Jandson Pty Ltd v Welsh

Jandson Pty Ltd v Welsh - [2008] NSWCA 317 - NSWCA 2009 case summary — Zoe

[17]

She said she had thought the house being single storied was all on one level and she had noticed nothing different in the surface heights between the different floored areas. After her fall she noticed there were two steps from the carpeted area down to the wooden floored area. She landed on the floor at the bottom of those two steps." (Red Appeal Book 20-1) 6 Her Honour found that the steps were a "potential hazard" and that the respondent had been exposed to a "very considerable risk of a fall" (Red Appeal Book 27C-E). 7 Her Honour went on to say: "In the present case there was not a misjudgement of footing as such. The plaintiff simply did not see the stairs acting on the assumption this was a one level property. Having entered the premises on a tiled area she was aware there was a carpeted area and then a wooden floor. She appears to have taken in her surroundings when first entering the premises and to have then proceeded through the display home looking at various features. Her first intimation of any danger was when ' she stepped into nothing' and then fell onto the wooden flooring. It was at that time she first became aware there were steps. She saw no visual cues. The steps were carpeted in the same carpet as the floor upon which she had been walking. There was nothing to identify them by way of highlighting on the edge. There was no sign warning of the step. There was no handrail. True it is there was a box situated on the lower level of the floor. That does not seem to me to be a particularly impressive clue as to the presence of altered levels and whilst there is white skirting it would not have been immediately obvious that this fell down to the stairs until close to that area. Messrs Cooke and Adams both agreed a high proportion of accidents on stairs involve only one or two steps and these are a potential hazard. They both also agreed that she would not have seen the step until she was a little over 2.6 metres from the step." (Red Appeal Book 27-8 P-C). 8 The issues raised by the appellant in relation to her Honour's reasons for judgment were as follows.

[27]

11 The concession thus made by the respondent that "it wasn't affecting my ability to see" was in my view of limited significance as her evidence in chief that there was a degree of glare coming from the direction of the timber floor was not attacked in cross-examination and it was not disputed that the respondent did not observe that the timber floor was at a lower level. Furthermore, the concession needs to be understood in the context of the question which the respondent was answering. The question was directed to her ability "to see around" her. This was clearly a reference to her ability to observe generally the features of and in the house and not specifically to her ability to observe the change in floor level to the timbered floor. In these circumstances I do not consider that the respondent's evidence required glare to be rejected as a factor in the respondent failing to observe the change in floor levels. 12 In his principal report, Mr Adams expressed the view that the respondent's ability to detect the change in floor level was compromised due to three factors which included the following: "Light shining through the rear windows and reflecting off the polished timber flooring of the rear section of the house would have produced glare that further reduced the ability of a person to see the stairway [sic]." (Blue Appeal Book 60K-M) 13 Mr Adams did not specifically refer to glare in his "Concluding Comments and Opinions" section although it was presumably one of the unspecified "visual characteristics of the situation" referred to in the following passage: "I would regard the combination of the visual characteristics of the situation, including the uniformity of the carpeting provided over the stairway and the adjoining floor above it, the absence of highlighting nosing strips, the absence of any dedicated sloping handrails, and the absence of any type of warning sign, as the primary or proximal cause of the miss-step that resulted in Mrs Welsh's loss of balance and fall." (Blue Appeal Book 66 S-V) 14 Mr Adams reiterated his view as to glare in his report in reply prepared after the view had been expressed by an expert called by the appellant, Dr John Cooke, that there was not "glare of any significance" on the occasion that he attended the premises (Blue Appeal Book 121E-122P). 15 When describing the respondent's evidence, her Honour noted that she had agreed that "light had been reflecting on the timber floor but that it had not been blinding her" (Red Appeal Book 21P). These were not the words used in the respondent's evidence but in my view the substance of her evidence was consistent with her Honour's description. 16 In her Honour's description of the features that Mr Adams said exposed the respondent to "a very considerable risk of experiencing a fall", her Honour referred to "light shining through the rear windows reflecting on polished timber flooring" (Red Appeal Book 25U). Her Honour subsequently indicated her acceptance of Mr Adams' evidence. 17 In these circumstances, I do not consider that there was any significant difference between the basis upon which Mr Adams' expert evidence proceeded (and was treated by her Honour) and the evidence of the respondent. I accordingly do not consider the appellant's submission referred to in [8] above is well-founded. 18 The appellant further submitted that her Honour's reasoning was deficient as she did not deal with the evidence of Dr Cooke as to glare. I do not however consider that it was necessary for her Honour to do this when the respondent had given evidence in chief that there was significant glare on the occasion of her accident and that evidence had been dealt with in cross-examination only in the limited way that I have described earlier. In these circumstances, that is, where there was unchallenged observation evidence from the respondent of the existence of the glare at the relevant time, the evidence of Dr Cooke as to what he observed on another occasion was not of significance and did not need to be dealt with by her Honour. 19 The result is that the appellant's submissions on this point also do not succeed.

