Preusker v Conrad International Hotels Corporation
[2000] QCA 3
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- Preusker v Conrad International Hotels Corporation[2000] QCA 3
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Preusker v Conrad International Hotels Corporation[2000] QCA 3
Preusker v Conrad International Hotels Corporation[2000] QCA 3
COURT OF APPEAL
McPHERSON JA
DAVIES JA
BYRNE J
No 9252 of 1999
GLENICE PREUSKER Respondent (Plaintiff)
and
CONRAD INTERNATIONAL HOTELS Applicant (Defendant)
CORPORATION
BRISBANE
DATE 01/02/2000
JUDGMENT
McPHERSON JA: This is an application by the defendant for leave to appeal under s.118(3) of the District Courts Act against a judgment for the plaintiff in an action in the District Court. The plaintiff was injured when she slipped on a flight of stairs in the defendant's casino. At the time her attention was focused on getting a cash card out of her handbag and she did not realise that she was approaching the stairs. She was, in short, not looking where she was going, but she was, it must be said, also looking down and the steps were within the ambit of her peripheral vision.
There was, however, expert evidence from a Mr Shepherd, which His Honour the trial Judge accepted, that the visual cues, as they were called, to the presence of the stairs as one approached them were not entirely satisfactory.
Mr Shepherd said there would be a reduction in the risk of such a fall in a case like this if the tread nosing was more conspicuous; for example by the provision of white or yellow skid bands at the top or the top step. There was also evidence from Dr Grieg, who was the expert engaged by the defendant, that such delineation is common in the case of high use stairs in buildings of this kind.
His Honour considered the case was, to adopt his phrase, finely balanced, but that, given the colour of the granite at the top of the stairs, a more definitive edge ought to have been provided by the use of a white or yellow non-skid band. The learned Judge concluded that the defendant had failed to provide sufficient colour definition on the nose of at least the top tread of the stairs in the present instance and so could be said to have been negligent.
He then went on to say that it was "only necessary for the plaintiff to establish that the failure by the defendant was a material contributing factor to her injury or injuries". There is, to my mind, no doubt about the authority in law of that test of causation (see March v. Stramare (1991) 171 C.L.R. 506, 514, in the judgment of Chief Justice Mason, with which Justice Toohey and Justice Gaudron agreed).
By implication, His Honour the trial Judge also found, as I read that passage in his reasons, that that failure was a material contributing factor in the plaintiff's injuries although it must be said that he did not specifically or expressly say so. That, as Justice Deane said in the High Court to which I have referred, is simply a matter of commonsense and experience.
His Honour therefore gave judgment for the plaintiff for $9,000 in damages. Quantum had been agreed at $15,000 and he reduced the award by 40 per cent to allow for the plaintiff's own contributory negligence as he found it to be.
On the applicant's behalf before this Court it was said that the Judge had misdirected himself as to the proper test for causation. Having regard to the passage I have quoted on this subject, and to the implication which I consider is to be found in it, I do not consider that to be so. There is, perhaps, slightly more substance in the submission that His Honour may perhaps have misapplied the test. But, in the end, the amount involved is small and apportionments of liability in cases of this kind and, indeed, all others involving negligence are, it has often been said, not lightly to be interfered with.
I see no risk that in future actions of this kind, or at this level of amount, the decision in this case will constitute a precedent. The question before His Honour was entirely one of fact and so it will be in any future case. Contrary to the applicant's submission before us, the decision in this matter is not likely to shake the faith of the public in the judicial process. The matter is, in the end, not one that in my opinion attracts or ought to attract the intervention of this Court, and I would refuse the application for leave to appeal.
DAVIES JA: I agree.
BYRNE J: I agree.
HIS HONOUR: The order is that the applicant must pay the costs of and incidental to this application for leave.
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