New South Wales v Broune

[2000] NSWCA 3

CITATION:	STATE OF NEW SOUTH WALES v BROUNE & ANOR [2000] NSWCA 3
FILE NUMBER(S):	CA 40331/98
HEARING DATE(S):	18 November 1999
JUDGMENT DATE:	18 February 2000
PARTIES :	STATE OF NEW SOUTH WALES v LYNDEN ANDREA BROUNE & ANOR
JUDGMENT OF:	Mason P at 1; Giles JA at 75; Hodgson CJinEq at 76

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 8847/95
LOWER COURT JUDICIAL OFFICER :	Seery ADCJ

COUNSEL:	Appellant: P R Sternberg 1st Respondent: P Menzies QC; R Royle 2nd Respondent: G Curtin
SOLICITORS:	Appellant: Crown Solicitor's Office 1st Respondent: Packer & Austin 2nd Respondent: Tress Cocks & Maddox
CATCHWORDS:	Negligence - occupier's liability - licensed premises - owner's control - unlit stairway - Damages - personal injuries - "cushion" award inappropriate - Costs - Bullock award
DECISION:	Appeal upheld in part - short minutes to be filed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40331/98
DC 8847/95

MASON P
GILES JA
HODGSON CJ in Eq

Friday 18 February 2000

STATE OF NEW SOUTH WALES v
Lynden Andrea BROUNE & ANOR

The plaintiff attended the first session of a sewing course promoted by the Nepean Community College at the premises of Blaxland High School. She arrived in the evening when it was daylight and was directed up to a class upstairs, approached from the car park by two flights of concrete stairs. When the class finished it was dark. So too were the stairs. The plaintiff edged her way down them carrying her belongings, which included a sewing machine that she had to bring to the class. She thought she had reached to bottom step, but was mistaken. She fell and injured her back and leg.

In the District Court damages were recovered against the State as occupier of the school. The defence of contributory negligence was rejected. The plaintiff’s alternative claim against the College resulted in a verdict for the defendant and the State’s claim for contribution against the College was dismissed.

On appeal, HELD
1. The finding of negligence against the State should stand, having regard to the fact that more than one light was out on the stair way and the system for checking and maintenance was deficient. It was open to the trial judge to infer that the negligence caused the plaintiff’s injuries (Betts v Whittingslowe (1945) 71 CLR 637 at 649; Chappel v Hart (1999) 195 CLR 232 at 239, 247, 257, 273-4 applied).

2. The plaintiff was not guilty of contributory negligence.

3. The findings as to damages made by the trial judge should stand except for the award of damages for future economic loss. There was no evidence to support that award and this was not a proper case for a “cushion” award.

4. The appellant’s challenge to the Bullock costs order should be rejected because the plaintiff only joined the College after the State denied that the State was the occupier.

5. The appellant had standing to challenge the finding that the College was not an occupier of the stairway. However, the trial judge’s conclusion that the College had no effective control over the stairway because the lights were subject to an automatic switching system and their maintenance was under the control of an employee of the State was correct. An occupier need not have exclusive possession, but the College did not have meaningful control over the stairs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40331/98
DC 8847/95


MASON P
GILES JA
HODGSON CJ in Eq

Friday 18 February 2000
STATE OF NEW SOUTH WALES v
Lynden Andrea BROUNE & ANOR
JUDGMENT

