Turner v NSW Land and Housing Corporation

[2010] NSWDC 294

CITATION:	Turner v NSW Land and Housing Corporation [2010] NSWDC 294
HEARING DATE(S):	13, 14 and 15 December 2010
JUDGMENT DATE:	24 December 2010
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Judgment for the defendant. (2) Plaintiff pay defendant’s costs. (3) Liberty to restore in relation to costs. (4) Exhibits retained for 28 days.
CATCHWORDS:	TORT - claim under Compensation to Relatives Act 1897 (NSW) - tenant falls on stairs of residential premises let by a public authority - whether duty of care and breach of duty established - s 42 Civil Liability Act 2002 (NSW) - causation - Sweeney v Boylan Nominees Pty Ltd defence - judgment for defendant
LEGISLATION CITED:	Civil Liability Act 2002 (NSW), ss 5D, 5R and 42 Compensation to Relatives Act 1897 (NSW)
CASES CITED:	Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 Jones v Bartlett (2000) 205 CLR 166 Leighton Contractors Pty Ltd v Fox [2009] HCA 35 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 New South Wales Department of Housing v Hume [2007] NSWCA 69 R v Kotzmann [1999] 2 VR 123 Sakaua v Williams [2005] NSWCA 405 Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 Wilkinson v Law Courts Ltd [2001] NSWCA 196
PARTIES:	Plaintiff: Mark Anthony Turner Defendant: NSW Land and Housing Corporation
FILE NUMBER(S):	4968 of 2009
COUNSEL:	Plaintiff: Mr A Campbell Defendant: Mr J Catsanos
SOLICITORS:	Plaintiff: Gerard Malouf & Partners Defendant: McCabe Terrill Lawyers

Judgment

[1] The plaintiff, by statement of claim filed on 12 November 2009, brings proceedings pursuant to the Compensation to Relatives Act 1897 (NSW) for damages. The claim arises from the circumstances in which the deceased, the plaintiff’s de facto spouse, Colleen Payne (“Colleen”), suffered injuries after accidentally falling from the stairs leading to the back door to the house she rented from the defendant in Whalan, New South Wales, on 11 December 2006.

[2] Tragically, as a result of complications following upon treatment for Colleen’s injury, she died on 28 December 2006, two weeks after the accident. No formal submissions were made concerning the causative link between Colleen’s accident and her death, which I accept was as a result of medical complications following her fall.

[3] At the time of Colleen’s injury, she was in receipt of a social security benefit from the Commonwealth Government for the care of her four children. The plaintiff and Colleen had been in a de facto relationship for 18 years, although the plaintiff lived apart from her for some considerable periods of time in the years prior to her death due to relationship difficulties, and it was during this time that Colleen was in receipt of a sole parent’s benefit. The four children of the relationship, who were born in 1987, 1990, 1994 and 1997, included an adult daughter who was Colleen’s daughter as a result of a prior relationship. She continued to reside with Colleen and the plaintiff, as she has an intellectual disability.

[4] The circumstances leading to the claim may be stated as follows. On 19 January 2002 Colleen entered into a lease arrangement with the New South Wales Department of Housing, as the Department was then known, to rent the house at which the accident occurred. Between August 2002 and September 2006 Colleen made a total of 26 complaints about faults in the premises (Exhibit 2).

[5] In or about early 2006, as part of an ongoing updating program of premises owned by the defendant, a scope of works was embarked upon and a contractor came to the house to assess repair and renovation work necessary to the premises.

[6] That work, which was completed on 16 May 2006, included the replacement of the concrete landing at the head of a small flight of three steps leading to the back door of the premises. There was no railing to these premises, and it was a disputed issue of fact as to whether there had ever been a complaint about this or a request for a railing to be provided.

[7] At about 7.30 pm on 11 December 2006, Colleen went to the back yard of the property to feed the dog and returned, climbing up the steps at the back of the house. As she walked up to the top landing of the steps and opened the screen door from the left hand side, she had to move her feet backwards to allow the door clearance, as it swung over the top landing in such a way as to cover it entirely. As Colleen sought to step around the door, her left foot slipped on the edge of the top landing, her body twisted, and she fell to the left, landing heavily with her full body weight on her left ankle on the ground, at the left side of the back steps (see the statement of her daughter, set out at paragraph 7 of the report of Mr Beck, in Exhibit A).

[8] Colleen was conveyed to Mt Druitt hospital, where the injury was diagnosed as a sprained ankle. Dissatisfied with this opinion, she consulted her general practitioner the following day. Her general practitioner placed her leg in a half-cast, to minimise movement and any further chance of injury, advising her to return for a check-up. Colleen continued to suffer pain and discomfort and on 28 December 2006, collapsed. She was conveyed to hospital by ambulance. According to the Coroner’s report of 23 April 2007 (Exhibit A) Colleen suffered a pulmonary embolism as a result of immobility following her injury.

The Issues for determination

[9] The issues for determination are:

(a) Duty and breach of duty of care;

(b) Causation;

(c) A Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 defence;

(d) Contributory negligence.

