Graham v Stannus S124/1994 [1995] HCATrans 32 (17 February 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S124 of 1994

B e t w e e n -

PAMELA LAVINUS GRAHAM

Applicant

and

PATRICIA MARGARET STANNUS

Respondent

Application for special leave

to appeal

MASON CJ

BRENNAN J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 FEBRUARY 1995, AT 11.00 AM

Copyright in the High Court of Australia

MR B.M. TOOMEY, QC: May it please Your Honours, I appear with my learned friends, MR A.J. BLACK and MS W. STRATHDEE for the applicant. Mr Black did not appear in Court. (instructed by Sly & Weigall)

MR G. CURTIN: May it please your Honours, I appear for the respondent. (instructed by Henry Davis York)

MASON CJ: Mr Toomey.

MR TOOMEY: May it please your Honours, this case raises a question in tort in respect of whether or not there exists a duty to inspect premises where it is said no reason to suspect danger of the premises has been evidenced.

In the case of Short v Barrett your Honours granted leave to appeal on a similar point and that case was settled before it came on for hearing before the Court. The facts of the case are that the applicant rented a holiday flat in Bega where, on arriving at the premises, it was necessary to go from the parking area up a flight of steps to the flats. She and her husband traversed the steps twice taking luggage up to the flats, then they went down to the local club for an hour, came back, and while they were carrying more things from their car to the flats the plaintiff stood on the top step, the step moved, she fell, and she suffered a very serious Potts fracture of her ankle which left her, at the age of 59, as what was described in the Court of Appeal as a semi-cripple.

BRENNAN J: The problem you face is that there was evidence that there was nothing to be found by way of instability in the top step, either by the caretaker or by a co-tenant, is that right?

MR TOOMEY: Your Honour, that is a difficulty but, with respect, we say that is overcome by his Honour the trial judge's findings. He found that the step did move when the plaintiff stood on it. He found that it did move when the husband tested it the next day and he seems to have found, if your Honour looks at page 2 of the application book that - and this is an important finding which appears to have been overlooked, with respect, in the Court of Appeal, at page 2 line 21:

Mr Clark, only the other day moreover, detected movement in the top step, albeit of course that that was five years after the accident.

And it appears at line 3 that Mr Clark was in fact called to give evidence in the case on another point and he gave that evidence.

Now, that would mean, your Honour, that accepting what the caretaker said and accepting what the other tenant said, and there is no reason why one should not, that it was an intermittent fault and - - -

BRENNAN J: Or one that had not developed until the accident occurred.

MR TOOMEY: Perhaps so, your Honour, but alternatively, that it only happened on infrequent occasions and had not been noticed either by the caretaker or the co-tenant.

BRENNAN J: But if it is an alternative situation, there is a balance of probability problem.

MR TOOMEY: In a way the Court of Appeal, while finding against the applicant, set out what the answer to that proposition might be. If your Honour looks at page 27 of the application book at the top, Mr Justice Handily said:

It would be a remarkable coincidence if the step moved for the very first time when the plaintiff trod on it at the time of her accident. However this alone cannot furnish evidence that it had moved before and that this should have been noticed.

In our respectful submission, when one is talking about the standards of civil proof, once one says it would be a remarkable coincidence if that were the case, then the inference on the balance of probabilities, we would say, is that it is not the case and that the probabilities are that the step had moved or was in a position to move before that.

TOOHEY J: Mr Toomey, what do we make of the applicant's husband's evidence on page 2 about line 18 which relates to the day after the accident.

He said that he "trod on it and felt movement in the top step"' which procedure he carried out to detect any movement. He said he could feel no movement there.

MR TOOMEY: With respect, that is wrong, your Honour. His evidence was that he could feel movement there.

TOOHEY J: That he could or could not?

MR TOOMEY: That he could. It is an obvious slip in his Honour's judgment because that is, so far as I can ascertain, what was actually said in the judgment. Mr Graham's evidence was that he had tested the step the next day and he could feel movement there. And it is obvious - - -

TOOHEY J: Even if that be so, it does not really throw much light upon the degree of movement. These were pre-cast steps, according to the judgment?

MR TOOMEY: Yes, they were separate pre-cast steps. This is of some importance, we say, in the case. There were four steps which were inverted L shapes. The bottom one, one assumes, would have been put in first; on the tread of the bottom one the riser of the next one was set with mortar.

TOOHEY J: They are often bolted together but apparently not in this case.

MR TOOMEY: Not in this case, no. And, of course, that as opposed to an integrated block of concrete would allow movement in a step if there were deterioration in the join between one step and another, and possibly if there were some deterioration of the soil or whatever the substratum was beneath the step.

MASON CJ: You referred to Barrett's Case. What does the significance of the grant of special leave in Barrett's Case have to this case?

