Youkhana v Di Veroli - [2010] NSWCA 322

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Youkhana v Di Veroli [2010] NSWCA 322
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2006/266917

HEARING DATE(S):
19 November 2010

JUDGMENT DATE:
19 November 2010

EX TEMPORE DATE:
19 November 2010

PARTIES:
Lina YOUKHANA (appellant)
Cesare DI VEROLI (first respondent)
Lily DI VEROLI (second respondent)
Alex DI VEROLI (third respondent)
Esther Lynette DI VEROLI (fourth respondent)

JUDGMENT OF:
Hodgson JA Tobias JA Campbell JA

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
SC 20139/08

LOWER COURT JUDICIAL OFFICER:
James J

LOWER COURT DATE OF DECISION:
14 October 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
Youkhana v Di Veroli [2009] NSWSC 942

COUNSEL:
M DALEY (appellant)
J SEXTON SC (1 – 4 respondents)

SOLICITORS:
Brydens Law Office (appellant)
Moray & Agnew (respondents)

CATCHWORDS:
TORT – Negligence – Plaintiff slips on stairs – Whether error by primary judge in not finding occupier negligent.

LEGISLATION CITED:
Civil Liability Act 2002 ss 5B and 5C

CATEGORY:
Principal judgment

CASES CITED:
Commercial Union Assurance Co of Aust Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Jones v Dunkel [1959] HCA 8; (1958 – 1959) 101 CLR 298
Mifsud v Campbell (1991) 21 NSWLR 725
Youkhana v Di Veroli [2009] NSWSC 942

TEXTS CITED:

DECISION:
Appeal dismissed with costs.
[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT:

- 18 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2006/266917
SC 20139/08
HODGSON JA
TOBIAS JA
CAMPBELL JA
Friday 19 NOVEMBER 2010

