John Leonard Little v Commonwealth of Australia [1986] ACTSC 29 (2 May 1986)

SUPREME COURT OF THE ACT

JOHN LEONARD LITTLE v. COMMONWEALTH OF AUSTRALIA
S.C. No. 1436 of 1983
Tort

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Tort - negligence employer's liability - plaintiff slips and falls on stairs - conflict of evidence as to whether carborundum anti-slip insert missing from stair.

Jones v. Dunkel [1959] HCA 8; 101 CLR 298

HEARING

CANBERRA
2:5:1986

ORDER

There will be a verdict for the defendant.

The plaintiff to pay the defendant's costs.

DECISION

The plaintiff sues for injuries sustained by him on 3 February 1982 whilst employed as an Inspector class 8 at the National Library. The writ was issued on 12 August 1983 and the pleadings were closed on 7 March 1985. A certificate of readiness was filed on 7 March 1985. The hearing took place on 7, 10 and 11 March 1986.

2. Some facts are not in dispute. On the day in question the plaintiff had finished work for the day and was on his way from the first floor to the ground level of the National Library. He was walking down a staircase consisting of two flights of stairs. He was half way down the upper flight. He felt his left foot slip forward and away from him. He seized the handrail which was on his left, managing to save himself from falling completely to the level of the stairs. His right foot went forward and struck a lower step. He also said, and I accept, that at the same time he went through some form of twisting movement and felt immediate pain in his lower back.

3. The evidence establishes that the staircase was about 800 millimetres wide. There were on each step extending across the nosing of the step two parallel precast grooves each about one centimetre deep and about one centimetre wide. Into each of these grooves there was or should have been a carborundum strip which would serve as an anti-slip surface.

4. The plaintiff stated in evidence that as he hung suspended from the handrail by his left arm he placed his right hand on the step from which he had fallen. He stated that his hand encountered a groove from which part of the carborundum strip was missing. The plaintiff claimed that a length of about half a metre of the strip was missing. The plaintiff's case is that it was the absence of this part of the carborundum strip which caused him to fall on the otherwise slippery terrazzo surface.

5. Amongst the particulars of negligence set out in the statement of claim were the following:

"(e) Failing to take any or any adequate

measures to replace the portion of missing
carborundum inset so that the step would not be
slippery.

. . . . .

(1) Permitting and/or requiring the plaintiff
to use the premises which had portion of a
carborundum inset missing thereby rendering
it (sic.) slippery."
At the hearing paragraph (d) of the particulars was amended to read as

follows:

"(d) Failing to take any/or any adequate
measures to provide a safe surface on which
the plaintiff could walk whilst engaged in
his work in that part of a carborundum
strip was missing and the other one was
worn."

6. The defendant denied that part of the carborundum strip was missing as alleged by the plaintiff. The defendant also denied that any part of the carborundum strip was worn down, denied that the plaintiff's injury was caused or contributed to by any worn strip and denied that the wearing down of any such strip constituted negligence on the part of the defendant. The defendant's case on the question of liability depended strongly on the testimony of Mr. James Daly, a workmate of the plaintiff who was following the plaintiff down the stairs on the day in question. Mr. Daly corroborated the evidence of the plaintiff that he in fact slipped and seized the handrail and appeared to be in pain, and complained that he had hurt his back. Mr. Daly went on to say that he inspected the steps on the first flight and that in the area where the plaintiff slipped the carborundum inserts in the steps were of "variable condition". One in particular attracted his attention in that it had signs of "transverse cracks". Mr. Daly denied that there were any segments of the carborundum strip missing, although he conceded that some "particles" may have been missing where the cracks appeared. He added that some of the segments of the particular strip were loose. Mr. Daly did not mention any other faults or defects on the carborundum strips. I am unable to conclude that the looseness was such that it contributed to the plaintiff's fall. In any event it was not relied upon by plaintiff's counsel nor pleaded. The primary issue of fact is whether portion of the carborundum strip was missing at the time of the plaintiff's fall.

