Davis v B1 Gaming Corporation [2004] QDC 19

DISTRICT COURT OF QUEENSLAND CITATION: Davis v B1 Gaming Corporation [2004] QDC 019 PARTIES: MARY DAVIS Plaintiff v B1 GAMING CORPORATION Defendant FILE NO/S: D 2558/01 DIVISION: PROCEEDING: Trial ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 13 February 2004 DELIVERED AT: Brisbane HEARING DATE: 15 May 2003 JUDGE: McGill DCJ ORDER: Judgment for the defendant. CATCHWORDS: NEGLIGENCE – Dangerous Premises – Occupier’s Liability – fall on step – single step at entrance to building – whether sufficient visual cues for presence of step. Cains v Mathers Shoes Pty Ltd [1993] QCA 193 – distinguished. Howie v State of Queensland [2001] QDC 200 – distinguished. Preusker v Conrad International Hotels [2000] QCA 3 – distinguished. Spencer v Maryborough City Council [2002] QCA 250 – followed. Wilkinson v Law Courts Limited [2001] NSWCA 196 – applied. COUNSEL: R J Lynch for the plaintiff R M Treston for the defendant SOLICITORS: McInnes Wilson Lawyers for the plaintiff Allens Arthur Robinson for the defendant -- 1 of 17 -- 2 [1] On 31 July 1999 at about 10.00pm the plaintiff was leaving premises occupied by the defendant when she lost her balance and fell heavily, suffering a fracture of the head of the right femur. The plaintiff alleges that that occurred because she had failed to notice a step at the point where the foyer of the building she was leaving met the footpath, and that her failure to notice the step was due to the negligence of the defendant as occupier. Liability and quantum are both in issue. The fall [2] The plaintiff on the night in question was attending a wedding reception at the defendant’s premises, the Conrad International Hotel: p.6. She arrived at the hotel about 5.00pm, and entered the building through the George Street entrance: p.6. She was not particularly familiar with the building. While at the wedding reception she did not drink any alcohol. About 10.00pm she and her husband decided to leave; they had to catch a ferry to return home, but said she had plenty of time so that she was not particularly rushing: p.7. She and her husband walked back to the George Street entrance. She said that as she was leaving the building she missed the last step and fell flat on her face and felt the bone break: p.7. She said she had just been walking normally. She was carrying a handbag and wearing shoes: p.8. She maintained that she did not see the step at the entrance: p.9. Description of the area [3] There are photographs in evidence of the entrance.1 The footpath outside the entrance is decorated with a checkerboard pattern diagonally to the line of the footpath, with a grey border: Exhibit 1. There is one low step at the point where the building meets the line of the footpath, although, as there are columns on either side of the entrance which project onto the footpath, the bases of these columns extend beyond the step, so that the step is about half a metre inside the face of the base of the columns. There is a slight slope in the footpath, so the step at the eastern end is somewhat lower than the step at the western end; both ends are lower than a normal step.2 [4] Above the step there are a pair of wrought iron gates which open onto a small foyer. At the time they were open. Beyond the foyer, through a set of double doors, there is another small area at the same level before a short flight of steps leads up to another foyer at the level of the ground floor of the building. In order to leave the building therefore one goes to the upper foyer, down the stairs, out through the double doors, across the outer foyer, and down the one step onto the footpath. [5] The floors generally in the hotel are carpeted, but most of the floor in the lower foyer is not. There is some carpet at the foot of the stairs from the upper foyer, and there is an area of something like carpet immediately inside the gates which is apparently also intended to function as a doormat: Exhibit 2. The floors which are not carpeted are in a hard, mock stone surface, off-white in colour with a dark 1 I have also looked at the area at night myself. 2 85mm at the eastern end, to 160mm at the western end: Exhibit 4 p.12. The plaintiff had been walking closer to the eastern side: p.13. -- 2 of 17 -- 3 border, and a broad red stripe which lies a little way from the border. There are two of these off-white floor areas, one on each side of the double doors. [6] Accordingly a person leaving the building will go down the carpeted stairs, across one of the off-white floor areas with the red border, across a wide, dark coloured strip in the vicinity of the double doors, then enter the second off-white floor area, with another red stripe, pass over the doormat, and cross a further strip of white flooring with the red stripe, then a strip of dark flooring immediately adjacent to the wide stone piece which constitutes the doorstep,3 which stretches from the line of the iron gates to the edge of the step down. Exhibit 3 shows the doorstep from inside the building, and shows from the bottom the off-white flooring with the red stripe, the black strip which is a continuation of the strip running around the edge of the lower foyer, the whitish stone doorstep, the dark part of the footpath between the bases of the columns, the grey border to the checkerboard design, and the checkerboard design itself on the footpath, where people are standing. The difference between the sloping footpath and the flat floor of the building and doorstep is apparent in the photographs. The photograph also illustrates the notable contrast in colour between the doorstep and the area immediately beyond the step as one is leaving the building. Why did the plaintiff fall? [7] The plaintiff at the trial was unable to give any details as to what she was doing at the time when she fell or immediately before that time, and it is apparent that she has no particular recollection of that now. What she remembers is falling. The step is not a difficult one to negotiate, and presumably there was some good reason why she fell, and I think it is a reasonable inference that she fell because she did not realise that the step was there. Walking across a step whether up or down without realising that it is there can produce loss of balance which can easily cause a fall, even if the step is relatively shallow, so this is the most likely explanation for the fall. The plaintiff did not suggest that her foot had slipped in any way, or that she had tripped on anything, in connection with the fall. [8] After the accident while she was waiting for an ambulance the plaintiff spoke briefly with the manager on duty at the hotel. Apparently she told him she had misjudged her step: p.16. She was taken by ambulance to the Mater Hospital. A report from that hospital, Exhibit 5, when describing the history says that “she misplaced her foot on steps while descending these steps. She lost her footing whilst on the last step from the ground.” That version was no doubt based on what the plaintiff said on the night, but of course has filtered through two sets of interpretation: the interpretation of whoever took the history on the night when speaking to the plaintiff, and made notes about it, and the interpretation of those notes by the orthopaedic registrar who prepared the report. Its terms do not suggest that it is entirely accurate, because they speak as though the plaintiff fell as a result of some difficulty with the last in a series of stairs. In fact it is clear that she fell in the vicinity of an isolated step, although she had descended a short flight of stairs a little earlier, and this was the last step she had to negotiate to leave the building. 