Foresti v Ace Ceramics Pty Ltd [2004] NSWCA 202

New South Wales Court of Appeal

CITATION : Foresti v Ace Ceramics Pty Ltd [2004] NSWCA 202 HEARING DATE(S) : 27 May 2004 JUDGMENT DATE : 25 June 2004

JUDGMENT OF : Handley JA at 1; Hodgson JA at 2; McClellan AJA at 3 DECISION : 1. Appeal dismissed; 2. Appellant to pay respondent's costs

CATCHWORDS : PERSONAL INJURY: - alleged breach of duty of care - slip ascending stairs - whether stairs unacceptably hazardous - whether water on stairs - absence of handrail - slip resistance requirements - reliance of Australian Standard AS1675-1992 "Fixed Platform, Walkways, Stairways and Ladders - Design Construction and Installation" LEGISLATION CITED : Occupational Health and Safety Act 1983 (NSW) CASES CITED : Stannus v Graham (1994) Aust Tort Reports 81-293 PARTIES : Giuseppe Tomini Foresti (Appellant) Ace Ceramics Pty Ltd (Respondent) FILE NUMBER(S) : CA 41121/03; DC5393/00 COUNSEL : F Corsaro SC/J Young (Appellant) M Elkaim SC/P O'Connor (Respondent) SOLICITORS : McCabe Partners (Appellant) Lee & Lyons (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT DC5393/00 FILE NUMBER(S) : LOWER COURT Sorby DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41121/03 DC 5393/00