1    MASON P: The first respondent (the plaintiff) sued the appellant and the second respondent in the District Court. It was alleged that each defendant was the occupier of Blaxland High School and that the plaintiff’s fall in a darkened stairway was caused by its negligence. 2    The plaintiff was at the school in the evening of 22 February 1995 attending the first session of a sewing course promoted by the second respondent, the Nepean Community College (the College). The plaintiff was required to bring her own materials and sewing machine to the class. She came by car, arriving at about 7.30pm when it was daylight. She left her car in the parking area and was directed to go up to the class by climbing two flights of concrete stairs from near the car park to the first floor. 3    The class finished at about 9.30pm. By then it was quite dark. The plaintiff gathered her belongings, which consisted of a large shoulder bag, a plastic bag with sewing materials and a portable sewing machine weighing about 14kgs. She was wearing low-heeled shoes. 4    The plaintiff was the first to get away after class. Not surprisingly, she left by the stairs she had used to get to the class. In her evidence, which was obviously accepted by the trial judge, the plaintiff said that at the head of the stairs there did not appear to be any lighting, except for some light entering the area from the moon and the stars. In view of the poor light, the plaintiff adopted a heel/toe motion to find the head of each stair and each subsequent header. As she proceeded slowly down the stairs to the first landing, she saw what appeared to be a single yellow bulb. It turned out to be a dying fluorescent tube. After negotiating the first flight of stairs, she reached a landing where she turned left to go down the second flight. She then realised that the upper flight of stairs was blocking out all light to the lower flight. In her words, the area was “just like walking down a concrete tunnel … there was no lighting whatsoever, it was just total pitch darkness”. Because of the belongings she was carrying she was unable to grip the handrail of the stairway. She continued her heel/toe motion to find each stair. 5    As she got down the second flight of stairs, towards ground level, she saw a light shining through an opening onto a footpath leading back to the stairs. She assumed that the bottom of the stairway had been reached and she put her right foot forward to walk along the footpath. Unfortunately she had stepped out from the second last step. She fell onto her right leg and buttock, also striking her back. 6    She landed on her buttock with her left foot under her. She screamed out. People arrived and helped her up. She was in excruciating pain, but managed to drive home to her mother’s place and then back to her own home at Winmalee. The next day she went to a doctor and had x-rays. Her injured ankle was wrapped in a crepe bandage. She stayed at home for the next 10 days, being nursed by her mother. When she first walked after about 7-10 days, she felt pain in her back. 7    Initially the ankle remained wrapped in a crepe bandage. Later a physiotherapist splinted her foot to above the ankle. During the initial period the pain was constant, although worse when she walked. 8    Commencing in March 1995 she attended physiotherapy several times a week. An arthroscopy was performed to remove some fibrous material from the ankle joint. Despite rest and physiotherapy, the pain became worse. The plaintiff began to experience pain that shot up her right leg from the ankle as well as pain shooting down her leg from the sacro-iliac joint. During this time her mother had to do practically all the housework that was not done by her fiancé. (Her mother still assists her, spending between 3½ and 5 hours per week helping with shopping, washing and changing bed linen.) 9    The ankle got worse. It was treated with anti-inflammatory medication. Further physiotherapy in 1996 increased flexibility, but did not relieve the constant pain. Swelling was intermittent. Hot weather and exercise increased the low back pain. The plaintiff used Denco-rub and other medications. She was referred to a pain management clinic. There were injections in 1997 by a rheumatologist. 10    The plaintiff wore Reeboks for about 6 months to give support to her right knee. She was unhappy about this because she preferred high heels. By early 1998, when the trial took place, the plaintiff was wearing an insert in her right shoe, something which improved the stability of her right ankle. She now wears flat shoes, not high heels. 11    By the time of the trial, the pain had plateaued. Pain killers were not needed every day, although problems still occur, particularly when the plaintiff has to sit for prolonged periods such as driving or sitting in an aeroplane. 12    Not surprisingly the fairly constant pain suffered by the plaintiff caused sleep disturbance and depression. There were days off work. She put on considerable weight because of her lack of mobility. This problem was attacked, in part, by a liposuction operation.

Findings of the trial judge

13    Seery ADCJ found a verdict for the plaintiff against the appellant on the basis of negligence as the occupier of the school building. A defence of contributory negligence was rejected. 14    It was held that the College was not an occupier of the stairs, and there was a verdict for the defendant on the claim against it. The appellant had claimed contribution or indemnity from the College as joint tortfeasor. It does not seem that the third party claim was expressly disposed of, but it would have to have failed. 15    A verdict totalling $278,399 included the following items of damages:

General damages $65,000
Future economic loss 69,394
Care ( Griffiths v Kerkemeyer ) 112,631

16    The appellant was ordered to pay the plaintiff’s costs of the action, including the costs which the plaintiff was ordered to pay the College as second defendant (a Bullock order). 17    The appellant advanced the following submissions in its challenge to the verdict and orders made against it:

1. The appellant should not have been found to be the occupier of the unlit stairway.
2. The appellant should not have been found in breach of its duty of care.
3. There was no causal link between any negligence and the plaintiff’s injuries.
4. The plaintiff should have been found to be contributorily negligent.
5. The following steps to or components in the damages award were erroneous:
(a) the conclusion that the plaintiff suffered a back injury as well as an injury to her ankle;

(b) the award of general damages;

(c) the award for future economic loss;

(d) the award for care.

6. The Bullock order for costs should not have been made.
7. If despite the submissions in 1 to 3 above the appellant was liable to the plaintiff, the College should have been found to be an occupier of the unlit stairway together with the appellant and should have been ordered to contribute to any damages payable by the appellant to the plaintiff.

18    During the hearing of the appeal the plaintiff was given leave to file a cross-appeal against the other two parties. Defensively, the plaintiff sought recovery against the College as occupier in the event that the appellant succeeded against the plaintiff on the ground that that appellant was not an occupier of the stairway. The plaintiff also challenged the computation of damages for care, contending that they involved mathematical error. 19    The College also sought leave at the hearing to file a defensive cross-appeal in relation to damages, taking up the appellant’s appeal in that respect. The Court indicated that it would consider this application in its reserved judgment, should it be necessary to do so.

