Raciti v Wadren Pty Ltd [2006] VSCA 132

(a) the ramp unduly narrowed the width of the last three steps contrary to clause D1.6(g) of the BCA and Reg11.10;

(b) no mid hand-rail was provided contrary to clause D2.9 of the BCA.

Thus, it was claimed, the ramp posed a risk of injury to users of the staircase such as the appellant and the failure by the respondents to remedy the situation amounted to a breach of duty contrary to s.14B(3) of the Act.

6 It is apparent from the material before the Court, and from her Honour's reasons, that a great deal of the appellant's case was concerned with seeking to establish that the staircase did not comply with the BCA and the Regulations and that this was causative of her fall. There was considerable debate before her Honour as to whether the staircase breached the BCA and the Regulations because of the presence of the ramp. Both parties called experts to establish their respective contentions. The appellant's experts were Dr Leonard Cubitt, a consulting forensic engineer, and Andrew Wadsworth, a building surveyor. The gist of their relevant evidence was that the intrusion of the ramp impermissibly narrowed the width of the last three steps thereby producing a safety hazard. Moreover, it was said, because of the width of the stairs, the BCA required the provision of a central hand-rail on the stairway, something that was lacking. The respondent's expert was Gregory du Chateau, a building surveyor, who said that the stairs relevantly complied with the BCA and the Regulations. He supported the respondent's case that the ramp did not affect the usable width of the stairway and that there was no requirement of the BCA or the Regulations for a central hand-rail. In any event, said the respondent, any breach of the relevant Regulations or the BCA was not causative of the appellant's fall. It seems to have been common ground that the overall width of the exits provided in the building was inadequate to meet the requirements of Part D1 of the BCA, which dealt with "Provisions For Escape," given the potential number of occupants of the building. The respondent argued, however, that any such deficiency was not causative of the appellant's fall.

7 After carefully analysing the evidence, her Honour preferred that of Mr du Chateau to that of the appellant's two experts largely because, the judge said, their reports contained fundamental errors. Dr Cubitt, said her Honour, misapplied the Regulations and the BCA and Mr Wadsworth based his conclusions on Dr Cubitt's report and applied the wrong measurements to his assessment of the rises and treads of the stairway, as had Dr Cubitt. Both expert witnesses, said the judge, acknowledged their error. Be that as it may, her Honour recognised that it was common ground that the extent to which the ramp reduced the width of the last three steps beyond the hand-rail was in the order of 122mm. The learned judge considered that the appellant who was, on her own admission, "extremely" familiar with the layout of the stairway, and the presence of the ramp in particular, fell because she missed the step after she had moved away from the ramp in order to avoid it. Her Honour went on to say:

"In any event, on the evidence before the Court, it is clear that with the exercise of ordinary care the [appellant] could have safely descended the stairway whilst holding the hand-rail with her right hand. In other words, to the extent that the ramp intruded into the stairway, it did not actually interfere with her safe passage down the stairway on the night of her fall. Moreover, to the extent that it presented any hazard or danger, the ramp was not concealed and was known to the [appellant]."

8 Upon examining the subordinate legislation and the competing arguments as to whether the staircase complied with it, the learned judge concluded that, although the premises have a serious deficiency in the provision of emergency exits, as was admitted by the respondent, this breach was not causative of the appellant's fall. Her Honour also found that the ramp did not so intrude into the staircase as to make it dangerous or impede its normal use and said that, if there was any potential for the appellant being deceived by the size or presence of the ramp, she was not so deceived because she was familiar with the layout of the stairs and acutely aware of the presence of the ramp. The judge went on to say, as has been noted, that the cause of the appellant's fall was her missing the step immediately below her (after she had moved diagonally across the stairs and let go of the hand-rail). In the circumstances, her Honour concluded, the appellant had not established that the respondent failed to discharge its relevant duty of care to her.