3 There is a metal latch keeper set into the middle of this step, to secure the iron gates if they were to be closed. The step is 760mm wide: Exhibit 1. -- 3 of 17 -- 4 [9] The defendant also pointed to the fact that the statement of claim, which has been amended, initially alleged that the plaintiff “lost her balance in stepping down to the pavement area at the exit”.4 The specific proposition that the plaintiff had actually not been aware of the step at all was first raised in the action when the reply was filed on 7 September 2001.5 [10] In these circumstances it was submitted by the defendant that what had actually happened here was not that the plaintiff had failed to see the step at all, but that she had misjudged the step, and that that had led to her overbalancing and falling. The plaintiff said that she fell towards the eastern end of the step, at which point it is relatively shallow. If the plaintiff had misjudged the height she was stepping down, that could also have led to her losing her balance, although I think it is less likely as a cause of the fall. It was not that shallow. [11] I do not think that the plaintiff has any real recollection of how she came to fall. I accept however that she fell at about the step at the entrance to the building, and in connection with her descent of it. In my opinion the most plausible explanation for a fall in such circumstances is that the plaintiff did not notice that there was a step there. The alternative explanation, that she was aware of the step but misjudged its height and overbalanced because of that, is possible but I think less likely. The plaintiff was a reasonably fit and agile woman at the time of the accident, not someone who would readily fall as a result of something of that nature. It also seems to me that, if she had noticed that the step was there but misjudged it and had fallen because of that, she would have been aware of why she had fallen and would now be more likely to recall the cause of her fall. The defendant’s argument really involves the proposition that the plaintiff is being dishonest about the cause of the fall, and I do not accept that. I accept the evidence of the plaintiff. [12] I do not think that too much significance should be attributed to the evidence of the histories given by the plaintiff on the night after the accident. She would have been in a good deal of distress at the time, and, particularly if she was not aware of the exact mechanism of the fall, she might well have said something about misjudging a step when in fact she had not seen it. Neither the manager nor the Mater Hospital recorded anything which shows clearly that the plaintiff did see the step, or which strongly suggests that explanation. I think those versions are equivocable. I do not regard what was said in the statement of claim as really inconsistent with the proposition that the plaintiff did not see the step at all. I find on the balance of probabilities that the plaintiff fell because she was unaware of the step. The plaintiff’s case [13] Although the plaintiff had entered through that door, the plaintiff was otherwise not familiar with the building and I would not expect someone in her circumstances to remember that there was a step in that position. The plaintiff’s case was essentially simply that there had been a failure to take reasonable care by having a step in such a position where there was nothing to draw people’s attention to the presence of the step, so that someone like the plaintiff when leaving the building could fail to notice 4 Statement of claim filed 29 May 2001 para 4.2. 5 Para 1(d). -- 4 of 17 -- 5 that it was there, and fall as a result. It was not suggested that there was any other aspect of the step which was defective in any way. [14] The building is of some age. It was built in the 1900’s by the state government, to compliment the Treasury Building which is further to the west. For many years it was the Executive Building, becoming in 1971 the Land Administration Building. More recently it has been converted into a hotel, although some effort has been applied to preserving much of the character and style of the original building, because of its heritage value. It is heritage listed (p.66), which means that permission has to be obtained to do any work on it,6 and there is some reluctance of the authorities to permit changes to such a building, although changes in the interests of user safety are likely to be permitted.7 This particular doorway and its step have no doubt been there since the building was constructed. [15] There are many buildings in Brisbane which, like this one, have a step in the doorway. Indeed, until recent years when there has been concern about making buildings accessible to wheelchairs, it was very common for there to be a step at the entrance from the footpath to any commercial building; on occasions there was more than one step. No doubt this was usually for the practical reason that it reduced the risk of water coming into the building if the footpath was wet, either from rain or from being hosed down. Even today it is not uncommon to find a step at the point where the entrance to a building meets the footpath, where older buildings have not been changed. [16] The plaintiff relied on the evidence of Mr Kahler, an engineer and safety expert.8 He expressed the opinion that when exiting the foyer it was difficult to detect which of the various edges represented the vertical change in elevation: Exhibit 4. He said that the step was in effect camouflaged by the environment in which it was placed, where there were a number of other changes in colour which did not represent edges of steps. He said that a person having to descend a single step was likely not to notice the step if the edge characteristics were camouflaged and there is significant visual distraction in the visual field: p.42; Exhibit 4, p.15. However, in a quote from an academic study referred to on p.16, failure to see a single step is attributed to poor lighting or the step merging visually with the walkway. Another explanation for a failure to see such a step is that the person may be distracted; that can be particularly a problem where the step is located