Hilas v Todbern Pty Ltd

Court of Appeal (NSW)|2007-10-22|Before: McColl JA, Hislop J, Coll JA

Introduction 3 The claimant brought proceedings in the District Court to recover damages for injury sustained on 21 April 2001 when she slipped and fell whilst descending a flight of stairs in a shopping centre at Hurstville, New South Wales. On 28 April 2006 Balla DCJ entered judgment for the opponent in these proceedings. 4 The claimant, by ordinary summons for leave to appeal dated 13 April 2007, sought, inter alia, "an order that the time for instituting this application be extended" and "an order granting leave to appeal to this Court from the decision of her Honour Judge Audrey Balla, delivered 28 April 2006". The summons was accompanied by a draft notice of appeal. The appeal was heard concurrently with the summons. 5 The application for leave to appeal was inappropriate as the amount in issue exceeded $100,000: see s 127 of the District Court Act. However, in order to proceed with the appeal the claimant required the leave of the Court to extend the time in which to appeal pursuant to SCR 51.5.4. 6 It was asserted, and I accept, that at all times the claimant wished to pursue an appeal from the judgment. The reason for the delay appears to be the consequence of a failure by the claimant's legal representatives to follow the correct procedures laid down in the Rules and to comply with relevant time limitations. 7 The opponent opposed the grant of leave but did not point to any relevant prejudice should leave be granted. In the absence of prejudice to the opponent and as the claimant herself was without fault on this issue, I would be prepared to cure the procedural and time defects provided that the appeal had reasonable prospects of success. Accordingly, I turn to consider those prospects.

(b) failing to put in place an adequate barrier to prevent rainwater from entering the premises and accumulating on the tiled stairs;

(d) exposing the [claimant] to the risk of the nature of the injury that she suffered when such risk could have been avoided by a more appropriate choice of tile surface, such as terracotta, or the installation of an adequate barrier to prevent rainwater from entering the premises and accumulating on the stairs." 10 The principal authorities in this area of the law have been collected by McColl JA in New South Wales Department of Housing v Hume [2007] NSWCA 69 at [66] et seq. The following principles are established by those authorities:

(a) The issue of breach of duty in an action framed in negligence is one of fact - Vairy v Wyong Shire Council (2005) 223 CLR 422 at [2];

(b) An occupier of premises is only required to take such care as is reasonable in the circumstances. The duty is not to make the premises as safe as "reasonable care and skill on the part of anyone can make them" - Wilkinson v Law Courts Limited [2001] NSWCA 196 at [21]; . (c) Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances - Wilkinson at [32].

Her Honour's findings 11 The following findings were made by her Honour. Save as later indicated, they were uncontroversial.

(a) The opponent was the occupier of the shopping centre pursuant to a lease from its owner, now known as the State Rail Authority.

(b) It was common ground that the opponent, as occupier, owed a duty of care to the claimant.

(c) The stairs on which the claimant fell led from a very large rooftop carpark to the shopping centre, which incorporated a supermarket and greengrocer and then led down into a railway station.

(e) On the day in question the claimant drove to the shopping centre. She parked her car on the rooftop level. She decided to use the stairs. She had walked down the stairs many times and knew that she had to be careful.

(f) It was raining. There was only a small awning above the doorway leading to the landing at the top of the stairs. It was obvious as the claimant walked in that there was water on the ground. She said the water was pretty much running down the stairs like a waterfall. The claimant had seen water on the ground on other days and knew she had to be careful when she walked on wet stairs.

(g) As she stepped down from the upper landing onto the first step, the claimant's right foot slipped out immediately after she had placed it on the step and moved her weight onto it. She could not say whether part of her foot had protruded over the edge of the step. She said she had not been looking down.

(h) She had been using the handrail with her right hand. Her body went up in the air. She fell down the stairs and landed on either the second- or third-last step. She then slid down to the landing

(i) Another person fell onto her while she was being treated by the ambulance officers. There was no evidence that the woman who fell onto her slipped or slipped because the stairs were wet.