Matters which are not for determination

[10] These proceedings were set down for hearing despite the defendant advising that the matter was not ready to take a hearing date. On 1 October 2010 an application brought before the List Judge to vacate the hearing date was dismissed with costs, with a note that a further application might be made to vacate the hearing, as the plaintiff had complied only “belatedly” with subpoenas.

[11] The plaintiff, who has had to assume sole responsibility for the four children since Colleen’s death, has been profoundly affected by the death of his de facto wife. There have been problems with her children. It cannot have been easy for him, or for the solicitors for the plaintiff, to prepare for this hearing, given the nature of those problems, particularly at this time of year, which is the anniversary of his partner’s death.

[12] After discussion between the parties, it was resolved to sever the issue of liability from quantum, and accordingly, this judgment gives findings on liability only. This enabled the parties to deal with portions of these proceedings which were not ready for hearing, and also dispense with the need for the giving of evidence by any of the children.

[13] I am indebted to counsel for both parties for their constructive and helpful approach to the conduct of these proceedings, for proposing this sensible method of resolution of the difficulties and for the skill and care with which they conducted the case. It would, however, have been preferable if a case with facts such as these had been adjourned, not only to enable both parties to be properly prepared, but to avoid the coincidence of the plaintiff having to give evidence on the anniversary of these tragic events.

[14] The plaintiff was frequently distressed in his evidence, and said that he was having difficulties and under stress. I have factored into my findings the level of distress under which he found himself. I have taken into account, when writing this judgment, the degree of distress and anger he feels about the circumstances in which his partner suffered injury and subsequently died in his arms.

The claim of negligence as particularised by the plaintiff

[15] The plaintiff pleaded the following particulars of negligence:

(a) exposing Colleen to a risk of injury which was avoidable by the exercise of reasonable care;

(b) failure to install hand railing on rear steps of premises;

(c) failure to construct and install safe and/or adequate platform or landing at the rear exit of the said premises;

(d) failure to construct a rear landing and steps that provided adequate safety, in particular a non-slip all over textured surface on the landing and steps;

(e) failure to maintain a rear landing and steps to a proper and/or adequate standard of safety in all the circumstances;

(f) failure to ensure that the rear landing and/or steps were not worn and/or slippery;

(g) failure to respond adequately or at all in the circumstances to requests by the tenant and/or her “spouse” to address relevant safety issues in connection with the rear landing and/or steps;

(h) failure to comply with applicable statutory and regulatory codes governing the construction and installation of platforms and stairways in particular Ordinances 70 and 71 Local Government Act 1919 (NSW).

[16] The mechanics of the fall being largely agreed, the question of negligence was the subject of expert evidence.

The expert evidence

[17] While the parties each retained an expert, their evidence was given concurrently. Concurrent expert evidence is less common in claims for personal injury than in other areas of the law, but its usefulness is well demonstrated by the facts of this case, as each of the experts had a different background. The plaintiff’s expert, Mr Beck, was a biomechanical engineer whose experience was principally in traffic crash impact on the human body, while the defendant’s expert, Dr Cooke, was a specialist in building and architectural issues. A challenge to Mr Beck’s expertise, which is discussed in more detail below, was more readily able to be resolved by me by reason of the concurrent expert evidence procedure.

[18] The plaintiff’s expert, Mr Beck, set out the plaintiff’s allegations of negligence in his report. Mr Beck asserted that a number of contributing factors led to the fall taking place, which he summarised as follows:

(a) The back door swung outwards, over the landing of the stairs, which meant a person who wished to enter needed, in Mr Beck’s opinion, to step off the landing to open the door. Mr Beck considered that a barrier, such as a railing, should be provided, or alternatively the door should be changed to an inward opening or sliding door.

(b) The “iron landing surface” was slippery; and

(c) Stormwater pipes had deposited water, which led to dangerous, slippery conditions.

[19] I have noted these arguments at the beginning of this section, because the plaintiff’s position changed significantly during the hearing.

[20] Prior to giving concurrent evidence, Mr Beck and Dr Cooke, the defendant’s expert, reduced the issues in contention to the following:

“ Issues the experts agree upon

We agree that the deceased lost her footing because she lost her special awareness when stepping backwards, not because she was unaware of the design of the steps. We agree that Mr Beck’s Figure 1 on page 6 of his report dated 3 December 2010 does not apply.

It is agreed that the Building Code of Australia (BCA) does not apply retrospectively and that the stair complies with the preceding Ordinance 70 and Ordinance 71.

We are in agreement that an outward opening screen door was the most appropriate.

We agree that the deceased may have been able to regain her balance if a handrail had been provided. Dr Cooke’s proviso is that this would only have been possible if she had had a free hand. Mr Beck is of the opinion hat it would have been possible for her to regain her balance or prevent as serious a fall regardless.

We agree that a handrail/balustrade would not be required under the current BCA (because the change of levels does not exceed 1m). Mr Beck’s proviso is that a common sense approach is still necessary when designing the stair.

We agree that the landing and step surface complies with the relevant slip resistance Standards.

Issues the experts do not agree upon

Mr Beck’s opinion is that it is not reasonable to expect tenants to open the screen door while standing on the first step down from the landing. Dr Cooke’s opinion is that that is reasonable and also that the screen door can be opened while standing on the top landing or while stepping between the top landing and the first step down from the top landing.