in a place where there is something else, such as a display, which is intended to attract people’s attention. [17] There was no evidence that the illumination of this area was inadequate, or that there was anything for which the defendant was responsible which might have amounted to a distraction. The plaintiff was unable to say whether there was something that was distracting her at the time, but that is possible. Mr Kahler suggested that there was significant visual distraction present in the form of the buildings on the other side of the street and further away: Exhibit 4 p.17 and see 6 Queensland Heritage Act 1992 s 33(1); the definition of “development” in s 4 is very wide. 7 There have been, for example, quite a number of changes to the historic Maryborough Courthouse, which is also a heritage building, with a view to enhancing the safety, and indeed the accessibility, of the building. It was agreed that I should proceed on the basis that permission would be given for any modification I found was required to perform the duty of taking reasonable care for the safety of persons such as the plaintiff. 8 His CV is Exhibit 8. -- 5 of 17 -- 6 p.60. I do not accept that. There was no particular reason why any of that decidedly commonplace urban scene would have amounted to a distraction for the plaintiff in the circumstances. [18] There are three things which could have been done to remove such hazard as the step at the entrance to the foyer posed: the foyer could have been reconstructed so as to remove the step, handrails could have been provided, or the edge of the step could have been emphasised in some way, either by painting or by tape. [19] Mr Kahler did not seem to be particularly advocating reconstruction of the foyer, although he did describe this as one possible solution. It would obviously be expensive given the nature of the building and the nature of the foyer. I suspect it would be the modification which would be most likely to run into difficulties because of the heritage value of the building. [20] The provision of handrails was particularly suggested by him, as providing a strong visual cue to the presence of the step. Because of the width of the entrance, he suggested three handrails, one on each side and one in the middle, as shown marked on the photograph on p.21 of Exhibit 5. The handrails would have the incidental benefit that they would be available to assist anyone who did require a handrail for climbing or descending the one step, but essentially their function was seen by Mr Kahler as providing a visual cue to the presence of the step. That is the only aspect which is relevant to this plaintiff. He estimated a cost of $2,000 for this work: p.30. [21] The provision of handrails would certainly have involved less substantial work than the construction of a ramp, and may well have been more acceptable to the heritage authorities, although it would still have involved some compromise to the heritage value of this entrance to the building. There is also the consideration that taking this step would not necessarily eliminate any risk of injury, but merely tend to reduce it. [22] I accept that it is foreseeable that a person may fall and suffer injury as a result of the location of this step in this entrance.9 The question then becomes, what would have been the response of a reasonable person to that foreseeable risk. In relation to this, it is relevant to take into account a range of factors including the likelihood of this risk materialising, the severity of the consequences of the risk materialising, the cost and other adverse effects of doing any remedial work, and any conflicting considerations.10 It is also necessary to bear in mind, in assessing what is reasonable, that there may be many other risks, and questions of reasonableness should not be assessed by reference only to this particular type of injury.11 [23] With regard to the third possible modification, emphasising the edge of the step by painting or tape, there are I think two significant factors. The first is that Mr Kahler expressed the opinion that this form of response would be unlikely to assist, because of what he described as a significant number of horizontal lines in the visual environment: Exhibit 4 p.20. The second consideration is that the edge of this step 9 That is supported by the evidence of Mr Kahler, and common experience. See also Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [32] quoted below. 10 Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8. 11 Wilkinson at [33]. -- 6 of 17 -- 7 is already clearly visually differentiated from the footpath material beyond it; whether or not one picked up that the change in colour is due to the presence of the edge of a step, the change in colour in itself would be readily visible. That distinguishes the present case from one where the material in the step is the same as, or very similar to, the material immediately beyond the step, where the presence of the edge may be overlooked unless it is highlighted in some way. [24] Although it would not have been difficult or expensive to have applied some visual highlighting of the presence of the edge in this way, I am not persuaded that a reasonably careful building occupier would nevertheless undertake that step, bearing in mind the facts to which I have just referred. There is also the consideration that emphasising the edge of the step will not necessarily prevent someone from falling; it will only be relevant for a person watching where he or she is walking anyway, and any such person has a clear visual clue already because of the contrast in colour. On the subject of cost, there would be additional costs associated with the procedural requirements of obtaining authorisation to make even this relatively minor modification to a heritage building (p.66), assuming that such permission would be granted. There is no evidence of what that cost would be, but there would undoubtedly be some cost, far more than what would be spent on paint or tape and labour to apply it to the step: p.31. A pleading point [25] At the conclusion of the trial it was submitted on behalf of the plaintiff that she was entitled to a finding that the fall was caused by the negligence of the defendant on the pleadings. Paragraph 5 of the statement of claim as originally filed with the claim alleged that the plaintiff’s fall was caused by the negligence of the defendant, and gave as particulars failing to install a ramp at the entrance, failing to eliminate the rise or step so that the entrance foyer was at the same level as the footpath, exposing the plaintiff to a risk of injury from the presence of the small step at the entrance which was not readily discernable, and failing to warn the plaintiff of the existence of the step. In the defence filed with the notice of intention to defend the defendant pleaded: “As to paragraph 5 of the statement of claim, the defendant denies such allegations as