN: Your Honour I don’t agree that that’s an accurate representation of what’s been shown at all. But for the purpose of the record all we need do is to note that we went on the view, at about twenty past three, and your Honour observed the area where the alleged incident occurred, what perceptions my learned friend has of it, and what I have of it, mean absolutely nothing. And bear in mind that it wasn’t raining out there at the time. What perceptions your Honour has of it, your Honour will have and that’s perfectly proper for your Honour to keep to your Honour’s self at the moment.
HER HONOUR: Yes. All right, for the sake of the record, I note that a view took place, we left the court house at 3.20 and returned at 3.30 pm, and the plaintiff demonstrated where he walked at the time the alleged incident took place.”
In her Judgment, English DCJ, after recounting the nature of the proceedings and the general nature of the evidence which had been tendered on the hearing before her, continued (RAB 16-19):
“In submissions I was referred to the authorities of Phyllis and Daly & Drotum (sic) Pty. Limited v. Manning and the cases referred to therein.
It is of course the law that there is a more stringent duty of care imposed upon occupiers of commercial premises. The requirement is that there is to be accident prevention. The authorities lead me to conclude that the standard of care of an occupier requires more than a reaction when danger is made known. The occupiers must be proactive to prevent accidents occurring to members of the public entering premises for the purposes of transacting business.
There is no evidence in this case that the defendant conducted any regular inspection of the premises in the nature of a safety audit. However the plaintiff has a factual difficulty in this matter to overcome. In his evidence before me he says that he was not aware that it was raining at the time. In contrast to that, he told Dr. Adams (sic) that he was well aware that rain had fallen as he could see it was wet outside, although he did not notice the tiled area at the top of the stairs was wet. Further, he told Dr. Adams (sic) not only was it raining, but there was also wind blowing.
Mrs. Butcher (sic) of course says it was raining, but she did say for how long it had been raining prior to the plaintiff leaving the Waterways office, whether it was heavy or light rain and whether there was wind associated with the rain.
Further, the testing carried out in 2000 was carried out nine years after the installation of the tiles. The evidence of the builder was that tessellated tiles suitable for external use, designed to deal with wet conditions, were laid. Between the time that the tiles were installed in (sic) 1995 there is no evidence of any complaints being made to the defendant of the slippery nature of the tiles. This is despite the evidence of Mrs. Butcher that there were people who slipped at various times. Curiously although it would appear that as at 2000, the time at which the tiles were tested and found to be slippery, she was unable to recall any slips in more recent times.
Whilst I have a deal of sympathy for the plaintiff, it is essential that the plaintiff prove negligence on the part of the defendant. In this regard, I am not satisfied the plaintiff has discharged his onus. The plaintiff alleges in particular that the defendant failed to take any adequate precautions for his safety or exposed him to a risk of damage or injury of which it knew, or ought to have known. The defendant failed to provide a safe floor and/or failed to provide a floor that was safe after the accumulation of water on it. The defendant allegedly failed to place suitable warning signs warning entrants, such as the plaintiff, of the danger of slipping on the floor. Failed to take adequate precautions, so as to ensure the floor did not become slippery when wet. Failed to cover the said floor with some appropriate material, to prevent the plaintiff or other visitors to the premises from slipping on the floor and failed to observe that the plaintiff was in a position of peril in the circumstances and failed to provide a handrail.”
(Beginning with the third sentence, the immediately preceding paragraph in her Honour’s Judgment appears to have been mistranscribed, as it is clear, in the light of the second sentence in the paragraph, that those later sentences do not represent findings of fact on the part of her Honour, but merely recount the particulars of negligence alleged in the Statement of Claim.)
“The issues as I see it turns upon whether the tiles in 1995 were slippery when wet. Whilst the standard of care required of an occupier must be more than a reaction when a danger is made known, I cannot be satisfied on the evidence before me, particularly when Mr. Adams gave evidence that the tiles were of a hard, ceramic type, that he would expect that wear would increase the slipperiness of the surface over time, that the defendant knew or ought to have known of that risk as at 1995.
Whilst it may well be, at the time Mr. Adams performed the test, the wear of the tiles was such as to cause them to be slippery, I cannot be satisfied that as at the date of the accident on 5 December 1995 the tiles which were laid 4 years earlier, which had been deemed suitable for outside use, would constitute a danger to persons using the premises on wet days.
Further, in his evidence before me, the plaintiff described the mechanism of the fall as ‘my left leg went out from underneath me’, whereas the history given to Mr. Neil Adams was ‘His feet simply went from underneath him. He completely lost his balance and fell heavily’. He was unable to recant (sic) to the investigator clearly his precise movements during the slip and fall.
I cannot be satisfied on the state of the evidence what caused the plaintiff’s fall. Whether his left foot went out from underneath him due to the slippery nature of the tiles or whether he simply lost his balance and fell.”
In the Amended Notice of Appeal (OAB 15-17) filed on behalf of the Appellant, the following grounds of appeal were taken:
“1.Her Honour erred in finding it was equally probable on the state of the evidence the Appellant/Plaintiff’s fall occurred on the one hand because of the slippery nature of the tiles or whether on the other hand the Appellant/Plaintiff simply lost his balance.
2.Her Honour erred in finding that the Appellant/Plaintiff had not proved to the civil standard the tiles on which the Appellant/Plaintiff slipped were slippery.
3.Her Honour erred in finding that the Appellant/Plaintiff had not discharged his onus to prove negligence.
4.Her Honour erred in not being satisfied on 5 December 1995 the tiles constituted a danger (were unsafe) to persons using the premises on wet days.
5.Her Honour erred in not finding the Respondent/Defendant knew or ought to have known of the risk of the tiles being unsafe in 1995.
6.Her Honour erred in not applying the principles enunciated by this Honourable Court in Drotem Pty. Limited v. Manning CA 40784/99 (2000) NSWCA 320.”