7. As it was clear from the outset that the plaintiff's credit would be challenged, I took care to observe the plaintiff whilst in the witness box. On the face of it he presented his evidence on liability confidently and consistently. On the other hand, on matters relating to damages, he was not so impressive. Although I shall deal with the question of damages in some detail later, his performance on that aspect reflects upon his credit generally.

8. Mr. Daly also presented as a confident and consistent witness, at least during his evidence-in-chief. Although he faltered somewhat in cross-examination, particularly when asked about observations he had made of the staircase and the carborundum strips in the ensuing years, I found Mr. Daly on the whole to be a more convincing witness than the plaintiff.

9. I am aware of the dangers attendent upon attempting to resolve disputed issues of fact simply by impressions gained of witnesses in the witness box. It remains then to look at the rest of the evidence to see whether it supports the plaintiff's case or the defendant's case. The plaintiff tendered in evidence, over objection, a statement signed by himself in the form of a "Report of personal injury by accident", dated 4 February 1982. He also tendered in evidence over objection a similar statement by another workmate, Mr. John Purtell, entitled "Accident report by witness" and also dated 4 February 1982. I held that these statements were admissible pursuant to section 7B of the Evidence Act 1905 (Commonwealth). It is however not easy to assess the probative value of these documents. They were tendered at the end of the plaintiff's case. The plaintiff had to be recalled by leave and over objection before the tender of his own statement was pressed. The defendant had no advance notice that the statement of Mr. Purtell would be put into evidence. The absence of Mr. Purtell from the witness box was not explained by the plaintiff. Indeed in cross-examination he indicated that his solicitor had some knowledge of the whereabouts of Mr. Purtell. In these circumstances I consider that there was an unexplained failure on the part of the party whom I would have expected to call Mr. Purtell as a witness, namely, the plaintiff, and I am prepared to draw the inference that if Mr. Purtell had been called he would not have assisted the plaintiff's case. The plaintiff's statement of 4 February 1982 is as follows:

"I had ceased work for the day and was leaving the
building by way of the stairway from first to
ground floor. About half way down the first flight
I slipped on the edge of a step from which the
non-slip tread strip was missing. I landed
heavily on a lower step on the heel of my right
foot with the result that my back (particularly
the right side) became very painful."

The statement of Mr. Purtell includes the following:

"Mr. Little slipped on the stairs and stumbled
against the guard rail twisting his back.
Inspection revealed that the stair was damaged.
As Mr. Little was obviously in considerable pain I
assisted him to his vehicle and ensured that he
was capable of driving home."

10. The remark by Mr. Purtell that "inspection revealed that the stair was damaged" is ambiguous. It could be based upon what he was told by the plaintiff or indeed by Mr. Daly as to inspection carried out by one or other of those men. The damage referred to could refer to the cracking and looseness mentioned by Mr. Daly. The statement of the plaintiff was self-serving and was not admitted in order to rebut the suggestion of recent invention. The ground for admission was that prima facie it satisfied the requirements of Section 7B of the Evidence Act 1905 (Commonwealth).

11. I have considered whether there has been any failure on the part of the defendant sufficient to entitle the plaintiff to an application of the rule in Jones v. Dunkel 101 CLR p 298, namely that where the knowledge on a particular issue lies peculiarly within the province of the defendant then the failure to call evidence on that issue means that inferences adverse to the defendant might the more readily be drawn. There was not a complete failure in this respect; Mr. Daly was called in the defendant's case, and there is nothing in the evidence otherwise to positively suggest that any other officer in the service of the defendant had any knowledge of the condition of the stair either before or immediately after the plaintiff's injury. Mr. Sheils, senior counsel for the plaintiff, submitted that in the ordinary course one would have expected that the defendant have tendered reports and other documentary material relating to inspections and investigations of the place where the plaintiff reported an injury. I am not persuaded by this submission. The admissibility of such documentary material in the defendant's case is far from clear, assuming that it existed, and I think that the submission involves an extension of the rule in Jones v. Dunkel which I am not prepared to make.

