Springfield v Duncombe

Court of Appeal (NSW)|2017-06-06|Before: Basten JA, Adamson J

Solicitors: Brydens Law Office (Appellant) Hall & Wilcox Lawyers (Respondent) File Number(s): 2016/270159 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 12 August 2016 Before: Balla DCJ File Number(s): 2014/210081

Judgment

BASTEN JA: The appellant fell and injured herself severely at some point in negotiating a passage from her sister's apartment to that which she occupied, in a house owned by the sister. The trial judge, Balla DCJ, dismissed the claim because she was not satisfied that the appellant (the plaintiff in the District Court) had established the mechanism by which the injury came about. The injury being a severe blow to the head, the appellant appears to have suffered a degree of amnesia and was unable to explain what had happened.
For the reasons given by Adamson J, with which I agree, the appeal must be dismissed, with costs. I would add the following further observations.

Duty of care

Whether or not it is correct to describe duty as "an unnecessary fifth wheel on the coach", [1] the concept is at present firmly established as a necessary element of a claim in negligence. That is despite the fact that statutory provisions, such as the Civil Liability Act 2002 (NSW), s 32 (dealing with mental harm) and s 5M (dealing with warnings of risk to those engaged in recreational activities), impose limits on the circumstances where a duty of care can arise. The purpose of the requirement, under the general law, is to focus upon the relationship between the parties. Particular problems arise in relation to the imposition of a duty of care, potentially giving rise to liability and damages, between members of a family unit who cohabit in particular premises. Such a question arose in Hoffmann v Boland. [2]
In the present case, the respondent sought, by a notice of contention, to resist the proposition that she owed a duty of care to her sister.
In circumstances where, to the extent that there was a risk of injury, the risk (due to the absence of a balustrade) was evident to all three sisters and was discussed by them, the only basis for imposing a duty on the respondent was because she was the owner of the premises. As a matter of law, that was true; however, there was nothing to suggest that the absence of the balustrade flowed from her failure to construct one, or to consent to its construction. On the contrary, the limited evidence supported a finding that the possibility of a rail between the two wooden steps and the garage had been considered, but rejected for reasons of convenience. In those circumstances, it was entirely artificial to describe the respondent as owing to her sister a duty of care with respect to the very matter which had been discussed and rejected.
The situation might, of course, be different if any of the variables were different. For example, each of the sisters had lived in the premises for many years and were aware of the relevant features. Further, the risk said to have materialised was not a hidden risk or one which the owner of premises might be expected to have professionally assessed; it was patent and was understood by both the appellant and the respondent.
In my view the claim should have failed because the appellant failed to establish a duty of care with respect to the physical condition of the wooden steps.

Mechanism of fall

Whether by reference to the content of a putative duty, or a consideration of breach, s 5B(1) of the Civil Liability Act assumes that what has been identified is "a risk of harm", against which a reasonable person would have taken identifiable precautions. Further, s 5D requires a finding that the negligent failure to take precautions "caused particular harm", in the sense that it was "a necessary condition of the occurrence of the harm".
The difficulty, identified by the trial judge, of identifying the mechanism of fall made it difficult, to say the least, for the appellant to establish a cause of action. Let it be assumed, as appeared to be the primary case for the appellant, that she lost her balance or her footing in undertaking the awkward action of closing the door behind her, while standing on the higher of the two wooden steps. If there had been a "balustrade", or rail, on the side of the steps next to the garage, it is by no means more probable than not that it would have prevented the appellant's fall. Whether or not the injury was caused by hitting the wheel of the car is not known; if she had hit her head on the tiled edge of the step, or on the garage floor, a similar injury could have arisen.
An alternative hypothesis was that she might have used the additional handrail to support herself while she turned to close the door behind her. Even then, because the mechanism of the fall is not known, it is also not known whether she would have used the additional handrail in that way, or whether it would have prevented her losing her balance.
In addition to the authorities referred to by Adamson J, it is apt to note the observation of Dixon CJ in Jones v Dunkel: [3] "It is possible of course to say that if you have an empty diesel truck coming down a winding road on the outside at thirty-five miles per hour and an International truck going up the road on the inside at twenty-five miles per hour, the former is more likely than the latter to be over the centre line of the road on its wrong side. But that is only to say that of two guesses one is more probable than another. It may be remarked that these are not the only two guesses open as to the cause of the accident. But in any case we are not concerned with a choice among rival conjectures. In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true that 'you need only circumstances raising a more probable inference in favour of what is alleged'. But 'they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture'." [4]
The appellant failed at trial on this basis. There was no error on the part of the trial judge in failing to attain the relevant state of satisfaction.

