Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trust v Thompson

Judgment 1MEAGHER JA: I agree with Hoeben JA. 2HOEBEN JA: Nature of appeal On 10 November 2007 the respondent suffered serious injuries when he fell while descending steps on a Victorian era rotunda, located in Machattie Park, Bathurst. He brought proceedings in negligence against the appellant as the trustee of the occupier of the rotunda. He was successful and recovered damages against the appellant. 3The appellant has appealed against the finding of liability and in respect of the award of damages for future loss of earning capacity. Factual background 4The respondent, with a teaching colleague and a friend, Ms Gray, travelled to Bathurst on the Remembrance Day weekend in November 2007. On 10 November the three visited Machattie Park, which is the property of the Bathurst City Council Crown Reserves Reserve Trust (the Trust). The case was conducted on the basis that the Bathurst Regional Council (the appellant) was the Trustee. The respondent had not been to the park since his childhood days. 5Located in the park was a Victorian era rotunda. The floor surface of the rotunda was raised and there were four entrances to it. Each entrance comprised a number of steps. While in the park, the three entered the rotunda and spent some three minutes or so admiring aspects of the park. They then determined to leave the rotunda from the north-western entrance/exit. This entrance/exit comprised four concrete steps, bordered by two sandstone retaining walls. It was different to the one by which they had gained access to the rotunda. 6As the respondent left the rotunda deck, he placed his left foot on the top step. The front half of his foot was overhanging that step. As he carried his right foot through the air with the intention of placing it onto the next (lower) step, his left foot also moved involuntarily forward in response to the transfer of his full body weight to that foot. Unable to maintain his footing, he fell down the stairs, seriously fracturing his left tibia and the neck of the fibula. 7The respondent was aged 50 at the time of the accident and had worked as a teacher since 1979 at the Bowral Public School. Before this accident he had no physical disability. He ran, walked, played tennis and on occasions visited the gymnasium. As part of his teaching duties, he taught Physical Education, as well as training and coaching sporting teams. 8Following the accident, the respondent was taken by ambulance to the Bathurst Base Hospital and from there was transferred to the Bowral Southern Highlands Private Hospital. Surgery was performed on his left leg on the Sunday afternoon. He remained at the Southern Highlands Private Hospital for a week. While convalescing, he developed a staphylococcal infection in the wound. He did not return to work until the end of April 2008, initially on a part-time basis. He has been left with a significant limitation of movement in the left leg but despite his disability, has been able to continue in his employment as a teacher. The evidence at trial 9On the day following the accident, the respondent's two companions returned to the rotunda. The evidence of Ms Gray, with respect to that visit was: "Q. What did you do on this further visit to the Machattie Park on the Sunday? A. Went and had a look at the steps around the rotunda. Q. What did you observe? A. That the steps we walked up were different to the steps we walked down and that the steps we walked down, the top step was narrower than any of the others." (Black 43P-R) 10The respondent went to Machattie Park just before he returned to work for the purpose of having a look at the place where the injury occurred. His evidence on this issue was: "A. I noticed - sort of went through the accident again, if you like, with a little bit of trepidation standing on the top of the floor of the rotunda at the stairs where I walked forward and slid down. I noticed that the step on the - on the top of the staircase which I went to go down was much narrower in width than the length of my shoe. In actual fact, if I put my foot onto the top step, like I did on that day then when I just pivoted that forwarded that the ball of my foot, that front area behind the toes is actually not supported by any stair at all and I could see it was - no wonder that when I lifted my right foot off there was nothing to actually support my - my weight as I made my normal progression down the staircase." (Black 22D-G) 11Exhibit A6 is a photograph showing the respondent's left foot on the relevant step, in the position that he described in his evidence. The photograph shows a little over half of the foot supported by the step. In particular, the ball of the foot and toes were not on or supported by the step. 12There were no signs anywhere about the rotunda, warning of the narrowness of the top step. Although the issue of contributory negligence was run at trial, it was not raised in the appeal. The appellant accepted that the respondent exercised appropriate care when descending the steps. 13Support for the respondent's case was provided by an engineer, Mr Burn. He visited the rotunda in April 2011 and prepared a report, dated 23 April. 14Mr Burn observed that there were no handrails associated with the rotunda steps. The park was well maintained with landscaped gardens, a fernery, a flower house and a fountain. The rotunda was located adjacent to the fountain. He described the rotunda as a wooden structure, surrounded by a flowerbed. 