Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: NSW Land & Housing Corporation v Dia [2012] NSWCA 321
• Hearing dates: 22 August 2012
• Decision date: 05 October 2012
• Before: McColl JA at [1]; Macfarlan JA at [2]; Meagher JA at [41]

Decision

(1) Extend the time for the Corporation to file an application for leave to appeal.

(2) Grant leave to appeal.

(3) Dismiss the appeal.

(4) Order the Corporation to pay the plaintiff's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORTS - negligence - causation - 12 year old respondent injured when he fell from stairs in unit block owned and managed by the appellant - stair railing capping held by respondent dislodged when he was descending the stairs quickly and looking over the railing for his friend - primary judge found breach of duty of care by appellant in failing to provide secure capping - whether breach of duty was a cause of the respondent's injury - whether primary judge erred in preferring evidence of one expert witness over another - whether primary judge's findings were inconsistent with incontrovertible facts, glaringly improbable or contrary to compelling inferences
• Cases Cited: Commonwealth v Introvigne [1982] HCA 40; 150 CLR 258; Fox v Percy [2003] HCA 22; 214 CLR 118
• Category: Principal judgment
• Parties: NSW Land & Housing Corporation (Applicant/Appellant); Jaafar Dia by his Tutor Nawal Chaddad (First Respondent); Nawal Chaddad (Second Respondent)
• Representation: Counsel: P Menzies QC/B K Nolan (Applicant/Appellant); B J Gross QC/S Dixon (Respondents); Solicitors: McCabe Terrill Lawyers Pty Ltd (Applicant/Appellant); C & M Lawyers (Respondents)
• File Number(s): CA 2008/314213

Decision under appeal

• Citation: Dia v NSW Land & Housing Corporation; Chaddad v NSW Land & Housing Corporation
• Date of Decision: 2011-06-01 00:00:00
• Before: Delaney DCJ
• File Number(s): DC 2008/161; 2008/162

Judgment

1 McCOLL JA: I agree with Macfarlan JA.

2 MACFARLAN JA: On 30 August 2005, Jaafar Dia (the plaintiff), then aged 12, was severely injured when he fell from stairs inside a block of home units owned and managed by the applicant, NSW Land & Housing Corporation, to a tiled concrete floor below. The plaintiff, by his mother, Nawal Chaddad, as tutor, commenced proceedings in the District Court claiming damages from the applicant for breach of its duties as occupier of the building. His mother also commenced proceedings for damages for nervous shock suffered as a consequence of the plaintiff's injury.

3 The issues of liability in each proceeding were heard and determined together by Delaney DCJ. By judgment of 1 June 2011, his Honour found that the Corporation had breached its duty of care by failing to provide secure capping to the stair railing and that this breach had caused the plaintiff's fall and therefore his injuries. His Honour found that when the plaintiff was descending the stairs, quickly although not running, looking over the railing into the stairwell to see where his friend was, the railing capping that he was holding dislodged, causing him to lose balance and fall.

4 Overlooking the fact that his Honour's judgment was interlocutory because it determined liability only, the Corporation initially filed a Notice of Appeal, not an application for leave to appeal. Leave to file an application for leave to appeal out of time was subsequently sought and is not opposed. It should be granted. Leave to appeal should also be granted as it was reasonable for the Corporation to seek to challenge the decision on liability prior to damages being assessed in light of the decision of the District Court, no doubt made for good reason, that liability issues should be resolved before damages were assessed.

5 On appeal, the Corporation's only challenge to the primary judge's findings is to that concerning causation. Its contention is, in short, that according to the evidence of its expert engineering witness, Mr William Bailey, the fall could not have been caused by the defective railing capping, in the manner found by the primary judge, unless the plaintiff had been sliding down the stairs or climbing on the outside of the railing. The Corporation contends that the primary judge's conclusions are accordingly inconsistent with "incontrovertible" facts, "glaringly improbable" and "contrary to compelling inferences" (Fox v Percy [2003] HCA 22; 214 CLR 118 at [29]) and should be set aside.

