Baulkham Hills Shire Council v Pascoe [1999] NSWCA 431

New South Wales Court of Appeal CITATION : Baulkham Hills Shire Council v Pascoe [1999] NSWCA 431 revised - 08/12/99 FILE NUMBER(S) : CA 40092/99 HEARING DATE(S) : Friday, 19 November, 1999 JUDGMENT DATE : 19 November 1999

PARTIES : Baulkham Hills Shire Council v Kevin Pascoe

JUDGMENT OF : Sheller JA; Giles JA; Brownie AJA

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Garling J

COUNSEL : K.E. Maconachie, QC for the appellant. G. Curtin for the respondent. Phillips Fox for the appellant. SOLICITORS : Sommerville & Co. for the respondent.

CATCHWORDS : No question of principle. CASES CITED: Ryan v Coles Myer Ltd, unreported, 9/11/95 DECISION : Refer paragraphs 12, 15 & 16.

- 4 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 040092/99

SHELLER JA GILES JA BROWNIE AJA

FRIDAY, 19 NOVEMBER 1999

BAULKHAM HILLS SHIRE COUNCIL v KEVIN PASCOE

JUDGMENT 1 BROWNIE AJA: The respondent was the plaintiff in an action for damages for personal injuries brought in the District Court. He fell while he was descending a flight of eight wooden stairs in premises of which the defendant below was the occupier. The learned trial judge, Judge Garling, found that the defendant was negligent. The defendant now seeks leave to appeal. The Court has heard argument as if on appeal. 2 If one looks only at the photographs of the stairs it is easy to accept that they were worn. That seems to have been a significant element in the learned trial Judge's reasoning, and indeed in the case that was made out before him. 3 The great difficulty with the plaintiff's case was that he was unable to describe how it was that he came to fall. In chief he said, correcting what seems to be an obvious error in the transcript: "As I was descending the stairs with the chairs and my foot slipped over the edge of the second or third step, I'm just not sure." 4 He was carrying either three or four chairs as he walked down this flight of stairs. He had done the same thing on a number of occasions earlier on the same day. When he fell, he fell forwards. In cross-examination he was asked whether all he could say about the accident was that he went to put his foot on one of the horizontal parts of the stairway, and he said that was correct. The transcript continues: "Q. But you can't say what part of that stair you placed your foot upon, can you? A. No, not really. Only that I slipped on the edge. Q. Do you know whether you put your heel, your toe or your mid-foot to the ground? A. No I'm sorry I don't." 5 Presumably the word ground should mean the tread of the stair. 6 The stairs were made of wood and there was a slight rounding of the edge between the tread and the riser of each step. That was evidently done, at least in party, for carpentry reasons, to avoid the wooden edge splintering. On the evidence the noses or edges between the treads and the risers were worn. 7 The plaintiff's case was founded largely upon the evidence of an expert witness, Dr Cook, whose evidence the trial judge accepted. He seems to have based his opinion upon the assumption that the plaintiff was walking down the stairs in a normal manner. It does not seem to me that that assumption is demonstrated by the evidence. It does not seem to me that one can assume that someone carrying three or four chairs down a flight of stairs is walking normally. That has its effect in that Dr Cook assumed, as I gather the trial judge did, that the plaintiff was walking down the stairs in a normal manner, that is to say aiming to place the ball of his foot at or close to the nose of the stairs, that is to say near the edge of the tread, where the tread meets the riser. 8 It seems to me that when one reads the evidence fairly that assumption is just not made out by the evidence. It might be that the plaintiff fell for the reasons Dr Cook assumed but I do not think the evidence establishes, more likely than not, that that was so. It might equally have been the case that the plaintiff fell because he did not lace his foot accurately upon the step as Dr Cook assumed. One cannot overlook the fact that his vision was impaired by the chairs that he was carrying. Dr Cook also seems to have proceeded upon an assumption with which I would not agree. 9 He said in the course of cross-examination that there is no such thing as a perfectly safe stair. He went on to say that the stairs could have been improved by adding a non-slip strip. That is obviously correct. It is equally obviously correct to say that there is no such thing as a perfectly safe stair. But of course that is not the legal test. I would allow the appeal, assuming leave for the moment, on the basis that there is no evidence which would justify a finding that the accident occurred by reason of any defect in the stairs. 10 We were referred to a decision of this Court in Ryan v Coles Myer Limited, 9 November 1995, not reported. In that case at p.3 Justice Clarke spoke of the situation there, where the plaintiff's case had been left with no basis upon which one could prefer one of two possibilities to another. It seems to me that this case is in the same position. 11 There is a further reason, in my view, why the appeal should be allowed, again assuming leave for the moment. That is that on the evidence it does not seem to me to have been established that a reasonable person in the position of the respondent ought to have done anything to avert the danger to which Dr Cook referred. As I said, no stairs are perfectly safe, and that although they complied with the appropriate standard they could have been made a bit safer. Many people had used this set of stairs, so far as the evidence goes, without incident. The plaintiff himself had used the stairs on a number of occasions without incident and without, it seems, any sense of alarm. 12 One question which is not quite so easy, perhaps, is the question of leave to appeal. It seems to me that this case falls within a class of cases which present Courts with difficulties. It seems that there is a school of thought to the general effect that if a stairway or something else is not perfectly safe, then a plaintiff who is injured in connection with that lack of safety has prima facie some cause of action. It seems too that it is an area of law where people are more prone to error than otherwise. In any event, given the circumstances of the case and the findings of the learned judge and the views that I have just expressed, I propose to grant leave to appeal, to allow the appeal with costs and to grant to the respondent a certificate under the Suitors Fund Act. 13 SHELLER JA: Yes, I agree. 14 GILES JA: I also agree. 15 SHELLER JA: The Order of the Court will be that leave to appeal is granted. The appeal is allowed. The verdict and judgment for the plaintiff found by Judge Garling on 2 February 1999 is set aside. In lieu thereof I order that there be a verdict for the defendant, the plaintiff to pay the defendant's costs of this appeal but to have a certificate under the Suitors Fund Act. 16 I add to the Orders that the Order for costs below be set aside and in view thereof the plaintiff ordered to pay the defendant's costs of the cause.