Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : HANNA-PAULEY -v- AMP SHOPPING CENTRES PTY LTD [2006] WADC 7

Appeal - Occupier's liability - Negligence - Step at exit from shopping centre - Turns on own facts

Occupiers Liability Act 1985 (WA), s 5

1 WHEELER JA: This is an appeal from a decision of HH Jackson DCJ, given in the District Court on 30 January 2006, being that the respondent was not liable to the appellant for injuries the appellant sustained when she exited from premises owned and controlled by the respondent. The trial was only concerned with the question of liability. The facts are as follows.

2 The appellant, who was aged 29 at the time, commenced employment at Garden City Shopping Centre, Booragoon, as a cafe supervisor for Aherns Ltd (now David Jones Ltd) on 30 March 1998. There was an exit at the rear of the premises, through which staff were expected to leave and enter the building. The exit was a single door that opened inwards. Below the doorway there was a concrete landing, which abutted rounded kerbing descending to a bituminised driveway. Exiting the building was therefore a two-step process, involving first a step onto the landing, and then a step onto the driveway. There was no handrail. As to the visibility of the landing from the doorway, in evidence the appellant said the following:

"[S]tanding on the surface of the floor before you step down, what are you able to see ahead of you?---Well, you see the bitumen roadside because once you've opened the door you are actually a step back. You know, you can't see the landing or the kerbing, you see the roadside.

The landing that you have referred to, how is that observed? When do you see that for the first time?---Once you're already in the momentum of the step. Unless you are bent over. You know, you sort of bend to have a look.

What do you mean by that? 'Bending if you have a look'?---Well, if you were to bend and then take your step, then you'd obviously see it as you would - before you were taking your step, but - - -

But if you had a normal posture what would happen?---No, you wouldn't see it."

3 In attempting to use the exit on 6 April 1998, the appellant misjudged the step onto the landing and stumbled forward, injuring her lumbar spine and right knee. Her evidence as to the accident and her injury was as follows:

"I opened the door and went to step out like I normally have in the past and I came down hard on my left foot on the landing and over - basically overstepped it by an inch or two and my foot slid down the slope of the kerbing into - basically nearly onto the roadside and I swung my right leg around to sort of keep my stance, so I twisted and arched my back and basically I arrested my fall but kept standing and then once I was upright I basically started walking again across down into Kmart, another entry into the thing.

You say that you twisted and arched your back. How soon after - was there any time after that where you became aware that you had suffered an injury?---Well, during that split second I felt something in - like twinge or pull, but it was after I regained my stance, my upright stance, and made a - you know, walked a few steps, that I started just getting tight and sore."

4 By the time of the accident, the appellant had used the door to exit the building between 10 and 20 times without incident. When asked whether there was anything different about the way she exited at the time of the accident, the appellant stated that she was heading to the right, whereas she had only previously exited to the left, and that due to the fall of the land, the step down was deeper when exiting to the right than the left. She also used the exit a further 18 or so times in the period after the accident, but said that she did so "with more caution" in that she "held onto the side of the wall when [she] went down".

5 The appellant claimed that the accident occurred as a result of negligence and a breach of s 5 of the Occupiers Liability Act 1985 (WA) on the part of the respondent, alleging that the landing was too narrow and that the step down was too deep, making the exit unsafe. Before us, both parties submitted that there was no relevant difference between the respondent's common law and statutory duties.

6 The respondent contended that the dimensions of the exit were not dangerous and that the cause of any fall or stumble was the appellant's own inattention and carelessness.

7 The exact measurements of the landing and step height could not be determined, as the exit was altered at some point after the appellant's accident. At trial, witnesses gave the following estimates of the dimensions in question.

8 The appellant's evidence was that about two months after the accident she measured the dimensions of the doorway and took a photograph from the exterior (exhibit 1). She recalled the dimensions of the step from the floor of the doorway to the landing as being a drop of about 35.5 centimetres on the higher side reducing to one of about 28 or 28.5 centimetres on the lower side. She further recalled that the landing was 20 centimetres wide, with the sloped concrete kerbing having a width measuring 10 centimetres and a height of 23 centimetres falling to the flat bitumen area. The appellant measured the length of her foot at 25 centimetres.

