Alzawy v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church

Supreme Court of NSW|2016-08-10|Before: Garling J

Judgment

The plaintiff, Ms Carolin Alzawy, who was born in Egypt in 1980, having attended a bible study class at the premises of the defendant, St Mary and St Merkorious Church, at Rhodes in Sydney, fell whilst she was descending a set of internal stairs. She suffered personal injuries.
In 2013, the plaintiff commenced proceedings in this Court, claiming that the defendant was liable in negligence for her injuries. Her claim was fixed for hearing to commence on Wednesday 10 August 2016. On that day, due to some recent difficulties and complications concerning the plaintiff's claimed injuries and ongoing disabilities, the Court by consent ordered that issues concerning liability be determined in advance of all other issues in the proceedings.
Those issues were reduced to two questions: "(1) Did the defendant's breach of duty of care cause the plaintiff's fall referred to in paragraph 5 of the Amended Statement of Claim? (2) If Question 1 is answered "yes", was there contributory negligence and, if so, to what extent, on the part of the plaintiff in failing to: (a) use the handrail on the staircase; (b) detect and avoid the broken tiled nose on the tile steps."
This judgment deals with those two questions.

Factual Circumstances

Many of the facts were not in dispute. The evidence of a number of witnesses was not subject to challenge by cross-examination. It is convenient first to recount the uncontested facts, which I accept, before turning to the contested facts.
At the time of the accident, the plaintiff was just short of her 33rd birthday. She was born, raised, and educated in Egypt. Prior to her marriage in 2000, she worked in the marketing department of a tourism company. Together with her husband and first daughter, she moved to Australia in March 2003. On the first day of the family's arrival in Australia, they attended at the Church of St Mary and St Merkorious at Rhodes because they had to deliver a letter of introduction to the priest given to them by friends from their Coptic Church in Egypt. From that day onwards, the Alzawy family were regular attendees at the Church.
After arriving in Australia, the plaintiff had two more children. Her second child was born in October 2004 and her third child was born in September 2007. The plaintiff stayed at home to raise her children rather than seeking employment. As well, she undertook courses to improve her English and computer skills.
In 2007, the plaintiff slipped and fell while visiting the Bankstown Square Shopping Centre. It would appear that the presence of some tomato sauce on the floor of the shopping centre caused or contributed to that fall. As a result of the fall, the plaintiff suffered lower back pain which was sufficiently severe and persistent to cause her to seek legal advice. She unsuccessfully brought a claim with respect to that fall. The plaintiff's back pain persisted for some time, but it appears that she made a reasonable recovery.
After the first fall, in either late 2007 or February 2008, and before her fall the subject of these proceedings, the plaintiff fell in a Coles Supermarket at Casula Mall. Mr Alzawy gave evidence that the fall was before 2013, but he could not remember the date exactly.
He said that this second fall occurred in circumstances where there "… was maybe some splashed water on the floor". He said that "nothing major happened" to his wife. It was entirely unclear from his evidence whether he had been present on this occasion when his wife fell and saw what happened, or whether he had been told about what had occurred.
The plaintiff, when asked about this fall at Casula Mall, did not appear to recall the circumstances.
In late 2008 and through to the time of the accident in 2013, the plaintiff suffered from swelling in her legs. She was apparently diagnosed with deep vein thrombosis. She underwent surgery and had a number of admissions to hospital. As well, she was prescribed Warfarin to assist in preventing blood clots. She was encouraged to stay off her feet and regularly elevate her legs. Her condition meant that from time to time her legs became swollen and she experienced difficulty walking.
In 2011, the plaintiff joined a bible study group called El Mariamat, which met every Thursday morning at the Church after the celebration of mass. The plaintiff, and her sister-in-law, Ms Mariam Soleman, were regular attendees at the El Mariamat study group.
On Thursday 3 January 2013, the plaintiff and Ms Soleman attended the El Mariamat meeting in accordance with their usual practice. The meeting was held on the first floor of a building immediately adjacent to the Church, which formed part of the Church premises. The meeting finished at about lunchtime. The plaintiff attended to some minor tidying up, which took only a few minutes, before leaving the meeting room and proceeding towards the staircase. At that time, she was carrying a plastic cup containing small wooden stirrers in her right hand, and nothing in her left hand. The plaintiff was wearing medium-heeled, open toe shoes.
Ms Soleman gives this account of what occurred. As she was not cross‑examined, and her account was not challenged, I accept it. She said: "4. I was in front of Carolin and descended the stairs and waited for her at the bottom. 5. I turned to look up the stairs as I was waiting for Carolin. 6. I watched as Carolin descended the steps and then she started to fall forward. 7. As Carolin fell, she hit her head very forcefully on the metal handrail on the right-hand side (that is, as one looks up the stairs) and then her body bounced over to the other side of the stairs and she continued to tumble towards the bottom. 8. She came to rest near the bottom of the stairs almost at my feet."
Ms Soleman stated that after the plaintiff's fall, she observed some bruising, abrasions and swelling on the plaintiff. She said that the plaintiff seemed embarrassed "more than anything else". A doctor came and offered the plaintiff medication, which she declined. The caretaker of the premises, Mr Youhanna Mekhail, offered to call the plaintiff an ambulance, but the plaintiff said there was no need for one.
Mr Mekhail was in the vicinity of the fall, but did not actually see it. In his evidence, which I accept, Mr Mekhail said that he heard the voice of the plaintiff as she tumbled, and that the first time he saw her was when she was sitting at the bottom of the stairs on the left hand side of the stairs as one looked up the staircase.
The plaintiff confirmed in her evidence that she had walked up and down the staircase on "hundreds" of occasions prior to her fall.
The staircase was described by two experts who viewed it, Mr Neil Adams and Dr John Cooke. There was no dispute about the staircase, the nature of which is also evident from a number of photographs tendered to the Court.
It appears that the staircase was constructed in about 2000. It consisted of 16 steps, comprising 16 treads and 17 risers, in a single flight uninterrupted by any landing. As one descended the stairs, there was a single handrail on the left hand side for the first nine steps. The stairway initially curved to the right, and then to the left. After about the tenth step, a handrail appeared on the right hand side.
The steps were tiled and nose tiles were laid on the outer edge of each of the treads.
On the sixth step from the top, that is, about a third of the way down, there was on the left hand side as one descended a broken nose tile.
The experts agreed that the broken section of the nose tile was approximately 20mm deep and approximately 25mm wide. They agreed that the inner edge of the broken section was approximately 235mm from the face of the handrail, and that the length of the broken section was approximately 150mm.
As the parties' submissions noted, there was a degree of imprecision about the phrase "inner edge". It is unnecessary to be precise about that, but my conclusion is that the phrase "inner edge" was used by the experts to refer to the edge of the broken nose tile nearest the centre of the staircase.
As the photographs show, the broken nose tile on the sixth step is approximately where a person descending the staircase adjacent to the handrail on the left-hand side would have placed their left foot.
Mr Mekhail gave evidence that he commenced work as a contract caretaker at the Church in 2009 and noticed at that time that the nose tile was broken. It remained in that state, unchanged, until shortly after the plaintiff's fall. There was, as well, a second broken nose tile which was further down the steps and closer to the ground floor. Although photographs of that broken tile were in evidence, the parties were agreed that it played no part at all in the circumstances of the plaintiff's fall.