Mr Beck’s opinion is that a common sense approach should have been followed when designing the steps. Dr Cooke’s opinion is that the type of stair used was not uncommon and was not difficult to use.”

[21] Although other issues, such as the size of the landing were canvassed during the evidence, the question essentially came down to the narrow issue of whether or not a railing should have been provided and (as to causation) whether this was a contributing factor to the accident.

[22] I shall briefly note the following problems with the expert evidence provided by Mr Beck to support the claim that the stairs were dangerous.

Outline of evidence of Mr Beck and Dr Cooke

[23] As is set out above, Mr Beck, at page 11 of his report (Exhibit A) identified three bases upon which the defendant was asserted to have been negligent. All of these were abandoned by him in a subsequent report, or in his evidence. These included:

(a) any claim that the “iron” landing surface was slippery;

(b) any claim relating to slipperiness and the stormwater downpipes;

(c) the forward mechanism of Colleen’s fall;

(d) the assertion that it was necessary to bend forward in order to open the door from the step below the landing;

(e) the recommendation that something be done about the landing because the door swung out over the landing, requiring a person to step around it, including any claim for the door to be inward opening or a sliding door.

[24] Mr Beck is a biomechanical and traffic engineer, and of the more than 90 items in his bibliography, only four of them appear to have any relevance to issues other than traffic injury. In terms of expertise, his knowledge of Building Codes, while helpful, was more that of the informed layman.

[25] By contrast, Dr Cooke correctly identified the mechanism of the fall, correctly measured the doorway to show that it was possible to open the door while standing on the landing, pointed out that it was not necessary to bend forward to open the door from the top step, and explained the reason why alternate doorways were impracticable.

[26] The following passage appears at paragraph 8 of Dr Cooke’s report of 10 December 2010 (Exhibit 7):

“8. Provision of barrier : I note that Mr Beck agrees with me that there is no need to provide a barrier under the BCA. The building dates from 1966 (some 22 years before the BCA commenced (on 1 January 1992, fully superseding Ordinance 70 on 1 January 1993 after a transition period of 12 months)). The BCA does not operate retrospectively. If it applied, the landing would have to be 750mm long under the current BCA cl 3.9.1.3(h)(i) (see Appendix D to my first report), instead of 530mm as it actually is. No balustrade would be required under the current BCA as the change of levels (610mm) does not exceed 1m (cl 3.9.2.2(a) in Appendix D to my first report). The performance provision in BCA cl 2.5.1 referred to by Mr Beck must be read in conjunction with the specific requirements in cl 3.9.2.2.(a) applicable to the provision of barriers and to cl P2.5.2 (the performance requirement for the provision of barriers where “people could fall 1m or more” (see Appendix D to my first report and Appendix A to this report)). Compliance with the performance requirements in the BCA is achieved by complying with the Deemed-to-Satisfy Provisions (cl 3.9.2.2(a) in this case, in relation to the provision of a barrier) (see BCA cl 1.0.5(a) in Appendix A to this report). As discussed above, no balustrade would be required by cl 3.9.2.2(a).

9. I have not altered the opinions in my first report as a result of reading Mr Beck’s supplementary report, except to the extent that the opinions in my first report are amplified by the opinions expressed in this report.

[Signed]
Dr John Cooke
B Arch (Sydney), LLB, MSc (Building) (UNSW), PhD (Sydney),
FRAIA, MIAMA.”

[27] Counsel for the defendant in his oral submissions described the evidence of Mr Beck as a “house of cards”, in that as each of Mr Beck’s rationales for negligence fell away, another was proposed, drawing my attention to Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85]:

“[85] In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness's expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v The Queen (at 428 [41]), on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise”.”

[28] Heydon JA has raised five issues, namely:

(a) There must be a field of “specialised knowledge”;

(b) The expert must have specified training, study or experience in the relevant field;

(c) The opinion proffered must be wholly or substantially based upon that expert knowledge;

(d) The relevant facts must be admissibly proved by the expert; and

(e) The expert must be able to explain how that field of “specialised knowledge” in which the witness is expert, and on which the opinion is based, applies to the assumed or known facts of the case.

[29] The relevant field of specialist knowledge is building safety and building codes, and not biomechanical aspects of a crash or other injury. Colleen’s fall was a simple trip, not a slip on water or a slippery step, and her death was as a result of complications following her treatment, not her fall. The need for a railing was a matter falling outside the expertise of Mr Beck, and in fact is barely referred to in his first report, which instead concentrates upon the other asserted bases of negligence. The reference to a barrier beside the step is put forward in much the same way as the claim that the landing was smaller than that under the current Ordinance (a claim abandoned when it became apparent that the door swing would still go over the whole of the landing) and/or that there should be a sliding door (another claim which was abandoned).