9 The appellant's principal case on appeal was that her Honour did not consider whether the presence of the ramp created a foreseeable risk of injury to users of the stairs in the sense of causing them, or such of them as were in the position of the appellant, to move laterally and thereby expose themselves to an increased risk of falling and, if it did, whether a reasonable occupier in the respondent's position would have removed it. Mr Brett objected to the appellant raising what he said was a new argument on appeal. Counsel said that her Honour decided the case in response to the way that it was argued. It was contended that, below, the appellant's case, with which her Honour dealt in her reasons, contained two principal planks, one that the stairway breached the requirements of the subordinate legislation and two, that the ramp was an unnecessary obstruction requiring users of the stairs to move "obliquely" if they were to avoid it. Mr Brett said that the appellant now seeks to impugn the decision on a materially different basis and should not be permitted to do so.

10 I consider that there is some force in Mr Brett's contention in that the question of foreseeability in the sense now put by the appellant was not contended for in counsel's final submissions. Before her Honour, Mr Brett argued in his final address that the respondent's relevant obligation was simply to take reasonable care to see that no person was injured by reason of the state of the premises or of things done or omitted to be done in relation to them. Mr Waugh's principal claims in his address for the appellant were these. He said that the ramp upset the normal gait of pedestrians by causing them to move away from the otherwise committed path of descent in order to avoid it, thereby exposing them to a greater risk of falling. Counsel also pointed to the six falls that had occurred on the stairs "in recent times" and said that the ramp was an "unnecessary obstruction" for pedestrians using the stairs. The judge considered these arguments in her reasons, as she was bound to do,[1] and, as has been noted, found that the ramp did not have the deceptive qualities for which, the judge said, the appellant contended and that any breach of the BCA or the Regulations was not causative of the appellant's fall.

11 It seems plain enough that, as a general rule, a party is bound by the conduct of its case below and is not permitted to attack the impugned decision on new grounds, particularly where the other side would have led evidence to meet such a point or would have put its case below on a materially different basis by way of an answer.[2] Nevertheless, whether the appellant should be permitted to argue that her Honour failed to address the question of breach in the manner now contended for by Mr Waugh depends on whether, in all the circumstances, it would be unjust to permit her so to do.[3] I consider that no injustice will result if we deal with the appellant's new argument, principally because it was not suggested by Mr Brett, rightly, I think, that the respondent would have conducted its case below in a manner relevantly different from the way it did if this point had been raised at that stage. In my view, her Honour clearly did not deal with the breach in the way counsel now says she should have done. As Mason, J. said in Wyong Shire Council v. Shirt:[4]

"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

12 As I have said, the learned trial judge here did not analyse the issues in the manner outlined by Mason, J. in Wyong Shire Council. Nevertheless, I would not set aside her Honour's ultimate conclusions for two principal reasons. First, I think that the material does not demonstrate that the respondent failed to exercise the required standard of care and thus that it breached its duty to the appellant. In coming to this conclusion, I have assumed that it was reasonably foreseeable, in the sense that it was not far-fetched, that the ordinary user of the stairway would, by reason of the existence of the ramp, move laterally to his or her left when descending the stairs and thus be exposed to some increase in risk of falling. The real question is, I think, whether a reasonable occupier would have removed the ramp given the foreseeability of such a risk. Put another way, was the magnitude of the risk, namely, a material increase in the prospect of falling after executing the relevant movement to the left, and the likelihood of it occurring, such that a reasonable occupier would have removed the ramp?[5] This question must be considered, I think, in the context of her Honour's findings (and the matters that were common ground), the most relevant of which were these. First, the ramp did not intrude so as to impede the normal use of the stairway. This finding is unsurprising given that the ramp reduced the width of the last three steps, each of which was approximately two metres wide, only by 122mm, and the ramp was so marked that its existence could be identified by a user keeping a reasonable look out. Secondly, with the exercise of ordinary care, the appellant could have safely descended the stairway whilst holding the hand-rail with her right hand. In other words, said the judge, to the extent that the ramp intruded into the stairway, it did not actually interfere with her safe passage. These findings were not challenged by the appellant. Rather, it was contended that "ordinary care" necessitated moving laterally (out of reach of the hand-rail) as the appellant did, but, in my view, merely because she decided to adopt that course does not mean that her Honour's finding on that issue did not accord with the evidence. It was also said that the impugned finding was based on the false premise that there was no obligation on the respondent to remove the ramp merely because it could have been avoided by users of the staircase. In my view, her Honour's impugned conclusion was not based on the premise contended for by the appellant but, in any event, I consider that it does not operate to vitiate the finding. Next, during the ten years or so since the building was constructed there has not been any reported accident on the stairway due to the presence of the ramp.

13 In considering the question whether the magnitude of the risk posed by the ramp was such that a reasonable occupier would have removed it, it is also necessary to have regard to the matters identified in s.14B(4) of the Act.[6] I note that they include the ability of the user to appreciate the existence of the ramp.[7] It is plain, as I have noted, that the appellant knew of the existence of the ramp, that it was well marked, and it was not suggested by the appellant that it was otherwise than plainly visible to the ordinary user. In dealing with this matter it is also necessary to have regard to the caution which Hayne, J. sounded in Neindorf,[8] namely, that the inquiry as to whether the occupier has satisfied the requisite standard in respect of the premises in question should not be approached with the benefit of hindsight. His Honour went on to say:

"Nor is [the inquiry] to be confined to what could have been done to eliminate, reduce or warn against the danger. Asking what could have been done will reveal what was practicable. It is necessary to ask also: would it have been reasonable[9] for the occupier to take those measures?"

In that context, Hayne, J. also said[10] that the analysis of whether it would have been reasonable for the occupier to reduce or eliminate the danger, here the ramp, should not proceed from the knowledge of the particular accident because that would be to "look at the problem with hindsight. That is not the question the statute (or the common law) presents. That question is what would have been the reasonable response of the occupier before the accident."[11] Approaching the matter on this basis, and assuming that the cost and effort of replacing the ramp would not have caused undue difficulties, I have come to the conclusion that, given the judge's findings to which I have referred, the reasonable occupier would have regarded the risk with which we are concerned - that of an accident occurring as happened here - as being so slight that it did not call for the removal of the ramp. Consequently, on the material, I consider that the respondent's failure to remove the ramp did not amount to a breach of the required standard of care and, thus, a breach of duty to the appellant. For these reasons, I consider that the appellant's principal ground that I have identified should fail.

14 The second reason why I think her Honour's ultimate conclusion is not so vitiated is that I consider that, for the reasons I give below, her Honour did not err in her conclusion that, as a matter of characterisation, the presence of the ramp was not causative of the accident. It is plain enough that, in order to succeed in her claim, the appellant had to establish not only breach but also that there was a causal nexus between the breach and the accident or the injury. As Deane, Dawson, Toohey and Gaudron, JJ. said in Medlin v. State Government Insurance Commission:[12]

"For the purposes of the law of negligence, the question whether the requisite causal connection exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience."

15 In this case, the appellant knew of the existence of the ramp and chose to avoid it, not by continuing to descend "past" it while having the benefit of the hand-rail but by moving laterally and letting go of the support. Her Honour's reasons (and the evidence of the appellant) make it apparent that it was thereafter, when she continued her descent, that her foot missed the step on which she, no doubt, intended to place it. It is true that the appellant adopted the course she did because of her apprehension of the ramp, but it does not follow from this, I think, that it could properly be said that the ramp was causative of her fall. As I have noted, the appellant did not say in her evidence that, just before the fall, she had lost her balance by reason of her movement to her new position, or that she slipped or was pushed or jostled.

16 I mention for completeness that Mr Waugh contended that her Honour made other errors, more particularly, that she failed to provide sufficient reasons for preferring the evidence of Mr du Chateau, that she oversimplified some of his evidence, that she failed to consider the matters identified in sub-s.(4) and that she did not turn her mind to the fact that the appellant was compelled to move to her left as she approached the area of the ramp. I think that there is no substance in counsel's generalised complaint. I have summarised her Honour's reasons for her preference for the evidence of Mr du Chateau and consider them adequate to explain why her Honour reached that conclusion. In any event, I think that the so-called expert evidence that was called by both parties as to the operation of the BCA and

the Regulations was, in the circumstances, irrelevant to the central questions before her Honour and, in particular, any breach of the subordinate legislation was plainly not causative of the accident, as her Honour found. I also consider that it is plain from her Honour's reasons that she had regard to the relevant circumstances spelt out in sub-s.(4). As Mr Brett pointed out, virtually the whole of the judgment is an analysis of whether the ramp constituted, whether by virtue of a breach of regulations or more generally, a relevant danger. In that context, her Honour sufficiently dealt with the matters raised by the relevant paragraphs of sub-s.(4), namely paragraphs (a) - (f). In that context I note for completeness that it was not claimed by the respondent that the removal of the ramp would be an undue burden on it. Similarly, I think that it is apparent from her Honour's reasons that, in coming to her impugned conclusion, she had due regard to the appellant's reaction to the presence of the ramp, namely, the perceived need, or the wish, to move to the left.

17 In the circumstances, I would dismiss the appeal.

18 I have had the advantage of reading in draft the reasons for judgment of Chernov, J.A. and the reasons for judgment of Ashley, J.A.

19 Among the matters which fall for consideration in accordance with s.14B(4) of the Wrongs Act 1958, I regard the absence of evidence of any previous fall due to the existence of the ramp as the consideration which tips the balance in favour of the respondent.

20 Accordingly, I would dismiss this appeal on the basis that, on the evidence which was before the judge, her Honour was not wrong to hold that the respondent did not breach its duty of care to the appellant.

21 I have had the advantage of reading the reasons of Chernov, J.A. in draft. The

reasons which follow are, for the most part, founded upon the facts as his Honour has stated them.

22 I agree with his Honour, but for somewhat different reasons, that this appeal should be dismissed. In particular, as will be seen, I would resolve the causation, if it arose, favourably to the plaintiff; whilst my approach to the issue of breach, and his Honour's approach, deviate in some respects.

Matters which were not in issue

23 The defendant, as occupier, owed the plaintiff a duty of care. The duty was to take such care as in all the circumstances of the case was reasonable to see that any person on the premises would not be injured by reason of the state of the premises or of things done or omitted to be done in relation thereto.

24 Of central importance to the plaintiff's case, with respect to the state of the premises, was the presence of what was called the ramp.

25 It was not in dispute that, when descending the stairs, the plaintiff moved laterally to her left as she approached the ramp; that as she moved to her left she let go of the handrail which was on her right-hand side; and that thereafter she missed her footing, and fell.

26 It was not in issue that the existence of the ramp was known to the plaintiff. It was not a concealed hazard. Indeed, the reason why the plaintiff moved to her left was because she knew of its presence.

27 By its defence, the defendant denied breach of duty. In the alternative, it alleged contributory negligence. At trial, the allegation of contributory negligence was not pursued. In the upshot, the defendant could not be taken to have contended that the plaintiff's actions in deviating to her left, and in letting go of the handrail, showed any want of reasonable care for her own safety.

28 It was not really in issue that the stairway in the area of the ramp was poorly designed. That is so regardless whether, as constructed, the stairway in that area breached provisions of the Building Code of Australia 1990, and/or the Building Regulations 1983 and/or the Building Regulations 1994. It was poorly designed because there was no need for a ramp at all, because the ramp intruded beyond the inner edge of the handrail, and because, for a person descending the stairs on the right-hand side, the boundary of the stairs - at one point the wall, at another point the inner edge of the ramp - were about 300 mms out of alignment.