Contested Facts

As is apparent from the discussion of the issues earlier in this judgment, there was a contest between the parties about where the plaintiff was at the time she fell, and whether her fall was causally related to the broken nose tile.
There are several pieces of evidence upon which each party relied for the determination of this disputed factual question. Since that evidence is in relatively short compass, it is convenient to set out much of it in this judgment.
The plaintiff signed two written statements - one in October 2014 ("the first statement"), and another in May 2016 ("the second statement").
After I rejected the tender of hearsay evidence by the plaintiff, for the reasons I gave in Alzawy v Coptic Orthdox Diocese of Sydney, St Mary and St Merkorious Church [2016] NSWSC 1122, the plaintiff was called to give evidence. She was clearly quite physically disabled. To my observation, she attempted to answer questions directly, but clearly she struggled with some of the intellectual content necessary to answer the questions accurately. Most of the answers that she gave were not directly responsive to the questions.
To the extent that the plaintiff gave relevant and responsive answers, there was no reason to disbelieve them. For example, she said that before her accident she had walked up the stairs "hundreds of times". When that question was pressed, she gave an answer which was non-responsive.
However, because most of the plaintiff's answers were not responsive, it became readily apparent that no useful purpose was to be served by subjecting her to further cross-examination. Very properly, senior counsel for the plaintiff conceded that he would not make any submission based upon a failure to put questions to Mrs Alzawy in cross-examination. It was also clear that, whilst giving evidence orally, the plaintiff had no real recollection of the accident.
It is therefore necessary to analyse the plaintiff's statements and the statements of others in order to establish what occurred.
In her first statement, made on 15 October 2014, the plaintiff gave this account: "3. On 3 January I attended St Mary and St Merkorious Church at an El Mariamat meeting in the upstairs room. The meeting finished sometime between 12 noon and 1pm and we left the meeting and started walking down the stairs. 4. I was walking down the stairs; I was holding some coffee stirring sticks. My right hand had the coffee sticks and my left hand had nothing in it. I was not holding the rail. I was near the top of the stairs and then I fell down the stairs, right to the bottom. On the way down I hit my head on the stair rail and then fell like a ball. When I got to the bottom I could not get up. I tried, but people came around and told me to sit still. Someone got some ice and put it on my head and someone gave me a painkiller. Then eventually my sister-in-law took me home. I was feeling very dizzy and not very good at all. We went home because my kids were coming home from school. 5. The next day my arm started jerking and that's when my problems started. People have said that they knew that there was a broken tile on the stairs. I did not know there was a broken tile on the stairs. I have been up the stairs many times before, but I had never noticed it."
In her second statement, dated 6 May 2016, the plaintiff gave this account of her accident: "2. When the meeting finished I started tidying up the meeting room, which only took a few minutes. My sister-in-law, Mariam, had already walked out of the room to head downstairs. 3. I left the room and had in my right hand a plastic cup containing coffee stirrers. I had nothing in my left hand. 4. I was wearing medium-heel open toe shoes. I still have those shoes. 5. As I approached the top of the stairs, I moved slightly to my left to be closer to the handrail, but I did not use the handrail as I commenced descending the stairs. 6. The reason I moved to the left is because there is no hand rail on the right-hand side for the first half of the stairs, so my preference was to be closer to the handrail on the left-hand side. 7. I was looking generally down the steps as I commenced stepping down. 8. I had gone down several steps with no problem. 9. When I was approximately one third of the way down, I placed my left foot on the top of a stair and it immediately slid forward off the stair and my heel caught the edge causing my body falling forwards. 10. I attempted to reach out to the handrail with my left hand, but was unable and my body fell forward and impacted with the stairs very heavily and tumbled down. 11. I struck my head on the bottom of the railing as I tumbled towards the bottom, then my body bounced over to the right of the staircase. 12. I ended up near the bottom of the stairs on my back almost at Mariam's feet. I was in a state of shock."
The plaintiff then gives a similar account to her first statement as to what occurred immediately after the accident. She noted that she felt "very embarrassed" by what had occurred. The plaintiff then went on to say: "17. A few days later it was Coptic Christmas Mass. I believe this was on the Saturday night. 18. Just before Mass I took my husband, Wael, over to the staircase and showed him the step from where I fell, and that is the first time that I noticed that there was a large section of the edge of the tile on that step missing where my foot had slipped forwards. 19. I looked at the other stairs as well, and noticed that there was a step closer to the bottom which also had a section missing. 20. Even though I walked up and down those stairs many times in the past, I had never noticed either of those broken tiles. 21. Wael took photographs of that particular step and of the whole staircase in my presence, then we attended Mass."
The plaintiff's husband, Mr Wael Alzawy, was called to give evidence. His statement, dated 18 August 2015, was tendered. Relevantly, it included the following: "46. A few days after the accident, Carolin and I, along with my sister Mariam, went to the Church to photograph the step which caused Carolin's fall. 47. Carolin pointed out the step which caused her to fall. A large piece of its edge was missing. 48. I took photographs on my camera phone of the stairs and the some close up photographs of the step with the broken edge that Carolin said her foot slipped off. 49. A day or two later I showed Father Bishoy and Father Youhanna the photos on my phone." (sic)