[30] Mr Beck’s inappropriate expertise meant that his opinions about whether or not there should be a railing fell outside his expertise. There were, however, additional problems. The bases upon which he asserted, in his initial report, that there was negligence by the defendant, turned out to be based on erroneous facts, such as the claim of water dripping down onto the landing, the slippery surface of the landing and its size. In Makita at [64] and [69], Heydon J warns that if an expert has been misinformed as to the facts, adding at [82] that an expert opinion is “no better than the facts on which it is based” (citing R v Kotzmann [1999] 2 VR 123 at 135).

[31] In addition, I note the obligation of the expert to assist the court. The criticism by Mr Catsanos of Mr Beck’s evidence as a series of explanations proffered as each of its predecessors failed has some force, as does his complaint (and Dr Cooke’s) that Mr Beck did not acknowledge that certain of his criticisms (such as the sliding door claim) had in fact been answered.

Conclusions concerning expert evidence

[32] While Mr Beck’s report was admitted into evidence, its value as opinion is of such diminished weight that I do not accept his expert opinion concerning the asserted need for a railing.

[33] This brings me to the question of whether, prior to the accident, Colleen or the plaintiff had ever asked for a railing to be installed, as claimed by the plaintiff in his evidence.

Was there any prior request or complaint about a stair railing?

[34] Counsel for the plaintiff candidly acknowledged that his case “stood or fell” on whether I accepted the evidence of the plaintiff that he and Colleen had made a series of complaints about the lack of a railing on the steps to the back door of the house.

[35] Counsel for the defendant pointed to the lack of corroborative documentary records, such as house condition reports and the log of complaints for this property, and where the principal officer of the defendant with whom the plaintiff said he had a conversation had not been the officer in charge of this housing lease contract until after Colleen’s death.

Late 2005 to early 2006 (T-20-23):

[36] The plaintiff’s evidence about prior complaints was as follows:

“Q. When did you make them?
A. It would've been - the first one was about the roof leaking, the wiring catching fire, which would've been in late 2005. And then there was the same thing again not long after Christmas, early 2006. That was..(not transcribable)..brought the - well, I actually did when I spoke to them, brought the thing up about - put in the hand rail down the back steps at that stage.

Q. So can I just stop you there. Did you have a conversation with anyone about the handrail on the back steps?
A. Yes.

Q. Was that in person or over the phone?
A. Once in person, once over the phone.

Q. Which came first?
A. In person.

Q. What were the circumstances of that in-person phone call? Was that at your house?
A. Yes, that was at the house.

Q. Who did you speak to?
A. I'm not sure of the gentleman's name. There were two people that came out.

Q. Do you know who they were employed by?
A. Yes. They were - I know they were from the head office in Liverpool.

Q. The Department of Housing?
A. Department of Housing, yeah.”

...

“Q. What did they say?
A. I said, "Are you said blokes from Mt Druitt?" He said, "No, we're from..(not transcribable). Liverpool. What's the problem" - blah blah. That was regarding the smoke alarm catching fire when the roof was leaking. And they came out, look at that.

CAMPBELL

Q. Sorry. Just in the conversation, when they said, "What's the problem," what did you say?
A. I said to them, "Well, the house is - the roof has caught fire, the actual smoke alarm has caught fire," and I took them in and showed them what had happened, and they saw the water coming down on the carpet and everything.

Q. What did they say, if anything?
A. "Yes. It does need attention," and just things like that.

Q. What else was said?
A. They said, "Is there anything else that's a problem?" I said, "Well, the back stairs," because I'd actually gone up myself about a week before that.

Q. What did you say?
A. I said, "Well, the back stairs need a railing, a hand railing. There's no hand rail in there at all." And they had a look at it. One bloke did say to me - he said, "Yeah, it's not real good, is it?" But they were more concerned at that stage about the smoke alarm catching fire from the leaking roof. After that, they said to me that they - that repairs were going to - that Housing Commission were going to have a sweep of the area and do a full maintenance thing on all the houses in the area, and these problems would be taken care of while that was being done. And they asked me, you know, could we - you know - put up with the leaking roof just for a while longer and that. They sent a contractor out to get up there, and he done the best he could but he said himself he couldn't do much with it because there was just rusty nails all through the whole roof of the house.

Q. So was there anything else said between yourself and the people from Liverpool when they came out to see you on that day?
A. No, well, I asked them, would they be able to put a cut-out switch upon the meter box in case it rains again, because it got to the stage, if it rained on the night and had - I'd go out there and ping the power off to make sure nothing else happened, you know?

Q. When did this conversation occur?
A. I'm not exactly sure. It was one afternoon, would've been after lunch time.

Q. I'm more interested in the date. Some repairs were carried out in June 2006. Correct? Yes or no?
A. 2006? Yes, that's when the main repairs were.

Q. Did that conversation occur before or after those repairs?
A. No, before.

Q. How long before?
A. Probably about six, seven months beforehand.”

Conversation with Karen Williams

[37] The plaintiff also said he had the following conversation with a Ms Karen Williams, an officer from the defendant’s Department:

“Q. I think you said you also had a conversation over the phone with someone in respect to the back stairs.
A. Yes, yeah, yeah, I spoke to Karen Williams, she was the area supervisor at the time, and asked her about a handrail for the back steps, and--

Q. Again, you had a conversation with her over the phone.
A. Yep.

Q. Do you know when?
A. I think that would have been - yeah, that would have been before the actual maintenance was done on the house, all the repairs.