Nature of a rehearing

Both the appellant and the respondent, represented by experienced senior counsel, appeared to assume that, there being no real issue as to the credibility of any witness, this Court was able, on an appeal by way of rehearing pursuant to s 75A of the Supreme Court Act 1970 (NSW), to draw its own inferences based on the evidence at trial and, if it considered a particular inference drawn by the trial judge to be erroneous, to uphold the appeal on that basis.
The Victorian Court of Appeal recently adopted a more constrained approach in Melbourne City Investments Pty Ltd v UGL Ltd. [5] The case involved a challenge by way of appeal from the decision of a trial judge not to recuse himself. The application for recusal was based on the judge's own unqualified earlier comments and statements concerning the applicant; the ground on which recusal was sought was a reasonable apprehension of pre-judgment. The Court noted [6] that the applicant had accepted that the reasoning of the High Court in Robinson Helicopter Company Inc v McDermott [7] applied. The Court continued: "In Robinson Helicopter, the High Court held that it would be wrong for a Court of Appeal to interfere with a judge's findings of fact unless they were demonstrated to be wrong by incontrovertible facts or uncontested testimony, were glaringly improbable, or were contrary to compelling inferences." The Court, having held that the applicant had not established that the impugned findings were erroneous in the relevant sense, declined to consider afresh the recusal application. [8]
Although no similar argument was mounted in this Court, I would not accept the uncontested assumption relied on in Melbourne City Investments. The relevant passage in Robinson Helicopter was in the following terms: [9] "The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A court of appeal conducting an appeal by way of rehearing is bound to conduct a 'real review' [10] of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. [11] But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', [12] or they are 'glaringly improbable' or 'contrary to compelling inferences'. [13] In this case, they were not. The judge's findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences. The majority of the Court of Appeal should not have overturned them." [14]
It is the italicised passage, which appears to operate as a principle of general application, which raises an important issue. If applied read in isolation, it might be seen to depart from the approach to appeals by way of rehearing, as determined in Warren v Coombes. [15] In Fox v Percy, [16] in one of the passages referred to in Robinson Helicopter, Gleeson CJ, Gummow and Kirby JJ stated: "In Warren v Coombes, [17] the majority of this Court reiterated the rule that: '[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.'"
It is apparent from the reliance in Robinson Helicopter on Fox v Percy at [25] that when referring to "findings of fact" the High Court was referring to findings of primary fact and not inferences drawn from those facts. In the second reference to Fox v Percy, namely where error is demonstrated by "incontrovertible facts or uncontested testimony", [18] the full passage was as follows: "In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings."
The second reference to findings being "glaringly improbable" or "contrary to compelling inferences" was sourced from the following passage in Fox v Percy: [19] "In some, quite rare, cases, although the facts fall short of being 'incontrovertible', an appellate conclusion may be reached that the decision at trial is 'glaringly improbable' or 'contrary to compelling inferences' in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must 'not shrink from giving effect to' its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process."
The joint reasons in Fox v Percy proceeded to warn against over-reliance on the appearance of witnesses in deciding factual disputes. [20]
Where, as in the present case, no finding was based upon a determination of credibility, nor on any particular advantage enjoyed by the trial judge, it was open to the appellant to seek to disturb the findings, most of which were in fact based on inference, although she has failed in that exercise. To the extent that Melbourne City Investments suggests that challenges to inferential reasoning, or the characterisation of particular circumstances by reference to a legal standard, must be reviewed only on some constrained approach, inconsistent with Fox v Percy and Warren v Coombes, I would not understand Robinson Helicopter to support such an approach.
EMMETT AJA: The question in this appeal is whether the appellant, Ms Gemma Springfield, is entitled to recover damages from her sister, Ms Paula Duncombe, in respect of serious injury suffered by Ms Springfield when she fell in a house owned by Ms Duncombe. Ms Springfield sued Ms Duncombe in the District Court of New South Wales, claiming damages on the basis that Ms Duncombe, as owner and occupier of the house, owed her a duty of care and that Ms Duncombe was in breach of that duty and was negligent.
On 12 August 2016, for reasons published on that day, a judge of the District Court of New South Wales (the primary judge) concluded that there was no breach of duty or negligence on the part of Ms Duncombe and found a verdict for Ms Duncombe. Ms Springfield filed notice of intention to appeal on 8 September 2016 and filed a notice of appeal on 11 November 2016. She filed an amended notice of appeal on 27 March 2017.
The primary judge had directed that the question of the quantum of any damages to which Ms Springfield might be entitled be deferred until after the question of liability had been determined. Accordingly, her Honour made no determination of quantum. There was evidence before this Court that the quantum of damages to which Ms Springfield would be entitled, if she succeeded in her action, would exceed the sum of $100,000. Accordingly, leave to appeal is not required. [21]