9 A witness called by the respondent, Mr Proctor, gave measurements that differed from the appellant's. Mr Proctor was an insurance assessor who had undertaken an assessment in relation to the staff exit in question in September 1999. He measured the door and its surrounds and noted the measurements on notepaper (exhibit 6). The dimensions recorded by him were as follows:

"The doorway internally had measured 204 centimetres in height and 79 centimetres wide. The distance from the edge of the door sill to the point at which the concrete falls downwards is 9 centimetres, or, in other words, the door is recessed 9 centimetres from the wall. The step down measures 28.5 centimetres at the higher end and 26 centimetres at the lower end. The width of the landing is 35 centimetres. The kerbing then falls a height of 18 centimetres to the driveway." (at [38])

10 When Mr Proctor's dimensions were put to the appellant, she did not accept that the height difference from the step to the landing over that width of the doorway varied by only 2.5 centimetres. In cross-examination, she claimed that there was a 5-centimetre difference.

11 There was also the evidence of a witness called by the appellant, Ms D'Silva, who had worked at the premises for a number of years and used the exit in question. His Honour summarised her evidence as follows:

"She had never measured the drop of the step but estimated it as probably the height of a wine bottle. On a folder she estimated it at 28 centimetres. The width was probably larger than a size 7 ladies foot (or 21 centimetres). However, she could not say whether this included any part of the kerbing. She had not seen the step since 1998 and had only recently been asked to recall it." (at [32])

12 After considering all the evidence in relation to the measurement of the step, the learned trial Judge stated that he preferred the evidence of Mr Proctor to that of the appellant. His Honour noted the criticisms made by counsel for the appellant in relation to Mr Proctor's evidence, including some uncertainties in the measurements, the fact that photographs had not been tendered, and the "rather scrappy nature of Mr Proctor's sketch of the dimensions of the step". However, the Judge then noted the following:

"[Mr Proctor] was independent and produced his written notes whereas the plaintiff's evidence, based on memory, was unconvincing: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588 and Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.

Acceptance of the plaintiff's evidence is also reduced by the fact that in other civil proceedings on foot in this court she has in her pleadings described the facts of the event somewhat differently." (at [64] - [65])

13 His Honour also made the following observations of the appellant's evidence on the issue:

"It became clear under cross-examination however that her evidence as to the dimensions she had measured was not based on written notes she had kept, but on memory as to which she asserted she was confident but on which she was somewhat vacillating. The plaintiff said she had written down the measurements at the time and 'given the measurements to the lawyers when I first took the photos' but had lost or misplaced them. She had returned to the scene shortly before trial to reconstruct her memory but the structure had been altered making this difficult." (at [15])

14 Having accepted that the landing had a width of 35 centimetres, the trial Judge held that it had not been established that that width was insufficient. As to the height of the step from the doorway to the landing, his Honour said:

"The step down is, it seems to me, although no evidence was lead on the issue, somewhat deeper than the usual step found on stairs or public steps. It is slightly deeper that the step down described by EM Heenan J in Apex Holiday Centre (Inc) v Lynn (supra) as 'a large drop'." (at [69])

"70 I find that because of the depth of the step and the placement of the landing such that it abutted rounded kerbing descending to the pavement, there was a foreseeable risk of injury to users which was not remote or fanciful, but which rendered the exit dangerous especially to those not using reasonable care for their own safety. It might be thought though that the risk of serious injury was not great.

...

1. Although the plaintiff pleads as a particular of negligence the absence of any warning sign, no evidence was led as to any role such a sign might play. The plaintiff herself knew the step concerned. The event occurred in daylight. The plaintiff herself subsequently in describing what had occurred used the expression that she had misjudged the step, without complaining that it was inherently unsafe. In my view given the plaintiff's familiarity with the step I am not satisfied such a sign would have contributed to the prevention of the incident.

1. The day was apparently fine and there is no suggestion either of the step being wet or slippery or of the plaintiff being other than able-bodied and of good sight. No suggestion was made that a handrail or edging strips or other aids should have been provided. No expert evidence was called as to the design or construction of the steps. There is no evidence other than that of the plaintiff that the incident was caused by the fall of the land which resulted in the step down being deeper at one end than the other.
2. In my view the risk was obvious as it often is with steps. The plaintiff knew of it. A warning sign in general may have been helpful and was an obvious precaution, but in the present case would have added nothing to the plaintiff's knowledge.
3. Whilst there was a duty of care and the step presented foreseeable risk of injury which should have been at least warned of, I am therefore not prepared to find that breach of the duty in the plaintiff's case was causative of her injury, if any."

16 The appellant's original grounds of appeal can be briefly dealt with. There is no merit in them.

17 Grounds 1 and 2 attack his Honour the learned trial Judge's finding in relation to causation. That is, the appellant submits that his Honour erred both in finding the risk to be obvious and in finding that the appellant was familiar with it. In relation to obviousness, it is submitted on behalf of the appellant that her evidence and that of her witness, Ms D'Silva, was to the effect that the height of the step could be judged only once a person had actually begun to step out, and that the step could not be judged while a person was standing in the doorway looking outwards. This misstates the evidence of Ms D'Silva, which was correctly recounted by the learned trial Judge at [28] - [30] of his Honour's reasons. In summary, her evidence was that when one stood on top of the step and looked down, one could see the landing.