[28]

Prior Incidents 20 Evidence called by the appellant indicated that despite extensive inspections of the display home over an extended period there had been no reports of injuries relating to the steps in question. The witnesses who were called also indicated that they had not observed any incidents, such as stumbles, on the steps. However their ordinary work duties did not place them in the home on a consistent basis and their opportunity to observe such incidents was accordingly very limited. 21 While the evidence of the absence of reported injuries was clearly of assistance to the appellant's case, I do not consider that it requires the conclusion to be drawn that accidents on the steps resulting in significant injuries were not reasonably foreseeable. 22 In my view her Honour's inference that unless an injury was sustained, incidents may well not be reported was an appropriate one (Red Appeal Book 22-3). Particularly is this so in light of the fact that only a small change in floor level was involved. Whilst missing such a change in level might in some circumstances have serious consequences such as ensued for the respondent, one can imagine that in many cases a person who stumbled would be able to retrieve his or her position without injury. It is unlikely in those circumstances that a report would be made to representatives of the appellant, they ordinarily not being present in the display home at the time of inspection. 23 The absence of reported injuries did not therefore negate the inference to be drawn from the circumstances found by her Honour that there was a not insignificant risk of someone being injured. As indicated in Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, "the weight that will attach to an accident-free history involves a question of fact to be determined in light of all the relevant circumstances" (at 309). 24 I consider the situation here to be different from that in Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 81 ALJR 1773 where the activity which led to the injury was the intentional, recreational one of diving from a bridge. Depending on the circumstances, that may or may not involve a significant risk of injury. Here the activity involved is the accidental one of stumbling on steps which have not been observed. Common experience suggests that there is a not insignificant risk of injury occurring when that happens. 25 The fact that no injuries had been reported in the past is relevant to the assessment of the degree of the risk but in my view does not in the circumstances of this case enable one to treat the risk as an insignificant one.

[36]

Duty and Breach Generally 42 The specific matters dealt with above were those particularly relied upon by the appellant in support of its "ultimate proposition that the steps down from one level of the display house to another did not constitute a relevant danger and that the appellant was not required to do anything in relation to them of the kind alleged by the respondent, and thus was not in breach of its duty of care" (Orange Appeal Book 1 J-M). 43 For the reasons I have given above I do not consider that the specific submissions of the appellant are well-founded. Looking more generally at her Honour's conclusions, my view is that although the case is not an easy one and is perhaps close to the borderline, the conclusions at which her Honour arrived as to duty and breach were correct. Thus, for the reasons given by her Honour, it was in my view reasonably foreseeable that an invitee to these premises exercising reasonable care for his or her own safety but nevertheless open to the possibility of momentary inadvertence might well be injured as a result of stumbling on the steps. A reasonable person in the appellant's position would in my view have responded to what was a not insignificant risk of falls and of consequent injury by taking one or other of the steps referred to by her Honour to alleviate the risk of accident. 44 In Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 a person who had fallen on a driveway which had an uneven surface due to a slight discrepancy in the height of adjoining concrete slabs failed to prove negligence against the occupier of the premises who was conducting a garage sale. Of significance in the reasoning of the justices in the majority in that High Court decision was the fact that the evidence showed that the irregularities of the driveway were "of a kind, as the evidence shows, encountered unexceptionally on suburban footpaths" (at [116]) and not "at all uncommon in the driveways of suburban housing" (at [94]). 45 This contrasts with the evidence in the present case (referred to earlier) that changes in level such as encountered in the subject premises were unusual. This evidence was significant, particularly when allied to the evidence of the absence of visual cues to the change in levels and the evidence of the carpeting of the steps in the same carpet as the level upon which the respondent was walking.