(j) The claimant had slipped a couple of times before on the stairs but had never injured herself and had not reported it. In any event, a history of only one or two falls on stairs, which would be used daily by very many people, does not lead to an inference that they must have been unreasonably slippery whenever they were wet.

(k) The opponent, since the claimant's fall, had placed black anti-slip strips at the landing and on each step. In addition, there was a new sign which said "Floor slippery when wet, please watch your step" at the entrance.

(l) Testing by an expert (Mr Adams) qualified on behalf of the claimant disclosed that tiles similar to those on the steps where the claimant slipped met the relevant standard. Otherwise, her Honour found Mr Adams' report of very little assistance as he did not test the steps on which the claimant fell. He tested an area incorporating the type of tiles used on the steps and the nosing. That area met the standard. Mr Adams said that in his opinion the test results should be reduced. He did not provide any explanation for that conclusion. Counsel for the claimant was not able to provide that explanation. Mr Adams tested the upper landing. That area did not meet the standards.

(m) In 1999 a Mr Stevanovski had fallen from the top landing. The surface was wet at the time because it had just been mopped by a cleaner. The cleaner may have been using water mixed with detergent which may have made the landing more slippery. Her Honour was not persuaded that this single incident established that the stairs were sufficiently dangerous when wet for the opponent to have reasonably formed the view, before the claimant's fall, that the surface should be changed. In any event, her Honour was not persuaded that the claimant had shown that even if steps should have been taken, the type of accident which occurred to the claimant would have been averted. This is because the slip [of Mr Stevanovski] occurred on the landing, not the stairs and it was wet from mopping, not rain.

(n) The opponent was a tenant and its capacity to make structural alterations to the shopping centre was limited by the terms of its lease. Her Honour was satisfied that the water must have, on the balance of probabilities, come from outside as it had been raining. However, she declined to infer that the fact that there was water inside meant that the opponent must have been negligent in failing to provide a mechanism to stop the water from entering.

The claimant's submissions 12 In the draft notice of appeal, the claimant asserted, and the claimant submitted, that her Honour misapprehended evidence and erred in respect of a number of factual findings resulting in an incorrect verdict. The alleged errors are discussed hereunder.

Her Honour misapprehended and gave inadequate weight to the report of Neil Adams 13 Mr Adam's report was tendered but he did not give evidence. The report provided evidence that the upper landing, based on readings made near the centre of the landing and near the wall, did not meet the appropriate standards, particularly as it sloped. The report provided evidence that tiles of the type used on the steps where the claimant slipped met the relevant standard. Mr Adams was unable to measure the actual step upon which the claimant fell but suggested that test results on the step tiles should be reduced. His report provided no explanation as to why this should be so and the absence of any explanation in his report was conceded by the claimant in written submissions. Her Honour's comments on the report do not demonstrate a misapprehension of its contents.

Her Honour failed to find that, when another woman fell on top of the claimant after the claimant had fallen, it was more probable than not that the other woman had fallen because of the slippery condition of the stairs. 14 The only evidence that the other woman fell was provided by the claimant who said in-chief: "I actually had a lady slip and fall on top of me". Later in her evidence she said the lady actually fell on her whilst the ambulance people were treating her. It is highly unlikely the claimant, who at the time was being attended by ambulance officers, saw the woman lose her footing. It is, at least, equally likely the cause of the woman's fall was that she was distracted by observing the claimant lying on the landing being attended by ambulance officers. In my opinion, her Honour was not required to make a finding that the other woman fell because she slipped or the stairs were unreasonably slippery.

After finding that the claimant had given evidence that, prior to her fall, the claimant had slipped a couple of times on the stairs (when they were wet), her Honour failed to accept that evidence and find that the stairs when wet were slippery and that the opponent ought to have been aware of that fact. 15 The circumstances in which the claimant slipped on prior occasions were not detailed in the evidence nor were these incidents reported to the opponent. It was open to her Honour to conclude a history of only one or two slips on the stairs which would be used daily by very many people does not lead to an inference that they must have been unreasonably slippery whenever they were wet.

