Rosemary Collins v Commonwealth of Australia [1988] ACTSC 70 (12 December 1988)

SUPREME COURT OF THE ACT

ROSEMARY COLLINS v. COMMONWEALTH OF AUSTRALIA
S.C. No. 644 of 1985
Personal Injury

COURT

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

CATCHWORDS

Personal Injury - broken ankle - falling down carpeted stairway - occupier's liability - no new question of principle.

Australian Safeway Stores Pty Ltd v. Zaluzna [1987] HCA 7; (1987) 162 CLR 479; 69 ALR 615

Hackshaw v. Shaw [1984] HCA 84; (1984) 155 CLR 614; 56 ALR 417

HEARING

CANBERRA
12:12:1988

ORDER

There be judgment for the defendant.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff in Courtroom No. 1 of the High Court building on 3 May 1982. The plaintiff and her husband were visiting the High Court as tourists, having come down from Queensland. The plaintiff sustained a broken ankle when she fell down a carpeted stairway in Court No. 1. She sues the defendant, as the occupier of the building, in negligence, particulars whereof were pleaded as follows:
(a) Failing to take any or any reasonable care to see

that the plaintiff would be reasonably safe in
using the premises;
(b) Failing to give the plaintiff any or any adequate
warning of the differences in floor level;
(c) Failing to provide any or any adequate lighting of
the area of carpet where the plaintiff fell;
(d) Failing to install a carpet which enabled people
walking on it to distinguish differences in the
floor level;
(e) Failing to provide signs, warnings, lighting or
different coloured carpet or, otherwise, so as to
warn the plaintiff of the presence of steps which
had to be negotiated rather than a slightly
sloping curved ramp which is how the area appeared
to the plaintiff and which misled her;
(f) Failing to warn the plaintiff of an unusual
danger;
(g) Failing to warn the plaintiff of a hidden trap;
(h) Failing to place luminous or other tape across the
edge of each of the steps so as to warn those
using the steps of their presence;
(i) Failing to put in place stanchions or other
devices so as to define the area of the steps.

2. The defendant by its defence has admitted that it was the occupier of the High Court building at the relevant time; has denied each and every allegation of negligence pleaded, and has alleged contributory negligence on the part of the plaintiff in failing to keep a proper lookout, failing to take proper care for her own safety, and failing to observe a step which she knew or ought to have known was in existence.

3. The plaintiff said in evidence that she and her husband went to the High Court building to inspect the building. They entered the building and walked up a ramp from the ground floor that brought them into the foyer. They then entered Court No. 1. They were at that stage alone but were shortly after joined by another lady who had been travelling on the same tourist bus. The plaintiff and her husband went inside the Court and paused just inside the doorway. There was a court attendant in the courtroom pointing out features of interest within the room. The plaintiff stood in that position just inside the doorway for some six or seven minutes listening to the attendant. Some other people came into the courtroom and likewise stood inside the doorway listening to the court attendant. After some six or seven minutes the court attendant asked the group to move down the steps and the group then all followed each other down the steps. The plaintiff at that stage was paused on the second step. She was in that position listening to the court attendant for six or seven minutes until the court attendant asked if anyone would like to come further down the steps. She moved a couple of paces slightly to her right and towards the side wall to allow any others to pass. She thought she was still on the second step but as she moved she placed the front of her foot on step 3 and the back against step 2. As she did so she heard a snap and felt pain in her foot.

4. So far as the physical features of the room were concerned, the plaintiff said that it was pretty dark and because of other people being very close to her there was no room to look down. She said that the carpet was maroon, very dark in colour with a dark stripe in it. On 14 November 1988, the day before she gave evidence, she revisited the courtroom and then noted that the lighting was very clear. She noted also that a sign had been erected at the head of the steps saying "Caution Steps" and stands erected with a maroon cord between them preventing the public from descending the stairs as the plaintiff had been doing when she sustained her injury.

5. In cross-examination the plaintiff adhered to the version of the accident which she had given in her evidence in chief. She agreed that she could see that there were steps in the room because there was light from the foyer which enabled her to see the first step. She denied, however, that there were other indications in the room, such as the obvious descent to the well of the courtroom, the profile of the steps against the side wall and the descending backs of the rows of seats. She said that she could just not tell where the steps were because they were so far apart and there were other people in the room beside her and in front of her. She said that she could not see where the next step was because it was too dark. She claimed that she had looked down for the next step but could not see it because it was too dark and there were people in front of her and at the side of her and "we were all jammed there". She repeated that she did not see the steps because it was too dark.