the defendant believes such allegations to be untrue.” An amended statement of claim was filed on 27 May 2002 which added further particulars to paragraph 5, failing to provide a handrail, failing to provide visual delineation on the step, and failing to provide adequate lighting at the exit of the hotel, but otherwise did not alter the pleading. No amended defence was filed in response, and accordingly the existing defence stands as the defence to the amended statement of claim. [26] The plaintiff relied on r.166(4) which provides: “A party’s denial or non admission of an allegation of fact must be accompanied by a direct explanation for the party’s belief that the allegation is untrue or cannot be admitted.” The defence of the present case contained a denial of the allegation of fact in paragraph 5 of the statement of claim, and a statement of the defendant’s belief that the allegation was untrue, but did not contain a direct explanation for that belief. Accordingly paragraph 5 of the defence in the present case did not comply with r.166(4) and, pursuant to sub-rule (5), the consequence was that the defendant was taken to have admitted the allegation in the plaintiff’s amended statement of claim. -- 7 of 17 -- 8 [27] Rule 166(4) was intended to prevent a situation where the pleading contained nothing more than a bare denial, or a bare failure to admit. Bearing in mind the terms of r.166(3), a denial as distinct from a non admission is appropriate when a defendant is proposing to lead evidence to contradict the denied allegation. It does not follow however that the rule requires that details of that evidence be disclosed. What is required is an explanation which discloses the party’s case on the point. For example, if there is a denial pleaded to an allegation that the defendant breached a contract with the plaintiff by doing X, the defendant might, depending on what the defendant’s case was, explain the denial by saying that the defendant did not do X, or that X was done but not by the defendant or any person acting on behalf of the defendant, or that what the defendant did was not X but Y, which was not a breach of the contract, or that the defendant did do X but that this was not a breach of the contract, with an explanation as to why that was the case. There may well be others depending on the particular circumstances. These examples illustrate that a denial in this form is one which serves to identify the real factual issue being raised by the party pleading the denial, in a way that a bare denial does not. But it does not follow that it is necessary or appropriate for the party to plead what the evidence will be, which would be contrary to r.149(1)(b). [28] In the present case, paragraph 5 ought to have pleaded something like: “As to paragraph 5 of the statement of claim, the defendant denies such allegations because, although there was a step without a handrail at the entrance to the hotel, the step was obvious and there was sufficient warning of its presence, and the lighting in the area at the time was adequate, so that it was not necessary to provide greater warning or some physical modification of the area in order to take reasonable care for the safety of persons such as the plaintiff.” There may well be other ways in which the case could have been put, and no doubt others could formulate the pleading better than I, but that illustrates the sort of thing required by the rule. It identifies the relevant factual issue for the court, and for the other party, without saying anything about the evidence to be led. [29] When the point was raised at the end of the trial, in the context of which party bore the onus of showing whether or not permission could be obtained from the relevant authorities to make any alteration to this building, counsel for the defendant sought a declaration under r.371(2)(d) that the denial in paragraph 5 of the defence be effectual notwithstanding the failure to comply with r.166(4), and I made that declaration, so that the trial would be conducted on the real issues, and because, the defendant not having called evidence in relation to liability, it did not seem to me that the plaintiff was prejudiced, other than possibly in relation to costs, by the failure to comply with the rule. Whether there should be any consequences as to costs of the failure to comply with the rule was not determined at that time. Ultimately after further argument both sides were prepared to proceed on the basis that the restrictions because of the heritage listing of the building would not have prevented anything from being done which I found ought to have been done in order to perform the duty to take reasonable care. That relieved the plaintiff of the burden of having to prove that any proposed modification was one which the defendant would not have been prohibited from undertaking. -- 8 of 17 -- 9 Authorities and other decisions [30] There are a large number of occupiers’ liability cases involving falls on steps, although not many where the fall occurred on a single isolated step such as the present. One case which does have some similarity with the present, and was relied on by the plaintiff, is Cains v Mathers Shoes Pty Ltd [1993] QCA 193. In that case a woman who had tripped on a small step (a rise of about 19mm) at the point where a footpath met an area between two display windows at the entrance to a shop recovered damages from the occupier of the shop for her injuries. The trial judge held there was no negligence, because the manager of the shop had not been aware of any other fall or difficulties in the previous five years, and because the plaintiff did not see the rise or step because she was not looking where she was walking. But on appeal the judges noted evidence, and what was described as common experience, that a small but definite rise such as the kind involved in that case “is potentially more likely to cause stumbling or tripping than a substantial step that is easy to see.” [31] When assessing the significance of that it is necessary to bear in mind that that plaintiff was walking into the building and so had to step up, not leaving the building and having to step down. That step at its most shallow was only 19mm high; the step in the present case at its most shallow was 85mm: Exhibit 4 p.12. The next consideration mentioned by the Court of Appeal was that the plaintiff fell because her attention was directed to the display window. Their Honours said at p.9: “Where the very intention of the defendant was that the display should attract attention, the plaintiff’s conduct in moving along without watching her feet was both predictable on her part and reasonably foreseeable by the defendant as a shopkeeper occupying those premises.” In the present case of course there was no display, or anything else provided by the defendant which was intended or likely to attract the attention of a person walking out of the building, and which might