In her statement, Ms Soleman, the plaintiff's sister-in-law, does not give any evidence about viewing the staircase with her brother and the plaintiff when photographs were taken of it.
Mr Alzawy was cross-examined. He confirmed what he said in his statement, namely that he and his wife visited the area where the staircase was prior to the Coptic Christmas Mass. He said that when they attended the area of the staircase, his wife pointed to the step and the area where "the defect" was. He was clear in his evidence that his wife pointed out the defective step, although he could not remember what his wife said at the time.
Mr Alzawy's evidence as to what occurred at the Church a few days after his wife's fall was the subject of some cross-examination. However, it was not suggested to Mr Alzawy that his wife did not point out the step to him which had a broken nose tile, or that she suggested there was any other place from which she fell.
I have no reason to doubt that when Mr and Mrs Alzawy, along with Ms Soleman, visited the Church for Christmas Mass, Mrs Alzawy identified the sixth step down from the top, upon which there was a broken nose tile, as being the place from which she fell. This was consistent with the description she gave in her second statement.
It is also necessary to note the evidence of Mr Sharpe, the solicitor for the plaintiff. I am satisfied that Mr Sharpe is a very well experienced litigation solicitor who is conscious of his obligations as such. Mr Sharpe gave evidence, which I accept, with respect to the plaintiff's first statement taken on 15 October 2014. He said that he was concerned about the extent to which the plaintiff's physical and mental condition had deteriorated, and concerned that he could not get a full description from the plaintiff about the mechanics of her fall. However, he said that he had no reason to doubt the reliability of the statement which he was able to take on that occasion.
Mr Sharpe did not seek, at that time, to have a tutor appointed for the plaintiff to give him instructions. I infer that although he may have been concerned about the plaintiff's mental state at that time, his concern was not sufficient for him to cause a tutor to be appointed. Put differently, Mr Sharpe remained satisfied that the plaintiff was cognitively able to continue to give him proper instructions to conduct the litigation.
The plaintiff's second statement, although dated 6 May 2016, was taken on 30 April 2016 in conference with Mr Sharpe and junior counsel. The statement contained greater detail than the first statement. Mr Sharpe gave evidence, again which I accept, that it was his observation that the plaintiff's condition had improved markedly since October 2014. This improvement would explain why the plaintiff's second statement contained greater detail about her fall than the first statement.
Mr Sharpe also gave evidence that, within a week of taking instructions from the plaintiff's husband by telephone in March 2013, he arranged for a conference with the late Mr A Lidden SC. Mr Sharpe attended at that conference with Mr Lidden, as did the plaintiff and her husband. At that conference, the photographs which the plaintiff's husband took on his mobile phone were shown to counsel and to Mr Sharpe. A proof of evidence was not taken from the plaintiff at that stage, but the plaintiff was asked to describe what happened to her which caused her to fall.
Mr Sharpe said that he received a draft Statement of Claim from Mr Lidden the day after the conference. Except for some additional details about the name of the defendant, the draft Statement of Claim accorded with the original Statement of Claim that was filed. Mr Sharpe said that the version of the accident contained in the original Statement of Claim accorded with the instructions that Mrs Alzawy gave Mr Lidden in conference. The content of the original Statement of Claim prepared my Mr Lidden is set out at [6] above, as part of the Amended Statement of Claim.
On 11 January 2013, just over a week after the accident, the plaintiff attended on Dr Kanawati, her general practitioner. Dr Kanawati's note of that consultation has been tendered. Insofar as the note records anything about the fall, it is this: "A fall at church on 3.1.13. Broken steps of staircase."
The note also records details about the plaintiff's injuries and other clinical matters, which are unnecessary to set out here.
The plaintiff tendered a report of Associate Professor Richard Jones dated 1 August 2016. Associate Professor Jones is a specialist in Rehabilitation Medicine who examined the plaintiff at the request of the solicitors for the defendant. The tender was not objected to by the defendant, nor was any condition sought to be placed on the admission of it. Associate Professor Jones interviewed and examined the plaintiff at the end of July 2016. He obtained the following history from her about the accident: "Carolin attempted to describe the incident of 3 January 2013, saying that she had fallen down the stairs as one step was broken, and she was wearing sandals with a small heel. … Carolin went on to say that she fell down the stairs like a ball. There was an injury to the left side of her forehead and to the fingers of her right hand and no loss of consciousness."
Although this is hearsay evidence, because it contains a previous representation made by the plaintiff to Associate Professor Jones, it is admissible because it is relevant to explaining the basis for Associate Professor Jones' opinion, which is not a matter of proof of the asserted fact: s 60 Evidence Act 1995. The effect of s 60 of the Evidence Act is that the out of court representation made to Associate Professor Jones, which explains the assumptions of fact upon which his expert opinion is based, is, in the absence of any condition imposed pursuant to s 136 of the Evidence Act, admissible to prove the existence of the asserted fact.