18 A Ms Ford, a deputy store manager, who also gave evidence was not specifically asked about this aspect of the step, but did give evidence to the effect that she had used the step herself on many, many occasions and had never slipped, stumbled or fallen, and had never learned of any other incident at that step. It was only the appellant who gave evidence suggesting any difficulty with visibility.

19 Although his Honour made a specific finding in relation to the conflict between the evidence of Mr Proctor and that of the appellant, preferring the evidence of Mr Proctor, he did not make any specific finding in relation to this question of visibility. However, in describing the risk as "obvious", it seems to me that his Honour must necessarily have preferred the evidence of Ms D'Silva to that of the appellant. It was open to him to do so. Indeed, as a matter of common experience, it would seem to me that while a 26 to 28-centimetre high step is higher than normal, it is not so high that it would be expected to obscure completely a 35-centimetre wide landing abutting it.

20 In relation to the "familiarity" question, it was the appellant's evidence that she had left the building through that door between 10 and 20 times prior to her accident. A higher than normal step is not a phenomenon which is particularly difficult to understand. In my view, it was well open to his Honour to conclude that the appellant was, by the time of the accident, sufficiently familiar with the step to place her in the category of persons described by Brennan CJ in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at [54]:

" ... to someone who was familiar, as the appellant was, a warning sign would serve no purpose."

21 In connection with these grounds, the appellant notes that the occasion of the accident was apparently the first time that the appellant had stepped up towards the right, rather than towards the left of the exit. The exit was somewhat deeper (28-1/2 centimetres) on the right, than on the left (26 centimetres). The difference, however, is not a significant one, and it does not seem to me that it could reasonably affect his Honour's conclusion that the appellant's familiarity with the exit was such that a warning sign would have made no difference to her.

22 Ground 3 asserts that his Honour erred in failing to find that there was a duty upon the respondent to conduct a safety audit and inspection. It is submitted that such an inspection would have revealed the danger, that the steps would then have been modified, and that the danger would have been removed.

23 The duty to conduct a "safety audit" is, it appears, no more than the duty which rests upon occupiers of retail and commercial premises, to ensure that premises are maintained in a condition which is safe for the general public, including, if necessary, conducting regular inspections to that end. That this is what the appellant contends is apparent from the citing, in this context, of Drotem Pty Ltd v Manning [2000] NSWCA 320, particularly at [54] per Powell JA.

24 While it is apparent from the learned trial Judge's reasons at [66] that the appellant's counsel pointed out at trial that there was no evidence of inspection or audit of the premises by the occupier, it should be noted that there was nothing in the pleading which might have alerted the respondent to the need to call such evidence. There was no pleading of failure to inspect. Rather, it was simply pleaded that the respondent was negligent in failing to erect warning signs, or otherwise warn the appellant of the danger, and in failing to modify the exit. There is nothing in the way the case was presented at trial which appears to me to have raised the question of whether regular inspections were necessary, and, if so, whether they were conducted. In those circumstances, it was not necessary for his Honour to make any finding in relation to the submission I have mentioned, rather than simply noting it.

25 Further, such evidence as there was tends to suggest, although weakly, that the respondent had some system for monitoring the safety of the premises. The evidence of Ms Ford plainly suggested that there was a system for reporting injuries or incidents, which one assumes were then followed up. The exhibits dealing with the modification of the exit and steps which eventually took place suggests that that occurred as a result of consultation with the Fire & Emergency Service Authority and, so far as one can tell from those documents, the consultation did not arise as a result of any particular accident or injury, so that it may have occurred during the course of some system of regular safety assurance.

26 In any event, it seems to me that the short answer to ground 3 is that this was simply not an issue raised by the pleadings; it was therefore not dealt with in the evidence; and it is therefore not open to the appellant to raise the issue at this stage.

The proposed amended ground, and the notice of contention

27 As the argument developed during the course of the appeal, it became apparent to counsel for the appellant that the Court took the view that, while his existing grounds of appeal had little or no merit, there might be some merit in an argument to the effect that, if one accepted his Honour's finding that the depth of the step and the placement of the landing together gave rise to a foreseeable risk of injury, then the respondent's duty of care demanded that that risk be alleviated by converting the exit into two shallower steps, as had been done at some time subsequent to the accident. The appellant's counsel therefore sought leave to amend the grounds of appeal to incorporate a ground to that effect. The respondent, by its notice of contention, challenged the learned trial Judge's conclusion that the exit was dangerous. It seems to me that it is convenient to deal with these two issues together.

