DROTEM PTY. LIMITED v. MANNING [2000] NSWCA 320

DROTEM PTY. LIMITED v. MANNING [2000] NSWCA 320 - NSWCA 2000 case summary — Zoe

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1 POWELL JA: This is an appeal by an unsuccessful Defendant ("Drotem") from a Judgment delivered, and verdict found, by Sidis DCJ on 18 August 1999 - the formal Judgment appears not to be have been entered until 15 September 1999 when the quantum of damages required by the Judgment which her Honour had earlier delivered was agreed upon and when her Honour delivered a further Judgment - not reproduced in the appeal papers - dealing with the costs of the action. 2 In the action - the hearing of which took place at Newcastle - with which her Honour was concerned to deal, the Respondent ("Mrs. Manning") sought to recover from Drotem damages for injuries which she had sustained on 3 July 1997 when she slipped and fell while walking on what might be described as an access ramp leading from the car park at the rear of premises known as the Cooks Hill Medical Centre to the rear of a surgery occupied by a Dr. MacDonald and a pharmacy known as the Darby Street Day-Night Chemist situated on the ground floor of the Cooks Hill Medical Centre. 3 The land upon which the Cooks Hill Medical Centre is situated and which, at all relevant times, was owned by Drotem as trustee of the JADS Family Trust, has a frontage of 10.92 metres (approximately 36 feet) to Darby Street, Newcastle, a depth of 50.24 metres (approximately 165 feet) and a frontage, at the rear, to Railway Street, Newcastle. 4 Erected on the land at the Darby Street frontage is a two-storey - ground floor and one upper floor - commercial building known as 145-147 Darby Street, the ground floor of which is, as I have earlier indicated, occupied by the Darby Street Day-Night Chemist (No. 145) and Dr. MacDonald's surgery (No. 147). The upper floor is occupied by the professional offices of Messrs. Trisley Kilmurray & O'Sullivan, solicitors, access to those offices being had from an entrance situated on Darby Street. 5 At the rear of the building is a concrete paved car park, reached by a concrete driveway from Railway Street, which car park appears (Exhibit "B" - Blue AB 348) to extend for a substantial part of its depth into the land behind the building in which is situated the Kerrijon Framing Gallery at 149 Darby Street. At the boundary of the land at the rear and adjoining the concrete driveway from Railway Street is erected a substantial sign (Exhibit "A2") reading "Cooks Hill Medical Centre Surgery and Chemist" and with a red arrow upon which are the words, in white, "Car Park", indicating the location of the car park. 6 According to Mr. Brake, one of the beneficiaries of the JADS Family Trust, who, between 1978 and 1991, in partnership with his late wife, operated the pharmacy, then known as "Cooks Hill Pharmacy" - at 145 Darby Street - the building now known as the Cooks Hill Medical Centre was erected in 1977-1978, the construction of the building being arranged by himself. Mr. Brake, so he said (Exhibit "8" - Blue AB 117), chose the architects, engineers and builders and approved the design of the building on behalf of Drotem on the basis of advice received from "those experts" - the building was designed by Lees & Valentine Architects (now apparently known as Valentine & Dick Architects), the engineering work was undertaken by one Geoff Bubb of Rankine & Hill (now apparently known as Connell Wagner) civil engineers, the building work was undertaken by McCloys Building Contractors, and the plans were approved by the Council of the City of Newcastle - those plans included the plans of both the building and the car park (see, Exhibit 2a Report of Associate Professor Yandell 6 March 1999 - 1 Blue AB 23). 7 It seems tolerably plain that the land upon which the Cooks Hill Medical Centre is erected falls from Railway Street in the direction of Darby Street and that, when the building was erected, the land was "cut and filled" in order to provide a level part of the land upon which the foundations for the building and the building itself was erected. In the result, the land immediately adjoining the rear of the building, adjoining which runs a path some 1370mm (approximately 4 feet 6 inches) wide, is at a level 900mm (approximately 3 feet) below the level of the car park. The path is reached by a ramp 3860mm (approximately 12 feet 6 inches) long and 1470mm (approximately 4 feet 7 inches) wide, the slope of the ramp being 12 degrees or 1:5. At the top of the ramp is a box gutter intended to stop water falling on the car park running down the ramp. The ramp is flanked by brick walls which also border the pathway at the rear of the building. 8 According to Mr. Brake (Blue AB 119): "13. During the construction phase, there was discussion as to whether steps or ramps should be constructed to provide pedestrian access from the car park level to the lower level immediately at the rear of the building. I was given advice by the architects as to the slope and the distance that the top of the ramp would therefore protrude into the car park area. I was advised that there was no requirement that disabled access be provided from the car park to the rear of the building, but that the construction of the ramp would provide wheelchair access. I was advised that for this reason a ramp would be preferable to stairs, and for this reason I decided that a ramp should be constructed. However, I left the precise design and construction of the ramp to the architects, engineers and builders. 14. The concrete surface of the ramp has not been altered or repaired since the original construction."