Her Honour found in relation to the fall by Mr Stevanovski, that the cleaner may have been using water mixed with detergent, which may have made the landing more slippery. 16 It is within the realms of common knowledge that detergents and other cleaning liquids are often used by cleaners cleaning areas of high public usage. The presence of such on a tiled surface may make the surface slippery. It was open to her Honour to regard this as a possibility, particularly as the cleaner was still present and may not have rinsed off the steps.

Her Honour found that Mr Stevanovski had fallen from the top. 17 Mr Stevanovski's evidence as to where he fell from was as follows: "Q. And what happened, if anything? A. I came through the door off the top landing, fell down the stairs, I bounced off the wall and went backwards down the other stairs. Q. Now, just let us clear - at what point do you recall that you had this slip or misadventure? A. At what time? Q. At what point, where on the stairs was it that this happened? A. Mine was from the top, straight from the top." 18 It was open to her Honour on this evidence to conclude that Mr Stevanovski had fallen from the top landing. No attempt was made by the claimant to seek further clarification as to the point where Mr Stevanovski slipped.

Her Honour failed to find that the evidence given by Mr Stevanovski as to his fall corroborated the claimant's evidence that the stairs were slippery when wet. 19 Her Honour was not bound to so conclude as Mr Stevanovski, on her Honour's findings, slipped on the landing, not the steps, and there was a possibility the landing was wet with water containing detergent.

Her Honour failed to conclude that the opponent was negligent in failing to ensure that rainwater falling on the carpark did not enter the stairway and the stairs on which the claimant fell. 20 Her Honour held that the opponent would have been limited to requiring the owners to take steps to ensure that water could not enter the premises. Even if her Honour had concluded that there was a failure in this regard by the opponent, it was not established that reasonably practical means existed to ensure water could not enter the premises particularly as members of the public would cross the parking area during periods of rain bringing water on to the landing and steps when they entered.

Her Honour failed to find that the alterations made to the stairway after the claimant's fall provided evidence of action which could have been taken by the opponent prior to the claimant's fall to resolve the slippery nature of the stairs. 21 The alterations merely provided evidence as to action that could have been taken. They provided no evidence that reasonable care required that that action be taken prior to the injury to the claimant, see also Civil Liability Act 2002, s 5C(c). There was no evidence the alterations made to the stairway reduced or obviated the risk of slipping. The placing of the sign at the entrance would have told the claimant nothing she did not already know.

Conclusion 22 In my opinion, the claimant has failed to demonstrate material error by her Honour in her findings of fact. The consequence of this is that the factual basis for the determination of this case was that the tiles on the steps complied with the appropriate standards, there were handrails on each side of the stairway and, despite daily use by very many people, there was no evidence of any history of slipping or falling on the steps such as to put the opponent on notice that the steps were unusually slippery when wet and such as to require the opponent, acting reasonably, to take additional precautions against persons slipping or falling on them. 23 Her Honour concluded that the claimant had not shown a breach of duty of care by the opponent. This conclusion was consistent with the facts found by her Honour and with the principles set out earlier in this judgment. In my opinion, her Honour's conclusion was well open to her and was correct. 24 It is unnecessary to consider her Honour's alternative basis for judgment, namely that she was not persuaded that the claimant had shown that a reasonable person in the opponent's position would have foreseen that his or her conduct involved a risk of injury to the claimant. 25 In my opinion, if the appeal was permitted to proceed, it would fail. Accordingly no purpose would be served by granting leave to appeal or extending the time in which to appeal. In my opinion, the summons should be dismissed and the Court should refuse to extend time to appeal. The claimant should pay the opponent's costs.

Orders 26 I propose the following orders: 1. Summons dismissed. 2. Leave to extend time in which to appeal refused. 3. The claimant to pay the opponent's costs. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION: Hilas v Todbern Pty Ltd (trading as Hurstville Supercentre) [2007] NSWCA 315

New South Wales Department of Housing v Hume [2007] NSWCA 69 CASES CITED: Vairy v Wyong Shire Council (2005) 223 CLR 422 Wilkinson v Law Courts Limited [2001] NSWCA 196

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