thereby have distracted that person from watching where he or she was walking. [32] Their Honours went on to say that the tripping which occurred was a risk that was reasonably foreseeable. Their Honours held that a reasonable occupier would not have “exhibited warning signs, or painted distinctive markings at or around the step to increase the chances of its being seen”, which is of some relevance to the present case, or have built a sloping ramp from the entrance foyer out into the footpath area, but concluded that a reasonable occupier would have reconstructed the entrance foyer so as to increase the slope to meet the edge of the footpath at the same level, thus eliminating the small step. The cost of reconstructing the entrance foyer in this way was not disproportionate having regard to the risk of injury involved, and therefore a reasonably careful occupier would have taken that step, so the defendant was negligent for not doing so. On that basis the appeal was allowed. [33] On this analysis it is obvious that the particulars factors which led to the decision favourable to the plaintiff in that case12 are missing in the present, and the remedy proposed in that case was shown to have been reasonably inexpensive, whereas reconstruction of the foyer in the present case to eliminate the step would involve much more substantial work, would interfere with heritage values of the entrance and might produce a relatively steep ramp which might give rise to some danger in 12 The unusually small height of the step, and the distraction of the display. -- 9 of 17 -- 10 itself, and would therefore be an unsatisfactory solution, as Mr Kahler recognised. In these circumstances in my opinion Cains is distinguishable, and does not provide any assistance to the plaintiff. [34] The plaintiff also relied on Preusker v Conrad International Hotels [2000] QCA 3, where the Court of Appeal refused leave to appeal from a decision of a judge of this court13 in favour of a plaintiff who had suffered an injury when she slipped on a flight of stairs in the defendant’s premises. In that case the stairs were internal, and the plaintiff was proceeding from the restrooms to an automatic teller machine. The reasons are not entirely clear but it appears that the floor on which the plaintiff was walking was granite to the edge of the first step, with carpet on the other steps to the lower floor. The steps had handrails; these were said by one of the experts in that case to become less relevant as a visual cue as one approached the edge of the first step. The matter is complicated by the fact that that plaintiff was not looking where she was going; she admitted that at the time she was looking for a cash card in her handbag, and was simply unaware the steps were there until she fell on them. The trial judge had found that her central vision was concentrated on her bag, so attention was directed to the question of what visual cue would have triggered some response with her peripheral vision. [35] The trial judge accepted that the tread-nosing would have been more conspicuous if there was white or yellow non-skid band on it, a solution supported by the plaintiff’s expert in that case, and concluded: “Even though this is a finely balanced case, I am satisfied that a reasonable response, given the colour of the granite at the top of the stairs, that a more definite edge ought to have been provided by the use of white, or perhaps more aesthetically, a yellow non-skid band.” There was nevertheless a substantial amount of contributory negligence. The Court of Appeal declined to grant leave to appeal, observing “no risk in future actions of this kind, or at this level of amount, the decision in this case will constitute a precedent.” That decision was one where the circumstances were different, the evidence was different, and the Court of Appeal has said that it was not to be regarded as a precedent. In those circumstances I do not intend to use it as a precedent in this case. [36] I was referred to a decision by another judge of this court in a case where a plaintiff suffered an injury as a result of a fall when she failed to detect the presence of a single step down in circumstances which had some similarity to the present: Howie v State of Queensland [2001] QDC 200. The plaintiff was attending a seminar in the course of her employment at premises with which she was unfamiliar, a state school. She had parked in the carpark and was walking towards the main school buildings along an established path which led under one school building, across an open space and up some stairs to an entrance to the school proper at another building. There was a single step up from the carpark to the concrete surface under the first building, and on the other side of that building there was a single step down to a concrete surface which led to the stairs up to the entrance of the other building. The plaintiff successfully negotiated the step up, but when she moved out from under the first building she did not notice the single step down, and as a result fell and suffered injury. 13 Plaint 4192/97, Forde DCJ, (16 September 1999, unreported). -- 10 of 17 -- 11 [37] The accident occurred at 9.45am in August, on an extremely foggy day. There was no artificial light under the first building where it was described as very dark. The plaintiff sued her employer (the State of Queensland) and the statutory corporation in which title to the school is vested as occupier. At some point there had been some yellow paint applied near the edge of the step, but this was well worn and was regarded by the judge as inadequate as a cue to the presence of a step. A difference in the texture of the concrete inside and outside was also regarded as inadequate, bearing in mind the difference in lighting conditions. His Honour was also critical of the inadequate lighting, saying at p.11: “I am also of the view that other visual cues, such as appropriate signage, and improved artificial lighting at the site were reasonable safeguards that should have been taken.” There was by way of contrast no significant criticism of the lighting at the premises in the present case,14 and no one suggested that some sort of warning sign should have been provided. [38] I think that the inadequate lighting in that case was a matter of some significance, particularly in a situation where there was no significant visual contrast between the step and the surface beyond it, in contrast to the present where the step and the area beyond it were a different colour, providing a pronounced visual contrast and a clear visual cue. I suspect as well that that decision was not uninfluenced by the fact that someone had previously applied yellow paint to the edge of the step in order to emphasise its presence. That seems to have been treated as in effect an admission by the defendant that there ought to be yellow paint on the step, which in turn was treated as in effect an admission