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9 Erected at the rear of the building at the level of the upper floor and off centre on the block is what appears to me to be a concrete slab platform - but is said by Mr. Brake (Blue AB 120) to be compressed asbestos sheeting - which seems to be approximately 5 metres (approximately 16 feet 6 inches) wide and approximately 2.4 metres (approximately 7 feet 9 inches) deep supported by what appear to be steel poles bolted into the wall adjacent to the path at the rear of the building. Upon that platform, at all relevant times, there were situated two air-conditioning units, one to provide air-conditioning for the pharmacy and the other to provide air conditioning for Dr. Macdonald's surgery - a third air-conditioning unit to provide air-conditioning to the professional offices of Trisley Kilmurray and O'Sullivan was apparently erected on the roof of the building. Each of the air-conditioning units on the air-conditioning platform was fitted with a drip tray which connected with a drain pipe leading to a drain at the rear of the building. As will be apparent from the dimensions of the air-conditioning platform which I have given above, the platform extends to cover part of the car park adjacent to, and part of the ramp leading from, the car park. 10 Although a doorway leads from both Dr. MacDonald's surgery and the pharmacy to the pathway at the rear of the building and although Dr. MacDonald was himself accustomed to use the doorway at the rear of his surgery as a means of access to his surgery, "for security reasons, the rear door (was) not available for general public access to the surgery and (was) usually kept locked". (Exhibit "7" - Blue AB 92) For this reason, patients attending Dr. MacDonald's surgery and using the car park were accustomed to walk through the pharmacy - the rear door of which was left open - out onto the Darby Street footpath and back into the surgery through the main entrance (Exhibit "7" - Blue AB 92). 11 According to Dr. MacDonald (Blue AB 93): "10. I am conscious that the appearance of the area around my surgery reflects upon the practice itself. For this reason it has been my custom to pick up any rubbish - papers, bottles, cigarette butts etc - when I see it on the ramp or in the car park area including the garden beds along the sides of the car park. Periodically, usually weekly, and at least fortnightly, I use a broom which is kept inside the backdoor of the surgery, to sweep up leaves and any other foreign matter which may have accumulated at the back of the building. When doing this I will inspect the concrete ramp and sweep up anything which comes to my attention. 11. I would estimate that in the course of the normal day I would go up or down the concrete ramp at least twice and possibly more if going out on house calls. Accordingly, between just walking up and down the ramp, cleaning the area generally and sweeping the ramp, I believe that I would have observed any unusual discolouration developing in, or slime developing on, the concrete surface of the ramp. In the past 17 years I have never seen any such discolouration or slime and have never been aware of any moss being upon the concrete surface. From my observation the discolouration of the concrete ramp appears to be normal discolouration which I have observed on all aged concrete surfaces. However, there is (sic) occasionally small areas of green moss growing upon the brick wall along the side of the ramp. This moss does not grow upon the pedestrian surface of the concrete ramp and I have never seen any such moss upon that surface." 12 The car park at the rear of the building made provision for 13 parking spaces, 6 on the North Eastern side and 5 on the North Western side providing for angled parking to each side boundary - and 2 - one behind the other - on the North-Western side of, and adjacent to, the ramp. Of those 13 parking spaces, 8 were reserved for tenants in the building and for the proprietors of the Kerrijon Framing Gallery - of those on the North Eastern side, 1 was reserved for Dr. MacDonald and 3 were reserved for the use of Messrs. Trisley Kilmurray & O'Sullivan; 2 on the North Western side were reserved for the use of Kerrijon Framing Gallery; and the 2 to the North West of the ramp were reserved for the Darby Street Day-Night Pharmacy. 13 According to Mr. Brake (Blue AB 119); "15. Between 1978 and 1991, the Cooks Hill Pharmacy traded six days per week, Monday to Saturday. I was the pharmacist in charge and except for holidays, etc, I was at the business whenever it was open. 16. Between 1978 and 1991, I effectively managed the building on behalf of the JADS Family Trust and any difficulties or complaints associated with the maintenance etc of the property were referred to me. The directors of the defendant were not directly involved in the management of the building. 17. In 1991 I retired as a pharmacist and ceased directly managing the building. On behalf of the defendant, I arranged for Finlay Smith Real Estate (subsequently Lake Group Management) to manage the premises. I believed Finlay Smith to be competent agents … 18. On the advice of Finlay Smith, M & M Refrigeration and Air-Conditioning Services (sic) were engaged to service the air-conditioning units in the premises. I believed that M & M (sic) Refrigeration and Air Conditioning Services were competent air-conditioning servicemen …" 14 Prior to Mrs. Manning's accident, she had been a patient of Dr. MacDonald's practice for - on his estimate - 11 years, attending on average about once a month. Dr. MacDonald was aware (Blue AB 95) that Mr. Manning was accustomed to drive his wife to the surgery on those occasions when she attended to consult him. Although Dr. MacDonald said that he was not aware of where Mr. Manning would park on such occasions, he did say that it would not be unusual for patients to park in the rear car-park and to walk through the pharmacy to reach the Darby Street door of the surgery. 15 An Invoice dated 3 April 1997 (Blue AB 200) directed by M & H Refrigeration and Air Conditioning Services ("M & H") to "Lake Management Group" (sic) and relating to the "Darby St Chemist" reads (inter alia) as follows: "SERVICE REPORT SERVICE PERFORMED: carried out routine service to air-cond system. * Chemist A/cond unit needs new drain tray under whole unit * Doctor's surgery A/cond unit needs new drain tray under whole unit"