28 It is important to note that the appellant's statement of claim was originally concerned principally with the width of the landing, rather than the height of the step. Particulars 5.1, 5.2, 5.3, 5.4 and 5.5 all describe the kerbing as "too narrow". It is only in 5.6 that it is suggested that the premises were unsafe "by virtue of the step which was too deep and the kerbing which was too narrow, individually and in combination". Although it was therefore open to his Honour, based upon particular 5.6, to find that the height of the step gave rise to a foreseeable risk of injury, that does not seem to have been the primary focus of the trial.

29 In reality, the height of the step and the width of the landing need to be considered together. Although there was no expert evidence in relation to the steps adduced at trial, it is, in my view, open to Judges, who themselves walk up and down steps of many different kinds on many different occasions, to take judicial notice of three matters. The first is that steps always inherently pose some degree of danger (see Wilkinson v Law Courts Ltd [2001] NSWCA 196, Apex Holiday Centre (Inc) v Lynn [2005] WASCA 58). The second is that variations in the width or height of a tread or landing may increase the danger. The third is that the average female foot is shorter than 30 centimetres (30 centimetres being, of course, roughly equivalent to the old imperial "one foot" measurement), while the average male foot is of the order of 30 centimetres (or probably in modern days somewhat more). The evidence in that respect was that the appellant's shoe was 25 centimetre long.

30 The general propositions enunciated above are not, however, easy to translate into a finding in relation to the degree of danger posed by the particular step in the present case. That is because the height of the step is, apparently, somewhat more - and perhaps considerably more - than the height of steps which are usually encountered in, for example, a flight of stairs in a building. The height of the tread in a flight of stairs is, of course, variable, and no expert evidence was called on the point concerning any Australian standard, or usual engineering specification. No evidence was called of an ergonomic nature. All that can be said therefore is that a height of 26 centimetres to 28-1/2 centimetres would appear to be excessive, but it is not clear by how much it exceeds the usual range. Certainly, as counsel for the respondent pointed out, a person stepping off a bus in suburban Perth will often be stepping down a distance considerably greater than the height of a normal step, and one possibly equivalent to 28 centimetres, or thereabouts.

31 However, it is also clear that in many flights of stairs in many buildings, the width of the tread is considerably less than the length of the average human foot. That is, a person walking down normal stairs will often not be able to place his or her whole foot on the step below, unless he or she turns the foot at an angle. It follows that stepping down onto a step or landing less than 30 centimetres in width is an exercise which adults of varying agility can and do perform on a daily basis. A landing of 35 centimetres would therefore appear to be relatively generous.

32 The difficulty which arises is that of evaluating what risk, if any, greater than the risk inherent in any ordinary flight of stairs, is posed by a step which requires an individual to step down through a distance greater than the usual height of a step, but onto a landing considerably wider than the usual width of a step. The exercise becomes even more difficult when one is attempting, assuming that combination is regarded as a dangerous one, to evaluate whether it would be rendered more or less dangerous, in circumstances where that landing abutted a roadway, or laneway used by delivery vehicles, by decreasing the height of the step if at the same time that alteration involved decreasing the width of the landing. In simple terms, the question becomes whether, given that a risk of falling involves a risk of falling onto a laneway used (how often is not clear) by vehicles, it is more dangerous to have an unusually high step, coupled with a reasonably wide landing, or to have two steps which are not as high, but which involve a shallower landing? There is hypothetically a third possibility, which is that it might be possible both to preserve the width of the landing and to create shallower steps, but that does not seem to have been done in modifications in issue in this case, and there was no evidence about the configuration of the premises from which it would be possible to tell whether that was a realistic possibility or not.

33 Returning to the learned trial Judge's findings, and to the notice of contention, I have noted that his Honour found that, because of the depth of the step, there was a foreseeable risk of injury, which was not remote or fanciful. By that, I understood his Honour to mean that the risk was greater than that involved in a normal flight of stairs. I do not think that the finding was open, on the basis that I have explained. While it was open to his Honour to find that the step was deeper (that is, higher) than the usual, it does not follow that that fact alone made the danger posed by the step greater than that inherent in any other set of steps. Although the step was unusually high, there is, in my view, nothing in common experience to suggest that the height of 28-1/2 centimetres is so outside any normal range, that, when coupled with the width of the abutting landing, it necessarily followed that the risk was one which was greater than the risk inherent in stairs generally. Perhaps expert evidence could have shed light on the issue, but none was led.

