Wilkinson v Law Courts Limited

COUNSEL : C P Locke (Appellant) J E Maconachie QC/S M Kettle (Respondent) SOLICITORS : Velleley & Associates (Appellant) I V Knight (Respondent) CATCHWORDS : Torts - Negligence - Liability - Whether breach of duty of care - Whether occupier of public building breached duty of care to person who fell down external steps - Whether dimension of steps relevant - Where no hand-rails, edge-delineation strips, nor warning signs present - ND Jones v Bartlett (2000) 75 ALJR 1; 176 ALR 137 CASES CITED: Phillis v Daly (1988) 15 NSWLR 65 Stannus v Graham (1994) Aust Torts Reports 81-293 Taber v NSW Land and Housing Corporation [2001] NSWCA 182 DECISION : Appeal dismissed; appellant to pay the respondent's costs of the appeal.

CA 40366/00 DC 3820/98 MEAGHER JA HEYDON JA ROLFE AJA

Torts - Negligence - Liability - Whether breach of duty of care - Whether occupier of public building breached duty of care to person who fell down external steps - Whether dimension of steps relevant - Where no hand-rails, edge-delineation strips, nor warning signs present

On 30 May 1995 the appellant (plaintiff at first instance) fell down the steps outside the Law Courts building at Sydney. The appellant suffered a broken ankle. At the time of the accident, the appellant was thirty-four years of age and was an able-bodied person with full sight. At that time there was no hand-rail, edge-delineation strips nor warning signs present on or near the steps. The appellant sued the occupiers of the building (the defendant at first instance and the respondent on appeal) for damages, but was unsuccessful at trial.

Held by Heydon JA (Meagher JA and Rolfe AJA concurring), dismissing the appeal:

1. Departure from Australian Standard AS 1657, which did not apply to the Law Courts building, was irrelevant to the question of liability.

2. There was no error in the trial Judge's conclusions about the lack of negligence resulting from varying rise heights of the steps; nor did the trial Judge err by failing to mention or consider variation in the rise heights.

3. The trial judge did not err in concentrating on the appellant's fitness and athleticism. Any danger the steps might have posed to less able persons is irrelevant to whether there was a breach of a duty of care owed to the appellant.

4. The failure to install a hand-rail, edge-delineation strips and a warning sign at or near the place of the accident was not a breach of duty. a. An occupier of premises is "only required to take such care as is reasonable in the circumstances. The duty is not to make the premises as safe as 'reasonable care and skill on the part of anyone can make them'" [Heydon JA at [21]]. Jones v Bartlett (2000) 75 ALJR 1; 176 ALR 137, applied. b. The appellant's injury was no more likely than a wide range of possible injuries which might occur on any part of the steps. An extensive installation of hand-rails would be ugly, expensive and would interfere with customary uses of the steps. An extensive erection of warning signs covering all possibly injurious scenarios would be burdensome and ineffective.

c. The steps were obvious and few in number. "Stairs are inherently, but obviously, dangerous" [Heydon JA at [32]]. Many public steps lack hand-rails, strips and signs. Stannus v Graham (1994) Aust Torts Reports 81-297, applied. 5. The trial Judge did not err by not making a specific finding in relation to whether the lack of a hand-rail actually caused the injury. ORDERS

Appeal dismissed; appellant to pay the respondent's costs of the appeal.

Michael WILKINSON v LAW COURTS LIMITED JUDGMENT

1 MEAGHER JA: I ask Justice Heydon to give the first judgment. 2 HEYDON JA: Background This is an appeal by a plaintiff against orders of Hogan ADCJ made on 17 April 2000. After a trial on 22 and 23 March 2000, he gave judgment for the defendant and ordered the plaintiff to pay the defendant's costs. Sensibly, the trial judge assessed the damages to which the plaintiff would have been entitled if judgment had been given in his favour. 3 The plaintiff suffered a broken ankle on 30 May 1995. He was then 34 years old. He was a finance representative. In his spare time he played basketball, and had attained considerable success in that game. He was in training for a final year in the State League. He was very fit. He did not wear spectacles. There was nothing wrong with his sight. 4 On the morning of 30 May 1995 the plaintiff left the Law Courts building by the doors leading onto Phillip Street. He began to descend the steps. The trial judge found (Red 17W-18D): "On the third step he tripped and fell to the bottom of the steps. In cross examination he described the action as one where the front of his right foot caught on the edge of the step. As he fell he says that he tried to regain his balance, but there was no railing. He immediately felt severe pain in his right ankle."

He said in chief (Black 4D-J): "Q. Were you walking directly down the stairs or obliquely? A. I was going straight down the stairs, slightly to the right of the accident. Q. At the time when you were coming from the court were you carrying anything? A. No I wasn't no. Q. And where were you looking as you came down those stairs? A. Towards the steps? Q. At that time what was the condition of the steps in terms of any white colouring? A. There was no white colouring."

There was no railing. He said (Black 5B-C): "There was nothing to hang onto, you know I just tried to correct myself but my body weight was taking me forward at the time and there's nothing I could do."

