BOWTELL v. HOVAN & ANOR. [1999] NSWCA 53

New South Wales Court of Appeal CITATION : BOWTELL v. HOVAN & ANOR. [1999] NSWCA 53 FILE NUMBER(S) : CA 40807/97 HEARING DATE(S) : 10 March 1999 JUDGMENT DATE : 10 March 1999

PARTIES : Gary Leonard Bowtell (Appellant) L. Hovan (a male) and N. Hovan (a female) t/as Jack Daniels Tavern (Respondents) JUDGMENT OF : Powell JA at 1; Beazley JA at 22; Stein JA at 23

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 6/97 (Singleton) LOWER COURT JUDICIAL OFFICER : Williams A-DCJ

COUNSEL : R.S. McIlwaine SC/M. Eagle (Appellant) R.A. Cavanagh (Respondents) SOLICITORS : Curtis & Delaney (Singleton) by their City Agents Taylor & Scott (Appellant) Henry Davis York (Respondents) CATCHWORDS : NEGLIGENCE - Occupier's liability - Injuries to persons entering premises - Duty of care - Factors to be considered in determining if duty breached - Standard of care DECISION : Appeal dismissed

6 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40807/97 DC 6/97 (Singleton)

POWELL JA BEAZLEY JA STEIN JA

10 March 1999

BOWTELL v. HOVAN & ANOR.

