The Facts
3Mr Dailhou was born in 1954. He lives with his wife, who was also a teacher, in Taree. They conducted various businesses from their home, as well as working for the Department of Education.
4In June 2007, Mr Dailhou travelled to Sydney to make a presentation at the Successful Learning Conference at the University of Sydney. The conference was to take place on Monday, 25 June 2007 and Tuesday 26 June 2007. Mr Dailhou was paid his salary for these days by the Department of Education.
5On Monday evening, 25 June 2007, at about 5.45 pm, Mr Dailhou decided to browse in Kelly's bookshop which was located on Broadway, Glebe, between the Sydney University campus where the conference was held and the hotel where he was staying.
6The bookstore had a downstairs basement area that was used primarily for storage. There was a downstairs exit from this area with a loading dock. A flight of twelve stairs provided access from the downstairs area to the ground floor. The stairs were made of wood. The top two stairs had metal nosings. There is a handrail on the stairs, which is on the left in the downward direction. There were restricted publications stored in the downstairs area, although some of these were also available on the ground floor. One could see from the landing, if one looked towards the downward stairs, a sign that signified the presence of the restricted books and articles on the lower ground floor.
7Sometimes access to the downstairs area was barred by a chain suspended on the landing. I accept Mr Kelly's evidence that the purpose of the chain was to deter customers from descending the stairs with merchandise that had not been paid for since usually there was no staff member present on the lower ground area to monitor the exit. Generally customers who wanted to go downstairs would consult the staff at the counter. I accept that the chain was not used for any reason connected with safety.
8At the top of the stairs there was a carpeted landing which measured 1.5 metres wide and was about 1 metre deep from the top of the stairs to the rear of the landing. It was not enclosed. It was lit by the ambient light in the bookstore. There is no suggestion that the lighting was in any way inadequate.
9Mr Dailhou's evidence was that he was browsing through the books and came to the landing. He said that he was unaware that there were stairs leading down one level to a section of the bookshop that was reserved for adult books and sex toys. He said that he fell down the stairs and landed on the floor of the restricted section. He injured his knee and his shoulder.
10A customer of the shop came down to help him and a member of staff, Margaret Bridge, also came to his aid. An ambulance was called. Two ambulance officers arrived and went down the stairs to Mr Dailhou. They helped him up and he walked back up the stairs. He said that he was unable to use the hand rail which was on the right of the stairs going upwards because he had injured his shoulder. However, he said that one officer supported him from the back and another took his left hand and helped him upstairs. They transported him to Royal Prince Alfred Hospital. On presentation he complained of right shoulder pain over the proximal humerus. An x-ray of his right shoulder was ordered. He remained under observation until the next morning, when he was given Panadeine Forte and discharged at 8.30 am to return to his hotel.
11That evening Mrs Bridge called Mr Kelly to tell him what happened. She made a contemporaneous note of the incident in which she recorded:
"About 6.15 pm.
A man fall down the stairs, front way from the top.
He told me he was look at a book. He told us he was Diabetic. He name is Pete Dailhou.
Age 53.
Maybe a fractured arm.
Car 425 of Sydney Ambulance Center.
The Ambulance took the man to R.P.A.
I don't see the Pete fall down the stairs. I was at the front of the shop."
12When Mr Kelly arrived he entered the bookshop through the lower entrance and came up the stairs to the ground floor and went to the counter where he spoke with Mrs Bridge for about fifteen minutes. She gave him the incident report she had prepared. Mr Kelly did not return to the landing with Mrs Bridge to inspect the site of the fall. He did not pay any particular attention to the moveable shop fittings that were there at the time.
13The way in which Mr Dailhou fell and the place from which he fell were in dispute. As no one witnessed the fall, the resolution of these questions depended, in the main, on Mr Dailhou's own evidence, which was neither consistent nor reliable. The first recorded version given by Mr Dailhou, which he gave to Mrs Bridge, is that he fell "front way from the top". Mr Dailhou subsequently reported at various times that he fell backwards down the stairs. Indeed, his counsel opened his case on that basis, as the following extract shows:
". . . the plaintiff had the misfortune of walking across looking on to the wall facing down the staircase, which was then full of a display of books, when he took a step backwards and found that he was going down the staircase."