Joint Expert Report

The expert evidence tendered by both parties is of assistance when dealing with the contested factual evidence.
The parties each retained an expert. The plaintiff retained Mr Neal D Adams, an ergonomist and safety management consultant, who provided two reports. The defendant retained Dr John Cooke, a consultant architect, who also provided two reports. The experts had before them, among other evidence, the photographs taken by Mr Alzawy. They also inspected the staircase at the Church in April 2015 and February 2016, respectively, although the condition of the staircase had changed by then. The experts considered the staircase, its configuration and the nature of the broken nose tile, the latter being shown in the photographs taken by Mr Alzawy.
Their joint expert report, prepared after their conference on 5 August 2006, included the following statements: "1.1 Having regard to the descriptions of the fall as provided in documents briefed to you, what are the possible mechanisms by which the plaintiff fell? The description in paragraph 5 of the Amended Statement of Claim is 'she lost her footing due to the broken edge thereof'. Having regard to that description of the fall, we agree that, if she stepped on the broken edge, the broken edge was sufficient to have caused her to lose her balance and fall."
The experts jointly expressed a similar view with respect to the contents of the plaintiff's second statement. The experts agreed that the broken nose tile was on the sixth tread down from the top of the staircase, on the left hand side as one descended the stairs. They agreed on the dimensions of the broken nose tile which I have set out at [30] above. They were asked these questions, and expressed these opinions: "2.2 … would the broken tiled nose of such dimensions and in such location pose a potential risk to stair users? Yes, we agree. 2.3 If question 2.2 is answered 'yes': (a) in what circumstances? We agree that a person who unwittingly stepped on the broken section posed a potential risk of a loss of balance caused by instability of the foot on landing. (b) what is the nature and extent of the risk posed? We agree that the nature of the risk is that a loss of footing or the loss of balance initiated by an unstable footing, poses the risk of a fall, and any fall down a stair poses the risk of significant injury. … (c) what effect would the broken nose (with the broken part missing) have on the balance of a pedestrian descending the stairs in the event that the pedestrian's foot was placed on that part of the step? We agree that a stair user stepping onto the broken nose would have been at risk of a loss of balance with the potential of a fall."