In cross-examination he denied walking obliquely across the stairs. He also said (Black 58S-60B): "Q. Therefore may we take it that you cannot recall whether it was the front part of your foot or the back part of your foot that first came into difficulties? A. No, it was definitely the front part of my foot. Q. You've told us just a moment ago that you couldn't remember anything more than you've already told us. Do you remember which part of your foot it was? A. Yes, I do. Q. And it was definitely the front part of your foot? A. Yes. Q. Which part of the front part of your foot? A. The toe of my foot. Q. What was it that happened to the toe of the front part of your foot that you now recall? A. As I was stepping down the steps the front part of the foot caught on the very last part of the step. Q. I don't quite follow that. Your toe --- A. As I'm stepping down I went to step past the edge, but actually caught the edge. Q. With the toe of your foot? A. That's right, and came up to the toe of my foot, twisted and fell. Q. That's as you recall it? A. Yes. Q. Do I understand you to say that the toe of your foot made contact with the nose of the step? A. Yes. Q. Then moved forward? A. Sorry. Q. And moved forward on the nose of the step? A. Only slight - I mean I rose up onto the toe, so like I'm stepping there, I caught it, came up and then fell. Q. And you demonstrate as you do that with your hand using your fingers as though they were your toes? A. Yes. Q. Demonstrating that the toe of your shoe remained in contact with the nose of the step, is that right? A. That's right. Q. With the toe remaining in contact with the - the toe of your shoe remaining in contact with the toe of the step, is that right? A. The nose of the step, yes. Q. With the nose or the step, thank you. And you twisted? A. Yes. Q. You've got a clear and distinct recollection of that? A. Yes. Q. That was whilst you were walking obliquely across the steps, was it? A. No, it wasn't. I was walking directly down the steps. Q. You were walking, you tell us you were walking directly down the steps? A. That's right. Q. Had you walked in a straight line from the door? A. I believe thereabouts I did, yes." 5 The trial judge asked him some questions as follows (Black 67H-68C): "HIS HONOUR: Mr Wilkinson, I've started my thinking about this case naturally and I want to find out whether I have correctly understood your evidence about just how the accident happened and this is the draft description I have of it. Would you listen to me and let me know if you think it should be changed in any way. On the morning of 30 May plaintiff visited the Law Courts Building on behalf of a client in connection with bankruptcy proceedings in the Federal Court. WITNESS: That's right. HIS HONOUR: He left the building by the doors leading on to Phillip Street. WITNESS: That's right. HIS HONOUR: He began to descend the steps. WITNESS: Yes. HIS HONOUR: On the third step he tripped and fell to the bottom of the steps. WITNESS: That's right. HIS HONOUR: Is trip the right sort of word? WITNESS: Well assume - it's trip, slip, trip -- HIS HONOUR: In cross-examination he described the action as one where the front of his right foot caught on the edge of the step, is that right? WITNESS: Yes. HIS HONOUR: As he fell he says that he tried to regain his balance but there was no railing. WITNESS: That's right. HIS HONOUR: Immediately felt severe pain in his right ankle. WITNESS: That's right." 6 The plaintiff's case before the trial judge was that the width of the treads was excessive, a handrail was not provided, and the stairs were a dirty grey colour with no distinguishing marks. The trial judge said (Red 24R-25H): "Since the accident a white, slip resistant, nosing strip has been fixed to the steps, giving a highly visible contrast to each step, and a number of handrails have been installed. Those changes were made, not in any reaction to the subject accident, but as a result of an access audit of the court building, which was conducted in response to the Commonwealth Disability Strategy. Nevertheless, it could well be said that the stairs are now safer than they were at the time of the accident, and that the changes in fact made were reasonably available to the defendant, in that they did not involve any unreasonable expense. It does not necessarily follow that the defendant is therefore liable to this plaintiff. The steps may well have needed those changes in order to make them reasonably safe for people with defective sight or agility. But this plaintiff was a young man who aspired to representative basketball. The duty, a breach of which must be shown, was owed to him personally. What must be shown is that the defendant, in May 1995, was failing to take reasonable care for his safety." 7 In relation to tread width, the trial judge said (Red 25K-26H): "I could well see that an occupier who provided steps that were inadequate in width was failing to take reasonable care. Steps which were of varying widths could also be said not to be reasonably safe. But there was, in my view, nothing remarkable about the width of the steps in question. It does not conclude the matter to say that they complied, or did not comply, with relevant standards and building codes. The plaintiff's expert, Dr Emerson, took issue with the configuration as not conforming to AS1657, which provides for a dimension of not less than 215 and not greater than 305 mm. The steps were 335 to 340 mm by his measurement, and 310 to 315 mm according to the report of the defendant's expert Mr Beckett. However, that Australian standard is clearly intended to cover a different situation, being an industrial standard for safe access and safe working at places used by operating, inspection, maintenance and service personnel, where people carrying heavy or bulky loads might be using the steps. However, these steps not only complied with all relevant codes and standards, so far as their dimensions were concerned, they were, to any commonsense observer, quite normal and unremarkable as far as their width is concerned. They were of a size and type that occur in many public places in Sydney, or in any other city. They are outside the building, in the open air, with no problems created by contrasts between lit and unlit portions. I do not think that their width created any particular danger at all. I am not satisfied that the width of the treads was unreasonable." 8 On the handrail question, the trial judge said (Red 26K-T): "When he was coming out of the building, the plaintiff intended to turn right, to travel north in Phillip Street. He insisted that he was walking directly down the steps, and not diagonally. There is no real evidence to the contrary. Nevertheless, I do not think that he was walking down the stairs at a place where a hand rail would have been provided. After he had tripped, had there been a hand rail close to him, he might possibly have broken his fall by taking hold of it. But the injury might possibly have already been caused. There is no evidence about that. I do not believe that, had there been a hand rail, this athletic young man would have gone to the side of the steps to use it as he descended them." 9 On the issue of the colour of the steps, the trial judge said (Red 27D-28F): "Dr Emerson stated in his report 'However, the dirty grey colour without distinguishing markings allows the non standard stairs to blend in with the general stair environment and does not give adequate depth perspective and readily promotes a stumbling accident. Persons such as the plaintiff are socialised to accept the normal design of higher and shorter steps elsewhere and as a result of encountering the subject steps are likely to become disoriented and stumble. I would however state that a staircase such as the one under consideration should have had proper step edge delineation, so as to highlight the edges of the step. Such step edge delineation can be achieved by the provision of painted yellow or white lines with tread safe paint, such as were applied to the staircase following the incident.' I have already dealt with the assertion that the stairs were non standard. I accept that they were of a dirty grey colour at the time of the accident. I am not persuaded, however, that to any sensible observer they did not give adequate depth perspective, or that they readily promoted a stumbling accident. There was no evidence of any previous accident to any person on the steps that could have been attributable to their size, colour or absence of edge delineation. That does not determine the matter, but it is relevant to a consideration of the ambit of the duty of care that the defendant owed to the plaintiff as he was using the steps. Insofar as there was any risk of injury to people such as the plaintiff using the stairs it was the sort of danger that was inherent in the fact that they were stairs. Any danger that existed was obvious and such as could be avoided by the exercise of reasonable care by people without disability as they were descending them. I am not satisfied that their shape or colour required that the defendant, as a reasonable occupier, should have provided before the accident any edge delineation. I am also not satisfied that the plaintiff fell because of the absence of any such edge delineation." 10 The trial judge concluded by saying: "The plaintiff has not demonstrated that the cause of the accident was anything other than a mistake that he made in the way that he placed his feet as he descended the stairs." 11 There is much to be said for the view that this Court should do no more than state that the appeal should be dismissed for the reasons given by the trial judge. However, in deference to the detailed arguments advanced on behalf of the plaintiff, a less summary course will be adopted.