14In his evidentiary statement dated 22 November 2012 he said:
"After looking at one of the bookshelves I took a step to turn around when without warning I fell."
15However, in cross-examination he said that he turned around from one bookshelf and ended up facing the staircase. He said that he fell from the top of the stairs, but later said that he may have fallen from one of the lower stairs.
16What occurred immediately before the fall is not clear. Mr Dailhou was cross-examined about what he was doing before he fell. Before the luncheon adjournment, he was asked to draw a map of the bookshop and mark his path from the entrance to the stairs. He drew a diagram that showed him walking up an aisle away from the area where he fell, turning left, walking past the stairs that went upwards and then walking across towards the landing, entering the landing and then falling at a point marked 'x'. This document was tendered. However, after the luncheon adjournment, when the document was shown to him again, Mr Dailhou said that it was not correct and drew a significantly different path to the one he had originally drawn. On the second version he indicated that he had walked straight along the bookshelf along side the downward stairway. Mr Cavanagh SC, who appeared with Mr Callaway for the defendants, cross-examined Mr Dailhou about the reason for the change in the following passage:
Q. When did it come to you that, contrary to what you had drawn in your diagram an hour and a half ago, you had in fact been walking up an aisle closest to the staircase? When did that come to you?
A. Look, over lunch I was just sitting there thinking to myself. I said, "Hello, this guy is going to pull out a film out of me wandering around the book shop". That's exactly what I did. I wandered around that book shop. I didn't just go straight to that corner and fall down, no.
Q. You thought I would be pulling out film of you wandering around the book shop, did you?
A. It is just one of those things that might have occurred, yes.
17The second version was, however, not endorsed by Ms Welsh, who appeared for Mr Dailhou, who put the first version (presumably on instructions) to Mr Kelly in cross-examination. Although I do not consider the differences between the first and second versions to be particularly germane to liability, they do affect my assessment not only of Mr Dailhou's credibility but also of the credibility of his case.
18Nor was Mr Dailhou's evidence about where he was when he fell and whether he fell from the landing at the top of the stairs or whether he put a foot on any of the stairs consistent. Although uncertainty can sometimes be the product of subsequent trauma, I consider that, in the present case, Mr Dailhou was trying to give himself sufficient latitude to preserve his credibility in case the defendants had some CCTV footage of what actually happened, a possibility that had occurred to him over the luncheon adjournment and had caused him to alter his evidence.
19The photographs in evidence showed that, on the landing on the wall to the left of the stairs leading upwards, there was a bookcase. Opposite the bookcase, there was a flight of stairs leading downwards. On one side of the stairs there was a bookcase that formed part of the perimeter of the stairwell and there was a wall on the other side. None of the photographs in evidence was taken on the day of the incident. Mr Dailhou said that there was a bookcase in front of the panel on the landing that curtailed the area of the landing. Mr Kelly said that sometimes there was a bookcase opposite the downward stairs which was inset above that panel but not in front of it. I do not understand Mr Kelly to have any real recollection as to whether there was a book case there on 25 June 2007. At all events, a person looking at books in a book case in that area would necessarily have his or her back to the downward stairs.
20Mr Dailhou was cross-examined about the photographs he had taken when he returned to the store a few weeks after the accident for that purpose. He said that the scene they depicted was less cluttered than it had been at the time of his fall. Nonetheless the photographs show that adjacent to the stairs that led up from the ground floor to the first floor there was a bookcase, opposite which there were stairs that led down to the lower ground floor, where the restricted books and sex toys were located. I accept that the photographs substantially depict the layout of the bookshop and bookcases at the time of the fall. I do not accept Mr Dailhou's evidence that the bookshop was less cluttered when the photographs were taken than it had been when he fell. However, even if this were so and there were books on the landing, this does not assist his case since his case is not that he tripped on anything or that he was distracted by something on the floor of the landing. Indeed, it is reasonable to infer that if there were items on the landing his attention would have been drawn even more to the presence of the stairwell, than it was in any event by the presence of the landing and the general layout of the area.
21I do not accept Mr Dailhou's evidence that there was a bookcase opposite the downward stairs that curtailed the floor area on the landing. If there was a bookcase there I accept that it was above the panel and did not diminish the floor area of the landing. In my view the area of the landing was more than sufficient to allow a person perusing books opposite the stairway to turn around safely without encountering the top step.
