The Owners of Strata Plan No.4197 v. Bailey [2001] NSWCA 101

New South Wales Court of Appeal

CITATION : The Owners of Strata Plan No.4197 v. Bailey [2001] NSWCA 101 FILE NUMBER(S) : CA CA40205/00 HEARING DATE(S) : 9 April 2001 JUDGMENT DATE : 9 April 2001

PARTIES : The Owners of Strata Plan No.4197 - Appellant Sandra June Bailey - Respondent JUDGMENT OF : Meagher JA at 1, 33; Beazley JA at 2; Hodgson CJinEq at 4

LOWER COURT JURISDICTION : District Court LOWER COURT 2625/99 FILE NUMBER(S) : LOWER COURT Robison DCJ JUDICIAL OFFICER :

COUNSEL : Ms. C.J. Needham SC with Mr. T.J. Morahan for appellant Mr. R.C. Toner for respondent SOLICITORS : A.R. Connolly & Co., Sydney for appellant Spooner & Hall, Manly for respondent CATCHWORDS : NEGLIGENCE - No point of principle - Plaintiff injured when falls on stairs - Whether trial judge's findings as to how accident happened, breach of duty, and causation, sould be overturned. ND DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40205/00 DC 2625/99

MEAGHER JA BEAZLEY JA HODGSON CJ in Eq.