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would indicate that the trays were not installed until some time in September or early October 1997. 20 3 July 1997 was the fourth of seven successive days upon which, according to the meteorological data (Blue AB 7), significant falls of rain were recorded at Newcastle Nobbys Signal Station - according to that data, 14.4mm had been recorded to 9 a.m. on 30 June, 23.6mm to 9 a.m. on 1 July, 19mm to 9 a.m. on 2 July and 31.6mm to 9 a.m. on 3 July 1997. 21 On 3 July 1997, Mr. Manning, accompanied by Mrs. Manning, drove to the Cooks Hill Medical Centre, where they arrived and parked in the parking area at approximately 9.45 a.m., so that Mrs. Manning could consult Dr. MacDonald because she was suffering from bronchitis. Both Mr. and Mrs. Manning said that it was raining when they arrived at the car park. Mrs. Manning said that she proceeded ahead of Mr. Manning towards the ramp leading from the car park to the rear of the building - she was holding an umbrella in her right hand and carrying a shoulder bag with a strap on her right shoulder. Mrs. Manning said she was wearing shoes which were leather soled and which had a heel about 1½ inches high. 22 Mrs. Manning said that she was aware that the ramp was steep and that she had, in the past, noticed that water had leaked onto the ramp from the air-conditioning units, which water had produced moss on the wall at the side of the ramp and discolouration and, so she said, a slimy surface on the part of the ramp. Because of this and because of the rain, so Mrs. Manning said, on 3 July 1997 she walked in the centre of the ramp where it was less discoloured and she walked slowly. 23 Mrs. Manning's evidence continued as follows (Black AB 14-15): "Q. And what happened to you? A. All of a sudden my right leg shot out from under me and my left leg foot twisted back and I hit the brick wall and I twisted as I fell, landing on my backside, my lower back, back, neck and my head hit the concrete ramp. Q. And what did you feel about yourself immediately after falling? A. I was pretty shaken up. Q. Did you feel any pain? A. Yes. Q. And did you continue into Dr. MacDonald's surgery? A. Did I? . Q. Yes after you fell how did you get up? A. Terry had to help me up. Q. And then how did you get to Dr. MacDonald's surgery after that? A. Well Terry took me under cover out of the rain and stood me underneath the awning and he went and got the doctor's receptionist, Robyn, to open the back door. Q. To let you into the … A. To the surgery. Q. And were you aware when you embarked on 3 July, when you embarked on walking down the ramp were you aware that the back door to the surgery was already locked or not? A. No. ……… Q. And did you tell Dr. MacDonald that you had a sore low back, is that right? A. Yes. Q. And neck? A. Pain. Q. And neck: A. Pain in the neck and back, lower back. Q. Did he do something about your hand for you? A. He took a piece of gravel out of my left hand."

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24 In a statement (Exhibit "U" - Blue AB 68-77) made by him in June 1999, Mr. Manning said (inter alia) as follows: "3. I parked the car in the car park at the rear of the building of Railway Street. It was raining as it had been for about three days. 4. I got my wife out of the car and she started walking in front of me while I locked the car door. My wife held an umbrella in her right hand and her handbag under her right arm with the strap over her right shoulder. 5. My wife was about 2m in front of me when she started walking down the access ramp from the car park to the rear entrance to the building containing Dr. MacDonald's surgery. She was about half-way down and the right of centre upon the ramp when I saw her right foot slip from under her and out the front of her. She then fell backwards heavily. In the course of her fall her right arm hit the brickwork on the right side of the ramp. She twisted to the left and hit the rampway with her bottom. She continued falling backwards hitting the ramp with the back of her head. 6. At the time of her fall my wife was physically below average fitness for a person of her age due to the physical constraints of her life as an agoraphobic. She was a frail person and was not hurrying and in her usual manner walking relatively slowly in small strides. 7. My wife's accident happened very quickly. I had a clear view of it. The force of the fall disarrayed her clothing and tore the buttons from her blouse. 8. I went to her assistance, got her to her feet, wiped the back of her slacks with my handkerchief to remove water and other substances. I placed her against the rear wall of the building out of the water. 9. The mess which I wiped from my wife's slacks was wet and a dark greenish, brown colour. It was visible upon my beige handkerchief. ……… 14. Immediately after my wife's fall on the ramp I noticed a growth or staining of the ramp surface where she had fallen. When picking her up I found that the ramp was slippery. Her fall had caused a skid mark to the right of centre of the ramp running downhill for almost a foot and a second skid mark commencing to the left of that, initially running parallel but in a curved veering away to the left. The skid marks were of a light colour as though the substance upon the ramp surface had been rubbed away by my wife's sliding shoes. 15. The substance which to my observation caused the discolouration was mainly on the right side of the ramp extending to about the centre of the ramp. The skid marks and the fall were in that discoloured area. The substance which I wiped from my wife's slacks to my handkerchief came from that area of the ramp. 16. There were two air-conditioning units on a slab above the ramp. That slab extended over the bottom portion of the ramp only. On occasions prior to my wife's fall I had seen water allowed to run down from the overhead slab and onto the ramp. At the time of her fall rain fell directly on the uncovered portion of the slab and water ran down the ramp from the car park although a grade at the top of the ramp I assume would have caught most of the car park water."

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25 In his statement (Blue AB 95) Dr. Manning said (inter alia): "23. I recall Julie Manning attending my surgery on 3 July 1997 for an appointment. When she came into my consulting room she said words to the effect that she '… had fallen on the ramp'. 24. I assumed that she was referring to the ramp from the car park, at the rear of the surgery, and that she was referring to an instant which had only just occurred. She went on to describe that she had fallen onto her bottom and back, jarring her back. 25. During that consultation I attended to the superficial grazes which Julie Manning had suffered. I also treated her for the symptoms which had initially brought her to the surgery. She left the surgery without requiring any emergency transportation." 26 It was in respect of the injuries which she sustained as the result of her fall and the sequelae of them, which injuries she claimed had been caused by Drotem's negligence, that Mrs. Manning sought to recover damages in the proceedings with which Sidis DCJ was concerned to deal. 27 Although in the Amended Ordinary Statement of Claim (RAB 25) which was filed on behalf of Mrs. Manning shortly prior to the commencement of the hearing before Sidis DCJ in excess of forty particulars of negligence - the number and variety of which demand unstinting admiration for the enthusiasm and imagination of the draftsman - were given, it is unnecessary to record them in detail. In her Judgment (RAB 36-37) Sidis DCJ summarised them as follows: "On the basis of this evidence the plaintiff alleged negligence on the part of the defendant in numerous particularised paragraphs which fell into the following categories; (1) The wet and slippery nature of the ramp. It was claimed that this was the result of wear on the concrete surface of the ramp, the existence of aggregate within the concrete and the contamination as a result of the development of moss or algae on the surface of the ramp. It was alleged that there had been a failure to keep the ramp clean and clear of contaminants. (2) A failure to maintain the ramp or to implement a system of inspection and maintenance of the ramp and a failure to maintain the air-conditioning units on the platform above the ramp so as to prevent water leaking from them onto the surface of the ramp. (3) Design failures relating to the grade of the ramp, the position of the air-conditioning units and the method of draining them from the platform above the ramp and the provision of an appropriate non-slip surface. Other design failures were alleged to be the provision of a ramp of an inadequate gradient having regard to the consideration that the users were likely to be frail or in ill health and seeking medical attention, and the absence of a hand rail. (4) The failure to warn users of the ramp of the excessive gradient."

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32 In addition to the reports of Professors Morton and Yandell and of Mr. Alden there was tendered on behalf of Mrs. Manning a report (Exhibit "T" - Respondent's Additional Material p.13) - directed to the desirability of the provision of a rail for the ramp - which had been obtained from a Ms. Mackenzie, an occupational therapist, and a statement (Exhibit "17" - Blue AB 101) which had been obtained from Ms. Skerly, a part-time receptionist employed by Dr. MacDonald - the burden of which statement was that she had not seen anyone slip or fall on the ramp nor been told of anyone other than Mrs. Manning falling on the ramp - neither of Ms. Mackenzie nor Ms. Skerly being called to give oral evidence or cross-examined. 33 The nature of the report and oral evidence of Mr. Brake, of the reports of Professors Morton and Yandel and of Mr. Alden, and the points of difference between them, are sufficiently summarised by Sidis DCJ in the following portion of her Judgment (RAB 37-42): "In this case there was the usual conflict between Associate Professor Morton, honorary visiting fellow of the Department of Physics at the University of New South Wales, and Associate Professor Yandell of the School of Engineering of the University of New South Wales. Both reports were published by Unisearch. I have commented before on the unsatisfactory nature of conflicting reports being produced by one organisation affiliated with one university but those comments appear to have fallen on deaf ears. There was the usual dreary conflict concerning the appropriate measurement of dynamic coefficient of friction of the ramp. However in this case only Associate Professor Morton actually tested the surface of the ramp itself. Associate Professor Yandell measured an area at the foot of the ramp which he regarded as having a surface similar to that on the ramp. He did this because of the difficulties of taking measurements on the ramp with the portable pendulum friction tester which he favours and which is suggested but not mandated by Australia and New Zealand Standard 3661.1 of 1993. On the basis of readings which he took at the foot of the ramp and after adjustment to take account of the gradient of the ramp, Associate Professor Yandell determined that the effective coefficient of wet friction on the twelve degree sloping ramp was 0.56 and therefore in excess of the minimum standard of 0.4 required by standard 3661.1 of 1993. Associate Professor Morton measured on a number of locations on the ramp one of those being the point at which Mrs. Manning indicated that she slipped. He noted in his report, Exhibit S1, that at this position there were present in the ramp smooth rounded aggregate stones which were exposed. He measured a nearby position on the ramp where the surface had few exposed stones and which he classified as flat but gritty and rough. He measured an area of exposed aggregate stones on the level path of similar texture to the area where Mrs. Manning slipped and he measured an area on the level path containing few exposed stones of similar texture to the gritty and rough area on the ramp. The results of his measurements are set out in table 2 to his report and those results indicated that the gritty stone free areas of the ramp were adequately slip resistant if reasonable care was taken when they were used when dry. The areas where the smooth aggregate stones were exposed were mildly slippery according to Associate Professor Morton even when they were dry. When wet the course (sic) gritty areas remained reasonably slip resistant but the smooth exposed stones became dangerously slippery. A number of features were addressed in the evidence concerning the ramp in addition to the dynamic coefficient of friction of the west surface. The slope was a matter of some debate. It was agreed that the gradient of the ramp was twelve degrees or one in five. The parties disagreed as to whether there was any standard or code applicable at the date of construction of the premises, that is in about 1977 or 1978 which required a maximum gradient of 7.1 degrees or one in eight. According to Mr. Drake, an architect called for the plaintiff, and Associate Professor Morton, at that time ordinance 70 under the Local Government Act 1919 applied and the maximum permissible grade under that ordinance was one in eight. Mr. Aulden (sic), a consulting engineer called for the defendant, questioned this analysis and Associate Professor Yandell did not address the requirements of ordinance 70 at all. Professor Yandall noted a construction drawing which he said, 'must have been approved by the relevant local government authority before the building could be erected', and on that basis he assumed that a one in five ramp satisfied the council's regulations. However he impliedly acknowledged the unsuitability of that grade in the final paragraph of his report which is exhibit 2A where he said, 'Although the ramp is steeper than that recommended by AS1428-1997 for the disabled, it need not be used by them since the main and obvious entrances and exits to and from the building are adjacent to the public footpath in Darby Street.' The drawing which Associate Professor Yandell referred to is set out in figure 1 of his report which is exhibit 2A. According to Mr. Drake the reference to the twelve degree slope on that drawing has been added to the drawing. When the detail shown on the drawing for the ramp is scaled, the gradient provided for the ramp by the architect who prepared the drawing was one in eight. It does appear from the evidence that it is generally accepted that good building practice dictates that a ramp of one in eight is the maximum acceptable where the ramp is intended for pedestrian use. There was a similar dispute as to whether any code or standard required that a hand rail be provided in a ramp of the grade at these premises. The evidence is not clear. According to Associate Professor Morton it would have been advisable to have a hand rail having regard to the excessive slope of the ramp. According to Mr. Aulden (sic) it was unnecessary for a ground level ramp. The question of the ramp's surface and its condition was an important feature in the proceedings. Associate Professor Morton noted that some areas of the carpark and the ramp have a surface which is covered with flat but coarse gritty sand and cement of a similar texture to sandpaper. There were patches however particularly on the ramp itself I which the stones of the aggregate used in the concrete were exposed. He considered it likely that the exposure of the aggregate was the result of erosion over time since the construction of the premises. He noted that the place where the plaintiff indicated that she slipped was an area where smooth rounded aggregate stones were exposed. These are in areas which, after testing, indicated dynamic coefficients of friction both wet and dry which were below the required minimum of 0.4. On the ramp this deficiency was at its worst. Associate Professor Yandell stated that he measured exactly the same type of surface adjacent to the ramp and he saw no slippery section on the main walkway. As far as contaminants are concerned I have already referred to the leaking air conditioning units on the platform above the ramp. ……… Associate Professor Morton and Mr. Drake reported sighting moss on the side wall of the ramp. Mr. Drake took a sample of the moss which was presented in evidence. Moss was sighted by me on the site inspection and this supported the observations of Associate Professor Morton and Mr. Drake. There was no reference to it by Associate Professor Yandell or Mr. Aulden (sic) although Mr. Aulden (sic) specifically said he saw no moss on the concrete ramp itself. Also apparent to Professor Morton, Mr. Drake and Mr. Aulden,(sic) although not referred to by Professor Yandell was an area of discolouration in the area where water leaked from the air conditioning unit. No samples were taken of the discoloured material nor was it tested and therefore there was no evidence which would suggest that this discolouration presented any material which would be likely to be slimy or slippery. As far as Associate Professor Morton was concerned, he identified a number of areas where what he regarded as the dangers presented by the ramp could have been remedied. Firstly he said a hand rail could have been provided, secondly the surface could have been dressed or provided with cleats to provide a better non slip surface. Preferably, he said, the ramp should be reconstructed so that it is of a lesser and more suitable slope."

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34 When she came to resolve the differences between the various experts and to record her finding as to the cause of Mrs. Manning's fall, Sidis DCJ wrote (inter alia) as follows (RAB 43-46): "I was asked to take a site inspection of the ramp and my own impression was that it was steeper than one might expect and that impression was supportive of the expert evidence of Professor Morton and Mr. Drake. My findings therefore are as follows. I prefer the evidence of Associate Professor Morton to those of Associate Professor Yandell for the reason that his report is more thorough. Professor Yandell makes no reference to exposed aggregate moss or discolouration. Professor Morton tested the ramp where the plaintiff fell. Professor Yandell was led by the note on figure 1 to his report into an incorrect assumption that the one in five grade was acceptable to the local council at the time of construction of the building. Notwithstanding the evidence of moss on the wall there is no independent evidence that that substance described by Mr. Manning as slime which he removed from his wife's slacks after her fall was algae or any other contaminant which was slippery and which caused the plaintiff to fall. The evidence establishes that the dynamic coefficient of friction of parts of the ramp when wet at the time of the fall was below the standard set by the relevant Australian and New Zealand standard because the concrete surface had eroded allowing the protrusion of pebbles used as aggregate and that the grade of the ramp was in excess of that regarded as appropriate for ramps provided for pedestrian use. The defendant raised a number of matters in respect of the claims of liability. Firstly it was argued that architects and builders had been retained at the time of construction of the building and whilst the drawings indicate a one in eight grade on the ramp there is no evidence as to the circumstances in which that grade was changed or who authorised it. It was also argued that the ramp complied with standards at the time. I have already dealt with this and I have rejected it. In any event it seems to me that the plaintiff's fall was essentially the result of erosion leading to the protrusion of the aggregates which were essentially slippery when wet. ……… It was argued that there is no history of any fall on the ramp prior to the fall experienced by the plaintiff. That evidence came from Mr. Brake, from Doctor MacDonald and from his receptionist Ms. Skerly. The defendant relied also on the video tape purporting to show the ease of use of the ramp. However in my view the fall came about by a combination of circumstances, that is the rain, the erosion of the surface of the ramp and the steep gradient, and whilst the absence of history of falls is of course a significant feature it does not in this particular case relieve the defendant in my view of its obligations. It was said that the plaintiff, being aware of the difficulties of the ramp at the rear of the premises should have used the front entrance. However the carpark was made available for the use of patrons. There was no warning sign indicating that they should not use the ramp and that they should restrict their entry to the premises by way of the front door only. The extent of its use is demonstrated on the video. It was used not only by shop staff who were instructed to walk up and down it for the purposes of the video tape but also for deliveries and by a number of members of the public in a short space of time. Finally it was argued that Mr. Brake who was the principal beneficiary of the trust and who retained effective control over the premises was not a qualified or trained individual who could be expected to appreciate the danger of the situation. Ultimately this comes down to a matter of maintenance. The grade of the ramp on its own, although steeper than might be regarded as appropriate, might not have presented a danger if the surface had been inspected and maintained with a cover of cement such as that which still exists on the areas of the carpark which have been less heavily used for pedestrian purposes and which have not been subject to erosion from the water draining from the air conditioners. 35 As will be apparent from that part of Mr. Brake's statement which I have earlier recorded (para. 8 (above)) and the statements of Mr. Brake (Blue AB 120) of Dr. MacDonald (Blue AB 94-95) and of Ms. Skerly (Blue AB 102) to the effect that none of them had ever seen anybody slip or fall on the ramp or been made aware of anyone other than Mrs. Manning falling upon the ramp, Drotem sought also to deny liability to Mrs. Manning upon the grounds:

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in any event, Drotem was not at any time aware of the dangerous nature of the ramp. 36 When, in the course of her Judgment, she came to deal with the question of liability, Sidis DCJ wrote as follows (RAB 46-48): "I was referred to a number of authorities on the part of the defendant included (sic) Short v. Barrett a decision of the New South Wales Court of Appeal of 5 October 1990, King v. Stewart 1994 85 LGERA 384, Stannus v. Graham 1994 ATR 81293, Perkovic v. The Proprietors of Strata Plan 8806 New South Wales Court of Appeal 28 May 1999, and Bartlett v Jones , Full Court of the Supreme Court of Western Australia, 22 February 1999. All of those cases dealt with circumstances of residential premises and in each case it was decided that in the absence of any prior indication or warning of danger a house owner or occupier of residential premises is under no obligation to undertake inspection in order to ascertain whether there are concealed or latent dangers in the residential premises. For the plaintiff I was referred to the decision of the New South Wales Court of Appeal in Johnson v. Johnson , 10 September 1991, where President Kirby drew a distinction between domestic premises and those to which the general public are invited. He stated at page 11: 'It is obvious that a more stringent duty of care will be imposed upon the occupiers of premises to which the general public are invited such as a carpark or a greengrocer's shop.' He made reference to a number of decisions in support of this proposition. He also referred to a hospital referring to the Currie decision: 'More stringent attention to accident prevention will be required in such cases than in the domestic setting of a family dwelling in a country town subject to only occasional visits by relatives, friends and tradespeople.' I accept that it is no longer relevant to approach the standard of care of an occupier of premises by reference to the purpose for which persons enter onto those premises. However it will be seen from this reference to Johnson v.Johnson that the courts have adopted differential approaches to the standard of care due to an entrant according to the use made of the premises. The cases cited indicate the difference in the standard applied to premises used for residential purposes and those to which members of the public generally are invited, namely retail, commercial, hospital or recreational premises. In retain or commercial premises as stated by President Kirby in Johnson there is an obligation to pay attention to accident prevention. In supermarket cases there is a positive obligation to put in place a system of regular monitoring and inspection of the condition of premises. These authorities lead me to conclude that in a situation such as that currently before me the standard of care requires more than a reaction when a danger is made known, particularly so when the danger is the result of wear and tear from general public use over a period of approximately twenty years. There is no evidence that the defendant in this case conducted any regular inspection of the premises in the nature of a safety audit. In my view the law imposes on occupiers of retail and commercial premises to which members of the public are invited an obligation of regular inspection to ensure that they are maintained in a condition which is safe for general public use. More so in this case where there is a greater preponderance of persons attending for the purpose of seeking medical attention. On the basis of the findings that I have made as to the facts in this situation I am satisfied that it was foreseeable that in the absence of a regular system of inspection that wear and tear on the ramp could expose the aggregate leading to danger to persons using the ramp, and that danger could have been prevented by the provision of a hand rail, of treatment of the surface or a reduction in the grade of the ramp, all of those remedies being relatively inexpensive and of minimal inconvenience. The defendant retains control of the premises and must therefore be held liable. As far as the claim of contributory negligence is concerned I make no finding against the plaintiff who was merely exercising the apparent right of general public access over the ramp through to the premises occupied by Doctor Macdonald (sic) for the purposes of consultation."

[22]

37 Having then considered the question of damages, her Honour then indicated that there should be a verdict and judgment for Mrs. Manning in the sum of $117,334.00 but, as she was informed that there would be an argument about costs she, as I have earlier indicated, refrained from entering a verdict at this stage and adjourned the matter until 15 September 1999 for the purpose of dealing with the question of costs and making final orders. On the latter day (Respondent's Additional Material pp. 35-45), her Honour formally entered judgment and, as I have earlier (para. 1 (above)) recorded, dealt with the question of costs in a manner which is not revealed by the appeal papers. 38 In the Notice of Appeal which was filed on its behalf (RAB 58-59) Drotem took the following grounds of appeal: "1. Her Honour erred in finding that, in the absence of knowledge of any danger, that (sic) the law imposes on occupiers of retail and commercial premises to which members of the public are invited an obligation of regular inspection by experts to ensure that they are maintained in a condition which is safe for general public use. 2. Her Honour erred in finding, in the circumstances, that the standard of care on an occupier of retail and commercial premises requires more than a reaction when a danger is made known. 3. Her Honour denied procedural fairness to the appellant in that her Honour found that the appellant had failed to conduct any regular inspection of the premises in the nature of a safety audit in circumstances where: 3.1 there was no pleading or particular of failure to conduct a safety audit; 3.2 there was no evidence as to what a safety audit comprised; 3.3 there was no evidence as to what a safety audit would have revealed in the circumstances; and 3.4 the issue of the failure to conduct a safety audit was first raised by the trial judge during final address. 4. Her Honour ought to have found that there was no causation established in the circumstances between any failure to inspect and the plaintiff's fall."

[26]

as being sufficient to deny liability to Mrs. Manning. 42 The fact that, in seeking to support that submission, Mr. Sexton sought to rely upon the decision of the High Court in Watson v. George[1] invoked echoes of the distinctions which, prior to the decisions of the High Court in Hackshaw v. Shaw[2], Papatonakis v. Australian Telecommunications Commission [3] and Australian Safeway Stores Pty. Limited v. Zaluzna[4] were applied in determining whether or not an occupier of land was liable to a person entering upon that land for injuries sustained by that person when upon the land. But those distinctions which were enunciated by Willes J in Indermaur v. Dames[5] and Gautret v. Jones [6] have now been done away with and the law relating to the liability of an occupier of land to persons entering upon the land in respect of injuries sustained by them while on the land has now been subsumed in the general law of negligence as the result of the decision of the High Court in Australian Safeway Stores Pty. Limited v. Zaluzna. 43 That this is so is made clear by the following passage in the joint Judgment of Mason, Wilson, Deane and Dawson JJ in Australian Safeway Stores Pty. Limited v. Zaluzna where their Honours say [7]: "So long as these alternative formulae are retained, courts and others concerned with the application and administration of the law are committed to pursuing the 'barren exercise' to which Brennan and Dawson JJ referred." (in Papatonakis v. Australian Telecommunications Commission (supra at 27-28)). "We are unable to see sufficient justification for their continued recognition. It is a mistake to think that the failure of an occupier of dangerous premises to take reasonable care does not encompass an act or omission on the part of the occupier which suffices to attract the general duty. What is reasonable, of course, will vary with the circumstances of the plaintiff's entry upon the premises. We think it is wholly consistent with the trend of recent decision of this Court touching the law of negligence, both in this area of an occupier's liability towards entrants on his land and in the areas which were the subject of consideration in San Sebastian Pty. Ltd. v. The Minister ((1986) 162 CLR 340) and Cook v. Cook ((1986) 162 CLR 376) to simplify the operation of the law to accord with the statement of Deane J in Hackshaw (supra at 662-663): '… it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there should be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.' In the circumstances of the present case, the fact that the respondent was a lawful entrant upon the land of the appellant establishes a relationship between them which of itself suffices to give rise to a duty on the part of the appellant to take reasonable care to avoid a foreseeable risk of injury to the respondent. There must be a new trial to determine whether the appellant was in breach of that duty."

[27]

(see also Nagle v. Rottnest Island Authority [8] ; Romeo v. Conservation Commission of the Northern Territory [9] ; Morgan v. Sherton Pty. Limited [10] . 44 Drotem having had the building built as a commercial building, and having had the car park provided for use not merely by tenants of the building but also by persons wishing to deal with the tenants as well as by tradesmen and others, such as those making deliveries to tenants in the building, and having had the ramp constructed to provide a means of access from the car park to the building, it is, in my view, clear that Drotem became subject to a duty to take reasonable care not to expose those, be they tenants or otherwise, using the car park and the ramp to the risk of injury. The real question therefore is what, in all the circumstances of the case, was the scope of that duty. 45 As is apparent from the passage (RAB 46-47) from Sidis DCJ's Judgment which I have earlier (para. 36 (above)) set out, at trial Mr. Sexton submitted - as he did on the hearing of the appeal - that, in the absence of any prior warning of danger, Drotem was under no obligation to undertake inspections of its property in order to ascertain whether there were any concealed or latent dangers and, in support of that submission, relied upon such cases as Short v. Barrett [11]; Stannus v. Graham [12]; King v. Stewart [13] and Bartlett v. Jones [14]. 46 As Sidis DCJ pointed out, those authorities are concerned with the general level of responsibility of householders to persons who may come into their homes and do not purport to lay down a general rule as to the responsibility of occupiers of other types of premises to persons who come upon them. Thus, in Short v. Barrett [15], Meagher JA with whom Clarke and Handley JJA agreed, said: "In my view, a householder … is not acting unreasonably in taking their house as they find it, assuming it to be perfectly safe unless and until they either actually know it is unsafe or else receive a warning that it may be unsafe."

[30]

