New South Wales Court of Appeal CITATION: The Owners of Strata Plan 63477 v Ross [2005] NSWCA 162 HEARING DATE(S): 9 May 2005 JUDGMENT DATE: 18 May 2005 JUDGMENT OF: Handley JA at 1; Santow JA at 2; Stein AJA at 3 DECISION: 1. Appeal allowed; 2. Cross appeal dismissed; 3. Verdict and judgment below set aside; 4. In lieu thereof, verdict for the defendant (appellant); 5. The respondent pay the appellant's costs of the trial and of the appeal but to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled. CATCHWORDS: NEGLIGENCE - isolated step - obvious hazard - everyday risk - failure to alert pedestrians - reasonable care for the safety of an invitee to commercial premises - Wyong Shire v Shirt calculus - temporary glare - distraction of injured person - causation.(ND) Wilkinson v Law Courts Ltd [2001] NSW CA 196 Tame v State of New South Wales (2002) 211 CLR 317 Woods v Multi-Sport Holdings Ltd (2002) 208 CLR 460 CASES CITED: Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 Stannus v Graham (1994) Aust Tort Reps 81-297 at 61,566 Cafest v Tombleson [2002] NSWCA 210 The Owners of Strata Plan 63477 - Appellant PARTIES: Jeanette Rose ROSS - Respondent FILE NUMBER(S): CA CA 40220 of 2004 J Maconachie QC with P Kandhaar - Appellant COUNSEL: G Barry Hall QC with A Lakeman - Respondent Wotton & Kearney - Appellant SOLICITORS: Mackintoshs - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 3862 of 2002 LOWER COURT JUDICIAL OFFICER: Garling DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40220 /04 DC 3862/02 HANDLEY JA SANTOW JA STEIN AJA 18 May 2005 THE OWNERS OF STRATA PLAN 63477 v. Jeanette Rose ROSS Judgment 1 HANDLEY JA: I agree with Stein AJA. 2 SANTOW JA: I agree with Stein AJA. 3 STEIN AJA: This is an appeal by a defendant, the appellant, against a verdict and judgment of Garling DCJ given in favour of the plaintiff, the respondent, in the sum of $191,323. 4 The plaintiff had fallen over and injured herself when visiting the appellant's commercial premises on 8 February 2001. 5 The accident occurred in the following circumstances. The respondent was visiting her chiropractor at the premises. The building was a new one having been occupied only for around six months. The respondent had visited her chiropractor on about half a dozen previous occasions, always following the same route to and from the car park. 6 After seeing the chiropractor at around 2.15pm the respondent left to return to the car park area. She went down a corridor and entered into a foyer where the lifts were located. She passed by the lifts and went through a glass door onto a brightly lit landing where stairs led down to the car park. About 3.5 metres from the door on the landing was an isolated step. The respondent was looking straight ahead at an artificial lake in the grounds of the building. The glare off the fountain in the lake distracted the respondent and she fell on the step causing her injury. The step was 10 cm high and at a 45° angle across the landing. The respondent did not see the step before she fell. 7 The respondent said in evidence that she was distracted by the glare coming off the fountain. She said: "I was distracted and just looking at the fountain and the light glinting off the fountain. Yes, it was a distraction, yes." The respondent said she: "didn't notice the step at all". 8 The respondent had taken about four steps across the landing when she fell. She was wearing sunglasses at the time. She said that she had noticed the step in the past. It had not presented her with any trouble before. As his Honour recorded, the building was relatively new and the agent knew of no other accidents or complaints of falls in the area. 9 Garling DCJ posed the question for determination as to whether it was negligent to allow a single step in a place where an accident could have occurred. He said that the step was "in a very unusual place". His Honour said that putting a single step of this nature in the middle of the area was "dangerous". A number of things could have been done to ensure that the step was not a danger. At its simplest, the edge of the step could have been painted a different colour to highlight it, or a different coloured tile could have been installed. There were other possibilities, which he mentioned. 10 His Honour said: "All those steps were available to the defendant and I believe one or more of them should have been taken. It was a hazard and that hazard must have been obvious to anyone that walked through the door, even without the sunlight or the glare, it must have been obvious that this single step in the middle of the tiled area would be a hazard, would be a danger and a step should have been taken to alert pedestrians to it and on that basis alone, even forgetting the glare, I am satisfied the defendant was negligent." 11 The judge then turned to the issue of the glare off the fountain saying: "The effect of the glare is a more difficult one because unless someone walked out of this door at the appropriate time there probably would be no glare coming off the fountain, or indeed the lake, but the effect of the glare is that the plaintiff is taking care for her safety and it is the glare which distracts her and causes her not to see a step, otherwise one might say: "Well, why did she not see a step, one she had walked over earlier that day?" But the answer is a simple one, it is the glare which caused her to miss that step. I am therefore satisfied that the defendant was negligent and there should be a verdict for the plaintiff." 12 He added that the defendant had a duty to provide a safe access to the stairs and invited people into the building to take that path. 13 The appellant complains that his Honour misstated the duty of care. The content of the duty is to take such care as is reasonable in the circumstances (Wilkinson v Law Courts Limited [2001] NSW CA 196 at [21]), and not to make the premises as safe as reasonable care and skill on the part of anyone can make them. The appellant complains that nowhere in the judgment does his Honour apply the test of reasonableness. 14 The appellant further submits that his Honour elides from considerations of preventability and foreseeability to breach without considering whether the defendant's failure to eliminate the step showed a want of reasonable care for the safety of the respondent. This, so it was submitted, was in breach of the stricture referred to by McHugh J in Tame v State of New South Wales (2002) 211 CLR 317 at [99]. 15 It was submitted that his Honour did not consider the question of breach from the point of view of a person in the position of the defendant, with its state of knowledge, and ask whether the defendant acted as a reasonably prudent person should have (Woods v Multi-Sport Holdings Ltd (2002) 208 CLR 460). 16 Further, it was submitted that his Honour failed to apply the Wyong Shire Council v Shirt calculus, (1980) 146 CLR 40 at 47. Prior to his conclusion his Honour did not pay attention to the magnitude of the risk or the degree of probability of its occurrence. 