Izzard v Stephenson[1997] QDC 96

BETWEEN:

AND

REASONS FOR JUDGMENT - JUDGE WOLFE

Delivered the 12th day of March 1997

In this action the plaintiff sues for damages for personal injury caused by a fall down the back steps of a house at 32 Ada Street, Margate on 17 July 1993. Quantum has been agreed but liability is in issue.

The plaintiff sued the defendants as personal representatives of Hazel Stephenson who owned and occupied the house prior to her death. She died shortly before the incident the subject of these proceedings. The plaintiff and her husband had been friends of Hazel Stephenson and they lived next door to the Stephenson house. At the time of the incident Hazel Stephenson's daughter, Deborah Stephenson, who is the second named defendant, was living in the house with her husband, Cameron Cherry, and their children. At the trial it was said that it was not in issue that the defendants owned the house.

The pleadings

The plaintiff claims her personal injuries were caused by the negligence of the defendants by failing to light or adequately light the back steps area by causing, permitting or allowing the area to remain in darkness because there was no globe in the light fitting on the steps and there was no attempt to replace the globe; in failing to ensure that the steps were safe for her use, and by failing to warn her of the state of the steps which allegedly were of a dangerous nature because they were said to be narrow, in very poor condition, some of them in disrepair and because the handrail was “insufficient”. She also alleged the defendants breached the Building Act and failed to comply with the Australian Standards for Design and Construction Direction of platforms, gangways, stairs and ladders number C A 10-1938 and Australian Standard 160 of 1976 Ultimately the plaintiff did not persevere with these last allegations as there was evidence that the house was constructed in about 1963 and had received relevant Council approval. It may be accepted that the stairs were not so constructed as to offend relevant by-laws or standards (cf Cicco v The Corporation of the City of Woodville (1990) Aust Torts Reports 81-028 at p 67,895)

The defendants pleaded that the fall and resulting injuries were caused or contributed to by the plaintiff's negligence in failing to keep an adequate lookout while descending the stairs, descending the stair too quickly and without appropriate caution. Alternatively, it was pleaded as a complete answer to the plaintiff's claim that the plaintiff consented to any risk associated with traversing the steps alleging that she had traversed the steps on many previous occasions, that she knew and fully appreciated the condition of the steps including the condition of the lighting, and if the steps were unsafe that she fully appreciated the risk of injury and freely chose to traverse those steps when the front steps could have been used.

the facts

The Stephenson house is constructed of chamferboard. The living area is above ground level and rests on stumps. The back steps run along one side of the house towards the rear, descending from an upstairs landing to the ground level. The back steps are positioned under the eaves above that side of the house. The handrail is fixed down the outer side of the steps. It is attached to a wall near the landing at the top of the steps, and at the bottom, to the second last step. A light is fitted under the eaves directly above the third or fourth top step. As the back steps descend from the landing they fall below the lavatory and bathroom windows on the upper or living level down to a concrete slab on ground level. In July 1993, the side of the house adjacent to the back steps was enclosed to the ground. There was a doorway to the right of the slab at the base of the steps, which opened to the area under the house where there was a carport area and a laundry. The laundry occupied the rear corner. The back steps faced a window in one of laundry walls, the window being about three paces from the bottom step.

the back steps on 17 July 1993

The Stephensons' back steps appeared, from photographs tendered at the trial, to be fairly steep. Photographs of the back steps of the house in which the Izzards lived at the time of the incident were also tendered. These suggest that Mrs Izzard's back steps were of similar dimension in so far as the distance between the top and bottom steps was concerned and she agreed at the trial that her back steps were of similar dimension to the Stephensons' back steps. However the Stephensons' back steps are constructed of hardwood, with about 11 painted wooden treads and wooden stringers. The treads were grey and the stringers white. Photographs of the stairway taken soon after the incident show that the paint was somewhat worn on the second bottom step and other steps. The Izzards' back steps appear from the photographs to be constructed of steel and concrete and the concrete treads are ridged. The Izzards' treads appear somewhat longer than the Stephensons' and rest on steel supports. Both stairways are fitted with a tubular handrail, apparently of similar design and dimension, although Mrs Izzard's hand rail was to the right when descending, and the Stephensons' to the left. There was no evidence of the measurements of the Izzards' back steps, but the photographs suggest that the handrail also finished at the second bottom step to which it was fixed.