Ms Springfield suffered her injury in a house in which she and her sisters, Ms Duncombe and Ms Maria Decia lived. The house has two levels. Ms Springfield lived in the lower level and Ms Duncombe and Ms Decia lived in the upper level. Access to the upper level is gained by an internal staircase from the garage adjacent to the lower level. Ms Springfield was accustomed to having her evening meal in the upper level with her sisters. That involved her ascending the staircase before dinner and descending the staircase after dinner.
The staircase consists of two sections, separated by a doorway. The upper section is from the upper level, where Ms Duncombe and Ms Decia lived, and leads down to the landing before the doorway. That section of the staircase is carpeted. A handrail is attached to the wall on the left hand side of the staircase descending. The lower section is from the doorway and leads to a tiled landing, which forms part of the garage floor. The lower section consists of two uncovered timber steps. There is a handrail on the right hand side descending the timber steps. At the time of the incident, there was no balustrade or other railing on the left hand side of the timber steps, which were open to the garage.
On 16 July 2011, Ms Springfield had her evening meal with her two sisters in the upper level. She then proceeded to descend the staircase by herself. Shortly after she had gone downstairs, Ms Decia heard Ms Springfield scream "Maria" very loudly. Ms Decia descended the staircase to the doorway at the landing, which was closed. She opened the door and saw Ms Springfield lying against the car that was parked in the garage. Ms Decia said that Ms Springfield was bleeding quite profusely. The left side of her head had impacted with a bolt on the front offside wheel of the car, which was not covered by a hub cap. The car was approximately 80 to 100 cm from the side of the timber steps. Ms Springfield's body was bent and her legs from the knees down were under the timber steps.
Ms Springfield was unable to give evidence as to the circumstances of her fall. It was, therefore, a matter of conjecture and speculation as to the mechanism of her fall and the cause of it. Ms Springfield's case before the primary judge was essentially that Ms Duncombe was negligent because she was aware that the timber steps were dangerous and failed to install a balustrade on the side of the steps facing the garage.
The hypothesis advanced to her Honour was that it would be normal for a person in Ms Springfield's position to turn around and hold on to the handrail with her left hand and pull the door closed with her right hand. In that situation, the person would be on the top step with his or her back facing towards or half way towards the side of the steps. The hypothesis was that Ms Springfield must have been in that position and that she lost her balance or footing in some manner and fell to the floor of the garage.
The primary judge declined to draw two inferences that counsel for Ms Springfield invited her Honour to draw. The first inference was that Ms Springfield fell from the timber steps. The second inference was that Ms Springfield's fall was caused by or contributed to by a defect in the timber steps. Her Honour considered that the evidence gave rise to conflicting inferences of equal degrees of probability in relation to each of those two issues.
The primary judge considered that, having regard to the evidence given by Ms Decia, a fall from the tiled landing at the bottom of the timber steps was equally likely. Her Honour accepted that an elderly user of the timber steps would need to exercise caution, particularly while closing the door. However, her Honour was satisfied that Ms Springfield had significant mobility issues at the time of her fall and that an existing issue with one of her knees could have resulted in her fall. Further, her Honour found that there was insufficient evidence to support a finding that it was likely that Ms Springfield descended the stairs in the manner advanced. [22]
The grounds of appeal relied on by Ms Springfield were in two categories. First, it was said that the primary judge failed to give adequate reasons for deciding that the evidence gave rise to inferences of equal degrees of probability; misdirected herself as to the burden of proof; and failed to evaluate Ms Springfield's case by reference to the probabilities and available inferences. Second, it was said that the primary judge misunderstood the significance and relevance of the injury sustained being consistent with the mechanism of fall contended for by Ms Springfield; failed to have regard to the whole of the evidence bearing on the mechanism of injury; erred in failing to find that the positioning of the door in relation to the timber steps constituted a defect in the stairs; and erred in failing to find that a fall from the steps was more likely than not to have been the explanation for the injury.
I have had the advantage of reading in draft form the proposed reasons of Adamson J. I agree with her Honour that there was no error on the part of the primary judge in concluding that there was no negligence on the part of Ms Duncombe. Accordingly, I agree with Adamson J that the appeal must be dismissed with costs.
ADAMSON J: Gemma Springfield (the appellant), by Maria Decia (as tutor), appealed against the judgment in favour of Paula Duncombe (the respondent) ordered by Balla DCJ on 12 August 2016. The Court was notified on 5 June 2017 that Ms Decia had died. On 6 June 2017 Mr Sheldon SC, who appeared for the appellant with Ms Welsh, filed a consent to act as tutor signed by David Springfield, who replaced Ms Decia as tutor.

The appellant's claim

The appellant claimed damages for negligence against the respondent in the District Court arising from a fall which occurred on 16 July 2011, as a result of which the appellant suffered injuries when her head struck a vehicle which was parked in a garage. Her Honour ordered that the issue of liability be determined ahead of damages.

The facts

At around the time of the fall, the appellant was coming down stairs from the first floor of a dwelling to a garage, before ascending stairs to her own home, which was on the ground floor of a two-storeyed house in Dee Why which she occupied with her two sisters, the respondent (who owned the property) and Ms Decia.
The dwelling had been constructed some decades before as a single-storeyed home. In 1982 a storey was added. In about 2000 the respondent purchased the residence. Initially Ms Decia and her husband lived on the first storey and the respondent lived on the ground floor. Later, after the death of Ms Decia's husband, the respondent and Ms Decia together occupied the first floor of the dwelling. In 2006 the appellant moved in to the ground floor.
The appellant's residence had two points of access: through the front door and from the garage through the laundry. The sole means of access to the dwelling on the first floor was through the garage. Two wooden stairs led from a tiled landing just above the level above the garage floor to a door, which in turn led to a carpeted stair case which went up to the first floor. The set of stairs from the landing to the door had, on the left going up, a handrail affixed to the wall which had been installed after the respondent purchased the residence because Ms Decia suffered from vertigo. There was no balustrade on the right side of the set of stairs, which was open to the garage floor.
On 16 July 2011, at about 5.30pm, the appellant, who was then aged 76, had climbed the stairs to her sisters' residence for the evening meal, as she generally did. She had dined and drunk at least one glass of wine. She descended the carpeted stairs, came to the door, opened it, passed through the doorway to the timber stairs and closed the door behind her. She screamed out, "Maria". Ms Decia came down the stairs and found the door between the carpeted staircase and the wooden stairs in the garage to be shut. She opened the door and discovered the appellant lying on the floor of the garage beside the steps, a pool of blood around her head and her legs, from the knees down, curled under the stairs. Blood had pooled within the rim of the wheel, the bolt and the area underneath.
Ms Decia said that the left side of the back of the appellant's head had struck a bolt on the front driver's side wheel which was not covered with a hub cap. The wheel of the car was between 80cms and 1m from the open side of the wooden steps. Ms Decia called an ambulance. The appellant's son, Morris, arrived not long after the ambulance and saw his mother on the floor of the garage. The appellant told the ambulance officers that she had no recollection of the incident although she denied falling and said that there was no loss of consciousness. The ambulance officers assessed the appellant's score on the Glasgow Coma Scale as 14/15. The ambulance took her to Royal North Shore Hospital. The hospital notes recorded that the appellant was "unable to recall the events".
The respondent, who did not come downstairs during the immediate aftermath of the accident, did not give evidence at the trial.
Ms Decia, who suffered from vertigo, gave evidence that it was her usual practice to stay close to the handrail on the wall when descending the stairs into the garage. She used to hold onto the handrail with her right hand before using her left hand to close the door to the carpeted stairway. There was no evidence as to how the appellant usually descended the stairs.
The appellant's son, Morris, gave evidence that he had had a "handful" of discussions with his mother about installing a rail on the open side of the stairs to make it easier for all three sisters to get up and down the wooden stairs. He said that the respondent was present for "a couple" of those discussions. Ms Decia denied that there had ever been discussions between herself and the respondent about putting a handrail on the open side of the stairs.

Expert evidence

The appellant relied on the evidence of Mr Adams, who identified various deficiencies in, and associated with, the staircase. As appears from the following passages Mr Adams was unable to determine from the appellant's position on the floor of the garage after the fall, from which point on the stairs or the landing or the floor the appellant fell: "1.2 In relation to identifying a specific location from which Ms Springfield's fall might have been initiated, there is nothing in the medical reports, and nor did I observe anything at the time of my second inspection, that would enable me to express a firm opinion in that regard. . . . 1.3 A person who falls on a level surface can sustain traumatic head injury if they fall in a manner that results in their head absorbing a significant proportion of the impact forces - a fact that is exemplified by the recent well-known instances of people involved in so-called single punch attacks where the victim falls and hits the ground with sufficient force to cause serious damage, including death. The fact that Ms Springfield sustained a traumatic head injury does not of itself demonstrate that she must have fallen from one or the other of the steps. 1.4 . . . Although these measurements and assumptions demonstrate that there could have been sufficient space for Ms Springfield to fall to the floor of the garage with a car parked in the garage, they do not necessarily indicate that she must have fallen from one or the other of the steps."
Both Mr Adams and Dr Cooke, who was called on behalf of the respondent, accepted that, if the appellant had fallen off the open side of the wooden stairway, a balustrade would have prevented her from falling in the way she fell.

The appellant's case at trial

The appellant's case at trial was confined to the lack of a balustrade on the open side of the wooden stairs. It was common ground that no applicable building regulation required a balustrade to be installed. The appellant submitted that the duty of care which the respondent owed to her required the respondent to take reasonable precautions against the risk of harm by installing a balustrade.

The trial judge's reasons for decision

Her Honour noted that the appellant had told a number of people that she had no recollection of the fall, including the ambulance officers; the hospital staff; and Dr Selwyn Smith, a consultant physician, on 1 September 2015. Dr Smith recorded in his report: "Ms Springfield [the appellant] reported that she has no memory of the accident. Information in regard to the accident was provided by her son, David Springfield. Her son described the events as 'an accident about to happen'. He reported that his mother fell down a flight of stairs that had no hand railing. She fell approximately 2 ft onto a cement garage floor. Her head also impacted a vehicle in the garage."
Her Honour also referred to the plaintiff's history to Ms Beaver, an occupational therapist, in November 2015 that she only had a poor recollection of the period of her hospitalisation following the event.
Mr Adams, the appellant's liability expert, attended the residence on 16 November 2012 and recorded the following in his report of 8 January 2013: "2.1.3 Mrs Springfield walked down the upper carpeted sections of the stairway without incident. She does not have a clear recollection of ensuing events, but believes that she was part way through the process of stepping down onto the bare timber steps and then closing behind her the door that is situated between those two steps and the landing at the foot of the longer carpeted stairway when she lost her balance and fell off the side of the lower timber stairway. She landed on the concrete floor of the garage that is situated beside that stairway, and apparently struck her head, either on the car that was parked in that area or the garage floor (and perhaps both). 2.1.4 Mrs Springfield apparently called out as she was falling. Shortly afterwards she was found unconscious on the garage floor by her sister. . ."
The appellant, whose condition had deteriorated before the trial, did not give evidence at the trial. She had moved to a nursing home in March 2016. The trial judge found that there was no reliable evidence from the appellant as to the circumstances of her fall and noted that it was not witnessed. The trial judge said: "I decline to find that it necessarily occurred as she described to Mr Adams."
There was evidence at the trial of the appellant's having difficulty with mobility in the months leading up to her fall because of her knees. The trial judge referred to a history given to Dr Coolican, an orthopaedic surgeon, that the plaintiff had developed osteoarthritis in her right knee which had been particularly bad in the previous six months, the left knee having been replaced some years previously as a result of an old skiing accident. He recorded that the appellant suffered pain in the medial side and that she was particularly troubled by stairs or slopes, which meant that she was "quite disabled in her right knee", which required arthroplasty. On 2 August 2010, the procedure was deferred as a result of infections. Dr Barclay reported on 27 January 2011 that the appellant was unable to walk on stairs. Dr Lau, a cardiologist, noted on 21 March 2011 that the appellant had suffered atrial fibrillation but was now mobile around the home with her walking stick.
Her Honour rejected the submission that the appellant must have been facing towards the wall when she fell backwards over the stairs onto the garage floor. Her Honour said that although there was evidence that this was how Ms Decia descended the stairs (because of her vertigo) there was no evidence that this was the technique used by the appellant. Her Honour also rejected the appellant's submission that an inference ought be drawn from the severity of the injuries that the appellant had fallen from the wooden stairs rather than from the tiled landing at the foot of the wooden stairs. Her Honour found: "There is no expert evidence linking the position of the plaintiff's body with the likely point from which she had fallen."
The trial judge also found: "In the absence of expert evidence I decline to find that the plaintiff's head injury is more consistent with a fall from a height onto the wheel and the protruding bolt than a fall from the tiled landing."
The trial judge found that the position of the appellant's feet under the stairs meant that she must have moved after she had been injured.
Her Honour considered the following three inferences (for which the respondent at trial had contended) to be open on the evidence as to the mechanics of the appellant's fall: 1. Her right knee gave way as she was going down the wooden stairs; 2. She could not manage the stairs without the use of her walking stick; or 3. Due to her physical infirmities she simply missed the step and fell.
The trial judge refused to draw an inference adverse to the respondent on the basis of Jones v Dunkel (1959) 101 CLR 298 since her Honour found that it was not suggested that the respondent came down the stairs immediately after the accident.
The trial judge was not satisfied that the appellant had fallen from the wooden stairs as distinct from the tiled landing at the foot of the wooden stairs and was, accordingly, not satisfied that her fall was caused, or contributed to, by a defect in the stairs. In these circumstances the trial judge did not find it necessary to determine whether there were discussions with the respondent about installing a balustrade on the open side of the timber stairs.
Her Honour ordered judgment for the respondent.

The grounds of appeal

Of the grounds identified in the notice of appeal, the appellant pressed the following: 1 Her Honour failed to give adequate reasons for deciding that the evidence gave rise to inferences of equal degrees of probability. 2 Her Honour misdirected herself as to the burden of proof. 3 Her Honour misunderstood the significance and relevance of the injury sustained being consistent with the mechanism of fall contended for by the appellant and failed to have regard to the whole of the evidence bearing on the mechanism of injury. 4 Her Honour failed to evaluate the appellant's case by reference to the probabilities and available inferences. 5 Her Honour erred in failing to find that the positioning of the door in relation to the timber stairs created a risk of a person losing their balance and was a defect in the stairs. 6 Her Honour erred in that, having found that the stairs needed caution, as between the stairs and landing the former was more, and most, likely to have caused the plaintiff to fall.

Ground 1: alleged failure to give reasons regarding competing inferences

The appellant argued that the evidence gave rise to inferences that, in descending the stairs a person would be exposed to the risk of having to position themselves on the wooden stairs so as to be able to reach the door handle, which would cause the person to move to the unguarded edge of the stairs in order to close the door. She submitted that this scenario, and the risk it posed, made it more probable that she fell from the stairs as distinct from the landing. It was contended on behalf of the appellant that this hypothesis was more likely because of the presence of blood in the tyre rim and her position on the ground. The appellant also argued that because falling down stairs was "more likely to lead to misadventure" than walking on a tiled floor, the trial judge ought to have reasoned that the stairs were probably the cause of the fall rather than that it occurred on the tiled landing at the foot of the wooden stairs, which was flat ground.
The appellant further submitted that there was no evidence that the appellant's physical infirmities had ever caused her to fall before or that, whatever the difficulties with her knees, either had ever given way before.
I discern no inadequacy in her Honour's reasons for not being satisfied that the lack of balustrade probably caused the appellant's injuries. As appears from the reasons in respect of the balance of the grounds, her Honour identified the competing inferences and concluded that the evidence was insufficient to infer that the lack of balustrade was causative.

Ground 2: alleged misdirection as to the burden of proof

The appellant argued in support of ground 2 that the trial judge had erred in saying that she "declined to find that it [the accident] necessarily occurred as she [the appellant] had described to Mr Adams". The appellant submitted that, by using the word, "necessarily", the trial judge had imposed a standard which required proof beyond reasonable doubt, rather than the applicable standard, being the balance of probabilities.
I regard the finding by the trial judge as amounting to no more than a finding that the version given by the appellant to Mr Adams was one of a number of possibilities. The respondent's counsel objected to the evidence in Mr Adams' report of the plaintiff's statement being admitted as to the truth of the contents. The trial judge admitted the statement on the limited basis of the fact that it was made, as distinct from the truth of its contents.
It is plain from the reasons that the trial judge accepted the contemporaneous accounts given by the appellant that she had no memory of the accident and regarded the statements made by the appellant to Mr Adams as being no more than conjecture by someone who neither knew nor recalled why she had fallen. In this context, I regard her Honour's use of the word "necessarily" as meaning that it could have happened the way the appellant described but it might not have. As the accident was unwitnessed, the appellant had no recollection and the balance of the evidence was not sufficient either to corroborate the version given by the appellant or to weigh the balance in favour of other hypotheses, this finding has not been shown to be erroneous.

Grounds 3 and 4: alleged failure to appreciate the significance and relevance of the injury sustained to the mechanism of fall; and alleged failure to evaluate the appellant's case by reference to the probabilities and available inferences

The appellant contended that her Honour was in error in failing to find that her injuries were caused by a fall from the stairs by concluding that they were not inconsistent with a fall from the tiled landing. It was argued on behalf of the appellant that a fall from the stairs was more likely than a fall from the landing because closing the door when descending the stairs required an awkward manoeuvre. The appellant also argued that the possibility that her mobility problems were causative of the fall was no more than speculation. She submitted that the trial judge failed to use inferential reasoning to evaluate the relative probabilities of the facts for which the appellant contended.
I am not persuaded that there was any error in the way the trial judge considered the circumstances surrounding the fall to determine whether the cause or mechanism of the fall had been established, with a view to ascertaining whether the respondent was liable in negligence.
The trial judge was required to consider all relevant evidence in order to determine, if the evidence permitted, an inference to be drawn as to the probable cause of the fall. On the state of the evidence, her Honour was unable to do so. Her Honour considered it to be of significance that the door was closed when Ms Decia descended the stairs in answer to the appellant's cry for help, since it could be inferred that the appellant had safely negotiated the carpeted stairs and gone through the door and closed it before she fell. Her Honour did not consider that any conclusion could be drawn from the position of the appellant on the ground as to the mechanism of the fall since she must have moved after her fall in order for her feet to be under the stairs. In any event, having regard to the evidence of Mr Adams, it was not open to the trial judge to infer from the appellant's position on the garage floor how, or from what point, she fell.
The appellant's submissions appear to proceed upon a misapprehension of the relevance of risk. It does not follow from the fact that there may be a greater risk of falling by reason of the lack of balustrade that the appellant probably fell because there was no balustrade. To draw such an inference would elide the distinction between risk and causation.
The question of causation is provided for by ss 5D and 5E of the Civil Liability Act 2002 (NSW). Section 5E confirms the common law position that the persuasive onus of proof of causation lies at all times with the plaintiff. In Roads and Traffic Authority v Royal (2008) 82 ALJR 870; [2008] HCA 19 the High Court reviewed the authorities on the relationship between causation and risk of harm: [143] It remains a requirement of the law that a plaintiff prove that a defendant's conduct materially caused the injury. Nothing said in Betts detracts from that requirement, which forms the basis for the restatement of the test of causation in March. The question whether there is no real distinction between breach of duty and causation, and the question whether a failure to take steps which would reduce a risk amounts to a material contribution to the injury, have been discussed elsewhere in connection to a possible shift in the onus of proof. No decision of this court holds that there is that equivalence or some lessening of the requirement of proof. As the majority in Bennett observed, they are questions which have not been considered by this court. [144] The present state of authority does not accept the possibility of risk of injury as sufficient to prove causation. It requires that the risk eventuate. Kitto J in Dunkel said that one 'does not pass from the realm of conjecture into the realm of inference' unless the facts enable a positive finding as to the existence of a specific state of affairs. Spigelman CJ pointed out in Seltsam, with respect to an increased risk of injury, that the question is whether it did cause or materially contribute to the injury actually suffered. This inquiry is consistent with the commonsense approach required by March." [Footnotes omitted.]
The High Court said in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [45] and [104] that in order to discharge the persuasive onus of causation, in a case of breach of duty of care by failing to take a particular step (in the present case, by failing to install a balustrade), the plaintiff must prove that the taking of such step would, more probably than not, have prevented or minimised the injury which was in fact received.
In Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 318 (which was cited with approval in Roads and Traffic Authority v Royal at [144]) this Court held that a defendant who negligently exposes a plaintiff to risk of injury or damage, will not be liable unless the plaintiff can persuade the trier of fact that it was probable the risk came home.
I am not persuaded that the trial judge was in error in not being satisfied as to the mechanism of the fall. Since the appellant could not establish the point from which she fell, she could not prove that the lack of a balustrade to guard the open side of the wooden stairs had any bearing on her injuries. Thus, she could not establish that the risk of injury to which she was exposed by the lack of balustrade "came home" when she fell.