[40]

The position of Centre Manager West Hoxton has been brought into line with the re-structure of League operations. A position of Shelter Operations Supervisor will now replace the current position and a job description is attached for your information". (Blue Appeal Book 6) 56 The job description referred to in the letter was not in evidence before her Honour but the respondent gave oral evidence that the job would have required skills, including computer skills, which she did not have. As a result, she indicated her acceptance of an offer of redundancy which was contained later in the letter. 57 There followed a letter from the League of 8 May 2006 which identified the amount of the redundancy payment together with long service and annual leave entitlements. The identification of these amounts was preceded by the following: "The offer of redundancy emailed to you on Friday 5th May was calculated on a precedent set by the League. After further consideration and in recognition of your long and dedicated service to the League we advise your redundancy package will be as follows". (Blue Appeal Book 8) 58 Having referred to the decisions in Hall v Cramer [2003] ACTSC 112; (2004) 40 MVR 477; Clay v Freda (Supreme Court of South Australia King CJ, Mohr and Millhouse JJ 1 July 1988, unreported) and Wall and Lambe v Wall (1998) 201 LSJS 164 her Honour said: "It thus seems to me that the redundancy payment should not be deducted from the plaintiff's damages. The payment was not a payment for a loss of earning capacity and not connected with her earning capacity. Accordingly, I do not propose to make any reduction in respect of the redundancy payment." (Red Appeal Book 37G-I)) 59 This statement of her Honour appears to have underlying it an assumption that the respondent would not have received the payment but for her injury. It seems to me however that the evidence before her Honour did not warrant that assumption being made. 60 The terms of the respondent's employer's letter of 4 May 2006 quoted above were inconsistent with the notion that the respondent lost her job because of her injury. Restructure of the League's operations was stated to be the reason that her pre-accident job was no longer available. True it is that the respondent was told by the League's Chief Executive Officer that the respondent was an occupational health and safety risk but the fact that that was the League's view does not mean that that was the reason the League abolished the job of Centre Manager. 61 A conclusion that by its letter of 4 May 2006 the League misstated the position, in what would have to have been a knowing fashion, would be a serious one involving an adverse reflection on the League's conduct. In my view there is no basis in the evidence for taking that step. The fact that the respondent said that she was "convinced" that what occurred "was to do with occupational health and safety reasons" (Black Appeal Book 44B) does not in my opinion supply the basis for this conclusion in the absence of the identification of any foundation for the respondent's convictions beyond her conversation with Ms Dalton. 62 My conclusion is therefore that the redundancy payment was not causally related to the respondent's accident. The result is that the redundancy payment should not be deducted from the respondent's damages. (See H Luntz, Assessment of Damages for Personal Injury and Death, 4th ed (2002) Butterworths at 444). 63 The reason why it is not deductible in these circumstances is that on the evidence it would have been received in any event. The accident prevented the respondent seeking alternative employment and thus caused her loss. But for the accident she would have received the redundancy payment and would have received income from alternative employment. In light of the respondent's considerable work experience, the evidence does not provide any basis for inferring that there would have been a significant delay in the respondent finding alternative employment.

At a glance

Court

Decision date

Before

Source

Judgment (45 paragraphs)

Parties

Cases Cited (11)

Cited By (6)