17 It was submitted that a proper analysis of the magnitude of the risk would have taken account of a number of things. These included that the respondent had used the area twelve times before without incident; there was no evidence of previous falls; the area complied with the relevant building code and standards; the step was differentiated by colour, tread and pattern and that differences in level abound in places of public access. 18 The appellant is also critical of his Honour's finding that the defendant's expert (Dr Cooke) said that the step was dangerous. What Dr Cooke in fact said was that isolated steps are potentially dangerous to unobservant pedestrians. 19 The appellant submitted that the step was reasonably clearly visible from the foyer on the approach to the doorway even if sunglasses were worn. His Honour should have found that the step was obvious and not a hazard. It was an everyday risk which members of the public avoid by taking care for their own safety, see Stannus v Graham (1994) Aust Tort Reps 81-297 at 61,566 per Handley JA. 20 The respondent joins issue on the appellant's submissions saying that his Honour sufficiently adverted to the Shirt calculus. His Honour was entitled to find on the expert evidence that the presence of the isolated step created a danger and, that the failure of the appellant to alert pedestrians such as the respondent to it was negligent. On behalf of the respondent, Mr Hall QC submitted that whether the step created a danger and whether it was obvious or not were factual matters decided against the appellant. The question of whether the defendant's failure to eliminate the step showed a want of reasonable care for the safety of the plaintiff should be answered in the affirmative. His Honour found that the isolated step was dangerous and the appellant was guilty of negligence in failing to take steps to remove the danger. 21 It is important to pay careful attention to what his Honour in fact found. His finding of breach of duty is firmly hinged to the isolated step itself. As he said, having "a single step of this nature in the middle of an area such as this" was dangerous of itself. It was a hazard that must have been obvious to anyone who walked through the door "even without the …. glare". His Honour said that obviousness of the hazard or danger was "on that basis alone, even forgetting the glare" negligent. This is a finding that the step of itself was dangerous and that it was negligent of the appellant not to alert pedestrians to it. When his Honour turned his attention to the glare he noted that the glare coming off the fountain distracted the plaintiff causing her not to see the step. His Honour said that it was "the glare which caused her to miss the step". This is a clear finding of causation. The glare caused her to miss the step but the breach (according to his Honour) was the failure to avert the danger created by the isolated step itself. 22 There are two problems for the respondent about these findings. The first relates to the finding of breach of duty of care. Contrary to his Honour's finding that there was no warning of the step, Dr Cooke (whom his Honour preferred), said that the nosing was darker, it was grooved and there was a break in the pattern of the tiles. The photographs of the step enable the court to understand the evidence. The nosing was, according to Dr Cooke, reasonably clearly differentiated from the adjacent floor tiles. Indeed, the respondent accepted in her evidence that the line of the step could be seen through the glass doorway in the foyer on her approach to the landing. 23 The step was in fact reasonably obvious to anyone looking where they were going. In the context of saying that step was a hazard his Honour acknowledged that is "must have been obvious to anyone that walked through the door, even without the sunlight or the glare, it must have been obvious …" 24 I agree with the appellant's submission that his Honour failed to properly examine whether the appellant had breached its duty of care, which is to take such care as is reasonable in the circumstances. Nowhere in the reasons for judgment is reasonableness addressed. Further, his Honour elides from consideration of foreseeability and preventability to a finding of breach. As Meagher JA said in Cafest v Tombelson [2003] NSWCA 210: "The defendant, by its notices, told all its patrons that there were risks involved in the activities it promoted, provided protective clothing which was available on request to deal with those risks, had a beginner's rink, and employed staff especially trained to help skaters in difficulty. On the whole, I do not see why it should have done more. In this regard, the analysis of McHugh J in Tame v New South Wales (2002) 76 ALJR 1348 at 1346-5 is important: once one determines that a risk of injury exists, one must not slide into a consideration of preventability without asking the important question: 'Was the defendant's failure to eliminate the risk demonstrative of a want of reasonable care for the plaintiff?'" 25 The failure to take some action to render the step obvious to a pedestrian could not be said of itself to constitute the breach of the duty of care, that is, it did not demonstrate a want of reasonable care in the circumstances. The step itself was differentiated from the surrounding area. It could be seen on approach from the foyer through the door, being the direction in which the respondent was walking. It was not a hidden trap or hazard; and, as the appellant submitted, differences in level abound in public places and are an everyday risk which members of the public avoid by taking care for their own safety. The probabilities are that the respondent would not have fallen on the step if it were not for being distracted by the glare off the fountain. 26 This brings me to the second problem with his Honour's findings, which is that the breach of duty of care as found - the failure to warn pedestrians of the danger of an isolated step, was not causative of the harm. Rather, the harm was caused by the distraction to the respondent caused by the glare off the fountain, as the respondent herself said. This could have been averted by the respondent looking away or averting her gaze or stopping until her eyes were adjusted to the glare. 27 It follows from the above that his Honour was wrong to find the appellant negligent and the judgment and verdict should be set aside. Accordingly, issues of contributory negligence do not arise for consideration and the cross appeal should be dismissed. 1. Appeal allowed 2. Cross appeal dismissed 3. Verdict and judgment below set aside. 4. In lieu thereof, verdict for the defendant (appellant). 5. The respondent pay the appellant's costs of the trial and of the appeal but to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.