29 It was next beyond debate that the presence of the ramp did not oblige a person who was descending the stairs on the right-hand, and who was holding onto the handrail, to diverge left; or to let go of the handrail. But whilst, as Chernov, J.A. has noted, the ramp only narrowed the width of the stairs by 122mm when taken from the inner edge of the handrail - which itself followed a continuous line - the narrowing of the stairs, in all, was more than twice that distance. That is, as a person descended the stairs, and approached the ramp, the width of the stairs decreased by something in the order of 300mm.

The Plaintiff's case from time to time

30 The plaintiff's case as pleaded and particularized was for the most part non-specific. The exception lay in allegations that the defendant had failed to ensure that the stairwells - plural - at the premises complied with the Building Regulations 1983, the Building Code of Australia 1990, and the Building Regulations 1994.

31 At trial, the plaintiff's case focused upon alleged breaches of the Code and Regulations. It was contended that the effect of the ramp was to create a stairway which was impermissibly narrow, and was such as to create an impermissible obstruction. The plaintiff further contended that a mid handrail should have been provided; and that, in the context of a stairway made dangerous by the presence of the ramp, the steepness of the steps - "high rises and low goings" - accentuated the problem.

32 As a consequence of the way in which the claim was pleaded, particularized, and conducted at trial, a very simple case, not requiring the wisdom of hindsight, was scarcely - if at all - articulated. The case was this: the set-up of the stairs, because of the ramp, was such that it was reasonably foreseeable that a person descending the stairs would move laterally to his or her left. Some persons, not all, use a handrail when descending stairs. That can readily be foreseen. Why hold onto a handrail? To assist in maintaining balance, and to eliminate, or at least greatly reduce, the risk of falling in the event of a stumble or a missed step.[13] In this case the plaintiff moved to her left because of the presence of the ramp. When she did so she let go of the handrail. Thereafter she missed her footing, and fell. As a matter of probability she would not have fallen had she still been holding the handrail.

33 The case not put by the plaintiff at trial was put, in substance, on the appeal. I agree with Chernov, J.A., for the reasons which his Honour gives, that this Court should consider that case. There is, I should add, an additional reason which makes that course appropriate. No issue of credit arose at trial.[14]

Causation

34 In my opinion, in the event that the plaintiff established breach of duty, she should not fail on the issue of causation. If breach was made out, it would consist of the defendant's failure to remove the ramp in circumstances where it was reasonably foreseeable that its presence might cause a person descending the stairs to move left, and in doing so let go of the handrail and so expose such person to unnecessary risk of injury. That is what the plaintiff did, thus losing the prime means of avoiding a fall in the event that she stumbled or lost her footing. I would hold it probable that letting go the handrail, in the circumstances described, was causative of her injuries, loss and damage.

Breach of duty

35 I go to the question of breach of duty.

36 Was it reasonably foreseeable that a user of the stairs, when descending on the right-hand side, might move to the left because of the presence of the ramp, and in doing so let go of the handrail and so expose such person to unnecessary risk of injury? Within that question there are two sub-questions. I will address them discretely.

37 So, first, was it reasonably foreseeable that a stair user might move to the left because of the presence of the ramp? The answer to that question does not depend upon whether a user could have safely descended the stairs without moving to the left; or whether the ramp was a concealed hazard; or whether the ramp should be characterized as an obstruction; or whether a particular user was or was not familiar with the layout of the stairway. Each of those matters might properly be taken into account in determining what was reasonably foreseeable; but in the end the question is whether, in all the circumstances revealed by the evidence, it was reasonably foreseeable that some, not all, users of the stairs might respond to the evident anomaly in the set-up of the stairs in the vicinity of the ramp by moving to their left.