Lina YOUKHANA v Cesare DI VEROLI and Ors

Judgment

HODGSON JA: On 14 October 2009 James J gave his decision in proceedings in which the appellant had sued the respondents for damages for personal injury suffered as a result of falling down stairs in premises which were occupied by the respondents. The primary judge gave a verdict for the respondents, finding that there was no breach of duty owed to the appellant: see Youkhana v Di Veroli [2009] NSWSC 942. The appellant appeals from that decision.
The primary judge also gave reasons and made findings of fact relevant to damages. The appellant also appeals from that aspect of the primary judgment.
I will begin with an outline of facts that can be accepted as not being in dispute.
Some time in 2001 the appellant was contracted as a sales consultant with Limited Addition Holdings Pty Ltd (Limited Addition), being a clothing business. The appellant was not an employee of Limited Addition. Limited Addition was named as fifth defendant in the proceedings but was wound up and took no part in the proceedings below.
Limited Addition was located on the first floor of premises 18 to 20 Victoria Street, Erskineville. The respondents had owned the building since 1988. There were timber stairs leading from the ground floor to the first floor. The building was used as commercial premises. There is no dispute that the respondents were the occupiers of the stairs. The stairs were old, at least 50 years, and they were not fitted with any anti-slip nosings or abrasive strips at the time the appellant was injured. They were fitted with a rectangular handrail. It appears that at some point a polyurethane or similar finish had been applied to the stairs.
On 24 February 2003 the appellant went to the premises of Limited Addition at Erskineville for the first time. When she was descending the stairs, as she reached the third step from the top she slipped on the front of the step. The appellant fell down the remaining stairs to the first landing, approximately three or four stairs. The appellant said that she suffered injuries to her tail bone, head, lower back, neck and right arm as a result of falling down the stairs.
Soon after the appellant fell, non-slip strips were applied to the nosings of the treads; and subsequently in 2006, aluminium nosings and timber packers were installed.
The appellant's claim is affected by ss 5B and 5C of the Civil Liability Act 2002, which are as follows:
5B General principles
(1)A person is not negligent in failing to take precautions against a risk of harm unless:
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b)the risk was not insignificant, and
(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a)the probability that the harm would occur if care were not taken,
(b)the likely seriousness of the harm,
(c)the burden of taking precautions to avoid the risk of harm,
(d)the social utility of the activity that creates the risk of harm.
5C Other principles
In proceedings relating to liability for negligence:
(a)the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b)the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
The appellant's evidence before the primary judge on the question of liability included an evidentiary statement of the appellant herself, which gave the following account of the circumstances of her fall:
38.The stairs were obviously old. I noticed that when I went up them they creaked under my feet. While I was upstairs one of the Limited Addition workers spoke to me about them and so I was being very careful when I descended.
39.The stairs had a handrail on each side. I was holding on to the railing on the right hand side and I was walking down the stairs carefully.
40.After I had gone down a couple of stairs I felt my foot slip on the front of the step and I fell. I can remember slipping and starting to fall. Even though my hand was gripping the rail I was unable to save myself. The next thing I remember was right down the bottom of the first set of stairs and on the landing.
In cross-examination, the appellant agreed she had told some doctors that she had no recollection of the fall other than walking down two or three steps and then ending up on the landing; but the matter was not taken further, and in particular, it was not suggested to her that she now had no recollection of slipping.
There was also tendered on behalf of the appellant a signed statement by one Ms Phillips, and this was admitted into evidence without objection. Ms Phillips did not give oral evidence. The primary judge referred to that statement in paragraphs [16] and [17] of his judgment:
[16]In her statement Ms Phillips said that she was aware that a female had fallen down stairs at 18–20 Victoria St Erskineville in February 2003. It was common ground at the hearing that the female referred to by Ms Phillips was the plaintiff.
[17]Ms Phillips said in her statement that she had been employed on a casual basis by Limited Addition, attending the office on the first floor of the building three days a week. I infer from other parts of the statement that Ms Phillips had been so employed for approximately one and a half years. Paragraphs 11–19 of her statement were in the following terms:
11.I am aware that there were a set of stairs leading from the ground floor to the first floor.
12.I am aware that premises was an old building and the stairs appeared to be the original stairs of the premises.
13.I am aware that the stairs were old.
15.I am aware that stairs were narrow and that I had to walk down them sideways because they did not accommodate the size of an adult foot. I recall this had to be done particularly when I was wearing high heels.