that it was negligent not to have it there, so that the defendant was negligent because it had not been properly maintained. That is not the position in the present case, so it is not necessary for me to consider the legitimacy of that process of reasoning. [39] Overall I do not think that the decision in Howie provides any great assistance in the circumstances of the present case. I do not consider that it should be treated as indicating in effect that it will be negligent for an occupier of premises to have within the premises a step which does not have some visual delineation of the edge of the tread, such as by yellow or some other contrasting paint, or in some other way. Such a proposition would be inconsistent with the decision of the New South Wales Court of Appeal in Wilkinson v Law Courts Limited [2001] NSWCA 196 where Heydon JA (as he then was), with whom the other members of the Court agreed, confirmed the decision of a trial judge that there was no negligence in relation to the steps outside the Law Courts building in Sydney, notwithstanding that the steps were of somewhat unusual dimensions, and there were no handrails or edge delineation strips or warning signs present. In that case some white paint had been applied to the stair edging after the plaintiff had his fall, but notwithstanding this a decision that it was not negligent not to have it at the relevant time was upheld. [40] His Honour said at [32]: “In my opinion the trial judge’s reasoning is wholly convincing. Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances. 14 The plaintiff did not have any concern about the light at the time: p.13. Mr Kahler said that the lighting was “marginally acceptable”, which I take it means it was not as much as he would have liked, but he could not really say it was inadequate: p.45. -- 11 of 17 -- 12 Among the essential circumstances is the following fact: ‘Persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety’: Stannus v Graham (1994) Aust Torts Reports 81-297 at 61,566 per Handley JA. There are many places in Sydney where the steps do not have strips on the edges: the Public Library, the Art Gallery, Parliament House, St James Church and St Mary’s Cathedral.” One might add the same is true in Brisbane; although one does not infrequently see steps with some specific visual delineation of the edge, steps that are not so marked are very common. Analysis [41] There is however a different issue in the present case, one of the ability of a person approaching the step to identify that there is a step present. In most cases where there are a number of steps it will be obvious as one approaches the top that there is a change in level. But the smaller the number of steps the greater the risk that a person approaching the top will fail to appreciate that there is a change of level. The same applies if one is dealing with a drop which is less than the height of a normal step. In such circumstances the issue becomes one of assessing the visual cues to indicate that there is a change of level involved, rather than to identify the location of the edge of the tread. It may well be for this reason that Mr Kahler did not regard the application of some coloured strips at the edge of the treat as being of any particular significance. The plaintiff’s real case here is that there was insufficient visual warning of the presence of the change in level at this point, so that a person leaving the building might not appreciate that there was a step there. [42] No doubt more could have been done by way of visual cues, but that is not the relevant consideration, for the reason given by Heydon JA which I have just quoted. The question is whether what was there was sufficient so as to amount to reasonable care for the safety of persons leaving the building. In the present case there were a number of visual cues. First, there was a clear colour contrast between the step and the area immediately beyond it. Although Mr Kahler spoke of this as being simply one of a number of more or less parallel changes in colour that one would cross when leaving the building,15 an argument which at first glance receives some support from the photographs which emphasise this feature (see Exhibit 3), a person actually moving towards the entrance would be likely to detect the significance of this edge because of the change of perspective as the angle of the line of sight to the edge changed. That would be assisted by the contrast between the flat floor of the foyer and the slight slope of the footpath.16 There is also the consideration that the block of stone which is the doorstep looks like a doorstep. It has the latch keeper in the middle for the gates which were obvious on either side, and they suggest that there is something special about this particular strip of stone. They help to draw attention to it, and to the fact that it is located at the entrance to the building, where one would expect in such a building that one might well find a step: p.44 line 57. In my opinion these factors in combination provided reasonable visual cues to the presence of the change in level at that point, particularly as one gets closer to the step, so that there was no negligence on the part of the defendant in failing to 15 He said that in context it was camouflaged: p.42. I do not accept that conclusion. He did concede that there was a contrast in colours. 16 Mr Kahler conceded that that was a visual cue: p.44. -- 12 of 17 -- 13 provide additional warning of the presence of this step. The step was obvious enough. [43] It is commonplace that people do fall down from time to time, for a variety of reasons, or sometimes for no apparent reason at all. People certainly can and do fall on stairs, although apparently most falls actually occur on flat surfaces: p.33. However the other characteristic of falls is that, overwhelmingly, they do not lead to serious adverse consequences.17 That is not to say that falls cannot have serious, sometimes very serious, consequences, but that is most unusual. It is important not to confuse the seriousness of a possible outcome with the degree of risk that it will occur.18 It is also relevant to consider the aesthetic disadvantages of the course proposed, and the compromise this would involve in the heritage characteristics of the building. [44] Bearing all these factors in mind, I am not persuaded that a reasonable person exercising reasonable care for the safety of persons using these premises would have installed handrails, or taken some other step in order to reduce the risk of someone falling on the single step at this entrance when leaving the building. I am not persuaded that reasonable care required that more be done. [45] It follows that the plaintiff’s case in liability fails, having failed to prove negligence on the part of the defendant. It is unnecessary in these circumstances for me to say anything about contributory negligence, which was raised in the pleadings, although