Plaintiff's Submissions

Against that evidentiary background, the plaintiff submitted that the Court would be persuaded that the plaintiff's fall occurred because she placed her left foot on the broken nose tile on the sixth step from the top, lost her balance, and tumbled down the staircase.
The plaintiff submitted that the Court ought to accept her version of the accident because all of the versions she had given across time were consistent, logical and persuasive, and there was no other version which provided a contrary factual account of what happened.
The plaintiff submitted that she gave a description of falling from the sixth step (with the broken nose tile) only a few days after the accident, when she visited the Church with her husband and sister-in-law and pointed out the step from which she fell. The fact that she gave this account and that her husband took photographs of that area was not challenged on cross‑examination. It followed on the plaintiff's submission that the Court should accept the account which Mr Alzawy gave of the visit to the Church only a few days after the accident.
The plaintiff next submitted that the account she gave to Dr Kanawati on 13 January 2013 was consistent with the broken nose tile being the cause of her fall. The plaintiff submitted that the two notes recorded in Dr Kanawati's clinical records, found above at [54], demonstrated that the plaintiff was giving an account of her fall which implicated the broken step. That description, the plaintiff submitted, was supported by the photographs taken by her husband on 6 January 2013.
The plaintiff next submitted that the Statement of Claim that was filed on 4 July 2013 represented accurately what senior counsel was told in conference in March 2013. The plaintiff pointed to the consistency of this account, given directly by the plaintiff to senior counsel, with the evidence contained in her second statement of 5 May 2016.
In short, with the possible exception of her first statement, the plaintiff submitted that each account given by her was consistent, and that each account described her fall as being causally related to the broken nose tile.
The plaintiff submitted that her first statement of 15 October 2014, in which she said that she was "… near the top of the stairs …" when she fell, was not inconsistent with her other accounts, particularly when read in the context of an earlier part of that statement, where she said that after the meeting and before her fall she had "… started walking down the stairs". As well, the plaintiff pointed to the fact that, at the end of paragraph 5 of that statement, she referred to the existence of a "broken tile". The plaintiff submitted that there would have been no need to refer to a broken tile in that statement if it had not been causally related to the plaintiff's fall.
The plaintiff accepted that her accounts were not able to be tested in cross‑examination, but nevertheless submitted that the degree of consistency, and the common sense and logic of her account, particularly in light of the experts' view expressed in their joint report as to the plausibility of a fall being caused by a person stepping on the broken nose tile, would lead the Court to accept her account. She also relied upon the corroboration provided by other witnesses whose evidence was not challenged.

