Panther v Pischedda

Court of Appeal (NSW)|2013-06-17|Before: Macfarlan JA, Barrett JA, Gleeson JA, MacFarlan JA

Judgment 1MACFARLAN JA: On the evening of 6 November 2009, the respondent and her husband arrived at a self-contained flat at Wentworth Falls in the Blue Mountains which the respondent had booked with the second appellant for two nights accommodation. The appellants admitted that they were the occupiers of the premises which included the appellants' home and the separate flat. 2The only access from the street to the flat (and the appellants' home) was down a steep driveway. Having walked up and down the driveway the evening that they arrived, the respondent and her husband left the next morning to go for a walk, during which it began to rain. As they returned down the driveway, the respondent fell heavily and broke her ankle. She said in evidence at the trial that she appreciated that the driveway might be slippery and therefore walked down it carefully but that her left foot slipped forward and she fell. 3Subsequently, she commenced the present proceedings claiming damages from the appellants for breach of the duty of care that as occupiers they owed to her. 4The primary judge, Curtis DCJ, noted that the driveway sloped "quite steeply" downwards from the street with a maximum gradient in the area where the respondent fell of one in 5.1 (19.4 per cent), that the surface of the driveway consisted of exposed river stones embedded in a cement matrix and no hand rail was provided to assist pedestrians descending the driveway. His Honour referred to evidence that when the respondent and her husband left the premises on foot on 6 November, they ascended a set of steps that appeared to lead out of the property but found that their way was barred by a hedge.

What risk existed 11The primary judge first considered whether the state of the driveway created a risk that was not insignificant (s 5B(1)(b) of the Civil Liability Act 2002) and said: "27 Uninstructed by expert evidence I would have no difficulty in concluding that the steep surface of the driveway and the smoothness of the river stones created a significant risk of a pedestrian slipping on those stones when it was raining". 12His Honour referred in this regard to a statement of Giles JA in Gillies v Saddington [2004] NSWCA 110 to the effect that it was well open to the primary judge in that case to conclude that such a driveway "would be recognised as slippery when wet by a person going to walk upon it according to ordinary experience of life" (at [12]). 13Having referred in detail to the expert evidence, the primary judge said that the "expert evidence confirms a conclusion based on the ordinary experience of life, to which Giles JA referred in Gilles v Saddington, that the physical state of the [appellants'] premises created a risk which was not insignificant" (Judgment [55]). 14In reaching this conclusion, the primary judge had regard to Table 2 in the guide to which I have referred in [8] above. His Honour pointed out that that table related to tests conducted using the wet pendulum method which was that used by both Mr Adams and Dr Cooke. The information in the table was expressed by reference to British Pendulum Numbers ("BPNs"). The coefficient of friction of 0.51 found by Dr Cooke corresponded to a BPN of 48 and that found by Mr Adams to a BPN of 35, while his results excluding the outlier result corresponded to a BPN of 32. The table characterised the contribution of the surface to the risk of slipping when wet as "low" in respect of BPNs between 45 and 54, "moderate" in respect of BPNs between 35 and 44 and "high" in relation to BPNs between 25 and 34. From this, his Honour concluded that, based on Mr Adams' results, the driveway surface was on the cusp of having made a moderate to high contribution to the risk of slipping and, without the outlier, had made a "high" contribution to the risk of slipping. 15In written (but not in oral) submissions, the appellants criticised his Honour's use of this table as being contrary to Dr Cooke's evidence. However, his Honour was not bound to accept Dr Cooke's evidence, particularly when Dr Cooke responded to a question in the terms "so that if these cobblestones were wet there was still a moderate contribution to slipping?" by answering "[y]es to the risk of slipping that's correct" (Transcript pp 37 - 38). The process of reasoning that led his Honour to use Table 2 has not in my view been shown to be erroneous. 16Furthermore, it was open to his Honour to accept that Mr Adams' choice of testing points was more appropriate than that of Dr Cooke. As Mr Adams pointed out, the calculation of an average result for an area that varied in its slipperiness is of little value. It will be small comfort to a person who slipped on a slippery part of a surface to know that there were other parts of it that were much less slippery. Mr Adams' approach is supported by examination of the photographs in evidence which show many river stones which were smooth and rounded in appearance, and, according to common experience, therefore likely to have been slippery when wet, and many others that were more angular in appearance and more likely to have been resistant to slipping. There would be little, if any, point in deriving an average slipperiness of the two types of stones. 17In my view his Honour's conclusion that the physical state of what was undoubtedly a steep driveway created, when wet, a risk of injury to persons using it which was not insignificant has not been shown to be erroneous. As Mr Adams' evidence demonstrated, the harm that could ensue from slipping on a hard, steep surface such as the driveway might well be severe, as it was in the present case. Relevant also is that, in light of the appellants' use of the flat for the provision of accommodation to others for reward, it can be inferred that the driveway, being the only access to the flat, would have been used not infrequently by persons unfamiliar with the driveway, sometimes at night and in wet weather.