16.I am aware that the stairs were worn and slippery.
17.I am aware that the stairs were not fitted with anti-slip nosings or abrasive strips or similar.
18.I cannot recall if there were any handrails attached to the walls for support whilst walking up and down the stairs.
19.I am aware that the office was utilised and visited by many employees of the company and fashion consultants with independent contracts.
Two experts made reports which were admitted into evidence; namely, Mr Burn for the appellant and Dr Cooke for the respondents. The experts jointly prepared a document containing agreed matters and disagreed matters, and they gave oral evidence concurrently.
Mr Burn first inspected the stairs about six and a half months after the accident, by which time non-slip tape had been installed on the top of the nosings of the treads. In his report of September 2003, Mr Burn noted that the stairs were well worn; and he said that they did not comply with Ordinance 71, inter alia because the stairs were not effectively treated with non-slip material at the time of the accident. I would observe that it became common ground that Ordinance 71 did not, in terms, apply to these stairs, being internal stairs of commercial premises, but it was accepted that it could be considered a useful benchmark.
Dr Cooke first inspected the stairs about three and a half years after the accident. By that time the treads had been extended by timber packers and aluminium nosings had been installed. Dr Cooke made measurements of the dynamic co-efficient of friction of typical surfaces of the stairs, including areas with a polyurethane coating which he observed were not significantly worn. His results for typical worn surfaces clustered around 0.5, and those for typical less worn surfaces clustered around 0.45. According to Australian and New Zealand Standards a co-efficient of friction of at least 0.4 indicates that the surface is slip resistant, and that the contribution of the floor surface to the risk of slipping when dry is "moderate to very low".
Measurement of the dimensions of the stairs established that the tread depths of the stairs down which the appellant fell were between 234 mm and 250 mm, and the rise heights were between 178 mm and 190 mm. According to Ordinance 71, tread depths should be not less than 241 mm and rise heights not more than 184 mm.
In his judgment the primary judge noted the following submissions for the appellant:
[90]The plaintiff’s account in her evidentiary statement of how the fall occurred, on which there was little cross-examination, should be accepted.
[91]Dr Cooke’s evidence about his testing so as to determine coefficients of friction should be rejected. Dr Cooke had been unable to test the coefficient of friction of the nosings of the steps, which had been covered by the aluminium strips. Dr Cooke carried out his tests more than three years after the plaintiff’s fall and there was no evidence that the stairs were in the same condition as they had been at the time of the fall. On the contrary, there was some evidence suggesting that there had been changes in the condition of the steps. When Mr Burn compared photographs he had taken some months after the incident with photographs taken by the plaintiff two weeks after the incident, the surface of the stairs as shown in the photographs appeared to Mr Burn to be different. Counsel also referred to a difference of 15 mm in measurements made by Dr Cooke and by Mr Burn in 2008 of one going, which it was submitted could only be explained on the basis that there had been some change in the stairs.
The primary judge stated a number of general principles:
[111]It is necessary to have regard to the general principles stated in Pt 1A of the Civil Liability Act, including that a person is not negligent in failing to take precautions against a risk of harm, unless the risk was foreseeable, the risk was not insignificant and a reasonable person in the person’s position would have taken those precautions (s 5B). A subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability and does not of itself constitute an admission of liability (s 5C(c)).
[112]It is also necessary to apply authoritative statements which had been made about the extent of an occupier’s liability and particularly in relation to stairs on the premises of the occupier.
… an occupier of premises is only required to take such care as is reasonable in the circumstances. The duty is not to make the premises as safe as reasonable care and skill on the part of any one can make them (Wilkinson v Law Courts Limited [2001] NSWCA 196 at 21 per Heydon JA).
[113]In the same case Heydon JA said at 32:
… Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances. Among the essential circumstances is the following fact: “persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety” …
[114]In the present case I find that the circumstances include that the stairs were old; that, contrary to the plaintiff’s evidence (para 35 of her statement) the stairs were not “very steep”; that each part of the stairs contained only a few steps; that at the time the plaintiff was using the stairs the stairs were well lit; and that there was no feature of the design of the stairs which would not have been obvious to any user of the stairs. I will make further findings about the stairs later in the judgment.
Subsequently, he elaborated on the submission for the appellant made in paragraph [90]:
[115]At the hearing counsel for the plaintiff submitted that the plaintiff’s account of how she slipped and fell, on which there had been little cross-examination, should be accepted. It is true that there was little cross-examination on the plaintiff’s account. However, as was submitted by counsel for the defendant, the plaintiff’s evidence about how the fall had occurred was brief and non-specific. In para 40 of her statement the plaintiff simply said that she felt her foot slip on the front of the step, she started to fall and was unable to save herself. The instructions given to Mr Burn were simply that the plaintiff had slipped and fallen. In cross-examination at the hearing the plaintiff agreed that she had told some doctors she had seen that she had no recollection of the fall, other than walking down two or three steps and then ending up on the landing.
The primary judge then dealt with submissions based on Jones v Dunkel [1959] HCA 8; (1958 – 1959) 101 CLR 298:
[116]In summarising the submissions of the parties I have referred to a submission, or rather a group of submissions, made by counsel for the plaintiff that, in the absence of evidence from or on behalf of the defendants on a number of matters, inferences adverse to the defendants could and should be drawn on those matters, including whether there had been previous accidents on the stairs and whether there had been previous complaints about the stairs and whether a fresh polyurethane coating had been applied to the stairs from time to time, which might have made the stairs more slippery. Counsel for the plaintiff referred to Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241.
[117]These submissions invoke principles often compendiously referred to as the rule in Jones v Dunkel (1958-59) 101 CLR 298. The rule in Jones v Dunkel is discussed in Cross on Evidence Australian edition at para 1215 and was discussed by Campbell JA in Manly Council v Byrne [2004] NSWCA 123 at paras 44–55 and in Howell v Macquarie University [2008] NSWCA 26 at paras 93–99.
[118]Some principles which emerge from the discussions are that an unexplained failure by a party to call evidence, when it would have been within the power of the party to call the evidence, may lead to an inference that the uncalled evidence would not have assisted that party’s case. The inference may be drawn; it does not have to be drawn. The rule permits an inference that the uncalled evidence would not have assisted the party not calling the evidence. However, the rule does not permit an inference that the uncalled evidence would in fact have been damaging to the party not calling it. If the rule applies the tribunal of fact may draw with greater confidence an inference unfavourable to the party not calling the evidence, which is open on the evidence which has actually been given. The rule cannot be applied so as to fill gaps in the evidence or to convert conjecture or suspicion into an inference.
[119]In the present case there was simply no evidence actually given from which any inference could be drawn that there had been previous accidents on the stairs or that there had been previous complaints about the stairs or that there had been a fresh application of the polyurethane coating to the stairs and therefore no inference which might be drawn with greater confidence because of the absence of evidence which might have been called by the defendants.
[120]Such limited evidence as was actually given would tend to suggest an absence of previous accidents. The only accident Ms Phillips referred to was the accident to the plaintiff. Ms Phillips’ evidence would suggest that she herself had used the stairs at least a couple of hundred times.
[121]Brady v Girvan Bros, the case relied on by counsel for the plaintiff, was a very different case from the present. In that case it was held that a customer in a large and busy shopping mall, who slipped on a substance which had been spilled or dropped on the floor in a common passageway, was entitled to recover against the occupier of the shopping mall. The Court of Appeal held that in the circumstances of the case it could be inferred that the occupier did not have a proper system for watching for and removing spillages.
[122]I consider that I should proceed on the basis that there is no evidence of any previous accident involving a person slipping or falling on the stairs and that there is no evidence of any previous complaint about the stairs and that there is no evidence that there had been a recent application of the polyurethane coating to the stairs.
The primary judge then considered the significance to the case of the later modifications made to the stairs:
[124]Not included in the summation were the actions taken by the defendants (or by someone), subsequent to the plaintiff’s accident, in applying, soon after the accident, the non-slip strips to the treads and in applying, in 2006, the aluminium nosings and the timber packers. I have already noted that the subsequent action of applying the non-slip strips was alleged in the statement of claim to be a particular of negligence and counsel for the plaintiff in his final address did make some submissions about both of the subsequent actions. It was submitted that the subsequent actions were more strongly indicative of negligence, because of their timing (they occurred soon after the accident or, it was suggested, soon after service of the statement of claim commencing these proceedings) and because of their obvious purpose, that is to make the stairs safer. However, I consider that, as appears to have been ultimately recognised by counsel for the plaintiff, the plaintiff is barred from relying on these subsequent actions as of themselves affecting liability, by the provisions of s 5C(c) of the Civil Liability Act.