I consider that the inference is irresistible that the plaintiff fell because of a failure to keep a proper lookout for her own safety.19 Reference was made in Cains (supra) to the direction to the jury in De Teyron v Waring (1889) 1 TLR 414 at 415, that a man walking along “might if he pleased look up at the stars as he walked, and his doing so was not contributory negligence which should preclude him from recovering.” Their Honours treated this as a statement that “Pedestrians using the footpath are, as a general rule, not obliged to watch their feet in order to avoid unexpected obstructions as they walk.” That passage was quoted by the trial judge in Preusker (supra) at p.6, but it seems to me to be inconsistent with statements in the High Court in Brodie v Singleton Shire Council (2001) 206 CLR 512. [46] Callinan J at p. 639 said, in relation to the question of whether, in the matter of Ghantous, there was negligence in the maintenance of a footpath where there was some difference in height between the concrete and the earthen part of it: “The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this.” Gaudron, McHugh and Gummow JJ at p.581 said: “As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger, or the surrounding area. In such circumstances, there may be a 17 Spencer v Maryborough City Council [2002] QCA 250 at [31]. 18 Tomlinson v Congleton Borough Council [2003] 3 WLR 705 at 731 per Lord Hobhouse. 19 The plaintiff said she “always” watched where she was going, but did not recall whether or not she was at that time: p.14. -- 13 of 17 -- 14 foreseeable risk of harm even to persons taking reasonable care for their own safety.” Gleeson CJ and Hayne J agreed with Callinan J in relation to Ghantous: p.526, p.636. [47] Although Kirby J at p.606 rejected “any enlarged assumptions about a pedestrian’s need for vigilance for his or her own safety”, in my opinion there is a clear majority in the High Court in that case which seems to me to be inconsistent with the approach in De Teyron (supra), that reasonable care for one’s own safety is compatible with gazing at the stars while walking along a footpath.20 Gazing at the stars may cause the human spirit to soar, but if ambulation continues, may cause the human body to fall. The plaintiff in the present case was not gazing at the stars of course; apart from anything else, she was indoors. However, the more probable explanation for her having fallen is that for one reason or another she was not watching where she was walking. In case a different view may be taken elsewhere, however, I will make a precautionary assessment of damages. Quantum [48] The plaintiff was born on 16 August 1934 (p.8) and was 64 at the date of the accident. She suffered a sub-capital fracture of the neck of the right femur: Exhibit 5.21 That would have produced extreme pain. She was helped to a chair and taken by ambulance to the Mater Hospital where she was x-rayed and admitted, and on the following day underwent surgery. She was in hospital for seven days, and then she had to use crutches for four months, after which she was able to walk with a brace on her knee and with the aid of a walking stick. She had a long standing problem in the right knee that had not been causing her any significant difficulties prior to the accident: p.10, p.27. It was stirred up following this accident, hence the brace on the right knee. Physiotherapy provided some assistance, but the pain continued and in June 2000 she underwent a knee replacement, which involved further surgery and further hospitalisation: p.25. That has been successful although she walks with a more pronounced limp and has some problems with balance (p.21), and has to use a walking stick. She is much less mobile than she used to be, no longer plays tennis or engages in long walks,22 and an inability to kneel interferes with her enjoyment of gardening.23 Prior to the accident she was in good health: p.10. For a time she was unable to take part in boating, a matter of some particular significance as she and her husband live on an island in Moreton Bay. [49] The plaintiff was seen for the purposes of a report by an orthopaedic surgeon, Dr Gillett, on 23 November 2000: Exhibit 6. She told the doctor that she had no pain and a good range of motion in the right leg, but there are problems with walking and with balance. On examination the leg lengths were equal and alignment overall was quite good, with a good range of motion, the only problem being a weakness of the abductor muscles. Dr Gillett was of the opinion that the surgery had been successful but that the weakness of the abductor muscles which was causing the 20 See also Burwood Council v Byrnes [2002] NSWCA 343 at [28]; Spencer (supra) at [32]. 21 More details of the nature of the injury suffered by the plaintiff were given by Dr Martin at p.52. 22 Exhibit 7, para 18. 23 P.20. This is attributable to the knee replacement, although it is aggravated by problems with the hip: p.20 -- 14 of 17 -- 15 abnormal gait was a direct consequence of the fall and the treatment. He did not expect full recovery and there would be ongoing problems with her gait. He assessed a 50 percent impairment of lower limb function, which was the equivalent of 20 percent loss of body function. He considered that within five to ten years she would require further work on the hip to convert it into a total hip replacement. The limp and instability in the leg were related to the operation on the hip: p.85. The x- rays of the knee prior to the accident showed a gross pathology and he would have expected problems which led to knee replacement in due course anyway, more likely than not within two years of the fall. [50] The plaintiff was seen by Dr Martin, an orthopaedic surgeon, on 19 September 2002 for the purposes of a report: Exhibit 9. Dr Martin described the injury and the subsequent events, and the pre-existing problem with the right knee, in a way which is unexceptionable except that in paragraph 5.2 he refers to the plaintiff having regained a high level of mobility following her recovery from the knee replacement. That is not consistent with the plaintiff’s evidence. Perhaps this was intended to be a reference to the range of motion in the joints, otherwise it suggests some misunderstanding of the plaintiff’s current symptoms. Again on examination she was found to be unable to abduct the right leg. Dr Martin did not expect that the plaintiff who was aged 68 years when he saw her would require further surgery. By reference to the American Medical Association scales he thought there was an impairment of the right leg of 37 percent, or the equivalent of whole person impairment of 15 percent. Dr Martin was firmly of the opinion that the plaintiff would not require a total hip replacement for the rest of her life: p.52. He said that three and a half years from the accident there was no indication on the x-ray of any problems, and that that was a good predictor