The dimensions of the stairs 12 The plaintiff's submissions about the stairs to this Court were (Orange 4W-6M): "i. Australian Standard AS1657 specifies a maximum step width of not greater than 305mm ii. The steps were 335-340mm wide according to the plaintiff's expert, and 310-315mm wide according to the defendant's expert [J10.8] iii. The rise height of the stairs was measured by the plaintiff's expert at 140mm, with a 5mm tolerance [Report of Dr B N Emerson 2 March 1999, p 3.9], and at 133-143mm by the defendant's expert [Report of Mr R Beckett 28 April 1999, p 1.7] iv. AS1657 specifies a rise height of not less than 150mm [Report of Dr B N Emerson 2 March 1999, p 5.8] v. There was accordingly no disagreement between the experts that both the step width and rise did not comply with the dimensional limits set out in AS1657 vi. There was, however, disagreement between the experts in relation to the application of AS1657 to the Law Courts building, and such issue was resolved in favour of the defendant vii. The trial judge accepted that steps of varying widths could be said to not be reasonably safe [J10.5] viii. The defendant's expert found a variation of 10mm in the rise height of the stairs [Report of Mr R Beckett 28 April 1999, p 1.7], and there is no apparent reason why a variation in rise height should not have been treated in the same way ix. The trial judge did not make any reference to such variation in rise height in his judgment, and wholly failed to take that deficiency into account in reaching a conclusion as to whether the stairs were reasonably safe x. Such omission was compounded by the trial judge having regard only to the width ('going length') of the stairs, and wholly disregarding the evidence in relation to the rise of the stairs (both as to the shortness and variation thereof) xi. It was contended for the plaintiff that the combination of excessive width and insufficient rise (together with inadequate edge delineation) could result in disorientation and stumbling by persons using the stairs. xii. In omitting to have regard to both the width and rise of the stairs, the trial judge misunderstood the evidence and/or failed to have regard to the totality of the evidence." 13 The defendant's submissions on tread dimensions to this Court commenced with an account of how the plaintiff's case at the trial developed in that respect (Orange 19E-20H): "(c) with respect to tread dimensions, the particularisation of the plaintiff's case developed in the following way:- (i) in the Statement of Claim (para 7), it was asserted:- ' m. Constructing the horizontal surface of the said steps with an excessive width .' (ii) on the first day of the trial (T11 line 35), during the plaintiff's evidence in chief, senior counsel for the plaintiff sought and was granted, leave to amend the particulars in the Statement of Claim; the transcript does not record the precise terms of the amendment but, for present purposes, that causes no critical difficulty; (iii) at T40.9 (there is no line numbering on the page), His Honour re-visited the question of particularisation; the interchange between His Honour and senior counsel for the plaintiff, relevantly, concludes at T41.7; (iv) The 'dimensions' case was there defined this way:- ' What the report shows is that the height independently is too low and the width is independently too wide even without the ratio of one to the other but the ratio of one to the other makes it worse of course.' (The reference to a report is a reference to the reports of Dr Emerson.) (v) that way of putting the case changed (for reasons which will be explained below) and became, at T87 line 50:- ' … they (the stairs) are not regular , I don't mean outside the compliance ( presumably a reference to codes or standards ) but they're not regular in the sense that they've got a low rise and a long tread and …'" 14 The defendant then submitted (Orange 20W-25P): "(a) The plaintiff said nothing about the dimensions of the stairs in his evidence. (b) In his 2 March 1999 principal report, Dr Emerson spoke of a site inspection and, at p. 3.9 of his report, recorded:- ' I noted 7 tread rises with a going length of 335mm to 340mm and a rise height of 140mm [no variation] all within the required tolerance of 5mm.' That is, he noted no variation in rise but only a variation, within tolerances, of the going (or width). (c) At p 4.4 of his report, Dr Emerson expressed the opinion that the stairs are 'non standard in height and going length …'.

(d) His classification of the height and going length as 'non standard' was explained at p.5 and following; he contended that:-

(i) the stairs complied with Ordinance 70 (p 6.1); (ii) the rise height and going length configuration did not conform to AS 1657-1992 (p 5.9-6.1).

(e) He asserted at p 8.2 of his report that the rise height and the going length should be altered 'in conformity with the recommended height ( and length ) of the stair treads' - plainly, a reference to their non-conformity with his preferred standard AS 1657-1992.