Q. What did you say in that conversation? You rang up and you said something?
A. Yeah, I said to her, you know, "Is there any chance of getting a handrail on these back steps."

Q. What did she say?
A. She was going to put it into something or another, I can't remember what, and put it in the report for when the repairs were done to the house.”

Conversation with the Scoper

[38] The plaintiff said that he had a conversation with Ms Williams about adding the railing to the work to be done in the major renovation which was to be carried out at the premises. Before this work was carried out, a scoper came to the premises with a clipboard, making notes about outstanding work. The plaintiff described his conversation with this person as follows:

“Q. He seemed to be scoping the work.
A. Yep.

Q. Then he left, and sometime later some tradesman came.
A. Yep. But before, if I may say, before he left, the clipboard that he had with everything he'd written down, my wife signed the bottom of it, and on that clipboard there was clearly stated "handrail", and there seems to be no recollection of that now.

Q. So you say your wife spoke to this gentleman?
A. Yes, I was there, Colleen was there, while he was going around.

Q. He scoped the work, and then later somebody came out and did the work.
A. Yes, that would have been probably about two or three weeks later they came out and started the actual thing, yeah.”

Conversation with the contractors who carried out the work

[39] As the plaintiff said at T-62, the only thing the contractors did not do was to replace the handrail. This led to him having an angry confrontation with the contractor, which is described at T-26:

“Q. After the repairs were carried out, did you have any conversation with anyone from the department of housing in respect to the work that had been done?
A. Yes.

Q. Who did you speak to?
A. The head contractor that was there, I got into an argument with him. He was the one doing the slab.

Q. Can you tell us what was said, if anything, the actual words that were said.
A. Yep. I said to him, "Mate, with all due respect, you don't have to be undoing the slab to be putting a handrail up." He said, "Mate, there's no handrail going up."

[40] This conversation was not particularised.

Conversation with Departmental representative in June 2006

[41] The plaintiff gave evidence that after the work was carried out he had a conversation with a representative of the Housing Department in which he made a complaint:

“Q. My question was, and I'll ask it again, if you had any conversations with anyone from the housing department, after the steps were installed?
A. Yes, yes.

Q. Was that conversation in person or was it on the phone?
A. In person.

Q. Who was that conversation with?
A. I cannot remember their name. They came out. I believe they were from the Mount Druitt office. They came out to have a look because Col rang up and complained that--

Q. By "Col", you mean Colleen?
A. Yeah, Colleen, yeah, complained that they'd replaced the top slab instead of putting a handrail there.

CATSANOS: I object to this as well.

HER HONOUR: "They came over because Colleen rang up," we'll have that.

CAMPBELL: Yes.

Q. When they came out, was it a man?
A. Yes.

Q. Was there one or more than one person?
A. No, just one.

Q. Did he have a uniform on?
A. To the best of my knowledge, he had some tag thing clipped on his shirt, or something or another, department of housing.

CAMPBELL: The witness is indicating a tag over the right side of his chest, your Honour.

HER HONOUR: Yes.

CAMPBELL

Q. Did you have a conversation with this man?
A. Very little, very little.

Q. Can you just tell us the words that were said between you.
A. Yeah.

CATSANOS: Sorry, before he does that, could we identify when this is, your Honour. Is it after the work?

CAMPBELL: Sorry.

Q. Tell us when this conversation occurred?
A. Well, it probably would have been, at a rough guess, probably about a month, because it was only a few weeks after they'd finished doing all the work at the house, so I would have tried to - say, about a month.”

...

“Q. What did he say?
A. "What's your problem?" "What's your problem, mate?" or something.

Q. Yes, and what did you reply?
A. And I pointed at the back steps. I said, "This is the problem, fuck wit. You know damn well we wanted a handrailing. You replaced the top slab that didn't need replacing. It's smaller than the old one, right. Now, what's the go here? Where's the handrail? Every other--"

CAMPBELL

Q. What did he say?
A. "It doesn't require a handrail." But, yeah, after that--

Q. What did you say?
A. I just said, I think, from memory, "You pricks are fucking hopeless. Forget it."

Q. Was there anything else? Did he say anything else?
A. No, I just walked off then, because I was starting to get angry and I could see the conversation was going nowhere and not going to achieve anything.

Q. Did you have any other conversations with anyone from the department, after the stairs were changed, before your wife had the fall?
A. I'm just trying to think, run it back through me head now, because I've spoken to a couple of different ones of them, and I'm just really having trouble memorising now exactly who I spoke to when and that sort of thing.” (T-31; see also cross-examination at T-62).

[42] The particulars of the claim provided by the solicitors for the plaintiff assert, at paragraph 13, that the defendant was aware of the condition of the stairs as an inspection took place for the purpose of renovating the house on or about mid-2006, when the person who inspected the house for the Department of Housing was made aware of the rails and the need for rails; however, the defendant did nothing about it. It was also asserted at paragraph 28 that complaints were made about the slippery and worn nature of the stairs and the fact that there were no rails. This is contradicted by the evidence of witnesses called for the defendant.