Was the risk foreseeable 18Furthermore, I do not consider that error has been shown in the primary judge's conclusion that the appellants knew or ought to have known of the risk that he found existed (see s 5B(1)(a) of the Civil Liability Act). As the driveway also provided access to the appellants' home, which was near to the flat occupied by the respondent and her husband, they must have been familiar with its characteristics. Its steepness and the smoothness of many of its stones made the danger of slipping on it when it was wet an obvious one. 19His Honour drew an inference from these matters that the appellants "could not reasonably have been ignorant" of the risk (Judgment [58]). This inference was more easily able to be drawn, in accordance with the principle in Jones v Dunkel [1959] HCA 8; 101 CLR 298, in light of the absence of evidence from the appellants to indicate otherwise. The appellants were in France at the time of the hearing but that did not explain the absence of any application for them to give evidence by video link.

Response to risk 20The primary judge then turned, in accordance with s 5B(1)(c) of the Civil Liability Act, to consider how a reasonable person in the appellants' position would have responded to the identified risk and, in particular, whether the reasonable person would have taken one of the precautions identified by Mr Adams. Amongst the "reasonable preventative measures" suggested by Mr Adams were hand rails beside the driveway and an alternative means of access. 21The primary judge found that the appellants acted unreasonably in failing either to install a hand rail or "cut a break in the hedge that denied alternative access" to the flat, the latter being a reference to the respondent's evidence that she and her husband had attempted to use existing stairs but were prevented from doing so by "some sort of hedge" (Transcript p 23). 22His Honour reasoned as follows: "61 Although there is no evidence as to the cost of the hand rail, it is reasonable to suppose that the cost would not be great. Similarly, the steps and path leading from the studio to the front boundary of the property could have been extended without significant expense by the simple expedient of cutting a break in the hedge and installing a gate. These minor burdens upon the defendant are to be weighed against the circumstances that the plaintiff's accommodation was rented for profit, the risk of injury was relatively high, and the consequences of injury possibly catastrophic". 23The appellants submitted that these conclusions could not be sustained so far as they related to a hand rail as there was no evidence "as to the details or costing of any hand rail and/or where it should be placed". However, Mr Adams suggested a hand rail as a reasonable preventative measure and he does not appear to have been cross-examined to suggest that it was not that. A hand rail is a common feature of everyday life and it does not seem to me that evidence is necessary to enable the Court to form a view that the cost and any possible unsightliness would not have been disproportionate to the identified risk. 24Moreover, contrary to the appellants' submission, it would be clear that the hand rail would have had to be placed down one side of the driveway. If someone chose not to use it and to walk down the middle of the fairway, they would hardly then be in a position to complain of a lack of reasonable care on the part of the occupiers. 25This Court in Gillies v Saddington regarded the availability of a means of access to the home which was an alternative to the driveway in question as an important feature of the case favouring the occupier (at [14]). As in that case it was open to a person coming to the home to avoid the driveway by walking on grass on either side of the driveway, "there was no occasion for the respondent to do more by way of steps or a hand rail or by the treatment of the driveway by a surface coating" (ibid). 26Mr Adams suggested alternative means of access as reasonable preventative measures. The respondent's evidence indicated there were steps already in existence which went some way to achieving that. The inference that the steps could have been completed or cleared without disproportionate cost was in my view open to the primary judge. 27I do not therefore consider that the appellants have demonstrated that his Honour erred in concluding that, in light of the circumstances to which he referred, a reasonable occupier in the position of the appellants would have responded by taking one of the steps identified by Mr Adams.

Conclusion on liability 28As the appellants accepted (in my view, for good reason) that the inference was available that the respondent would have used hand rails or an alternative means of access if one of them were available, with the result that her accident would not have occurred, the respondent's cause of action was established.

Quantum of damages 29The only challenge to the primary judge's assessment of damages that was pressed on appeal was a submission that the primary judge should not have allowed two hours per week for future domestic assistance at the commercial rate of $40 per hour, but only one hour per week at $26.36 per hour. The respondent's evidence on this topic was vague but justified a finding that more than one hour per week was required in respect of gardening and window cleaning. In addition, the report of Dr Peter Conrad provided support for the view that the respondent might need six hours per week of paid assistance in respect of the "heavier part of her housework". The assessment of this evidence was very much a matter for the primary judge and I do not consider that it has been shown that his conclusion concerning the extent of the assistance required was not open to him on the evidence. 30The appellants contend that the award should not have been made at a commercial rate and referred to Miller v Galderisi [2009] NSWCA 353. However, their submissions did not identify how the respondent would be able to satisfy her need for assistance other than by commercial means. The position in Miller v Galderisi was otherwise (see at [21]). 31As there is no challenge to the award for future domestic assistance on any other basis, the appeal against the award must be rejected.

Order 32For the reasons I have given, the appeal should be dismissed with costs. 33BARRETT JA: I agree. 34GLEESON JA: I agree with Macfarlan 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. Decision last updated: 25 July 2013

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