Monday 9 April 2001 THE OWNERS OF STRATA PLAN NO.4197 V. BAILEY JUDGMENT

1 MEAGHER JA: I agree with the reasons of Justice Hodgson CJ in Eq. 2 BEAZLEY JA: I also agree. I would make one comment only. Even if the staircase was not in the state assumed by Mr Buckland at the time of the accident the other evidence to which Hodgson CJ in Eq has referred was ample evidence upon which his Honour could draw the inferences which he did and make the finding of negligence which he did. 3 I agree that the appeal both on liability and on damages should be dismissed. 4 HODGSON CJ IN EQ: This is an appeal from a decision of the District Court delivered on 2 March 2000, in which Robison DCJ awarded damages of $207,926.18 to the plaintiff, who is the respondent in this appeal. 5 The proceedings arose out of an accident which occurred on 17 April 1998, in which the plaintiff fell down a flight of stairs in a block of home units at Dee Why, the common property of which was owned by the defendant/appellant. 6 His Honour's decision was on the basis that the fall was caused by a defect in the carpet on the second step from the top of the particular flight of stairs, and that this defect was due to a breach of duty of care of the appellant as owner and occupier and having the care, control and management of the stairs. 7 In finding that the accident was caused by this defect, the trial judge relied on the plaintiff's description of how the accident happened, to the effect that when she placed her left foot on the second step she felt that her foot came away from the step, that is, she felt there was no adequate support and that there was no step underneath. 8 He also relied on a report of a Mr Buckland, to the effect that the mechanism of the plaintiff's fall would have been that her foot remained in contact with the carpet and went forwards as the carpet moved forwards, because the carpet was not securely anchored onto spikes in fixing battens located at the corner between the tread and the riser. 9 In finding that this defect was due to a breach of the duty of care, the trial judge relied on evidence of earlier problems with the carpet, which he said should have sent a strong signal to the defendant that the carpet should have been fixed in such a way that bulging which occurred in this instance did not occur, and the trial judge was satisfied that the defendant failed to take any or any adequate steps to ensure that the carpet was securely fixed to the stairs. 10 The appeal on the question of liability is brought broadly on the grounds that the judge should not have found a breach of duty by the appellant or that the accident was caused by any such breach of duty. 11 There was also an appeal against the amount of damages, on the ground that a sum of $40,000 awarded for future economic loss was not justified. 12 In support of the appeal on the question of liability, Ms Needham SC for the appellant submitted first that the trial judge should not have inferred that the accident was caused by a defect in the carpet on the second step of the flight of stairs. She submitted that there was no direct evidence that there was anything wrong with the carpet at that point and that, indeed, all the direct evidence was to the effect that there was nothing wrong with it. 13 Ms Needham submitted that the plaintiff herself in describing her fall did not say that she felt the carpet move under her feet. 14 She submitted that Mr Straney, chairman of the defendant, had vacuumed the carpet three days earlier, looking for any unattached carpet, and did not find anything. She pointed out that Mr Straney's wife had looked at the carpet the day after the event, and that everything was normal. 15 Ms Needham submitted that the plaintiff's husband did not notice anything about the carpet on the night of the accident, and that in cross-examination he agreed that at the time of the accident the stairs were not as shown in photographs taken three weeks later, which showed parts of the carpet detached from the fixing battens. 16 Ms Needham also referred to evidence given by a carpet cleaner, Mr Smit, who steam cleaned the carpet ten days earlier, and who asserted that he would have noticed then if the carpet had been detached from the battens. 17 In my opinion, the plaintiff's description of her accident very strongly implied that the carpet moved forward as she stepped on it. The plaintiff was wearing Nike Air joggers. There was no suggestion of undue haste, and the trial judge accepted her evidence that she was on the stairs alone, holding on to the railing. In those circumstances, it seems to me that her description of her foot coming away from the step, and there then being no adequate support underneath, strongly conveyed that the carpet must have moved forward when she stepped down so that her foot was carried over the edge of the tread. 18 I accept that this, if true, would mean that the carpet on that step was at least partially detached from the batten, and that other evidence referred to for the appellant tended against that conclusion. However, I would note the following. 19 There was no suggestion of any close inspection by Mrs Straney or the plaintiff's husband on the night of the accident or the following day. Indeed, there was direct evidence of the plaintiff herself that she saw the carpet detached from the battens on the lower step, which she was able to observe after her fall; and that evidence, if accepted by the trial judge (as it appears to have been), would mean that less weight would be given on this aspect to the evidence of Mrs Straney and the plaintiff's husband. 20 Furthermore, there was conflict between the evidence of Mrs Straney and her husband about the carpet bulging out from risers of stairs in other areas prior to this incident. The trial judge plainly accepted Mrs Straney on this matter, and on that basis plainly gave less weight to the evidence of her husband. 21 There was evidence of the state of the carpet three weeks later which appears to have carried some weight with the trial judge. The trial judge rejected the suggestion that the problem shown by that evidence had been deliberately caused by the plaintiff or her husband, and although, as I have said, the plaintiff's husband said that the carpet was not in that state at the time of the accident, it is not clear, as I have said, that this was based on close inspection; and I have referred already to the conflict with his wife's evidence as to what she saw after the fall. 22 The trial judge did note that the photographs taken three weeks later "do not portray the situation on 17 April 1998"; but I take that to mean no more than that the photographs were taken three weeks later, and therefore cannot for that reason alone depict the situation at the time of the accident. 23 In all these circumstances, in my opinion the judge was entitled to accept that the plaintiff's evidence meant that the carpet was at least partially detached at that point. I consider that the trial judge could have taken the view that the evidence of Mr Smit did not preclude this finding, either because he did not notice the problem or because it arose after the time of the cleaning by him. 24 Ms Needham then submitted that the trial judge should not have found a breach of duty causative of the accident. She pointed out that the defendant's obligation was to exercise reasonable care to avoid foreseeable risk. She submitted that, over the five years that the carpet had been laid, there was no history of risk, no report of any previous accident, no evidence of situations in which the carpet could move or cause a person to fall. In those circumstances, she submitted that the trial judge could not properly have found that the defendant should have been aware of this danger and fixed it. 25 Ms Needham pointed to the evidence that Mr Straney vacuumed the carpet each week looking for detached carpet. She submitted that the evidence of Mr Smit of his steam cleaning, and inspections at that time, was further material suggesting that the defendant had taken all proper steps to protect users from foreseeable risks. 26 Ms Needham submitted that the only other evidence relied on by the trial judge, namely, some minutes of the body corporate from 1994, did not support any breach of duty in relation to this incident. The trial judge did speculate that repair undertaken then did not result in an entirely successful operation; but that, Ms Needham submitted, was mere speculation and not supported by history. 27 In my opinion, it was open to the trial judge to take the view that Mrs Straney's evidence in particular supported the view that there were recurring problems with this carpet on various parts of the stairs of the units, manifesting themselves in the carpet bulging out from the risers of the steps. The trial judge was entitled to accept that evidence, and reject contrary evidence from Mr Straney that any bulging was no more than a bubble on the top of the carpet which could be vacuumed away. Mrs Straney's evidence was to the effect that she observed bulging, sometimes reported it to her husband, and sometimes attempted to correct it by pushing the carpet back into the next riser. 28 Having regard to that evidence, in my opinion the trial judge was entitled to reject Mr Straney's evidence and to draw the inference that the body corporate had not taken reasonable care in the maintenance of this carpet, and in ensuring that foreseeable risks were avoided; and also in finding that this was the cause of the accident in this case. 29 For those reasons in my opinion the appeal on the question of liability fails. 30 Turning to the question of damages, it was submitted for the appellant that the injury and disability suffered by the plaintiff, while it could prevent her undertaking the type of employment she had undertaken before the accident, would not affect her in the type of employment which she was planning to undertake in the future. 31 However, in my opinion the trial judge was entitled to take into account that the only employment that the plaintiff had engaged in was of a type in respect of which she would now be affected by the accident, and that, although she might be able to obtain the other type of employment, that there was still a substantial chance that she might not. 32 In all those circumstances, I am not satisfied that the award of $40,000 was outside the permissible range for this element of damage, and for those reasons I would dismiss the appeal. 33 MEAGHER JA: The order of the Court therefore is appeal dismissed with costs. ********

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