When the appeal was called on for hearing, Mr. R.S. Toner SC appeared with Mr. J. L. Gruzman for the Appellant and Mr. S.E. Torrington appeared for the Respondent.
Reduced to its most simple form, the Appellant’s submission was that English DCJ erred in that, despite there being no expert evidence contrary to that of Mr. Adams tendered on behalf of the Respondent, her Honour did not accept that evidence, which evidence, so it was suggested (T. 7) “compelled a verdict for the Appellant”.
I am quite unable to accept that submission.
Even if – which, for the reasons to which I shall presently turn, I would not – one were to attribute any weight to Exhibit F and to the opinions contained in it, the simple fact is that Mr. Adams did not, as English DCJ did, turn his mind to the critical issue, namely, whether in 1995 the tiles were slippery when wet. That this is so is demonstrated by the following passage in Mr. Adams’ evidence at trial (Combined AB 66):
“Q. You’ve got nothing on which you can base that sort of statement that the tiles were the same five years later as they were five years beforehand have you? A. Only the nature of the tiles themselves which given the hard nature of the surface would indicate that they wouldn’t be a quick wearing tile.
Q. But you have no idea of the wear rate of that tile is that right? A. I don’t know what the specific wear of those tiles are.
Q. And there is no way in which you could determine what the situation was in 1995 isn’t that right? A. Not precisely, no.”
In Makita (Australia) Pty. Ltd. v. Sprowles (2001) 52 NSWLR 705; Special Leave to appeal to the High Court refused, Heydon JA and I had occasion to consider the nature of the duty of experts in giving opinion evidence and the approach to be adopted by a Court to such evidence when given. In the course of his Judgment supra at [59]-[60] Heydon J wrote:
“59.If Professor Morton’s report were to be useful, it was necessary for it to comply with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions. In Davie v. Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 at 39-40, Lord President Cooper, in a case concerning liability for damage to dwelling houses allegedly caused by blasting operations in the course of constructing a sewer, said:
‘The only difficulty experienced by the Lord Ordinary and developed before us arose from the scientific evidence regarding explosives and their effect. This evidence was given by Mr. Teichman, one of the technical staff of the ICI, with whom a fellow employee, Mr. Sheddan, was taken as concurring. Mr. Sheddan was cross-examined on his qualifications with considerable effect, and the point was taken that Mr. Teichman was truly uncorroborated. I do not consider that in the case of expert opinion evidence formal corroboration is required in the same way as it is required for proof of an essential fact, however desirable it may be in some cases to be able to rely upon two or more experts rather than upon one. The value of such evidence depends upon the authority, experience and qualifications of the expert and above all upon the extent to which his evidence carries conviction, and not upon the possibility of producing a second person to echo the sentiments of the first, usually by a formal concurrence. In this instance it would have made no difference to me if Mr. Sheddan had not been adduced. The true question is whether the Lord Ordinary was entitled to discard Mr. Teichman’s testimony and to base his judgment upon the other evidence in the case.
Founding upon the fact that no counter evidence on the science of explosives and their effects was adduced for the pursuer, the defenders went so far as to maintain that we were bound to accept the conclusions of Mr. Teichman. This view I must firmly reject as contrary to the principles in accordance with which expert opinion is admitted. Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or Judge sitting as a jury, anymore than a technical assessor can substitute his advice for the judgment of the Court. …Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent upon the issue in controversy, will carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’
Lord Carmont expressed ‘complete agreement’ with those views. Lord Russell said (at 42):