The Stephensons' back steps were inspected on 31 December 1996 by Dr Ian Coyle, an occupational health and safety engineer Dr Coyle's report of 13 January 1997 was tendered and he also gave evidence at the trial. Between 17 July 1993 and the date of Dr Coyle's inspection significant alterations were made to the Stephenson house. These included the replacement of the second bottom tread of the back stairway. The evidence did not reveal why it had been thought necessary to replace the second bottom step after July 1993, nor whether or not the dimensions of the replacement tread or its placement in the stringers had varied from the dimensions and position of the original tread. Dr Coyle found with respect to tread width, that the back steps have an average rise of 181 millimetres and an average “going” of 251 millimetres, the “going” being the part of the tread upon which the foot may be placed while descending. The photographs indicate that the treads are situated in the stringers so that there is no effective overlap of treads which means, as Dr Coyle explained, that the first 5 to 10 millimetres of the “going” of each step had no tread surface. Dr Coyle's measurements, which were not challenged, suggest that the rise and “going” of the bottom four treads was relatively uniform, with a maximum variation in the riser height of 15 millimetres, and a maximum variation in the “going” of 5 millimetres. The evidence was such that I can only assume that before the replacement step was inserted, that the variations found by Dr Coyle were also present when the incident occurred. Steepness is sometimes measured as the ratio between the “going” and the riser height. Apparently the riser height and “going” comply with the relevant standards, except for those small variations found between the bottom, second bottom and third bottom steps. The plaintiff relied on these variations as having contributed to her fall, but in Dr Coyle's opinion they were minor and not such as would be likely to cause a fall or lead to a tripping accident.

The tubular handrail was 780 millimetres or about 30.7 inches above the nosing of the treads when measured by Dr Coyle, and was within what Dr Coyle described as the prevailing standards or his safe parameter. Dr Coyle thought the tubular handrail was too narrow to afford a fully adequate grip, but as the evidence emerged the dimensions of the handrail were not be relied upon by the plaintiff as contributing to her injury.

The fall

Mrs Izzard usually used the front steps when she visited the Stephenson home. On 17 July 1993, the plaintiff and her husband arrived at the Stephenson home about 6 or 6.30 pm It was about dusk. They had been invited to join Deborah Stephenson and her husband, Cameron Cherry for a barbecue. The Izzards walked up the front stairs to enter the house and after a short while both of them returned down the front stairs for the barbecue which was to be held in the carport under the house. Mrs Izzard was then aged 65 years old. Mrs Stephenson and Mr Cherry, both of whom gave evidence, appeared much younger than Mr and Mrs Izzard.

The light above the back steps was not turned on, as the globe or bulb had blown. Mrs Stephenson was aware of this. She said the bulb had not been working for the few days before the barbecue and she had not “got around” to replacing it. She knew that if the light had been working, it would have shone on the back steps and lit them quite well. As a consequence, it would seem that the only lighting then availed of to light the downstairs and back steps areas was a light in the carport, a light in the laundry, and a light in the kitchen reflecting through a door which opened onto the top landing. The carport light did not illuminate the steps, and there was a drier sitting on top of a table next to the laundry window facing the steps.

The laundry light was on while Cameron Cherry cooked the barbecue in the laundry area. They ate in the carport area at a table under the carport light which was on throughout the evening. Mr Cherry said the laundry light remained on while they were seated in the carport. About 7 p.m. Mr Izzard walked upstairs to the bathroom. Mr Izzard said he could not see the steps clearly while ascending the back steps and although there was some light at the top landing, otherwise it was very dark. On his return down the back steps Mr Izzard found it to be dark and the steps very narrow, so that he “crabbed down”, putting two feet on each step holding on to the handrail, which he found of assistance. Mr Izzard did not warn his wife of the state of the steps.