(f) Nowhere in that report is there any reference to the stairs not being regular , if by 'regular' it is intended to convey that there were material variations from step to step.

(g) In his second report (1 November 1999), Dr Emerson made two points, relevant to dimension - they are:-

(i) 'I do not agree with Mr Beckett (the respondent's expert - see below) that 10-15mm variation in step dimensions is acceptable. He may well be correct in asserting it is not unusual but it is certainly not correct and this amount of variation leads to disorientation' (report at p 3.3).

(ii) 'The writer is able to take issue with the design of the step in respect of rise height and going length configuration, as it does not conform to Australian Standards AS 1657-1992 ' (report at p 3.5 - the same point is made at p 4.4).

(h) In fact, Mr Beckett (report Exhibit 1) at p 1.6 of his 28 April 1999 report recorded that the tread widths have a 5mm variation and the rises a 10mm variation; he said they were within normal building standards; the Emerson (see (g)(i) above) 10-15mm variation can only be a reference to p 5.8 of Beckett's report where he says:-

' Dr Emerson's assessment of the step treads and rises as non-standard is not substantiated as the step construction is not unusual for the building tolerances (10-15mm) typical of the building industry at the time of construction.'

(i) Dr Emerson was not asked to address, in his evidence in chief, the question of variations in dimensions between one step and another; he was not cross examined about it; Mr Beckett was not cross-examined about variations, or irregularity between one step and another.

(j) The case made by the plaintiff on dimensions was:-

(i) the stairs complied with Ordinance 70, the appropriate building code at the time of construction;

(ii) the stairs' dimensions did not comply with AS 1657 - 1992;

(iii) the application of AS 1657-1992 is a matter for the courts to determine (see Emerson's 2 March 1999 report, p 5.9 to 6.1);

(iv) on the question of whether or not the court should prefer AS 1657-1992 or Ordinance 70, Emerson's evidence was (T48.5) that Ordinance 70, in common practice, guided architects in constructing buildings such as the Law Courts Building - Dr Emerson used AS 1657-1992 as a guide 'as a decent set of dimensions for a proper set of stairs … (he had) a particular [liking] for the standard …'. He accepted (T48.7 and following) that buildings such as the Opera House, the MLC Centre and open spaces such as Martin Plaza did not comply with AS 1657.

(k) Accordingly, the plaintiff's case on dimensions was, in essence, that the steps complied with the relevant building code, but they did not comply with an industrial code for which Dr Emerson had a 'particular liking' but which was not commonly observed in public buildings and public open spaces, and was expressly intended for industrial applications.

(l) At J10.8, His Honour decided the dimensions issue by determining that AS 1657-1992 was 'clearly intended to cover a different situation' than that relevant to this case and (at J11.1) 'these steps not only complied with all relevant codes and standards, so far as their dimensions were concerned , they were, to any commonsense observer quite normal and unremarkable as far as their width is concerned'.

(m) His Honour's emphasis on width in his reasons is explained by reference to the changing nature of the plaintiff's particularisation of the dimensions case, Dr Emerson's assertion that there was only variation in width, and not in riser, compliance of the stairs (agreed by both experts) with the relevant building code, and Mr Beckett's evidence (plainly preferred by His Honour) that there was nothing unusual about the stairs. His Honour found that 'so far as their dimensions were concerned' (J11.1), the steps complied with relevant codes and then emphasized that 'to any commonsense observer, quite normal and unremarkable as far as their width is concerned' - there was abundant evidence for him to so find.

(n) The case made by the appellant in the evidence was non- compliance with AS 1657-1992; for good and sufficient reason, His Honour found that Ordinance 70 was the appropriate building code and therefore rejected that case; width was emphasized by His Honour because width was the variation, and the only variation, found by Dr Emerson.

To the extent that variation in riser height was attempted to be embraced by Dr Emerson (see his second report at p 3.4):-

(i) he misunderstood that Mr Beckett was referring to tolerances and not variations;

(ii) he made no attempt to explain why that which was not unusual was 'not correct' (with apologies for the triple negative);

(iii) His Honour plainly preferred Beckett's assertion that the stairs were within acceptable tolerances, complied with the appropriate building code, and were 'quite normal and unremarkable' (J11.2).

(o) It is submitted that the dimensions case fails." 15 The plaintiff's submissions note, but do not challenge, the trial judge's conclusion that AS 1657 did not apply to the Law Courts building. In those circumstances, so far as the submissions rely on a departure from AS 1657 as evidence of negligence, they fail. The trial judge's conclusion about the areas to which AS 1657 was intended to apply is taken directly from its opening words (Blue 209G), and accordingly appears unassailable. The irrelevance of any departure from AS 1657 is of some significance, since a large part of the criticism levelled by the plaintiff's expert, Dr Emerson, at the steps rested on their non-compliance with AS 1657. So far as non-compliance with AS 1657 is an element in the plaintiff's argument to this Court, it is without any force. 16 Another element in the plaintiff's written submissions to this Court is the contention that if steps of varying widths are unsafe, steps of varying rise heights are also unsafe. No specific variation in rise heights was noted by Dr Emerson, the plaintiff's expert, in his first report, and no significance was attached to that subject. Indeed he said: "I noted 7 tread risers with a going length of 335 mm to 340 mm and a rise height of 140 mm all within the required tolerance of 5 mm" (Blue 7W). The defendant's expert, Mr Beckett, said (Blue 189R): "The dimensions of the risers over the sequence of the first four steps down are 133, 136, 142 and 143 mm and are within normal building standards." No expert gave any evidence as to the significance of the relative variations of 3, 6 and 1 mm, beyond Mr Beckett's observation that they were "within normal building standards". To a lay mind, those variations appear very small and unlikely to cause any danger to a person descending the steps in normal fashion. While some variations in width may be unsafe, some may not. While some variations in riser height may be assumed to be unsafe, some may not. And while some combinations of variations in width and variations in height may be unsafe, some may not. Assuming that expert evidence is capable of casting light on which combinations or variations may be unsafe, it was not given by Dr Emerson in chief. Mr Beckett gave none in chief either, and was not asked to give any in cross-examination. Given the trial judge's findings that the stairs were normal and unremarkable so far as their width was concerned, and the lack of expert evidence about the significance of varying rise heights, it is not open to this Court to overturn the trial judge's conclusions about a want of negligence in relation to dimensions by reason of varying rise heights. 17 Another key element in the plaintiff's written submissions is that the trial judge erred in not referring to and taking into account the variations in rise height. That he did not do so is to be explained by:

(a) the fact that the Statement of Claim did not mention the variations;

(b) the fact that at Black 41N counsel for the plaintiff complained that the height was too low, but said nothing about variations in height;

(c) the fact that at Blue 87V counsel for the plaintiff complained that the stairs were "not regular in the sense that they've got a low rise and a long tread", but not that there were variations in the risers;

(d) the fact that the expert witnesses cast no light on the significance of the variations in risers either considered by themselves or in combination with variations in widths.

The opening and final addresses of counsel have not been transcribed and are thus not in the appeal papers, but from all that does appear in the appeal papers, it seems that the plaintiff's complaint on appeal about variations in rise height, and the trial judge's failure to take them into account, amounts to a new case advanced for the first time on appeal. Indeed, the plaintiff appears to concede this by silence at Orange 6H-J when he says of the trial: "It was contended for the plaintiff that the combination of excessive width and insufficient rise (together with inadequate edge delineation) could result in disorientation and stumbling by persons using the stairs."

That does not record any complaint about variations in rise height. To criticise the trial judge for not dealing with something he was not asked to deal with is not a technique which justifies allowing the appeal in the present circumstances. As for the failure of the trial judge to refer to the non-compliance of the stairs with AS 1657 in point of rise height, that is explained by the fact that he held AS 1657 to be irrelevant. The plaintiff's arguments in relation to the dimensions of the stairs are rejected.

Handrail 18 The plaintiff's submissions about the handrail were (Orange 6O-10D): "xiii. The trial judge did not make a specific finding as to whether the defendant ought to have installed handrails on the stairs prior to the date of the plaintiff's injury xiv. By reason of the use of the building by seriously disabled persons for a period extending over many years leading up to the date of the plaintiff's injury (and irrespective of whether AS1657 or any other standard or code specifically applied to the Law Courts building), it ought to have been held that handrails were reasonably necessary xv. In finding that the absence of a handrail was not causal of the plaintiff's injury, the trial judge held that: a. the plaintiff was walking down the stairs at a place where the handrail would not have been provided; and b. after he tripped, the plaintiff might possibly have broken his fall by taking hold of the rail, but that the injury might possibly have already been caused xvi. The first of the two bases for such finding is devoid of any rational or persuasive force, as it assumes that the plaintiff would not have modified his path when descending the stairs so as to place himself in the near vicinity of a handrail

xvii. The second basis for such finding amounts to mere speculation, and is contrary to the evidence of the plaintiff that he would have made use of a handrail if one had been available [T13.5] i. There was no issue at the trial that the defendant was under a duty to exercise reasonable care for the safety of persons making use of the stairs ii. The risk of injury was reasonably foreseeable, it being not far-fetched or fanciful Wyong Shire Council v Shirt (1980) 146 CLR 40, and serious physical injury could be sustained by a person who fell while using the stairs

iii. The Law Courts ('Supreme Court') building had been utilised as the venue for (inter alia) the hearing and determination of actions for damages involving persons with severe injuries and disabilities for a period of at least two decades prior to the date of the plaintiff's accident

iv. The class of persons who could be expected to make use of the building (and to access it via the Phillip Street stairs) was accordingly unusually broad, and extended from able-bodied individuals to the most seriously disabled

v. Whether the defendant discharged its duty of care should have been adjudged by reference to that class of persons, being a class which included the plaintiff vi. The trial judge misdirected himself when he determined the issue of breach of duty (by reference to the plaintiff's personal characteristics ('a young man who aspired to representative basketball') rather than by reference to the class of persons who could be expected to access the building by means of the Phillip Street stairs

vii. Furthermore, the characterisation of the Law Courts building as being 'no different to many public places in Sydney or in any other city' was erroneous, in that no regard whatsoever was had to the special circumstance of likely frequent use of such building by seriously disabled persons

viii. The trial judge thereby fell into fundamental error and failed to properly determine the nature and extent of the defendant's duty of care, and whether the defendant was in breach of such duty

ix. At the time of the accident, the stairs had neither handrails nor white edge delineation strips on the nosings

x. Handrails and edge delineation strips were installed after the plaintiff's accident

xi. Such modifications were reasonably available to the defendant before the date of the plaintiff's accident, did not involve any unreasonable expense, and improved the safety of the steps

xii. No evidence was led by the defendant to satisfactorily explain why such modifications had not been carried out prior to the date of the plaintiff's injury

xiii. In particular, and in view of the longstanding use of the building by seriously disabled persons, the necessity for such modifications to have been carried out by the defendant existed independently of the access audit which was conducted in response to the Commonwealth Disability Strategy and could not, on any reasonable view, be said to have arisen only when such audit was completed

xiv. The failure of an occupier to remove a hazard when such action could have been carried out with little cost and inconvenience will almost always amount to negligence, even if the risk of injury is small. Turner v South Australia (1982) 56 ALJR 839

xv. The use of stairs inevitably involves an element of danger which cannot be wholly eliminated

xvi. Furthermore, the fact that an occupier could have improved the safety of stairs under its care and control is not necessarily conclusive as to whether there has been a breach of duty of care

xvii. An occupier is, however, required to exercise reasonable care, and the question of whether such duty has been discharged is to be considered in the light of the principles enunciated in Shirt's case [ibid]" 19 The defendant submitted (Orange 25S-28L): "(a) His Honour's conclusions are to be found at J11.4-11.8. (b) His Honour found:- (i) the plaintiff was not walking down the stairs where a handrail would have been provided;

(ii) the presence of a handrail might have had no causal impact upon the injury - there was no evidence about that;

(iii) the plaintiff, an athletic young man, would not have gone to the side of the steps to use a handrail as he negotiated the steps.