The defendant’s witnesses

[43] The defendant called Ms Williams, whose evidence was that she was not working in this capacity at all until January 2007, after Colleen’s death. She spent a great deal of time with the plaintiff, following the death of Colleen, because the plaintiff came to see her to obtain succession in relation to the lease of the premises. Ms Williams’ evidence was that she told him this was not possible because he said he had not been living there at the time. As she was concerned for his welfare and the welfare of the four children, particularly the eldest child, who was disabled, she spent a lot of time assisting him, and this included making representations to her supervisor to ensure that the plaintiff was able to rent the house, visiting the house with him, and making a list of all outstanding problems in relation to the house, which it should be noted did not include any reference to the railing. Nor does the list of 26 complaints made by Colleen prior to her death (Exhibit 2) or the documents produced by the Department of Housing, including Exhibit E.

[44] The plaintiff’s claim that he gave up, as did Colleen, after the June 2006 conversation is inconsistent with the persistence they showed in relation to the leaking smoke alarm detector, about which complaints were made that same month.

[45] As to the Department of Housing official visits, any requests for repairs or for new work would have triggered some kind of document trail. The Department of Housing officers who came to the premises concerning the smoke alarm generated documents in relation to the smoke alarm. It is implausible that all of these Departmental officials failed to make any note of any request for a handrail.

[46] As to the scoper, and the claim that he was told of the need for a handrail, and that not only was a handrail listed in the repairs to be done, but that this was signed by Colleen at the time, but not carried out for unknown reasons, is also implausible. If the work was signed for, and said to be necessary, and agreed to be necessary by the scoper as claimed, why would it not have been carried out?

[47] The consistency of the documentary evidence in showing no contemporaneous record of any complaint or request for work is significant. I have noted that the scoper’s documents have not been provided on subpoena. However, there are other reasons to reject the evidence that the scoper thought the work was necessary, and this includes the fact that Colleen made a series of complaints during and after the time that the works were carried out, and it is apparent from the content of these complaints that nothing was said about the railing. She made four complaints in June 2006 about the smoke alarm and the roofing, and two complaints in September about the bathroom fan and the gas stove button. If anyone was unhappy about the lack of a railing that was requested, the calls in June 2006 would have been an opportunity to raise this matter.

[48] The defendant called evidence from Mr Rickerts and Ms Eather about the way in which complaints and requests of this kind were dealt with. Mr Rickerts explained the ambit of the scoper’s role, and that work was performed consistent with the scoper’s recommendations. The cost of the work carried out on the premises the subject of these proceedings was about $50,000 and included the replacement of the landing, which the scoper looked at and considered needed replacing as it was cracked.

[49] Ms Eather’s evidence was that every complaint that was made was logged. This is significant, because the plaintiff claimed to have telephoned to make these complaints, because there is no record of any such call. She explained how the information was then recorded on the computer for further action:

“Q. Perhaps you could explain that to us.
A. Okay. When somebody phones, if you were using the IHS system, if it was about a door, you could use a search field, which would be "door". So it would populate a lot of choices. In this case, it must have been because the door lock was faulty, they have chosen a door, being external, and 3A is just a code. There's a number of different codes. It could be - that would help determine the priority. So some things would be urgent, some things would be 24 hours, and the operator selects what choice it would be.

Q. So the code is the internal coding system?
A. Yes.

Q. Then underneath that is a description of what the person actually called about.
A. Yes. With the description too, it populates but then you can add text.

Q. So obviously, bedroom 3 door lock is faulty would not be an individual item. The person who is putting it together would have, from the field, inserted those details to record the nature of the complaint.
A. Yes. That's correct.” (T 170)

[50] I also note that these premises were constructed in about 1966 and there is no prior record of complaint by any tenant, including Colleen, since the time it was first constructed, or occupied by Colleen, in relation to any danger. The work carried out by the defendant in relation to the subject stairway was the replacement of the concrete landing tread, and the safety of this work is not the subject of any challenge. A claim that the landing should have been made larger to enable there to be space for the door to open out was abandoned when it became apparent that any enlarged landing would overhang the steps below, and require replacement of the whole structure.

[51] I have made allowances for the state of distress of the plaintiff, and his anxiety while giving evidence, but the total absence of any contemporaneous documentation, most particularly the Property Condition Report and Inspection Form, filled out and signed by him, after the premises were inspected by him and Ms Williams in January 2007, lead to the most likely probability being that no question about the adequacy of the stairs, or the need for any railing, was raised by the plaintiff or anyone else until several months after Colleen’s death.

[52] I also note that a number of these complaints, in the Particulars of the claim, the Statement of Claim and the experts’ reports, assert that the reason for Colleen’s fall was that she slipped as a result of water from stormwater downpipes. This claim has since been abandoned. It is unclear whether this is something Mr Beck decided on his own, or whether he was told this by the plaintiff or those who instruct him. The picture which is painted is one of a series of alternative scenarios to explain the plaintiff’s fall, of which the absence of a railing is the most recent.