for the future: p.53. [51] The substantial difference between the two doctors is as to the prospect of further surgery, specifically a full hip replacement.24 It is difficult to resolve; although Dr Gillett gave a detailed explanation for his opinion based on clinical experience, there is no reason to think that Dr Martin’s opinion is not also based on clinical experience. Perhaps Dr Martin is more pessimistic about expectation of life. Dr Martin did seem to place a great deal of emphasis on the situation disclosed in the x- rays, and the absence of any sign of any problem developing at this stage. But Dr Gillett said that that, although good so far as it went, that did not mean that problems would not develop in the future. He said the hip would certainly need replacement if the plaintiff lived long enough, and it was more likely than not to be necessary within ten years from the date of the accident: p.81-83. [52] I do not think that this is one of those situations where an assessment should be made of the probabilities having regard to both expert opinions. The opinions are really inconsistent, and I must resolve this conflict in the evidence. I do so by preferring the opinion of Dr Gillett, on the basis that as explained in the evidence it is more clearly based on clinical experience. For that reason I found his exposition more persuasive. The plaintiff’s life expectancy is well over ten years, and I think there is therefore a high probability of the plaintiff’s requiring further surgery for the hip replacement at some time in the future. 24 The operation already performed was a partial hip replacement, giving the plaintiff an artificial ball at the top of her femur: p.52. What was proposed was to replace the balance of the hip joint. -- 15 of 17 -- 16 [53] The plaintiff had a lot of pain at the time of the accident (p.16) and in connection with the surgery and her recovery. She had a lengthy period of physiotherapy, some 18 months: p.22. Fortunately that has now abated, and the only continuing problem with pain is if she is walking up a hill: p.22. The situation therefore is one where the plaintiff has suffered a substantial loss of function in the right leg, but relatively little pain, a contrast to those cases where there is a good deal of pain but little loss of function. I have to take into account the pain and suffering associated with the quite likely further operation, and with the acceleration of the pain and suffering associated with the knee surgery. The functional problems are keenly felt by the plaintiff who was quite physically active prior to the accident, and is now quite limited in what she can do. Apart from matters referred to earlier, she has problems with some house cleaning, particularly anything which requires her to get down to the floor: p.26. In all the circumstances I assess damages for pain and suffering and loss of amenities of life at $30,000,25 of which I apportion $12,000 to the past. That will bear interest at two percent per annum for four and a half years. [54] The plaintiff had retired some time before the accident (p.27), and there was no claim for economic loss. With regard to the future surgery, a figure of $10,000 was given by Dr Gillett: Exhibit 6. The matter is complicated because of some uncertainty as to when this will be necessary, and some small possibility that it might not be necessary, and by the question of whether there is any prospect of any further surgery even further into the future. I suppose there is also some risk of complications associated with the second surgery which could increase the cost and other problems for the plaintiff. Some discounting has to be applied because the cost is one to be incurred in the future. In all the circumstances I will allow $7,500 for future surgery. Apart from this, there is likely to be some period prior to the surgery when the leg is more painful than it is at present, so some allowance should be made for painkillers and medication in the future. However, the plaintiff is not greatly troubled by pain at the present time (p.23), so the allowance for this should be fairly modest and I will allow $1,000. [55] Following the accident the plaintiff received a good deal of assistance from her husband, occupying some 16.5 hours per week for the first six to seven weeks: Exhibit 7. That dropped then to about one hour per day, and after a further nine weeks to two hours per week. Following the knee operation there was again substantial assistance provided for a period of six weeks, indeed on the basis of Exhibit 7 greater assistance, which dropped to five hours per week for seven weeks and then two hours per week which was continuing. I accept this but the matter is complicated because it is likely that the plaintiff would have required the knee replacement anyway at some point,26 so that the additional care associated with that has been accelerated rather than anything else. Disregarding that additional care, on the basis of Exhibit 7 there has been a total of approximately 600 hours, which at the agreed rate of $15 per hour (p.5) is $9,000. The extra care associated with the hip operation came to 123 hours which at the agreed rate of $15 per hour comes to $1,845. I will allow $150 for the acceleration of this cost, so past gratuitous care comes to $9,150 on which I will allow interest at four percent per annum for four 25 In making the assessment I have had regard to Braatz v George’s Coffee Shop (Plaint 57/96, Toowoomba District Court, Robin DCJ, 15.10.98) and Smith v Ampol Petroleum Pty Ltd (Plaint 133/97, Boyce DCJ, 19.12.97). 26 Probably by now anyway: Exhibit 6. -- 16 of 17 -- 17 and a half years, $1,647. For future gratuitous care I will allow the figure of $10,000, bearing in mind that some significant deduction should be made for the vicissitudes of life and for the likely diminution of the plaintiff’s ability to do more strenuous things anyway as she became older. [56] Other components of the damages claim are uncontroversial: they are hospital expenses of $4,277, Health Insurance Commission refund of $89.65, and out-of- pocket expenses in the form of travel costs, pharmaceuticals and physiotherapy totalling $962.99. Interest on out-of-pocket expenses was agreed at the date of trial at $182.96. That needs to be adjusted because of time passing since then, and I will allow $216.67. Summary [57] I therefore assess damages as follows: (a) pain and suffering and loss of amenities of life $30,000 (b) interest on $12,000 at two percent per annum for 4½ years 1,080 (c) past gratuitous care 9,150 (d) interest at four percent per annum for 4½ years 1,647 (e) future gratuitous care 10,000 (f) future medical treatment 7,500 (g) future painkillers and medication 1,000 (h) medical expenses (refunded) 4,367 (i) out-of-pocket expenses 963 (j) interest for 4½ years 217 Total $65,924 For the reasons given earlier however there will be judgment for the defendant. -- 17 of 17 --