Sydney Harbour Foreshore Authority & Anor v Perrett & Anor [2010] NSWCA 160 | Case summary

Sydney Harbour Foreshore Authority - First Appellant PARTIES: Darling Harbour Convention and Exhibition Pty Ltd - Second Appellant Ian Douglas Perrett - First Respondent Wine & Vine Personnel Pty Ltd - Second Respondent

THURSDAY 23 SEPTEMBER 2010 SYDNEY HARBOUR FORESHORE AUTHORITY & ANOR V PERRETT & ANOR Judgment 1 TOBIAS JA: I agree with Handley AJA. 2 McCOLL JA: I agree with Handley AJA. 3 HANDLEY AJA: This is an appeal by the owner and the occupier of the Darling Harbour Convention Centre from the judgment of McCallum J of 30 September 2009 in an occupier's liability case. The Judge entered judgments for the first respondent (the plaintiff) for $735,667.07, and for his employer under s 151Z(1)(d) of the Workers Compensation Act 1987 for $223,308.93. It was common ground that s 151Z(1)(e1) applied and the plaintiff had to give credit for the amount of the judgment in favour of his employer and was only entitled to the net figure. 4 The appeal challenged the Judge's findings on liability based on the common law as modified by the Civil Liability Act 2002. 5 The summary of the salient facts which follows is based on the findings of the trial Judge. 6 The accident happened on the ground floor of the Convention Centre at Darling Harbour near the base of a large staircase running east-west which gave access to and from the first floor. The ground floor, which was tiled throughout, had a split-level. A ramp with a handrail led from the level at the base of the stairs to the lower level to the north and next to it to the south was a flight of three steps. 7 The same tiles had been used throughout the ground floor and on the three steps and the Judge described the delineation of the edges of the steps as "subtle". 8 A high wall on the southern end of the large staircase prevented persons coming down the stairs and walking south along their base seeing the ramp, handrail and the three steps until they were close to the end of the wall. 9 The only directional sign in the area was attached to a large round column standing on the lower level beyond the three steps. 10 The sign, which was above head height, stood out from the column to its north with the directions on its length facing east. Pedestrians coming from the staircase could not read the sign which was end on to them as they approached. To read the sign they had to pass the stair wall, turn to their right and look up at the column. 11 On the day in question, 1 July 2005, the plaintiff attended a Good Food & Wine Festival on the first floor of the Convention Centre. When leaving about 4 p.m. he descended the staircase which was divided by handrails into three sections. He used the most northerly section and turned right at the bottom. 12 The plaintiff was looking for the car park and walked in a southerly direction for about 20 metres along the base of the staircase about two metres out, looking for a sign. 13 There were a lot of people about and as the plaintiff approached the end of the stair wall he caught sight of the sign above head height on the round column ahead and fixed his attention on it. 14 As he was looking upwards at the sign attempting to read it he stepped off the top of the three steps and fell sustaining serious injuries. . 15 The Judge found, after a careful review of the evidence, that the plaintiff did not see the steps before he fell. That finding depended in part on her assessment of his credit and it cannot be disturbed. 16 There had been seven earlier falls on these steps before 1 July 2005, but the facts of only two of them were in evidence. Mr Brown, who fell in September 2003, said that he had no idea that the steps were there. There was no warning, the tiles on the two levels were the same colour, and there were no distinctive markings to delineate the edges of the three steps. Mr Baumer fell on 17 August 2004. He had looked up, didn't notice the steps, and was following the sign when he fell. 17 The Judge found that the risk of falling on these steps was not obvious at the time to a reasonable person in position of the plaintiff, that it was reasonably foreseeable that an entrant might fall and sustain injuries on these steps, and the defendants had been negligent in failing to do anything about the risk. 18 The Judge's finding that the risk was not obvious was based on a cumulative effect of the factors she listed in [78]. These included the absence of contrasting edging on the steps, the uniform tiling throughout the ground floor, the limited opportunity for a person coming from the base of the staircase to notice the steps, the placement of the sign which was likely to attract a person's attention, and the likely presence of other people in the area which would further limit the opportunity to notice the steps. 19 Evidence was given by two eyewitnesses Kathryn Mitchell and Therese Tsirekas. Ms Mitchell said that it was difficult to differentiate between the steps, which were not edged, and the tiles further on. They were the same colour and it was glary and hard to see. Ms Tsirekas said the floor was all one color, which just blended and there were no markings on the steps to tell the difference between the steps and the floor. 