Owners Strata Plan 30889 v Perrine

GROUNDS OF APPEAL 9 There are twenty-four grounds of appeal of which only ground 5 is not pressed, namely that the Trial Judge "erroneously admitted the reports and/or evidence of the Respondent's expert." The Appellant's contention is that the Trial Judge erred in finding it liable, or alternatively in her assessment of contributory negligence. The Appellant's denial of liability challenges any finding of fault on the Appellant's part and takes issue with the combination of factors relied upon by the Trial Judge as being either available to be found, or if found, being causative of the injury suffered. 10 In referring to "the design of the building", in the summation of the Trial Judge's conclusions, it is clear that the Trial Judge was referring to the fact that the lights were turned off in the foyer, which led straight on to sunny steps at the time in question. Also to the failure to provide additional handrails to the single handrail on the left-hand side of the stairs, in circumstances where it was said that the locking of one of the doors to the Credit Union led to the Respondent descending the steps on the other side to the handrail. The handrail was thus out of reach for the Respondent to grab on to, in order to break her fall. This, in combination with the use of the same colour nosing on the steps, was said to constitute the basis for concluding that the Appellant had breached its duty of care. 11 The background facts concerning the accident are largely uncontroversial. Thus the accident occurred in a building constructed shortly before June 1986 on which date the Strata Plan was registered and the Appellant came into existence. The Appellant was the occupier of the common property of the building. 12 The ground floor space was originally occupied by cashiers for the Office of State Revenue and from about 1993 by the Reliance Credit Union ("the Credit Union"). 13 The only access to the ground floor offices was by the stairs upon which the Respondent fell. There was no evidence that the stairs or surrounding area had changed since the construction of the building. 14 The stairs and surrounding area were constructed of red/brown paver bricks. They are shown in the photographs exhibited at trial (Blue, 210 to 214). They may be described as follows. As one faces the building from the street there is a flat paved area 2.700 metres x 2.390 metres wide which abut the footpath. There are then the stairs which consist of five risers with an average height of 170mm, and an average width of 270mm. They lead to a landing 1.890 metres in depth. The distance from the landing to the base of the stairs was 850mm. On the left-hand side of the building there are two doors providing access to the offices of the Credit Union. The right-hand door opens inward, the left-hand door is kept locked (T, 29.10 and T, 29.55). 15 The Respondent was very familiar with the building, having been employed there by the Office of State Revenue since 14 March 1988, albeit on the fifth floor. She regularly conducted her banking business at the Credit Union, visiting it on many occasions, making a regular fortnightly visit, over the years, without incident. So too did thousands of other people. There was no evidence any other person had fallen or suffered injury whilst using the stairs. Thus Ms Dalag who was employed as Strata Manager of the building, gave evidence that there was no documentation of any accident, she having searched back to 1986, nor any document indicating anything untoward had occurred. There was no cross-examination of that witness. Her evidence is at Black, 76-7 and see also Black, 68W to 69D, 70V to W. 16 I need now to deal briefly with the issue raised concerning handrails of the stairs in question. The Trial Judge referred to the absence of the railings other than on one side (the left-hand side). She stated that that fact was not put forward "as being a cause of the accident or indeed any way related to causation except by way of being a means of the Respondent minimising her injury from the very serious injury that she suffered to some comparatively minor injury" (Red, 33). 17 The reasoning of the Trial Judge was that though the Respondent did not use the safety rail when she was walking up and down the steps, as was conceded, nonetheless she would have been able to grasp the handrail while falling and thus could have potentially reduced the injury she suffered, had one been in reach. The trial judge concludes (Red, 33) that, "these steps are 2 ½ metres wide. Ordinance 70 and general standards require that where a staircase of the same description as this staircase (i.e. five risers is more than one metre in height) and in the present case that is 1 ½ metres, there must be a handrail on each side. Where the staircase is as wide as 2 ½ metres wide, there is a requirement for there to be a third centre handrail. The reason for this is that steps are not of standard steepness for a five stair flight. Thus it is no answer for the defendant to assert that the staircase is merely five risers high; in fact that it is more than the required height means that the steps are of more steepness than is regarded as being reasonable by the standard, and accordingly it must have a second railing at the very least. Indeed, since 1993 it would have had a third railing in the centre, as I have set out below." 18 Later the Trial Judge refers again to the evidence concluding, "In my view it would be difficult to argue that Ordinance 70 did not apply to these stairs which are clearly "required" stairs to reach the ground and in excess of the height exemption. One handrail is not enough; there should be two. Should there be three? Whether or not this is mandatory I must consider the issue of reasonableness and non-mandatory requirements can be relevant on this issue." 19 In fact, the Trial Judge appears to be in error in dealing with Ordinance 70, though its ultimate significance remains to be considered. Ordinance 70 at para 24.27 makes clear that "a handrail or balustrade shall be provided along the side of any required stairway … leading to an exit, if that side is not bounded by a wall and is more than 915mm (or 5 risers in the case of a stairway) above the finished surface of the adjoining floor or ground, as the case may be." 20 Sub-para (2) of para 24.27 provides "a handrail should be provided along at least one side of every flight of stairs in a required stairway and where the flight is 1 525mm or more in width, a handrail shall be provided along each side." 21 If one assumes that the present stairway was a required stairway, notwithstanding that it appears, according to the expert's report of Robert Nicholson as being applicable only to "an exit and/or stairway required by the Board of Fire Commissioners for the quick and safe evacuation of a building in event of fire" (Blue, 233), the Appellant contends, correctly, that this stairway was not in excess of five risers but was only five risers. 22 Second, para 24.27(2) only applies where the flight is 1 525mm or more in width, whereas here the average width is 270mm, so that there was no obligation to provide a handrail along each side. 23 In any event, para 24.27(1), if applicable or treating it as a guide to what is reasonable, was complied with, as there was one stair-rail provided on the left-hand side. 24 The reference in the Trial Judge's judgment to the position after 1993 relates to the Building Code of Australia (Blue, 207H to K). It, however, had no application as the building was constructed before its commencement in 1993. 25 Thus there could be no basis for concluding that the Appellant was negligent in failing to have additional handrails on the stairs and in that regard the Trial Judge was, with respect, thus in error. 26 As to whether in any event the availability of a handrail on the right-hand side would have availed the Respondent as she was falling, it is necessary to turn now to her description of the accident as well as the causes attributed for it. 27 Initially the Respondent explained her accident as the result of slipping on the steps. However, the report dated 16 June 2000 of her own expert, Mr Nicholson, following tests on the brick stair treads and an examination of the shoes led to the conclusion that the co-efficient of friction was "considered to be a safe figure"; see Blue, 199-200. 