THE FACTUAL CIRCUMSTANCES

6 The building in which the plaintiff's fall occurred was one of three similar blocks at a site in Bankstown. Their staircases were described by the primary judge as follows:

"6. Each of the blocks of units had a staircase bordered by an anodised aluminium railing, upon the top of which was aluminium capping that was connected to the base of the handrail. This railing was 880 millimetres high when the capping was in place, but if the capping was missing it was about 845 millimetres high. The stairs were normally carpeted. There was a landing on level 3. The stairs then went down to a half-landing and then more stairs led to level 2. The stairs led to another half-landing between level 2 and level 1, and then more stairs led down to level 1, with the last set of stairs leading from level 1 to the ground floor entry to the unit block. The capping on the railings was installed in sections that were clipped together at various points".

7 On 30 August 2005 the plaintiff visited a school friend, Salah Rima, who lived in a unit on the third floor of the building in which the plaintiff subsequently fell. The plaintiff lived in an adjacent building. The primary judge gave the following description of what occurred immediately prior to the plaintiff's fall:

"28. It appears that before the accident the plaintiff had acquired a walkie-talkie with two handsets. The plaintiff had left the home with one of the handsets and his younger brother, Hussein, was at home with the other handset. The plaintiff walked the short distance from his unit to the residence of Salah Rima and went up to Salah's unit. Although he could not remember walking up to the unit he remembered speaking to Salah's mother and then, as I understood his evidence, could remember beginning to descend the stairs".

8 In a written statement of 1 February 2007, Ms Sahira Abdul-Wahed, Salah Rima's mother, said that prior to the accident the plaintiff came to her door and spoke to Salah who then ran down the stairs. The plaintiff stayed, having a short conversation with Ms Wahed. She then saw the plaintiff running down the first and second flights of stairs "to follow [Salah]". After she turned away, she heard Salah shouting the plaintiff's name. She quickly descended the stairs and found the plaintiff lying face down at the bottom of the stairwell.

9 Ms Abdul-Wahed's oral evidence-in-chief included the following:

"Q. Just tell us what happened?

A. WITNESS: Jaafar came to my unit at 4 o'clock to play with my son and to tell him hello, and when Jaafar came, he knocked the door and I told him, 'We're going to visit my cousins', and after he told me to - he need to speak to my son and to show him the walkie-talkie, I called my son from the room and he talked to him, and he told him, 'You can see you - my brother's voice in his unit', because the other brother, he stay in his unit, and my son take the - he took the walkie-talkie from Jaafar, he give it to him, and it's a little bit fun, and my son go to..(foreign language).

A. INTERPRETER: And after that, my son descended the stairs toward downstairs, taking the talkie-walkie (as said) with him, and while Jaafar was talking with me about - small talk with me.

A. WITNESS: Yeah.

...

Q. What then happened?

A. WITNESS: Then I told him I have to go, go follow my son, and...(foreign language)...because already we gone out.

A. INTERPRETER: When my son was downstairs, he left, descended the stairs, off my floor, the third floor, and I myself, I turned around and went either to change my clothes or put my shoes on because we were ready to go out, and I told him, go to him.

A. WITNESS: Yeah" (Transcript p 198).

10 The evidence of the plaintiff, accepted by the primary judge, was that "as he was descending the stairs he looked over the railing at some point in his descent and the capping on the railing slid under his hand, causing him to overbalance and fall down the stairwell" (Judgment [23]). Salah did not see the plaintiff on the stairs or at the commencement of his fall. He saw him only momentarily before he hit the ground.

11 The primary judge summarised his findings concerning the circumstances of the accident as follows:

"151. I find that at a point between the third and first floor he was descending the stairs, and looked over the railing to see where Salah was. As he did so he grasped the capping of the handrail adjacent to the stairwell. When he did, the handrail dislodged causing him to lose his balance and fall down the stairwell from an undetermined position on the staircase.

152. The fact that the capping probably dislodged is supported by the evidence of Salah who heard the sound of the railing, and Ms Woods [resident of another unit] who also heard the sound of a rail fall to the ground causing her to come out of her unit and see at the same time the plaintiff on the ground floor injured.