At paragraphs [125] to [127] the primary judge rejected submissions to the effect that there had been a movement of the step on which the appellant slipped and that the treads were too short. He then dealt with the question of whether the nosings were slippery:
[139]In his first report made after his first visit Mr Burn noted that the steps were “well worn”. On his first visit Mr Burn did not make any measurements of the degree of slipperiness of otherwise of the steps.
[140]On his first visit Dr Cooke did make measurements of the coefficient of friction of both worn and less worn parts of the stairs and obtained results indicating that the contribution of the surface, whether worn or less worn, to the risk of slipping was moderate to very low. The more worn the surface was the less slippery it was likely to be found. Dr Cooke did not make measurements of the coefficient of friction of the nosings of the steps, because by the time of his visit the nosings had been covered by the aluminium strips.
[141]The results obtained by Dr Cooke were criticised on the grounds I have stated earlier in this judgment. The criticism that Dr Cooke had not adopted a proper method of proceeding (that is whether he had not used test paths giving a total of 800 mm) was not pressed at the hearing.
[142]As regards the other criticisms, I accept that Dr Cooke made his measurements of the coefficient of friction more than three years after the accident and that he did not measure, because he was unable to do so, the coefficient of friction of the nosings on one of which the plaintiff slipped. However, Mr Burn observed, two weeks after the accident, that the stairs were “well-worn” and I consider that the results obtained by Dr Cooke for worn areas, even if the worn areas measured were not on the nosings of the steps, do provide guidance as to how slippery or slip free the nosings were at the time of the accident. Even the results obtained by Dr Cooke for the less worn areas were figures for the coefficient of friction of more than 0.4.
[143]When Mr Burn did conduct his own tests, in 2008, of the stairs in the staircase (as distinct from the landings) he obtained only one result, on the fourth step, of less than 0.4).
[144]Mr Burn did say in his oral evidence that the nosing of the step on which the plaintiff slipped could have contributed to her slipping, because, certain types of timber become smooth and polished from wear under use. However, he accepted that it would be necessary to identify the timber out of which the stairs had been made and to determine whether it was one of those types of timber which become smooth and polished as a result of wear, and neither of those steps had been taken.
The primary judge then considered whether the handrail was inadequate and held that it was not; and he came to the following conclusion on liability:
[148]In my opinion, I should not find that there was a foreseeable risk of a person slipping on the stairs which was not insignificant, such that a reasonable person in the position of the defendants would have taken precautions against the risk. Alternatively stated, I do not consider that it has been established that the defendants failed to take such care as was reasonable in the circumstances. I find a verdict for the defendants.
The primary judge then went on to make findings concerning damages. As I have indicated, the appellant appeals on the question of liability and also against some damages findings.
I have come to the view that the appeal on the question of liability should be dismissed, and I have come to the view that in those circumstances it is neither necessary nor appropriate that the appeal in relation to damages be addressed.
The appellant relies on the following grounds of appeal on the question of liability:
1.His Honour erred in finding a verdict for the defendant.
2.His Honour erred in finding there was no feature of the design of the stairs which would not have been obvious to any user of the stairs.
3.His Honour erred in finding that the treads of the stairs were not too short.
4.His Honour erred in finding that the nosing of the stairs was not slippery.
5.His Honour erred in finding that in the circumstances, the hand rail was adequate.
6.His Honour erred in finding there was not a foreseeable risk of a person slipping, such that a reasonable person in the position of the defendants would have taken precautions against it.
7.His Honour erred in finding that it had not been established that the defendants had failed to take such care as was reasonable in the circumstances.
8.His Honour erred in finding that the only evidence about how the fall occurred was that contained in paragraph 40 of the Appellant's statement.
9.His Honour erred in preferring the evidence of Dr. Cooke over the evidence of Mr. Burn, the appellant and the independent witness Donna Phillips (whose evidence was not challenged).
10.His Honour erred in considering the question of whether the defendants breached the relevant duty of care by dealing with each feature of the stairway separately rather than considering cumulatively whether the stairs were safe overall, given all their individual characteristics.
11.His Honour erred in failing to draw any adverse inference against the respondents from their failure to adduce evidence which they were uniquely placed to call including in respect of:-
(a)the issue of whether there had been any prior falls;
(b)whether there had been any prior complaints about the state of the stairway;
(c)whether the stairs were dangerous from a lay perspective;
(d)the nature and extent of the usage of the stairway; and
(e)whether the stairs had been altered in any way, and if so in what manner, since the time of the Appellant's fall and before Dr. Cooke's inspection of them for the purposes of his evidence.