28 Two other explanations emerged, with eventually these in combination being considered as relevant. The first was that the Respondent did not discern the position of the nosing of the steps, and overstepped the mark with the ball of her foot past the stair nose. It was said that, "the plaintiff would then have slipped because of the position of her shoe with the ball of the foot extending out from the stair-tread, lost her balance and fallen down the stairs"; Blue, 200. 29 The Respondent's expert considered (Blue, 200) that "the cause of the accident is thus a failure of the defendant to clearly define the nosing of the stairs. This can be done in a white tape on the stair nosing or better still a different coloured paver brick used for the stair nosing. The accident therefore is a visual one with the stair nosing and pattern of paver bricks being hard for some people to discern." 30 The report acknowledges that a different colour on the nosing or a different colour paver brick would not assist the visually impaired or disabled, leads to the further suggestion of a "non-slip finish throughout or with an approved non-skid strip near the edge of the nosings"; Blue, 202. 31 However a basic problem with that explanation for the accident apart from it not according with the Respondent's own account (see later), is that although it is good practice to define the nosing of stairs with a white line or other differentiation, it is not generally negligent to fail to do so. Wilkinson v Law Courts Ltd [2001] NSWCA 196, Heydon JA, with whom Meagher JA and Rolfe JA agreed, said, at para 32: "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. Among the essential circumstances is the following fact: "persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety": Stannus v Graham (1994) Aust Torts Reports 81-297 at 61,566 per Handley JA. There are many places in Sydney where the steps do not have strips on the edges: the Public Library, the Art Gallery, Parliament House, St James Church and St Mary's Cathedral: Black 51J-51R." 32 The final explanation, though relying on the earlier matters including the absence of an extra handrail as combinatively responsible, fastens on the effect of "illuminance differences between adjacent spaces", in Mr Nicholson's later report of 15 October 2001. 33 The delineation of this theory is to be found in Mr Nicholson's report, Blue, 246 to 251. He based his conclusion on light readings which were made in relation to lighting levels of the Credit Union, the stairway and the landings at the top and bottom of the stairs. He concludes that the relative disparity and contrast in lighting, as described below, led to the Respondent's failure to discern the stair nosings on the day of the stated accident and in particular the stair nosing on the first step where she fell. Thus a low level of light is to be found inside the Credit Union (160 LX) a higher reading in the middle of the landing (1114 LX), a somewhat higher reading at the top step (1430 LX), a higher reading again at the landing at the base (2410 LX) and with much higher readings from the strong sun and glare outside (3520 LX) half way to the Council path and on the Council path in the sun (in excess of 20,000 LX). 34 These measurements were summed up (Blue, 250) in these terms, "the lighting is thus not in accordance with AS 1680.2.1 - 1993 with the disparity of lighting being great on the stairway, - there being … a poor level of light in the Credit Union, followed by relatively poor light at the top of the stairs and more light at the base of the five stairs." 35 The report by Mr Nicholson attaches an Australian Standard for interior lighting (Blue, 260-261) which states that "care should be taken at entrance areas to avoid a pronounced change of illuminance between inside and outside, both by day and by night. … the luminare used should be of such a type or located so that persons entering or leaving the area will not suffer a significant loss of visibility resulting from glare from the luminares." 36 The Respondent's evidence was that "usually it's dull on the stairs"; Black, 30K and see also 30Q. 37 I should note at this point that the Trial Judge drew the inference, in relation to the two recess overhead lights in the foyer, that they "could not have been illuminated on the day in question for the foyer to be as dark as the plaintiff says" (Red, 30). As between the two opposing experts, Mr Nicholson and Dr Cook, while it may be said that they agreed to the description of lighting level differences, they did not agree that the lighting standard referred to above did in fact apply. The Respondent contended that it did and the Appellant contended that it did not. Nor did they agree that the lighting differentiation was causally related to the fall (the Respondent contending it was and the Appellant contending it was not). I should observe in relation to the two experts that the Trial Judge was critical of both sides' respective experts for each becoming "something of an advocate". This was when each expert in his successive reports became caught up in answering the other expert. While the Trial Judge ultimately accepted the Respondent's case, she emphasised that, "I should read both expert's reports with care" and "treat the comment of both with caution where that comment falls outside their area of expertise, appears to be a form of advocacy, does not have the basis for it properly explained and/or does not accord with my own opinion as arising from other evidence before me."; Red, 27-8. 38 It is necessary now to look carefully at the evidence actually given by the Respondent to see whether there is any proper evidentiary base in that evidence for these explanations, ultimately accepted by the Trial Judge in their combinative form. 39 I start with the evidence of the Respondent in examination in chief. She begins by identifying the stairs, explains that she proceeded to them from the Credit Union and being there for some five minutes, proceeded to the downstairs to go back to her office, describes the day as a beautiful day and stating that "it's dull on the stairs". She then describes the accident as it actually occurred in these terms (Black, 30R to 31F): "Q. Are those the stairs up which you went? A. Yes, they are. Q. When you arrived at the top there is a sign 'Reliance' directly ahead? A. Yes. Q. Is that the doorway or is that a glass wall? A. That's a glass wall. Q. To the left there appear to be two doors? A. Yes, sir. Q. So that we are talking about right and left- A. Yes. Q. -and there is no confusion- A. Okay, sir. Q. -was it the door nearest the glass wall or the wall nearest the steps- A. You enter- Q. -which opened? A. You enter by the door nearest to the glass wall, the right side. Q. Thank you. Now perhaps that photograph can be returned. Now you went in I think you said through that door and you transacted some business? A. Yes. Q. About how long were you in there? A. Five minutes. Q. Was there anything unusual that happened in that time? A. No, sir. Q. When you came out did you come out through the same door? A. Yes, sir. Q. What happened after that? A. I proceeded to the downstairs to go back to my office. Q. What sort of a day was it? A. Beautiful day, normal day, no rain. Q. Are you able to remember anything about the light, whether it was bright and sunny, dull? A. Usually it's dull on the stairs. OBJECTION Q. No, no, I'm not asking about the stairs, I am asking about the light outside, what was the weather like, what was the light like? A. Nice, nice day; nice and sunny day. Q. Now you told us you were coming to the top of the stairs? A. Yes, sir. Q. What was the lighting like there? A. Do you mean the lighting on the stairs? Q. On the stairs? A. Dull. Q. As you came to the stairs which side were you on the stairs, were you near the handrail or near the wall? A. Near the wall, on my right. I was descending on my right. Q. Now are you right or left handed ordinarily? A. I am right handed. Q. Perhaps I should say were you right or left handed. What happened? A. My - as I opened the door, proceeded to come down as I touched the first steps my foot just shot forward and I went on a free fall. Q. Are you able to remember anything else about the circumstances of the accident? A. No, sir. Q. As you were falling you were near the glass wall on the right, you say? A. Yes. Q. Was there a handrail? A. No, sir. Q. Do you remember what you did with your right hand as you fell? A. I tried to cushion my fall but I was in the air."