153. I am satisfied that the plaintiff did not fall from level 3. I find that he fell as he was descending the stairs somewhere between level 3 and level 1. I find on the probabilities that he was not on a landing when he fell. I find that it is not possible to decide the exact point from where the plaintiff fell, either from his evidence or from the photographs or the diagrams provided to the plaintiff's solicitors. In my opinion, evidence that suggested he fell from any particular spot on the stairs was inconclusive. The suggestion by Mr Bailey [the Corporation's engineering expert] as to the distance he fell was not supported by any data that could conclusively establish that point.

154. I am satisfied that before he fell the plaintiff was probably walking fast to catch up to Salah but was not running. I find that, more likely than not, he was moving when he fell, as it is unlikely he would have fallen over the railing from a stationary position on a landing. I accept the opinion of Mr Cowling [the plaintiff's engineering expert], who thought it was possible that he could have fallen in the manner to which I have just referred as he was descending the stairs. Where there is a difference between Mr Cowling and Mr Bailey on this point I prefer Mr Cowling.

155. I listened carefully to the evidence that the plaintiff gave. There is no doubt that from time to time during his evidence he made inconsistent statements. Nevertheless, I am satisfied on the probabilities that he does have memory of some events of the day of the accident ...

...

160. The plaintiff submitted that the railing was at an angle where the plaintiff fell. In my opinion this is the most probable scenario. This meant that the plaintiff was not going over a flat horizontal bar, but was going over at an angle and he could flip over in any direction if the capping dislodged".

THE EXPERT EVIDENCE

Mr Hugh Cowling's evidence

12 The plaintiff led expert evidence from Mr Hugh Cowling, a civil and construction engineer. He said that he had experience "in relation to construction and engineering works, pedestrian safety, balustrade and stair design and safe workplace practices" (Report dated 13 November 2008, p 3). He described the stair rails in the building as having a rounded aluminium cap which clipped over the stair rail. The rails were 880 millimetres in height with the cap in place, and 845 millimetres without the cap. The cap was intended to clip in place with no other affixation. Mr Cowling said that he found "many situations where the top of the rail was either already missing or could easily be detached from the base of the rail" (ibid p 13). He described the following incident that occurred whilst he was inspecting the premises:

"Upon arrival, I climbed the stairway towards the 3rd Floor. As I reached the 2nd Floor landing, I commenced to climb the flight leading from the 2nd Floor up to the mid-landing between the 2nd and 3rd Floors.

I placed my right hand on the aluminium handrail and was about to look over into the stairwell when the top section of the rail precipitately came away in my hand. I had observed missing sections on my way up the stairwell, but had not expected the rail to come away in my hand as readily and easily as it did.

I was thrown off balance and was left holding onto the loose top piece of rail in my right hand which by then were both hanging over into the stairwell" (ibid pp 12 - 13).

13 Mr Cowling included in his report (as Figure 20) a diagram by which he sought "to show the mechanics of a possible fall" involving the plaintiff (ibid p 33). This showed that if the plaintiff (whom the parties accepted was then 145 centimetres in height) was standing upright on one of the stairs, the rail immediately adjacent to that step would have been well above the height of his hips. However, if the plaintiff was leaning forward, with his heels off the step, the height of the handrail (with its capping intact) next to the two steps immediately below the plaintiff would have been either at or below (significantly below in the case of the second step down) the height of his hips. The effect of this diagram is that if one also considers the dynamic elements (the plaintiff moving quickly down the stairs, leaning forward and looking over the railing to see his friend, perhaps on his tiptoes, and the dislodgement of the rail capping which he was holding) it is possible to perceive a way in which the plaintiff may have fallen.

Mr William Bailey's expert evidence

14 Mr Bailey is a mechanical and biomedical engineer. In his report dated 17 November 2009, Mr Bailey opined that the plaintiff could not have been injured "as described in the Statement of Claim and/or the report of Mr Cowling" (p 16).

15 He described the necessary conditions for a fall by the plaintiff from the subject stairs as follows:

"For a person of the Plaintiff's height and weight to pass (eg fall) over the handrail into the stairwell, it would be necessary for the torso above approx waist height to be moved to a position beyond the handrail at a time when foot contact force was substantially reduced below normal levels when descending stairs and there was no firm grasp of the handrail" (p 15).

