Woodward v The Proprietors "Lauretta Lodge" Building Units Plan No 1792
[1997] QCA 183
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Woodward v The Proprietors "Lauretta Lodge" Building Units Plan No 1792[1997] QCA 183
Woodward v The Proprietors "Lauretta Lodge" Building Units Plan No 1792[1997] QCA 183
COURT OF APPEAL
FITZGERALD P
MACKENZIE J
HELMAN J
Appeal No 8426 of 1996
| FAY ESTELLE WOODWARD | (Appellant) |
| And | |
THE PROPRIETORS "LAURETTA LODGE" BUILDING UNITS PLAN NO 1792 | (Respondent) |
BRISBANE
DATE 12/06/97
HELMAN J: This is an appeal against a decision of a learned Judge of District Courts who, on 27 September 1996, dismissed the appellant's action for damages for personal injuries arising from her falling down some stairs on 20 March 1990. The stairs were in a building known as Lauretta Lodge in Toombul, Brisbane. The appellant was the tenant of one of the units, unit 3, and the respondent the body corporate of the home unit building.
Unit 3 was on the first level, immediately above the garages. It was at the rear of the building, and the appellant usually went up and down the rear steps, which were next to unit 3. The steps were divided into two flights, separated by an intermediate landing. Each flight was of eight steps. The steps were made of concrete with a steel trowel finish. Three parallel grooves were cut into the tread, towards the nosing. The stairs were equipped with hand rails. As one descended from outside unit 3 there was a hand rail bolted to the brick wall on the left. On the right side there was a wrought iron balustrade, capped with a similar hand rail.
There were, at the relevant time, two large mango trees growing not far away from the corner of the building closest to unit 3 and its adjoining stairs. The closer tree was taller than the whole building. Even though it was growing on a neighbouring property, it was so large that its topmost branches reached across the roof of the building. Some of the lower branches spread at least as far as the balcony outside unit 3.
The appellant said that there had often been mango leaves in the stairwell, and that there were about six there on the day of her fall.
There was some controversy at the trial about the presence of mango leaves. The appellant's friends, Mr Livingstone and Mrs Watson, said that leaves would, be present when they visited the appellant and walked up and down the steps. Another resident at the time, Mr Freeman, gave evidence to the same effect. On the other hand, another former resident, Mr Whelan, swore that there were never any mango leaves on the steps. He lived in unit 2, and was the appellant's neighbour. He was a resident from February 1987 to Australia Day 1991. He explained that it was his habit, every Sunday morning, to hose down the stairwell and sweep the concrete apron outside. His main aim was to get rid of any spiders, as he saw them as a threat to his young son. He said that he had never seen mango leaves on the stairs, that there had been no complaints about theft and that he had seen no one else having trouble using the stairs. He agreed it was possible for some leaves to blow onto the stairwell area after he had cleaned it on the Sunday. The appellant also cleaned the stairs occasionally and saw leaves there.
The learned trial Judge was satisfied that there were mango leaves present on the steps from time to time, and that it was likely that Mr Whelan disregarded them, and did not recall their presence there.
On Tuesday 20 March 1990 the appellant prepared to go to work. It was a fine, sunny day and the stairs were dry. She closed her front door at about 7.30 a.m. and turned to her left to descend the stairs. She placed her left hand on top of the hand rail, and went to step off the landing onto the first step. She then fell in circumstances which she alleged showed negligence or a breach of statutory duty on the part of the respondent.
The appellant was then thirty-eight years old. She was a small woman with a trim figure. She was used to outdoor activities, and was at least reasonably fit. Her eyesight was good, though she did use spectacles for reading. There was nothing about her, or her footwear, which made her particularly vulnerable to any problems on the stairs. She was carrying a handbag over her right shoulder.
The appellant never claimed to have had a precise recollection of the way in which she came to fall on the stairs. There were no witnesses. She said she had started to step down with her right foot and was in midstep when she saw a group of fairly fresh mango leaves on the first step. She then said that she did not know whether she stepped on them or whether her concentration was distracted and she fell. She tried to stop herself from falling by grabbing the handrail on her left-hand side. She blamed the three or four leaves on the step for her fall: she either stepped on them, or was trying to step over them when she fell. The appellant was clear that she grabbed for the handrail and managed to grip it. She did not recall precisely what happened after that moment until she found herself at the bottom of the steps on the landing. She then recalled that her left hand hurt, her left shoulder hurt, and the pectoral muscles under her left breast hurt.
