BOLAND v HOFFMANN & ORS

Judgment 1On 25 January 2006 the Plaintiff, then aged just under 6 months suffered serious injury when the First Defendant, Reverand Hoffmann, then carrying the Plaintiff, fell down some stairs in premises owned by Dr Barrie, the Eighth Defendant. The Plaintiff initially sued only the First Defendant, her maternal grandmother, but following Cross-Claims against those who had or might have had some involvement in the design and construction of the stairs those persons were joined as Defendants to the Plaintiff's claim. The issue of liability is the subject of these reasons. 2The premises were a holiday home which had been owned by the Eighth Defendant, Dr Peter Barrie for many years. The premises were small and, partly because of asthma suffered by one of Dr Barrie's children and thought to be exacerbated by the premises, and partly to provide guest accommodation, Dr Barrie and his wife, Dr Ursula Barrie decided to extend them. They consulted the Second Defendant, a Mr Rowe, who had carried out work on the premises previously and Mr Rowe suggested that they talk to the Seventh Defendant, Mr Roberts who was a building designer. Some evidence from Mr Rowe indicated that he had no involvement until after he came to quote for the job. Nothing seems to me to turn on this but I incline to the view that Dr Barrie is more likely to be correct on this issue. 3Mr Roberts was consulted on or about 24 February 2002. After an initial design which was not regarded as satisfactory and a number of discussions, a design generally but not exactly in accordance with what was finally constructed was decided upon and on 29 June 2004 the local Council approved the drawings for construction. Some time later Mr Rowe entered into a contract with Dr Barrie and thereafter set about the construction of the alterations. 4The Third to Sixth Defendants carried on business as manufacturers of timber products including staircases and designed, manufactured and installed the staircase on which the First Defendant fell. It is only the Third Defendant, Mr Spicer, who was directly concerned in events. 5On 20 July 2011, by consent, Hoeben J made orders which included a verdict for the Eighth Defendant against the Plaintiff. 6To appreciate the issues that have arisen in the case, it is necessary to understand the physical nature and circumstances of the staircase on which the accident occurred. For the moment it is sufficient to say that it is something over 800 mm wide and consists of what in laymen's terms are three flights and in plan view it takes roughly the shape of a "U", with the top of the left upright depicting the bottom of the stairs. The top of the right upright of the "U" depicts the top of the stairs that joins a landing or walkway running across (in plan view) the top of the "U". The bottom rung of the stairs is some few feet inside and directly opposite an entrance door. The staircase then ascends six steps. There are then two winders that have the effect of turning the staircase 90 degrees to the right. There are then another two steps followed by a quarter landing, from the right side of which another flight of four steps ascends to the upper floor landing. On the side of the quarter landing opposite to the side from which the top flight of stairs commences to ascend, there is one step up leading into a room referred to as an office. 7Going up, on the left side of the stairs are walls and on the right side of each flight is a shaped timber balustrade. Below each balustrade and parallel to it is a series of steel wires. At the two internal corners of the staircase where the middle flight meets the top and bottom flights are square timber "newel posts" that support the stairs and balustrades and to which the wires are fixed. The posts are somewhat wider than the balustrades and each has a virtually flat top of the same cross-section as the body of the posts. At each newel post the bottom of the upper balustrade intersects the newel post a distance I would estimate from the photographs to be 30-50 mm below the horizontal top of the post and the top of the lower balustrade intersects some 300 mm below that. Also from the photographs I would estimate the width of the balustrades at about 60-70 mm and the newel posts about 20 mm wider. 8The steps are plain, made wholly from blackbutt timber and without ornamentation or grooves or the like. The riser height - the vertical distance between the upper surface of adjacent steps - is, give or take 1 mm, 185 mm. With the exception of the two winders the going of each step - the horizontal distance from the front of one step to the front of an adjacent step - is between 248 and 250 mm or near enough. There is some overlap of the steps and the depth of each rectangular one is, according to uncontradicted evidence of Mr Spicer, 270 mm. 9The "winders" are stairs basically triangular in shape. One side is parallel to the other steps in the adjacent flight, one side runs parallel to a wall and the diagonal of each winder runs from the newel post to the outside corner of the staircase at that level. The "corner" next to the newel post is cut off and where a winder intersects with the newel post it is a little, say 10 mm, wider than the newel post itself. Although it did not occur in the staircase with which I am concerned, it might be mentioned also that sometimes a 90 degree turn in a staircase is effected by three steps, two triangular in shape between which is a "kite winder". The name comes from the fact that the step is in the shape of a traditional kite, with a narrow angle adjacent to the newel post and the opposite angle being 90 degrees formed by both outside walls. Where a kite winder is used, and assuming a staircase of the same width, the area of each of the three steps forming the 90 degree bend is obviously appreciably less than when only two winders are used. 10In the days surrounding the accident, there had been a family gathering at Dr Barrie's house. Molly's mother Susan Hoffmann, Molly, a sister a few years older than Molly and Reverend Hoffmann had arrived at the house on 22 January. Molly and her mother were allocated the office as their bedroom. Reverend Hoffmann and Molly's sister slept on the top floor and it is to be inferred that at least some of the others slept in the ground bedrooms. According to Reverend Hoffmann, on the morning of the accident she heard her granddaughter crying at a time she placed at about 5.15. She went into the office, picked Molly up, walked her up and down (along) the upstairs landing and tried to comfort her. Reverend Hoffmann was not successful in her endeavours. Molly's mother woke. Reverend Hoffmann took Molly to her mother who fed her. Molly did not go back to sleep and Reverend Hoffmann offered to take her downstairs. 11Ms Susan Hoffmann said that the walking along the upstairs landing had occurred on a previous day and on the morning of the fall she had fed Molly and tried to make her go back to sleep for some half an hour before Reverend Hoffmann came in and offered to take Molly. The difference in accounts does not matter. Mrs Hoffmann agreed to her mother taking Molly and the two left the office. Before doing so, Reverend Hoffmann asked that Mrs Hoffmann's bedside light be left on until she reached downstairs and it was. 12Reverend Hoffmann described what occurred thereafter as follows. When she picked Molly up, she held her vertically in front of her chest using her right arm. When she walked out of the office onto the landing she paused and, to ensure she had a firm grip, readjusted her hold on Molly. Then she took hold of the railing with her left hand and commenced to descend the stairs. At the same time she glanced down at the stairs and saw the outline of that part of the steps. Her descent was slow and careful. When she reached the newel post, and because of it, she let go of the handrail. Still descending, she reached for the next handrail. Asked if she noticed something as she did so, Reverend Hoffmann said "I have a body memory (sic) of my left foot tipping at that point ... and began to stumble". She adhered to the description of her foot tipping over the edge of the step at the commencement of her fall and rejected the suggestion that she slipped. She agreed that she was not looking directly at the first winder at the moment of her stumble. Her evidence made it clear that at the time the fall commenced her left foot, which was the one that tipped, was close to the balustrade and that the fall commenced almost simultaneously with her reaching for the next handrail. 13When she began to stumble she reached for and grasped the balustrade but this did not stop her and, still grasping Molly firmly, she fell to the bottom. In cross-examination Reverend Hoffmann agreed that after she reached the end of the (middle) balustrade she could have easily put her hand on the Newell post but ignored it. She conceded that putting her hand on the post would have been easy and that it was something to steady herself with. 14She agreed also that she had used the staircase on numerous occasions prior to the accident and "knew the staircase". She had not experienced any difficulties previously. Asked if on prior occasions she had found that the winders provided adequate room for her feet, she indicated that they had because she was walking much more in the middle of the stairs on those occasions. She said that on the occasion of the accident she was so intent on being safe with Molly that she was very focused on the hand rail rather than the steps and was "over more than I would have been on my normal descent". 15Reverend Hoffmann described the lighting at the time she was walking Molly along the landing as "very poor" but, as stated in her answers to interrogatories, sufficient. She said that the only light - I took her to mean illuminated light - in the vicinity was in the office, that cast light on the landing and a few of the steps but that she could not recall it casting light on the winders. She agreed with the suggestion that as she commenced to descend from the landing it was apparent that the lighting in the area she was going into was very poor. Later she agreed that if she had continued to look past Molly's head as she had done at the beginning of her descent, she would have been able to see dimly the outline of any part of the steps in front of her including the winder. She indicated that the dimness was why she was hanging on very tightly to the handrail. She was not paying much attention to her feet and was not looking at the first winder at the moment of her stumble. She agreed that she could not see the step clearly. 16Asked about why she did not switch on more lights, at one stage Reverend Hoffmann said that she didn't think about it although earlier she had said that she did not switch on more lights because she didn't want to wake anybody up. The conflict in this evidence leads me to the view I should not rely on either answer. 