15Mr Burn described the steps on which the respondent was injured. They were constructed of concrete, which had worn with time. There were no anti-slip strips on the nosings of the steps, which were exposed to the elements. The steps were cracked with pieces missing. The landing had a timber tread, which was worn smooth with cracks. 16When Mr Burn measured the goings (i.e. the width) of the steps on which the respondent fell, the top step measured 190 mm and the lower three steps each measured 240 mm. The top step was that on which the respondent slipped. In relation to that step, Mr Burn said: "The step is not of sufficient width to accommodate the foot and therefore does not provide stability, shape/lateral position under shoe." (Blue 12R) 17Mr Burn observed what appeared to be modifications to the rotunda in that concrete had been poured on the inside of it as part of a maintenance program. This had the effect of raising the interior level of the rotunda. It also had the effect of allowing concrete to encroach upon the top step, thereby reducing the width of its going. In relation to that work, Mr Burn said: "On completion of this work and at regular intervals, risk assessment inspections ought to have been undertaken to reveal hazards caused by the work or due to wear and tear. Had this procedure been undertaken, the hazard would have been identified and could have been remedied." (Blue 14D-F) 18Mr Burn described the circumstances prevailing at the time of the accident as follows: "Therefore, at the time of injury, the following situation was in place: (a)The treads of the landing and steps were worn, cracked and with pieces missing. (b)The nosings of the steps were rounded and worn. (c)The top going was shortened by modification works and was not of sufficient width to provide stability when descending. (d)There were no anti-slip strips at the nosings. (e)There was no handrail. (f)The steps were perceived as being uniform (as is typical with most non-spiral stairs). (g)There were no warnings signs." (Blue 15C-J) 19Mr Burn suggested that the accident could have been avoided by the following action: "(a)Placing warning signs advising of the dangers of using the steps at suitable locations near the exit. (b)By installing railings to provide stability. (c)By placing anti-slip strips at the nosing of each step and landing. (d)Reconstruct the rotunda steps in accordance with current standards (at the next rotunda refurbishment) to remove the hazard presented by uneven steps." (Blue 20Q-U) 20Mr Burn gave evidence and was cross-examined. In that evidence, Mr Burn explained that where the edge of a step was worn it effectively reduced the available going of that step. If the going of a step were too narrow, this would cause a person descending those steps to "overstep", which "increases the risk the foot will slide off the edge and the person will be thrown off balance". (Black 59M) 21Mr Burn said that the nosing on the steps could be repaired for $100 for each step. The cost of non-slip metal edges would have been approximately $100 per step to a maximum of $1000 for all four steps. 22In relation to the concrete which had encroached upon the top step, Mr Burn advised that it could be removed by chipping away that section of cement so as to cause the going of that step to match the steps below it. His estimate of cost for that was "a few hundred dollars at least" (Black 72L, 73H, 73L). 23Mr Burn described the process as follows: "Q. How could you propose alterations to the steps without knowing how the rotunda was built? A. From examining that top step, the front edge or the riser has been modified in the past by the fact that it has a different texture and a different coloured concrete and it has spilled out under what looks like a bit of timber used to form it up, so to me that means that top step has been modified in the past so all I'm looking at doing is taking a modification off to go back and widen the step." (Black 79O-R) "Q. But you have no basis for making that assumption do you? A. The fact that the concrete is different, the fact that it shows evidence of having been formed up at a later time with the concrete across the - going on that top step gives me the - you only see that when you form concrete and pour it and you don't seal it properly at the bottom and it spills out of the formwork so that means at some stage that has been modified from what it was originally." (Black 79W-Y, 80C) 24Mr Burn estimated that the modifications affecting the top step had been carried out between 10 and 15 years before he made his inspection. He reached that conclusion on the following basis: "A. The difference in colour of the concrete, the age of the structure, the last time it was likely refurbished, being the sort of thing it is you have to periodically maintain them." (Black 83P-Q) "Q. Part of the basis for that conclusion is your experience about how often buildings need maintenance? A. Having worked in Local Council and having been involved and - well having worked with the Parramatta park engineer when I was at Parramatta knowing how often they had to maintain the structures in Parramatta Park, that sort of life expectancy between major maintenance was quite normal." (Black 84F-H) 25No evidence was called by the appellant. By consent, counsel for the appellant read onto the record the following admissions made by the respondent: