See also Jones v Bartlett (2000) 205 CLR 166 at 177[23] per Gleeson CJ.
44 It is convenient at this stage to address some specific arguments raised by the appellants.
45 The appellants submit that the judgment must be set aside because the trial judge failed to consider the issue of breach by reference to the calculus provided by Mason J in Wyong Shire Council v Shirt. I agree that the passage from the judgment below that I have already set out bears hints of the fallacy that reasonable foreseeability of injury is enough to establish an unreasonable omission. But I think this would be too harsh a reading of the reasons taken as a whole even though there is no discussion about the probability of the occurrence happening. Judge Sorby held the risk of similar accident to be "real" and he made a finding about the cost of preventing it. I shall, however bear this criticism in mind in my own assessment of the situation later in these reasons.
46 Alternatively, it was boldly submitted that his Honour should have modified the Shirt calculus by anticipating the approach later suggested by McHugh J in Tame v New South Wales [2002] HCA 35, 76 ALJR 1348 at [105]. But District Court judges are not provided with crystal balls when they go on circuit, nor are they (or we) authorised to depart from prevailing High Court orthodoxy, whatever the auguries might suggest. See also Julia Farr Services Inc v Hayes [2003] NSWCA 37.
47 Next, the appellants challenge the primary judge's finding that a mid-handrail was a practical and relatively cheap preventative measure. There was no evidence, as the appellants correctly submit, that fitting a mid-handrail was possible or legally permissible, nor was there evidence as to its likely cost. This said, it was in my view open to a tribunal of fact to form a view on the point and to factor it into the Shirt calculus. The court is not bereft of common sense. I cannot conceive that a council would refuse building consent for such a minor modification, if consent is required and if the modification would promote safety. A number of things could obviously be done to supply a mid-rail or some equivalent, such as one or more wires strung through the existing balustrades or the provision of a second, parallel rail similar to the existing handrail but placed mid-way in the gap. This element of the Shirt calculus does not always depend upon precise costing, although it would be dangerous to take this decision as a precedent going beyond its particular facts.
48 The appellants next submit that there was no evidence grounding the finding that Mr H Francis knew that the stairs were being used generally. I have already indicated that I do not accept this. In any event, it is sufficient that there was evidence supporting the conclusion (which I would draw, at the very least) that the appellants ought to have known that the stairway was in regular use.
49 As to causation, it was submitted that there was no evidence supporting the finding that a mid-rail would have protected the respondent from falling off the stairs in the events that happened. I find this an extraordinary submission, rendered scarcely more plausible by senior counsel's tactful submission that there is nothing in the appeal record as to the respondent's body size. For one thing, the trial judge was in a superior position to this Court on that matter. Furthermore, it is well open to infer that a rail located approximately 430 mm above the surface of the stairs would have given the respondent a good opportunity to prevent her fall to the ground below by reaching out for such a railing. Even the thinnest of adults could reach a railing no more than 430mm above ground level, whereas many people falling in a prone position could not reach the existing handrail.
50 The significant issue in this appeal involves his Honour's somewhat implicit conclusion that it was unreasonable for the appellants to have left this stairway in its present condition. The appellants submit that there was in the circumstances no material capable of supporting this conclusion. Alternatively, it is said to be a conclusion which this Court (being in as good a position as the primary judge) ought to reject.
51 In my view the conclusion was open to Judge Sorby and I am not persuaded that his Honour erred in reaching it.
52 This stairway was in regular use, as the appellants knew or at the very least ought to have known. It was a convenient method of ingress and egress to the upper level and its use for that purpose was not prohibited at the relevant time.
53 The stairs were steep and exposed to the elements. The 19 risers were one more than the maximum permitted for a fire escape under Ordinance 71 and there was no landing. These matters made them inherently dangerous, more so than many stairways encountered in everyday life. Of course the dangers were obvious, with or without the assistance of the notice. The photographs confirm this. The very obviousness of the danger in no way absolves users from their own responsibility to take care for their own safety. But the dangers were also obvious to those having the control of the stairs, ie the appellants.
54 It was reasonably foreseeable that persons might slip and fall when ascending or descending these stairs. This could happen in circumstances either involving fault or absence of fault on the part of the user. It was equally foreseeable that some persons using the stairs would be carrying things and thus be impeded in their capacity to hold or grab hold of the handrail.
55 What to my mind was also quite foreseeable was the possibility that, if a person slipped and fell, then he or she might slide off the edge and fall to the concrete below. The gaps between the balustrades spanned six steps in the middle section and five steps at the top. The top step was three and half metres above the floor surface and it was obvious that a person who fell could suffer serious injury. On the Shirt calculus, the risk was "real" (in Sorby DCJ's words) and the probability of its occurrence was in my view not negligible.
56 There were available and relatively cheap means of avoiding or minimising this risk by providing a mid-handrail or some equivalent barrier.
57 The fact that there were no recorded falls does not in itself absolve the appellants from a finding of breach so long as the circumstances would have alerted a reasonable person to the danger posed by the defect and so long as the court found it unreasonable to have ignored that danger (Baker v Gilbert [2003] NSWCA 113 esp at [38]).
58 The obviousness of the risk and the means to reduce it were reinforced by the legislative attention paid to the matter over the years. Merely because the stairway may have been erected in accordance with then prevailing legislative building standards does not conclude the issue of breach or justify the occupier in sitting pat. As Gleeson CJ remarked in Tame (at 14):
Reasonableness is judged in the light of current community standards. As Lord Macmillan said in Donoghue v Stevenson [1932] AC 562 at 619, "conception[s] of legal responsibility … adap[t] to … social conditions and standards."