Douglas v Binns [2004] QDC 429

DISTRICT COURT OF QUEENSLAND CITATION: Douglas v Binns [2004] QDC 429 PARTIES: WAYNE DAVID DOUGLAS (Plaintiff) And DAVID ALAN BINNS and VIVIENNE MAY BINNS (Defendants) FILE NO/S: CLM 19/02 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court, Maroochydore DELIVERED ON: 27 October 2004 DELIVERED AT: Maroochydore HEARING DATE: 30th September – 1st October 2004 JUDGE: Judge J.M. Robertson ORDER: [1] Plaintiff’s claim dismissed [2] Judgment for the defendants with costs CATCHWORDS: NEGLIGENCE - Duty of care; occupier’s liability and duty of Occupier; obligations of landlord and tenant. Cases cited: Jones v Bartlett (2000) 205 CLR 166 Northern Sandblasting Pty Ltd v Harris (1917) 188 CLR 313 Gray v Queensland Housing Commission [2004] QSC 276 COUNSEL: A. Stobie (for the Plaintiff) R. Morgan (for the Defendants) SOLICITORS: SR Wallace & Wallace (for the Plaintiffs) HBM Lawyers (for the Defendant) [1] The plaintiff Mr Wayne Douglas was born on 21 March 1947. On 24 March 2000 he and his wife Anne took possession of a holiday house at Montville which was owned by the defendants the Reverend and Mrs Binns. They had travelled to Montville from their home in Mackay to attend a family function on the Sunshine Coast, and had prearranged a holiday tenancy over the premises from 24 March 2000 to 27 March 2000. -- 1 of 8 -- 2 [2] The house is on two levels. The living area is downstairs and the bedrooms are upstairs and accessible by a wooden staircase. The only toilet is on the ground level. [3] Mr and Mrs Douglas arrived at the house about 3pm. Mrs Douglas made a comment to her husband to the effect that he should “be careful” about the stairs which appeared to be quite steep to her. In any event, he ascended the stairs then with some cases, and later descended before they went out to the town. Later they returned and had a meal, some wine and watched T.V. He had a shower downstairs, so he must have descended and ascended the stairs at least one more time before going to bed. He read for some time, then before going to sleep he went downstairs to go to the toilet. He was bare footed. As he descended, he slipped and fell at a point at the second winder step where the direction of the staircase takes a 90 degree turn to the left. He fell heavily and fractured his ankle. He seeks damages against the Reverend and Mrs Binns on a number of bases, including breach of an implied term of a tenancy agreement and negligence. THE PLAINTIFF’S CASE [4] I am satisfied on the basis of Mr Douglas’s evidence that he fell when his right foot slipped from the second winder as he was taking the weight off his left foot which was then on the first winder as he descended the stairs. I am satisfied that he did have his hand on the left sided hand rail, but that the rail did not contribute to the fall, nor did it arrest his fall. [5] Mr Douglas did not pretend to have a photographic recall of how he fell. He could not recall where he was looking for example. Mr Morgan is right when he submits that in order to prove its case the plaintiff must on the balance of probabilities establish a casual link between the alleged defect in the stairs and the injury he suffered when he fell. There is no question in my mind that Mr Douglas is an honest witness. Others may have been tempted to reconstruct to provide more detail of how he fell, but he did not. [6] The plaintiff’s case focuses on a number of issues: 1. a lack of consistency in the going dimensions of the first winder step; 2. the lack of visual discrimination of the tread nose on the winders; 3. the absence of some form of cheap grip enhancement of the tread nose; 4. defective lighting. Lack of Consistency [7] Mr Kahler gave expert opinion evidence for Mr Douglas on all of these issues. He measured the going dimensions of the winders as (from the top to the bottom) 340mm, 272mm and 272mm which he described as a “significant going variation associated with the first winder in the set when descending”. He was not able to relate this issue to any applicable building standard, code or Act. It is common ground that the building is, in terms of the Building Act 1975-84, a Class 1 building, that is a detached single dwelling, and that when the building was constructed in 1986, the stairs as constructed did not breach any building standard, code or Act. He was criticised about his measuring methodology, however I accept his evidence that, even if a different measuring methodology is adopted there is still a significant -- 2 of 8 -- 3 difference in the going dimensions of the first winder as opposed to the second and third. Absence of tread grip / and colour variation [8] It is common ground that the steps are timber constructed and do not have any colour variation on the tread nose, nor is there any extra grip such as an adhesive strip on the nose. It follows that for someone using the steps, there was nothing on the steps to delineate the tread nose, or to provide extra grip at that point. Lighting [9] When Mrs Douglas walked up and down the stairs in the