McALLISTER v THE PROPRIETORS OF STRATA PLAN 8092 [1998] NSWCA 151

McALLISTER v THE PROPRIETORS OF STRATA PLAN 8092

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, SHEPPARD and FITZGERALD AJJA 28 September 1998, 19 October 1998 [1998] NSWCA 151

Appeal and new trial — findings of fact — assessment of expert evidence — no appealable error demonstrated.

Negligence — standard of care — correct test applied by trial judge

Mason P The appellant was severely injured when she slipped and fell down a carpeted stairway near the front door to her upper storey home unit in Carlton. The accident occurred shortly before 3.00am on 26 November 1992. The appellant was carrying a bag of rubbish to the ground floor garbage bin after having cleaned up her unit following a dinner party. She was bare footed. After traversing a narrow carpeted landing she began to descend the stairs leading downwards. At the top of the stairs she grasped a railing with her left hand and put her left foot on the top step. It slipped from under her and she commenced to fall. Her attempts to save herself only led to serious injury which included a displacement fracture of the right malleus, a displacement fracture of the right fibula and a compound fracture of the right tibia.

The appellant claimed damages for negligence, including in her amended Statement of Claim the following particulars of negligence:

Failing to remedy defects in the stairs so as to make them safe for the passage of persons like the Plaintiff.

Allowing the steps to become and remain slippery.

Failing to install appropriate anti-slip strips at each nosing, including that at the edge of the landing, as required by Ordinance 70.

Installing a type of carpet with hazardously low frictional properties.

Failing to replace the carpet with a carpet or other material with better frictional properties.

There was an issue at the trial concerning the immediate cause of the appellant's fall. The respondent's case was that the appellant was hurrying to catch up with a departing guest; and that the appellant was affected by alcohol, she having conceded that she had drunk in the order of a bottle of wine during the course of the evening. Patten DCJ did not find it necessary to resolve these issues. Specifically, he recorded in his judgment that he found it unnecessary to determine whether the appellant was proceeding cautiously to descend the stairs with the garbage or was in a hurry to catch up with her departing guest. Senior counsel for the appellant was critical of this aspect of the judgment. However, it was a course open to his Honour provided that the ground upon which the verdict in the respondent's favour was entered can be independently sustained. It can, for the reasons which follow.