Youkhana v Di Veroli [2009] NSWSC 942

New South Wales Supreme Court

CITATION : Youkhana v Di Veroli [2009] NSWSC 942

HEARING DATE(S) : 31/08/09, 01/09/09-09/09/09

JUDGMENT DATE : 14 October 2009

JUDGMENT OF : James J

DECISION : Verdict for the defendants

CATCHWORDS : TORT — occupier's liability — slip case — fall on stairs

LEGISLATION CITED : Civil Liability Act Local Government Act 1919

Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 Howell v Macquarie University [2008] NSWCA 26 Jones v Dunkel (1958-59) 101 CLR 298 Malec v JC Hutton Pty Limited (1990) 169 CLR 638 CASES CITED : Manly Council v Byrne [2004] NSWCA 123 Purkess v Crittenden (1965) 114 CLR 164 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Watts v Rake (1960) 108 CLR 158 Wilson v Peisley (1975) 50 ALJR

Lina Youkhana - Plaintiff Cesare Di Veroli - First Defendant PARTIES : Lily Di Veroli - Second Defendant Alex Di Veroli - Third Defendant Lynette Di Veroli - Fourth Defendant Limited Addition Holdings Pty Limited - Fifth Defendant

FILE NUMBER(S) : SC 20139/08

COUNSEL : A J Lidden SC / M Daley - Plaintiff J Sexton SC - Defendants

SOLICITORS : Bryden Solictiors - Plaintiff Moray & Agnew Solicitors - Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

WEDNESDAY 14 OCTOBER 2009

20139/08 LINA YOUKHANA v CESARE DI VEROLI and ors

JUDGMENT 1 HIS HONOUR: In these proceedings the plaintiff Mrs Lina Youkhana sued the defendants Cesare Di Veroli, Lily Di Veroli, Alex Di Veroli, and Esther Lynette Di Veroli claiming damages for personal injuries which she alleged she had sustained as a result of slipping on a step forming part of stairs in a building at 18-20 Victoria Street Erskineville. It was not disputed at the hearing that the four defendants who I have named were the owners of the premises 18-20 Victoria Street Erskineville and, although they had leased parts of the building to tenants, they had not leased and were to be regarded as the occupiers of the staircase in the building. A fifth defendant, a company named Limited Addition Holdings Pty Limited ("Limited Addition") was the tenant of a part of the first floor of the building. Limited Addition was wound up and took no part in the proceedings. The proceedings were commenced in the District Court but were later transferred to the Supreme Court. At the hearing before me there were a number of strongly contested issues both as to liability and damages. 2 The evidence at the hearing consisted of two evidentiary statements by the plaintiff, oral evidence by the plaintiff, evidentiary statements by the plaintiff's husband and the plaintiff's parents, a statement by a woman named Donna Phillips, four reports by an expert witness Mr Burn retained on behalf of the plaintiff, two reports by an expert witness Dr Cooke retained on behalf of the defendants, oral evidence by Mr Burn and Dr Cooke which was given concurrently, a large number of medical reports, oral evidence given concurrently by three neurologists Dr Watson, Dr Allsop and Dr Matheson, oral evidence given individually by a surgeon Dr Ellis, oral evidence given individually by a psychiatrist Dr Robertson and a large number of documents having some relevance to some head of damages claimed by the plaintiff. 3 The statement of claim filed in the District Court was a fairly brief document. In the early paragraphs of the statement of claim it was alleged that the first four defendants were the occupiers of the premises and in pars 4 and 5 it was alleged that on 24 February 2003 the plaintiff went to the premises under a business arrangement with Limited Addition, the plaintiff not being an employee of Limited Addition. As I have already noted, it was not disputed at the hearing that the four defendants were the occupiers of the stairs and what was alleged by the plaintiff in pars 4 and 5 of the statement of claim was also not disputed. The statement of claim continued:- "6. There was on the said premises a set of stairs leading from the ground floor to the first floor. 7. The said stairs were old. 8. The said stairs were rickety. 9. The said stairs were too narrow as to the treads thereof so as to safely accommodate an adult human foot. 10. The said stairs were worn and slippery. 11. The said stairs were not fitted with any anti-slip nosings or abrasive strips or similar. 12. As the plaintiff attempted to descend the said stairs she slipped and thereupon fell sustaining to herself injury, disability, loss and damage. 13. In the circumstances the defendants and each of them were under a duty of care to the plaintiff and were in breach thereof and were negligent." 4 In their defences the four defendants admitted pars 6 and 7 of the statement of claim, denied pars 8, 9 and 10, admitted par 11 but said that the stairs were not slippery even without such non-slip strips, did not admit par 12 and denied par 13. 5 The particulars of negligence provided in the statement of claim were: "(a) Failing to take any or any adequate precautions for the plaintiff's safety (b) Putting the plaintiff in a position of peril in the circumstances (c) Failing to provide the plaintiff with proper and safe stairs on which to walk. (d) Providing the plaintiff with stairs the treads of which were too narrow to safely accommodate the human foot (e) Failing to equip the stairs with non-slip strips or nosings (f) Providing an inadequate handrail (g) Failing to provide a round handrail which could be safely gripped by the plaintiff particularly if she slipped (h) Providing a handrail which was too short (i) Providing a handrail which was square and difficult to grip (j) Failing to warn or adequately warn the plaintiff that the stairs were slippery and dangerous (k) Providing stairs which were rickety and moved under foot (l) The plaintiff relies on the fact that after the fall non-slip strips were applied to the stairs as an admission of negligence (m) Failing to maintain or adequately maintain the said stairs (n) Allowing the said stairs to become smooth, worn and dangerous" 6 I make the following observations about the particulars of negligence. 7 Particulars (a), (b) and (c) are not really particulars at all. Particular (d) is a repetition of par 9 of the statement of claim. Particular (e) is a repetition of par 11 of the statement of claim. Particulars (f) - (i) relate to the handrail for persons using the stairs and amount to allegations that the handrail was too short (that is, not high enough) and was square, rather than round. Particular (j) alleges a failure to warn; this particular was not pressed at the hearing. Particular (k) is in part a repetition of par 8 of the statement of claim. Particular (l) relies on the subsequent taking of action, which counsel for the defendants contended could not be relied on by the plaintiff by reason of s 5C(c) of the Civil Liability Act. Particular (m) is not really a particular. Particular (n) alleges that the stairs had been allowed to become smooth, worn and dangerous. 8 The statement of claim continued with a list of particulars of injuries which the plaintiff alleged she had suffered. I will be referring to these matters later in the judgment. 9 The only person who gave evidence at the hearing about the plaintiff slipping was the plaintiff herself. In pars 32-41 of her evidentiary statement the plaintiff said:- "32. The circumstances of my accident were that on 24 February 2003 I went to the Limited Addition premises which was located on the first floor of premises 18-20 Victoria Street, Erskineville. 33. It was the first time I had been to these premises. I was going to do some exchanges for some of my customers. Limited Addition, to my understanding, had only been in these premises for a short time."