night time to have a bath she recalls that the lights on were the Chinese lantern over the top step, the light in the entry area and the light in the laundry. She regarded the steps as dangerous as she had fallen on steps before. She was therefore careful and had no difficulty in descending on this occasion. When Mr Douglas descended prior to the fall, he recalls the Chinese lantern was on, but he cannot recall whether the light at the foot of the stairs was on. I think it was probably not on, as he recalls specifically light from the downstairs laundry illuminating the lower area. The lighting issue is discussed by Mr Kahler at pp5-8 of his report. Mr Kahler has analysed the lighting measurements in a number of situations including with the lower light off. He accepts that there was no standard applicable to domestic buildings in 1986. In 1990, the relevant Australian standard included for the first time recommended illuminance levels for specific areas within a domestic dwelling which was an average of 40 lux. It is common ground that the measurements taken by Mr Kahler at the area of the winders is below that level with either one or both lights on; however as Dr Cowling observed these values are not uncommon around the stairs in many houses. He is an expert in photometric measurements; and gave evidence for the defendant. As both he and Mr Kahler noted, there is a significant difference in the requirements of the Australian standard in relation to public and commercial buildings as opposed to domestic dwellings. It follows that there is no breach of any Australian standard; and particularly there was not even a recommendation for illuminance levels at the time the house was built in 1986. Dr Kahler acknowledged that the two-way switch at the top of the stairs which operates the Chinese lantern was an important safety feature in relation to this issue. THE DEFENDANT’S CASE [10] Both defendants gave evidence, as did the architect who designed the house, the builder who built it, and the subcontractor who constructed the set of steps. There was little challenge to this evidence and I accept it. The constructed house received a certificate of completion from the local authority. [11] Rev. Binns and Mrs Vivienne Binns relied upon the architect Mr Charles Ham and the builder in the construction of the dwelling. [12] After the house was completed in 1986, they stayed there as a family over Christmas 1986. Since then they have rented the house, either on a short term holiday basis or on a longer more permanent basis up to six months at a time. They have also stayed there frequently as a family. -- 3 of 8 -- 4 [13] Early on, Mrs Binns recalls one occasion when she got up in the middle of the night to go to the toilet. I infer that she did not turn on the light. She twisted her ankle on the steps, and thereafter she always turned on the light and never again had any trouble. [14] Apart from this one incident, the defendants have never experienced any problems with the stairs, nor have they received a single complaint about the steps or the lighting such as would have alerted them to any defects in the steps. [15] They also employed a cleaner themselves, until Henzells took over the management of the property in 1997. The cleaner was instructed not to polish the steps and never did. The steps are completed with a poly-urethane satin finish so they are not highly polished. [16] The steps were constructed by Leech Steps, a specialist in the area. Mr Wright from that organisation gave evidence. The steps were constructed away from the premises and then installed by Leech at the house. Mr Wright says that stairs like this with winders have been installed by his firm in hundreds of sites without a single complaint of danger or defect. I accept his evidence that this configuration with the three winders was the only appropriate form of construction of the stairs, given the height and size of the space which they had to occupy. His evidence on this point was confirmed by the architect. THE RELEVANT LEGAL PRINCIPLES (a) The duty of care at common law: [17] The principles are ventilated in the judgments of the High Court in Jones v Bartlett (2000) 205 CLR 166 and Northern Sandblasting Pty Ltd v Harris (1917) 188 CLR 313. These authorities were recently reviewed by Chesterman J in his Honour’s usual articulate and clear style in Gray v Queensland Housing Commission [2004] QSC 276, a case in which a tenant unsuccessfully sued a landlord for damages for injuries when she slipped and fell on some glass tiles which were throughout the house. The case is distinguishable in that it is not alleged here that there was a written lease, nor does the Residential Tenancies Act 1994 apply; however his Honour’s analysis of the authorities is definitely relevant and I respectfully adopt what he said about the common law duties that can be discerned in Jones and Northern Sandblasting cases. [18] His Honour commenced his analysis (at 16) with an extract from the judgement of Gleeson CJ in Jones v Bartlett where (at 177) the Chief Justice observed: “There is no such thing as absolute safety. All residential premises contain hazards to their occupants … most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective.” [19] The duty of a landlord articulated by Brennan CJ and Gaudron J in Northern Sandblasting is to ensure that the premises are as safe from defects as reasonable care and skill could make them, or to take reasonable care for the safety of tenants by putting and keeping the premises in a safe state of repair (per Chesterman J in Gray at paragraph 17). -- 4 of 8 -- 5 [20] In my opinion, because the premises here are for holiday letting, the duty of the landlord is higher than that owed by a landlord who, as part of the normal residential tenancy under consideration in Gray “surrenders occupation” of the premises to a tenant (see the observations of Gummow and Hayne JJ in Jones at 215). [21] At paragraph 22 of Gray, Chesterman J from his analysis of the “slightly differing expressions” in the judgments of the Court in Jones summarises the common law duty in these terms: “… I take the duty to be that a landlord must exercise reasonable care not to let premises containing a defect in features or fittings which is of such a nature that it is likely to cause injury in the ordinary occupation of the premises. The duty extends only to the repair or removal of defects of which the Landlord knows or which are obvious on an inspection of the premises … The duty is thus concerned with the repair or removal of defects which a landlord might reasonably foresee would cause injury during the ordinary course of occupation by the tenant.” (b) The contractual obligations of the landlord to a tenant: [22] There is no tenancy agreement or written lease here, but there is no doubt that there was an implicit term of the oral agreement that the premises were fit for Mr and Mrs Douglas to live in. This obligation on the defendants is qualified by the imposition of a standard of reasonableness. In Gray (at page 5), Chesterman J referred to both the contractual and statutory duties imposed on a landlord: "Relevantly the contractual and statutory duties imposed on the defendant at the commencement of the agreement were to ensure that the house was fir for the tenant to live in, in the sense just explained. At the date of the plaintiff’s accident the defendant’s contractual obligation was to maintain the house and particularly the floor tiles, in a reasonable state of repair. The statutory duties imposed on the defendant as at the date of the plaintiff’s accident were to maintain the premises so that they remained fit for the tenant to live in, and to maintain the house and inclusions in good repair. These were the limits of the defendant’s contractual and statutory obligations. In particular there was no contractual obligation to ensure that during the tenancy the house was free from risk to health or safety.” [23] In Jones v Bartlett, Gaudron J (at page 193) held that the only duty which the law should impose on a landlord was to take reasonable care to put and keep the premises in safe repair. [24] The various judgments of the court in Jones v Bartlett, and indeed Chesterman J's helpful analysis of the duties imposed on a landlord, both under contract and common law in Gray, indicate that in a case such as this, the nature of the duty, whether it be contractual or at common law is basically the same. Obviously, the terms of a particular tenancy agreement, or the circumstances of a particular landlord/tenant relationship including the dwelling the subject of the agreement, may lead a court to apply different tests (some higher, some lower) in accordance with the subtle variations in approach of the members of the High Court in Jones v Bartlett. -- 5 of 8 -- 6 CONCLUSIONS [25] In my opinion, the plaintiff has a number of difficulties in proving his case. Firstly there is the evidentiary difficulty to which I have earlier referred. Mr Stobie concentrated, understandably on what he submitted was a defect in the stairs and that is the difference in the going as between the first winder and the second and third winder. Mr Douglas' evidence is that he fell at a point when his left foot was on the top winder and closer to the left-hand side where the handrail was - that is at the narrowest part of that step; and his right foot was partially on the second winder. As I have noted, he cannot say where he was looking, and the submission of Mr Morgan, which I accept, is that in the absence of more specific evidence then it is just as probable that Mr Douglas fell because he wasn’t looking where he was going, as it is that in some way the difference in the measurement of the going on the top winder caused him to slip and fall. Mr Morgan also made submissions to the effect that on the evidence; I would not find that Mr Douglas slipped. He referred to some earlier account when he said that his foot went to the side, and a reference in his solicitor's letter to Mr Kahler which suggested that he could not recall if there was anything on the stairs to make him slip. I am satisfied that Mr Douglas did slip. He landed on his backside and ended up in a position that was entirely consistent with a slip. Mr Kahler's evidence on this issue does not really assist the plaintiff on the issue of causation. Mr Kahler refers to the variation in the going dimensions and concludes (at page 17.25): "Inconsistency in their dimensions can promote slipping as people over-step and slipping is initiated". [26] The difficulty for the plaintiff is that given the state of the evidence, there is the equally competing inference that he slipped simply because he wasn’t looking where he was going and despite the warning his wife had given to him earlier. [27] I am not satisfied that the light was a contributing factor. Mr Douglas does not suggest he could not see properly and all the evidence suggests, despite Mr Kahler's observations, that the lighting over the stairs was completely adequate for this type of dwelling. [28] He had descended those stairs on a number of occasions earlier and experienced no difficulties apparently as a result of the dimensional inconsistency, which tends to strengthen the probabilities that this was not the cause of his fall. [29] Even if I was wrong in these conclusions then, in my opinion, the plaintiff would still fail because he has not established a breach of the duty of care by the defendants in the sense in which that duty was defined by Chesterman J. in Gray at paragraph 22 by reference to the various judgments in Jones v Bartlett. Given the defendant's complete lack of knowledge about any defect or danger in the winders, it is difficult to see what else reasonably they could have done in the performance of their duty of care to people like Mr Douglas. Earlier, I quoted from the judgment of the Chief Justice in Jones v Bartlett, and in particular a passage at page 177 paragraph 23. Prior to that passage his Honour said: "There was nothing about the premises that alerted, or should have alerted, the owners to unusual danger. The premises were constructed in accordance with the -- 6 of 8 -- 7 standards prevailing at the time, and, so far as appears from the evidence, were adequately maintained." [30] I respectfully adopt the words of his Honour in relation to the facts here. [31] The plaintiff's claim is dismissed. ASSESSMENT OF DAMAGES The parties agree on a number of heads as follows: Special damages $2005.94 Interest thereon $ 451.33 Past economic loss $6480.00 Interest thereon $1458.00 Loss of super $ 533.30 Past care $3000.00 Interest thereon $ 675.00 Future care $3000.00 [32] The disputed heads are general damage, future economic loss, and future medical expenses. GENERAL DAMAGES [33] There is considerable variation between the expert orthopaedic medical witnesses. Dr White who examined Mr Douglas on behalf of his solicitors concluded that he has suffered at 20% whole right lower limb permanent impairment, whereas Dr Martin on behalf of the defendant determined the lower limb impairment as 8% by reference to the American tables. Dr White's assessment of 20% was based on clinical findings and his subjective assessment of the plaintiff's degree of disability. [34] I don’t think it really matters much in this particular case. Mr Douglas struck me as a stoic man who, if anything, tended to understate the degree of disability. There is no doubt in my mind that the ankle injury is a significant on-going impairment to this man, who has always worked in employment in the marine industry which requires him to get in and out of tight spaces. He has tried a number of employment changes since his injury in order to keep on working and cope with the difficulty he now has in walking on uneven ground, and standing for long periods. He still manages to look after their two properties including their mountain retreat at Eungela, but he is somewhat restricted. I assess general damages at $36,000 and I will allow interest at 2% on $25,000. FUTURE ECCONOMIC LOSS [35] It is common ground that the evidence establishes a weekly loss of income directly attributable to the injury of $100. Mr Douglas is now 57 and has always planned to work on to 65. He obviously has a strong work ethic, a factor which is to be weighed in the discounting process. I prefer the approach suggested by Mr Morgan and that is to apply the 5% tables in reaching a figure of $34,600 which I will discount for contingencies by 15% to $30,000. -- 7 of 8 -- 8 FUTURE MEDICAL [36] On this issue, I prefer the evidence of Dr Martin and that is that there is no evidence to suggest that this man will need further surgery to remove the plate and pins inserted at Nambour Hospital. The medical evidence is that with a man of this age, provided he does not experience symptoms that necessitate removal, removal should be avoided. I think Mr Douglas is coping very well; and at present his symptoms are not at this level and, at best, the evidence establishes only a mere possibility of future surgery. I therefore will not allow any sum under this head. [37] Judgment for the defendants with costs. -- 8 of 8 --