‘… The opinion expressed by an expert witness in any branch of technical science depends for its effect on, inter alia, his qualifications, skill and experience in that science. If it appears to be based on a sufficiency of research directed accurately and relevant to a particular issue and to be so supported as to convince a Court of its fundamental soundness and applicability to the particular issue, a Court is entitled, although not obliged, to accept it, even if unsupported by any corroborative expert opinion. Secondly the defenders argued that in the absence of any counter evidence of expert opinion in the science professed by Mr. Teichman the Court is bound to take his opinion as conclusive, and as decisive of the issue. I am clearly of opinion that that argument must be rejected as being contrary to the principles by which the rules of evidence are regulated, and as constituting an unwarrantable encroachment on the judicial function of the Court. I respectfully agree with your Lordship’s observations on that topic.’
Lord Keith concurred with all the opinions expressed.
60.Davie’s case is not be read as reflecting only a principle peculiar the Scottish law. Before it was decided, in R v. Jenkins; Ex parte Morrison [1949] VLR 277 at 303, Fullagar J said that an expert witness must ‘explain the basis of theory or experience’ upon which the conclusions stated are supposed to rest, for, as Sir Owen Dixon said in an extra-judicial address quoted by Fullagar J, ‘Courts cannot be expected to act upon opinions the basis of which is unexplained.’”
As I have earlier recorded, I regard Exhibit F as quite unsatisfactory. Quite apart from the fact that it is not accompanied by a copy of AS/NZS 3661.1 – a fact which makes it quite impossible to test its assertions as to what that Standard contains or for which it provides – I find it quite impossible to understand, first, what are said to have been the results of the tests carried out by Mr. Adams; and, second, what one is to make of the results which are said to have been obtained. Thus, Table 1 is said to record the coefficient of friction of the three types of material to which I have earlier referred - but whether a static, or dynamic, coefficient of friction is not made clear – which co-efficient of friction – whatever it might have been – insofar as it related to rubber was explained by Mr. Adams in the following way in his cross-examination (Combined AB 64):
“Q. For rubber you’ve got greater than one, detailed results not possible? A. That’s correct.
Q. So that you got no finding there at all is that …? A. No that’s a finding that the level of friction with rubber when the tiles were dry was greater than one, the maximum the average minimum was greater than one, the machine doesn’t specify exactly the value is, if it is above one, given that that’s a very high level of available friction.”
Despite the fact that the tiles when dry appear to have exhibited a very high level of available friction, it is said that as the result of the use of the pendulum – the manner and function of which, in the absence of the Standard, remains a complete mystery to me – and by reference to tables – which, in the absence of the Standard, one cannot check – a dangerously low coefficient of friction – on this occasion specified as dynamic – was produced. Given these examples - and others might be given – of the difficulties which I have had in understanding the report and in testing the validity of its asserted conclusions, I must say that that report and its conclusions carry no conviction with me nor do they appear to have carried any conviction with English DCJ.
This being so, it seems to me that English DCJ did not err in failing to accept those conclusions and that it was open to her, in the circumstances, to find, as she did, that the Appellant had failed to make out his case.
For these reasons, I would propose that the Appeal be dismissed with costs.
BEAZLEY JA: I agree with the reasons and proposed orders of Meagher JA and of Powell JA.

**********

LAST UPDATED: 22/08/2002

[2002] NSWCA 244

22 August 2002

Key Legal Topics

Areas of Law

Negligence & Tort

Evidence

Property Law

Legal Concepts

Expert Evidence

Duty of Care

Negligence

Appeal

Costs