Decision
111 It is necessary to have regard to the general principles stated in Pt 1A of the Civil Liability Act, including that a person is not negligent in failing to take precautions against a risk of harm, unless the risk was foreseeable, the risk was not insignificant and a reasonable person in the person's position would have taken those precautions (s 5B). A subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability and does not of itself constitute an admission of liability (s 5C(c)).
112 It is also necessary to apply authoritative statements which had been made about the extent of an occupier's liability and particularly in relation to stairs on the premises of the occupier.
"…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 any one can make them" ( Wilkinson v Law Courts Limited [2001] NSWCA 196 at 21 per Heydon JA).
113 In the same case Heydon JA said at 32:-
"…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"…"
114 In the present case I find that the circumstances include that the stairs were old; that, contrary to the plaintiff's evidence (par 35 of her statement) the stairs were not "very steep"; that each part of the stairs contained only a few steps; that at the time the plaintiff was using the stairs the stairs were well lit; and that there was no feature of the design of the stairs which would not have been obvious to any user of the stairs. I will make further findings about the stairs later in the judgment.
115 At the hearing counsel for the plaintiff submitted that the plaintiff's account of how she slipped and fell, on which there had been little cross-examination, should be accepted. It is true that there was little cross-examination on the plaintiff's account. However, as was submitted by counsel for the defendant, the plaintiff's evidence about how the fall had occurred was brief and non-specific. In par 40 of her statement the plaintiff simply said that she felt her foot slip on the front of the step, she started to fall and was unable to save herself. The instructions given to Mr Burn were simply that the plaintiff had slipped and fallen. In cross-examination at the hearing the plaintiff agreed that she had told some doctors she had seen that she had no recollection of the fall, other than walking down two or three steps and then ending up on the landing.
116 In summarising the submissions of the parties I have referred to a submission, or rather a group of submissions, made by counsel for the plaintiff that, in the absence of evidence from or on behalf of the defendants on a number of matters, inferences adverse to the defendants could and should be drawn on those matters, including whether there had been previous accidents on the stairs and whether there had been previous complaints about the stairs and whether a fresh polyurethane coating had been applied to the stairs from time to time, which might have made the stairs more slippery. Counsel for the plaintiff referred to Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241.
117 These submissions invoke principles often compendiously referred to as the rule in Jones v Dunkel (1958-59) 101 CLR 298. The rule in Jones v Dunkel is discussed in Cross on Evidence Australian edition at par 1215 and was discussed by Campbell JA in Manly Council v Byrne [2004] NSWCA 123 at pars 44-55 and in Howell v Macquarie University [2008] NSWCA 26 at pars 93-99.
118 Some principles which emerge from the discussions are that an unexplained failure by a party to call evidence, when it would have been within the power of the party to call the evidence, may lead to an inference that the uncalled evidence would not have assisted that party's case. The inference may be drawn; it does not have to be drawn. The rule permits an inference that the uncalled evidence would not have assisted the party not calling the evidence. However, the rule does not permit an inference that the uncalled evidence would in fact have been damaging to the party not calling it. If the rule applies the tribunal of fact may draw with greater confidence an inference unfavourable to the party not calling the evidence, which is open on the evidence which has actually been given. The rule cannot be applied so as to fill gaps in the evidence or to convert conjecture or suspicion into an inference.
119 In the present case there was simply no evidence actually given from which any inference could be drawn that there had been previous accidents on the stairs or that there had been previous complaints about the stairs or that there had been a fresh application of the polyurethane coating to the stairs and therefore no inference which might be drawn with greater confidence because of the absence of evidence which might have been called by the defendants.
120 Such limited evidence as was actually given would tend to suggest an absence of previous accidents. The only accident Ms Phillips referred to was the accident to the plaintiff. Ms Phillips' evidence would suggest that she herself had used the stairs at least a couple of hundred times.
121 Brady v Girvan Bros, the case relied on by counsel for the plaintiff, was a very different case from the present. In that case it was held that a customer in a large and busy shopping mall, who slipped on a substance which had been spilled or dropped on the floor in a common passageway, was entitled to recover against the occupier of the shopping mall. The Court of Appeal held that in the circumstances of the case it could be inferred that the occupier did not have a proper system for watching for and removing spillages.