Appellant’s challenges to liability findings

20    It is convenient to address compendiously the appellant’s challenges to the findings made as to liability. These challenges are advanced in the first three grounds of appeal summarised above (par 17). 21    The appellant was sued as owner and occupier of the school. The principal use of the site was as a State high school of which the appellant had general control both day and night. There was no suggestion that it had leased the site to the College. Seery ADCJ inferred that the College was what he described as a “permissive occupant”, in the sense that its occupancy on the night in question extended no further than the classrooms and the office used by the co-ordinator of the College. 22    The principal evidence about the state of lighting was that of the plaintiff, who was accepted as to her account of the blackness of the lower stairway. 23    Lighting at the College was regulated by an automatic switching system under the exclusive control of employees of the appellant. There was a maintenance man (Mr Audet) employed by the appellant, who worked during the day time and who would presumably replace light globes, at least if they were drawn to his attention. 24    The transcript containing Mr Audet’s evidence was not put before us. In these circumstances, I rely solely upon the trial judge’s findings (at RB 220, 233, 234) which appear not to be in issue. Mr Audet was told there had been an accident the following day. He found that some of the lights were not working. In respect of at least one light, the tube was not sitting in its holder and he pushed it back in. This was not an uncommon event. Mr Audet knew that each fluorescent light gave illumination for about one year and that a yellow glow could be seen before the light ceased to give any illumination. He inspected the lights a couple of times a year. 25    The plaintiff’s evidence that the lights were not working properly was further corroborated by the evidence of Mr Reginald Hibberd. He used to assist his wife, who was the co-ordinator of the College. On the evening in question it was he who had given the plaintiff the direction to use the stairway to get from the car park to the classroom. He confirmed that he discovered after the accident that there was a light out in the area and that the stairway was dim at the bottom. 26    In November 1997 the plaintiff arranged for the stairway to be examined by a consulting engineer, Mr Beckett. (It was not suggested that any structural changes had been made between the date of the accident and the date of his inspection.) Mr Beckett described the stairway as a required fire escape. He observed that the risers in the concrete stairway had an irregular sequence (outside the limits required by the relevant building code, Ordinance 70). There was provision for three fluorescent lights, one at the top, one on the landing and one at the bottom. Mr Beckett found that the level of illumination failed to meet the minimum lighting requirements of the appropriate Australian Standard. The trial judge obviously accepted his evidence, which was to the effect that if all the lights had been operating they would not have provided adequate lighting which complied with the Standard. In Mr Beckett’s opinion, the area needed additional lights above the top end hand rail and affixed to the wall. 27    In view of these facts, the appellant’s submission that the trial judge erred when finding the appellant liable was a bold one. 28    The appellant, through the Department of Education, was the occupier of the school. On the evidence, it had uninterrupted control of the whole site and it controlled and managed the lighting at the site during the time when it was made available to the College. The College used only part of the site, and its right to do so was not the subject of a lease or any formal arrangement. 29    As an occupier the appellant owed a general duty of care to those who entered the site, including those who entered for the purpose of access to the part of the site used by the College (Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, Phillis v Daly (1988) 15 NSWLR 65). 30 His Honour’s conclusion as to breach of duty was expressed in the following terms:

Concomitant with the duties set out above was the need for a system which examined the lights more than twice a year particularly as a yellow glow in a fluorescent tube indicated that the tube needed replacement. In addition the undisputed evidence of Ronald Beckett was that if all the lights had been operating they would not have provided adequate lighting. Thus it was negligent of the first defendant not to upgrade the lighting to more than the adequate level so that if one light in the vicinity of the stairway went out the remaining lights would provide adequate lighting. I became convinced of the first defendant’s breach of duty in this regard when Ronald Beckett gave evidence that a considerable time after the plaintiff’s fall he attended at the Blaxland High School and there was ample evidence of a lack of maintenance at that time. Such observations by Ronald Beckett demonstrated a significant laxity towards safety issues with regard to the lighting. In addition if the defendants’ witnesses are to be believed there was no torch used by anyone who came to the plaintiff’s assistance. The absence of a torch for use by staff during any lighting malfunction may be further evidence of this laxity by the first defendant.

It is true that there is no direct evidence of the time during which the relevant light was not functioning but as was pointed out by Kirby J in Romeo v Conservation Commission of the Northern Territory [1998] 72 ALJR 208 at 236E:

“normally, however, there is no direct evidence on the point and in any case the question is one for objective assessment….”
On the balance of probabilities I find that had the first defendant provided a better system of maintenance and lighting the injury suffered by the plaintiff would have been avoided. The objective evidence clearly shows a breach of duty by the first defendant in respect of the evening students.

