Capers v State of Victoria [2011] VSCA 97

3 The appellant, Ilona Capers, a lady born in 1949, sought damages for injuries sustained by her on 20 August 2002 in the course of her employment by Victoria Police as an administrative worker. The accident occurred when the appellant slipped and fell whilst descending a flight of stairs leading to the basement of premises occupied by Victoria Police at Geelong, that being where the appellant carried on her work. These stairs were the only means of internal access to the basement.

4 There is no doubt that the appellant suffered the fall which she alleged. Nor is there any doubt - not that it eventually became relevant for the jury's consideration - that she had sustained very serious injuries to her left shoulder and arm in the accident. The injuries were of particular significance to her because she had been, from 1998, separated from her husband and thus dependent upon earning moneys for herself.

5 The trial was conducted before a jury over a period of some four days in February 2010. There were two issues at trial, the first relating to liability, the second to damages. Upon the liability issue, and I put contributory negligence to one side for the moment, the questions were these: First, in what circumstances had the appellant sustained injury? Second, had the respondent employer been guilty of want of reasonable care for the appellant, this depending upon the facts found as to the circumstances in which the appellant had sustained injury?

6 The judge put four questions to the jury for its consideration. The first of them was whether any negligence of the respondent had been a cause of injury to the appellant. It was that question which the jury answered 'no' and, by doing so, made it unnecessary for it to answer any of the other three questions.

7 The appellant relies upon the following grounds of appeal:

1. No reasonable jury acting upon the totality of the evidence at trial could have failed to conclude that there was negligence on the part of the Defendant which was a cause of the injuries sustained by the Plaintiff.
2. The verdict of the jury was contrary to evidence and to the weight of the evidence.

8 There were, as I have said, two sub-issues of present importance within the first question which the jury answered unfavourably for the plaintiff. Shortly, how had she come to sustain her injuries; and did that bespeak negligence on the part of the respondent.

9 The plaintiff's account given in evidence was that whilst descending the stairs, her left foot had slipped upon a rounded nose of one of the steps, this causing her to lose her footing and fall heavily.

10 The plaintiff was cross-examined to suggest that the accident had occurred in another way. It was put to her that she had simply overstepped. She denied doing so. Her denial was her evidence. But it did not follow that her evidence must be accepted.

11 Apart from that direct challenge to the appellant's evidence, an attack was mounted upon her that she had given inconsistent accounts of the accident at earlier times. So, it was put to her - and she acknowledged - that in a claim form dated 30 August 2002 she had simply said, 'Fell down basement stairs made of cement.'

12 The appellant agreed also that in an affidavit sworn 9 May 2006, she had deposed that, 'As I was stepping down my foot skated across the surface of one of the steps, with the result that I fell forward.'

13 Further again, the respondent relied upon what had been said by the appellant to a Dr Horsley, who had examined her on behalf of the respondent in December 2006. The appellant, as she acknowledged, had told the doctor that she could not recall why she had fallen, although she could recall that the stairs were narrow and had rounded edges.

14 Less significantly, perhaps, but in the same vein, some evidence was adduced as to the history which the appellant had first given her general practitioner following the accident - that is, that she was, 'walking down, lost footing, no rail, fell to bottom.'

15 Most judges and most juries, in my view, would not have attached much significance to what were said to be the inconsistencies. But it is another thing to say that the jury was precluded from concluding that the appellant's earlier statements stood as admissions that she really did not know what had happened; or else bore upon her credit, this potentially impacting upon acceptance of her viva voce account.

16 There was a third strand of the respondent's case that, potentially, bore upon the jury's willingness to accept the appellant's account of the accident. An attack, if it can be called that, was mounted upon the appellant's credit.

17 It was revealed by the evidence that the appellant had a modest history of depression preceding the accident of August 2002, whereas she had told an examining doctor that she had no previous psychiatric illness. The appellant gave an explanation of the apparent conflict in her evidence and it might well have been accepted by the jury. But whether a jury was mandated to accept it is another matter.

18 Another aspect of the credit attack was a modest contradiction of the appellant's evidence that she had been in good health and had good mobility before the accident occurred. In fact, she had been treated for a bunion in 2000 by surgery on two occasions. It seemed, on the evidence, that she had very little in the way of disability as at August 2002 from the residue of that condition; and it was not put to her that this was a cause of her having fallen. Nonetheless, the respondent relied upon what its counsel asserted was the appellant's unreliable account as to her pre-accident health.

19 Another element of the credit attack was three minutes of surveillance film - three minutes in the more than seven years between the accident and trial. It showed the appellant driving a motor vehicle, something which she acknowledged doing, saying that it was a matter about which she had no choice.

20 In all, I would say that the credit attack was of no moment. But I cannot say that a jury must have so viewed it.

21 When one considers, on the one hand, the appellant's evidence, and, on the other hand, the elements of the attack upon it which I have described, in my opinion it is impossible to say that the jury was constrained to conclude that the accident had occurred as the appellant contended. Unless the jury was constrained to such a conclusion, she carrying the onus of proof, the ability of the appellant to establish her case in negligence was effectively destroyed, as her counsel fairly conceded this morning.

22 Counsel argued, however, that there were two pieces of evidence which supported the appellant's account and which, taken with it, and notwithstanding the areas of attack which I have mentioned, compelled a conclusion that the accident had occurred in the way in which the appellant described it. First, there was the evidence of Mark Dohrmann, an industrial safety expert. Counsel submitted that he had given a very logical explanation of the mechanics of the fall as the appellant had described it to him. That logical explanation, counsel submitted, was consistent with Mr Dohrmann's examination of the stairs.

23 Second, counsel relied upon the evidence of Senior Sergeant Benny, the officer in charge of the police station. There were two parts to his evidence. The first was that the stairs had been constantly used by many people, without reported incident, before the appellant's fall. The second was to the effect that slip-resistant strips had been fitted to the noses of the stairs some two to three months after the happening of that accident.

24 Mr Dohrmann gave evidence of inspecting the stairs in 2009. His evidence was to the effect that, in their dimensions and set-up, they met relevant standards. Their tread was fitted with a non-slip surface. He noted, however, the rounded nose of the stairs and he described how, if part of a foot came into contact with the rounded nose (to which no safety strip was fitted) a fall might occur. For that reason, he opined, the safety strips which were later fitted should have been fitted at the time of the appellant's fall.

25 In my opinion, Mr Dohrmann's evidence was capable of explaining why, in the event that the appellant had fallen in the circumstances which she described, negligence might be ascribed to the respondent. But I do not agree with counsel's submission that the witness's evidence gave any support for a conclusion that the appellant had in fact fallen in the way that she averred or, more accurately, that his evidence, together with her evidence, compelled a conclusion that she had fallen in such a way.

26 The first aspect of Mr Benny's evidence, in my opinion, took the appellant no further. It showed that the respondent had taken a step to improve the safety of the stairs subsequent to the appellant's accident. But that said nothing to show the circumstances in which the appellant had suffered her fall.

27 Appellant's counsel submitted that the respondent's counsel had not put Mr Benny's evidence to Mr Dohrmann. He argued that, had the evidence been put to Mr Dohrmann, the witness might have been able to explain it. This must have been a reference to what I have called the second aspect of Mr Benny's evidence.

28 To my mind, there were a number of problems with that submission. First, no complaint was made at trial about the failure of the respondent's then counsel to put Mr Benny's evidence to Mr Dohrmann.

29 Second, the submission that Mr Dohrmann might have been able to explain the evidence in a way that would support the appellant's account of the accident is no more than speculation.

30 Third, had it been put to Mr Dohrmann that Mr Benny's evidence supported the appellant's account - and whether or not Mr Dohrmann had accepted the proposition - a jury might well have reasoned that Mr Benny's evidence in fact created a greater problem for the appellant. That is, it would have underlined the fact that not only the appellant but many, many people had walked up and down the particular stairs day in and day out; and that, until the appellant's accident, no incident had been recorded. The jury might have reasoned that those circumstances told against the likelihood that the rounded edge of the stairs had anything to do with the appellant's fall.

31 But if the jury had been persuaded to the appellant's account of the accident, it then had to consider whether negligence had been established. The question whether or not the evidence established negligence on the respondent's part was an evaluative one confided to the jury.

32 In this case, there was a great deal of evidence which suggested that the risk of injury was slight. The jury could hardly have concluded otherwise. Not only had the appellant negotiated the stairs without incident on 100 occasions or so before the occasion on which she was injured, many, many people, as I have said, used the stairs every day, and had been doing so for years, without reported incident.

33 The jury might have concluded, however, that although the risk was very low, the potential magnitude of the risk, if it eventuated, was high. It might also have concluded that the remedial action necessary to alleviate the risk was of modest proportions.

34 Thus, a jury might have concluded, had it accepted the appellant's account of the accident, that the respondent employer had failed in its duty of care to the appellant.

35 But to say that the jury might have so concluded or to say, which I consider to be the case, that most judges and most juries would have so concluded, does not resolve the matter in the appellant's favour. Again and again it has been emphasised that a party that carried the onus of proof upon an issue at a trial by judge and jury, and failed, faces a very difficult task in attempting to satisfy an appellate court that it should overturn the judgment which eventuated. Again, it is not in dispute that, in considering an appeal of the present kind, an appellate court must take a view of the evidence most favourable to the respondent; and must be persuaded, upon such a view of the evidence, that there was no evidence which left it reasonably open to the jury to resolve the matter as it did. Citation of authority is otiose, those principles being common ground.

36 I am unable to conclude, even if the jury had accepted the appellant's account of the accident (which, in my view, as I have said, it was not bound to do), that the jury would then have been obliged to find the respondent guilty of negligence - that is, essentially by not fitting the protective strips to the noses of the stairs before the appellant's fall. Neither application of the Shirt[1] calculus, nor the later fitting of the strips, [2] compelled it.

37 For these reasons, I would dismiss the appeal and I add only this: in my opinion, senior counsel for the appellant this morning presented this appeal as well as it could possibly have been presented.

40 The Court will order that the appeal be dismissed.

42 The Court will also order that the appellant pay the respondent's costs of the appeal.

[1] Wyong Shire Council v Shirt & Ors [1980] HCA 12; (1980) 146 CLR 40.

[2] As to the possible significance of remedial measures see, for instance, Theilemann v The Commonwealth [1982] VicRp 71; [1982] VR 713.