6. In re-examination she said that when the attendant came over to her as she was lying on the floor he said that there should be strips on the steps.

7. She was wearing glasses when she gave evidence and when asked about her eyesight she said that she had only worn glasses since she was 50 years of age and that her eyesight was good on the day of her accident. The plaintiff was born on 24 February 1930 and was 52 years of age at the date of the accident.

8. The plaintiff's husband gave evidence and substantially corroborated his wife's version of the accident. He said that she had been standing on the second step just behind him. When the attendant asked the group to move further down his wife indicated that she was not interested but she moved off with six or seven people. When he was practically to the bottom of the steps he heard the sound of her ankle breaking. He could see that there were steps leading down into the well of the court but he described the room as being dimly lit. He also said in evidence that after his wife's fall the court attendant had said words to the effect that he could not understand why strips had not been placed on the carpet.

9. They were the only two witnesses who gave evidence on behalf of the plaintiff in respect of the accident itself.

10. The defendant, however, called the court attendant who had been in Courtroom No. 1 on the day of the accident, William James Cresswell. He said that he was present and saw the plaintiff fall. He was standing against the wall, about six feet from the plaintiff on the second step from the bottom and at an angle of about 45 degrees from the plaintiff. He saw the plaintiff move from the top of the court towards the steps where she negotiated the first step, but then misjudged the second step. He said she was looking directly ahead and not looking down. When she fell he went directly to her and after a short time summoned assistance. He then went back to the plaintiff and did his best to comfort her. He denied that he had said anything about the need for strips or treads on the stairs. At the time when the plaintiff fell Mr Cresswell had not seen anyone else in her immediate vicinity.

11. In cross-examination he said that the plaintiff was walking deliberately towards him, negotiated the top stair and proceeded towards the second stair. She did not negotiate the next step "just as if she was not looking". There was no other evidence about the incident itself.

12. I find that No. 1 Courtroom in the High Court is a large impressive courtroom. The ceiling is 17 metres high. It is a theatre-type room with public seating at the back of the courtroom and a public gallery. The seating is staged from the back of the court down to the well of the court, which is fenced off with a bar rail. Access is gained to the well of the court by means of the set of steps where the plaintiff fell. There was no direct evidence about the width of the steps but they appear from the photographs in evidence to be about 10 feet in width, extending from the end of the seats to the wall of the court.

13. I find that at the time of the accident the steps were carpeted with a maroon carpet with a dark stripe. The stairway was illuminated by five or six ceiling lights having reflectors with a matt finish. The steps were otherwise illuminated by fluorescent lights on the side wall above the steps, large overhead lights in the body of the court and some natural light from a very large window on the opposite side of the room.

14. There are a number of indicators that in order to gain access from the entrance of the court to the well of the court one has to descend. Those indicators include the level of the backs of at least five rows of seats on one side of the steps and the clear contrast between the relatively dark colour of the carpet and the light colour of the wall on the other side.

15. I find that there had been no reported accident of the type which the plaintiff suffered between the date when the court was opened in approximately May 1980 and the date of the plaintiff's accident. I find that as a result of administrative investigation of the plaintiff's accident one of the reflectors in the ceiling lights was replaced with a shiny reflector, the result of which was to improve to some extent visibility on the set of steps.

16. I am satisfied on the evidence, however, that at the time of the plaintiff's accident the lighting was adequate. I accept the evidence of Mr Wilson, a senior Deputy Marshall of the High Court, to the effect that he had never experienced any difficulty in seeing the steps in the courtroom with the illumination which was provided at the time of the plaintiff's accident. I also accept the evidence of Mr Fox and Mr Graham Kenneth Wilson to the same effect.

17. It is clear on the evidence that following a suggestion by Mr Cresswell at the time that the lighting be improved, an experiment was conducted with a shiny reflector. As it appeared to provide a little more illumination in the area than the reflector with the matt finish, it was decided to substitute the shiny reflector for the one with the matt finish. At the same time, stanchions were placed from the entrance to the court down the steps in order to give a more visible aid that the floor actually stepped down.