48 While such statements as those to which I have referred may, as a general rule, be held sufficiently to define the scope of the duty of care of a householder, they cannot be taken as sufficient to define the scope of the duty of care of those who occupy places to which members of the general public are able to have resort. In such cases, the scope of that duty will vary according to the circumstances and, in particular, the nature and size of the place, the nature of the activities carried on within it, and the likely characteristics of the members of the general public who might reasonably be expected to attend the premises. That this is so is made clear by the following passage in the Judgment of Kirby P in Brady v. Girvan Brothers Pty. Limited[19], 246, one of the Judgments referred to by Kirby P in that part of his Judgment in Johnson v. Johnson[20] extracted by Sidis DCJ in the passage from her Judgment (RAB 46) to which I have earlier (para. 36 (above)) referred: "(The common) law imposes a duty on the occupier of premises, the requirements of which will vary with the circumstances. In the circumstances of a private dwelling, with relatively few visitors, the scope of what might reasonably be expected will be much more circumscribed. In the case of a public facility, such as a shopping mall, with many visitors of all ages, including some who are immature and impetuous or old and frail, the requirements of the duty will be more substantial. The scope of the duty is not related to, nor does it vary with, the likelihood of insurance providing indemnity against liability. It happens that some occupiers of private premises are not insured, whilst few occupiers of premises to which the public access are nowadays not insured. But this an irrelevant consideration. It merely reflects the community's expectations and the pattern of claims that are typically made following injury. Except in cases of serious injury, few people sue their friends. Many are the suits brought where the injury occurs in places to which the public has resort. In such places the maintenance of a high level of safety is seen nowadays to be an obligation of those desiring an economic advantage from such public resort. The formulation of the legal duty remains the same in each case. It is in the specification of what the occupier will be deemed reasonably to have known and what precautions the occupier will be required reasonably to have taken, that scope is provided for the sensible adjustment of reasonable expectations to the particular facts of each case. In short, whilst it would be quite unreasonable to expect the occupier of a private dwelling to anticipate, even on a sunny day in school holidays, that a child might drop or throw jelly on a path leading to his dwelling upon which a visitor might fall, the same cannot be said of premises such as those of the respondent. The respondent was in charge of a large commercial enterprise. Undiscriminatingly, it invited members of the public to do business in that enterprise. It derived, by inference, an economic advantage from their presence in its mall. It must anticipate the presence there of members of the public of all ages, inclinations and capacities. It must be taken to be aware of the presence of the confectionary shop. It may be inferred to know of the special risks arising from the fall of such confectionary on a busy thoroughfare. Such risks will be particularly great in summer holidays where there would be likely to be greater demand and enhanced risks of melting and hence an enlarged chance of the dangerous deposit of slippery material in the very passageway where, because of the amount of traffic, risks of mishap would be increased. ……… … in the absence of any evidence as to the precautions actually taken and from the statement made by the manager called to the scene, the inference to be drawn was that the respondent ought to have known of the presence of the jelly and failed to take reasonable care to prevent injury to the appellant from it. If, on the other hand, the respondent had given evidence of careful attention to the safety of customers in the mall and the adoption of regular systems of inspection and cleaning, a different conclusion might have been inferred from the evidence. In such circumstances, it might be concluded that the presence of the unseen jelly was, indeed simply a matter of chance."

[41]

although, in their respective statements, both Mr. Brake and Dr. MacDonald seem to suggest that, despite the passage of some 20 years since the building was erected, there has been no deterioration in the surface of the ramp, Associate Professor Morton's report (Exhibit "S1") - which report draws support from various of the photographs which have been tendered - indicates that both the surface of the ramp and the path have deteriorated - in the case of the ramp there being a crack in the concrete about half way down and there being a number of places where the aggregate has become exposed; and in the case of the path, there being areas where the aggregate has become exposed - and, as well, that the ramp was discoloured and stained and, as well, that there was evidence of organic growth both on the side wall of the ramp (see, for example, Exhibit "C2", Exhibit "AA", Exhibit "1") and on the path (see Exhibit "E"). 51 In his report (Exhibit "S1") Associate Professor Morton wrote (inter alia) as follows (Blue AB 51-52): "DISCUSSION 5.1. ACCIDENT CAUSATION In my view there can be no doubt that Mrs. Manning's accident was caused by the dangerously slippery condition of parts of the ramp provided for her access to the premises in question. The slipperiness is caused by a combination of the excessively steep slope and the only modest level of adherent slip resistance available where there are patches of smooth round aggregate pebbles exposed in the surface of the ramp. Any organic growth such as moss which was present would have further increased the slipperiness of the ramp. It is likely also that the danger created by the ramp's slipperiness was aggravated by the awkwardness of the gait which has to be adopted to ascend its excessive gradient. It appears that the loss of inherent grip has been caused by deterioration of the ramp surface. Such an erosion process is likely to have taken place, and its effects to have become progressively worse over the twenty years or so of the ramp's lifetime. The exposure of the aggregate is unlikely to have suddenly appeared, or to have occurred only since the accident. It is reasonable to believe therefore that the likelihood of accidents might have been lower in earlier years. A record of low incidents of accidents in previous years is thus not necessarily indicative that the ramp is now in a safe condition. Whilst the excessive slope might of itself precipitate tripping or stumbling accidents, slipping would not necessarily occur if the surface had been maintained overall in an inherently slip resistant condition. However, slipping would have been much less likely had the ramp been installed with a safe moderate gradient. It is the combination of the two factors which makes it so dangerous. 5.2 FORESEEABILITY, AVOIDABILITY AND RESPONSIBILITY As noted above, I believe the steepness of the subject ramp is strikingly obvious, particularly in comparison with slopes of ramps normally encountered in the built environment. Its unsuitability would or should therefore have been quite evident to the occupiers. The variability of the ramp surface condition particularly in the exposure of the patches of smooth aggregate pebbles is also obvious. From common experience such as the known slipperiness of wet 'pebblecrete' and similar surfaces the occupiers should have realised that the surface might have become slippery, even if it had not been so when it was originally laid. The danger to which users of the ramp were exposed, and the consequent risk of injury thus would or should have been foreseen. High-friction cement-based gritty dressings are available which when applied to concrete can produce a rough, cross-brushed surface of high grip. A surface such as that which presently exists on the car park would provide sufficient grip to permit pedestrians to descend the ramp, even at its present level of steepness, without necessarily slipping. Cleats as specified by AS1657 might be installed on the ramp, although these are of assistance more in industrial situations where they can interlock the squared-off heels of work boots. Closely-spaced transverse non-skid strips of the type which have grit-impregnated bitumen ribs raised above the floor surface would be an effective safety measure. Installation of suitable handrail also would contribute greatly to the safety of the situation. These measures would not be expensive and, I believe, would be unlikely to cost more than about $1,000.00, taken together."

At a glance

Court

Decision date

Before

Source

Judgment (48 paragraphs)

Cases Cited (11)