Ground 5: alleged error in failing to find that the position of the door in relation to the timber stairs created a risk of a person losing their balance and was a defect in the stairs

The appellant relied on the trial judge's finding that the position of the door gave rise to a foreseeable risk of injury and contended that this finding ought to have informed the probabilities. The appellant also argued that the trial judge ought to have drawn an inference adverse to the respondent by reason of the fact that she did not give evidence at the trial.
The principal difficulty for the appellant in establishing this ground is that the evidence was that the door was closed when the appellant fell. I am not persuaded by Mr Sheldon's submissions that this was not a material circumstance. In my view, it followed from the door having been closed that the appellant had successfully negotiated the carpeted stairs, opened the door that led to the timber stairs and closed the door behind her before she fell. Had the door been ajar when the appellant fell, then it might have been inferred that the appellant fell from the timber stairs (or even the carpeted stairs) rather than from the tiled landing at the foot of the timber stairs. The fact that the door was closed made irrelevant any increased risk that might have arisen by reason of the presence of the door.
Her Honour did not draw an inference adverse to the appellant because the uncontroverted evidence was that the respondent had not come down the stairs in the immediate aftermath of the fall and therefore was not in a position to give relevant evidence about the underlying facts that could have illuminated the mechanism of the fall.

Ground 6: alleged error in failing to find that the appellant fell from the stairs when the trial judge had found that caution was required to negotiate the stairs

I regard ground 6 to be merely a restatement of grounds 4 and 5 and to reveal the same misapprehension. Whatever care was required to negotiate the transition between the carpeted stairs and the timber stairs by reason of their configuration, the configuration at the juncture was not shown to be causative of the fall since the appellant had gone through the door and closed it before she fell. Moreover, for the reasons given above, no inference could be drawn that the appellant had fallen from the stairs.

Conclusion and proposed orders

I am not satisfied that the appellant has established any error in the trial judge's factual findings. Accordingly, it is not necessary to consider the respondent's notice of contention. I propose the following orders: 1. Appeal dismissed. 2. Order the appellant to pay the respondent's costs of the appeal.

Endnotes

Buckland, "The Duty to Take Care" (1935) 51 LQR 637 at 639.
[2013] NSWCA 158; (2013) Aust Tort Rep ¶82-134.
(1959) 101 CLR 298 at 304-305; [1959] HCA 8.
As Dixon CJ noted, the phrases were taken from Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5.
[2017] VSCA 128 (Warren CJ, Tate and Whelan JJA).
Melbourne City Investments at [90].
[2016] HCA 22; 90 ALJR 679.
Melbourne City Investments at [106].
Robinson Helicopter at [43].
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [25] (Gleeson CJ, Gummow and Kirby JJ).
Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78 at 479-481 (Deane and Dawson JJ); Fox v Percy at [29]; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31 at [76] (Heydon, Crennan and Bell JJ).
Fox v Percy at [28].
Fox v Percy at [29]. See also Miller & Associates at [76].
Emphasis added; footnotes in original.
(1979) 142 CLR 531; [1979] HCA 9.
(2003) 214 CLR 118; [2003] HCA 22.
Warren v Coombes at 551.
Fox v Percy at [28].
Fox v Percy at [29] (footnotes omitted).
Fox v Percy at [30]-[31].
District Court Act 1973 (NSW), s 127(2)(c)(i).
See [10] above.

Amendments 16 June 2017 - Paragraph [69] quotation "stairs" corrected to "steps" 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: 16 June 2017

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