17At the time the Reverend Hoffmann weighed about 128 kg although it should also be said that, according to Dr Barrie, she had a nifty way of moving around that belied her weight 18The principal foundation for the complaints against the Defendants other than Reverend Hoffmann is the design of the staircase. The major criticism is that it contained the winders but also relied on were claims that:- The newel posts were not formed so as to constitute a handhold; The arrangement of the balustrades and newel posts meant that it was necessary to release one's grip between one and another; There was no handrail; The individual steps lacked any anti-skid or anti-slip finish and obvious nosings; There was no sensor lighting to automatically illuminate the steps when in use 19Given the claims against the Defendants other than Reverend Hoffmann, it is necessary to refer at some length to the events that preceded the staircase being constructed as it was. 20There was no written contract between Dr Barrie and Mr Roberts and although the evidence indicates that Mr Roberts spent quite a bit of time with Dr Barrie and his wife as to matters of design, there was little or no evidence of conversations that could be regarded as directed to the extent of Mr Robert's obligations. They remain to be inferred from the circumstances. Mr Roberts did say however that there was no discussion as to the height of the storeroom ceiling and he placed the wall adjacent to the middle flight of steps so that there would be sufficient room for the staircase and entrance. 21Mr Roberts made application to the Great Lakes Council for Development Approval by letter dated 9 May 2003, the application being accompanied by plans for the "alterations and extension". There were seven drawings showing Existing Elevations, Existing Floor Plan, Proposed Ground and First Floor Plans and three described as proposed site plans. It seems clear, partly from Dr Barrie's evidence, partly from Mr Robert's evidence, and partly from the inherent probabilities that Dr Barrie saw these plans. On 29 June 2004, the Council granted conditional consent to the proposal. 22Some features of the plans that are to be noted are the following: (i)On drawing number 3, close to being in line with the upper flight of stairs but at ground level was depicted a door. (ii)On the north west elevation on drawing numbered 5, the door was shown near the outside corner of the building (where it would be opposite the bottom of the lowest flight of stairs) and a window is depicted in the position where the door is shown in drawing 3. (iii)Under the office was a space noted as "store"; (iv)Elsewhere on the ground floor and at a location where there was full one story height was another space marked "store". (v)The staircase was depicted as having three flights and a platform or quarter-landing at each 90 degree turn. The lower flight had five risers up to and including the lower platform, the middle flight had three to and including the upper platform and the upper flight had five risers up to and including the top-floor walkway. The entrance to the office opened off the upper platform. (vi)The ground floor level is depicted as RL27.40, the office level as RL 29.00 and the first floor as RL30.00. These levels indicate that the office and first floors would be respectively 1.6 and 2.6 metres above the ground floor. 23It will be necessary to return to each of these features but it convenient to refer now to some of the further evidence relating to them. Firstly, in the course of construction, Mr Rowe located the door where it was depicted on drawing number 5. He said he did so because drawing 5 showed a visual aspect of the door which in his view is more relevant to most people's appreciation than a couple of lines on a floor plan. Neither he nor Dr Barrie gave evidence that they discussed the topic but Mr Roberts said that the final position was what Dr Barrie had decided upon in discussions with him. I would infer then that it was Dr Barrie's decision that led to the door being where it was or, if he did not specifically instruct Mr Rowe in that regard, if Mr Rowe had adopted the other position, Dr Barrie would have asked for it to be changed. It is to be inferred that Mr Roberts forgot to ensure that drawing 3 reflected his instructions. 24Secondly, Mr Roberts gave evidence that the under-office store was designed to accommodate a wish or requirement expressed by Dr Barrie that there be somewhere to throw wet things in when people returned from the lake. 25Mr Robert's account of the purpose of the under-office store derives support from papers from Mr Roberts' file but in the handwriting of Dr Barrie or his wife containing the notation, "storage area for water gear". The papers became Exhibit 1 and I accept what Mr Roberts said in this connection. 26Next, there was evidence which I also accept that the nature and design of the staircase was never discussed between Mr Roberts and Dr Barrie. 27Fourthly, Mr Roberts conceded that difference in height between the ground and first floor as defined in the RLs of 30.00 and 27.40 shown on the plans meant that the 13 risers depicted in his plans were inadequate. The maximum riser height permitted by the Building Code of Australia is 190 mm for stairs of the nature of those here. Given the RLs nominated on the plans, a minimum of 14 risers were necessary between the ground floor and the first floor as depicted in Mr Roberts' plans. However, Mr Roberts also gave evidence that the space apparently available for the stairs at the time of his plans was not tight, thus inferring that at least one extra riser could easily have been incorporated. A consideration of his plans, which allowed an area of 3315 or 3320 mm by about 2300 mm for the staircase and, on the ground floor, the entrance space, and on the top floor, a walkway, in the light of the BCA requirements and the measurements canvassed by the experts who gave evidence confirms this. Also to be noted is the fact that, as scaled off the plan, Mr Roberts would seem to have left approximately 1.4 metres between the bottom step and the wall containing the entrance door. 28It may be appropriate to record Mr Robert's evidence that his understanding of the task he was given was to draw plans that contained sufficient detail to obtain Council approval of the work as the plans in this case did. He had prior experience in obtaining Council approval to developments and understood Council's requirements. He was aware of the sorts of conditions that Council would impose in any approval. He said that although he intended that what he drew could be built, the plans were intended to be diagrammatic, though this was not stated. 29Dr Barrie had a slightly different expectation. He expected that the plans put to Council depicted something that could be and would be built. 30I have said that Council gave conditional approval to the proposed work. Among the conditions imposed were the following: 4.It is a condition of approval that all building work must be carried out in accordance with the provisions of the Building Code of Australia (BCA). 38.The stair and/or balustrade is to be constructed in accordance with Part 3.9.1 and/or 3.9.2 of the Building Code of Australia. Openings within the balustrade and between stairs shall not exceed 125 mm, so as not to permit a 125 mm spear to pass through. The proposed balustrade is to be a minimum of 1.0 m high. 31Included within Part 3.9.1 of the BCA was a specification of dimensions for rises, goings and the slope relationship between the two. In other than spiral staircases, the rises could be between a minimum of 115 and a maximum of 190 mm and goings between a minimum of 240 and a maximum of 355 mm. The slope relationship is not relevant for present purposes. Figure 3.9.1.1 of the BCA also made clear that for its purposes, because what I have referred to as the bottom and middle flights were joined by winders rather than a landing, they were to be regarded as one flight. Clause 3.9.1.3 requires, inter alia, that:- (b)The nominal dimension of goings and risers of a stair must be constant throughout each stair flight except that the going of winders in lieu of a quarter or half landing may vary from the going of the straight treads within the same flight provided that the going of all such winders is constant. (d)A flight of stairs must not have more than three winders in lieu of each quarter landing or six winders in lieu of each half landing. (g)Treads must have a non-slip finish or a suitable non-skid strip near the edge of the nosings. 32There is no requirement in the BCA for handrails. There was evidence that a requirement for balustrades was to prevent people falling through. 33On 15 August 2004, Dr Barrie and his wife on the one hand and Mr Rowe on the other entered into a written contract. The contract does not specify any plans but it was common ground that the work to be done was that depicted in the Council approved plans. Construction started at about this time. 34In about February 2005, Dr Barrie and his wife visited the premises. No staircase was then installed but while there they noticed that the floor of the office was placed so that anyone in the storeroom below would have to stoop and the office itself was a very tall room. They discussed these matters with Mr Rowe. Dr Barrie's evidence was a little vague as to precisely what was said but according to Mr Rowe, Dr Barrie or his wife said that they required at least head height into the storeroom. Although Dr Barrie seems to have thought that with the low ceiling the storeroom was barely usable, he was firm in saying that he and his wife requested, and did not demand, a change to the height of the office floor. Having to choose, I accept this evidence of Dr Barrie. 35Mr Rowe did some rough calculations. He told Dr Barrie that if the floor of the office was to be elevated, the staircase would need to be changed, probably one extra step would be required, there would need to be a step-up from a staircase platform into the office and turns would need to be put into the staircase. Mr Rowe said something to the effect that the stairs had to be made safe. It would appear that Mr Rowe also said that he didn't particularly like winders. Dr Barrie or his wife responded by saying that they did not have a problem with them. Dr Barrie's experience was that plenty of places had winders and he did not see it as a more dangerous way to build stairs notwithstanding that there had been an occasion some 10 years previously when his wife had fallen on a winder in a house owned by Reverend Hoffmann. He had come across "the circular type of change of direction in a staircase" a lot in everyday life. Dr Barrie agreed that prior to that time, he had not paid much attention to the detail of the staircase and indeed had not noticed that on the plans the staircase had quarter landings rather than winders. 36Mr Rowe said that he would need to discuss these matters with the stair builder to see what was possible, acceptable and safe and get back to Dr Barrie if the proposal was not going to work. However, without talking to Mr Spicer Mr Rowe went about changing the level of the office. One may infer that he satisfied himself that stairs could be built to fit that level. His evidence and that from other witnesses (and the nature of the task) indicates that calculations in that regard were not particularly difficult. Mr Rowe's evidence indicates that in choosing the height he did, he worked off riser heights and came up with a figure close to a normal door height of 2040 mm, a result that gave a bit of clearance above head height. Approximately 2 metres was not something he in any other sense deliberately chose. 