40 She describes that she was holding $5 in her hand and did not have a bag with her. She describes being dazed after her fall. 41 She is then cross-examined in relation to the fall, in which she describes it with no greater elaboration in its essential detail. I quote (Black, 70V to 72F) "Q. And on the day of your accident, this is now getting back to 23 September, you'd done almost everything that you had done before by going in, and when you were coming out you d up the door by pulling it, is that right? A. Yes sir. Q. You stepped on to the landing, is that right? A. Yes sir. Q. You took one or two steps? A. Yes. Q. To get to the edge of the landing? A. Yes. Q. And then something happened to you? A. That's it. Q. Your foot flew out from underneath you and you became airborne essentially, is that right? A. Yes sir. Q. It was very sudden? A. Yes sir. Q. It all happened very very quickly, is that right? A. Yes sir. Q. It didn't give you a chance to do anything to try and recover yourself- A. No sir. Q. -is that right? And yesterday when you said that as you touched the first step you went into freefall and you tried to cushion your fall, you tried to put your arms down- A. yes, to- Q. -before you hit- A. To stop myself. Q. -before you hit the ground? A. Yes. Q. And when you landed on the ground were you on the stairs or did you actually get to the landing all the way down? A. I landed all the way down. Q. All the way, the actual-? A. I was on the - I was flat down. I landed on my right. Q. Yes, but with your feet out in front of you and your head back or did you land forward? A. I landed on my side. Q. On your right-hand side? A. Yes. Q. Okay, but you can't remember whether your feet were forward or back? A. No, no, I can't remember sir. Q. That's okay. But you flew through the air from the top step, missed the next stairs down and landed on the landing down the bottom on the paving brick, is that right? A. Yes sir."

