Jandson Pty Limited v Welsh  NSWCA 317
The majority of the NSW Court of Appeal upheld the trial judge's findings in favour of the plaintiff on the basis that the absence of visual cues to the change in levels in a display house constituted a not insignificant risk of injury.
On 14 January 2006 the plaintiff was injured when she fell on to a timbered area of the floor in a display house owned and occupied by the defendant for commercial purposes. The house was in a Display Centre at Kellyville.
The plaintiff and her husband went to the display house on a bright and sunny day. The plaintiff said that there was a lot of light coming from the rear of the house into the timber floored area making the flooring shine. As she walked in she saw to her left side a table with a lamp on it in the lounge room. She walked from the entryway which was tiled and across the carpet. She began walking towards the timber floored area. There was no difference in floor height between the tiled and carpeted areas. She said the next thing she knew was that she was in mid air having "stepped into nothing". She landed on the floor noting that to be a hard wooden floor.
After her fall she noticed that there were two steps from the carpeted area down to the wooded floor area. She said that she thought the house, being single storeyed, was all on one level and she had noticed nothing different in the surface heights between the different floored areas. She landed on the floor at the bottom of those steps suffering injuries. The plaintiff sued the defendant in negligence.
The trial judge, Ashford DCJ, found that the steps were a "potential hazard" and that the plaintiff had been exposed to a "very considerable risk of a fall".
Ashford DCJ went on to state the following:
"In the present case there was not a misjudgement of footing as such. The plaintiff simply did not see the stairs acting on the assumption this was a one level property. Having entered the premises on a tiled area she was aware there was a carpeted area and then a wooden floor. She appears to have taken in her surroundings when first entering the premises and to have then proceeded through the display home looking at various features. The first intimation of any danger was when 'she stepped into nothing' and then fell onto the wooden flooring. It was at that time she first became aware there were steps. She saw no visual cues. The steps were carpeted in the same carpet as the floor upon which she had been walking. There was nothing to identify them by way of highlighting on the edge. There was no sign warning of the step. There was no handrail. True it is there was a box situated on the lower level of the floor. That does not seem to me to be a particularly impressive clue as to the presence of altered levels and whilst there is a white skirting it would not have been immediately obvious that this fell down to the stairs until close to that area. Messrs Cooke and Adams both agreed a high proportion of accidents on stairs involve only one or two steps and these are a potential hazard. They both also agreed that she would not have seen the step until she was a little over 2.6 metres from the step".
On the basis of the reasoning above the trial judge found in favour of the plaintiff and awarded damages in the amount of $331,938. The defendant appealed on both liability and quantum.
Court of Appeal Decision
Macfarlan JA, who wrote the leading judgment for the majority, dealt with each of the defendant's grounds of appeal.
Macfarlan JA dismissed the defendant's submission that the trial judge did not pay due regard to the evidence given by the plaintiff in relation to the issue of the glare, on the basis that the plaintiff described the light as being "quite glary" and did not substantially resile from this position on cross examination. Macfarlan JA also accepted the expert evidence from Mr Adams on behalf of the plaintiff that "light shining through the rear windows and reflecting off the polished timber flooring of the rear section of the house would have produced glare that further reduced the ability of a person to see the stairway (sic)".
A major component of the defendant's appeal was its submission that the evidence called by the defendant indicated that despite extensive inspections of the display home over an extended period there had been no reports of injuries relating to the steps in question. In rejecting this ground of appeal Macfarlan JA quoted from the case of Bankstown Foundry Pty Ltd v Braistina  HCA 20 that "the weight that will attach to an accident–free history involves a question of fact to be determined in light of all the relevant circumstances". Macfarlan JA also distinguished this case from the case of Roads and Traffic Authority of NSW v Dederer  HCA42 where the activity which led to the injury was the intentional, recreational one of diving from a bridge. In Macfarlan JA's opinion this case was significantly different and that "common experience suggests that there is a not insignificant risk of injury occurring from accidentally stumbling on steps which have not been observed".
Macfarlan JA summarily rejected the balance of the defendant's grounds of appeal, including that the display home should not have been deemed commercial premises (despite the defendant itself conceding that a display home is obviously commercial), and grounds of appeal in relation to the visibility of steps, the nosing and treads on the steps, changes in levels in single storey houses, etc. His Honour held that whether or not it was the practice generally to use strips on nosings in domestic premises did not detract from the conclusion available that in the particular circumstances of the display house in question they could have been utilised to alleviate a not insignificant risk which existed.
Macfarlan JA also agreed with the trial judge's finding that there should be no deduction for contributory negligence because what occurred on the plaintiff's part was in the circumstances inadvertence rather than contributory negligence and she did what the defendant was encouraging her and other invitees to do, that is, look at the features of and in the premises (see Bankstown Foundry Pty Limited v Braistina).
The defendant also appealed in relation to damages arguing that the trial judge should not have awarded $25,000 in respect of future out-of-pocket expenses as the plaintiff may not require future surgery, and that the allowance of $80,000 for future economic loss was excessive. Macfarlan JA held that the trial judge was entitled to make the allowances that she did and rejected the appeal in relation to damages.
As Giles JA concurred with Macfarlan JA the appeal was accordingly dismissed in all respects.
In a dissenting judgment Hammerschlag J found as follows:
"Firstly, the steps in the display home in which the accident occurred are, to my mind, not an unusual feature of a domestic residence, even a single storey one.
Secondly, the absence of other injuries caused by the steps over an extended period of time despite the passage through the house of many people who had no doubt not been there before, provides compelling support for the conclusion (which I have reached) that the risk posed by the steps was insignificant.
The accident occurred not because the steps posed a reasonably foreseeable risk to users (greater than any steps pose in any event) but because the respondent, unlike hundreds of persons who had before her passed through the house and seen the steps without additional visual clues, did not see them.
In my view it was not reasonably foreseeable that an invitee to the house exercising reasonable care for his or her own safety might well be injured by stumbling over or falling down those steps".
- The issue in this case was whether or not the risk was so negligible to a plaintiff paying attention such that it was not reasonably foreseeable. In this regard we believe that the compelling dissenting judgment of Hammerschlag J is persuasive and that the plaintiff can consider herself fortunate to have kept her judgment. It will be interesting to see whether or not the defendant seeks leave to appeal to the High Court.
- It is not clear from the judgment whether the defendant relied on the duty of care and obvious risk provisions in the Civil Liability Act which we would have thought may have assisted in the defence of the plaintiff's claim. It is important from a  defendant's perspective that if the Civil Liability Act is being relied on the relevant sections in the Act should be pleaded in the defence.
- Whilst this decision was primarily based on the facts of the case, it is another example that the tide of decisions against plaintiffs in similar cases may be turning. Defendants and insurers should be aware of this.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.