Pietrobelli v Jewell Family Nominees Pty Ltd
“In that case, there was a 25mm departure from the minimum
about which Mr Dimopoulos stated was significant because it was five
times the maximum allowable variation.”
Court (Location): Supreme Court of New South Wales
Expert : John Dimopoulos, forensic engineer, Dohrmann Consulting
Solicitors: Lough & Wells Lawyers (Plaintiff); Colin Biggers & Paisley Pty Ltd (Defendant)
Legal Matter: Plaintiff sustained injury as a result of a fall at the defendant’s premises
Court Decision: Defendant liable for injuries, loss or damage occasioned to the plaintiff arising out of the incident with no deduction for contributory negligence.
I find Mr Dimopoulos to be an informative witness who provided considered reasons for his responses which was evident in both the Ergonomic Conclave Report and in concurrent evidence.
Paragraph 48: Mr Dimopoulos’s Primary Report provided a table describing the architectural features of the stairs. That table was adopted by the experts for the purposes of the Architectural Conclave Report and represented an uncontroversial background for the Ergonomic Conclave Report, as well as the concurrent evidence of experts, in that respect. The table also formed the foundation for many of the contentions advanced by the parties in the proceedings.
Paragraph 55: The riser and the going columns have various numerical entries upon which an asterisk appears. Mr Dimopoulos indicated where there was a step variation is in excess of +/- 5mm from adjacent steps. He explained that he attached significance to a 5mm step variation because the BCA standards allows for a tolerance of +/- 5mm on the variations in going and riser dimensions. Anything outside that variation is non-compliant.
Paragraph 56: I will ultimately find Mr Dimopolous to be an expert witness of credit who had significant experience giving expert opinions in matters to do with trips, slips and falls. He explained that the 5mm step variation obtains its significance because of variations in stair geometry has been shown to significantly contribute to accidents on stairs.
Paragraph 57: Mr Dimopoulos explained that the numbers shown in the fourth column labelled “Quantity” represented a formula twice the sum of the figure shown in the riser column and the figure show in in the going. The column shows the slope relationship calculated from the riser and going dimensions. He explained that the significance of those amounts is that variation is one of a number of factors which impacts how well an individual can interpret their next step.
Paragraph 70: There are a number of mechanisms by which a person may slip on a step. Mr Dimopoulos stated that the slip may occur, for example, where there is insufficient coefficient of friction. However, it was common ground in this matter that the issue raised by this pleading was whether the plaintiff had slipped because she had overstepped.
Paragraph 172: Mr Dimopoulos attended the premises on 15 December 2016, to undertake a view of the premises and to take various measurements and photographs. He was accompanied by the plaintiff at the inspection.
Paragraph 176: Mr Dimopoulos opined that two significant factors contributed to the incident, firstly, the going dimension of the stairs and secondly, the irregularity of the step dimensions. Both are discussed in more detail below, commencing with the going dimension.
Paragraph 177: Mr Dimopoulos measured the third step and opined that the going measurement was significantly lower than that required by any Building Regulation in place from 1973 to 2016.
Paragraph 179: Mr Dimopoulos found that the second significant factor was the inconsistency of the step around the third step in his report.
Paragraph 255: Mr Dimopoulos pointed out that the BCA required minimum going dimensions of 250mm rather than 240mm. He expressed the view that had the staircase been built with those minimum requirements, along with consistent riser and going dimensions then, in his opinion, it was more likely than not the incident would have been prevented.
Paragraph 277: Both Mr Dohrmann and Mr Dimopoulos agreed that the description provided was likely a result of an overstep. That exchange is extracted below:
HOOK: Mr Dohrmann, do you have a view on that?WITNESS DOHRMANN: I’d agree that the great likelihood is an overstep to
explain a tumble down a stair of the sort you described.HOOK: Mr Dimopoulos?WITNESS DIMOPOULOS: Yeah, in my experience in investigating these type
of falls, a lot of people who have had the fall describe when they have
overstepped that they’ve slipped. That’s what they’ve described to me, that
their foot has slipped, but when you look at the step itself, you know, there’s a reasonable coefficient of friction. So, the only conclusion I can come to is that it’s their sensation of their foot sliding off the front because they’ve
overstepped, and that’s quite a common, in my experience investigating many accidents of this type – very common description of that type of fall.
Paragraph 295: Overall, I find that the qualifications of both Mr Dimopoulos and Mr Dohrmann and their experience and expertise are superior to that of Dr McIntosh’s and is more appropriate to the issues at hand.
Paragraph 298: It was submitted by the plaintiff that Mr Dimopoulos was measured, made concessions where appropriate and did his best to engage with every question that was asked of him, even when he found them difficult to relate to what was going on or to the building code or to his own experience.
Paragraph 326: I find Mr Dimopoulos to be an informative witness who provided considered reasons for his responses which was evident in both the Ergonomic Conclave Report and in concurrent evidence. I agree with the submission of the plaintiff that Mr Dimopoulos has experience and expertise which are appropriate to the issues at hand. He had no difficulties commenting on the standards required under the BCA and his answers aligned with why the standards were in place, namely, to keep people safe and protect people from risk.
Paragraph 327: Coinciding with his expertise and knowledge in the field, I also find Mr Dimopoulos made appropriate concessions during his evidence and was candid and willing to admit when he had made an error. Mr Dimopoulos was engaged even when he found it difficult to relate to what was going on or to the BCA or to his own experience, he did his best to assist, and he did so in a measured fashion without flourish.
Paragraph 328: Overall, I prefer the evidence of Mr Dimopoulos over Dr McIntosh
Paragraph 333: As to the risk posed by the stairs, both Mr Dimopoulos and Mr Dohrmann opined that the stairs posed a risk of harm on the basis that the undersized goings and the irregular risers and going as previously described increased the risk of an overstep. For his part, Dr McIntosh was only prepared to concede that the likelihood of overstepping was likely to be slightly elevated with the stairs where the fall occurred in comparison to BCA compliant stairs.
Paragraph 334: In relation to the action that could have been taken by the defendant in response to the risk of harm the experts agreed with Mr Dimopoulos opinion that the defendant ought to have ensured that the steps were compliant with BCA, as well as preventing the access to the stairs.
Paragraph 338: In the first place, I favour the opinion of Mr Dimopoulos where he expressed the view that the undersized going and its smaller depth than the preceding going were, on the balance of probabilities, the most likely cause of the plaintiff’s fall.
Paragraph 341: Mr Dimopoulos in concurrent evidence opined that short and irregular goings are the main reason for falls on stairs. Mr Dimopoulos observations about the probabilities of the possible mechanisms which caused the plaintiff’s fall derived from the application of his specialised knowledge in engineering, his personal training, study and experience, including, but not limited to being a member of Australian Standards Committee and his preparation of reports in over a hundred litigated matters involving slips, trips and falls, as well as have providing advice on the same to many organisations as an engaged safety consultant. He also placed reliance on the BCA and the Stairway Falls Paper, which was referenced in Dr McIntosh’s Report, which was tendered to the
Paragraph 453: I consider the following factors illustrate that the mechanism of overstep had a significant probability of causing the slip and fall:
(1) The relevant staircase had inconsistent riser and going dimensions as
recorded by Mr Dimopoulos (page 1115 of volume 3 of the Court Book).
(2) The goings of the relevant staircase were undersized.
(3) The relevant staircase did not comply with clause D2.13 of the Building Code of Australia on the basis that the goings were below the minimum dimension of 250mm as required by clause D2.13(a)(ii) and also on the basis that the goings and risers were not consistent throughout the flight as required by clause D2.13(a)(iii).
(4) I accept Mr Dimopolous’s evidence, for the reasons earlier given, that
the probability from overstep was greater (and not slightly so) in the
above circumstances. I will discuss this further in relation to the question
Paragraph 700 I conclude that the defendant is liable for injuries, loss or damage occasioned to the plaintiff arising out of the incident. I have found that there should be no deduction for contributory negligence.