Perkovic v Proprietors of Strata Plan 8806

[1999] NSWCA 153

CITATION:	Perkovic v Proprietors of Strata Plan 8806 [1999] NSWCA 153 revised - 28/05/99
FILE NUMBER(S):	CA 40146/98
HEARING DATE(S):	17/05/99
JUDGMENT DATE:	27 May 1999
PARTIES :	Cilija Perkovic v Proprietors of Strata Plan 8806
JUDGMENT OF:	Handley JA at 1; Sheller JA at 2; Fitzgerald JA at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	5076/96
LOWER COURT JUDICIAL OFFICER:	George ADCJ

COUNSEL:	M J Finnane QC/J O Anderson (Appellant) B M J Toomey QC/ A G Jamieson (Respondent)
SOLICITORS:	Martin Bell & Co (Appellant) Dunhill Madden Butler (Respondent)
CATCHWORDS:	Negligence; duty of care; breach of duty; fall on wet staircase; suitability of stair surface; unsuspected defect.
DECISION:	Appeal dismissed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA40146/98
DC 5076/96

HANDLEY JA
SHELLER JA
FITZGERALD JA

Thursday, 27 May 1999

Cilija PERKOVIC v PROPRIETORS OF STRATA PLAN 8806

JUDGMENT

1   HANDLEY JA: I agree with Fitzgerald JA. 2   SHELLER JA: I agree with Fitzgerald JA. 3   FITZGERALD JA: On Tuesday 6 December 1994, the appellant slipped and fell as she descended an internal staircase in a home unit building in which she was a tenant. At the time, she was taking a bag of rubbish out, carrying it in her right hand. The staircase, which was constructed when the building was erected in 1974, had treads which were fully covered by tiles. At the time when the appellant slipped and fell, injuring herself, the tiles on the tread on which she slipped were wet. There was no evidence that the respondent, or any person acting with its authority, had wet the stairs, or that the respondent knew or ought to have known that they were wet. Because she did not look down, the appellant did not notice that the tiles were wet until after she had fallen. Further, she was not using the handrail, which was on the right hand side of the staircase as she descended. 4   The staircase was part of the common property, for which the respondent was responsible. An acting judge of the District Court dismissed the appellant’s claim against the respondent on the basis that it had not been shown to be negligent, as the appellant alleged. This appeal is brought from that judgment. 5   The respondent accepted that the trial judge’s critical findings cannot be upheld. His Honour said:

“The question that then worries me is whether or not I ought to find the body corporate would be in breach of the duty of care that it owes to persons upon its property in circumstances where its stairs as constructed comply with the then relevant building codes, as constructed comply with the now relevant building codes, and the surface of which complies with the presently current Australian Standards in relation to such surface conditions.
I do not believe that I could reasonably impose a level of care that exceeds those requirements. …”

6   In an earlier passage dealing with the same topic, his Honour addressed questions which the respondent “… should … have asked of … experts…”, and continued:

“… And, if a reasonable question to have asked was “do these stairs comply with the relevant building codes, firstly when they were built, and , secondly, as presently apply, it seems to be common ground between the three experts assisting the Court that the answer to both those questions would be yes, the stairs, as constructed, comply with the present building code of Australia. So, in terms of the actual construction of the stairs, it seems to me that, had the body corporation asked that question of an appropriately qualified person, they would not have received an answer that would have caused them concern, had they been even aware of the existence of an Australian standard code which is “The Australian and New Zealand Standard, AS-NZS 3661.1 1993, Slip Resistance of Pedestrian Surfaces requirements”, had they even been aware of the existence of that code, and had they asked the further question: “Do our stairs comply with the relevant Australian codes?”, it seems that, on the evidence of all the witnesses, the answer to that question would also be yes.”

7   Stripped to its essentials, the submission for the appellant was that the trial judge misapprehended the evidence of the three experts who gave evidence, and that their evidence in fact disclosed that the tiled stairs were inherently slippery and dangerous when wet, and did not comply with the applicable building requirements at the time when the unit building was constructed or any time thereafter, up to an including the date of the appellant’s fall. It was argued that the appellant should have ascertained that the stairs were dangerous by consulting appropriate experts, and that its failure to do so was a breach of the duty of care which it owed to the appellant. 8   The respondent accepted that a duty of care existed but submitted that, even if the stairs were defective as alleged by the appellant, she had failed to prove that the respondent was negligent. The respondent did not build the building but became owner of the common property after the strata title plan was registered and there was nothing to indicate that it either knew or ought to have known that the tiles were slippery when wet, a matter emphasised by the absence of any suggestion that any other person had slipped in the 20 years between the construction of the building and the appellant’s accident. 9   It is possible that the decision of the High Court in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313. will require reconsideration of the decisions of this Court in Stannus v Graham Unreported decision of the Court of Appeal 27 July 1994. and the earlier cases there referred to. That is not a task which need be undertaken on this occasion. The respondent was not the appellant’s landlord and she neither pleaded not proved the existence of any other contractual relationship between them. This appeal falls for decision by the application of established principles of the law of evidence to uncomplicated facts. 10   A risk of injury to a person descending stairs, perhaps by his or her own inadvertence or negligence, is, of course, reasonably foreseeable. Both the appellant and the respondent would have been aware of that risk. It does not necessarily follow that the person responsible for the condition of the stairs is liable if an injury occurs. McAllister v the Proprietors of Strata Plan No. 8092 (CA40795/96, unreported, 19 October 1998.) The duty imposed by the law of negligence is a duty to take reasonable care, and the decision concerning what reasonable care required depends on the evidence, including evidence of what is known or ought to have been known by the party alleged to have been negligent. 11   On the evidence, there was nothing to alert the respondent to a need to take any action or advice in relation to the suitability of the surface of the stairs and its failure to do so in the circumstances was not a breach of any duty owed to the appellant. 12   The appeal should therefore be dismissed, with costs.