38 I would answer that question in affirmative. That is so for a number of reasons. First, the defendant's expert witness, Mr du Chateau, whose evidence impressed the trial judge, conceded the possibility that the presence of the ramp would cause some users of the stairs to move laterally to their left. Such evidence was compatible with the pertinent evidence of one of the plaintiff's experts, Dr Cubitt. Second, that is what the plaintiff did, and it was not suggested by the defendant that such conduct was aberrant. Third, and relatedly, at trial the defendant disavowed its allegation of contributory negligence - which had been founded upon the plaintiff's conduct immediately before the fall. Fourth, I have thus far assumed that the question admitted of expert evidence. If that assumption was incorrect, I would reach a conclusion favourable to the plaintiff in reliance upon the plaintiff's evidence and the appearance of the stairs and ramp as depicted in photographs which went into evidence.

39 I turn to the second sub-question. Was it reasonably foreseeable that in moving left a user of the stairs might let go of the handrail? I would answer that question in the affirmative.

40 Dr Cubitt, the expert witness whom I mentioned a moment ago, assented to questions that -

"You would normally have ... anything from three inches perhaps to a foot between your body and the handrail?"[15]

"... you could certainly have a foot between yourself and the handrail and not have any problem with the ramp?"

41 But it does not follow, because - let it be assumed - grip could be maintained on the handrail by persons deviating to their left in the vicinity of the ramp, that it was not reasonably foreseeable that some persons might not retain their grip upon it in such circumstances. The first of the two questions noted above really reflects the fact, which I should have thought accorded with observed experience, that some persons who grip a handrail stand closer to it than do others; the corollary being that some persons may release their grip, when at a distance from the handrail, when others will not do so. The evidence of the defendant's expert witness, Mr du Chateau, that "in a normal evacuation or egressing situation the people will stay at a distance from the handrail, a comfortable position" did not tell to the contrary.

42 I should add this: the plaintiff gave evidence of a particular reason why she stood close by this handrail:

"because it's really huge, so you have to get your hand around it."

That evidence was not challenged. It provides an additional reason why it was reasonably foreseeable that some users, particularly people with small hands, might let go of the rail as they deviated away from the ramp.

43 The existence of the ramp, then, giving rise to a reasonably foreseeable risk of injury to the plaintiff,[16] what response, if any, was called for on the part of the defendant? In the ordinary case, that requires consideration, as was said by Mason, J in Wyong Shire Council v Shirt [17] -

"of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action, and any other conflicting responsibilities which the defendant may have."

44 But this case rested on the duty owed by an occupier to an entrant on premises. In such a case, the question whether a defendant has discharged its duty obliges consideration of the matters set out in s.14B(4) of the Wrongs Act - although the sub-section expressly says that those matters do not cover the field.

45 A number of the matters specified in s.14B(4) are an adaptation of circumstances which, under the old law of occupiers' liability, bore upon the content of the duty owed by an occupier to a plaintiff. So, although the duty of care is now expressed, by s.14B(3), in the conventional language of the common law - albeit that it is confined to "the state of the premises or of things done or omitted to be done in relation" thereto - paragraphs (f) and (g) still makes use of the concept of a "danger." That is language apt to the duty owed under the old law by an occupier to an invitee[18] and by an occupier to a licensee[19]. Along the same lines, paragraph (fb) harks back to the question whether an entrant was a trespasser. It is not the point of these observations to suggest that any of the paragraphs, so far as they can be relevant in a particular case, are to be ignored. Indeed, s.14B(4) says that the contrary is the case. But it is to say, in the context of an enquiry whether a defendant has discharged its duty of care to take reasonable care for a plaintiff in respect of the state of premises, that the language of some parts of s.14B(4) should not be read, in effect, to reinstate the old law of occupiers' liability.

46 As it seems to me, paras (a) and (g) of s.14B(4) encapsulate the gist of the enquiry described by Mason J in Shirt. Consideration of the matters there specified is likely to be assisted, though not resolved, by consideration of the matters set out in paras (b)-(fb). I focus first on the matters which the Court must consider by reason of the paragraphs last-mentioned.