HANDLEY JA HODGSON JA McCLELLAN AJA

FRIDAY, 25 JUNE 2004 FORESTI v ACE CERAMICS PTY LTD Judgment 1 HANDLEY JA: I agree with McClellan AJA. 2 HODGSON JA: I agree with the orders proposed by McClellan AJA and substantially with his reasons. 3 I would add that, in addition to the two principal matters considered by McClellan AJA, the appellant relied (somewhat faintly) on the proposition that the steps failed in two other respects to comply with the Australian Standard: first, on some measurements, the steps did not comply with the slip-resistance requirements of the Standard; and second, while the dimensions of both treads and risers were within the limits set by the Standard, there was a number reached by combining these dimensions that was outside the Standard. 4 It was not shown when the steps were constructed, or by whom. Even if the respondent as occupier had become aware of those marginal deviations from the Standard, I do not think, in the absence of any experience suggesting the steps could be dangerous, any action to repair or rebuild the steps or to place warning signs would have been reasonably required. In any event, there is no basis for any finding that the respondent was, prior to the accident, aware of these matters; and the primary judge made no finding that they contributed in any way to the accident. 5 McCLELLAN AJA: On 23 October 1998 the appellant was injured as he was ascending a stairway leading to the entry to the respondent's premises at 104 Bonds Road, Punchbowl. The appellant had parked his car in a car park close to the steps and was intending to enter the respondent's building to pay for some terracotta tiles which he had previously purchased. 6 The stairway was comprised of five steps. The steps had a rise of approximately 200mm. They were topped with a terrazzo material of a pink granite appearance. The rise was faced with a black tile. The stairs were approximately 2020mm wide which, having regard to the photographs in evidence, was noticeably wider than the doorway to the premises that was about 1185mm wide. There were no handrails on either side of the stairs. 7 The respondent's premises were in the nature of a shop where tiles were displayed to members of the public who could come and seek advice and make purchases. The appellant gave evidence that the accident occurred in the following manner: "Going up the steps and I slipped and fell, with my knee. I had my keys of the car in my hands, I went right down, my knee and my hands. I grabbed my knee straight away because it was terrible painful, I sit down on the step and they come and pick me up, I remember was a gentleman which I never remember his name correctly, I call him Kojak because he is bald, and I saw another gentleman inside the door had a broom or something in his hand and they come and pick me up and they sat me down inside and I ask if they give me an ice pack, please." 8 The appellant was asked whether, if there had been handrails, he would have used them. He said: "I would have walked on the side of the handrail." 9 Later in his evidence the appellant repeated that when he fell he had his keys in his hand and said: "I went down on my hands and I had, I thought I had blood in my hand, I noticed I had water." 10 The appellant was assisted inside the premises by a staff member. He found that his knee was sore and later became swollen. The injury to the knee ultimately required a surgical procedure to alleviate pain and restore the use of the knee. The appellant has required ongoing medical assistance. 11 Shortly after the accident, the appellant recounted the circumstances of his injury to his wife. His wife wrote a letter to the respondent on 18 January 1999 in response to a request from the respondent for a letter indicating the circumstances of the appellant's fall. In that letter, the appellant's wife wrote: "As he was coming up the front steps he slipped and landed on his left knee. Present that morning was your cleaner who was inside and salesman Rada, who asked my husband if he was alright, the cleaner got some ice for the knee." 12 The letter made no reference to the presence of water or any other liquid on the stair at the time of the fall. The letter contained no suggestion that the fall was due to the appellant slipping on any foreign substance. 13 In the course of his cross-examination, the appellant was asked about the circumstances of the fall. He said this: "No, I know sir. Just don't, if you don't mind please don't confuse me because I know exactly, if you let me finish. It would have been the second step, sir, for certain that I sit down. When I sit down I twist and all this side on the right side I noticed I was wet, so I look at myself after I had myself on the side there, there was, I had my pants they were wet and I asked - " 14 Mr Ranislav Babic was an employee of the respondent. He was very familiar with the premises, having worked for the respondent for a period of approximately ten years. He used the stairs on many occasions to gain access to the building. Mr Babic gave evidence that he had never seen anyone previously fall on the steps. On the morning on which the appellant was injured, he had parked his car and was moving towards the steps when he noticed that the appellant had fallen. He approached the appellant after he had fallen, found he was "grimacing on the steps", and asked him what had happened. The appellant told Mr Babic that he had "tripped on the steps." There was no suggestion in that conversation of there being any water present on the steps. Mr Babic was not asked whether he observed any liquid on the steps. 15 The stairway led from an open area into the building. Although there was an eave overhang, it is apparent that if a wind was blowing, rain could fall on the steps and cause them to be wet. However, there was no evidence that it had been raining that morning or the previous evening. 16 Three experts' reports were tendered by the appellant at the trial. They were the report of Mr Henstock, consulting engineer, the report of Mr Daniel Burn of Forensic Floor Testing Pty Ltd, who carried out friction tests on some of the steps, and a further engineering report from Mr Max Hely. 17 Mr Henstock considered the matter having regard to instructions he was given, which included information from the appellant's solicitors that at the relevant time the stairs were wet. He visited the premises and observed that the overhang of the first storey to the building would not have protected the steps from wind blown rain. He observed that "the water would lie in the depressions of the texture of the surface until evaporation, unless removed by squeegee or similar application." Having regard to tests carried out by Forensic Floor Testing Pty Ltd which assessed the slipperiness of the steps, Mr Henstock concluded that the steps posed a "moderate risk of slip." 18 Mr Henstock drew attention to the requirements of Australian Standard AS 1657-1992 "Fixed Platforms, Walkways, Stairways and Ladders - Design, Construction and Installation." A copy of the standard was in evidence at the trial. Section 4 of the Standard deals with the requirements for stairs and stairways. Clause 4.6 provides: "Every stairway shall be provided with at least one handrail which shall have a smooth continuous top surface throughout the length of each stairway flight. Where the width of the stairway exceeds 1000mm, a handrail shall be provided on each side. Ball stanchions may be used. Handrails not more than 750 mm apart are also required on both sides of curved stairways where the radius to the centre-line of the stairway is 2000mm or less." 19 It was submitted to the trial judge that because the stairway at the respondent's premises had a width of 2020mm and did not have a handrail, it did not comply with the Standard and, accordingly, the respondent had breached the duty of care which it owed to the appellant. That submission was repeated before this Court. 20 Mr Hely was also instructed that there was water present at the time of the accident. He formed the opinion that the slip reported by the appellant "could have been caused by the slipperiness of the subject steps at that location when wet." He also said, without objection, that he "would consider it to have been quite foreseeable that, particularly in wet conditions, any person ascending or descending those steps would be at risk of suffering slips, falls and consequent injuries." 21 Mr Hely also relied on the testing carried out by Mr Burn. He concluded that by reference to AS/NZS 3661.1.1993 "Slip Resistance of Pedestrian Surfaces - Part 1: Requirements", "the only conservative conclusion would be that the steps over-all maybe, at best, marginally compliant." However, Mr Burn had some reservations about the reliability of the testing and believed that the steps may in fact be non-compliant with that Standard.