16 Having considered calculations concerning the plaintiff's centre of gravity, the height from which he fell and the nature of his reported injuries, Mr Bailey concluded:

"There is an absence of either external or internal trauma which could be consistent with a fall after passing over handrail heights of 3.67 [to] 5.07m. For a 'head first' fall to a concrete tiled surface at the calculated speed, there would be well defined pathology to the skull, neck and brain and probably to the upper limbs and torso, in areas which could make contact with the ground during landing. A CT scan of the Plaintiff's head is not reported as indicating brain injury or skull fractures which would be expected in a mainly head first fall onto tiled floor from heights of 3 to 4 metres" (p 16).

17 In response to questions as to whether the plaintiff was capable of falling "over" the rail and whether the dislodgement of part of the railing cap could have caused or contributed to the plaintiff's fall, Mr Bailey expressed the following views:

"a) A 12 year old of the size/weight of the Plaintiff could not involuntarily 'fall' over the handrail as a consequence of descending the steps in any reasonably orderly manner, including descending quickly. The reason that even rapid descent of the stairs does not significantly increase the risk of falling over a railing is that in order to facilitate rapid movement requires additional flexion (bending) of both lower limbs which takes the centre of gravity lower and further from the top of the handrail, so that a mis-step and stumble may become more likely followed by a fall down the stairs but there is no increased risk of going over the handrail.

Because the lower section of the handrail can be assumed to have remained in place, even if the cap section was displaced whilst being grasped by the Plaintiff, at most this action could have resulted in a loss of balance and a loss of balance can result in a loss of footing and a fall down the stairs but there is no realistic possibility of the Plaintiff's complete body travelling over the remaining section of the handrail because a loss of footing inherently takes the centre of gravity lower, not higher.

...

c) The cap section could potentially be released at times when it was being grasped by the Plaintiff and either:

Under an action which was pulling the cap partly towards the Plaintiff, in which case its release would tend to cause a net movement away from the handrail as it released, or

Under an action which was pushing the cap partly towards the stairwell, in which case its release would tend to cause the pedestrian's torso to move towards the handrail. Because the Plaintiff's overall centre of gravity was lower than the remaining handrail section (or even if it was somewhat above) if balance was lost, then the pelvic region would tend to fall against the handrail and balusters (vertical members) which would assist in maintaining the pedestrian within the stairway. Contact with the pelvic region is far too high to essentially 'trip' a pedestrian in the manner apparently suggested in Mr Cowling's sketch at Figure 20 (p 33)" (pp 17 - 18).

18 Mr Bailey concluded:

"The Plaintiff cannot have sustained the reported injuries in the manner described in the Statement of Claim and/or outlined in the report of Mr Cowling because the nature and severity of his injuries are not consistent with a 'head first' fall and not consistent with the range of likely impact speeds which would be reached during the suggested falls.

Reported injuries to the Plaintiff are entirely explicable in terms of an incident which occurred when he lost balance whilst climbing within the stairwell. Climbing may have involved movement over the handrail whilst at a height or by moving upwards from the ground floor whilst standing on the outside of the balustrade.

He may have lost his grip and fallen when a section of the handrail capping detached or for other reasons (eg inadequate grip, fatigue).

In the author's experience (both as a youth and as a parent) it is not unknown for youths to climb stairs in this manner, for reasons of adventure or competition with others" (p 23).

19 Mr Bailey's cross-examination included the following exchange:

"Q You have no information, do you, as to whether [the Plaintiff] was on tippy-toe or had his feet flat when he looked over the railing, if he looked over the railing before he fell?

A. No" (Transcript, p 384).

Report of Dr Peter Ratcliffe

20 Dr Ratcliffe holds Masters degrees in dental science and surgery and provides "Dental, Oral & Maxillo-facial Reports" as part of his practice. His report dated 7 October 2009 was tendered in evidence by the Corporation. The report included the following opinion:

"The injuries are consistent with a fall from a few metres to a concrete floor. The mechanism whereby Mast Dia [the Plaintiff] tripped over the handrail was reported as the left-handed slipping on the handrail and as a result Mast Dia pitched forward and over the handrail. His injuries were consistent with landing on his face/ahead. [The injuries do not provide any assistance as [to] the mechanism of the fall]" (p 11).

21 Dr Ratcliffe was not called to give oral evidence.

THE JUDGMENT AT FIRST INSTANCE

22 The primary judge reached the following conclusions concerning Mr Bailey's evidence:

"84. In my opinion, Mr Bailey's conclusion that the plaintiff could not have overbalanced over the railing cannot be accepted as based on expert opinion. His view is no more than speculation. Contrary to his assertions when cross-examined, I find he did not have the facts needed to support an opinion that the plaintiff probably fell either whilst he was climbing from outside the railing or sliding down the banister.

85. It is to be noted that Mr Bailey relied on Salah Rima's observations of the plaintiff's fall and he said that he also relied on the medical evidence from reports to determine the force of impact. In my opinion, he was unqualified to make any assessment of the likely injuries the plaintiff would have suffered in a vertical descent. There was no evidence he ever performed such calculations in his experience or indeed has to assess the nature of injuries sustained in such circumstances. Common sense and experience show that whilst one person can be injured in a certain way, in for example a rear end collision, others can be injured in a completely different way. Mr Bailey provided no basis for his opinion".

23 His Honour made the following observations concerning Mr Cowling's evidence:

"106. Mr Cowling ... said he was in court when Salah Rima gave his evidence. He thought that Salah Rima's description of what he observed the plaintiff do was consistent with a tumbling action. Although he was challenged about his capacity to understand the way in which a human body would fall, Mr Cowling said that this was a matter of physics and did not require somebody with ergonomic qualifications to express a view about it. I accept that Mr Cowling did have the training, expertise and experience to express the opinions that he did. As I said, I accept him where his evidence conflicts with that of Mr Bailey".

24 His Honour made the following findings concerning the railing:

"161. The plaintiff relied upon Mr Cowling's report because he inspected the railing and showed that the capping on the railing could easily be dislodged. Mr Cowling gave his evidence in a straightforward manner and was not, in my opinion, undermined by cross-examination as I have mentioned.

162. I find Mr Cowling should be accepted because he paid attention to detail and was accurate and precise. Mr Cowling had set out the dangers to persons using railings. These included not only falling down the stairs, but the risk that a railing could give way, particularly having regard to the manner of construction. I find the capping was never safe because there was always an inherent defect.

163. In summary, the plaintiff said its case was that the defendant failed to have proper railings to begin with and then did not fix them when they were known to be defective. Mr Cowling demonstrated that by squeezing the capping he could reduce the diameter of the half circle and therefore detach the capping. He also pointed out that there was excessive movement in the railing. He showed that the top rail is a stiff component and the base is in two pieces capable of flexing, and this leads to the top railing being detached. Mr Cowling recommended that the capping be secured and he said he could do that for $8,000. He said this should have been done in the first place".

25 His Honour found that the railings in the building were defective, that the Corporation "knew of the condition of the railings from complaints made by Ms Woods and other sources" (Judgment [198]) and that the risk of harm resulting from the defective state of the railings was not insignificant. His Honour accordingly found that the Corporation had "breached the duty of care it owed to persons in the position of the plaintiff by not securing the capping prior to the accident" (Judgment [203]).

26 His Honour concluded that the plaintiff's injuries were causally related to the defendant's negligence as follows:

"213. I have found that the plaintiff lost his balance and fell against the railing and went over the railing into the stairwell. I am satisfied that the movement of the capping was sudden and unexpected. It is reasonable to infer that there was a sudden loss of resistance to the plaintiff's weight against the railing when the capping dislodged as he was looking over the railing while descending the stairs. I have concluded that the railing being dislodged was not a coincidence but was so interconnected with the plaintiff's fall as to have materially contributed to it. The negligence of the defendant was a necessary condition of the occurrence of the injury".

THE CORPORATION'S SUBMISSIONS ON APPEAL

27 Having referred to the views of Mr Bailey (quoted in [15] - [18] above) the Corporation's Written Submissions contained the following:

"23. Although that scenario was stoutly and resolutely rejected by Mr Cowling, he gave the following evidence in the context of what happened to him on the day of the inspection:

Q. What stopped you from going over?

The fact there that I hit the balustrade and that I had a greater strength than I might have expected from a young person in the same circumstances.

Q. The balustrade would have been as more of a barrier to a smaller person than someone of your size would it not?

But that is not the question you asked me. You asked me whether, you asked me whether he had continued to hold on to the capping.

24. The use of the word 'but' in the last answer infers an admission. In other words, Mr Cowling was accepting that if he, a full grown adult male, was stopped by the balustrade then the plaintiff, who was much shorter and would therefore presumably have a lower centre of gravity would also have been stopped. That implicit admission alone ought have cause [sic] the plaintiff's version to have been rejected. It is therefore plainly arguable that the plaintiff's case was 'glaringly improbable' and on that basis alone open to correction on appeal.

25. The expressed basis for the trial Judge accepting Mr Cowling and rejecting Mr Bailey was on the basis that Mr Bailey's conclusions were 'speculation' and were not the consequence of an application rationally of his experience in that expertise.

26. Mr Bailey, contrary to Mr Cowling, sets out a process of reasoning which ought to have commended itself to the trial Judge, in circumstances where the opposing position was not similarly reasoned by simply expressed in a dogmatic manner.

...

27. The trial Judge's rejection of Mr Bailey offends common sense: if the balustrade stopped a grown man from falling, then one would assume that it would be more likely to stop a young boy and this is what Mr Cowling, at least implicitly, accepted under cross examination.

28. Mr Bailey's analysis, having eliminated the possibility of the fall having occurred in the way the plaintiff would have it, then postulated alternatives. There is nothing objectionable or non-scientific or outside the process of giving an expert opinion to venture these alternatives. The alternatives are not fairly described as 'speculation', as was posited by the trial Judge.

29. Rather, the critical findings of fact were inconsistent with 'incontrovertible fact' or such as to render the decision at trial to be 'glaringly improbable' or 'contrary to compelling inferences in the case' ..." (Appellant's Written Submissions dated 16 April 2012, pp 6 - 8).

RESOLUTION OF THE APPEAL

28 As is apparent from [5] and [27] above, success by the Corporation in its appeal depends upon acceptance of Mr Bailey's conclusion that the plaintiff could not have fallen in the manner described by the plaintiff and accepted by the primary judge. It is necessary therefore to examine the two bases given by Mr Bailey for this conclusion.

Mr Bailey's first reason

29 Mr Bailey's first, and seemingly primary, reason for his conclusion was that the plaintiff's injuries were inconsistent with a fall having occurred in the manner described by the plaintiff (see [16] and [18] above and Transcript p 385 [49]). However Mr Bailey's evidence did not demonstrate that he had any qualifications or expertise which enabled him to express an opinion as to the nature of the plaintiff's injuries and the manner in which they were suffered. The Corporation did not attempt to contradict a submission to this effect made on behalf of the plaintiff on appeal. Moreover, Mr Bailey's conclusion was inconsistent with that of Dr Ratcliffe who did appear to have the relevant expertise. Unlike Mr Bailey, Dr Ratcliffe considered that the plaintiff's injuries were consistent with a head-first fall (see [20]).

30 At least in this respect Mr Bailey's evidence did not therefore establish an incontrovertible fact with which the primary judge's conclusion was inconsistent or that the conclusion was "glaringly improbable".

Mr Bailey's second reason

31 The second basis for Mr Bailey's conclusion was that, on the plaintiff's version of events, the plaintiff's descent of the stairs, even if quick, would not have resulted in the plaintiff's centre of gravity being higher than the railing, rendering it impossible for him to topple over it (see [17] above). However Mr Bailey did not in my view adequately respond to Mr Cowling's evidence, encapsulated in his Figure 20, as to how, consistently with the plaintiff's evidence, the plaintiff may have come to topple over the railing (see [13] above). In my view, Figure 20 demonstrated, consistently with commonsense, how the plaintiff may have fallen without the plaintiff sliding down or climbing over the railing. The diagram showed that if the plaintiff was moving quickly down the stairs whilst leaning forward to look over the railing for his friend, his centre of gravity could have been above the height of the railing, leading to the possibility of him falling over the railing.