12.His Honour erred in failing to give weight or any sufficient weight to the evidence of the appellant and the independent witness Donna Philips, whose evidence on crucial issues was not cross-examined upon.
13.His Honour erred in failing to give weight or any sufficient weight to the evidence of the appellant whose evidence on crucial issues was not cross examined on both as to liability and quantum.
14.His Honour erred in accepting the evidence of Dr. Cooke concerning the low coefficient of friction tests when;
(f)there was no evidence that the stairs he tested three years after the appellant's fall were sufficiently similar to make the test results valid, particularly in the absence of any evidence from the respondents concerning any changes in the stairs in that intervening three year period;
(g)that the testing was performed in 200mm runs rather than the 800mm runs preferred by the standard and on areas of the stairs that did not replicate the surface conditions of the stair nosing at the time of the appellant's fall, particularly in view of Mr. Burn's testing having revealed timber surfaces with low coefficient of friction of 0.2.
15.His Honour erred in giving primary weight to the low coefficient of friction tests when such tests relate to floor surfaces in general and not to the specific area of the nosing of a step. His Honour ought to have found that such area required specific anti-slip measures such as a non-slip finish or a suitable non-slip strip as specified by the Building Code of Australia.
16.His Honour erred in law in the application of Section 5C(c) of the Civil Liability Act.
17.His Honour erred in failing to draw any inference of negligence or any inference adverse against the respondents by virtue of the changes made to the stairs on two subsequent occasions, particularly:-
(h)within weeks of the Appellant's fall, the application of non-slip strips to the nosing treads of the stairs;
(i)secondly in 2006 applying aluminium nosing and timber packers.
18.His Honour erred in finding that the extensions to the tread of the stairs by virtue of the aluminium nosing and timber packers did not increase the usable area of the stairs. In fact, preferring to rely upon the theoretical absence of a change in the “going".
I will deal in turn with the following issues: firstly, failure to apply Jones v Dunkel (Ground 11); secondly, the use made of Dr Cooke's evidence (Grounds 14 and 15); thirdly, the failure to properly address important evidence concerning slipperiness (Grounds 4, 6, 8, 9, 12 and 13); fourthly, the application of s 5C of the Civil Liability Act (Grounds 16, 17 and 18); and fifthly, the remaining grounds.
On Jones v Dunkel, it was submitted by written submissions, and also by Mr Daley in oral submissions for the appellant, that the respondents alone were in a position to call evidence on the questions concerning prior falls on the stairs, prior complaints, the nature and usage of the stairs and so on, so that the primary judge should not have taken into account in the respondents’ favour that there was no evidence concerning these things.
In relation to these matters, in the absence of any evidence which could have given rise to an inference that there had been prior falls or prior complaints, there is in my opinion no basis on which the primary judge should have applied Jones v Dunkel adversely to the respondents on these issues. The onus was on the appellant to prove there was a foreseeable risk against which a reasonable person in the position of the respondents would have taken precautions; and in my opinion, it was appropriate for the primary judge to comment that there was no evidence of prior falls or prior complaints that could have helped the appellant to discharge that onus.
Mr Daley also made submissions concerning a Jones v Dunkel inference that he says should have been made in the appellant's favour concerning the evidence of Dr Cooke, and I will come to that when I come to deal with the next grounds which concern Dr Cooke.
In relation to Dr Cooke, Mr Daley submitted that the primary judge erred in relying heavily on his evidence in circumstances where his testing was carried out three and a half years after the accident, and did not extend to testing the nosings of the steps which were then under the aluminium coverings; and where there was no evidence from the respondents as to the application or state of polyurethane coating at the time of the accident or in the three and a half years interim. Mr Daley submitted that evidence on these matters was entirely within the control of the respondents, and he submitted there should be a Jones v Dunkel inference to the effect that it should not be assumed in favour of the respondents that the condition as measured by Dr Cooke accurately reflected the condition of the stairs at the time of the accident.
Perhaps another way of putting the same submission is that it might be said that the respondents, wishing to rely on the evidence of Dr Cooke based on measurements taken three and a half years later, had an onus to establish that there was no significant change in the meantime; and on the basis of Commercial Union Assurance Co of Aust Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389, it may be taken that evidence that they might have led would not have assisted them in discharging that onus.
In my opinion, if the question of polyurethane coating had been raised prior to the hearing of the case, this submission could have had merit. However, the question was not raised at all prior to the hearing of the case, and there was not in any of the expert material prior to the hearing of the case anything to suggest that there was a significant difference made by the passage of three and a half years. Furthermore, Dr Cooke did take measurements both where polyurethane coating was worn and also where it was not significantly worn; and in the latter case, the measurements still averaged about 0.45: that is, significantly in excess of what is regarded as adequately non-slipping.