MR TOOMEY: Your Honours, in Barrett's Case your Honours granted special leave on the point which is described by Mr Justice Handley on page 29 of the application book, line 6.

Subsequently in Short v Barrett Meagher JA held that householders do not act unreasonably in taking their house as they find it and assuming it to be perfectly safe unless and until they either know it is unsafe "or else receive a warning that it may be unsafe".

MASON CJ: The point, I think, in Short v Barrett was that there is a difference between the first limb of what is ascribed to Justice Meagher in that case and the second limb. I mean, there may be circumstances where householders do act unreasonably in taking their house as they find it and that was of I think particular significance in Short v Barrett. We are not troubled with that problem here.

MR TOOMEY: No, your Honour, but there is a problem which might have to be first resolved and that is whether or not the plaintiff was entitled to be treated as a contractual entrant.

MASON CJ: But that case was never urged, was it?

MR TOOMEY: Your Honour, can I just hand up to your Honours just a couple of pages of transcript which demonstrate that there was not much doubt about the character in which the applicant went on to the premises.

TOOHEY J: But the starting point, I suppose, is the pleadings. Was there an allegation that she was a contractual entrant?

MR TOOMEY: No, your Honour, there was not.

MASON CJ: That means that this issue was never litigated.

MR TOOMEY: With respect, your Honour, if one pleads I went on to premises and reasonable care was not taken for my safety, and one then goes to trial and proves that one entered the premises under contract, it is our respectful submission that one is then entitled to rely upon - to ask the Court to apply the duty which is applicable to a contractual entrant.

BRENNAN J: A problem like that was address by this Court in Calen's Case, was it not? It seems to have escaped the attention of the Court of Appeal.

MR TOOMEY: Except your Honour said that it would not have made any different in Calen. I understood your Honours in Calen to have said that Zaluzna's Case had not affected the question of contractual entry and the reason why your Honours did not apply the contractual entry consideration in Calen's Case was because in the circumstances of that case it would not have made any difference.

BRENNAN J: The question was, in Zaluzna's Case, what the status of Watson v George was after Zaluzna. And that was answered, so we do not need to address that question again.

MR TOOMEY: I think, with respect, it was not quite answered, your Honour. As I understood it, what was said was that, at page 38 of Calen's Case, starting at point 2:

The appellant submits that the trial judge should have directed the jury on the footing that, if an occupier of premises agrees for reward to allow a person to enter the premises for some purpose, the occupier impliedly warrants that the premises are as safe for the purpose as the exercise of reasonable skill and care can make them. There is substantial authority in support of this proposition -

Key, Watson, Maclenan v Segar, Francis v Cockrell -

More recently, in Australian Safeway Stores Pty. Ltd v Saluzna, this Court held.....that, in an action for negligence against an occupier, it is necessary to determine only whether, in all the relevant circumstances, including the fact of the defendant's occupation of the premises and the manner of the plaintiff's entry upon them, the defendant owes a duty of care under the general principles of negligence. In other words, it is not necessary to consider whether a special duty is owed to a particular class of entrant. However, the Court had no occasion to examine, and did not examine, the principles of the common law governing the liability of an occupier of premises who agrees for reward to allow a person to enter the premises for some purpose. In this situation, it would not be right to treat Zaluzna and the decisions which preceded it as authorities which overruled the principle established in Watson v George. In view of our ultimate conclusion that the trial judge's direction to the jury was adequate to cover the respondent's duty under any implied contractual terms, we are prepared to assume that, notwithstanding the applicability of the ordinary duty of care of the law of negligence, a contractual term to the effect suggested on behalf of the appellant can be implied from the sale and purchase of the cinema tickets.

BRENNAN J: Did you formulate any duty in this case higher than, or different from, that in Watson v George?

MR TOOMEY: No, your Honour. No, we would accept the formulation in Watson v George as being - - -

BRENNAN J: Would that lead you anywhere?

MR TOOMEY: Watson v George postulates a duty to inspect, if the circumstances raise a duty to inspect. These steps had been in place for, according to the caretaker's evidence, years before Mrs Stannus bought the block of flats, which was some years before the action. They were, as I have said to your Honours, and as his Honour found, steps which were separately in place and fixed only by mortar. They did move, his Honour found, when the plaintiff stood on them. They did move when the husband stood on them, they did move when the solicitor stood on them five years later. There is no finding that they had moved before because there was no evidence to that effect. But, in our respectful submission, once you have steps of that nature, there may well be a duty to inspect, because you have steps in which it is obviously possible that movement can occur.

The next step, we would say, is clear. If they moved, and the factual finding to that effect is in our favour that they did, and they did on a number of occasions, then a proper inspection would have revealed that they were capable of movement. It would be different, with respect, your Honours, if we were talking about a solid concrete set of steps which were incapable of movement.