37By the time of this conversation the full height storeroom depicted on the original approved plans had been deleted and the space planned for use in that regard appropriated principally for a bathroom. Framing had been erected, but it seems likely that there was no internal lining or cladding. At T57 and 69, Dr Barrie gave inconsistent evidence on this latter aspect but the reference in Mr Rowe's diary notes for 25 February to "modify framework" suggests - I put it no higher - that that was the stage that the area was at. There was no discussion about moving any wall or the location of the ground floor door. Thereafter Dr Ursula Barrie wrote to Mr Rowe. The letter is in point form. It refers to "recent conversations" and, so far as the staircase and office is concerned, is in terms: Staircase Adjust to increase ceiling height for store room to standing height, please ? surface - ? polished wood with reinforced front - as no carpet anywhere else 38After the discussion just referred to Dr Barrie and Mr Rowe did not discuss the topics again. Dr Barrie had no discussions with the proprietors of Twin Towns Joinery and when he next had anything to do with the staircase, it had been installed apart from the wires. 39Mr Rowe said that although originally he had contemplated that the staircase would be something like that depicted on Mr Roberts' drawing 3, at some stage after checking the RLs he realised that that staircase design would not work. Ultimately he was content to rely on Twin Towns Joinery. 40In due course, which would seem to have been April or May 2005, Mr Rowe contacted Twin Towns Joinery. He had not dealt with them before but they were local and he relied on their reputation. He asked Mr Spicer to come out, take measurements and design a staircase that would fit within the space there was and be BCA compliant. Mr Spicer then went to the site to measure up. He said that it was not usual for him to go onto site earlier than he did here. At that time the walls had been constructed and the front door was in place. 41The timber was specified but Mr Spicer was not asked to finish the stairs in the sense of paint or coat them. I think it likely that, as he said, Mr Spicer showed a rough sketch of the final design to Mr Rowe. In a later phone call, he confirmed to Mr Rowe that the step up to the office was acceptable. Mr Spicer explained his reason for including the winders:- ... because we have a maximum distance from the back wall to where the bottom door opens of 2,500 millimetres, and that the stair width normally would be 900 millimetres, which at the back wall I have a measurement of 2,300 millimetres, it gives me two, 250 millimetre treads between the two sets of stairs. On a calculation of 6 by 250 millimetre treads with a 900 wide set of stairs at the back, I had a maximum length of 2,400 millimetres, which gave me a clearance between the door and the front tread. Had I put a platform there, the door would have hit the front of the stairs when it was opened. 42In due course Twin Towns Joinery installed the staircase in the form described at the outset of these reasons. 43On the topic of winders, Mr Roberts said that it is safer to have full landings than winders and, although he has winders on his staircase at home, he only designs winders if the footprint available for a staircase is so tight that no other solution is available. 44During cross-examination, Mr Rowe expressed similar views though not all of his answers were consistent. At T170.7 he said that it was always preferable not to have winders but at T172.3 he said that he had no preference for a staircase without winders: all he needed "was a staircase that is safe and complies with BCA, which fits the perimeters we have to work in". However later he agreed with the suggestion:- It was your belief at the time, was it not, that stairs incorporating winders were less safe that stairs that incorporated quarter landings for changes of direction? 45Elsewhere Mr Rowe said that he had no particular concern about winders but he also agreed with the suggestion that winders should be avoided unless there was no other option having regard to the space available. The inference I draw from the totality of his evidence is that he thought it was preferable to avoid winders but that it did not matter very much. 46Mr Rowe also said that he does not believe that the staircase could have been constructed in the available space without winders and that he relied on the design and the expertise of Twin Towns Joinery to come up with a safe and compliant design. 47Mr Spicer (and at least one of the experts called) said that all stairs are inherently dangerous. He agreed that winders present some hazards and said that he would have avoided the use of "kite-winders" (the term used in the question) if he could, both on safety and cost grounds. However, while "kite-winders" are not allowed in commercial buildings, "winders" are very common in domestic buildings. When asked about Dr Barrie's house, Mr Spicer said that he "thought nothing about putting a single kite in that landing because 65 to 75% of the stairs that I do have kite winders". 48Other evidence, including Mr Spicer's drawings, indicates that in his use or acceptance of the expression "kite-winders" Mr Spicer was probably not drawing a distinction between winders and kite winders. In evidence elsewhere he said that he had said to Mr Rowe that "had it been a triple set I would have had more concerns because they seem to be more dangerous because I was splitting the landing in half and it created two large treads bigger than the actual treads in the stairs themselves and I didn't deem it to be a problem". 49Mr Spicer agreed that at a point about 27 cm from the newel post, the width of the winder would have been about the same dimensions as the width of the other treads. (Given the cut off of the point adjacent to the winder, this answer is conservative. Simple geometry and diagram 5 attached to the report of Dr Johnson of 7 October 2010 demonstrates this to be so.) 50In practical terms, the alterations were completed in or about October 2005. Dr Barrie and his family stayed in the house for a short time then and for most of the time from the beginning of December 2005 until shortly before the accident. During these periods the stairs were used on a daily basis. He himself used the stairs a couple of hundred times without trouble. Prior to the accident he had not heard of anyone else having trouble with them. Now, with the benefit of hindsight he holds onto the handrails and newel posts and takes a deal of care in transferring his grip to and from the newel posts. 51Molly's mother Susan Hoffmann said that prior to the accident she had walked up and down the stairs after sunset and in the dark and experienced no trouble walking up the stairs during the day. She was not asked, but did not suggest that she had had trouble at any other time except when carrying Molly. Ms Hoffmann did however say that when carrying the baby she had to place her feet carefully when negotiating the winders and it was not easy using the handrail at corners. She said also that Reverend Hoffmann had carried Molly up or down the stairs prior to the accident and on the morning of 25 January had no concern about her mother taking Molly. 52Before I conclude this recitation of the evidence, there is more to which I should refer. I have recorded above the relevant provisions of the BCA. Reference might also be made to the Australian Standard AS 4226-1994, "Guidelines for safe housing design". In its preface it says that it contains provisions which are considered to be minimum requirements. In s 11 dealing with "steps and stairs", the following passages appear: 11.1.2Spiral stairs, or winders in stairs, present some hazards. 11.2.1Steps should be grouped. There should be no fewer than three steps in each group. Single steps, including steps at entries are hazardous. 11.6Riser heights should be uniform and in the range 150 mm - 80 mm (sic). Open rises are less safe than closed rises because it is possible for a small child to climb between the treads. 11.7.1Stair and step treads should be at least 300 mm deep; 330 mm is preferred, to take the full length of most shoes. Treads should not be shorter than 275 mm, measured horizontally from nosing to nosing. Treads should not be tapered. 11.8The minimum clear stair width should be 900 mm. 53The Standard also said that a balustrade was essential when a stair or landing was not enclosed by walls, and specified matters such as height and maximum openings. There was no statement to the effect that a handrail should be installed but the Standard did specify matters such as the location, method of fixing and strength of a handrail. In that latter connection it said that a handrail should be easy to grip without hurting one's knuckles on the wall and said a 32-50 mm diameter handrail at least 50 mm from the wall would be suitable. 54One witness, Dr Johnson also referred to a New Zealand and an American publication concerning the design of staircases, saying that he thought it reasonable to rely on them in designing a staircase, but the evidence concerning these seems to me to add so little to the case that they can be put aside. 55Five expert witnesses who had provided reports to the parties gave evidence concurrently. These persons and those on whose behalf they were engaged were:- Mr David PlaisterPlaintiff Mr Michael HesseReverend Hoffmann Mr Horace RapisardaMr Roberts Dr Paul-Alan JohnsonMr Rowe Mr John RaynerMr Spicer 56A Mr William Bailey, an engineer, had also prepared a report on behalf of the Plaintiff. He was called separately by counsel for Mr Rowe on a limited number of issues. I shall refer to him again when I come to those issues. 57Mr Plaister is a builder although his CV indicates that since 1987 he has been far more involved in project management, contract administration, advising and as an arbitrator. All of the other experts were architects. All five seemed eminently qualified to express opinions on the principal issues that arose for their consideration though at times, without objection, they expressed opinions that went outside their expertise. All had prepared one or more reports. All had been asked to answer some 56 questions, some of these divided into a number of parts. All five then gave evidence in a joint session. Unsurprisingly there was a substantial measure of agreement on many issues. However, there was a surprising lack of agreement on some topics, such as site measurements. 58Between them the experts generated an enormous volume of material. Given that extent and the views that I have formed, I do not regard it is necessary to refer in detail here to the vast bulk of what they have said. 59Among the conclusions upon which there was a large measure of agreement, and which I accept, were the following:- (i)In a house such as Dr Barrie's a staircase with winders is less safe than one with quarter or half landings instead; (ii)In 2005, the proposition in (i) should have been apparent to a reasonably competent builder, architect or draftsperson; (iii)The Building Code of Australia (the "BCA") provides no guidance or recommendations as to when quarter landings or winders should or should not be used in a house such as Dr Barrie's; (iv)The staircase as depicted in Mr Roberts' drawings was not suitable for construction because the drawings showed only 13 risers, the maximum height permitted by the BCA for each riser is 190 mm, and in consequence the staircase would not span the distance between the RLs specified; (v)The following features would reduce a risk of injury to persons using a staircase that contained winders:- (a)Adequate illumination; (b)Delineation of nosings; (c)A continuous handrail; (d)Slip resistant treads. (vi)The handrail and newel post in this case did provide adequate hand support for a person descending the stairs; (vii)The use of winders did not prevent a continuous handrail being installed at the point where the winders exist on the open side of the staircase. I add a qualification to this below. (vii)A handrail could have been installed on the non-open side of the staircase but it would not have been usual practice to install one; (ix)The design of the staircase as constructed was a reasonably practical design on the assumption that it was to be installed without any structural alterations. (x)In the staircase as constructed, and give or take 2 mm, the riser height was 185mm and the goings were between 248 and 250 mm. (xi)The width of the stairs (not including the supporting stringers) was 810 mm for the top flight and 850mm for the other two flights. (Mr Plaister said that all stairs had a width of 840 mm but the strength of the majority view is such that I think that I should accept it.) (xii)Delineation between the treads of the staircase would have been improved by the application of a contrasting tone or applied strip near the nosings; and (xiii)Discontinuity of any handrail occurs on the open side of a staircase in the vicinity of either winders or quarter landings. (This is a partial summary of the answer to Q 57 in Exhibit M) 60A qualification that some of the experts made and I share to the proposition in (vii) is that if continuity of the handrail was to be maintained in the vicinity of the winders (on the newel post side), the handrail would need to be vertical or near vertical at that point. 61All five experts agreed that, while accommodating Dr Barrie's requirement that the under office storeroom have sufficient height to stand upright, the staircase could have been built in accordance with the BCA with quarter or half landings instead of winders, by reducing the goings and the stair width. Some possible disadvantages in doing so are referred to below. 62Despite the agreement that a riser height of 190 mm and going of 240 mm were permissible, all of the experts who had given evidence together, other than Mr Rapisarda, were of the view that the maximum comfortable such distances were, respectively, 185 mm and at least 250 mm. Obviously, any stair designer could reasonably take that view. Dr Johnson was of the view that to reduce the going and increase the rise (I infer from what is there or at least to the suggested extent) increased the pitch of the staircase to the point that it would be uncomfortable and potentially hazardous. 63Messrs Plaister and Rapisada thought that the middle flight of stairs could be narrowed to 650 to 700 mm (between stringers). Mr Rayner and Hesse disagreed. Dr Johnson said that sort of reduction was not desirable and the flight width needed to be 800 mm or thereabouts to be comfortable and practical. He said that some of the material he was familiar with indicated that a narrow stair was more dangerous than a wider one. All agreed that width was relevant to the functionality of a staircase and that, e.g. a 600 mm wide staircase would not provide the functionality that a 900 mm wide staircase would. With the exception of Mr Plaister, all agreed with a similar proposition comparing 800 mm and 900 mm staircases. 64Reference might also be made to a passage in a document produced by Mr Spicer, the Housing Industry Association "BCA Housing Provisions Guide" and which seems to seek to explain the features of the BCA standard. The passage is in terms:- Flight Width: According to the BCA, there is no maximum or minimum width of a flight for residential construction, however it is suggested that the flight be at least equal to the average width of an adult person's shoulders, which is 600 mm. 65Mr Spicer said that normally a stair width - it is not clear if he was including the stringers - is 900 mm, the figure mentioned in the Australian Standard. 66The disadvantages referred to in [61] above are or arise in the following circumstances. One way the staircase could have been built to conform to the BCA and have a second quarter landing instead of winders, was to include another riser in the bottom flight. 67Relevant in that connection is the distance between the bottom step as constructed and the wall opposite in which is housed the door referred to in [6] and [22] above. At one stage there seemed to be consensus that this distance was 1155 mm but a few pages further on in the transcript, this seems to have been corrected to 1020 mm (a figure that broadly accords with Mr Spicer's measurements). When opened (presumably to 90 degrees), the door, which was measured to be 900 mm wide but hinged within its housing, will protrude 850 mm into this space. There was general consensus that it would be acceptable if this 1020 mm dimension was reduced to 900 mm. 68Space for an extra (240 mm) riser could be found by moving the lowest step nearer the door (by up to, say, 120 mm), reducing the goings on each of the other six risers in the bottom flight from 250 mm to 240 mm and by also narrowing the middle flight to make up the 240 mm required. The balance of opinion seemed to be that if this course was followed, it would also have been necessary to either narrow the upper walkway to some extent or to chamfer the edge of it above the lowest steps to provide the required headroom in that area. 69By calculation, the reduction in the width of the middle flight would need to be at least 60 mm, reducing that width from its current 850 mm to 790 mm. Alternatively, if the width of the middle flight was reduced by a sufficiently greater degree, the goings could have been left at 250 mm, or the space between the bottom step and the wall reduced by less than 120 mm, or some compromise between these two courses effected. 70To a suggestion by me that one could have done without winders by cribbing a bit here and a bit there, Mr Rayner said one would end up with a very mean, narrow staircase not appropriate for the type of dwelling, Mr Plaister thought it could be achieved and the resulting staircase would be more than adequate, Mr Hesse said that it was not desirable and Dr Johnson seemed to have the same view. Later Dr Johnson and Mr Rayner said that they would rather have winders than meanness, while the others disagreed. 71Although it was not mentioned in evidence, I see another disadvantage in the addition of another step in the bottom flight. Although it is possible to open a door from the inside and remain largely behind or in front of it, commonly, perhaps most commonly, a person opening a door from the inside will be for an appreciable time opposite the edge of the door. In any event, it strikes me as inconvenient (and that or some inconvenience may exist now) to have any riser so close to the door that a person opening it has to avoid hitting his or her ankle or tripping on the riser. As a tribunal of fact, I regard myself as entitled to take such a consideration into account and also my view that the disadvantage to which I have just referred would be substantial. 72A variation of the suggestion about adding another riser was that the location of the door and adjacent window near the bottom of the stairs could have been reversed, thus removing or reducing one of the constraints on adding an extra step to the lowest flight. If done late in the piece, the cost of this reversal would have been between $1,000 and $2,000, but if done early enough, at no cost at all. 73However, if limited to opening to 90 degrees, the door would then have blocked access to the staircase. It may be that the door could have been made to swing 180 degrees but as it was hinged within its housing and was wider than the 850 mm it protruded into the room as presently swung, it is not obvious that it could have swung over that further arc without further changes. I note also that in Figure 7 in the Australian Standard, there is registered disapproval of a door swinging across the bottom of the staircase although it must be recognised that that is what occurs now. 74Another suggestion was that the height of the office floor could have been reduced by 185 mm or one riser, and an extra step included in the upper flight. (There was room for at least one extra step in the top flight. As constructed, the top landing or walkway had been built out to meet the top of that flight.) It was said that the result would be a storeroom with head room of about 1800 mm, a height that the experts all regarded as acceptable given the room's function, though it was noted that the height might not suit some people. At the time that evidence was given, no one adverted to earlier evidence that the distance from the storeroom floor to the storeroom ceiling is now 2013 mm, the distance from the underside of that ceiling to the office floor 190 mm, and that the latter could have been reduced to 155 mm. If regard is had to this evidence a storeroom height of 1863 mm (2013 + 190 - 155 - 185) could have been achieved, and the winders eliminated at the cost of an extra step being included in the top flight. 75An earlier similar calculation had been carried out by Mr Hesse and, although some of the details of his calculation have to be inferred, they seem to have been as follows. He had measured or concluded that the first floor was constructed to RL 30.18, i.e. 2780 mm above the ground floor. Upon the basis that 15 risers (including platforms) were used the height of each rise would therefore be nominally 185.3 mm. If five of these risers were in the top flight, the height of the platform outside the office would be 1853 mm. An additional riser into the office could add 185 mm to this. The depth of the office floor could be as little as 145 mm if there were no ceiling lining in the storeroom, resulting in headroom of 1893 mm. Mr Hesse came up with an end figure of 1894 mm. I should also add that I think the better view on the evidence is that the first floor is 2760 mm above the ground floor. On that basis the end figure would be 1879 mm not 1893 mm. 76Also in evidence was a report from a Mr Anthony Protas in Exhibit 5 to the effect that that although Clause 3.8.2.2 of the BCA requires a minimum height of 2.1 metres in a certain rooms including bathrooms, laundries and storerooms, a significant percentage of the population had a standing height of 1846 mm for males and less for females, that even with shoes their heights would still be below 1894 mm. Thus this height would not unduly interfere with the function of the space as a storeroom which could accordingly be certified as complying with the Performance Requirement of the BCA Housing Provisions. 77There was a deal of evidence directed also to whether any non-slip finish or non-skid strip had been applied to the stairs. Mr Rowe said that he had applied such a finish in the form of "Sure Tread Anti Slip Texture Coating" to about a 25-30 mm strip at the nosing of the steps. Dr Barrie said that he had noted on the leading edge of the stairs about an inch section of rougher finish. 78Mr Rayner said that when he carried out his inspection of the premises, he observed on the steps a strip of anti-slip material. He disclaimed any possibility he was mistaken. Each of Messrs Rapisada, Hesse, Plaister and Dr Johnson said they did not observe any such material, although, with the exception of Mr Hesse, they said they did not carry out any slip resistant testing. Mr Hesse said "I sat on each tread of the stair to take my measurements, which means I actually sat on each tread in turn and I held my fingers and tape measure over the edge of the stair and had there been something there I would have felt it". 79Mr Bailey said that he touched the upper most winder and the step above that in order to make an assessment of the slip resistance of the surface. He did this using his fingertips and also the ball of one of his feet. He said that, although he was not able to see any difference in the areas he looked at, he was able to feel a noticeable increase in slip resistance between the body of the step and an area near the nosing. 80As I remarked during the hearing, I find it quite unsatisfactory that I was faced with this apparent conflict of evidence between competent professional witnesses. However, there the matter was left. Although a sample of timber to which the coating had been applied subsequently came into evidence and on it the coating is clearly visible, it seems to me that I should accept that, against the background of the other varnish or coating that had been applied to the steps, an anti-slip coating may not have been readily visible. Mr Bailey gave evidence to that effect. Furthermore, during the course of evidence I had the strong impression that all of the witnesses including Dr Barrie and Mr Rowe were honest. On balance, I am persuaded that a non-skid strip was applied near the edge of the nosing of each step. 81Another topic concerned the adequacy of the lighting that had been installed as part of the alterations and in particular the absence of sensor lights that would automatically illuminate the staircase when it was being used. 82Mr Rowe said that there are three wall lights on the staircase and a down-light above the tiled upper platform. He said that he regarded the light from the wall lights as adequate and was not aware of any shadowing. Dr Barrie gave similar evidence as to the extent of the lighting adding that the light on the top landing shines down in the staircase. He said that there were three switches that operated the wall lights, one at the top of the stairs, one outside the office and one at the bottom of the stairs. The switches were two-way. He also thought that the lighting from the stair lights was more than adequate. It was common ground that there was no sensor lighting, the cost of which, according to Mr Plaister, was $280 per light. 83Ms Hoffmann said that the lighting is brighter where the lights are and the steps further away the steps are darker, in particular the corner where the winders are is darker. There was no attempt to quantify this change. She also said that when she looked for her mother immediately after the latter's fall, she observed that the stairs were "dark" but this evidence must also be considered against the background that Ms Hoffmann was coming out of a room, very probably illuminated at least to some degree. 84It is also to be noted that some of the photographs forming part of Exhibit A indicate that the wall lights are situate 100-200 mm above the staircase stringer and one is directly opposite the stair immediately below the lowest winder. 85Putting aside the absence of sensor lighting, there was little or no evidence to suggest that the lighting available on the stairs is inadequate by any standards. Certainly I am not persuaded that it is. I return to the absence of sensor lights below. 86There was also evidence directed to the question of whether the stairs may have been partly illuminated at the time of the accident by light from outside and whether such external light as there was might have been obscured by trees or blinds. It is clear that there were trees outside and blinds inside but the evidence as to the extent of the outside light and the precise time that the accident occurred is so incomplete that it seems to me fruitless to take this topic further. Particularly is this so when regard is had to Reverend Hoffmann's description, which I accept, of what she could see. 87Another topic that was the subject of evidence concerned handrails or hand-holds. There were no handrails installed except the balustrades and newel posts as described in [6] of these reasons. 88I have referred above to the fact that neither the BCA or Australian Standard require handrails or handholds and that the experts regarded the "handrail" (by which they clearly meant the balustrade) and newel post as providing adequate hand support for a person descending the stairs. They held this view notwithstanding that there was general acceptance during the concurrent evidence of the obvious limitations and inherent consequences to someone using the balustrades and newel posts as a hand-hold or a person-steadying feature of the staircase. All agreed that the installation of a handrail doubling as a balustrade was consistent with good building practice. (Dr Johnson added a qualification to his answer but that qualification has no application here.) 89There was disagreement on the question whether at some time a person descending the stairs would have to cease their grip on both the balustrade and newel post but in my view the geometry makes obvious that there would have to be a period of grip release when moving from a newel post to a lower balustrade. In the case of a hand moving from a balustrade above a newel post to the newel post, the period would be minimal. 90Dr Barrie said that he did not find the presence of the newel post between the balustrades near the winders awkward, albeit he accepted that he did not have a continuous handhold during the exercise. 91I also take the view that a handrail, at least one constructed more or less in accordance with the Australian Standard, is likely to provide a more secure grip than the balustrades or newel posts in this case. Such a handrail has a smaller cross-section and thus a hand can grip it better. Shaping of the top of the newel posts or some addition there to create a handhold would probably have had a similar but lesser advantage although, given the relativity between the top of the newel posts and the balustrades above them, the creation of such a handhold would have had the result that a hand gripping it was further from a lower balustrade than if it gripped a newel post in its current state. There is very limited room for shaping of the posts unless they were extended. 92Mr Spicer accepted that continuous handrails were sometimes installed in residential premises. He said that there was no reason why a continuous handrail could not have been used on the subject staircase apart from cost, they being "far more expensive". He estimated the extra cost at $3,500, a figure which might be compared with Twin Towns charge for the staircase of $5,450 and the full cost of the alterations which was in the mid $400,000s. I infer that in this evidence Mr Spicer was envisaging a handrail on the balustrade side of the staircase. One on the wall side would have not have necessitated vertical components but presumably would have had some horizontal sections. It would of course have had the advantage that someone holding it would tend to be towards the outside of the winders where their tread is wider. However, as Dr Johnson pointed out, the presence of a handrail would operate to effectively narrow the staircase - if built in accordance with the Australian Standard - by 80 to 100 mm. 93Against that background I turn to the case against each defendant. There can be no doubt that the most proximate cause of Mollie's injuries and of the First Defendant's fall was her placing of a foot on, probably the top, winder at a position close to the newel post and where the step was too narrow to provide substantial support combined with an attitude or movement of her body which had the effect of causing her to tip over and thus commence the fall. 94I also see no basis for concluding that the First Defendant's fall was caused or contributed to be any slipperiness of the surface of the steps. In the first place, I accept the evidence of Mr Rowe that he applied an anti-slip product to the steps as an incident of his building work. In the second, the First Defendant's description of her fall indicates that she over-balanced, not that she slipped. Nor do I see any basis for concluding that the lighting available in the premises was inadequate or that, even if it was, it had anything to do with the fall. Reverend Hoffmann elected not to turn on the staircase lights. 95It may be that the presence of a continuous handrail near the newel posts and balustrades would have enabled the First Defendant to avoid the tipping and falling or at least reduce the magnitude of the fall. However, it is impossible to conclude that the presence of such a handrail probably would probably have done so. The First Defendant was a very heavy woman. Any force exerted by her weight, particularly in combination with movement of that weight necessarily incidental to walking down the stairs may well have been substantial. The relative positions of her hand on the handrail and her body means that any force which could be exerted by her gripping the handrail would have been off to the side of the force being exerted by her body while walking down and what impact any grip would have had in changing the movement of her body is impossible to determine. 96Furthermore there was no evidence as to the strength which the First Defendant could have exercised in her hand and arm. There was no evidence to suggest that she was particularly fit. 97 (It may also be worthwhile to note that someone walking down the stairs and keeping a continuous grip on a handrail adjacent to the balustrades and which included a vertical component would, when gripping that vertical component, almost certainly have had the upper part of their hand that was holding the rail, facing towards the bottom of the staircase rather than the top. That attitude of the hand, and corresponding position and twisting of the arm is calculated to be weaker and more awkward than were the upper part of the hand facing up the staircase. This topic was not explored and, in the view I have formed not necessary to decide but it is relevant to any suggestion that a handrail in that location would have prevented Reverend Hoffmann's fall.) 98I do however accept that a handrail on the wall side of the stairs would probably have averted Reverend Hoffmann's fall in that it would probably have resulted in her traversing the outside and wider sections of the winders. 99So far as Mr Roberts, the designer is concerned, logically the first question which arises is as to the extent of his contract or arrangement with Drs Barrie. Any duty he owed other persons arising from or in consequence of the plans he drew must clearly be limited having regard to the extent of the task he was engaged to undertake. 100Given the terms of building and construction approvals, and of which Mr Roberts would have been aware, it seems to me to be a necessary inference that a term of engagement was that his plans, although not construction drawings, should fully depicted what was to be built. There is no doubt that by that standard, his design of the staircase was deficient at least insofar as the staircase needed another riser between the ground and the first floor. On the other hand, I am not persuaded that his instructions required that the under-office store be any higher than depicted on his plans. Both the existence of the other store and the observation that Dr Barrie merely wanted somewhere to put wet gear argue in this direction. Furthermore, Dr Barrie did not give any evidence to suggest that Mr Robert's instructions were such that he should have designed the under-office store to have more headroom. 101Mr Robert's plans provided, as I have indicated, more than adequate room for the addition of the riser he had omitted, without the inclusion of winders. Indeed, once one recognises that, as constructed, the staircase includes six risers in the bottom flight and only four in the top flight, and there exists a space of 1020 mm between the lowest step and the opposite wall, I would draw the inference that, putting aside any requirement for full height headroom in the storeroom, there is room for the inclusion of two extra risers, of the same dimensions as presently exist, in that top flight. 102The inclusion of the winders was the result of Dr Barrie's request for full height headroom in the storeroom under the office, not any omission or other fault on the part of Mr Roberts. Any deficiency or breach of duty on the part of Mr Roberts was not causally related to the Plaintiff's injury. Neither that injury or the construction of the winders were reasonably foreseeable consequences of any careless conduct by Mr Roberts - c.f. Voli v Ingelwood Shire Council (1962-1963) 110 CLR 74 where an architect was held liable to persons injured when a stage he had negligently designed for a Local Council collapsed. There it was said by Windeyer J at p 84, with the concurrence of at least Dixon CJ, "for the reasonably foreseeable consequences of careless or unskilled conduct, an architect is liable to any one whom it could reasonably have been expected might be injured as a result of his negligence". 103(Before I leave Mr Roberts, and though I have not found it necessary to rely on, or indeed fully analyse this evidence, I should add the following. As stated in [22] and [27] above, in the plans drawn by Mr Roberts the ground floor, office and first floor levels are depicted as RL27.40, RL 29.00 and RL30.00 respectively. These levels indicate that the office and first floor were respectively 1.6 and 2.6 metres above the ground floor. The maximum riser height permitted by the Building Code of Australia is 190 mm for stairs of the nature of those here. A minimum nine risers between the ground floor and the office floor and a minimum of 14 necessary between the ground floor and the first floor were, on that basis, necessary. Mr Roberts' plans depicted five up to and including the first landing, eight up to and including the second landing and another five from that second landing to the first floor. Although no step is depicted it should be recognised, particularly in light of what was ultimately constructed, that it was possible to have one of the nine steps just mentioned between the second landing and the floor of the office. Also to be noted is the fact that, as scaled off the plan, Mr Roberts would seem to have left approximately 1.4 metres between the bottom step and the wall containing the entrance door. In fact some of the drawings by the experts show that that wall was built at a position which made the stairwell 3.5 metres or so long rather than the 3.320 metres depicted in Mr Roberts' plan. This measurement does not accord with that of Mr Spicer who said that he measured the distance at 2500 mm to the edge of the open door which other evidence recorded as protruding 850 mm. If I had to choose, I think it probable that the circumstances of Mr Spicer's measurement are such as to make it more likely that it is correct.) 104In fact, as constructed, the first floor is 2760 mm or thereabouts above the ground floor, an increase of 160 mm, or almost one riser above that planned. This was noted by Dr Johnson in his report. Mr Rapisarda noted the increase as 180 mm and the change finds reflection also in Mr Spicer's drawings where there are the notations 2780 and "15 rise = 185.3", the product of these numbers being 2,779.5. This increase goes to explain why finally the number of risers in the staircase was 15, two and not merely one more than in Mr Roberts' drawings. Without this change in height no winder would have been necessary. What impact construction of the top floor at RL 3000 would have had on the height of the storeroom, it is unnecessary for me to decide. 105However the increase was not the subject of significant discussion during the evidence of the five experts and the reason for the increase was not the subject of evidence from Dr Barrie or Mr Rowe. In these circumstances, it does not seem to me that I should pursue here the issue of whether there was any fault in the 160 mm increase in the height of the top floor. 106Boiled down to its essentials, the case against Mr Spicer is that he was guilty of a lack of reasonable care because he designed and built a staircase with winders in a domestic house in circumstances where:- A staircase containing winders is more dangerous than a staircase without; He knew this; It was possible to design and construct a staircase without winders without undue expense. 107Boiled down to its essentials, the case against Mr Rowe is that he was guilty of a lack of reasonable care because:- 1.In circumstances where:- a staircase containing winders is more dangerous than a staircase without; he knew this; and it was possible to design and construct a staircase without winders without undue expense; he, as the builder of the alterations to the premises being a domestic house, directed, agreed to, or accepted a staircase with winders. Or alternatively, 2.In circumstances where:- a staircase containing winders is more dangerous than a staircase without; and he knew this; when asked to change the height of the office floor/under-office store-room ceiling in a domestic house he was as builder altering, he did not limit the change, or make further changes, (in circumstances where such limits or further changes could be effected without undue expense) so as to ensure a staircase without winders could be built. 108Of course, as detailed in argument the case was not stated as baldly as I have outlined it and was supported by selective extracts from the evidence but the summary just given is what the Plaintiff's case amounted to. 109In the case of Mr Spicer, he was presented with the space and heights, particularly the office height to which reference has been made. Counsel for the Plaintiff suggested that, as Mr Spicer sought what counsel described as a change to the structure in extension of the upstairs walkway to meet the top of the staircase, Mr Spicer could and should have sought other such changes. In fact the extension of the upstairs walkway can only be regarded as of a minor nature and I would regard it as unreasonable to think that at that stage of construction Mr Spicer should have sought changes to any of the heights (or other features of the building) when clearly the features could be accommodated by a staircase, even one with winders, which met his contractual obligation that the staircase be BCA compliant. 110Certainly as I have indicated above, he could have designed and built a staircase without winders by adding another riser to the bottom flight, making other changes to the goings and the width of the middle flight along the lines indicated and/or suggesting to Mr Rowe that the location of the door be changed from that which Dr Barrie preferred. It seems probable that if he had followed this course, he would also have had to request Mr Rowe to chamfer under, or narrow, the upstairs walkway. 111However, I am by no means persuaded that a different design necessary to fit in a staircase without winders would have been a reasonable course for Mr Spicer to adopt. I have identified above disadvantages I see in extending the lower flight by one riser as suggested by the Plaintiff's counsel. The expert evidence and the standards make clear that there are features, e.g. comfort and functionality to be considered in addition to physical possibility and safety and I am disposed to agree that the changes in goings, risers and flight width would have resulted in a staircase that could fairly be described as "mean". Although the BCA permits going and riser heights of 240 mm and 190 mm respectively, the Australian Standard recommends against both of these figures, in the case of the former by a wide margin. The latter document also recommends a minimum stair width of 900 mm. (I may perhaps add that the Plaintiff's counsel was strident in his emphasis of those portions of the BCA and Australian Standard as suited his argument. He ignored those that tended to the contrary.) 112Furthermore, it does not seem to me that reasonable care required Mr Spicer to take any of these courses. It does not seem to me that reasonable care requires that winders be avoided just because it is possible to do so or was possible in this case. The evidence makes clear that they are a common features of domestic premises. They are inherently obvious to anyone who takes even a modicum of care when negotiating them and they meet both the BCA and the Australian Standard. 113And although I do not suggest that this should be determinative, it is interesting to apply the approach of counsel for the Plaintiff to other situations. People run onto the road, or step off the kerb without looking or warning: Other drivers on the road do not always behave sensibly: Sometimes they brake suddenly when driving across the Harbour Bridge in heavy traffic. There is a greater chance of avoiding accidents in consequence of such actions if one travels at 60 kms per hour rather than 70 kms per hour. On the Plaintiff's argument, one should therefore travel at the lower speed absent some good reason to go faster so as to save what would commonly be, except on long journeys, but seconds or minutes. And even on the Plaintiff's counsel's approach 60 kms per hour would be too fast. It would be safer to travel at 50, or 40 or 30 kms per hour than anything higher. 114And if a designer has the option of a one-story or a two-story house, without the one-story having significant advantage, is it negligent to choose the two storey because that would introduce stairs all of which, according to the evidence in this case, are dangerous? 115I turn to the claim against the Second Defendant, Mr Rowe, the builder. Many of the remarks made when considering the case of Mr Spicer apply to Mr Rowe's situation also although it is clear that he had the opportunity of considering the issue earlier than did Mr Spicer and when there were the same options at lesser cost and one or possibly more additional ones. The most obvious additional one was to fix the new heights for the storeroom ceiling and office floor at a level one riser lower and which would still give a storeroom ceiling height of between 1863 and 1894 mm, that is between just over 73 and 74½ inches. Although Dr Barry was not asked whether he would have found these heights acceptable, given the tenor of his and Mr Rowe's evidence on the topic, I think it probable that in the circumstances existing when the issue arose, he would have. 116Again however the test is not whether Mr Rowe could have done something more or differently but whether his failure to take steps to ensure that winders were not used constituted a lack of reasonable care. For similar reasons to those applying to Mr Spicer, I do not think it did. 117In concluding as I have in the case of Mr Spicer and Mr Rowe, I do not ignore answers given by them in cross-examination such as Mr Spicer's reference to making stairs "as safe as possible" and Mr Rowe's statement to Dr Barrie that "you have to make these things safe" and in evidence his agreement that "competent stair designers, suppliers and installers ought to avoid using winders unless there is no other option having regard to the space available". I do not regard the test of reasonableness to be so high. 118So far I have concentrated on the existence of the winders. As I have said, counsel for the Plaintiff also sought to rely on the asserted inadequacies in the balustrade and winder posts for gripping or balancing purposes, the absence of any other handrail, the lack of delineation of the steps and the absence of sensor lighting. 119Once one accepts that the obligation of those defendants responsible for the design and construction of the staircase was only to take such care as is reasonable in the circumstances and not to make the premises as safe as "reasonable care and skill on the part of anyone can make them" - see Wilkinson v Law Courts Limited [2001] NSWCA 196 at [21] - the opinions of the experts that I have recounted in [59 (vi), (vii) and (ix)] above go a long way to answering the first two of the criticisms in the immediately preceding paragraph. 120In any event, based on my general experience of staircases which, as a tribunal of fact I am entitled to take into account, I take the view that the balustrade and newel posts accorded with what is common practice. So is the absence of a separate handrail on both or either sides of the staircase. Common practice is not of course determinative of what is reasonable but I am not persuaded that there was any lack of reasonable care in the nature of the balustrade and newel posts and in the absence of handrails. 121I take a similar view to that expressed in the last sentence in relation to the lack of delineation of the steps and the absence of sensor lighting. So far as the delineation of the steps is concerned, one of the experts was clearly concerned that the addition of an adhesive anti-skid strip adjacent to the nosings would create an unattractive interruption to their appearance. The delineation suggested would also create an interruption and the proposition that reasonable care requires an architect, builder or stair designer to install sensor lighting to protect someone who chooses not to avail herself of the light and switches readily available has only to be stated to be rejected. 122Furthermore, I am not persuaded that individually or in any combination the matters that the Plaintiff complains of other than the winders were causative of Reverend Hoffmann's fall or the Plaintiff's injury. To that statement I make the qualification referred to above that the strong probability is that a handrail on the wall side of the stairs would have led to Reverend Hoffmann being on a much wider part of the winders than she was and would thus not have fallen. 123So far I have dealt with the matter without specific attention to the individual factors relevant to a determination of whether one or other of the Second to Seventh Defendants was negligent, be those factors the ones specified in the Civil Liability Act 2002 or, reflected in the judgment of Mason J in Wyong Shire Council v Shirt (1979-1980) 146 CLR 40 at 47-48. In that connection it is to be noted that much, though not all, of the negligence said to have occurred in this case was in positive actions of those Defendants rather than in the failure to take precautions - see Drinkwater v Howarth [2006] NSWCA 222 at [11]-[13], [24]. 124The risk of injury to someone using (or being carried up or down, as very young children often are) the winders was clearly foreseeable. The risk was not insignificant or far-fetched or fanciful: people fall on straight flights of stairs. The BCA and the Australian Standard recognise that winders create extra risks. So did most witnesses in the case. 125The probability of injury occurring was, in my judgment, low. There was no direct evidence of this but the BCA and Australian Standard in not being more stringent argue in that direction. So does the evidence of the frequency in which winders are used in domestic dwellings and the evidence of the experience of the witnesses in this case. Nor do I regard the fact that winders are not acceptable in commercial building as arguing significantly against this conclusion. The range of users and circumstances of use in such premises are liable to be much wider than in domestic dwellings. 126Common experience leads to the conclusion that harm flowing from an accident on the stairs, winders or straight treads, was likely, perhaps very likely, not to be serious. On the other hand, both the evidence in this case and common experience shows that the harm flowing from an accident on the stairs would not inevitably be low and might be extremely serious. 127Nevertheless, when regard is had to all of the matters to which I have referred, I am satisfied that Mr Spicer was not guilty of a failure to take reasonable care in designing or building the stairs as he did. 128I have reached the same view in the case of Mr Rowe. While counsel for Mr Rowe - correctly in my view - conceded that before complying with Dr Barrie's request for a change to the height of the storeroom came under an obligation before making that change to ensure that the staircase could be installed, that obligation did not extend to ensuring that the stairs did not include winders. Given the obviousness of them, the widespread use of steps of that type and the fact that the BCA and the Australian Standard regarded them as acceptable, I do not think reasonable care on the part of Mr Rowe required that he avoid winders merely because he could. 129And although I do not need to rely on this, it is appropriate to bear in mind that in designing stairs in all or virtually new construction, it will be possible to avoid winders by making the footprint of a staircase a little larger, commonly at the cost of making an adjoining room or space a little smaller. If Mr Joseph's argument be right, unless such adjacent rooms or spaces are designed at the absolute minimum size specified by law, Local Council or building standards, reasonable care will almost always require that this be done. 130I return to the position of the First Defendant who was, as I have said, primarily responsible for the Plaintiff's injury. The law has hesitated to complicate the parent/child relationships in a domestic setting with the law of negligence. Counsel for the Plaintiff was able to refer me to only one case where on facts comparable to those here, liability has been held to arise though there must have been many occasions when children had been injured in consequence of carelessness on the part of their parents or family members. In the case mentioned, Anderson v Smith (1990) 101 FLR 34 the Plaintiff had gone with her children to live with the children's grandmother. On the occasion in question, the grandmother was left to look after one of the children, aged 14 months while the Plaintiff went out with friends. During a period when the grandmother was doing something else, the child left the house through the back door and was found almost drowned in the grandmother's swimming pool. The child later died. Nader J concluded that the grandmother must have failed to properly shut the door on the last occasion that she had gone through it (while the child had been asleep in her cot). His Honour held that the grandmother owed a duty of care to the child in consequence of the time and place and that she had agreed to mind the child and was liable to the child's mother for nervous shock suffered in consequence of the events. 131On the other hand, a legal duty of care was held not to exist in circumstances where in consequence of a failure to supervise a four year old son, he had had walked passed his parents onto a roadway at a time when they were farewelling friends - Robertson v Swincer (1989) 52 SASR 356. A similar result was reached in Towart v Adler (1989) 52 SASR 373, where a father of a five year old child was held not liable when the child, attempting to climb onto a top bunk, fell from the sill of a window her father had opened. A number of factors were advanced as the rationale for these decisions. 132Factors to which reference was made in the first of these cases as arguing against the existence of the duty included the intrusion of the law of negligence into family and domestic relationships that would occur, and the fetter that would be imposed on parental judgment and discretion presumably by reference to some imaginary norm. Attention was drawn to the fact that departure at some time from the standard of reasonable care by all parents was almost inevitable and there were not readily recognisable standards for parental supervision, some parents choosing to be highly protective, others accepting that children will be hurt as a necessary part of children's development. Reference was made to "the prospect of a parent's assets being at risk in an action by a child, in consequence of a momentary failure of supervision judged by a court against an objective standard of reasonable care" as having "alarming implications" for parents and society. A little later, King CJ remarked (at 361):- Parents and children in our society are very dependent upon the support and assistance of benefactors. Children are cared for frequently by supportive relatives and friends and by kindly neighbours. What would be the effect upon such supportive arrangements of the knowledge that a failure of care in supervision might expose the benefactor to being stripped of his assets in consequence of an action for damages? 133Legoe J expressed himself pithily, at 369:- In my judgment, to have the sword of Damocles duty of care hanging over the parental head at all stages of the young child's life is a totally unwarranted burden which the law does not impose. If such a burden were to be imposed, then one would ask for what period during a child's development is such a duty to be imposed. When does the duty cease? Is a child of 10 one which the law classifies as old enough to accept responsibilities and therefore outside the limits of such a duty of care. Clearly, the law imposes no such borderlines. 134In Towart and Adler, a result such as had occurred in Robertson v Swincer was sought to be avoided upon the basis that it was the actions of the father in opening the window that had created a foreseeable risk of injury and thus the child was entitled to succeed. The contention was rejected upon the ground that the opening of the window was an ordinary domestic incident and to treat it as the occasion for imposing a legal duty of care would be an unwarranted intrusion of the law into family and domestic relationships. 