22Mr Dailhou's evidence was that he fell in an uncontrolled manner from the landing or the top step down 18 steps (which was the number he later counted) to the bottom. He said, ultimately, that this had happened because he had been looking at the books in the case opposite the downward stairs and had turned around, not appreciating that there was a stairwell there, had missed his step, and fallen down the stairs. He said:
"I was shuffling along like so, looking at books and things like that. Came to the end where there is a book shelf there. I turned around expecting another row of shelves like so, and it wasn't. Down I went."
23However he admitted in cross-examination that he had looked to the left (in the direction of the downward stairs). He said:
"I was looking towards the left which came to a wall of books. I then did an about-turn expecting that the shelves continued behind me."
24It is difficult to know from this evidence whether Mr Dailhou in fact looked to the left or whether his answer was merely an instinctive refutation of the insinuation that he had not taken adequate care for his own safety. Although statements against interest tend to be credible, Mr Dailhou demonstrated that he was anxious to resist any possible criticism and to justify every aspect of his conduct. However, on the basis of his admissions, I accept, on the balance of probabilities, that Mr Dailhou looked to the left before he fell. In these circumstances I infer that he saw both the stairwell and the downward stairs. However, even if he had not looked to the left, I am unable to accept that he was not aware of the stairwell and the downward stairs, which were, in my view, obvious features of the store.
25I accept the opinions of the orthopaedic experts (given orally in the course of concurrent evidence) that, although the mechanics of falling are such that it might be expected that the plaintiff would have sustained more serious and widespread injuries, the nature and extent of his injuries are not inconsistent with his having fallen a considerable distance down a flight of stairs.
26On the basis of the defendants' admission to the following paragraph in the statement of claim, I accept that:
"On or about the said date [25 June 2007] at approximately 5.45 pm whilst browsing on the ground floor of the bookshop, the plaintiff fell down a flight of stairs connecting the ground floor and the basement of the said bookshop."
27There are various hypotheses that could explain Mr Dailhou's presence on that lower level, accepting (as is common ground) that he fell at least some part of the way down the stairs, including the following:
(1)he decided to go down and browse there, knowing the nature of the items located there and fell, once already on the stairs;
(2)he decided to go down there for some other reason and fell, once already on the stairs; or
(3)he fell from the level above, not appreciating that there were stairs there and not intending to descend the stairs.
28Mr Dailhou's case is (3) above and he bears the onus of establishing it on the balance of probabilities. There is no relevant criticism of either the stairs or the handrail. As his case developed in the course of the hearing I understood it to be that he was not aware of the existence of the stairs at all when he turned around 180 degrees and was so close to the edge of the stairs that he lost his balance and fell.
29I am not satisfied of Mr Dailhou's case to the requisite standard or that Mr Dailhou fell in the manner described. In particular, I am not satisfied that he fell from the landing or the top step or, as I have found above, that he was unaware of the presence of either the stairwell or the stairs.
30Mrs Bridge was not called to give evidence. Ms Welsh, who appeared on behalf of Mr Dailhou, objected when Mr Cavanagh asked Mr Kelly whether he knew where she was. Mr Cavanagh did not press the question in light of the objection. Ms Welsh ultimately submitted that I ought draw a Jones v Dunkel ((1959) 101 CLR 298) inference against the defendants by reason of their failure to call Mrs Bridge. Since the fall was unwitnessed Mrs Bridge could not have given evidence of it. Although she may have been able to give evidence of the layout of the store at the relevant time, it may be doubted whether she would have been able to remember the position of particular bookcases on a landing on a particular day.
31Mr Dailhou commenced the proceedings on 25 June 2010, the third anniversary of his fall. There is no evidence that the defendants had been notified that there would be a claim earlier than the date of service of the statement of claim on 5 July 2010. Even if Mrs Bridge's absence was unexplained, the Jones v Dunkel inference that her evidence would not have assisted the defendants' case would rise no higher than that she could not be expected to recall the layout after such a passage of time. I do not consider it appropriate to draw the inference in light of Ms Welsh's objection to Mr Cavanagh's question. However, in any event, the inference, even if drawn, would not have affected any of my findings.