Santer Pty Ltd v Kerry Louise Swanson No. SCGRG 93/636 Judgment No. 4048 Number of Pages 3 Negligence

[1993] SASC 4048

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MULLIGHAN J

CWDS
Negligence - respondent injured when falling on steps in a passageway of an hotel - action in negligence for damages for personal injuries - possible conflict in evidence as to whether lights illuminating the steps were operating - resolved in favour of the respondent - no error in reasoning - evidence justified finding that lights were not on at the time of the fall - appeal dismissed.

HRNG ADELAIDE, 13 July 1993 #DATE 22:7:1993
Counsel for appellant:     Mr R W Evans
Solicitors for appellant:    Phillips Fox
Counsel for respondent:     Mr M S Blumberg
Solicitors for respondent: Lempriere Abbott Mcleod

ORDER
Appeal dismissed.

JUDGE1 MULLIGHAN J This is an appeal against the judgment entered in favour of the respondent by a learned Special Magistrate sitting in the Magistrates Court (Civil Jurisdiction) on 26th March 1993 for $17,000 in an action for damages for personal injuries brought by her against the appellant. 2. The appellant, at all material times, conducted the hotel business at the Grange Hotel. On 8th October 1990 the respondent went to the hotel with her husband and some friends at about 6.00 pm, after a day at the races, to have a meal. They had a drink in a bar whilst waiting for the dining room to open and at about 6.30 pm left the bar and walked through the front foyer of the hotel and then along a passageway to the restaurant at the hotel. There are two steps leading from the foyer to the passageway. This journey was without incident and the respondent and her companions had their meals. Upon leaving the restaurant, the respondent, her husband and two of the others retraced their steps along the passageway intending to enter the foyer and leave the hotel by the front door. The other two left by an entrance from the street directly into the restaurant. The respondent fell on the steps and was severely injured. She brought the action against the appellant in negligence. The crucial issue at the trial was whether two spotlights above the steps were on or off at the time the respondent fell. If they were off, it is conceded that the appellant was guilty of negligence. If they were on the respondent could not succeed in her action. Damages were agreed at $17,000. 3. The respondent and her companions gave evidence except one woman who was not available and no inference was, or could, be drawn from her absence from the witness box. Two members of the staff of the hotel also gave evidence. There was a third member of the hotel staff, who was present on the night in question, Mr. De Sailly, the duty manager, but by the time of the trial his whereabouts were unknown and so he did not give evidence. 4. There was overhead lighting in the foyer, in addition to the two spotlights, and all of these lights were operated by the same switch with the consequence that if the lights in the foyer were turned off, the spotlights could not be on. 5. The evidence of the respondent and the other members of her party all said that the spotlights were not on when she fell. Soon after the fall, within a minute or so, the two members of staff entered the foyer and went to assist the plaintiff. According to both of them, all lights were on at that stage. 6. After the respondent was injured, she remained in the foyer of the hotel for a significant period of time, perhaps fifteen minutes or so, whilst assistance was given to her. A significant point raised at the trial was the improbability of that assistance being given without the lights being on. If that proposition is accepted, then the appellant contends that it is likely that the spotlights were on when the respondent fell as the respondent and all of her companions said that there was no change in the lighting from the time of the fall until the respondent left the hotel. The learned Special Magistrate clearly accepted that the respondent and her companions were reliable witnesses and particularly Mr. Thompson whom he described as a very impressive witness. All of these witnesses said that the lights were off at the time of the fall. 7. The learned Special Magistrate concluded that it was inconceivable that the assistance to the respondent in the foyer would have been given with the lights off. Also, it appears that he was not prepared to reject the evidence of Mrs. De Laine and Mr. Lambert that the lights were on when they arrived in the foyer. The learned Special Magistrate was faced with a difficulty in resolving the issue of the state of the lighting at the time of the fall from the direct evidence of the witnesses. However, he did so by accepting a submission of the respondent's counsel, Mr. Blumberg. Mrs. Barker was one of the companions of the respondent who was with her in the lounge when she fell. According to her, two male employees of the hotel came to assist the respondent, namely, Mr. Lambert and the man who could have been Mr. De Sailly. Mrs. Barker said that she told Mr. De Sailly that the lights were off and he was standing near the light switch. No other witness said that Mr. De Sailly was present. The submission which the learned Special Magistrate accepted was that the spotlights were not on at the time of the fall but could have been turned on by Mr. De Sailly before Mrs. De Laine and Mr. Lambert observed them to be on. 8. The appellant contends that the evidence does not justify that conclusion and it should be rejected. The necessary consequence of doing so is that as it is not possible on appeal to choose between the respective versions of the respondent and her companions and the two members of the hotel staff, the action must be remitted for retrial. It is true that no witness spoke of any changes to the lighting conditions in the foyer. Indeed, all of them said that there was no change. Mr. Evans contended that this consistent body of evidence from witnesses accepted by the learned Special Magistrate prevents the conclusion that Mr. De Sailly turned the lights on after the fall but before the other members of the hotel staff arrived. I do not think that is so. It is reasonable to accept that the focus of the attention of the respondent and her companions was on the respondent, not on the lighting conditions after the giving of assistance to her commenced, which was soon after she fell. The respondent and her companions all gave evidence to that effect. It is reasonable to expect that if the lights were off when the respondent fell, the duty manager may turn on the lights to assist those who were to give assistance to her. 9. What is clear from the reasons for judgment is that the learned Special Magistrate did accept the evidence of the respondent and her companions that the lights were off when she fell. Mr. Blumberg's submission was adopted as a possible explanation for the evidence of the two members of staff that the lights were on when they attended. It was part of his process of reasoning when considering whether the evidence of those witnesses caused him to doubt the evidence of the respondent and her companions. There was no flaw in that approach or in the reasoning itself and no reason to interfere with the conclusion of the learned Special Magistrate has been established. 10. I dismiss the appeal.