12. Before finally deciding whether the plaintiff has convinced me that on the probabilities his version of how he sustained the injuries is the correct one, I think it desirable to refer briefly to his evidence on damages, because as I have said, that reflects upon his credibility in general.

13. Immediately after going off work the plaintiff reported to his family doctor, Dr Berenson. He was placed on traction for two weeks and his back was manipulated, but there was no change in his condition. He spent some short time then in the Woden Valley Hospital being confined to bed rest for one week. He returned home thereafter and again was confined to bed for an unspecified period. He received acupuncture at about this time. Still there was no improvement in his condition. He was seen by a Commonwealth Medical Officer on 22 October 1982 and on 30 November 1982 he received notice of termination of his position in the public service. The termination took effect sometime shortly before the end of 1982.

14. The plaintiff said that he has ever since then been unable to sit or stand for prolonged periods. He says that he does not know of any type of work which he would be able to carry out. Dr Berenson, who attended court to produce documents in compliance with a subpoena served on him on behalf of the defendant, was not called to give evidence. Dr Berenson referred the plaintiff to an orthopaedic surgeon, Dr Stubbs, in March 1982. The plaintiff was admitted to the Woden Valley Hospital in July 1982 for the purpose of discograms after which he was advised by Dr Stubbs that he should undergo a lumbo-sacral spinal fusion. Dr Stubbs was of the view that such a fusion would give him "an excellent chance of completely alleviating his symptoms and essentially giving him a normal back again". I am satisfied that Dr Stubbs relayed this advice to the plaintiff and that the plaintiff understood the advice. Nevertheless the plaintiff was not prepared to accept it and Dr Berenson referred him to Dr Connelley, a Sydney neuro-surgeon. Dr Connelley formed a different view from that of Dr Stubbs. His view was that surgical decompression by way of laminectomy was the desirable procedure "with every prospect of improving the patient's condition without need of any fusion procedure". Each doctor had the chance of considering the advice of the other, and I am quite satisfied that each doctor advised the plaintiff not to submit to the surgical procedure advised by the other doctor.

15. The plaintiff was subjected to comprehensive cross-examination as to his attitude towards surgery. His answers were not entirely consistent. He said that he declined to accept the initial advice of Dr Stubbs and requested a second opinion because spinal surgery had always been questionable in his mind. It is to be remembered that the plaintiff had had some minor symptoms of back trouble in the past, but they had resolved. When the plaintiff received the conflicting advice from Dr Connelley he said that he declined to accept that advice because he was not sure which procedure to follow. That attitude conflicts with his earlier attitude to the advice from Dr Stubbs when it was not a question of which procedure to follow, but whether any form of spinal surgery at all was acceptable to him. On further questioning the plaintiff said that he was not convinced that there was a guarantee of success and that he needed to be so convinced, that is to be convinced that he would be relieved of pain altogether and that there would be no likelihood of a recurrence. The plaintiff said that his attitude to surgery was reinforced by the experience related to him by three people who attended the same church as himself. He could not remember their names although he knew them moderately well. He said that they sought him out to offer him advice, and this occurred between the visits to Dr Stubbs and Dr Connelley. He said that their accounts of their experiences added substance to his conviction. Each of the three people concerned had had, according to the plaintiff, decompressive surgery with continued pain thereafter. In the case of two of them there was increased pain. I found the evidence about the advice from churchgoers unconvincing.

16. The plaintiff conceded that Dr Chandran who examined him on behalf of the defendant had expressed the view that there was an eighty-five percent chance of success following the proposed surgical procedures, but the plaintiff said that he did not find that success rate impressive in the light of what he had otherwise been told. In addition the plaintiff said that he did not find the prediction that he "would markedly improve" as sufficiently persuasive. His general attitude to proposed surgery was, I think, summed-up when he said that an eighty-five percent chance of success on operation is "like Russian roulette".