Paragraph (b): the circumstances of the entry onto the premises

47 The plaintiff came onto the premises to play bingo, in effect at the invitation of the defendant. She, and hundreds of others, did so regularly. In doing so, many of them, varying considerably in age, used the stairs in question. This had been the situation for months, at least, before the incident in which the plaintiff suffered injury.

Paragraph (c): the nature of the premises

48 The premises was a commercial development, containing the bingo hall, offices, a library and gym. Members of the public regularly entered the premises, and required access to and from the first floor - which was the floor on which the bingo games were played. The stairs formed part of the main public access to the first floor. The construction plans, and the certificate of occupancy, disclosed an intention, from the outset, that bingo was to be played on that floor.

Paragraph (d): the knowledge which the occupier had ... of the likelihood of persons ... being on the premises

49 The necessary corollary of what I have said in connection with paragraphs (b) and (c) is that the defendant knew or ought to have known that many people regularly entered the premises and used the stairs. Having regard to the regularity with which games of bingo were played, I would conclude, as a matter of probability, that the defendant had actual knowledge of the likelihood of many persons being on the premises and using the stairs on most nights. I would so conclude whether or not the defendant itself operated the bingo games. But if there was not actual knowledge, surely the defendant ought to have known of such user of the premises.

Paragraph (e): the age of the person entering the premises

50 The plaintiff was neither old and infirm, as would make the exercise of ordinary care by the defendant insufficient to protect her; nor so young as to be incapable of taking reasonable care for her own safety.

Paragraph (f): the ability of the person entering the premises to appreciate the danger

51 "Danger" should be taken to refer simply to the state of the premises which it is claimed gave rise to the risk of injury. That, relevantly, was the set-up of the stairs in the area of the ramp. It was not in dispute, as I noted earlier, that the plaintiff appreciated the set-up. It was because she had such an appreciation that she moved to her left. It would be wrong, in my opinion, to conclude that this was a circumstance adverse to the plaintiff. To conclude otherwise would tend to revisit the old law of occupiers' liability.

Paragraph (fa): whether the person entering the premises is intoxicated by alcohol or drugs ...

Paragraph (fb): whether the person entering the premises is engaged in an illegal activity

52 Neither of those circumstances was present in the plaintiff's case. Had one or both been present, it would likely tell against a conclusion that the defendant was in breach of its duty of care. But the fact that neither was present does not really operate in a converse way.

53 Pausing for the moment, consideration of the circumstances enquired after in s.14B(4)(b)-(fb) shows that the defendant knew that many people, whose ages varied quite considerably, very regularly used the stairs in the course of their lawful use of the premises, those premises being used for a number of commercial purposes; and that the problem created by the presence of the ramp was apparent to the plaintiff, and caused her to act as she did.

54 Now I go to paragraphs (a) and (g).

Magnitude of the risk/gravity of the probable injury

55 The ramp commenced at the fourth stair above ground level. The stairs, and the floor at ground level, had a tiled surface. From the fourth stair to ground level was a vertical distance of about 75 cms, and a horizontal distance of about 100 cms. The plaintiff suffered significant, but not grossly disabling, injuries. Three other witnesses gave evidence of having fallen on the stairs. Not in every instance was the site of the fall identified. One witness gave evidence of having been taken to hospital. Other than that, the witnesses gave no evidence as to what injuries, if any, they had sustained. I need not consider whether, had they attempted to give such evidence, it would have been admissible.

56 In all, the matter is one which involves a degree of impression. I would conclude only that a fall over a distance of some feet onto a hard surface, or perhaps striking the hard edge of a stair in the course of a fall, might cause significant injuries; but that such a fall would not always do so.