31    I think the appellant is justified in its criticism of that part of the passage which relies upon “ample evidence of a lack of maintenance” at the time of Mr Beckett’s inspection in November 1997, over two and a half years after the accident, and upon general laxity so far as evidenced by absence of a torch. 32    However, the conclusion of negligence is well justified in any event, having regard to the primary facts which have already been recounted. The simple fact is that, to the knowledge of the appellant, the school was being used at night for the purposes of the College. The stairway was an appropriate means of ingress and egress given its location near the carpark and its role as a fire escape. It was dark, particularly at the bottom, because the light at the landing was on its last legs and the light at the bottom was not functioning at all. Even if the lights had all been on, their capacity was inadequate having regard to the appropriate Australian Standard. The capacity of lights to wear out or fail is obvious and was actually acknowledged by Mr Audet. The risk of injury was foreseeable once the College was permitted to use the school at night, and the means of preventing it were readily at hand. 33    The case is far removed from Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 upon which the appellant relied. There the unfenced cliff was an obvious risk where the plaintiff failed to exercise reasonable care for his own safety. Here the stairway was for use for access, and the suggestion that the danger was obvious to the user (in the sense discussed in Phillis v Daly (1988) 15 NSWLR 65) must be rejected once it is recognised that the relevant danger was the obscure bottom step. 34 His Honour recognised (RB 238E) that there was no direct evidence of the time when the lights on the landing and at the bottom of the stairs ceased to function effectively. The appellant submitted that the finding of negligence was not open in view of an earlier finding (at RB 232) in the following terms:

Submissions were made by Counsel for the plaintiff that the first and/or second defendant should have erected a warning sign or erected a barricade at the head of the stairs. However, there was no evidence before me that an employee of the first or second defendant knew, or ought to have known, of the defect in the lighting at the time of the plaintiff’s fall. Furthermore there was no evidence before me as to the length of time the lights had not been functioning prior to the plaintiff’s fall. It was not therefore shown that either defendant had the ability to take these precautions before the plaintiff commenced to walk down the stairway. I therefore reject these submissions.

The appellant also submitted that this passage disclosed that his Honour erred in relation to causation.

35    I agree that the two passages I have set out lie somewhat uneasily together, if read in their totality. Nevertheless, the thrust of the judgment is clear. The passage at RB 232 which I have just quoted was addressing the particular submission recounted in the first sentence. The second sentence was addressing the specific time frame of the evening in question and, in that context, acquitting the employees of each defendant of a finding of negligence based upon permitting people to use the stairs in circumstances where at the time they knew or ought to have known of specific defects in the lighting. The earlier passage, however, provides the basis for a conclusion of negligence in failing to have a stairway with adequate lighting when all lights were on and a maintenance system whereby such extensive malfunctioning would be detected and corrected. 36    The absence of evidence as to the length of time that the lights had not been functioning prior to the plaintiff’s fall did not preclude his Honour from inferring negligence, and from inferring that such negligence caused or materially contributed to the plaintiff’s fall. The appellant’s duty was clear. In the present context it meant that it was bound to exercise reasonable care to ensure the safety of entrants using the stairs at night time. The malfunctioning of two, perhaps even three, of the three lights in the stairway was established by inference from the plaintiff’s accepted evidence and corroborated to a degree by the evidence of Mr Hibberd. His Honour was entitled to find as a fact that a system which involved examining the lights twice a year was itself deficient if a fluorescent tube lasted no more than one year and if the failure of one tube plunged parts of the stairway into darkness. Here there was more extensive malfunctioning, inconsistent with such recent gloom that there had not been time to detect and correct it. He was also entitled to infer as a probability that this deficiency in system was the cause of the stairway being left in darkness at the time of the accident (see Betts v Whittingslowe (1945) 71 CLR 637 at 649; Chappel v Hart (1999) 195 CLR 232 at 239, 247, 257, 273-4; Kocis v S E Dickens Pty Ltd (t/as Coles New World Supermarket) (1996) ATR ¶81-382 at 63,303). Cumulatively and alternatively, his Honour was entitled to find, and did find, that the level of lighting in the stairway was deficient even if operating to maximum capacity. In these circumstances it was open to his Honour to infer that breach and causation had been established on the probabilities.