135The matter has received some consideration in the High Court. In Hahn v Conley (1971) 126 CLR 276 at 283, Barwick CJ said:- ... The view for which there is most judicial support and the view which commends itself to me is that the moral duties of conscientious parenthood do not as such provide the child with any cause of action when they are not, or badly, performed or neglected. Further, I think that the predominant judicial view to be extracted from those cases, and again a view which commends itself to me as correct is that, whilst in particular situations and because of their nature or elements, there will be a duty on the person into whose care the child has been placed and accepted to take reasonable care to protect the child against foreseeable danger, there is no general duty of care in that respect imposed by the law upon a parent simply because of the blood relationship. Also parents like strangers may become liable to the child if the child is led into danger by their actions. As a matter of principle, I find the view expressed by McCarthy J in McCallion v Dodd (1966) NZLR 710 at 729 acceptable. 136In that case the High Court set aside a decision of the South Australian Supreme Court that a mother was liable to her 14 month old son for not supervising him so as prevent him being bitten by his grandmother's dog. 137In St Mark's Orthodox Coptic College v Abraham [2007] NSWCA 185 at [31], Ipp JA summarised what he thought the effect of the High Court decision was:- In my opinion, the ratio of Hahn v Conley was that, while the mere existence of a parent/child relationship does not bring about a duty of care on the part of a parent towards a child, the circumstances of a particular situation may give rise to such a duty. As Kirby J said in Harriton v Stephens (2006) 226 CLR 52 (at 92 [129]), citing Hahn v Conley, 'Australian law does not recognise any principle of parental immunity in tort.' 138What are the circumstances where the general rule applies? What are the situations where a parent is liable? What differentiates the two? 139In that case a father was held liable because he had taken his child to a school at a time where there was no supervision occurring, a situation regarded as one of potential danger. A similar result ensued when a parent took his child onto the road - McCallion v Dodd [1966] NZLR 710. 140The topic has also been the subject of consideration in an article in (1998) 12 Australian Journal of Family Law 150, "Am I my Child's Keeper? Parental Liability in Negligence" where the author having considered, inter alia, the above decisions, suggested that liability was only avoided when the person responsible was a parent or in loco parentis (and not merely caring for the child) and then only for acts of omission. 141There is a deal to be said for the second of these propositions. It does have the support of Barwick CJ in his Honour's statement that "parents like strangers may become liable to the child if the child is led into danger" and accords with the liability which has been held to exist in cases such as St Mark's Orthodox Coptic College v Abraham albeit those cases were outside a home environment. And acts of commission are more readily judged by more or less objective standards than, at least in a domestic setting, acts of omission. 142I do not doubt that there will remain difficulty at times in deciding whether the relevant action was one of commission (opening a window) or omission (not supervising a child with access to it). Nor do I ignore the fact that many acts of commission in bringing a child into potential danger are forced on a parent or carer by reason of the incapacity or age of a child, e.g. lifting or carrying above hard surfaces such as the edge of a cot, the edge of a car doorway or a bathroom floor and to hold liability exists in these situations is to bring the law of negligence well into the parent/ child relationship. Should an injured child be able to bankrupt it's parents when they cannot satisfy a judgment for injuries they have caused? Should their income be garnisheed for a number of years to go some way towards satisfying such a judgment? And this while they continue to care for the child? 143Despite these potential difficulties I remain unpersuaded that parents (and close relatives) have no legal duty to exercise reasonable care when they undertake physical actions involving their children. 144Did Reverend Hoffmann exercise such care in this case? In my view she did not. I accept that she thought that she was being careful. I accept that often babies are attended to in the middle of the night and, in order that other members of a household are not disturbed, without lights being turned on. Nevertheless, when regard is had to the totality of circumstances including where Reverend Hoffmann walked and the absence of reasonable illumination, I am persuaded that she did not take that reasonable care. Accordingly, there should be a verdict and judgment for the Plaintiff against her. 145It follows from what I have said earlier that there should be a verdict and judgment for the Second to Seventh Defendants against the Plaintiff. 146All parties filed Cross Claims against one or more of the others. The Cross Claims raised no significant issues in terms of responsibility for the injury to the Plaintiff beyond those with which I have already dealt. It follows from what I have said that the following orders should be made on those cross-claims. 147The First Defendant, Reverend Hoffmann, filed the First Cross Claim and later an Amended First Cross Claim against Mr Roberts, Mr Rowe and Mr Spicer and his partners. On the Amended First Cross Claim there should be a verdict for all the Cross Defendants therein named against the First Cross Claimant. 148Mr Spicer and his partners filed the Second Cross Claim against Reverend Hoffmann and Mr Rowe. On the Second Cross Claim, there should be a verdict for all the Cross Defendants therein named against the Second Cross Claimants. 149Mr Roberts filed the Third Cross Claim and later an Amended Third Cross Claim against Reverend Hoffmann, Mr Rowe and Dr Barrie. Insofar as that Third Cross Claim involved Dr Barrie, it was the subject of an order made by Hoeben J on 20 July 2011. It follows from what I have said that the appropriate orders for me to make are that on the Amended Third Cross-Claim there should be a verdict and judgment for the First and Second Cross Defendants to that Cross Claim against the Third Cross Claimant. 150Mr Rowe filed the Fourth Cross Claim and later an Amended and Further Amended Fourth Cross Claim against Reverend Hoffmann, Mr Spicer and his partners, Mr Roberts and Dr Barrie. Insofar as this Cross Claim involved Dr Barrie, it also was the subject of an order made by Hoeben J on 20 July 2011. It follows from what I have said that the appropriate orders for me to make are that on the Further Amended Fourth Cross Claim there should be a verdict and judgment for the First to Sixth Cross Defendants to that Cross Claim against the Fourth Cross Claimant. 151Mr Spicer and his partners filed a Fifth Cross Claim against Mr Roberts and Dr Barrie. Insofar as this Cross Claim involved Dr Barrie, it also was the subject of an order made by Hoeben J on 20 July 2011. It follows from what I have said that the appropriate orders for me to make are that on the Fifth Cross Claim there should be a verdict and judgment for the First Cross Defendant to that Cross Claim against the Fifth Cross Claimants. 152Dr Barrie filed a Sixth Cross Claim against Reverend Hoffmann, Mr Rowe and Mr Spicer and his partners. This Cross Claim was the subject of orders made by Hoeben J on 20 July 2011 completely disposing of it. It follows that I need make no further orders relating to this Cross Claim. 153I should say something on the question of costs. They were not argued so that these remarks should be regarded as tentative but as the matter is fresh in my mind it seems appropriate to record some thoughts. There was little or no dispute as to the events that led to the staircase being constructed as it was and none as to its form. The principal issues were as to the safety of that staircase, whether it complied with written or other industry standards, whether in the circumstances there had been a viable, practicable and safer alternative, and as to the beliefs of those involved in its design, construction or installation as to the staircase's safety and those standards. To address these issues, there were engaged on behalf of the Plaintiff 2 experts and on behalf of each of Reverend Hoffmann, Mr Roberts, Mr Rowe and Mr Spicer and his partners a further expert. Most furnished more than one report. 154In the reports there was an enormous amount of duplication and reference to, or quotation of, matters that were unnecessary. And of course, as the paper multiplied, it had a snowballing effect. One expert was invited to comment on what the others had said and when they met in conference prior to the hearing and then in the witness box, everything took much longer than it would or should have. 155I do not accept that the costs of and consequential on an expert's report should include all that flow from it merely because of the area covered by the report. Solicitors have an obligation to ensure that the report is directed to matters genuinely in dispute and while obviously experts must be permitted some latitude, in this case the degree of unnecessary material, judged by what was reasonably needed, was extreme. 156And there is a second issue. While I appreciate that the interests of Mr Roberts, Mr Rowe and Mr Spicer and his partners were in some respects adverse and, of course, all were adverse to the interests of the Plaintiff and Reverend Hoffmann, there is much to be said for the view that the costs recovered by Mr Roberts, Mr Rowe and Mr Spicer and his partners should be limited so that, so far as the costs of and associated with the expert evidence, including the time spent in preparation and hearing, is concerned, only one set of costs is recovered. As between themselves, the liability of Mr Roberts, Mr Rowe and Mr Spicer (and his partners) depended largely on the quality of what they did or could have done in response to instructions or requests they received. It did not need three experts to address that quality. 157Finally, I should mention one additional matter. Since judgment was reserved in this matter, I was obliged to move chambers and I am unable to find Exhibit 9, a piece of blackbutt timber which had been sprayed with Sure-Tread anti-slip, the product which is contained in Exhibit 11. In light of other evidence, the absence of that exhibit was not material to my conclusion. 158I order as follows: (i)Verdict and judgment for the Plaintiff against the First Defendant. (ii)Verdict and judgment for the Second to Seventh Defendants against the Plaintiff. (iii)On the Amended First Cross Claim, verdict and judgment for the Cross Defendants against the First Cross Claimant. (iv)On the Second Cross Claim, verdict and judgment for the Cross Defendants against the Second Cross Claimant. (v)On the Third Cross Claim, verdict and judgment for the First and Second Cross Defendants against the Third Cross Claimant. (vi)On the Further Amended Fourth Cross Claim, verdict and judgment for the First to Sixth Cross Defendants against the Fourth Cross Claimant. (vii)On the Fifth Cross Claim, verdict and judgment for the First Cross Defendant against the Fifth Cross Claimant.

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