[53] I am satisfied from the documentary evidence and after a careful evaluation of the competing evidence of the witnesses of the Department and of the plaintiff that no complaint was made about the need for a railing on the staircase prior to the death of Colleen. I am further satisfied that when the question of a railing was raised by the plaintiff with Ms Williams, after Colleen’s death, it was raised in the “historical” manner she outlines, rather than in the form of any request by the plaintiff for there to be a handrail installed. I am also satisfied that Ms Williams responded to this by telling him he would need to obtain a report from an occupational therapist outlining what kind of handrail was necessary, there being approximately 30 different varieties of handrails on the market, and that fitting the wrong one could lead to further problems.

[54] However, in the event that I have erred in making this factual finding, I have taken into account, when considering issues of duty and breach of duty, as well as issues of causation and the Sweeney v Boylan Nominees Pty Ltd defence, the question of what should have occurred in the event that the Department was notified, either by the plaintiff or by Colleen, or both, of the asserted need for a railing. My findings on liability should be read with this proviso in mind.

[55] This brings me to a consideration of the relevant legal issues.

The relevant legal principles

[56] The plaintiff’s claim is subject to the provisions of the Civil Liability Act 2002 (NSW) and determining issues of breach are governed by its provisions, not simply concerning the question of whether or not there is negligence, but also in relation to the application of s 42, in that it is conceded that the defendant is a public authority.

[57] The first issue is whether or not there is a duty of care. I note the defendant concedes that a duty of care was owed to the deceased in accordance with the elements outlined by the High Court in Jones v Bartlett (2000) 205 CLR 166 and New South Wales Department of Housing v Hume [2007] NSWCA 69 at [88], namely to take such care as is reasonable in the circumstances. A landlord is not subject to a higher duty to make the premises as safe for residential use as reasonable care and skill on the part of anyone can make them.

Breach of duty – the relevant provisions

[58] The defendant, in Mr Catsanos’ helpful written submissions, outlines that in determining whether there is a breach, the statutory provisions must be applied in accordance with the approach outlined by McColl JA in Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 at [125]-[140] and that the plaintiff must establish:

(a) that the risk was foreseeable;

(b) that the risk was not insignificant;

(c) a reasonable person would have taken the precautions advocated, including:



(i) the probability of the harm occurring in the absence of care;

(ii) the likely seriousness of the harm;

(iii) the burden of taking the precautions advocated; and

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

[59] An effect of this case, the risk of there being no railing on this very short flight of steps, needs to be seen in light of the warning of Heydon JA in Wilkinson v Law Courts Ltd [2001] NSWCA 196, that the duty is only to take care which is reasonable under the circumstances rather than to make the stairs as safe as human skill could possibly make them. The obviously dangerous nature of stairs is such that a person misjudging their footing and slipping is an everyday risk which members of the public should avoid by taking care for their own safety. This is particularly the case when entering and exiting from the staircase of a home many times during the day over a period of a number of years.

[60] The probability of the harm occurring in the absence of the care is low, as is the likely seriousness of the harm. The burden of taking the precautions advocated would have been considerable. The estimated cost for the installation of handrails on stairs of this nature was between $6 and $8 million throughout New South Wales, according to the evidence of the Department employee responsible for these matters. However, that estimate was for the actual construction cost. It was apparent, from the evidence of Ms Williams, that rather than a simple placement of railings, it would be necessary in each case to determine what kind of railings would be appropriate, including, where necessary, obtaining a report from an occupational therapist. This would be a very substantial expense.

[61] The plaintiff pointed to the installation of stairs at another house in the area, and tendered photographs of those stairs. The defendant’s expert, Dr Cooke, noted that the state of the railing indicated that this railing had been in place for many years. The reason for this staircase having a railing is unknown. The most likely explanation is, however, that a person using the public housing to which this staircase with railing was an entrance, had required a railing because of some disability.

[62] This brings me to the significant issue of the social utility of the activity creating the risk of harm, namely the need to provide low cost housing to persons in need of this kind of assistance. This is a very significant matter and it brings me to a consideration of s 42 Civil Liability Act.

Section 42, Civil Liability Act 2002 (NSW)

[63] Section 42 Civil Liability Act provides as follows:

42 Principles concerning resources, responsibilities etc of public or other authorities

The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies:



(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,

(b) the general allocation of those resources by the authority is not open to challenge,

(c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),

(d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.

[64] It is necessary to have regard to the following:

(a) the functions required to be exercised by the authority are limited by the financial and other resources reasonably available to the authority;

(b) the general allocation of those resources by the authority is not open to challenge;

(c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities;

(d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions.

See generally, New South Wales Department of Housing v Hume [2007] NSWCA 69 at 71-73 and 96-99.

[65] The relevant factors in the present case are as follows:

(a) The stairs complied with the applicable Building Codes and Ordinances at the time. The overriding question is whether the premises are safe for the purposes for which they are let at the time that a tenancy agreement is entered into: Sakaua v Williams [2005] NSWCA 405. Although Beazley JA dissented, this statement of law is applicable in the present circumstances.

(b) The stairs not only could be used safely, but were used safely on a daily basis by the whole family.

(c) For reasons set out in more detail elsewhere in this judgment, I have rejected the expert evidence of Mr Beck. I am satisfied that the stairs could be traversed safely and that it is not necessary for there to be a railing.

(d) I agree with the submission of the defendant that the concept of placing rails on stairs that do not require them in the Building Code, is unrealistic and expensive, particularly for a public authority such as the defendant.

[66] Accordingly, there was no breach of duty, in that the stairs did not require a railing placed on them, in the manner alleged by the plaintiff.

Causation

[67] The evidence of the plaintiff’s daughter, recounting how the plaintiff fell, makes it clear that Colleen fell because of a misstep. She had gone out to feed the dogs (see page 11 of Mr Beck’s report in Exhibit A) and she slipped backwards whilst coming in the back door. It is uncertain whether she had a free hand to grab a rail, had a rail been in place, but this is not a significant issue.

[68] The law relating to causation is helpfully set out by McColl JA in Stojan (No 9) Pty Ltd v Kenray [2009] NSWCA 364 at 141 to 143. Issues of causation are to be dealt with in accordance with s 5D of the Civil Liability Act, namely by considering the breach of duty, and whether it was a necessary condition of the occurrence of the harm and that it is appropriate for the scope of the negligent person’s liability to extend to the harm that has been caused. This is done by using the “but for” test of causation, in the manner explained by the High Court in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48, which McColl JA explained as follows:

“143 In Adeels Palace (at [43] – [44]), the High Court (French CJ, Gummow, Hayne, Heydon and Crennan JJ) observed that dividing the determination of the question whether negligence caused particular harm into the two s 5D(1) questions expressed “the relevant questions in a way that may differ from what was said by Mason CJ, in March v Stramare to be the common law’s approach to causation”. Their Honours found it unnecessary to examine to what extent the March v Stramare(E & M H) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 approach might lead to a conclusion about factual causation different from the conclusion that should be reached by applying s 5D(1), emphasising that where s 5D was engaged, its provisions must be applied.”

[69] The mechanism of Colleen’s fall, beyond noting that she fell to the left, is unclear. According to her daughter, she fell backwards, although to the left, and the plaintiff has failed to establish that but for the railing, the fall would not have occurred.

[70] Alternatively, the defendant relies upon a Sweeney v Boylan Nominees Pty Ltd defence, and I shall now consider this issue.

[71] The defendant delegated the work to competent independent contractors, as it was entitled to do. The plaintiff says that an independent contractor should have realised that the stairs were dangerous, whether the plaintiff told them or not. The plaintiff further says that the contractors were informed of the need for a handrail. However, that can make no difference if the defendant has delegated the work to a competent independent contractor, whose job was to replace existing defective work. It was not the task of this contractor to re-design the house, to place a larger landing on the stairs, to replace the stairs in their entirety, or to do anything other than carry out appropriate renovation work so as to make the premises reasonably habitable.

[72] For the reasons explained by the High Court in Leighton Contractors Pty Ltd v Fox [2009] HCA 35 at [48]-[49], the defendant cannot be held liable for any negligence of those contractors. Accordingly, even if (which I found not to be the case) the contractors were asked to install a railing, and Colleen did sign a document to this effect, the defendant cannot be held liable. This is because if handrails were required, or requested, or if anything about the refurbishment work resulted in a breach by the contractors, it was the responsibility of the contractors who were retained, both to “scope” and/or perform the work. Mr Ricket’s evidence explained the degree to which the task was delegated to the contractor. In accordance with the principles set out by the High Court in Leighton Contractors Pty Ltd v Fox, the defendant cannot be liable in the event that those contractors were negligent.

[73] The plaintiff has accordingly failed on liability. I shall, however, make some brief comments concerning negligence.

Contributory negligence

[74] The relevant principles for contributory negligence are set out at s 5R of the Civil Liability Act; see also Stojan at [144]-[147].

[75] The stairs in question were in daily use by all of the occupants of the premises over a number of years. The defendant was entitled to expect persons using the leased premises to exercise reasonable care for their own safety. The number of times that the stairs had been used made it clear that the stairs could be used safely, not only by the plaintiff, his children and Colleen, but by previous tenants of the premises. The records of the defendant, going back to 1999, showed no prior accident and no prior difficulties or problems.

[76] As the evidence shows that the stairs could be used safely, a significant element of contributory negligence would come into play. Accordingly, if I have erred in my findings above, I would hold that Colleen’s contributory negligence should be assessed at a very high figure. In Stojan, the plaintiff was leaving a shopping plaza one evening, in circumstances where the stairs, although lit adequately at either end, were dark in the middle of the stairs, by reason of the placement of some rubbish bins. The Court of Appeal noted the tendency of persons in those circumstances to keep going forward rather than going back, but by reason of the fact that the plaintiff let go the handrail and charged forward, assessed her liability for contributory negligence at 50% (at [154]).

[77] In the present case, the negligence was considerably greater, and I would assess contributory negligence at 80%.

Conclusions

[78] I give judgment for the defendant on the issue of liability and make orders as follows:

(1) Judgment for the defendant.
(2) Plaintiff pay defendant’s costs.
(3) Liberty to restore in relation to costs.
(4) Exhibits retained for 28 days.

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