During the meal Mrs Izzard drank about two glasses of wine. They finished their meal about 8 pm. Mrs Izzard left the carport area to carry dishes up to the kitchen. She had not used the Stephensons' back steps often, she had never before had any trouble using the Izzards' steps or handrail but, as I accept, she had never used previously the Stephensons' back steps at night. She was wearing rubber soled shoes. She was not wearing her reading glasses but there was no evidence indicating that her reading glasses would have improved her sight of the steps. She noticed that it was dark. She said there was a “glimmer” of light through the doorway on to the top landing, but not enough to illuminate the stairs. She had no difficulty carrying the dishes up the back steps to the kitchen. She returned by the back stairs. She said she first noticed there was total darkness as she was coming down the stairs towards the lower half of the stairs. She said lighting from underneath the house gave no illumination at all. She said she had great difficulty seeing down the stairs and that the steps were very narrow, as were the treads. When she reached the last few steps one foot slipped, and then the other and she lost her balance completely, falling heavily and sustaining personal injury. She probably thought she had reached the bottom of the steps when she slipped. It seems she was not using the handrail when she fell, and in Dr Coyle's opinion a person who fails to use a handrail of appropriate height will substantially increase the risk of injury Mrs Izzard said in cross-examination:—

The defendants rely upon this evidence firstly as an admission that she did not use the handrail while descending the steps, and secondly that she knew that had she used the handrail she would have prevented or lessened the severity of her fall. This may not have been much more than hindsight on her part.

Cameron Cherry was the first to reach Mrs Izzard. He said he did not hear her slip or see her fall, but when he looked over, she was sitting on the bottom step. He said she said, “I missed the bottom step, the last step. It was my fault.” Mrs Izzard did not remember saying this. She may well have said this but even so this was not to say that she slipped only on the bottom step. She was in considerable pain and was later admitted to hospital.

the light

The main issue here is whether there was sufficient light illuminating the steps so that they could be traversed safely. Although Mr and Mrs Izzard, Mrs Stephenson and Mr Cherry appeared to be honest witnesses, their evidence conflicted in an important respect. The evidence of Mr and Mrs Izzard was to the effect that it was dark and at least the bottom steps were in darkness. Mrs Stephenson and Mr Cherry both said that the laundry light was on, only part of the steps were in shadow and that they could see the steps.

Mrs Stephenson said the laundry light remained on throughout the evening and that it was on when she went upstairs and when Mrs Izzard followed her upstairs. She said she could see the steps quite well with the laundry light, especially the bottom half of the steps. However Mrs Stephenson said she could not see all the steps although she could see where she was going, with some shadow to the side on the top part of the steps. She said it was only dark at the top, and even with the drier, the light still shone on the bottom of the stairs.

Mr Cherry also said the laundry light remained on and was on when Mrs Izzard fell. He said the laundry light gave “good light”, shining on the bottom half of the steps “enough to see”, although there was a shadow on the stairs, cast by the drier sitting on top of a cupboard next to the laundry window. The evidence of Mr Cherry and the photograph numbered 5 of Exhibit 8 indicate that the height of the aperture through which laundry light could shine was only about 18 inches. Nonetheless, Mr Cherry said he was able to see the steps clearly.

Both Mr and Mrs Izzard suggested there was no light on the stairs from the laundry contrary to what Mr Cherry and his wife said. Mr Izzard said he could not recall whether or not the light was on in the laundry area when his wife fell but he did not agree that the light shining in the laundry area illuminated the stairs. On previous occasions when Mrs Izzard had been to the house at night there had been light shining in the laundry area which shone out from the laundry in the direction of the stairs. Mrs Izzard said there was no light shining from the laundry at the time, and she thought that the laundry light was not on when she fell because it was very dark when she fell.