Defendant's Submissions

The defendant submitted that the Court would, in all the circumstances, be very cautious before accepting statements which were, in effect, hearsay, in circumstances where the plaintiff was not able to be effectively cross‑examined upon those statements having regard to her mental condition at the time of the hearing.
The defendant submits that the plaintiff's statement of 15 October 2014, in which she said that she was "… near the top of the stairs …" when she fell, was wholly inconsistent with her falling from the sixth step of a flight of 16 steps. The defendant submitted that it was not possible to reconcile that statement of being near the top of the stairs with the location of the broken nose tile, which was about one-third of the way down the stairs. The defendant submitted that, on any view, the step with the broken nose tile was closer to the middle of the staircase than would be contemplated by a description "near the top of the stairs".
The defendant submitted that a fair reading of the references, in paragraph 5 of that statement, to a "broken tile" do not provide any basis for an inference to be drawn that the broken nose tile was causally related to the plaintiff's fall.
As well, the defendant pointed to the fact that, even accepting the plaintiff's description in her second statement, which is the more detailed of the two statements, the plaintiff gave no evidence of detecting any irregularity on the surface of the step on which she trod. The defendant submitted that, given the nature of the broken nose tile, in particular the depth of it, one would have expected that, had the plaintiff fallen because of that tile, she would have included such a description.
The defendant pointed to the fact that the plaintiff said to her husband, when visiting the staircase a few days after her fall, that she had not noticed the broken nose tile until she saw it on that occasion. This, the defendant submitted, was inconsistent with the plaintiff having trod on the broken nose tile, because the plaintiff ought to have felt the inadequate support given by the broken nose tile at the time of the accident.
Further, the defendant submitted that the Court should take note of the fact that the account of the fall given by Ms Soleman, the plaintiff's sister-in-law, did not contain any description dealing with the broken nose tile, and that there was nothing in it which suggested that the broken nose tile on the sixth step was implicated in the fall. As well, the defendant pointed to the absence in that statement of any evidentiary description of the plaintiff's position on the staircase, immediately prior to or at the time of her fall, which would have been expected in light of the contents of her statement as set out in [22] above.
Given the contents of that statement, and the absence of any attempt to supplement it by further evidence in chief, the defendant submitted that the Court should draw an inference of the kind described by Handley JA in Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd [1991] 22 NSWLR 389 at 418E-F, namely that such examination in chief would have exposed facts unfavourable to the plaintiff, and therefore no inference favourable to the plaintiff ought to be drawn in the circumstances.
Ultimately, the defendant submitted that there was no direct evidence implicating the broken nose tile in the plaintiff's fall and that the evidence in its totality was insufficient for the Court to infer that the tile was causally related to the plaintiff's fall.

Discernment

The starting point in the consideration by the Court of the factual circumstances of the fall is to emphasise that the Court is considering the question of factual causation, namely whether the breach of duty admitted by the defendant "… was a necessary condition of the occurrence of the harm": s 5D(1)(a) Civil Liability Act 2002. In those circumstances, it is for the plaintiff to prove "… on the balance of probabilities, any fact relevant to the issue of causation": s 5E Civil Liability Act.
As the plaintiff was not able to be cross-examined at the hearing, it is necessary to consider carefully any version of events which she has given and, in particular, any inconsistencies in that evidence. Caution must be exercised before accepting her evidence.
The central disputed fact is where the plaintiff was at the time she lost her balance and fell. Put concisely, the question is: was the plaintiff treading on the broken nose tile on the sixth step with her left foot when she fell, or did her fall commence elsewhere on an unbroken step "near the top" of the staircase?
An analysis of this disputed fact can conveniently commence with evidence which was not challenged. On the sixth step, there was a broken nose tile which, the experts agreed, posed a risk that a person who was descending the staircase and who placed their foot on the broken nose tile would lose their balance and fall.
Ms Soleman's account of the plaintiff's fall described the plaintiff descending the steps and starting to fall after she had commenced her descent. She also stated that, as the plaintiff fell, she hit her head forcefully on the metal handrail located on the left-hand side of the staircase as one descended the stairs. She recorded that the plaintiff ended up on the other side of the stairs when she came to a stop at the bottom of the stairs. This account is corroborated by the evidence of Mr Mekhail who, although he did not see the plaintiff fall, observed her to be resting in the same position as that described by Ms Soleman.
