BENJAMIN SCOTT (ALSO KNOWN AS BENJAMIN SKORJENKO) v CORAL GWENDOLYN STANSBU RY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, PRIESTLEY and HANDLEY JJA 13 June 1990, 13 June 1990 [1990] NSWCA 162 NEGLIGENCE — no contributory negligence when prospective purchaser inspecting house for sale falls down steep steps after warning because this very danger which established defendant's liability — no question of principle. COSTS — Bullock order — circumstances in which will be made — Gould and anor v Vaggelas and Ors (1985) 156 CLR 215 at 229-30. Samuels JA On 15 March 1986 the appellant (who I think I can call the owner') was the owner of domestic premises at Stockton. On that day the first respondent (whom I will call "the plaintiff') called as a prospective purchaser. She was attended by members of her family, whom it is not necessary to notice further, and also in attendance was a Miss Killy, who was then employed by real estate agents acting for the owner, and the tenant of the premises, a Miss Gilson. The matter (following an accident to the plaintiff which I will retail in a little more detail presently) came before Judge Herron, who gave judgment for the plaintiff against the owner and judgment for the agent and the tenant, both of whom were sued, against the plaintiff and made certain orders for costs, to which it will be necessary to refer also. The owner has appealed, not against the finding of negligence against him but against the learned Judge's refusal to find contributory negligence against the plaintiff and to diminish his assessment of damages on that account. In addition, the owner complains that the learned judge fell into error in exercising his discretion on costs when he made a Bullock order in favour of the plaintiff, which required the first defendant, the owner, to indemnify the plaintiff against the costs in favour of the third defendant, the agent, which followed the result which I have indicated. The facts are these. There was a flight of stairs in the house leading to what was described as the attic. The treads were narrow and worn and the steps were steep. Almost as soon as the plaintiff had entered the premises the tenant warned her of the steepness of the stairs. Her evidence was: "I did say to be careful with them because someone said they were steep, about the steepness, and I said to be careful." Further, the learned judge found that before the plaintiff mounted the stairs the agent's representative, Miss Killy, said of the stairs, "Please be careful of these stairs. They are steep" and repeated a warning in the same terms before the plaintiff began her descent. There was a wooden handrail of sorts against the wall on one side of the stairs, but his Honour found that it was set too low to afford any reasonable assistance to a person descending the stairs and was thus inadequate. 2 UNREPORTED JUDGMENTS On this ground - that is to say, the absence of an adequate handrail - the learned judge found that the owner had failed to comply with his duty of care which his Honour found was owed to the plaintiff and which was to use reasonable care to prevent injury in all the circumstances of the case. As I have said, that finding is not challenged. What is challenged is the rejection of the owner's argument that the plaintiff's failure to use reasonable care for her own safety was a contributory cause of her injury. Mr Glissan has put his argument with admirable persistence and ingenuity but lam afraid it has completely failed to convince me. Not the least of his problems is that there is no evidence as to how the plaintiff came to fall. She was unable to explain what happened and none of those there could do so either. In those circumstances, it seems reasonable to infer that she fell because, as his Honour found, the treads were narrow and worn, the steps were steep and there was no adequate handrail. That is to say, she fell precisely because of the danger which established both the duty and the failure to make it good. I can see no evidence of any want of care on the plaintiff's part. The fact that she knew that the steps required some care in negotiation, which she must have appreciated following the warning, is not enough to establish contributory negligence. I do not think that anyone now regards London Graving Dock Co Ltd v Horton (1951) AC 737 as good law and, of course, it has not survived the changes in the law on occupiers' liability which follow upon recent decisions of the High Court. But it is still correct to say, in my view, following Smith v Austin Lifts Ltd (1959) 1 WLR 100 that it is only where a plaintiff foolishly underestimates a risk of which he or she is aware or wholly mistakes the nature of the hazard that a defence of contributory negligence will succeed. Neither of those factors exist in the present case. Accordingly, I think the learned judge was correct in rejecting the defence. The second point I have already adumbrated. The learned judge, as I have said, gave judgment for the plaintiff against the owner, the first defendant, and for the tenant and the agent against the plaintiff. I should interpolate that the tenant was joined to this appeal as the second respondent but we were told that the issue between the appellant and the second respondent has been compromised and the second respondent did not appear and her position need not detain us further. We have already made a formal order disposing of that issue. The order which has attracted this part of the appeal was one in which the learned judge ordered the plaintiff to pay the costs of the agent, the third defendant, but ordered the first defendant, the owner, to provide an indemnity against those costs. The argument is that in making this order, which of course was a discretionary one, the exercise of his Honour's discretion miscarried. What his Honour said was: "No Bullock order should be made unless the plaintiff's claims against the respective defendants are in a real sense interdependent or alternative, or the conduct of the unsuccessful defendant is such as it is just to impose liability for costs." Then his Honour concluded that "it would not be unjust" to make the order in suit. The principle has recently been stated in Gould and anor v Vaggelas and Ors (1985) 156 CLR 215 at 229-30 by Gibbs CJ in these terms, adopting what was said by Blackburn CJ: URENJAMIN SCOTT (ALSO KNOWN AS BENJAMIN SKORJENKO) v CORAB GWENDOLYN STANSBU RY (Handley JA) "There is a condition in the making of a Bullock order in addition to the question whether the suing of the successful defendant was reasonable; namely, that the conduct of the unsuccessful defendant has been such as to make it fair to impose some liability on it for the costs of a successful defendant." I would not dispute Mr Nelson's proposition that it was reasonable to sue the agent but I do not think that there was any conduct on the part of the owner which would make it reasonable to impose upon him any responsibility for the third defendant's costs. The owner in his defence asserted that a representative of his agent gave the plaintiff an adequate warning. The plaintiff disputed that the warning was adequate. But the first defendant, the owner, called the agent's representative in his case and counsel for the plaintiff did not cross-examine her to suggest that the warning to which she had deposed was inadequate or did not fully set out her knowledge of dangers on the premises. It was not suggested at the trial that the agents had a separate duty to acquaint themselves with the peculiarities, if any, of the premises to enable them to warn prospective purchasers, nor did the owner attempt to pass any liability of his onto the agent. It was not at all such a case as that which often develops in a two-car collision in which the plaintiff as a passenger may be in real doubt as to which of the two defendants he or she should sue. I am not quite sure that his Honour incorrectly described the principle but, to my mind, with all respect, he did not correctly apply it and his discretion miscarried. That being so, it falls to us to exercise it afresh and I would not make any Bullock order in this case. I would leave the plaintiff to bear the third defendant's costs without indemnity. The appeal therefore has succeeded, but upon one of two grounds. We invited counsel to address upon the costs of the appeal and, having heard argument, we are of the view that we should order the respondent to pay half of the appellant's costs of the appeal and to grant the respondent a certificate under the Suitors' Fund Act. I would therefore propose that those orders should be made. Priestley JA I agree with what has been said by Samuels JA. Handley JA I also agree. The orders of the Court therefore are that the appeal is allowed. The special order for costs made by the judge below is set aside. In lieu thereof we order that the plaintiff/respondent should pay the costs of the third defendant at the trial. The respondent must pay half of the appellant's costs of the appeal and is entitled to a certificate under the Suitors' Fund Act. Counsel for the Appellant: PR Glissan Solicitors for the Appellant: Shaw McDonald Counsel for the Respondent: D Nelson Solicitors for the Respondent: Curtis and Co (Muswellbrook)