I came to the view that all the witnesses were generally witnesses of truth, that both Mrs Stephenson and her husband could see the stairs, but the bottom steps appeared to be in darkness to both Mr and Mrs Izzard. These conflicts in their evidence may be explained by Mrs Stephenson's and Mr Cherry's familiarity with the premises and their familiarity with the steps at night. Mrs Stephenson was not nearly as familiar as they with the area at night she was considerably older than Mrs Stephenson and Mr Cherry and although the Izzards' back staircase was generally of similar dimension, their handrail was on the opposite side to the Stephensons' and the Izzards treads were not similar the Stephensons', being constructed of ridged concrete quite unlike the Stephensons' painted wooden steps.

Accordingly, the evidence concerning the fall and the design and construction of the back steps established that:

Liability

The plaintiff's claim then depends upon whether the lack of illumination brought about a dangerous situation, or at least one where it was reasonably foreseeable that the steps in that condition posed a real risk of injury to a neighbour visiting the house.

the defendants' duty of care

Turning now to consider whether, under the ordinary principles of negligence, the relationship between the plaintiff and the defendants was such as to give rise to a duty of care on the part of the defendants to the plaintiff, see, Hackshaw v Shaw (1984) 155 CLR 614 at 662-663 per Deane J; Australian Safeway Stores v Zaluzna (1987) 155 CLR 479 at 488. Mrs Izzard was lawfully on the defendants' premises as a visitor. Mrs Stephenson, at least, as the resident at the premises, was responsible for the supervision and control of those parts of the premises where visitors, like Mrs Izzard, were likely to walk. That of itself established the relationship giving rise to a duty on Mrs Stephenson's part to take reasonable care to avoid any foreseeable risks of injury to which Mrs Izzard might be exposed while on the premises. However there was no evidence that the first-named defendant, apart from his ownership of the premises, was in control of them. The defendants did not plead nor argue that the first-named defendant could not be found liable because he was merely the owner. The defence seemed to be conducted on the basis that if Mrs Stephenson was liable, then both were liable. I shall proceed on that basis, that is, that the first-named defendant by himself and by Mrs Stephenson had the requisite control of the premises, and that they were the “private owner[s] who, in exercise of proprietary or possessory rights can give or refuse permission for entry”, (Nagle v Rottnest Island Authority (1993) 177 CLR 423 per Brennan J at 436) But Deane J's approach, as was said Brennan J said at 435-436, is -

Here Mrs Stephenson knew the light, which could have given good illumination, was not on, and as the defence was conducted, foreseeability is not critical in finding, as I do, that the defendants owed the requisite a duty of care to Mrs Izzard and other visitors on the premises. But foreseeability was in issue in determining whether there was a breach of that duty, see Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 430. The defendants submitted that in the relevant circumstances, the risk of injury to visitors like Mrs Izzard descending the steps was one which was not reasonably foreseeable. They relied upon Jaenke v Hinton (1995) Aust Torts Repts 81-368, Goddard v Cairns and District Masonic Club (C.A. 47/1983; Full Court, 9 December 1983, unreported) and Woodward v. The Proprietors of Lauretta Lodge Building Units Plan Number 1792 (D.C. 769/1993; Judge Brabazon, 27 September 1996, unreported) as showing the risk was not reasonably foreseeable and there was no breach of duty. The latter decisions involved plaintiffs foiling down steps. In Goddard the fall was in darkness, the plaintiff being an invitee who was very familiar with the premises and could easily have switched on the light which would have illuminated the steps or made arrangements to that effect, and in Woodward the fall occurred when the plaintiff was distracted by the presence of mango leaves on the steps in the common area. The defendants pointed to Mr Izzard's not having warned his wife of any danger after he had descended the steps The Izzards may well have been classified as licensees under the principles which once defined the limits of an occupier's liability but his failure to warn his wife does not establish that the risk of her falling was not reasonably foreseeable. However as Williams J said in Jaenke v. Hinton,