122 I consider that I should proceed on the basis that there is no evidence of any previous accident involving a person slipping or falling on the stairs and that there is no evidence of any previous complaint about the stairs and that there is no evidence that there had been a recent application of the polyurethane coating to the stairs.
123 Earlier in this judgment I referred to counsel for the plaintiff's summation of the plaintiff's case, that there was movement in the stair treads, that the stair treads were too short, that the nosings of the stair treads were slippery and that the handrail was inadequate.
124 Not included in the summation were the actions taken by the defendants (or by someone), subsequent to the plaintiff's accident, in applying, soon after the accident, the non-slip strips to the treads and in applying, in 2006, the aluminium nosings and the timber packers. I have already noted that the subsequent action of applying the non-slip strips was alleged in the statement of claim to be a particular of negligence and counsel for the plaintiff in his final address did make some submissions about both of the subsequent actions. It was submitted that the subsequent actions were more strongly indicative of negligence, because of their timing (they occurred soon after the accident or, it was suggested, soon after service of the statement of claim commencing these proceedings) and because of their obvious purpose, that is to make the stairs safer. However, I consider that, as appears to have been ultimately recognised by counsel for the plaintiff, the plaintiff is barred from relying on these subsequent actions as of themselves affecting liability, by the provisions of s 5C(c) of the Civil Liability Act.
125 Of the matters mentioned by counsel for the plaintiff in his summation the first matter mentioned was movement in the stair treads. Counsel said that he was not abandoning this matter, although he described it as "the most minor" matter on which he was relying.
126 Mr Burn said in his first report that "in certain parts" of the stairs he noticed that when he placed his foot on a step, the tread moved. Mr Burn did not identify "the certain parts" of the stairs. The plaintiff said in her statement that when she walked up the stairs they creaked under her feet. The plaintiff did not say in her statement anything about there having been any movement under her feet while she was descending the stairs.
127 I do not consider that I should find that some movement of the step on which the plaintiff had placed her foot played a part in the plaintiff slipping.
128 A matter strongly relied on by counsel for the plaintiff was that the treads of the stairs were, allegedly, too short.
129 On his first visit Mr Burn measured the goings or the treads of the steps in the top section of the staircase (Mr Burn would not appear to me to have distinguished between "goings" and "treads") and in his first report Mr Burn said that the staircase did not comply with ordinance 71 in that, inter alia, a number of the treads were less than 241 mm in width (that is, in length).
130 Mr Burn was correct in supposing that ordinance 71 applied to the building but was in error in supposing that any provision of ordinance 71 applied to the stairs. If ordinance 71 had applied to the stairs, then, according to the measurements made by Mr Burn on his first visit, the treads of the steps which could have been the step on which the plaintiff slipped, were not less than 241 mm and the amounts by which any of the other steps were less than 241 mm were very slight.
131 The current Building Code of Australia does not, of course, apply to the building at 18-20 Victoria Street. However, a measurement of 240 mm for a going (which was the measurement made by Dr Cooke for all of the goings, apart from one for which there was a higher measurement) would only be 10 mm (that is 1 cm) less than the minimum required by the Code for a public stair and would not be less than the minimum required for a private stair.
132 Mr Burn remarked in his first report that the risers of the stairs showed evidence of significant wear from being regularly struck by the toes of persons walking up the stairs. However, the stairs were possibly 80 years old and at least 50 years old (see agreed matters 1 and 3) and had clearly been extensively used and I would not infer from the evidence of wear on the risers that the treads of the stairs were too short.
133 Considerable reliance was placed by counsel for the plaintiff on the photograph of the plaintiff's foot taken by Mr Burn on his first visit, showing the heel of the plaintiff's shoe up against the riser of the step behind her and the toe of her shoe projecting over the edge of the step. I do not consider that this photograph has the significance sought to be attached to it by counsel for the plaintiff. I have already quoted par 37 of Dr Cooke's first report, which I accept and which I will now repeat:-
"There is no requirement for stair treads to be large enough to take the entire length of an adult foot without any overhang. In normal descent, the toe of the shoe naturally overhangs the nosing of the tread as the ball of the foot is placed on or near the nosing, irrespective of the size of the stair tread."
134 In his oral evidence Mr Burn agreed that it is normal for people to walk down stairs with part of their foot extending over the front edge of a step, with the ball of the foot being just behind it. In the photograph the plaintiff's foot projects only very slightly over the edge of the step (I accept, of course, that the plaintiff's heel is further back on the step than it normally would be).
