Judgment date: 19 November
2010 Youkhana v Di Veroli and Ors  NSWCA 322
NSW Court of Appeal1
The Court of Appeal confirmed the limits to the application of the rule in Jones v Dunkel, and the utility for defendants in relying on defences under Section 5C of the Civil Liability Act 2002 (CLA).
On 24 February 2003 the plaintiff went to the premises of Limited Edition Holdings Pty Ltd (Limited Edition) at Erskineville for the first time. The plaintiff had been contracted as a sales consultant with Limited Edition since 2001. Limited Edition was named as fourth defendant but was wound up and took no part in the proceedings.
The defendants had owned the building since 1988, which was used for commercial purposes. There were timber stairs leading from the ground floor to the first floor. The stairs were very old (at least 50 years) and they were not fitted with any anti-slip nosings or abrasive strips at the time the plaintiff was injured. They were fitted with a rectangular handrail and it appeared at some point a polyurethane or similar finish had been applied to the stairs.
As the plaintiff was descending the stairs, and as she reached the third step from the top, she slipped on the front of the step and fell down the remaining stairs to the first landing, approximately 3 or 4 stairs, sustaining injuries.
The defendants, within weeks of the plaintiff's fall, applied non-slip strips to the nosing treads of the stairs, and also applied aluminium nosing and timber packers, but not until 2006 after the proceedings had been commenced.
The plaintiff commenced proceedings in the Supreme Court against the defendants.
Supreme Court Decision
The trial judge, James J, noted that the plaintiff's claim was governed by the CLA, and in particular ss 5B and 5C which provides as follows:
"5B General Principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
5C Other principles
"In proceedings relating to liability for negligence:
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
James J noted that it was also necessary to apply authoritative statements which have been made about the extent of an occupier's liability and particularly in relation to stairs on the premises of the occupier. In this regard James J quoted from the judgment of Heydon JA in Wilkinson v Law Courts Limited  NSWCA 196 as follows:
"...an occupier of premises is only required to take such care as is reasonable in the circumstances. The duty is not to make the premises as safe as reasonable care and skill on the part of any one can make them.
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. 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' ".
James J then considered the submission by the plaintiff that there should be an adverse inference made against the defendants, pursuant to the principles in the case of Jones v Dunkel  HCA 8, because the defendants failed to adduce evidence as to whether or not there had been any prior incidents on the stairs or complaints about the stairs and whether a fresh polyurethane coating had been applied to the stairs from time to time which might have made the stairs more slippery. In dismissing this argument, James J stated that the rule "cannot be applied so as to fill gaps in the evidence or to convert conjecture or suspicion into an inference", and accordingly proceeded on the basis that there was no evidence of any previous accident involving a person slipping or falling on the stairs or any previous complaints.
In response to the plaintiff's submissions concerning the defendant's subsequent actions in modifying the stairs demonstrating what the defendants should have done prior to the accident, James J noted that the plaintiff was barred from relying on the defendants' subsequent actions as of themselves affecting liability by virtue of the provisions of s 5C (c) of the CLA.
James J preferred the expert evidence of Dr Cooke over the evidence of Mr Adams. In this regard, the primary judge accepted that the coefficient of friction readings of Dr Cooke on worn areas of the stairs, taken more than three years after the plaintiff's accident, provided a reasonable guide that the contribution to the risk of slipping was moderate to very low. James J found that the stairs were old, that the stairs were not very steep, that each part of the stairs contained only a few steps, that at the time the plaintiff was using the stairs the stairs were well lit, and that there was no feature of the design of the stairs which would not have been obvious to any users. For the above reasons James J held that the plaintiff had not established that there was a foreseeable risk of a person slipping on the stairs which was not insignificant such that a reasonable person in the position of the defendants would have taken precautions against that risk. Alternatively, James J stated that he did not consider that it had been established that the defendants failed to take such care as was reasonable in the circumstances.
Accordingly the plaintiff's claim failed and she appealed to the Court of Appeal.
Court of Appeal Decision
Hodgson JA, who wrote the unanimous decision, turned first to the ground of appeal concerning a possible adverse inference that should have been drawn against the defendants pursuant to Jones v Dunkel.
Hodgson JA affirmed James J's decision that there was no basis on which Jones v Dunkel should be adversely applied to the defendants.
Hodgson JA emphasised that the onus was on the plaintiff to prove that there was a foreseeable risk against which a reasonable person in the position of the defendants would have taken precautions, and that James J acted appropriately to comment that there was no evidence of prior falls or prior complaints that could have helped the plaintiff to discharge that onus.
Hodgson JA rejected the plaintiff's submissions that the primary judge should not have accepted the evidence of Dr Cooke on the basis there was no material error shown in the primary judge's findings.
The other primary ground of appeal by the plaintiff concerned s 5C(c) of the CLA.
It was accepted that the defendants had, within weeks of the plaintiff's fall, applied non-slip strips to the nosing treads of the stairs, and secondly in 2006 applied aluminium nosing and timber packers. The plaintiff sought to rely on the defendant's subsequent actions to support her argument that there were relatively minor and inexpensive steps that the defendants could have taken which would have avoided the risk of harm. The plaintiff submitted that James J erred in applying s 5C (c) of the CLA, arguing that it did not apply at all to measures taken once the precise risk at the time of the accident had ceased to exist, and so did not apply to the second set of measures taken in 2006.
However Hodgson JA found that James J did no more than correctly express the terms of s 5C(c), to the effect that subsequent actions do not of themselves affect liability or amount to admissions. His Honour did not accept that once there had been any change from the risk at the time of the accident s 5C(c) no longer applies.
All other weaker grounds of appeals were also rejected by the Court of Appeal and the plaintiff's appeal accordingly failed.
Whilst this decision turned on its facts, it again emphasises that claims of negligence are now firstly and primarily governed by the CLA, which clearly sets out the basis upon which a defendant may be found negligent.
The decision also confirms the limitations on parties seeking to rely on the rule in Jones v Dunkel. The onus of establishing negligence always rests with the plaintiff, and the fact that a defendant may not call evidence on each and every issue in dispute will not automatically lead to adverse inference being found against them.
The decision also illustrates how defendants can rely on s 5C (c) of the CLA in answer to an allegation that any subsequent steps taken by them to make premises safer should have been undertaken prior to the incident, as any subsequent step does not of itself give rise to or affect liability in respect of a risk and does not of itself constitute an admission of liability.
The decision highlights the importance of expert evidence in slip and fall claims particularly where there is conjecture as to the precise mechanics of the plaintiff's fall and the absence of evidence of any previous accidents or complaints.
1 Hodgson JA, Tobias JA, Campbell JA
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