Rogers v Body Corporate for the Waterloo Crest
[2008] QCA 174
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- Rogers v Body Corporate for the Waterloo Crest[2008] QCA 174
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Rogers v Body Corporate for the Waterloo Crest[2008] QCA 174
Rogers v Body Corporate for the Waterloo Crest[2008] QCA 174
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | SC No 1794 of 2001 |
Court of Appeal | |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | |
DELIVERED ON: | 27 June 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 May 2008 |
JUDGES: | Holmes and Muir JJA and Mackenzie AJA Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Appeal dismissed with costs |
CATCHWORDS: | TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – CAUSATION – GENERALLY – where appellant plaintiff slipped on stairs in her building – where potential causes of the accident included the extinction of a timed light, lack of visually delineating features on the stairs, different riser heights between the first and second steps and a larger than recommended “nosing” on a step – where primary judge found respondents owed a duty of care in relation to the safety of the stairs – where primary judge attributed the appellant’s accident to the extinction of the timer light, and found that the respondents had not breached their duty of care – whether primary judge misinterpreted the appellant’s evidence or erred in the application of expert evidence –whether primary judge’s finding as to cause of the accident correct Batiste v State of Queensland [2002] 2 Qd R 119; [2001] QCA 275, discussed Betts v Whittingslowe (1945) 71 CLR 637; [1945] HCA 31, distinguished Rogers v Body Corporate for Waterloo Crest CTS 25235 & Anor [2007] QSC 369, affirmed Vyner v Waldenberg Bros Ltd (1945) 61 TLR 545, cited |
COUNSEL: | D B Fraser QC, with R W Trotter, for the appellant S C Williams QC, with S J Given, for the first respondent R N Alldridge for the second respondent |
SOLICITORS: | Anderssen & Company for the appellant Moray & Agnew for the first respondent Toogoods Solicitors for the second respondent |
[1] HOLMES JA: On 29 December 1999, the appellant (to whom I will refer as “the plaintiff”) suffered a neck injury when she fell down an internal flight of stairs outside her unit. The incident occurred in the early morning while it was still dark. Outside the door of the unit was a pneumatic switch which had to be depressed in order to activate the light over the stairwell. The plaintiff pushed the button, but, as the trial judge found, did not depress it fully. Consequently, the light came on as she began to descend the stairs, but went out again as she moved from the first step to the second. As she did so, her heel slipped on the tread of the second step.
[2] So far as is relevant here, the plaintiff’s case against the defendants was that as, respectively, the Body Corporate and the building manager for the property, they breached duties of care owed to her to ensure that the stairs were safe and to warn her of the need to press the timer switch right in. But the learned judge at first instance found that it was the shock which the plaintiff experienced when the light went out unexpectedly which caused her to fall, rather than anything about the condition of the stairs, and that a warning that it was necessary to depress the light switch fully would have made no difference, since the plaintiff was aware of the need to do so.
[3] The plaintiff appeals on the grounds that the learned judge made errors of fact and law. Her Honour erred when she “misinterpreted and misapplied” the plaintiff’s evidence that she had been shocked by the failure of the light, rather than regarding it as inconsequential in the fall. She ought to have accepted unchallenged expert evidence of defects in the stairs, in the form of different riser heights between the first and second steps, a second step the nosing of which had a larger than recommended radius, and a lack of visual delineation of the steps; and she should have concluded that those defects materially contributed to the plaintiff’s fall.
The evidence at trial
[4] At the time of her accident, the plaintiff, a young woman of 18, had been living with her baby in the first floor unit for seven months. On the day in question, she got up at 4.00 am to feed the child, and then decided to take some rubbish from her kitchen down to the common bin. Carrying the rubbish in her left hand, she opened the door of the unit and used her right thumb to depress the button in the centre of the switch. The light came on; she had got as far as the first step, with her right foot placed on it, and was moving to the second, when it went off again. She went to grab the handrail but did not have a full grip of it. Her left heel slipped on the nosing of the second step. (The stairs were carpeted, and the plaintiff was barefoot). She fell down four stairs and hit her head on a wall. In her words,
“…the light went off and it was just shock value as I went to go down the second step and I fell down the rest of the four stairs”.
[5] This was a theme she repeated at different points in her evidence:
“The light went off and it was more of a shock value and I didn’t have hold of the rail.”
“All I can say is that when the light went out it was shock value and I just fell down the stairs.”