The degree of probability of occurrence of the risk/the likelihood of the probable injury

57 The premises were built in the latter part of 1992 and in early 1993. A certificate of occupancy was issued on 19 March 1993. It appears that the stairway was constructed, and remained throughout, in the impugned form. As I understand it, the stairs were in constant use from when the premises were first occupied. There was specific evidence that many bingo players had been regularly using the stairway for months at least before the plaintiff was hurt. There was evidence that, over a period of time, there had been falls on the stairs; but not many, and none of them clearly related to the presence of the ramp. In all, notwithstanding that there was a foreseeable risk of injury by reason of the set-up of the stairs in the vicinity of the ramp, the probability of its occurrence should be accounted low.

The expense, difficulty and inconvenience of taking alleviating action/the burden on the occupier of eliminating the danger or protecting the person

58 The risk of injury created by the set-up of the stairs in the vicinity of the ramp could readily have been alleviated. The ramp was unnecessary. The end of the handrail could have been supported by a steel column with or without a (glass) balustrade in-fill. It was not suggested in the evidence that to remove the ramp, and to set up the handrail in the way described, would have been either a lengthy or costly operation. The way that the job was described by Dr Cubitt strongly suggests the contrary.

59 In all, as I see it, the situation was one in which a stairway which was very regularly used by many people of different ages contained a structural anomaly which carried with it a low risk of injury. Injury, if it occurred, could be, but would not always be, significant. The anomaly creating the risk could have been removed easily, and at no great cost. Balancing those circumstances, which tend in different directions, is not easy. But in the end, undertaking the balancing exercise, it seems to me that the quite long history of use of the premises, without (there being evidence of) a fall attributable to the risk which the anomaly created, tells against a finding that the defendant breached the duty of care which it owed the plaintiff. So to conclude, I should add, is not to suggest that plaintiff's counsel did not make a number of telling criticisms of particular findings made by the learned trial judge; and of her Honour's failure to address, discretely, the matters made relevant by s.14B(4) of the Act. Further, it may be said with some force that the criticisms are not answered by the plaintiff's case at trial and on appeal having diverged in the way that it did. But in the end, considering the plaintiff's case as it was advanced on the appeal, those criticisms do not yield a conclusion, upon the question of breach, favourable to the plaintiff.

Orders

60 I would dismiss the appeal.

[1] Hunter v. Transport Accident Commission [2005] VSCA 1 at [21] per Nettle, J.A.

[2] See, for example, Whisprun Pty Ltd v. Dixon [2003] HCA 48; (2003) 77 A.L.J.R. 1598 at 1608 per Gleeson, CJ., McHugh and Gummow, JJ.

[3] See Whisprun at 1608.

[4] [1980] HCA 12; (1980) 146 C.L.R. 40 at 47-48 (with whom Stephen and Aickin, JJ. agreed).

[5] See Wyong Shire Council at 47-48 per Mason, J.

[6] See, for example, Neindorf v. Junkovic [2005] HCA 75; (2005) 80 A.L.J.R. 341 at 360-361 per Hayne, J.

[7] See s.14B(4)(f) of the Act.

[8] At 361.

[9] His Honour's emphasis.

[10] At 361-362.

[11] Emphasis added.

[12] [1995] HCA 5; (1995) 182 C.LR. 1 at 6. See also Kocis v. S.E. Dickens Pty Ltd [1998] 3 V.R. 408 at 410 per Ormiston, J.A.

[13] That was expert evidence to this effect. But it is hardly a matter requiring expert evidence.

[14] The judge's mild criticism of the plaintiff's evidence at para [39] of her reasons does not tell to the contrary.

[15] The cross-examiner put a similar question to another expert witness called for the plaintiff, Mr Wadsworth. But on this occasion the cross-examiner referred to "anything from six inches to maybe even a foot, perhaps even a bit ... further away from the handrail."

[16] Or to a class of persons of whom the plaintiff was one.

[17] [1980] HCA 12; (1980) 146 CLR 40 at 47-48.

[18] A duty to use reasonable care to prevent damage from unusual danger, which the occupier knows or ought to know.

[19] A duty to warn only of concealed dangers or traps known to the occupier.