The learned trial judge's ratio was to that effect. At page 5 of the application book his Honour said, at line 21:

As far as the latter -

that is movement in the step -

is concerned, I do not think that close enough attention was given to this. I think that closer inspection would have revealed movement in the step and in this regard, of course, I accept what the plaintiff's husband says in relation to the matter. It is not suggested that there was gross movement in the step but the movement would have been enough to have put any person ascending the steps in the danger into which the plaintiff in fact was put.

So what his Honour was saying was, accepting the plaintiff and her husband and, we would say,..... the solicitor, that he accepted that there was movement there which was available to be detected and that had more attention been paid to those steps as part of the maintenance of the building, then it would have been detected.

BRENNAN J: I notice that in the judgment of Mr Justice Handley at page 27 he states as a conclusion of fact:

there was no evidence that the step had moved before the accident or that the defendant or her caretaker knew of or had reason to suspect such movement.

MR TOOMEY: That is correct, your Honour. I am sorry, the actual existence of the movement - that is correct. There was also evidence that there had been no inspection. The caretaker's evidence was that he walked up the steps. There was no evidence of any inspection of the steps at any time.

BRENNAN J: Then there was a tenant who had gone up them four or five times a day without any - - -

MR TOOMEY: Only over a period of a week, I think, your Honour. That is Mr Tait, I think.

TOOHEY J: Five or six days.

MR TOOMEY: Yes. Your Honour, we would say, with respect, that that latter evidence is consistent with the situation which existed and it is readily acceptable, we would say, that you could have a fault in steps which would allow movement if you happened to step on one part of the step and not on another, which might allow it to move on one occasion and not on another. Indeed, his Honour's implicit acceptance of the caretaker means that he must have accepted that that was so, because he accepted that the step did move under the foot of the plaintiff and her husband and the solicitor.

BRENNAN J: What is the special leave point, Mr Toomey?

MR TOOMEY: The special leave point, your Honour, is whether a failure to inspect is acceptable where there is a contractual duty.

BRENNAN J: I do not quite follow that as a principle.

MR TOOMEY: Your Honour, it first depends upon, we would say, your Honours allowing us to rely upon the contractual duty, although it may be that a mere statement of the requirement for reasonable care in circumstances where it has been proved that the applicant came in under a contract may be enough. If that be so, we say that the statement by the Court of Appeal that there can be no duty to inspect unless there has been actual notice to the occupier of a fault goes too far.

BRENNAN J: What about absence of any reason to suspect?

MR TOOMEY: We say that goes too far too, your Honours, because it may apply to a reason to suspect the existence, as opposed to the possible existence. See, in this case it may be said that the construction of the steps was such that one may have been put on notice of the possibility of movement.

TOOHEY J: I was going to ask you that. I can understand, perhaps, a case in which there was evidence that this was an unconventional way of securing one set of precast steps to another. That might readily place the occupier of the premises on notice. But I take it there was no evidence one way or the other on that.

MR TOOMEY: No. It was a case run on circuit in the running list and there was, unfortunately, no such evidence. But we would ask your Honours to infer that when steps are so made, that obviously movement is possible. It is not possible in the solid block of concrete, but it is possible when you have steps depending one upon the other and the mortar which attaches them one to another.

BRENNAN J: It depends on the substratum, does it not?

MR TOOMEY: Well, I suppose if you had a solid block of concrete beneath the precast bit, your Honour, then you could not have any movement. But I do not think it was suggested that was the - - -

BRENNAN J: Instead of steps constructed in this way and resting upon a substratum of an unknown kind is not quite to be equated with a gas hot water system?

MR TOOMEY: No, but, your Honour, inspection would be much easier and would not necessarily require expertise whereas, of course, the reason the plaintiff failed in Watson v George was because inspection by a layman would not have revealed anything anyway. But we would say if you have steps such as these, whether - - -

MASON CJ: I see time has expired, Mr Toomey.

MR TOOMEY: Yes, may it please your Honour.

MASON CJ: The Court need not trouble you, Mr Curtin.

In the circumstances of this case, there being no evidence of the existence before the accident of any defect or instability in the steps or of any reason to suspect such a defect or instability, we are not persuaded that the decision of the Court of Appeal on the issue of negligence was attended with sufficient doubt to justify the grant of special leave.

Having regard to the way in which the case was pleaded and conducted in the courts below, the duty of an occupier to a contractual entrant does not appear to have been litigated on the footing that it gave rise to any special duty to the applicant on the part of the respondent. In the circumstances the application for special leave is refused.

MR CURTIN: I seek costs, may it please your Honours.

MASON CJ: You do not oppose that, Mr Toomey?

MR TOOMEY: No, your Honour.

MASON CJ: The application is refused with costs.

AT 11.24 AM THE MATTER WAS CONCLUDED