17. Further, there was the evidence of the plaintiff in which he said that he had received advice from a doctor in Tweed Heads to the effect that he should not submit to spinal surgery. This was a doctor whom he said he had consulted on two occasions and in whom he had confidence. That confidence, in my view, contrasted unexplicably with his attitude to the doctors whom he had seen in Canberra. The doctor concerned, Dr Follent, gave evidence that he had seen the plaintiff on one occasion only, and that was in his role as acting local Commonwealth Medical Officer. Furthermore, he said nothing in his evidence-in-chief about having any attitude towards the proposed surgery or of tendering any advice to the plaintiff about it. In cross-examination he said that in view of the conflict of opinion he would, if asked, advise the plaintiff against surgery. On the other hand he was not able to remember whether he had tendered any advice at all to the plaintiff. The plaintiff described Dr Follent as a consulting surgeon who carried out some orthopaedic surgery and some general surgery. Dr Follent's own evidence was that he was a general practitioner of some few years standing. Another curious feature of this part of the evidence is that the report of Dr Connelley of 14 October 1985 mentions that the plaintiff told him that he was receiving regular treatment from another doctor in Tweed Heads, a Dr P. Barker. The plaintiff made no reference at all to Dr Barker in his evidence. As he was not cross-examined about it I do not place too much importance on it. However, he was cross-examined on whether or not he had had a history of intermittent backache for six or seven years before the injury. He denied that in his evidence and said that he could not remember saying anything to a doctor to that effect. However, according to Dr Connelley's report of 20 July 1982 that was the initial history he gave to that doctor.

18. Finally, and, in my view, most significantly, was the plaintiff's evidence as to his pre-injury plans as to his future career.

19. In his evidence-in-chief the plaintiff said that he intended to stay in the public service for the rest of his working life. In cross-examination, however, he conceded that prior to his injury he had been considering the possibility of going into business with his wife in a jewellery business. Indeed, immediately prior to injury it had been his intention to go on long service leave two days after the date on which the injury had in fact occurred. It was his intention to use the time available to him whilst on long service leave to investigate the feasibility of the jewellery business proposal. It is notable that this information was not proferred by the plaintiff in his evidence-in-chief, and that he appeared reluctant to speak about it in cross-examination. It is also notable that a claim for loss of enjoyment of his long service leave was never suggested as a component in his claim for damages.

20. Bearing all those factors in mind, I am not convinced that on the balance of probabilities the plaintiff's account of the condition of the step at the time he received his injury should be accepted where it conflicts with the account given by Mr. Daly. It is clear that in the period from the injury to 18 May 1983, when the step was examined by an architect, Mr. Mervyn Willoughby-Thomas, in the company of the plaintiff, the step had deteriorated to the extent that about 500 millimetres of the carborundum insert was missing. The deterioration of the carborundum to that extent between February 1982 and May 1983 is, in my view, consistent with the evidence of Mr. Daly. Mr. Willoughby-Thomas explained that the breaking up of the carborundum was due to shrinkage resulting from loss of moisture. Portions of the insert at that stage in May 1983 were loose and could be picked up with the fingers. In fact a small portion of about 2 centimetres long was tendered in evidence. It is also to be borne in mind that the plaintiff's estimate of the length over which the carborundum was missing at the time of his accident was 500 millimetres, that is to say, it coincides with the observation of Mr. Willoughby-Thomas at the time of the examination by himself in the company of the plaintiff. If the plaintiff's at all in the period from February 1982 to May 1983. It may well have been that by the time Mr. Willoughby-Thomas examined the stairs, they were in a dangerous condition, but that is not to the point. I am not able to find on the balance of probabilities that the condition of the stair at the time of the plaintiff's fall was such that any piece of significant size was missing. Insofar as the primary version of the plaintiff's claim depends entirely upon that allegation, it is not made out.