“You also told us there was some fright factor involved when the light went out?-- Shock value, I got - it’s just like being in the light and then the dark goes off it scares you.”
The peculiarities of the light switch were not, however, unknown to the plaintiff. She knew that on occasions the light switch could be pressed in, and then pop out immediately. She avoided using the stairs at night time because of it; in the day time there was less of a problem.
[6] As to the actual mechanism of her fall, the plaintiff was asked:
“Can you explain why it was you slipped on the step?-- Why I slipped on the step?
Yes. How do you explain it to yourself, or ---?--- I can’t. All I know is I walked down the stairs, got on to the first step, went to walk on to the second step, the light went out, and just happened.”
There was nothing abnormal about the step she had taken when the light went out:
“See, isn’t it correct then if your foot hit the point where you have marked you were taking a fairly big step?-- No, I was just walking down the steps.
Don’t you agree normally that your heel touches about the middle of the step and the front, about the ball of your foot, touches the nosing when you’re walking down steps normally?-- Yes.
Okay. Well, what part of your foot?-- My heel.
Your heel touched the nosing, but not the middle of the step?-- It touched just the edge of the step, yeah.
Right. So you were taking a bigger than normal step?-- No, not really.”
[7] The suddenness of the light’s extinction was clearly significant. The plaintiff was asked:
“But you were used to the light going off, weren’t you?-- No.
You weren’t?-- Not at that time in the morning, and if I was to do it during the day, then I would be more prepared for it.”
And subsequently,
“If it was completely black in the stairwell and you walked carefully with the assistance of the rail, you could walk down the stairs?-- If I was prepared for it I could probably do that.”
[8] The plaintiff obtained a report from an engineer, Dr Ludcke, who had a doctorate in “incident investigation”. One of his colleagues had measured the stairs. The riser height from the top landing to the first stair was 205 mm, while the height from the tread of the first stair to the second stair measured 172 mm. That was a variation, Dr Ludcke said, in excess of the 5 mm or so “recommended by the research”; in cross-examination, he went further, saying that it was a “blatant breach of the building code”. According to his report,
“This reduction in the height of the step alone is an essential factor in the incident where Ms Rogers missed the second step and subsequently fell.”
[9] In cross-examination, Dr Ludcke explained how the difference in riser height could cause a fall. A person descending from one step to another had his or her leg muscles “fired” in preparation for the next step at a certain height. If the second step were higher than expected, so contact was made with the step before he or she was ready for it, the result could be an overbalance. Dr Ludcke agreed, however, with a proposition put to him that in most circumstances, the result of the earlier contact would be that the foot struck the second step closer to its rear than otherwise, although the difference would be a matter of millimetres. The height difference would, Dr Ludcke conceded, cause more of a problem for someone using the steps for the first time; although he would not be drawn into any greater concession. He was asked this question:
“Surely the more times you walked up and down – well, down the steps, the less significant the height difference would become?”
and responded
“Not necessarily. The more times you walk down the stairway, the more exposure you have to the hazard, and that’s – it’s a basic fundamental risk management strategy, where we’re looking at – the likelihood is based on exposure levels. The more exposure you have to a hazard, then the greater chance you have that something like this will occur.”
[10] There were, Dr Ludcke said, other risk factors, to do with the visual aspects of the stairs. The stairway was carpeted, so that it was difficult to see the edge of the tread against the background of the next stair, which was similarly covered and coloured. The nosing, or edge, of the step tread was rounded with a radius of approximately 35 mm, as opposed to the preferred radius of approximately 10 mm; that could lead to a false impression of where the true edge of the tread was. Those factors would cause a high risk of misstep. However, Dr Ludcke agreed, if the step could not be seen at all, because the light had gone out, whether there was adequate visual delineation of the tread became irrelevant.
[11] The plaintiff had said that she was very used to using the stairs, going up and down them every day. As to any difficulty with them, this exchange occurred in cross-examination:
“Just as an aside to that, when you did go up and down the stairs all day, you never had any trouble with the top step or the second top step, did you?-- There were a little bit far apart, but no, I don’t have any problem with them.
No problems with them. Even though they may have been far apart - sorry, all right. I will use your words, Even though they may have been a little far apart, they didn’t ever cause you any tumbles?-- I tripped once but that was about it in my whole time I was there.