JUDGMENT

1 POWELL JA: This is an appeal from a judgment delivered by Williams ADCJ on 30 October 1997 in proceedings which had been brought by the Appellant seeking to recover from the Respondents damages for injuries which he had sustained when he slipped and fell in an hotel which was conducted by the Respondents. 2 The hotel which the Respondents conducted was situated in the town of Singleton. In what appears to have been the Lounge Bar of the hotel, where the accident happened, there was an open fireplace. In front of the fireplace opening was a raised brick hearth approximately 2200 mm in width stretching across the fireplace opening and the brick surrounds, and about 500 mm in depth. 3 The level of the brick hearth was some 65 mm above a quarry tile surround which extended 1450 to each side of the hearth and 800 mm forward of it. At the edges of the brick hearth was a shaped wooden surround which rose to a height of about 45 mm above the quarry tile surround. From the edge of the fireplace opening to the edge of the timber surround in the particular part where the Appellant was when he slipped and fell was a distance of about 300 mm or a little more. 4 Surmounting the fireplace and hearth was a mantelpiece which was some 200 mm in depth and extended to the edges of the hearth so that anyone who stood in front of the open fireplace but on the hearth had very little room in which to move either to the side or to the front before moving off the hearth and on to the quarry tiles. 5 When, on the occasion in question, the Appellant attended the hotel and entered the Lounge Bar, there was a fire burning in the fireplace. The Appellant, so he said, was, at the time, standing to the side of the open fireplace but on the brick hearth with "a stubby" of beer in his hand. He turned to place "the stubby" on the mantelpiece which was behind him, and as he turned again, so he said, his foot twisted and he fell to the side. It would appear that a friend who was nearby tried to steady him but he fell on top of the Appellant and the Appellant suffered a spiral fracture to his leg. 6 In the result, after he had recovered, the Appellant brought the action for damages to which I have referred at the beginning of these reasons. 7 The case which the Appellant, in his Statement of Claim sought to make was based on the following particulars of negligence (RAB 3) (a) A failure to warn the Appellant of the presence of uneven flooring about the fireplace. (b) Permitting the floor to be uneven. (c) Failing to make the floor level and safe. (d) Failing to erect warning signs about the uneven floor. (e) Failing to barricade the area about the uneven floor. 8 To support the case which he sought to advance the Appellant relied, inter alia, upon the evidence of a consulting engineer, Mr Burn. 9 In his report (Exhibit "A" - CAB 52-53) which he provided to the Appellant's solicitors Mr Burn wrote (inter alia):- "There are two major hazards: - (1) The surrounding timber comprises a low step which would not be clearly visible in the poor atmospheric lighting in the area and (2) The actual brickwork where the accident took place has been heavily trafficked and the small cut brick sections have fragmented leaving recesses sufficiently large to trap customers' heels." 10 In the event, however, the hazards identified by Mr Burn proved to be supremely irrelevant, for the undoubted evidence at the trial was that the lighting in the area was anything but poor; and, as well, that the incident involving the Appellant's fall did not occur in that area which had been identified by Mr Burn as having been heavily trafficked and leaving recesses sufficiently large to trap customers' heels. At the trial, therefore, Mr Burn was obliged to concede (CAB 35) that the hazards to which he had referred were of no consequence. 11 However, before he had made that concession in the course of his cross-examination Mr Burn had been asked by counsel then appearing for the Appellant certain questions directed toward the feasibility or otherwise of removing the elevated brick hearth and the cost that would be involved if that were undertaken. To those questions Mr Burn indicated that the cost to produce a reasonably level surface back to the edge of the carpets from the fire place would be approximately $1,000 to $1,500. 12 The evidence that was tendered on behalf of the Respondents included that of Associate Professor Morton who was not cross-examined, and who, in a report (Exhibit "1" - CAB 83-102) which he provided said (inter alia) (CAB 90-91): "The quarry tiles themselves are well-laid, cement-grouted essentially flush with the surface, and are free of any irregularities or unevenness such as might provoke a trip or stumble. The Plaintiff may nevertheless be claiming that he tripped over the bevelled timber edging between the tiles and the carpet. The bevelled timber provides a smooth and gradual transition between the two surfaces (Figure 6) and in my view is entirely suitable for the application. In my experience such edging strips are in common use in domestic and commercial premises where it is necessary to provide a joint between differing flooring materials. Quite often much sharper transitions than this are used, for example by use of the narrow extruded aluminium cover strips widely used to protect carpet edges. The edge of the tiles and the wooden surround before the carpet are of course readily visible, and it is understood Mr. Bowtell had been in the tavern not only on previous occasions, but for some hours on the day in question before the alleged accident. He thus can hardly have been unaware of the presence of the strip. If he did stumble and fall over this feature one can only suggest that he was being extraordinarily clumsy and careless for his own welfare in not keeping a reasonable lookout and moving with the care appropriate to the circumstances. ……… Mr Burn claims to have identified two major hazards being the 'step' formed by the timber surround of the brick hearth and alleged fragmentation of the bricks. He gives no indication as to which of these alleged hazards it is claimed to have caused the accident or how they might have done so. However, he does identify the alleged location as being the front left corner of the hearth. I have discussed above the suitability of the timber hearth surround and for the reasons given above I disagree with Mr Burn that it represents an unreasonable hazard. Mr Burn does refer also to what is called the poor atmospheric lighting in the area. I note that there are three luminaires immediately above the hearth, each containing three unshaded candle style 40 W incandescent globes for a total of 360 W of lighting power. Apart from the pre-existing familiarity of the Plaintiff with the area, it seems most unlikely the Plaintiff could have failed to perceive that presence of the edge of the hearth on which he was apparently standing, if he tried to do so." 13 In the course of his judgment which, regrettably, is not a particularly outstanding example of judicial writing, the learned trial judge said (inter alia) (RAB 21): "The problem that I have with the plaintiff's case is that while I think it is foreseeable that someone could stand on the hearth I have difficulty seeing that a reasonable person would have foreseen that there was a real risk of serious injury likely to occur by virtue of a slip from the hearth. There could not be said to be an unusual danger or trap, to use the words of McHugh JA, as he then was, in Western Suburbs Hospital v Kurri (sic) 9 NSWLR at 511." 14 Mr. R.S. McIlwaine SC, who has appeared, today, with Mr Eagle for the Appellant, has sought to submit that, in the passage to which I have just referred, his Honour fell into error because, having, as he submitted, said that it was foreseeable that someone might stand on the hearth and nonetheless suffer injury, he then proceeded to indicate that the risk of serious injury was not one that could reasonably be foreseen. 15 If that were the true interpretation of what the learned trial judge said, I would have thought he had fallen into error. However, it seems to me that, when one reads the following passages in his Honour's judgment - and in particular those passages where he refers to the judgment of Sheller JA in Dailly v Spot on Investments Pty Limited ((1995) ATR 81-363) the judgment of Mason J (as he then was) in The Council of the Shire of Wyong v Shirt ((1980) 146 CLR, 40 at 47-48) and the judgment of Samuels JA in Phillis v Daly ((1988)15 NSWLR 65-68) - his Honour is not saying that there can be no negligence, or failure to fulfil a duty, if one could not foresee a serious risk of injury. 16 On the contrary, it seems to me on a proper reading of the whole of his Honour's judgment that what his Honour was saying was that although, there was a risk of injury which was foreseeable, that, did not mean anything other than that the possibility of injury was not so remote as to be rejected. His Honour's reference, in the later stages of his judgment, to the various judgments to which I have referred in my view indicates that, having assessed the prospect of injury as foreseeable, he was then proceeding to determine whether the risk of injury was such that some step other than those which had already been taken was called for. 17 In particular, his Honour referred, as I have indicated, to the judgment of Sheller JA in Dailly's case. There his Honour said (inter alia) ((supra) at 62,709): "In the present case relevant factors are that display stands are commonplace in shops. The display rack was obvious, the defendant could reasonably expect people coming into the shop would proceed around the display rack so as to avoid it and the display rack was in such a position as would not appear to a reasonable person to create a situation of danger likely to cause serious injury to a visitor with the shop. With this one can contrast an unfilled space between a false kerb and the permanent kerb and unexpected steep cement stairs in a stairwell a small distance to the side of a cement path. Like the example given by Mahoney JA in Phillis v Daly, a shopkeeper might place a chair at the counter for the convenience of persons like the plaintiff. It is reasonably foreseeable that a customer whose attention is distracted by looking to the shop assistant or at an article displayed on the shelves may fall over the chair and suffer the sort of injuries that the plaintiff suffered. It does not follow there must have been a breach of duty by the occupier of the shop notwithstanding that the shopkeepers may trade in shops without chairs or display racks and these may be easily removed. In my opinion the magnitude of the risk and the degree of probability when combined with the other relevant factors to which I have referred were not such as to lead to the conclusion that the defendant by placing and leaving the display rack where it did was in breach of a duty of care to the plaintiff." 18 Although the facts in the present case are, of course, different from those with which Sheller JA was dealing, the basic approach which his Honour adopted in that case seems to me to be apposite in the present case. 19 The present was a situation in which the Appellant was a regular patron of the hotel; he was acquainted with the particular part of the hotel where the accident occurred; and he was aware that there was a raised hearth and that there was the wooden surround to which I have just referred. 20 That the approach which the trial judge took in the present case was as I have suggested is indicated by the following passage towards the end of his judgment (RAB 26): "In a negligence situation there are two sides of the equation, the duty of care one owes to another, the duty that that other has to act reasonably for their (sic) own safety. In my view the magnitude of the risk and the degree of probability when combined with the other relevant facts such as the plaintiff's failure to look out for his own safety was such as to lead to the conclusion that the defendant by having a raised hearth was not in the circumstances in breach of any duty of care to the plaintiff." 21 I agree with his Honour's conclusion in that respect, and for that reason, I would propose that the appeal be dismissed with costs.