21. An alternative allegation made on behalf of the plaintiff and expressed in the amended particulars was that the carborundum remaining in the groove was worn down to the extent that it was no longer proud of the surface of the terrazzo and that it therefore rendered the total area of the step slippery and dangerous. There was a good deal of evidence from Mr. Willoughby-Thomas as to the properties of carborundum and of terrazzo, not all of which was very persuasive. I summarise that evidence. Terrazzo is a material which is poured or cast on site and its constituents are much like that of concrete containing special aggregates. Upon hardening it is usually polished by machine. The surface quality of the terrazzo depends on the nature of the aggregates used and the extent and quality of the polishing. A publication tendered in the plaintiff's case from the Commonwealth Experimental Building Station, Department of Works, and entitled "Notes on the Science of Building" rates terrazzo as good in its anti-slip quality when dry and clean, and good to fair when wet and clean. As there was no suggestion in the present case that the stairs were other than dry and clean, the anti-slip quality of terrazzo rates as equal to that of asphalt, concrete and stone, and superior to that of brick, clay tile, marble and metal floors. Mr. Willoughby-Thomas' report had annexed to it a handwritten extract from a work by an American architect, R.J. Sorensen, "Design for Accessibility", in which the writer sets out what is described as the coefficient of friction of various flooring surfaces. "Smooth terrazzo" is shown to have a coefficient of friction of 0.53 when in contact with dry rubber and 0.35 when in contact with dry leather. "Terrazzo, alundum grit" is shown to have a coefficient of friction of 0.74 when in contact with dry rubber and 0.44 when in contact with dry leather. The extract from Sorensen's work states that a coefficient of friction of less than 0.40 should be considered slippery and dangerous. However, there was no evidence as to the distinction between smooth terrazzo and terrazzo alundum grit. There was no evidence as to the category into which the defendant's stairs fell, if either. There was no evidence as to the nature of the footwear worn by the plaintiff at the time of his injury. Overall I did not find the concept of a coefficient of friction a very useful one. Mr. Willoughby-Thomas was unable to state what steps need to be taken in order to establish a coefficient of friction rating, nor how it came about that the various floor surfaces mentioned in the table scored the respective points that are set out in that table.

22. There was no evidence in the plaintiff's case from which I would be prepared to conclude on the probabilities that the plaintiff's fall was caused by his foot coming into contact with a part of the stair where the carborundum insert remained in position but had worn down to the level or below the level of the surrounding terrazzo. The plaintiff's case is that he slipped at a place where the carborundum was missing altogether. Assuming, however, without deciding that the plaintiff would be entitled to rely upon the alternative situation of fact disclosed by the evidence in the defendant's case, I am not convinced on the probabilities either that the carborundum strip in its worn state, or the terrazzo stair, or the two combined, formed a surface which gave rise to a foreseeable risk of injury to the plaintiff against which the defendant was reasonably required to take some unspecified measure in order to remove or minimise that risk. Obviously people will fall on staircases from time to time and will continue to do so whilst ever staircases are used by people, but to ascribe the cause of the plaintiff's fall to a slippery condition has not, in my view, been proved. Although the insertion of the carborundum strips into the terrazzo on the stairs in question clearly demonstrates an effort on the part of the defendant to increase the anti-skid quality of the stairs, I am not convinced that such strips are generally regarded as a necessary or even desirable safety measure on terrazzo steps. As I have already said, the Commonwealth Experimental Building Station rated the anti-skid quality of terrazzo as good, and equivalent at least to most other flooring surfaces. I am not convinced that to require employees to use terrazzo stairs entirely or partly lacking in effective carborundum strips constitutes a failure on the part of an employer to provide a reasonably safe system or place of work or otherwise to take reasonable care for the safety of such employees.

23. The formal order is that there will be a verdict for the defendant and the plaintiff is to pay the defendant's costs.