MAUDSLEY v. THE PROPRIETORS OF STRATA PLAN NUMBER 39794 [2002] NSWCA 244

New South Wales Court of Appeal

CITATION : MAUDSLEY v. THE PROPRIETORS OF STRATA PLAN NUMBER 39794 [2002] NSWCA 244 FILE NUMBER(S) : CA 40177/01 HEARING DATE(S) : 3 December 2001 JUDGMENT DATE : 22 August 2002

PARTIES : GREVILLE MAUDSLEY (Appellant) THE PROPRIETORS OF STRATA PLAN NUMBER 39794 (Respondent) JUDGMENT OF : Meagher JA at 1; Powell JA at 11; Beazley JA at 56

LOWER COURT JURISDICTION : District Court LOWER COURT DC 70252/98 (Gosford) FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER :

COUNSEL : R.S. Toner SC and J.L. Gruzman (Appellant) S.E. Torrington (Respondent) SOLICITORS : Orchiston Ranzetta Finney (Gosford) by their City Agents Boyd House & Partners (Appellant) Hunt & Hunt (Respondent) CATCHWORDS : EVIDENCE - Opinion evidence - Expert evidence - Duty of expert in giving opinion evidence - NEGLIGENCE - Occupier's liability - Dangerous premises - What is unusual danger - Knowledge of by occupier - Slippery surface - Tiles alleged to have been slippery when wet D CASES CITED: Makita (Australia) Pty. Limited v. Sprowles (2001) 52 NSWLR 705 DECISION : Appeal dismissed with costs

- 1 -IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40711/01

MEAGHER JA POWELL JA BEAZLEY JA

22 August 2002

MAUDSLEY v. THE PROPRIETORS OF STRATA PLAN NUMBER 39794

JUDGMENT

1 MEAGHER JA: On 5 December 1995 Mr Maudsley, the appellant/plaintiff, fell in the common area of a building situated at 131 Donnison Street, Gosford known as the Kensman Building, which was (and is) owned by the defendant/respondent. He sued the defendant for damages in the District Court, and her Honour Judge English dismissed his action. Hence this appeal. 2 The Kensman Building is a block of commercial premises. One approaches the building by ascending a small flight of stairs and then comes to a patio, off which there are a number of smallish business premises, each of which was occupied by a tenant of the defendant, one party which occupied one of those business premises was called "Waterways", and it was thither that Mr Maudsley repaired on the day in question. 3 It was after lunch. He went up the stairs and to the Waterways office. He was there about half an hour. He renewed his boat licence there, collected some literature and chatted to the staff. It was not raining when he went in. When he came out it, apparently, had rained, and it would seem that the patio outside "Waterways" was slightly wet. When he went out he fell. He suffered two broken ribs, although he was able to drive himself home. He was in good health before his fall, suffering no physical disabilities as far as his walking or balance was concerned. 4 The exact details of the incident are a little unclear, but that lack of clarity is perhaps due to the unfortunate fact that Mr Maudsley has suffered a number of strokes since the incident. 5 Evidence was given on behalf of Mr Maudsley by two witnesses; Mrs Butcher and Mr Neil Adams. Mrs Butcher was the officer in charge of the "Waterways" office. She had worked there on a part-time basis since 1991, the same year the building opened. She gave evidence that the tiles were there when she came in 1991, and had not bee altered since. During that time she had noticed from time to time that "Waterways" customers had slipped on the tiles. But such events had not happened in recent times, and she had made no complaint to anyone over such episodes. 6 The plaintiff's other witness was a Mr Neil Adams, an expert of sorts, who produced (or, rather, co-produced) a report after visiting the premises in 2000. He made various measurements of the slip-resistance of the tiles. He came to the conclusion that the co-efficient of friction of the tiles (when wet) was .017, which is potentially dangerous. The two difficulties about his evidence, however, were that he used a machine other than the one recommended is the standard; and that he did not inspect the sites until 4 or 5 years after the accident. 7 For the respondent, two witnesses of considerable importance were called. The first was a Mr Stephen King who was the builder of Kensman Building. His evidence was unchallenged. He installed the tiles, which were nominated by the architect. He used tessellated exterior tiles which were commonly used at the time. The second was Mr John Brown, the chairman of the Executive Committee of the respondent, who said that the building manager of the Kensman Building had never made any complaint about the alleged slipperiness of the tiles, or given any notification of any falls. 8 Her Honour's conclusion, which seems to me to be almost inevitable, was: "I cannot be satisfied that as at the date of the accident on 5 December 1995 the tiles which were laid four years earlier, which had been deemed suitable for outside use, would constitute a danger to persons using the premises on wet days." 9 I cannot see how her Honour erred. 10 I would dismiss the appeal with costs.