CHERRY v JAYMARDO PTY LTD t/as HOWZAT INDOOR SPORTS &

(1) The trial judge was entitled to prefer the evidence of one witness over another. In a case where there was no testing of the expert's evidence such a preference is not immune from challenge, however, in the circumstances of the case, the trial judge was entitled to choose between the expert evidence.

Abalos v Australian Postal Commission (1990) 171 CLR 167; Ahmedi v Ahmedi (1991) 23 NSWLR 288 considered.

(2) The appellant bore the onus of establishing that the respondent was negligent. The mere fact of a fall on wet steps is not sufficient to do so. As the appellant's expert evidence was not accepted by the trial judge there was no evidence that the respondent was negligent.

Powell JA The basic facts which have given rise to this appeal are set out in the Judgment which has been prepared by Beazley JA, which Judgment I have read in draft, and need not be repeated by me.

Although the Judgment delivered by Sidis DCJ, from which the appeal had been brought, is less well ordered than one might have wished, a fair reading of it, in my view, makes it tolerably plain that her Honour, relying - as she was entitled to do - upon the report of Mr Beckett, was of the view that it had not been shown that the Respondent had failed to take any precaution which was reasonably required of it to avoid the risk of injury to persons using or seeking to use the stairs - that is, that the Appellant, who bore the onus had failed to establish negligence on the part of the Respondent.

I agree with Beazley JA that the appeal should be dismissed with costs.

Beazley JA This appeal is within a narrow compass, and whilst the result is important to the parties, raises no question of principle.

The appellant was a visitor to the gymnasium at the respondent's premises. Having used the gym she showered in the ladies' shower room, leaving two young children aged 2 years and 14 months old who were in her charge, seated on a bench in the shower area. There was a "rule" that children were not to be in that area. Her Honour found, however, that the appellant did not know of the rule, nor was it rigorously enforced. The younger child wandered out of the shower area, up some stairs leading to the steam room. The appellant went up the stairs to retrieve the child and as she descended, holding the child in both arms, she slipped on the top step, slipping about two thirds of the way down the stairway.

Her Honour recorded the appellant's evidence that she was dry at the time she ascended the stairs, although made no finding as to whether she was or not. She found, however, that the steps were wet at the time of the accident.

There were seven steps leading from the shower room to the steam room, approximately 1090mm in width, narrowing to 780mm over the last two steps. The steps were covered with a glazed quarry tile (according to the appellant's expert, or a ceramic tile according to the respondent's expert). The steps had a "non slip" coating of "epoxy or such like, and non slip gritty particles embedded in the surface" from the edge to a depth of 115mm. A continuous hold rail was provided on each side.

The central thrust of the appellant's case was that the material used in the construction of the steps was such as to render them slippery when wet. The appellant and respondent each adduced expert evidence by way of tendered reports only. Both experts agreed that the relevant standards for these steps was contained in the AS/NZS 3661.1-1993. That standard required that steps such as these have a co-efficient of dynamic friction of 0.4.

The trial judge recorded the findings of both experts and appears to have accepted the evidence of the respondent's expert, Mr Beckett. Mr Beckett acknowledged that in a "wet or damp condition, the coefficient of dynamic friction of the smoother zone [the back section of the step] drops to a value of 0.39 which is just marginally below the 0.4 value under the new Standard for wet surfaces". Mr Beckett concluded:

"6.1 The stair area meets the AS 3661.1-1993 Standard for an acceptable standard of coefficient for dynamic friction when wet.

6.2 While the stair geometry varies beyond the normal Smm limit continuous robust handrailing is provided."

The trial judge was entitled to prefer the evidence of one witness over another. In a case where there was no testing of the expert's evidence such a preference is not immune from challenge on the usual Abalos principle (Abalos v Australian Postal Commission (1990) 171 CLR 167). However, Dr Hill's report was vulnerable in a number of aspects which were reported on by Mr Beckett. In particular, Dr Hill failed to remove the co-efficient of the dynamic of the back section of the step. Dr Hill did not respond to those criticisms. Accordingly, her Honour's acceptance of Mr Beckett's evidence ought not to be disturbed by this Court.

URERRY v JAYMARDO PTY LTD tas HOWZAT INDOOR SPORTS & FITNESS WORLB (Stein JA)

However, that is not the end of the matter, her Honour, having found that the steps were not inherently dangerous, given the non slip edge and the hand rail addressed three questions:

(2) Was the risk of injury from it far-fetched or fanciful?

(3) If it was not, what would a reasonable man have done to avoid injury from it?

Her Honour held that the appellant's injury was caused when the appellant slipped on the steps in circumstances where there was conduct of the appellant which placed her in a particularly hazardous position namely by bringing a child onto that part of the premises, leaving the child unattended and then walking down the steps carrying the child in both arms.

Her Honour concluded that it was not foreseeable in such circumstances that the accident would have occurred or that the respondent should have taken action to avoid the accident.

In my opinion, no appealable error has been shown in her Honour's judgment. The appellant bore the onus of establishing that the respondent was negligent. The mere fact of a fall on wet steps is not sufficient to do so. The appellant's expert evidence was not accepted by the trial judge. There was thus no evidence that the respondent was negligent.

Accordingly, the appeal should be dismissed with costs.

Stein JA I agree with Beazley JA whose draft judgment I have had the benefit of reading. The decision of Judge Sidis came down to a choice between conflicting expert evidence on the dynamic coefficient of friction of the steps in question (AB 111 U). Dr Hill had only tested for the static coefficient stating:

The test with bare skin indicates the step to be marginally safe when wet. This is an estimate only, based on a simple test, and refers only to the static coefficient of friction. I would expect the dynamic coefficient of friction to be much lower and therefore the steps are considered hazardous when wet and with bare feet.

On the other hand, Mr Beckett tested for the coefficient of dynamic friction. He stated in his report:

Four passes across the dampened tiled floor surface were made with the values of 40, 38, 38 and 38 being recorded. The mean of the final three readings gave the value of 38 = 0 which provides a wet dynamic coefficient of friction of 0.39 in accordance with Table Al of the Standard.

Although finding that the value of 0.39 was 'just marginally below the 0.4 value under the new standard for wet surfaces' he concluded that the stair met the 'Standard for an acceptable standard of coefficient for dynamic friction when wet' (AB 77 L).

There was thus a conflict between the expert evidence, one witness measuring the dynamic friction coefficient of the step according to the methodology of the Standard and the other not doing so. Rather, Dr Hill made extrapolations or prognostications that the dynamic coefficient would be lower than the results of the static coefficient tests which he conducted and concluded that the steps were dangerous. Dr Hill's report does not explain the basis of his 'expectation' other than to refer to the plaintiff having bare feet at the time of her fall.

In these circumstances it is not surprising that the trial judge indicated a preference for the evidence of Mr Beckett. Her Honour was entitled to choose between the expert evidence. Since there was no oral examination of the experts

before the District Court the principles in Ahmedi v Ahmedi (1991) 23 NSWLR 288 do not apply, and a challenge could be made to her Honour's finding. Nevertheless, it is plain that there was a basis for her acceptance of Mr Beckett over Dr Hill and this court should not disturb the finding.

Counsel for the appellant: P M Hall QC/J M Hennessy

10 Solicitors for the appellant: Bale Boshev & Associates