42 It will be apparent from this evidence that apart from identifying dullness in the foyer where the stairs were and that the day was a sunny day, the Respondent fails to substantiate the explanation put for the accident in the following respects: (a) the Respondent gave no evidence that the lighting in the foyer was duller than the Credit Union's artificial light; (b) that the bright sunshine and the outer area could be seen through the glass of the Credit Union; (c) that she had difficulty as a result of the change in light levels or was otherwise dazzled by the exterior lighting; (d) that she first focussed on the bright sunlit area outside the entrance; or (e) that she felt any need to adjust for the lighting levels outside. 43 In short, in circumstances where she has used the stairs on many occasion so as to be fully familiar with them, she gives no evidence in satisfaction of the onus upon her that bears out the light differentiation explanation. She simply gives no evidence that she looked at the light at the bottom of the stairs or that she found difficulty adjusting her eyes from a dull light to a brighter one, that she was somehow blinded. The Trial Judge, whilst referring to the combination of factors pointing to a failure on the Appellant's part, refers to "the comparative darkness of the foyer to the brilliant sunshine outside". But there is not the evidentiary base for that factor to be treated as causative of the accident whether alone or in combination with the other factors relied upon. 44 The lack of the handrail to break the fall presupposes an obligation to have one. This is when there is no basis for that in Ordinance 70. Moreover, the duty of an occupier of premises is not to make the premises as safe as "reasonable care and skill on the part of anyone can make them" (Gleeson CJ speaking of landlords as a sub-class of occupiers in Jones v Bartlett (2000) 176 ALR 137 at [92]). Rather it is "to take such care as is reasonable in the circumstances"; compare Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [21]. Accepting that the Respondent would not have used the stair-rail save as a possible way of breaking her fall, her description of the accident and its suddenness at the first step strongly militates against the possibility that she would have had the opportunity to stop that "free fall" in time; that is by reaching for a railing even if she were close enough to it. 45 Finally, these are circumstances where the locking of the door was done by the Credit Union and not the Appellant and where nothing would have prevented the Respondent from determining for herself what side of the stairs she descended. Thus there can be no basis on that score for the absence of a handrail on the right-hand side or a third handrail in the middle as being either causally related to the accident or to the degree of seriousness of the Respondent's injuries. 46 Along with the absence of substantiating evidence in the Respondent's account of how the accident occurred, there is the fundamental difficulty that the Trial Judge concluded that "it is quite clear she was not looking where she was going and did not exercise care. Stairs are inherently dangerous and members of the public should exercise care when using them. The Plaintiff was familiar with the area and familiarity should not breed contempt". The Trial Judge however went on to determine, on the one hand, that "she is substantially responsible for the accident" but on the other, "in my view 50% is sufficient deduction" (Red, 36). 47 The Trial Judge's earlier conclusion as to her not looking where she was going and did not exercise care, does not sit with an explanation based upon the combination of factors earlier referred to by the Trial Judge as having in that combination led to the accident, once their causative effect is negated; see Red, 35. While therefore an apportionment for contributory negligence is not ordinarily to be interfered with on appeal, that is subject to exception. That exception applies where it can be shown that the trial judge erred in principle, or misapprehended facts or the apportionment is manifestly erroneous; Phillis v Daly (1988) 15 NSWLR 65 at 78 per McHugh JA. Here that basis for interference is to be found in that combination of factors not being causative of the accident, as appears from the Respondent's own account, as well as considerations earlier identified. This is reinforced by the Trial Judge's conclusion that the Respondent was substantially responsible for the accident, for the reasons she herself gives. 48 In those circumstances, contributory negligence does not arise, as it has not been shown that the Appellant was negligent in the first place.