(c) There was evidence upon which His Honour could find that he was not walking where a handrail would have been provided:-

(i) there was no attention paid, in the evidence, to where a handrail ought to have been, other than the handrail as shown in the photographs, Exhibit A;

(ii) notwithstanding that the plaintiff said that he fell close [to] the point where the handrail is now constructed (T3 line 40-50), that was inconsistent with the plaintiff's assertion that he walked straight down the steps and did not cross them diagonally (T4 line 1 to line 13); that was demonstrated when the plaintiff was cross examined at T 33.0 to T34.8 - see particularly T34.8.

(d) His Honour's finding that the plaintiff fell otherwise than where there might have been a handrail was open to His Honour on the evidence, plainly involved His Honour's rejection of where the plaintiff, in his evidence in chief, said he was - and that is a demeanour-based finding with which this court cannot interfere. In any event, it cannot be shown to be a finding erroneously made, or in respect of which His Honour failed to use his advantage in seeing and hearing the witnesses.

(e) His Honour's finding that the injury might possibly have already been caused was plainly open to him; His Honour found that the plaintiff sustained a spiral fracture of the proximal fibula and an undisplaced fracture of the post distal tibia. Dr Bodel, in his 30 Mach 1999 report (Exhibit 5) described the mechanism of injury this way:-

' As he went to take a step down the court steps, he indicated that his right foot caught on the leading edge of the step and he slipped and fell. From the description of the fall it appears that there was an acute plantar flexion injury and the foot was then externally rotated with the foot in that plantar flexed position .'

(f) That accords with His Honour's finding that 'the front of his right foot caught the edge of the step' (J3.1).

(g) It also accords with the plaintiff's description of the incident at J58.7 to 59.8 - the essence of the mechanism of injury was that the front part of the foot caught on the very last part of the step, he twisted and fell.

(h) To the extent that the cause of the fracture was examined in the evidence, it is consistent with the injury having been caused by a torsion/twisting force, and not by a fall with a sudden stop at the bottom. Note that the fracture was found to be a spiral fracture.

(i) His Honour was entitled to conclude that he was not satisfied that a handrail would have made any difference.

(j) In any event, His Honour's finding that 'this athletic young man would ( not ) have gone to the side of the steps to use it as he descended them' was plainly open to him on the evidence. Prior to the accident, the plaintiff was a fit, athletic young man (T3 line 10 to line 18). He was cross examined about the improbability of him using a handrail at T64.2-T65.9.

(k) His Honour's finding that the plaintiff would not have used a handrail is demeanour-based and cannot be set aside by this court.

(l) It is implicit in His Honour's reasoning that the absence of a handrail did not amount to a breach of duty. The evidence adopted by His Honour supports such a finding (see Beckett, Exhibit 1 at p.1.8 and at T81 line 50). Alternatively, the respondent relies on the Notice of Contention."

The Notice of Contention contends that the trial judge ought to have found that the failure to provide a handrail was not a breach of duty. 20 Logically the first question is whether the non installation of handrails was a breach of duty. Mr Beckett, speaking of the Building Code of Australia, said (Blue 189U-X): "No balustrade is necessary on these steps as they are well outside the entrance of the building and could not be considered as a required fire exit. The step configuration is not unusual and a similar arrangement can be seen at Circular Quay around the concourse leading to the Opera House."

At Black 81T-82J, Mr Beckett said: "Q. Do you have something there that shows that to be the case in this document because it's not on the extract that I've got, at least I can't see it? A. Other than the section that we have I just - the Building Code of Australia is a tremendously thick document, I just brought down the reference to the definition. HIS HONOUR: This was a 1993 amendment to part D. Would it be expected that people who were going to use it - it might be used only once in a decade but when it was being used it would be used by a pretty high volume of people. DONOVAN: Is that right? A. Yes. Q. I'll hand back to the Court the various documents. HIS HONOUR: Exhibit 4 and MFI 1 and 2? DONOVAN: Yes. HIS HONOUR: Are you tendering MFI 1 and 2? DONOVAN: No your Honour. HIS HONOUR: Q. So summarising that, is it true to say that the only prescription for conspicuous edges in any legislative form is that relating to fire exits? A. Exits which are designated required exits your Honour. In other words when the building is designed it is approved by the fire authority that a certain number of exits would be provided and then those exits are defined in the Building Code of Australia and ordinance 70 as to have the particular dimensions of their treads and goings and the width of doorway and the length of travel from a particular room to the exit to the building."