For those reasons, I do not think any material error by the primary judge on this aspect of the matter is shown. The primary judge did address the question whether the measurements of Dr Cooke on the treads were relevant to the condition of the nosing then under the aluminium coverings, and, in my opinion, it was well open to him to come to the conclusion that it was relevant and probative on the question.
The next broad issue raised for the appellant concerns what is said to be a failure by the primary judge to address and deal with significant evidence, particularly in relation to his consideration of the question of whether the steps were slippery.
It was submitted by Mr Daley that there was unchallenged evidence of the appellant that her foot slipped on the front of the step, although she was being careful, and that this strongly supported an inference that the step was objectively slippery. Mr Daley submitted the primary judge should have made a finding as to how the appellant came to slip, and should have addressed this evidence when he was making his findings on the question of slipperiness at paragraphs [142] to [144] of his judgment. Similarly, Mr Daley submitted there was unchallenged evidence from Ms Phillips that the steps were slippery, and the primary judge erred in not addressing that evidence also when he was making these findings.
The primary judge was undoubtedly aware of the evidence in question, and it was referred to by him at paragraphs [9] and [17] of his judgment.
In my opinion, there is no basis for concluding he did not have the evidence in mind when he was deciding the question of slipperiness. The question to be addressed, in my view, is whether this evidence was of such significance that it should have been specifically adverted to when the primary judge was making his findings on the question of slipperiness and considering the expert evidence on that question: see Mifsud v Campbell (1991) 21 NSWLR 725.
In my opinion, the evidence did not have that degree of significance, when compared with the expert evidence. The evidence of the appellant that she felt her foot slip was not, in my opinion, of itself strong evidence that the step was objectively slippery, which would weigh significantly against well-conducted measurements. It was a matter for the primary judge how much weight to give to this evidence, and the fact that the primary judge did not make a specific finding as to exactly how the appellant fell, and did not specifically refer to the evidence at paragraphs [142] to [144], does not mean that he disregarded it.
The evidence of Ms Phillips was not in a form in which it could be given very significant weight. Ms Phillips merely stated, "I am aware that the stairs were worn and slippery". The statement did not say what it was that made her so aware, and specifically did not say that she had ever actually felt her own feet slipping on the stairs. On the Ferrcom approach, it might be said that evidence about whether she actually felt her feet slip on the stairs was not given, and that if this question had been addressed it would not have assisted the appellant.
Having regard to the form of the evidence, in my view it cannot be said that because Ms Phillips was not cross-examined, her statement should be taken as having greater weight than its precise terms justify. So again, in my view, it was a matter for the primary judge how much weight he gave the evidence, and he could appropriately consider that its weight did not require him to address it specifically when dealing with the expert evidence.
Turning to the Civil Liability Act s 5C, Mr Daley submitted that the primary judge should have used the later measures taken by the respondents as showing that the risks associated with the steps could have been minimised by very modest expenditure; and he also submitted that s 5C did not apply at all to measures taken once the precise risk at the time of the accident had ceased to exist, and so did not apply to the second set of measures taken in this case.
In my opinion there was no error in this matter by the primary judge. At par [124] he did no more than express the terms of s 5C(c), to the effect that subsequent actions do not of themselves affect liability or amount to admissions.
I do not accept that, once there has been any change from the risk at the time of the accident, s 5C no longer applies. The question is whether something could have been done to have avoided that risk, and in my view it does not matter if at the time of the later actions there had been some change to the nature of that risk.
No substantial oral submissions were advanced on Grounds 2, 3, 5 and 7, and in my view there is no substance to any of those grounds.
In relation to Ground 10, it was submitted that the primary judge should have explicitly considered the allegations cumulatively, once he had gone through them individually. In my view there was no error by the primary judge to sum up his conclusions as he did in par [148] of his judgment.
For those reasons, in my opinion the grounds on the liability appeal fail, and I would propose that the appeal be dismissed with costs.
TOBIAS JA: I also agree with those orders for the reasons given.
CAMPBELL JA: I also agree with those orders for the reasons given.
HODGSON JA: So the order of the Court is: appeal dismissed with costs.
oOo

AMENDMENTS:

09/12/2010 - correction of section number to s5C in the first line of par [43] - Paragraph(s) [43]

LAST UPDATED:
9 December 2010