Appellant’s challenge in relation to contributory negligence

37    The plaintiff readily accepted that she knew that it may be dangerous for her to go down the stairs if (as was the case) she had no free hand to hold a handrail. She obviously knew it was dark. Nevertheless she believed that she could negotiate the stairs by moving one foot forward until she found the edge of the next step. 38    The trial judge found that the plaintiff’s conduct had to be viewed against the fact that she was directed to only one means of access to the sewing class. The stairs were in close proximity to the area where her vehicle was parked. It was convenient to use those stairs because of what she had to carry. His Honour found that the plaintiff was not guilty of contributory negligence. She was entitled to attempt to negotiate the stairs despite the small risk of injury involved and she proceeded with such a degree of caution as not to amount to contributory negligence. 39    The appellant challenged this finding. It submitted that the plaintiff should not have ventured down the stairway and that her decision to do so made her responsible for her own injuries. It was suggested that she should have gone back to the class and reported that the stairway was in darkness. 40    In my view the trial judge was entitled to reject the defence of contributory negligence. I am content to adopt his reasons, adding that the plaintiff’s injury was the very hazard which proper lighting was designed to avoid in this fire escape with its irregular steps. I reject the suggestion that it was incumbent upon the plaintiff to return to the class, report the darkness in the stairway and await the repair or replacement of the non-functioning lights. There is no evidence that anyone at the school that night was aware of alternative means of egress. I assume that such means existed, but it does not appear to have been in the vicinity of the classroom used for sewing instruction.

Appellant’s challenges to award of damages

41    As indicated, the appellant challenged the award of damages in four respects. 42    The appellant submitted that his Honour erred in accepting the plaintiff’s evidence that the accident caused a low back injury as well as an injury to her ankle. The appellant relied upon the absence of early complaints to medical practitioners concerning back pain. In my view, the primary judge was entitled to accept the plaintiff’s evidence that she fell on her back. He made an express finding to this effect, based upon observing her give evidence on this matter (RB 206). She gave evidence of immediate back pain. The evidence of early complaint was corroborated by the plaintiff’s fiancé. Dr Ganora believed that the plaintiff had sustained an annular tear and he agreed that little force would be required for such an injury. On all this material, there was no error in the finding of a low back injury from the fall. 43    The submission that the award of general damages was excessive is based upon the challenge to the finding as to back pain. If that challenge is rejected, then there is nothing to show that the award was excessive. 44    The appellant submitted that his Honour erred in awarding damages for future economic loss. I agree. 45    The plaintiff had been admitted as a solicitor in 1975. She had worked in a variety of positions, principally but not exclusively in the litigation area. For ten years she worked for different agencies in the public sector, including the Crown Solicitor’s office. For the next ten years she was employed in private practice by a number of firms. In July 1994 she commenced working at NRMA Member Legal Service. In that role she gave advice to NRMA members covering everything from parking tickets to serious criminal charges involving motor vehicles. Occasionally she would brief counsel. She described that job as “essentially sedentary”. 46    Evidence was given by Mr Ess, the plaintiff’s immediate supervisor. Mr Ess said that the plaintiff’s position had been abolished in a restructure following an enterprise agreement. She was offered immediate redundancy or redeployment for twelve months during which time she was at liberty to apply for any positions that became vacant within the NRMA. If not appointed during that 12 month period she would be retrenched. She chose the latter option. The trial occurred in February 1998 and the redeployment year was due to end in May of that year. At that stage the plaintiff had not found any position and Mr Ess agreed that matters looked “a little bleak”. In the light of this evidence, the trial judge was entitled to find (as he did) that there was a real risk of the plaintiff being retrenched. 47    At trial the plaintiff claimed for future economic loss on the basis of $200 per week for 816.4 weeks less 15% for vicissitudes. $200 per week represented one quarter of her agreed per week net past earnings. The period of 816.4 weeks represented the residue of the period of paid employment to age 60 (she was aged almost 45 at trial). 48    In considering this claim, his Honour took into account the possibility that the plaintiff’s continuing disabilities might cause difficulty in obtaining a similar position with a similar remuneration. He also took into account the fact that she might not find an employer as accommodating as the NRMA in the future. His Honour balanced against this a 50% chance of further improvement in the plaintiff’s physical condition, a medical prognosis which he was entitled to accept. He concluded:

In view of all of these matters I find the calculation by Counsel for the plaintiff to be excessive and I therefore award the plaintiff 1/2 of the amount claimed, namely $100 per week which produces an amount of $69,394 for future economic loss.

49    A principal medical witness for the plaintiff was Dr Ganora who is a consultant in rehabilitation medicine specialising in the musculo skeletal area. He is an orthopaedic physician. The trial judge accepted his evidence. Dr Ganora said that the plaintiff should avoid heavy lifting and prolonged uninterrupted sitting. Walking was a good activity. He described office work in which the plaintiff would be able to get up and down as acceptable. He thought that she should use a back pack to carry heavy files or books to court. Dr Ganora estimated the possibility of further improvement in the lower back at 50%. 50    In my view, the trial judge’s reasoning (such as it is) does not sustain the award of nearly $70,000 damages for future economic loss. It represents 1/8th wage loss over the balance of the plaintiff’s anticipated working life. It was incumbent upon the plaintiff to lead evidence to show the probability that her residual disabilities stemming from the accident would be productive of financial loss. The evidence was simply lacking on this vital issue, in a context where there is no reason to think that it could not have been adduced if favourable to the plaintiff’s case (cf Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389). In the absence of evidence, I would not infer that a person with the plaintiff’s breadth of experience is unable to obtain appropriate and remunerative employment as satisfactory as that enjoyed at the NRMA at date of trial. Dr Ganora’s evidence indicates capacity to do a wide range of legal work, including litigation work, without likely incapacitation stemming from the continuing impact of the tortious injuries. The possibility of temporary interruption if the likely NRMA entrenchment eventuated was not itself a loss capable of being laid at the appellant’s door. This was not one of those cases where it was appropriate to make a global award in the nature of a cushion because the uncertainties of a plaintiff’s position were complex and problematical, yet generally provable. 51 Damages for care were calculated as follows:

Past care (161 weeks x 14 hours x $17.50) $22,540

Interest thereon ($22,540 x 10% x 3 years 2) 3,381
Future care (1240 (multiplier) x 4 hours x $17.50) 86,800
$112,631

52    The appellant submitted that this award is excessive and that there was a fundamental inconsistency in allowing 14 hours per week for past care and 4 hours per week for future care. 53    The allowance was also challenged as excessive having regard to the evidence of the degenerative underlying conditions. I would reject this challenge because it essentially raises the dispute about the back injury on which the plaintiff succeeded. 54    The judgment lacks explicit findings as to the number of hours of care required by the plaintiff. His Honour simply found that the calculations by counsel for the plaintiff were “appropriate”. 55    In her Part 12, rule 4A Particulars, the plaintiff claimed on the basis of 6-8 hours per week from the date of accident (RB 13(c)-(d), providing the following relevant details:

As a result of her disabilities the Plaintiff has been unable to perform several household tasks and these must be performed for her. Such duties and the persons who perform them are cleaning the pool, emptying the filter box, chlorinating the pool, lifting heavy items and moving them (Mr Richardson), stripping the bed, changing the sheets, washing and wiping up, turning the mattress, doing the washing and carrying it down to the line, sweeping, watering garden and plants, putting out the bin and vacuuming (Plaintiff’s mother) and mowing the back lawn (Mr Richardson).

56    The evidence of the plaintiff was of a need for very extensive care in the ten days following the accident, being care provided mainly by her mother (WB 9, 69). Thereafter, when the plaintiff had returned to work, for about six months the plaintiff’s mother helped the plaintiff by driving her to the station and doing housework, washing and vacuuming, making and turning beds and washing up (WB 11-12). I am not aware of the plaintiff giving any estimate of the time involved. 57    The plaintiff’s mother Mrs Joan Broune corroborated the plaintiff as to the extensive assistance required and given in the fortnight after the accident (WB 209). This was estimated at twenty hours per week (WB 211). Since then she had spent between 3½ and 5 hours per week helping with turning and remaking the linen on beds, hanging out heavy washing and doing occasional housework and gardening (WB 209-10). Mrs Broune indicated that her daughter was starting to do more, albeit with difficulty (WB 212, 216). In this context, reference should also be made to Dr Ganora’s opinion that the plaintiff had a 50% prospect of further improvement to the lower back. 58    The evidence of Mr Richardson, the plaintiff’s fiancé, has not been reproduced. It is summarised in the judgment (RB 222-4). When he visited the plaintiff he did all of the washing up and cooking. He raked leaves and pruned trees. When carrying was required he did it. He estimated the time spent at 7-8 hours per week over the 3 years prior to trial, with the time reduced to about 3 hours per week at time of trial. From these and other indications, the trial judge concluded that it would appear from his evidence that the plaintiff’s condition was gradually improving. 59    As indicated, the appellant challenged the award for care as excessive. The plaintiff cross-appealed on the basis that there is a mathematical error in calculating the award for past care (including interest thereon). The current figures should be $39,445 (instead of $22,540) for past care at the rate of 14 hours per week and $5916 (instead of $3381) for interest thereon. I do not understand the appellant to dispute the mathematics. 60    The matter is quite unsatisfactory because of absence of factual findings on the critical issue. However a retrial should be avoided if possible. Doing the best I can, I would set aside the award for past care and interest and award the plaintiff at the rate of 14 hours per week for two weeks and 10 hours per week to date of judgment below. For the future I would leave the award undisturbed on the basis that it involves a (possibly generous) estimate of the trial judge based upon evidence which he was entitled to accept.

Appellant’s challenge to costs order

61    The trial judge ordered the appellant to pay the plaintiff’s costs of the action including the costs which the plaintiff was ordered to pay the College. The reason given was “because in my view it was reasonable in the circumstances for the plaintiff to sue both defendants”. 62    The appellant submitted that this reasoning betrayed error in the light of the principles stated in Gould v Vaggelas (1985) 157 CLR 215 at 229. The appellant submitted that nothing it had said or done had led the plaintiff to sue the College. 63 This submission became untenable when it was pointed out that the plaintiff had initially sued the appellant alone. It was only when the appellant pleaded by way of defence that it was not the occupier but the College was the occupier, and joined the College by way of Third Party Notice, that the plaintiff sought and was granted leave to amend her claim to join the College as a second defendant and to plead claims against it in the alternative. The claims mirrored those propounded by the State in its Third Party Notice.

Was the College also an occupier? If so, should it contribute towards the damages?

64 This submission affected the interest of the College. The appellant submitted that the College was also an occupier of the stairway, that it breached its duty of care to the plaintiff and that it should contribute to the damages payable to the plaintiff. 65 Since the appellant and the College were co-defendants sued in the alternative as occupiers, since the issue of contribution was raised at trial in the appellant’s Third Party Notice and since the appellant has raised the issue in a notice of appeal joining the College, it is open to the appellant to press its claim for contribution under the Law Reform (Miscellaneous Provisions) Act 1946 notwithstanding the verdict in favour of the College entered at trial. The fact that the College was (as a co-defendant, sued as occupier in the alternative) party to the issues raised between the plaintiff means that it is unnecessary to consider the application or correctness of Berkeley Challenge Pty Ltd v Potbury (unreported, Court of Appeal, 18 December 1997) in the light of James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 73 ALJR 238. 66 The trial judge found in the College’s favour on the basis that it was not an occupier of the stairway. His Honour described the College as merely a “permissive occupant” of the class rooms and the office used by the College co-ordinator. The factual basis of these conclusions is expounded at RB 234-6. The lights were all subject to an automatic switching system and their basic maintenance was attended to by Mr Audet. If lights were not functioning, Mrs Hibberd the co-ordinator left a note under the principal’s door. Having regard to these primary facts the trial judge held that the College had no effective control over the premises and that the control of the lights always remained with the appellant. Citing Lipman v Clendinnen (1932) 46 CLR 550 and Wheat v E Lacon & Co Ltd [1966] AC 552, his Honour said that there must be some degree of control over the relevant area in the premises:

Upon the evidence before me I am not satisfied that the second defendant had any control over any part of the school and in particular had no control over the stairway or the lights in the vicinity of the stairway. In fact the lights and the maintenance of the lights always remained under the control of Anthony Audet. The tools to maintain the lights also remained under his control. I therefore find that the second defendant was not the occupier of any relevant area in the school.

67    In challenging these conclusions, the appellant referred us to the evidence that Mr Hibberd, the husband of the College co-ordinator, directed persons such as the plaintiff to use the stairway to get from the car park to the class. This, coupled with Mrs Hibberd’s evidence that she would leave notes for the school principal if lights were not functioning, was said to show sufficient control over the stairway by the College to make it an occupier for the purposes of attracting a duty of care towards its students.