foreseeability - breach of duty

Did the lack of lighting or poor lighting of the steps pose a risk of injury to Mrs Izzard or to other visitors on the premises, such that there was a real risk that someone like Mrs Izzard might fall or trip because the bottom steps were in darkness. This is to be answered in accordance with the law as stated in Hackshaw v. Shaw (1994) 155 CLR 614 at 662-663, in Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 CLR 479 at 488, and in Wvong Shire Council v Shirt (1980) 146 CLR 40 at 47-8. These principles have been explored and explained in Phillis v Daly (1988) 15 NSWLR 65, Inverell Municipal Council v Pennington (1993) Aust Torts Reports 81-234 and by the Court of Appeal in Jaenke v Hinton [1995] Aust Torts Reports 81-368, 62,805, which is of course binding on me.

Does the evidence show that the relevant risk was reasonably foreseeable and if so should the defendants be liable for breaching their duty to her? This is to be answered by considering the magnitude of the risk and its degree of probability, that is whether the risk was more than far-fetched or fanciful, and whether on the balance of probabilities any reasonable steps that the defendants might have taken to reduce the risk would have eliminated or materially reduced the risk of injury to the plaintiff In Wyong Shire Council v Shirt (1980) 146 CLR 40 Mason J said at 47-8

The risk of injury to persons slipping or falling while descending steps in darkness was one which ought to have been known to the defendants. The fact that the bottom steps were cloaked in shadow or darkness constituted in my view, a particular problem or danger for visitors of the age of the plaintiff. Although it may have been quite safe for the residents to descend the steps when part of the stairway was in darkness, this must be qualified by the following considerations. Firstly, Mrs Izzard was not a resident who was in the habit of traversing that stairway at night; secondly, her age and build suggest she would not have been as agile as a younger person and thirdly, it seemed to me that even a person with some familiarity with the stairway would be placed in obvious danger if descending the stairway at night for the first time if part of the stairway was in shadow. Persons such as Mrs Izzard ran the risk of not seeing or noticing steps concealed in shadow or darkness. The fall was the very kind of thing likely to happen to a visitor walking down the steps at night when there was insufficient light to define the last few steps. The risk presented by the last few stairs being bathed in shadow, and therefore in darkness, was more than far-fetched. Those who owe a duty of care to others must take account of the possibility of the momentary inadvertence of the person to whom the duty of care is owed or that that person might not take proper care for her or his own safety: see, Bus v Sydney City Council (1989) 167 CLR 78 at 90; Nagle v Rottnest Island at 431.

I But the existence of a foreseeable risk of injury does not itself dispose of the question of breach of duty. The expense, difficulty or inconvenience, if any, in alleviating that risk must be assessed in the context of how a reasonable person in the defendants' position as opposed to one who is “remarkably cautious” or “most unusually, or obsessively, apprehensive of harm to others” (Jaenke v Hinton (1995) Aust Torts Repts 81-368, per Pincus JA at 62,807) would have responded to that risk.

The risk posed by the darkness was not such that it a reasonable person would accept it, rather than feeling it was necessary to remove it and would have been easily eliminated by replacing the burnt out globe in the overhead light. It was not suggested that it would have been difficult to replace, nor indeed costly Consequently the defendants breached their duty to Mrs Izzard.