18. I also accept the evidence of Mr Fox, the Marshall of the High Court, that the lighting at the time of the plaintiff's accident was adequate but it was thought reasonable to increase the efficiency of the lighting following the plaintiff's accident to cater for tourists whose eyesight might not be average.

19. That a person entering the courtroom would be aware that it was a theatre-type room with descending steps to the well of the room was clearly established by the evidence of Alistair Hall Swayne, architect, who gave evidence on behalf of the defendant. He said that a person entering the room is aware that he is at the same level as the Bench on the far side of the room and can see the backs of seats falling away down to the well of the courtroom. He said one can also see the profile of the steps against the white concrete wall. He did not think it necessary that the carpet have nosing applied to the leading edge of the steps.

20. Graham Kenneth Wilson, engineer, gave evidence that his firm were the electrical engineers and lighting designers of the High Court building. He had inspected the building on completion and before it opened. He next inspected it on the day of giving evidence, namely 16 November 1988. He observed the lighting over the stairs of Courtroom No. 1 in three different sets of circumstances: first, with the overhead lighting operating with the light closest to the steps operating with a shiny reflector; secondly, with the light operating with a dull reflector; and thirdly when the lights were not operating at all. He found that in all three states the stairs were visible but the illumination levels obviously varied. With the light turned off the lighting on the stairs did not comply with the required code. But in the other two states it did. In all three states the steps were clearly visible.

21. In cross-examiantion Mr Wilson explained that he had taken light readings with a light meter and expressed the view that in the two states where the lights were on, the illumination levels complied with the A.C.T. building code for stairways and ramps.

22. I have already referred to the fact that on the evidence there had never been an accident in the two years in which the building had been opened prior to the plaintiff's accident. The evidence established that in the early years there were around 450,000 visitors a year and at present around 350,000 visitors a year. The only other accident which has happened was in 1987 when an aged lady missed her footing and fell but was not injured. As a result of that incident the stanchions were relocated so as to bar access by the public to the steps leading to the well of the court.

23. I am not satisfied on the evidence that at the relevant time the lighting was in any way inadequate. I find that the lighting was adequate and designed in accordance with the appropriate engineering principles and standards.

24. On the whole of the evidence I find that the plaintiff, having successfully negotiated the first step, moved forward and to the right without looking for the second step and unfortunately placed her foot in the wrong position to negotiate the second step, whereupon she fell.

25. It is now settled law in the Australian Capital Territory that the duty of an occupier of land to persons coming upon that land is to be measured as part of the ordinary law of negligence. In Australian Safeway Stores Pty Ltd v. Zaluzna [1987] HCA 7; (1987) 162 CLR 479; 69 ALR 615, a majority of the High Court (Mason, Wilson, Deane and Dawson JJ) approved the statement of Deane J. in Hackshaw v. Shaw [1984] HCA 84; (1984) 155 CLR 614 at 662-3; [1984] HCA 84; 56 ALR 417 at 452:

"... it is not necessary, in an action in negligence
against an occupier, to go through the procedure of
considering whether either one or other or both of a
special duty qua occupier and an ordinary duty of care
was owed. All that is necessary is to determine
whether, in all the relevant circumstances including
the fact of the defendant's occupation of premises and
the manner of the plaintiff's entry upon them, the
defendant owed a duty of care under the ordinary
principles of negligence to the plaintiff. A
prerequisite of any such duty is that there be the
necessary degree of proximity of relationship. The
touchstone of its existence is that there be reasonable
foreseeability of a real risk of injury to the visitor
or to the class of person of which the visitor is a
member. The measure of the discharge of the duty is
what a reasonable man would, in the circumstances, do
by way of response to the foreseeable risk."

26. That a tourist visiting the High Court might fall on the steps in Courtroom No. 1 was, in my view, a foreseeable risk. But it has not been established by the plaintiff that the defendant failed in the discharge of its duty to do what was reasonable to minimize that risk. Once it is accepted that the lighting was adequate, an argument that the risk could have been minimized by roping off the steps or erecting a sign reading "Beware Stairs" loses it force. It was not unreasonable not to give any additional warning of the differences in floor level or to place luminous or other tape across the leading edges of the stairs. If the lighting was adequate, there is no failure on the part of the defendant to take reasonable care in the circumstances.

27. Accordingly there will be judgment for the defendant. I shall hear counsel on the question of costs.