68    The appellant relied in particular upon the Canadian case of Snitzer v Becker Milk Co Ltd (1976) 75 DLR (3rd) 649. There the plaintiff walked from the parking lot of a shopping plaza across a sidewalk and into a milk store, where he purchased a newspaper. After leaving the store he tripped and fell on the sidewalk. In proceedings before Lerner J of the Ontario High Court of Justice he obtained judgment against both the owner of the shopping plaza and the tenant of the milk store. The tenant of the milk store was held to be under a duty to see that the sidewalk outside its premises was safe for the purposes of its invitees. In my view this case does not assist the appellant. It deals with the specific duty of care owed by an invitor to an invitee, and thus no longer represents the law in Australia. Lerner J held (at 656) that the tenant of the milk store owed its duty to the plaintiff as invitor and that such duty existed in relation to the access to the store “irrespective of the lack of control Becker had over the sidewalk in front of its premises”. 69    An occupier need not have exclusive possession, and there may be shared occupation. What matters is that the person has “the immediate supervision and control and the power of permitting or prohibiting the entry of other persons” (Wheat v E Lacon & Co Ltd at 879, citing Salmond on Torts, 14th ed , p 272) and the control need not be total. So the grantee of a right of way may be an occupier; because “a right to invite a person to go over the land of another … denotes a degree of possession or control over that land sufficient to require the invitor to be classified as an occupier vis-a-vis any of his invitees” (Kevan v Commissioner for Railways (1972) 2 NSWLR 710 at 713, founded on Gorman v Wills (1906) 4 CLR 764). 70 It will be a question of fact in each case whether there is a sufficient degree of control to make the person an occupier. No doubt the College had the benefit of the stairway, as part of the school building and indeed the entire site, for access for those attending its classes But this was not pursuant to a grant of a right of way which entitled the College to make or improve the access, or to do anything about its safety. In a sense the College could invite those attending its classes to use the stairs, but in the present case that did not denote possession or control over the stairs. On the evidence as a whole, the College did not have any meaningful control over the stairs. It could suggest, but not dictate, use or non-use of the stairs. It could not do anything to alter the configuration of the stairs. Of most present relevance, it could not do anything to improve the lighting, or even to have malfunctioning lights attended to beyond leave a note for the school principal. 71 There may be circumstances where a duty of care extends to giving directions as to the means whereby the person directed may safely traverse a piece of land over which the directing party has no occupation or control. But the present case was pleaded and fought on the basis of a duty stemming from occupation. The finding of fact that the College was not the occupier of the stairway should not be disturbed. 72 I would add that, even were I of the view that the College was an occupier of the stairway, I would not conclude that it was just and equitable that it should contribute towards the plaintiff’s damages. The passage set out at par 34 above acquitted the College of any knowledge of the deficiency of the lighting in the stairway. It was the first night of the new term at the College. The appellant had exclusive control over the lighting system and it was its employee Mr Audet who had the responsibility to attend to general maintenance. These matters meant that the College was generally entitled to rely upon the appellant to ensure the safety of the means of access to the rooms actually used for College teaching. 73 It is not necessary to consider the plaintiff’s defensive cross-appeal against the College, or whether the College should have leave to file its defensive cross-appeal in relation to damages. 74 Accordingly, the appeal against the first respondent should be upheld, but only in part. The appeal against the second respondent should be dismissed. The verdict in favour of the first respondent/plaintiff against the appellant must be set aside and a new verdict (calculated in accordance with these reasons and adjusting for the mathematical error referred to in par 59) substituted. The appellant should pay the second respondent’s costs of the proceedings in the Court of Appeal, including the costs associated with the defensive cross appeals. As between the appellant and the first respondent/plaintiff there should be no order as to the costs of the proceedings in this Court. The appellant should file agreed short minutes within 14 days. If agreement cannot be reached by that date, each party should, by that date file submissions as to the points of disagreement. 75 GILES JA: With the qualification next mentioned, I agree with Mason P. I prefer to leave for another day the appellant’s standing to challenge the verdict for the College against the plaintiff and otherwise press its claim for contribution (see para 65 of his Honour’s reasons). It is sufficient that, making all necessary assumptions in favour of the appellant, the verdict for the College should not be disturbed. 76 HODGSON, CJ in Eq.: The circumstances of this matter are set out in the judgment of Mason, P, with which I agree. I would add a few comments of my own concerning negligence and causation. 77 Mr. Hibberd gave very clear and confident evidence that, when he went to where the plaintiff had fallen, one light at the bottom of the stairs was off, but all other lights in the vicinity were working properly. This conflicted with the plaintiff's evidence that there was no light either at the top or the bottom of the stairs; and that the only other light for the stairs, at the landing half way down, merely gave a yellow glow. Mr. Hibberd's evidence also conflicted with Mr. Audet's evidence that there were several lights not working around the stairway when he carried out an inspection the next day. The trial judge did not explicitly resolve this conflict. 78 If the plaintiff had established no more than that one light was not working, then it would be doubtful if a finding of negligence could be justified, and extremely doubtful if a finding of causation could be justified. 79 However, as Mason, P has pointed out, the judgment as a whole demonstrates acceptance of the plaintiff's evidence in general; and the reference to "a yellow glow in a fluorescent tube" in the passage quoted by Mason, P at par.30 strongly indicates that he accepted this particular aspect of the plaintiff's evidence. Accordingly, as Mason, P has said, the judgment of the trial judge indicated that he found, contrary to Mr. Hibberd's evidence, that at least two and possibly three lights in the vicinity of the stairs were not in order. 80 Furthermore, the allegation in the Statement of Claim was inter alia that the appellant failed to provide adequate lighting of the flight of stairs. The trial judge found breaches in not having a system which examined the lights more than twice a year, and not having a level of lighting such that, if one light went out, the remaining lights would be sufficient. 81 It would I believe have been open to the judge to find that, if there had been a proper system of examination, then more probably than not there would not have been at least two lights out of order together; and also to find that, if there had been a level of lighting which would have been adequate notwithstanding the loss of one light, then more probably than not the loss of two lights together would have left sufficient light to prevent this accident. I believe one can reasonably read the judgment as finding that, but for the two breaches, the accident would on the balance of probabilities not have happened; and in my opinion, that finding was justified on the evidence.

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