causation

Generally when an injury occurs within an area of foreseeable risk it will be taken that the breach of the common law duty caused or materially contributed to the injury, absent evidence that the breach had no effect or that the injury would have occurred even if the duty had been performed, see Sutherland Shire Council v Hevman (1985) 157 CLR 424 at 427; Bennett v Minister for Community Service (1992) 176 CLR 408 at 420-421. However the defendants say that her failure to take hold of the handrail as well as her descending the steps while appreciating it was dark, are factors which absolve them of any breach of duty or liability In the Goddard appeal the issues included the sufficiency of the plaintiff's knowledge of the danger as constituting a defence as well as the effect of full appreciation of the danger in converting an “unusual” danger to a “common” danger. Although Derrington J (with whom Matthews and Sheahan JJ concurred) referred to Commissioner for Railways (NSW) v Anderson (1960) 105 CLR 42 at 49 and 54-55 - one of the judgments later identified by Deane J (Hackshaw v Shaw 155 CLR 614, at 642, 648 and 655) as demonstrating the High Court's movement towards treating occupier's liability as being governed by the ordinary principles of negligence - the Full Court could not disregard the special rules for determining the ambit of an occupier's duty. In those days an occupier was liable to a licensee if the occupier knew of the actual danger, or to an invitee if the occupier knew or ought to have known of it, which is not the same test (although in some circumstances it may achieve the same practical result) as the Wvong v Shirt test: see, Phillis v Daly (1988) 15 NSWLR 65 at 73-74 per Mahoney JA.

In light of the finding that she slipped and fell because she did not see the bottom steps, it follows that the defendants' breach of duty caused or materially contributed to her injury.

whether the plaintiff appreciated the risk

The defendants pleaded both contributory negligence and volenti non fit injuria, both of which were available to an occupier pre-Hackshaw v Shaw. Mrs Izzard was not unfamiliar with the steps, and when she was returning down the steps she did not encounter an unfamiliar obstacle in the dark area But one cannot infer from her familiarity with her own back steps or some familiarity with the Stephensons', that she should have expected the stwo last steps when she slipped It is quite reasonable for a person to assume that he or she has reached the ground level when the last few steps are in darkness. No doubt she could have returned safely by way of the front steps, had those steps and the area from the front steps to the carport been illuminated. However she followed Mrs Stephenson up the back steps without mishap, and she could have reasonably expected to return safely by way of those steps as Mr Izzard had. A successful plea of volenti involves proof of two elements firstly, an appreciation by the plaintiff of the risks involved in the undertaking, and secondly, full acceptance by a plaintiff of those risks: Roggenkamp v Bennett (1950) 80 CLR 292, 300, Suncorp Insurance & Finance v Blakeney (1993) 18 MVR 361, 364-5, 368. It is usually impossible to infer full acceptance of the particular risk from the mere fact of the plaintiff's having undertaken the activity said to give rise to the risk, see: McPherson v Whitfield (C.A. 121/1994, Court of Appeal, 15 March 1995, unreported). The defendants did not discharge the onus of persuading me that in the circumstances Mrs Izzard's failure to use the handrail while walking down the steps from the partly lit landing towards what she perceived to be darkness shows that she fully accepted the risk of a fall or a slip.

Contributory negligence

Her failure to use the handrail while appreciating the darkness, the steepness and narrowness of the steps, are also relevant in considering whether she failed to take reasonable care for her own safety or unnecessarily exposed herself to a danger which she knew or ought to have known might cause her harm. The basis upon which negligence is found is that in the absence of light on the critical steps the flight of stairs was dangerous to visitors descending the stairs. The photographs show the handrail ran only to the second last step, as did the Izzards' handrail. But Mr Izzard's use of it and the expert's evidence indicate that had Mrs Izzard been reasonably prudent she would have used the handrail while descending the steps. She should have been aware that had she done so, she may have been saved from a fall or injury. This position cannot be camouflaged under the label of ‘inadvertence’, she was careless and this amounts to negligence on her part which directly caused or contributed to the damage of which she complains, see Bankstown Foundry v. Braistina 160 CLR 301, 310 In weighing the culpability of each and comparing the omissions of the defendants and the plaintiff in causing the injury (Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494, applied in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 311). I conclude that the plaintiff's share of responsibility is 40 per cent, and apportion 60 per cent against the defendants.

Accordingly the plaintiff is entitled to judgment and I will hear submissions as to the form of order and as to costs.