32 The primary judge did not make detailed findings about the plaintiff's position and movement immediately prior to his fall (see Judgment [151] quoted in [11] above). This was understandable as the plaintiff's recollection was limited and there were no witnesses to his fall. Within the ambit of his Honour's necessarily general findings there was a range of possibilities as to the plaintiff's position and movement, none of which involved him sliding down or climbing over the railing. For example, whilst moving quickly (although not running) and looking over the railing for his friend, the plaintiff may well have been leaning forward on the balls of his feet, as depicted in Mr Cowling's Figure 20. The upper part of his body may well have been leaning above or over the rail as he looked over the railing for his friend. This would have involved the plaintiff in a risk of falling but the "folly of youthful exuberance" is readily foreseeable (see Commonwealth v Introvigne [1982] HCA 40; 150 CLR 258 at 280 per Brennan J). The Corporation did not contend that behaviour of the plaintiff short of sliding down or climbing over the railing excused it from liability for the defective capping or rendered the plaintiff guilty of contributory negligence.

33 If the plaintiff was moving and was momentarily in this position, the sudden dislodgement of the railing capping which he was grasping may well have caused him to lose his balance and fall over the railing in the manner suggested by Mr Cowling.

34 Mr Bailey did not adequately respond to Mr Cowling's Figure 20. He simply said that "[c]ontact with the pelvic region is far too high to essentially 'trip' a pedestrian in the manner apparently suggested in Mr Cowling's sketch at Figure 20" (see [17] above). When read in the context of the preceding sentences in the report, it seems that Mr Bailey was saying that the top of the railing would make contact with the person's body at too high a level to result in him or her overbalancing. However, this view ignores the fact that if the person were leaning forward on the balls of his or her feet, as Mr Cowling hypothesised, the pelvic region would be at least as high, if not higher, than the railing adjacent to the lower steps over which the person would be leaning.

35 Mr Bailey appears to have paid little, if any, regard to the dynamics of the plaintiff's situation: consistently with the primary judge's findings, the plaintiff may well have been leaning forward and turning his body above or over the railing as he quickly descended the stairs. Mr Bailey's assumption that the plaintiff was descending in a "reasonably orderly manner" (see [17] above) did not necessarily reflect the facts. Commonsense suggests that this was probably not a fair description of the manner in which the plaintiff set off down the stairs after his friend who had the plaintiff's newly-acquired walkie talkie.

36 For these reasons, Mr Bailey's evidence fell well short of proving an incontrovertible fact that is inconsistent with the primary judge's conclusion.

37 The Corporation's written submissions placed considerable emphasis on an answer given by Mr Cowling in cross-examination to a question concerned with the incident that occurred on his inspection of the premises (see [12] and [27] above). The Corporation argued that because Mr Cowling did not fall over the railing when he dislodged the capping and, by his answer, impliedly accepted that the railing would have represented an even greater barrier to a smaller person than himself, Mr Cowling's answer demonstrated that the plaintiff's fall could not have occurred as Mr Cowling concluded, and as the primary judge accepted.

38 I reject this argument. The fact that Mr Cowling did not fall, and that a smaller person in his position would have been even less likely to fall, does not shed light on how the plaintiff fell. First, there is no basis for thinking that Mr Cowling was proceeding otherwise than in a sedate fashion. Consistently with his Honour's findings the plaintiff may well have been proceeding quite differently. Secondly, there is no suggestion that Mr Cowling, like the plaintiff, was attempting while moving to look over the railing down into the stairwell when the capping was dislodged. Indeed Mr Cowling's report of 13 November 2008 says that he "was about to look over into the stairwell" when the capping was dislodged (p 13; emphasis added).

CONCLUSION AND ORDERS

39 For the reasons that I have given, there was a sound basis for the primary judge preferring the expert evidence of Mr Cowling over that of Mr Bailey. As a result, the primary judge's conclusion as to how the plaintiff fell was not, as the Corporation submitted, "glaringly improbable". Rather, the conclusion was well-founded and demonstrated that the plaintiff's injuries were causally related to the Corporation's negligence. Accordingly, the Corporation's challenge to his Honour's conclusion fails.

40 I propose the following orders:

(1) Extend the time for the Corporation to file an application for leave to appeal.

(2) Grant leave to appeal.

(3) Dismiss the appeal.

(4) Order the Corporation to pay the plaintiff's costs of the appeal.

41 MEAGHER JA: I agree for the reasons given by Macfarlan JA that there should be a grant of leave to appeal and that the appeal should be dismissed with costs.

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Decision last updated: 05 October 2012