CONCLUSION AND ORDERS 49 I consider that the appeal should be upheld and the Respondent's cross-appeal dismissed. I propose the following orders: (1) Appeal allowed. (2) Respondent to pay the Appellant's costs of this appeal and in the court below. 50 DAVIES AJA: I agree with Santow JA, whose reasons I have had an opportunity to read. 51 The subject steps were normal brick steps. They complied with any applicable regulations. The lighting was adequate. As the trial Judge said, "… the relevant standards are engineering standards and the experts agree that the lighting measurements are in excess of those standards". The level of lighting on the steps in fact exceeded that in the Credit Union office. 52 In these circumstances, the respondent's expert was hard put to demonstrate a basis for negligence. This led him to refer, for example, to the fact that the steps would have been a problem "for the visually impaired" and that no "accident reporting book" was maintained. 53 The crux of the expert's report appears in the following passages: "Further, the tests with the Plaintiff's shoe suggest that the surface is safe with a high figure for coefficient of friction recorded for the Plaintiff's shoes on the paver brick surface. This appears to suggest that the Plaintiff did not slip because of the slippery nature of the stairs but instead slipped because she did not discern the position of the nosing of the steps, and overstepped the mark with the ball of her foot past the stair nose. The Plaintiff would then have slipped because of the position of her shoe with the ball of the foot extending out from the stair tread, lost her balance and fallen down the stairs. The writer believes that the cause of the accident is thus a failure of the Defendant to clearly define the nosing of the stairs. This could be done in a white tape on the stair nosing or better still a different colour paver brick used for the stair nosing. The accident therefore is a visual one with the stair nosing and pattern of paver bricks being hard for some people to discern." 54 There are two problems with that approach. The first is that, although it is good practice to define the nosing of stairs with a white line or other differentiation, it is not generally negligent to fail to do so. Wilkinson v Law Courts Ltd [2001] NSWCA 196, Heydon JA, with whom Meagher JA and Rolfe JA agreed, said, at para 32: "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. Among the essential circumstances is the following fact: 'persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety': Stannus v Graham (1994) Aust Torts Reports 81 - 297 at 61,566 per Handley JA. There are many places in Sydney where the steps do not have strips on the edges: the Public Library, the Art Gallery, Parliament House, St James Church and St Mary's Cathedral: Black 51J-R." 55 The second is that the respondent did not give evidence that any difficulty in discerning the nosing of the steps contributed to her fall. Her evidence does not show that she was exercising due care as to where she put her feet. Her evidence is as consistent with inattention on her part as with any other explanation. 56 The respondent's evidence was as follows: "A. My - as I opened the door, proceeded to come down as I touched the first steps my foot just shot forward and I went on a free fall.

Q. Are you able to remember anything else about the circumstances of the accident? A. No, sir.

Q. You took one or two steps? A. Yes.

Q. To get to the edge of the landing? A. Yes.

Q. Where the steps started? A Yes sir.

Q. And then something happened to you? A. That's it.

Q. Your foot flew out from underneath you and you became airborne essentially, is that right? A. Yes sir.

Q. It was very sudden? A. Yes sir." 57 This evidence does not show that the respondent was misled as to the position of the edge of the steps. It merely shows that she missed the step. 58 I agree with the orders proposed by Santow JA. **********

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.