Ms Soleman's evidence that the plaintiff's fall happened after she commenced her descent is consistent with the plaintiff's account in her second statement of falling from the sixth step.
When the plaintiff returned to the scene a few days after the accident, she indicated to her husband, in Ms Soleman's presence, the left‑hand side of the staircase (as one descends the stairs) and the sixth step where the broken nose tile was. There is no suggestion that when she did so, Ms Soleman proposed any different view based on her own observation. In accepting Ms Soleman's evidence, I am not prepared to draw a "Ferrcom inference" as the defendant submitted I should do. Contrary to the evidentiary position in Ferrcom, the plaintiff here has provided evidence of the location of her fall. Both she and her husband gave that evidence. To the extent that Ms Soleman did not give evidence about the precise location of the plaintiff's fall, and in circumstances where she was available to be cross-examined but the defendant chose not to cross-examine her, I am not prepared to draw any inference adverse to the plaintiff for not seeking further evidence from her, or the defendant for failing to challenge any part of her evidence. I simply note that she did not give any evidence about the matter.
The accounts given by Mr Mekhail and Ms Soleman are consistent with the account given by the plaintiff in her second statement. The account given by Mr Alzawy, which was not challenged in cross-examination, about his return to the Church premises on 6 January 2013 and the taking of photographs of the step to which the plaintiff pointed, is also consistent with the plaintiff's second statement. The plaintiff's second statement is also consistent with the accounts recorded by Dr Kanawati and Associate Professor Jones.
The only inconsistency apparent from the accounts given by the plaintiff is the use of the expression "I was near the top of the stairs" in her first statement. The context in which that phrase appeared was that the plaintiff had earlier said in that statement that she had "… started walking down the stairs".
The question to be considered in understanding this "inconsistency" in the plaintiff's accounts is whether a step sixth from the top in a flight of 16 steps can properly be described as being "near the top of the stairs".
I do not regard the plaintiff's description of where she fell in her first statement as necessarily being inconsistent with the plaintiff's other accounts of what occurred. The step with the broken nose tile was certainly nearer the top of the staircase than the bottom. It is within ordinary parlance in giving a general description of what occurred, if the plaintiff had commenced to descend the staircase, to say that she was still near the top of the stairs when she stepped onto the sixth step.
In each of her accounts, the plaintiff recorded that she was not carrying anything in her left hand, and that she was holding a container with wooden stirring sticks in her right hand. She also recorded that she moved slightly to her left to be closer to the handrail. This suggests that she is likely to have been descending the stairs in a location where she may well have stepped on the broken nose tile.
Having regard to the plaintiff's size, as recorded in Dr Kanawati's clinical note, and the fact that the plaintiff had recently experienced difficulty walking due to swelling in her legs, it seems highly likely, in the absence of a handrail on the right hand side of the staircase, that the plaintiff would have moved to the left hand side of the staircase, keeping her left hand free in order to take the handrail if she thought it was necessary. It follows that she was within easy reach of the left hand handrail.
For a person descending the staircase, that positioning would place her, as the plaintiff said, near the left hand side. This positioning is corroborated by the evidence of Ms Soleman, when she notes that the plaintiff, having struck her head on the handrail, bounced across to the other side of the staircase where she came to rest.
In all of the circumstances, I am satisfied on the balance of probabilities that what occurred was as follows: 1. the plaintiff commenced descending down the left hand side of the staircase, with her left hand free to take hold of the handrail if she thought it was necessary; 2. a short time after she started descending (that is, after descending a number of steps), the plaintiff slipped and fell; 3. the plaintiff then struck her head on the iron railing on the left hand side of the staircase; and 4. the plaintiff continued to fall down the staircase before coming to rest at the bottom of the staircase on the right hand side.
I am satisfied, in accordance with the plaintiff's statement of 6 May 2016, that when the plaintiff was about one third of the way down the staircase, her left foot stepped onto the sixth step where the broken nose tile was, and that the broken nose tile caused her to lose her balance and fall.
I do not think that the plaintiff's first statement of 15 October 2014, is inconsistent with that account but even if it was, the preponderance of the evidence strongly favours accepting the plaintiff's account which I have just described.
It follows from acceptance of that factual account that the broken nose tile was a necessary condition of the occurrence of the particular harm suffered by the plaintiff, namely her physical injury: see s 5D(1)(a) Civil Liability Act.
As the defendant admitted that the presence of the broken nose tile on the steps amounted to a breach of duty on its part, I conclude that the plaintiff has established that her fall was occasioned by the negligence of the defendant.