20 The Judge found that the photographs in evidence were consistent with the evidence of these witnesses that the steps and the floor beyond were all one colour and looked the same. 21 The Court was taken to the photographs and to a plan showing the path taken by the plaintiff after he descended the staircase. This material together with the evidence of the eyewitnesses and of Mr Brown and Mr Baumer support the Judge's finding. I am comfortably satisfied that that finding was correct and that the risk of falling on these steps at the relevant time was not an obvious one within s 5F. 22 Although the Judge made that finding about the risk she considered and dealt with submissions for the defendants that ss 5G and 5H of the Civil Liability Act applied and the plaintiff had failed to establish a breach of their duties of care. 23 The Judge followed dicta of McClellan CJ at CL in Carey v Lake Macquarie City Council [2007] NSWCA 4 at [34] and held that s 5G was directed to a defence of voluntary assumption of risk. She held that s 5H was not relevant because the plaintiff relied on particulars of negligence other than a failure to warn. The other members of the Court in Carey (above), McColl JA and McDougall J, reached the same result as McClellan CJ at CL but on a narrower basis: [2]-[5], [117] without expressing any view about the operation of ss 5G and 5H. 24 In Angel v Hawkesbury City Council [2008] NSWCA 130 Beazley and Tobias JJA [83] followed the dicta of McClellan CJ at CL in Carey (above) and said: "A finding that a risk of harm is an ' obvious risk ' within the meaning of s 5F(1) so that pursuant to s 5G(1) the person who suffers harm is presumed to be aware of that risk, does not … automatically lead to a finding of no breach of duty. Sections 5F and 5G are contained in Division 4 of Pt 1A of the Civil Liability Act entitled ' Assumption of risk '. The purpose of that Division is, at least in part, to make it easier for a defendant to establish the common law defence of voluntary assumption of risk … Except with respect to an ' obvious risk ' which obviates any common law duty to warn (see s 5H), the provisions of ss 5F and 5G and, in particular, the statutory definition of an ' obvious risk ', have no relevance to the question of breach of duty." 25 Although Spigelman CJ, Giles JA and Campbell JA agreed with Beazley and Tobias JJA, this passage was dicta because the Court held unanimously that the relevant risk was not obvious at the time. 26 Mr Barry submitted that the dicta of McClellan CJ at CL in Carey (above) and of Beazley and Tobias JJA in Angel (above) were wrong and should not be followed. 27 Given the Judge's findings of fact, which cannot be disturbed, the risk which came home to the plaintiff was not an obvious one as defined in s 5F. 28 There is therefore no utility in creating further dicta on the effect of ss 5G and 5H and I respectfully decline to embark on a re-examination of the dicta of five Judges of this Court in Angel (above). 29 The Judge held [57] that there could not be much doubt that the appellants ought reasonably to have foreseen that these steps posed a risk of injury to persons such as the plaintiff. 30 Mr Brown is recorded in the appellant's records as stating that the steps were dangerous as they were not marked and were hard to see. Mr Baumer stated that he looked up at the sign and did not notice the steps before he fell. 31 The Judge referred to the factors which prevented the risk being obvious to a person in the position of the plaintiff and said that he was inside the building and entitled to expect an even surface. 32 She then considered prospectively the reasonable response required of the appellants to that foreseeable risk, and directed herself in accordance with the familiar test propounded by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40, 47-8. 33 She said [67]: "In my view the temporary measure of affixing contrasting grip tape to the edges of the steps was a response to the risk that any reasonable man would have taken at a much earlier point. It could have been done without undue expense, difficulty and inconvenience and without unduly interrupting the fulfilment of the defendants conflicting responsibilities." 34 She continued [68]: "… the sign could have been positioned in a different place, or even at a different angle so as to be more visible to a person approaching from the north, without great expense, difficulty or inconvenience. In my view that is also a step that a reasonable man would have taken to obviate the risk of a further fall after Mr Brown's fall in 2003." 35 The Judge concluded that reasonable care required the appellants to take both of those steps. 36 Mr Barry submitted that the plaintiff still had a causation problem because he was not looking down to see where he was going immediately before he fell and would not have noticed the contrasting grip tape. 37 He also submitted that the Judge was not entitled to find that the sign should have been repositioned without finding where. 38 The photograph, part of Ex F, (blue 160) shows a short column on the ground floor beyond the base of the staircase in the direction the plaintiff travelled, and a fixture with a map of the general area opposite the middle section of the staircase. An appropriate sign could have been positioned either on this column or on the fixture. In either case it would have been readily visible to persons who had come down the staircase and turned right. 39 An appropriate sign in either place would have given the plaintiff the information he was seeking before he got close to the steps and without having to look up at a sign above his head. There would then have been nothing to distract him from looking where he was going and nothing to stop him seeing the contrasting grip tape on the edges of the steps. 40 I am comfortably satisfied that the Judge's findings on breach do not create a causation problem for the plaintiff. 41 The remaining issue is contributory negligence. The Judge said [95]: "Since he had not perceived the presence of the steps, in my view reasonable care did not require Mr Perrott to stop immediately in order to read the sign. The only evidence as to how far he continued in order to read it was … that he moved about 1 m and perhaps a shade more. He did so in circumstances in which, in my view, he was entitled to expect that the surface was smooth. Accordingly I am not satisfied that the defence of contributory negligence is made out." 42 In my judgment her Honour was correct on this issue for the reasons she gave. 43 The appeal fails on all grounds and should be dismissed with costs.

Sydney Harbour Foreshore Authority & Anor v Perrett & Anor

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