You didn’t ever report it to Raine & Home that you thought there was a major problem with that step, did you?-- No. My problem was the light.”
Later in cross-examination, the topic was re-visited:
“You didn’t regard the change in the height of the top step or the second top step as being of any significance at all, did you?-- No.”
The reasons for judgment
[12] The learned trial judge found that when the timer light switch was properly activated, the light would operate for at least one minute, 48 seconds; and she found that the light went out because the plaintiff had not activated the switch properly. There is no challenge to that finding. Her Honour accepted that the accident occurred when the plaintiff’s foot slipped on the second step, but she drew these conclusions, to which the plaintiff takes exception:
“I accept the plaintiff’s evidence that she slipped on the stairwell when she got a “shock” when the lights went out and that it was not the physical state of the stairs that caused her to fall. The visual factors that Dr Ludcke identified in his report as risk factors (the shape of the nosing of the stairs and the lack of visual delineation of the edge of the stair tread) have no relevance, whatsoever, to the manner in which the plaintiff described her fall as occurring. It was not a case of her missing her footing because of these lack of visual factors (or the variation in riser height between the first and second steps), but the shock she got when the lights turned off unexpectedly.”[1]
[13] Both defendants, her Honour went on to find, owed the plaintiff a duty of care, but in neither case was it breached. The state of the stairs was not a contributor to the accident; the light switches were not defective; and the plaintiff knew that the button had to be fully depressed in order to operate the light switch properly, so no warning sign was required to alert her to that fact. Consequently, the plaintiff had failed to establish negligence on the part of either defendant and her proceeding against both defendants was dismissed.
The plaintiff’s submissions on the appeal
[14] Counsel for the plaintiff submitted that the trial judge had misapprehended her evidence, which did not indicate that she missed the step because the light went off. And even if her evidence did suggest that, it was mere speculation; the plaintiff did not really know the cause of her fall. She was taking what she regarded as a normal step at normal walking pace, so it was not the case that the lights going out had resulted in any change to her gait. There was no basis for the learned judge’s conclusion that the variation in riser height between the first and second steps had not caused her to fall. The expert had given the explanation that where the first riser was higher, the user of the stairs, anticipating a longer step than was necessary, could overstep on the next stair. Plainly, counsel said, the plaintiff had instinctively taken the same stride as she had on the previous step, with the result that her heel, instead of landing squarely on the tread of the second step, had struck the nosing and slipped off. Although the visual aspect of the nosing of the step was irrelevant (as Dr Ludcke conceded), it would be easier to slip on a broader rounded edge.
[15] The plaintiff had not given evidence, it was pointed out, that the condition of the steps did not contribute to her fall. To the contrary, her evidence was that her foot slipped on the nosing of the second step. She said that she had once in the past tripped on the steps, and although she had agreed that she did not regard the change in height at the top and second steps as being of any significance, that was not in the context of the particular fall. The trial judge should have inferred, from the combination of the expert evidence that the steps were defective and the plaintiff’s evidence that she had slipped on them, that the state of the stairs contributed materially to the fall.
[16] The plaintiff relied on the well known passage from the judgment of Dixon J in Betts v Whittingslowe[2] as to the inference of negligence in the absence of clear evidence of how an accident happened. In Betts, the appellant’s hand was crushed by a machine which, in breach of the relevant industrial regulation, was inadequately guarded. Even though the appellant’s own account of how the accident had happened was not feasible, the High Court held that he was entitled to judgment based on a breach of statutory duty. Dixon J referred to an English decision, Vyner v Waldenberg Bros Ltd[3], in which it was held that where there was a breach of a safety provision and a workman was injured in a way which could have resulted from the breach, the onus of proof shifted to the employer to show that the breach was not the cause. He continued:
“It is not necessary to enquire whether their Lordships meant more than that the breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty. In the circumstances of this case that proposition is enough. For, in my opinion, the fact warrants no other inference inconsistent with liability on the part of the defendant.”[4]
[17] That passage was the subject of consideration in Batiste v State of Queensland.[5] Thomas JA (with whom McMurdo P agreed) observed of it:
“On one view of it the comment simply enjoins judges when faced with breaches of such duties to consider whether there are any other competing causes for the accident that has occurred, and if there is no sufficient reason to the contrary, to find that the breach of duty caused the accident. I do not think any particular problem arises from such an approach, even if it is taken to be also applicable to other kinds of breach of duty.”[6]