135 Having regard to the measurements of the treads made by both Dr Cooke and Mr Burn and the evidence by both Dr Cooke and Mr Burn about how people normally walk down stairs, I do not accept Ms Phillips' assertion in her statement that because the steps were "narrow" she had to walk down the stairs sideways. The plaintiff did not suggest in her evidentiary statement that she was walking down the stairs sideways.
136 I consider that I should accept Dr Cooke's evidence that it would have required an extreme amount of wear for there to have been any significant rounding of the nosings so as to reduce the length of the treads and his evidence that an inspection by him of the photographs taken two weeks after the accident showed that there had been no significant rounding as a result of wear.
137 I also accept Dr Cooke's evidence about the distinction between "treads" and "goings", a matter about which Mr Burn sometimes seemed to be unclear, and his evidence that, while the fixing of the aluminium nosings with the pieces of timber had lengthened the treads, it had had no significant effect on the goings.
138 I turn to the question of whether the stair treads, and particularly the nosings, were slippery.
139 In his first report made after his first visit Mr Burn noted that the steps were "well worn". On his first visit Mr Burn did not make any measurements of the degree of slipperiness of otherwise of the steps.
140 On his first visit Dr Cooke did make measurements of the coefficient of friction of both worn and less worn parts of the stairs and obtained results indicating that the contribution of the surface, whether worn or less worn, to the risk of slipping was moderate to very low. The more worn the surface was the less slippery it was likely to be found. Dr Cooke did not make measurements of the coefficient of friction of the nosings of the steps, because by the time of his visit the nosings had been covered by the aluminium strips.
141 The results obtained by Dr Cooke were criticised on the grounds I have stated earlier in this judgment. The criticism that Dr Cooke had not adopted a proper method of proceeding (that is whether he had not used test paths giving a total of 800 mm) was not pressed at the hearing.
142 As regards the other criticisms, I accept that Dr Cooke made his measurements of the coefficient of friction more than three years after the accident and that he did not measure, because he was unable to do so, the coefficient of friction of the nosings on one of which the plaintiff slipped. However, Mr Burn observed, two weeks after the accident, that the stairs were "well-worn" and I consider that the results obtained by Dr Cooke for worn areas, even if the worn areas measured were not on the nosings of the steps, do provide guidance as to how slippery or slip free the nosings were at the time of the accident. Even the results obtained by Dr Cooke for the less worn areas were figures for the coefficient of friction of more than 0.4.
143 When Mr Burn did conduct his own tests, in 2008, of the stairs in the staircase (as distinct from the landings) he obtained only one result, on the fourth step, of less than 0.4).
144 Mr Burn did say in his oral evidence that the nosing of the step on which the plaintiff slipped could have contributed to her slipping, because, certain types of timber become smooth and polished from wear under use. However, he accepted that it would be necessary to identify the timber out of which the stairs had been made and to determine whether it was one of those types of timber which become smooth and polished as a result of wear, and neither of those steps had been taken.
145 Counsel for the plaintiff submitted that I should find that the handrail was inadequate.
146 A particular of negligence asserted in the statement of claim (par (h)) that the handrail was too "short" was not in fact pressed. I accept, as asserted by Dr Cooke, that, if the current Building Code of Australia had applied to the building including the staircase, only one handrail would have been required at a minimum height of 865 mm and the handrail on the left hand side of the staircase for someone descending the stairs would have complied with the Building Code of Australia requirements. The handrail on the right hand side of a person descending the stairs, which is the handrail which was actually used by the plaintiff was lower than 865 mm. Nevertheless I find that it provided a reasonable handhold for users of the stairs. I note that the plaintiff is a female who is not particularly tall.
147 The particular of negligence relating to the handrail which was pressed was that the handrail was rectangular, and not circular, in cross-section. I accept that this was not the optimum shape for a handrail but I find that the handrail was of a size and shape such as to enable it to be grasped. Mr Burn agreed in his evidence that, while round handrails are more common, he had seen rectangular handrails.
148 In my opinion, I should not find that there was a foreseeable risk of a person slipping on the stairs which was not insignificant, such that a reasonable person in the position of the defendants would have taken precautions against the risk. Alternatively stated, I do not consider that it has been established that the defendants failed to take such care as was reasonable in the circumstances. I find a verdict for the defendants.