His Honour found that it seemed most likely the appellant was successful in grabbing the handrail. Even though it was fixed closely to the wall so that there was. a gap of only one inch between the wall and the rail she could put her hand around it and grip it. While the fixing of the rail might have caused a larger person some difficulty she was able to do so because her hand was small and slim. His Honour concluded that the appellant was probably successful in grasping the rail. That, he found, was consistent with later soreness in her left hand, shoulder, and pectoral muscles. It was also consistent with her account to Doctor Moyle and Doctor Eraser, who recorded her as saying to him in August 1990 that she had landed awkwardly but was still holding onto the hand rail as she landed and that her neck and shoulders were immediately sore. His Honour found that the evidence about the appellant's fall established a number of things:
- She did have a fall down the steps on Tuesday 20 March 1990.
- A number of mango leaves were lying on the steps that morning. There were not more than six.
- It might be accepted, as the appellant said, that three or four of the leaves were on the first step below the balcony.
- There was no evidence that she slipped on the top step, either because it was slippery in any case or because the presence of a green leaf on the edge of the tread caused her to slip.
- The principal effect of her evidence was that she was distracted by the presence of the leaves.
- She was able to make use of the intended function of the handrail by gripping it.
- Had the appellant wished to, she could have grasped the railing or four vertical rails behind it on the top right hand side of the steps.
His Honour said that it might be accepted that steps in any building are the place where accidents are most likely to happen and that in a general way care has to be taken in their construction, maintenance and lighting. It was suggested that the condition of the steps at the time of the appellant's fall was deficient in a number of respects: the presence of the mango leaves, the fixing of the hand rail, and the slipperiness of the steps, combined with less than ideal natural lighting during the day time.
I should mention here that on the hearing of this appeal it was the presence of the mango leaves that was the matter relied upon by the appellant. His Honour found that it might be accepted that the appellant did notice the mango leaves as she was about to descend the stairs and it might also be accepted that her concentration was distracted in some way or, as she put it, that she baulked on seeing the leaves, and then fell.
His Honour's conclusion on the matter, of the mango leaves is set out on page 11 of his reasons for judgment. He said:
"In my opinion, the risk presented by the presence of the mango leaves was such that any danger of a fall was far fetched or fanciful. In daylight, the leaves could easily be seen and avoided by users of the steps. There were only a few leaves at the time. Their presence was a familiar feature of these steps. Indeed, the presence of the mango tree and its leaves can have caused no surprise to anyone used to living in south east Queensland, as was Mrs Woodward.
Even if there were a foreseeable risk, it is my opinion that no further steps were required to eliminate it. The body corporate acted reasonably in tolerating the situation that in fact existed. The small level of risk, balanced against the benefits of a handsome tree which provided shelter from sun and glare, meant that no further steps had to be taken. In principle, this case is the same as the Jaenke case and the result should be the same."
(His Honour was there referring to Jaenke & Anor. v. Hinton (1995) Aust. Torts Reports 81-368.)
The appellant's grounds of appeal were:
"(a)The learned trial judge, having found that stairs were the most dangerous part of a building, that leaves were present on the stairs, that the Appellant, in approaching the top of the stairs, baulked and fell as a result of the leaves, was wrong in finding:-
(i)the risk presented by the presence of the mango leaves was such that any danger of a fall was far fetched or fanciful;
(ii)that even if it was foreseeable, no further steps were required to eliminate it;
(iii)the body corporate acted reasonably in tolerating the risk;
(iv) the small level of the risk balance [sic] against the benefits of a tree meant no further steps had to be taken;
(b) the learned trial Judge ought to have found that the risk was foreseeable and that the simple expediency of cleaning the stairs and/or the cutting back of the tree would obviate the risk."
In my view the findings of fact made by his Honour were supported by the evidence, and the conclusions of law he came to on those facts were correct. I can detect no error in the proceedings before his Honour and should dismiss the appeal with costs.
THE PRESIDENT: I agree.
MACKENZIE J: I agree.
THE PRESIDENT: The appeal is dismissed with costs to be taxed.