34 However, even if that finding was open to his Honour, then it follows from what I have said that his Honour was correct in the finding which it appears to me that he implicitly made, at [73]. That is, there was nothing to suggest that the subsequent modification of the steps, or any other possible modifications, did make or would have made the danger which they posed any less than that posed at the time of the accident. So far as

one can tell from the exhibits, the modification was, as I have noted, suggested by the Fire & Emergency Services Authority. Although there was no evidence adduced at trial concerning the precise reason for the modification, the inference which appears to follow from those exhibits is that that authority was concerned with access by it to the premises. There is nothing to suggest whether it increased or decreased the overall risk of a person missing their footing while leaving the building.

35 While I would allow the amendment sought by the appellant, on the basis that it does raise an issue which emerged from the pleadings and which was canvassed at trial, I would not uphold the appeal on that basis. Further, if it were necessary to do so, I would uphold the respondent's contention. I would dismiss the appeal.

36 BUSS JA: The material facts, the reasoning of the learned trial Judge and a summary of the original grounds of appeal, the proposed new ground and the notice of contention are set out in the reasons of Wheeler JA.

The Occupiers Liability Act 1985 (WA) and its relationship with the common law of negligence

37 In Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209, I referred to the Occupiers Liability Act 1985 (WA) and its relationship with the common law of negligence. In the present case, counsel for each party proceeded on the assumption that concurrent duties of care were owed under the Act and at common law and that there was no material difference between those duties or the applicable standard of care. I am content to deal with the present case on that basis.

38 An occupier owes a duty of care to any person whose presence on the premises, either individually or as a member of a class, is reasonably foreseeable in respect of risks of physical injury arising out of the condition of the premises. See Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488; Phillis v Daly (1988) 15 NSWLR 65 at 76; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 263 [17], 289 [102].

39 A risk of injury will be reasonably foreseeable if it is not far-fetched or fanciful. The risk may be reasonably foreseeable even though it is unlikely to occur or is remote. See Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 per Mason J at 48; Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty; The Wagon Mound (No 2) [1966] UKPC 1; [1967] 1 AC 617 at 641 - 643. The test of reasonable foreseeability, as stated in Shirt, is

undemanding. See Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at 64 [54]; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at 480 - 481 [213]. Also see the recent observations of the High Court, in relation to Shirt, in New South Wales v Fahy [2007] HCA 20; (2007) 81 ALJR 1021.

40 The standard of care (that is, the measure of the discharge of the duty of care) applicable to an occupier is what, if anything, a reasonable person in the the occupier's position would, in the circumstances, do by way of response to the foreseeable risk. See Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 at 662 - 663; Australian Safeway Stores at 488; Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 at 345 [8].

41 The determination of what, if anything, a reasonable person in the occupier's position would have done, to avoid the foreseeable risk of harm, involves an assessment of what would have been reasonable and practicable for the occupier to have done. This inquiry is not to be undertaken with hindsight. See Neindorf at 361 [93]; Vairy at 461 - 463 [126] - [129]; Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486 at 501 [50]; Fahy at 1034 [57]. Reasonableness may require no response to a foreseeable risk. See Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 at 246 - 247 [36]; Mulligan at 491 [3]; Fahy at 1026 [7].

42 A defendant will be liable in negligence only if the damage which the plaintiff has suffered was caused by the defendant's negligent act or omission. The plaintiff must prove what would probably have eventuated had the defendant's negligence not occurred. It is not necessary, however, that the defendant's negligent act or omission be the sole cause of the plaintiff's damage. Causation will be established if the relevant act or omission materially contributed to the damage. A court may infer causation by reference to the objective facts and probabilities. Direct evidence is not essential. See March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 per Mason CJ at 514; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 per McHugh J at 443 [24], 449 [44].

43 The learned Judge found that the respondent breached its duty of care in failing to affix a warning sign to alert people, unfamiliar with the exit, of the depth of the step, and the placement of the landing so that it

abutted the rounded kerbing which descended to the road. His Honour also found, however, that the absence of a warning sign did not cause or materially contribute to the occurrence of the appellant's injury. I agree with Wheeler JA, for the reasons she gives, that grounds 1 and 2 are without merit.

44 I also agree with Wheeler JA, for the reasons she gives, that ground 3 fails.

The present case: the proposed new ground and the notice of contention

45 I agree with Wheeler JA, for the reasons she gives, that the appellant should have leave to rely on the proposed new ground, but that the ground fails. Further, like her Honour, if it had been necessary, I would have upheld the ground raised in the respondent's notice of contention.