While the trial judge made no criticism of Mr Beckett and accepted various parts of his evidence explicitly, it cannot be said that he accepted that part of it. 21 The proposition that the failure to have a handrail at or near the place of the accident was a breach of duty encounters the difficulty that the steps run a considerable distance from north to south and turn a corner to run a further distance from west to east. Members of this Court, obviously, have observed the steps and the way they are used thousands of times. Pedestrians go up and down the steps at numerous points along their length and at a great variety of angles. The defendant was sued as the occupier of premises. An occupier of premises is only required to take such care as is reasonable in the circumstances. The duty is not to make the premises as safe as "reasonable care and skill on the part of anyone can make them", as Gleeson CJ, speaking of landlords as a sub-class of occupiers, said in Jones v Bartlett (2000) 75 ALJR 1; 176 ALR 137 at [92]. If safety was to be assured by procuring that every user of the steps had a handrail within reach, a handrail would be needed at many points along the considerable length of the steps. An extensive system of railings would be expensive. It would be ugly, which is not irrelevant: Phillis v Daly (1988) 15 NSWLR 65 at 68F-G; Jones v Bartlett (2000) 75 ALJR 1; 176 ALR 137 at [23]. The plaintiff points out that people using the steps may be seriously disabled. It may also be pointed out that many users of the steps are carrying bags or folders, or are manoeuvring trolleys. Any system of handrails would have to accommodate their needs. It would also interfere with many customary uses of the steps. The particulars to paragraph 7 of the Statement of Claim did not say precisely where railings should have been erected. Nor did Dr Emerson. Nor, indeed, did the plaintiff in his written submissions. The plaintiff's evidence implicitly suggested that they should have been erected where they are now, but did not say why they should be there rather than anywhere else. 22 The steps were obvious in appearance, their edges were clear, there were not many of them, and dimensions and variations in the step sizes have not been shown to create any danger or create any inadequacy in them if they were properly used. In Stannus v Graham (1994) Aust Torts Reports 81-293 at 61,566, Handley JA pointed out that there are "extensive steps outside public buildings in Sydney such as the Joint Courts Building, the Public Library, the Art Gallery, Parliament House and the Opera House. A handrail is not to be found within reach of every person using these steps." There is specific evidentiary support in this case for that proposition from Mr Beckett so far as the absence of handrails at the concourse leading to the Opera House is concerned, and from Dr Emerson so far as the Opera House, Martin Place and the MLC Centre is concerned: Black 48S-W. 23 Counsel for the plaintiff submitted that the mere fact that the steps of the Law Courts building had similar characteristics to steps in other public buildings did not negate the possibility of negligence at the Law Courts building. As a general proposition, that is correct. However, the fact that railings are commonly absent from steps of this general type in Sydney does point against negligence in relation to the steps at the Law Courts building. 24 Assuming, against the plaintiff's argument, that the dimensions of the steps and the lack of colouration are not breaches of duty, in my opinion the absence of handrails was not a breach either. 25 Let it be assumed, contrary to the conclusion that there was no breach of duty in failing to provide a handrail, that there was: would a handrail have prevented the injury? 26 The trial judge evidently considered that the location of the handrail would have been where one is now provided near the northern parts of the steps, or at least that it would not have been where the plaintiff fell. The trial judge also evidently considered that though the plaintiff intended to walk north along Phillip Street, he was walking down the steps directly, not diagonally. If so, he would not have been within reaching distance of the handrail which now exists. The finding of the trial judge that the plaintiff was not "walking down the stairs at a place where a handrail would have been provided" involves an implicit rejection of the plaintiff's evidence in chief that he was near where the handrail now is. It has not been demonstrated why and how this Court should interfere with that finding. 27 Secondly, the plaintiff's argument depends on persuading the court that the trial judge erred in the finding: "I do not believe that, had there been a handrail, this athletic young man would have gone to the side of the steps to use it as he descended them". The trial judge was entitled to reject the plaintiff's evidence to the contrary, which was forcefully tested in cross-examination at Black 64-65, and the finding is not implausible. 28 It is convenient to interpolate that one of the criticisms of the trial judge's reasons advanced by the plaintiff, both in writing and orally, was that he erred in concentrating on the particular features of the plaintiff as being a very fit and athletic young man at the time of the accident. Instead, it was said, attention should have been paid to the characteristics of the plaintiff as a member of a much larger class, presumably a class including people who either were partially disabled or presented particular risks in the use of the stairs. In my opinion, the trial judge did not err in the manner suggested. The possibility that the steps constituted a danger to the very old or the very young is not a circumstance which can be employed in order to assist the plaintiff to demonstrate a breach of a duty of care owed to him. 29 So far as the trial judge's opinion that the injury might possibly have been caused before the plaintiff was able to break his fall by seizing any handrail he was near is concerned, it was not a finding that the injury would have been caused so early, or a finding that the plaintiff failed to discharge the onus on the issue. The defendant's argument that Dr Bodel's evidence makes it possible to infer that the injury would have been caused before some handrail was seized is ingenious but not convincing. The trial judge was correct that there was no evidence specifically directed to that question. Without specific evidence it would be difficult to form a view one way or the other, or to conclude that the plaintiff has failed to discharge the onus on causation.