Contributory Negligence

The defendant pleaded that the plaintiff was guilty of contributory negligence because she failed to take hold of the handrail as she descended the stairs, and did not observe the broken nose tile and thereby avoid it.
A court considering any question of contributory negligence needs to do so in accordance with s 5R of the Civil Liability Act. It is in the following terms: "(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time."
If contributory negligence on the part of a plaintiff is established, then the Court is obliged to apportion responsibility "… to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage": see s 9(1)(b) Law Reform (Miscellaneous Provisions) Act 1965.
It was not suggested by the defendant that the extent of the plaintiff's contributory negligence was such that, as is permitted by s 5S of the Civil Liability Act, the claim for damages should be defeated on the basis that she was 100% responsible for her fall.
In determining whether to make a finding of contributory negligence, one is applying an objective test to the facts and circumstances of the case, including what the plaintiff knew or ought to have known at the time: see s 5R(2)(b) of the Civil Liability Act; Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 at [16].
The plaintiff, at the time of descending the staircase, had fallen on two previous occasions at shopping centres, in circumstances where she suffered injuries from those falls. The defendant did not rely upon that history as presenting a reason why the plaintiff may have fallen, but rather indicated that such past experience ought to have alerted the plaintiff to the fact that she would be injured if she fell in circumstances where she was not taking reasonable care.
The defendant submitted that, having regard to the plaintiff's weight and size, and her recent history of difficulty with swelling in her legs, she ought to have paid particular attention to her surroundings, and used the readily available handrail when descending the staircase.
There is no doubt that, in considering whether a plaintiff has been contributorily negligent, it is necessary to have regard to a plaintiff's personal responsibility for his or her own safety: see Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 at [67]-[68] per Ipp JA.
The facts relevant to the plaintiff's contributory negligence are relatively straight forward. Senior counsel for the plaintiff conceded that these facts were established. The facts which I find established which are relevant to contributory negligence are: 1. the context of the plaintiff's previous falls described above; 2. the fact of the plaintiff's health problems which have been described above; 3. the existence of a suitable hand rail which was available to be used by the plaintiff as she descended the staircase, and of which the plaintiff was cognisant given that she ensured that her left hand was free of any items so that she could use the hand rail if she thought it necessary; 4. the fact that, as the photographs demonstrate, the broken nose tile was obvious to a person descending the staircase had they taken even a casual look at the state of the staircase.
In my view, any person descending a staircase needs to take appropriate care for their own safety because staircases are a well-known source of potential harm. Descending a staircase, particularly one such as that which existed here, is not an action which can be taken for granted by any reasonable person exercising reasonable care for their own safety.
The plaintiff, in my view, should have used the handrail as she descended the staircase. She ought to have, but did not, keep a proper lookout for the broken nose tile.
I am satisfied that if the plaintiff had held the handrail, then even if she stepped on the broken nose tile, it is unlikely that she would have slipped and fallen down the stairs as she did. I am also satisfied that if the plaintiff watched out for the broken nose tile and noticed it, as she should have, then she would have avoided stepping on it.
I am satisfied on the balance of probabilities that if the plaintiff had taken either of those precautions, which she ought reasonably to have taken, the fall would not have occurred.
In those circumstances I am satisfied that the plaintiff was guilty of contributory negligence.

Apportionment

It is necessary to apportion the respective fault of the defendant, who maintained a staircase on which there was, for a lengthy period of time, a broken nose tile, and the plaintiff, who failed to take care for her own safety by taking hold of the handrail and observing the broken nose tile.
Apportionment is an evaluative process. The process was described in this way by the High Court of Australia in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492: "The making of apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both in culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."
The defendant's negligence consisted of failing, over a lengthy period of time, to repair or replace the broken nose tile which existed on the sixth step of the staircase. The existence of that broken nose tile was known to its caretaker for about four years prior to this accident. It was obvious and could be seen by anyone who walked by. The obligations of an occupier of premises require them to observe such defects and repair them promptly. This is particularly so when the defects occur at the upper end of a staircase, thereby creating a risk that a person might lose their balance and fall some distance to the ground.
The plaintiff's failure to take care for her own safety is demonstrated by the fact that, although the broken nose tile was obvious, she did not notice it prior to, or on the day of, the accident. She had no difficulty with her sight, the staircase was well lit and it is not suggested that there was any reason which could explain why she had not noticed the defect. As well, the plaintiff was a person who was aware of the connection between falling over and suffering personal injury. She had suffered two previous falls. A reasonable person descending the staircase would have looked in front of them to observe the broken nose tile and thereby avoid it. As well, a reasonable person would have held on to the railing as she descended.
On the one hand, the defendant created the risk of injury, and on the other hand, the plaintiff could have, by relatively simple steps, avoided injury and avoided stepping in the area where the risk was.
In my view, having assessed the departure of each of the parties from the reasonable standard of care applicable to them, and having regard to all of the facts and circumstances, it is just and equitable for the plaintiff's share of responsibility for her injuries to be assessed at 50%.

Conclusion

I am satisfied that the plaintiff has established that her fall was occasioned by the broken nose tile on the defendant's staircase in circumstances where the defendant was in breach of its duty of care with respect to that nose tile, and that the plaintiff is guilty of contributory negligence because she failed to take reasonable care for her own safety.
In my view, the liability for the plaintiff's injury should be shared equally between the parties.

Answers to Questions

It is appropriate to record formally the answers to the two separate questions: 1. Did the defendant's breach of duty of care cause the plaintiff's fall referred to in paragraph 5 of the Amended Statement of Claim? 2. Answer: Yes. 3. If Question 1 is answered "yes", was there any contributory negligence and, if so, to what extent, on the part of the plaintiff in failing to use the handrail on the staircase and to detect and avoid the broken nose tile? 4. Answer: The plaintiff was guilty of contributory negligence. I assess the extent of the plaintiff's contributory negligence as 50%.

Costs and Subsequent Orders

In light of the answers to these questions, it will be necessary to make further orders with respect to the disposition of the remaining issues in the proceedings.
It seems appropriate that the costs of the determination of the separate questions abide the outcome of the remaining issues.
Accordingly, the Court will need to give further directions for the conduct of the balance of the litigation, upon delivery of this judgment.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 August 2016

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Judgment (14 paragraphs)

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