Strips 30 The plaintiff's written submissions on this subject have already been set out to some extent, since they overlap with submissions on other issues. The balance of them were (Orange 8W-11E): "x. Handrails and edge delineation strips were installed after the plaintiff's accident xi. Such modifications were reasonably available to the defendant before the date of the plaintiff's accident, did not involve any reasonable expense, and improved the safety of the steps xii. No evidence was led by the defendant to satisfactorily explain why such modifications had not been carried out prior to the date of the plaintiff's injury xiii. In particular, and in view of the longstanding use of the building by seriously disabled persons, the necessity for such modifications to have been carried out by the defendant existed independently of the access audit which was conducted in response to the Commonwealth Disability Strategy and could not, on any reasonable view, be said to have arisen only when such audit was completed xiv. The failure of an occupier to remove a hazard when such action could have been carried out with little cost and inconvenience will almost always amount to negligence, even if the risk of injury is small. Turner v South Australia (1982) 56 ALJR 839 xv. The use of stairs inevitably involves an element of danger which cannot be wholly eliminated xvi. Furthermore, the fact that an occupier could have improved the safety of stairs under its care and control is not necessarily conclusive as to whether there has been a breach of duty of care xvii. An occupier is, however, required to exercise reasonable care, and the question of whether such duty has been discharged is to be considered in the light of the principles enunciated in Shirt's case [ ibid ] xviii. In the present case, the evidence was that the stairs: a. were of a dirty grey colour b. had no edge delineation c. had a ratio of width to rise of the order of 2.3:1 d. were not fitted with handrails e. were installed at the entrance to a building which was likely to have an unusually high level of pedestrian traffic comprised of persons with high level disabilities xviiii. As such, the stairs were entirely devoid of the most elementary of safety enhancement features at the date of the accident xix. The finding of the trial judge that the stairs were 'quite normal and unremarkable' was made without any proper regard to the characteristics of the class of persons who were likely to make use of the building. xx. It is submitted that it ought to have been held that: a. the presence of white edge delineation strips on the stairs would (on the balance of probabilities) have materially reduced the risk of injury to the plaintiff, and that the failure to have installed such markings amounted to a breach of duty of care by the defendant which was causally connected with the plaintiff's injury; and/or b. the presence of a handrail would (on the balance of probabilities) have materially reduced the risk of injury to the plaintiff, and that the failure to have installed handrails amounted to a breach of duty of care by the defendant which was causally connected with the plaintiff's injury."

31 The defendant submitted (Orange 28N-30E): "(a) The relevant finding is at J11.9 to J13.4. (b) The accident happened at 10 o'clock in the morning (T3 line 26). There is nothing to suggest any difficulty with the light. (c) There was nothing wrong with the eyesight of the plaintiff on the day of the accident (T60.3). (d) The plaintiff made no complaint that he was misled by the appearance of the steps in terms of their colour; he made no complaint to any doctors of any visual disorientation (T70 line 40); the highest he put it was that he 'may have been' (T70 line 58). (e) The only requirement for edge delineation, by a code or regulation, was in the 1993 Building Code of Australia which required conspicuous edges to the treads of steps for fire exits in classes of building of which this was not one (T77 line 45 to T78 line 10; T81 line 14 to 31); and it was not a fire exit. (f) The white paint placed on the step treads after the accident was the result of an Independent Living Centre Report (Exhibit 6) which was commissioned by the Federal Court after the Human Rights & Equal Opportunities Commission occupied a portion of the Law Courts Building (J38 line 55). It had nothing to do with this accident. (g) The white paint on the third step (where the plaintiff says he came to grief) was not required by the Independent Living Centre Report - it was done for aesthetic reasons only (T85 line 50). (h) There were no falls prior to the plaintiff's accident, known to the Chief Executive of Law Courts Limited (T86 line 35). (i) His Honour had the advantage of a photograph (Exhibit 7) showing the steps as they appeared before the white painted nosings were applied (J86 line 55). (j) His Honour, at J12.7 to J13.2, paid proper regard to the relevant principles (see Phillis v Daly (1988) 15 NSWLR 65 particularly at 68F to 69B; 74E to 75C; see also Stannus v Graham (1994) Aust Tort Reports 81-293 particularly at p.61, 566 per Handley JA - His Honour's observations are equally apposite to step delineation). (k) His Honour's conclusion on the question of reasonableness is unexceptional and was open to him. It accords with common practice in public buildings of a like kind in the Macquarie Street/Queens Square precinct, and elsewhere in the city." 32 In my opinion the trial judge's reasoning is wholly convincing. Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances. Among the essential circumstances is the following fact: "persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety": Stannus v Graham (1994) Aust Torts Reports 81-297 at 61,566 per Handley JA. There are many places in Sydney where the steps do not have strips on the edges: the Public Library, the Art Gallery, Parliament House, St James Church and St Mary's Cathedral: Black 51J-R. 33 The criticisms made by the plaintiff in relation to the danger of falling on the steps naturally focus on what in fact happened to the plaintiff. But if the degree of attention to safety which the plaintiff submitted to be appropriate was in fact appropriate, much more would have been necessary to deal with the risk of injury happening in other ways (see generally Jones v Bartlett (2000) 75 ALJR 1; 176 ALR 137 at [19]; Taber v NSW Land and Housing Corporation [2001] NSWCA 182 at [60]). Dr Emerson complained of the dimensions of the steps, the lack of marking and the absence of handrails (presumably one on each side of a user of the steps would be called for ideally). He also referred to the absence of a "simple warning sign", which he said, "would have provided sufficient stimulus to the Plaintiff to be aware of the hazard of the non-standard steps" (Blue 12B). But the steps are used by many persons who speak English badly, so the warnings would have to be in more than one language. Perhaps there should be other warnings about the danger of descending steps in wet weather, the general need for care in using steps, the need to look out for persons manoeuvring trolleys or wheelchairs or television cameras, and so on. The more the warnings, the less the effectiveness of each. The human imagination can conjure up many circumstances in which a user of the steps might suffer injury. A particular measure directed to the avoidance of a particular type of injury might in itself be relatively inexpensive and relatively easy to implement. But if measures are to be taken to reduce all the dangers which can be imagined, very heavy burdens would be imposed: yet the form of injury from which the plaintiff suffered does not appear any more likely than most of the other imaginable forms of injury. This highlights the difficulty which confronted the plaintiff in isolating the three matters on which he relied to establish a breach of duty. 34 In my opinion the appeal in relation to the trial judge's orders on liability fails.

Damages 35 That makes it unnecessary to consider the plaintiff's criticisms of the trial judge's reasoning on damages.

2. The appellant is to pay the respondent's costs of the appeal. 37 MEAGHER JA: I agree. 38 ROLFE AJA: I also agree. **********

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