AV Jennings Limited v Thomas

LOWER COURT District Court JURISDICTION : LOWER COURT 1277 of 2001 FILE NUMBER(S) : LOWER COURT Judge Sidis JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40785/2003

BEAZLEY JA BRYSON JA PALMER J

MONDAY 1 NOVEMBER 2004 A V JENNINGS LIMITED v BARRY JOHN THOMAS Judgment 1 BEAZLEY JA: I agree with Bryson JA. 2 BRYSON JA: The respondent Mr Thomas obtained a verdict and judgment against the appellant A V Jennings Limited (Jennings) for $506,112.49 on 22 August 2003 in action 1227 of 2001 in the District Court at Newcastle. The action was heard before her Honour Judge Sidis on 18 and 19 August 2003 and adjourned to 22 August 2003 for judgment. Mr Thomas claimed damages for severe personal injuries which he suffered on 14 March 2001 when he slipped and fell on the lowest of five wooden steps which gave access to the front door of a building at the Birdwood Estate, Aberglasslyn in the Hunter Valley. Birdwood Estate was a new housing development on what had previously been vacant land, and the building was to be used as a Centre, referred to as the Ideas Centre, for selling houses on the estate. The building had recently been transported on a float from another site, and placed on brick piers in what had earlier been a rough grassed paddock. The building stood about 30 metres from the access road. There was to be a gala opening of the Birdwood Estate on Saturday 17 March 2001. Work was in progress by a number of trades to make the building suitable for occupation. 3 The steps on which Mr Thomas slipped and fell were supported by a steel frame which in turn stood on concrete footings, and as work on the steps was still in progress the excavations for the footings at the sides and at a point in the centre of the lowest step were still open, and spoil from the excavations was lying on the ground in the front of the steps. Photographs Exhibit F1 and F2 show the front entry to the building, the steps and the ground in front of the steps as they were in a finished state some weeks or months after 14 March 2001. By that time the excavations for the footings had been refilled, the ground in front of the steps was part of an asphalted area, apparently for vehicle access and parking, in front of the building, there were handrails on each side of the steps, and there was no excavation spoil to be seen. There were no handrails on the sides of the steps on 14 March 2001. 4 Mr Thomas was a contract carpet cleaner and worked with or for a firm called Our Town Carpets which obtained and supplied him with orders for carpet cleaning work. He owned his own carpet cleaning equipment, which included a heavy suction pump, vacuum hoses and other equipment, and a van to transport them. On 13 March 2001, the day before his injury, Mr Thomas was directed by Our Town Carpets to go to the Jennings site at Aberglasslyn to clean carpets at the Ideas Centre. He first attended in the early afternoon of 13 March 2001. He parked his van on the road 25 to 30 metres from the building. He saw there were workmen's vehicles parked in front of the building, and a number of persons were working around it including workmen attending to the air conditioning, and others clearing bush in the paddock on which the building was constructed. There was no formed road to the building but there was a track across the paddock. The ground of the paddock was soft, with heavy vehicle tracks apparent in it. There had been rain for some weeks and there was some mud in the paddock. Mr Thomas had a docket from Our Town Carpets which directed him to contact Mr Tony Jones. He spoke to a person who did not identify himself and was not otherwise identified as Jones, but behaved in a way which showed that he was in control of work operations at the Ideas Centre on behalf of Jennings. I refer to him as the Manager. 5 Mr Thomas and the Manager entered the Ideas Centre by way of a wooden ramp on the right hand side of the building (viewed from Mr Thomas' approach). The Manager showed Mr Thomas the carpets which were to be cleaned in several rooms, totalling about 50 square metres. The carpets were filthy, and Mr Thomas assessed that it would take him about two hours to clean them. The Manager asked Mr Thomas if he could return later that day because other work, including air-conditioning work, erecting signs and electrical wiring, was being done there. Mr Thomas left, and returned later in the afternoon and again spoke to the Manager. Work was still proceeding in the Ideas Centre and the Manager told him to return in the morning. Mr Thomas checked his schedule with Our Town Carpets and asked the Manager if he could return to do the work at 7.30 am on the following day 14 March 2001. He was told that he could, but as no one else would be there at that time the Manager gave him a key to the front door, and told him to leave the key under the door of the Ideas Centre when he had finished. Mr Thomas left with the key. On 13 March 2001 he entered and left the building on both occasions by way of the ramp on the right hand side; he did not enter or leave the building by way of the steps, and he did not use the steps at all. 6 Mr Thomas returned early on 14 March 2001 and parked his van close to the front door and about two metres from the steps. He decided the best arrangement of his equipment was that he should keep his machinery outside the building at the front door, on the landing at the top of the steps. The front door of the premises was in the centre of the front of the building, and with his suction pump machine at that position he could efficiently work with hoses at all the places inside the building where he needed to work. To do this he needed to enter at the front door, open the door, and then bring his heavy equipment up the steps.

7 As he parked about two metres from the steps Mr Thomas was well able to see the steps and the ground between his van and the steps. Mr Thomas' evidence shows that there were mounds of soft and muddy dirt in front of the steps. There were three mounds each of which merged into the others. He did not notice other footmarks in the mounds at the time he walked towards them. Mr Thomas took a vacuum hose from the rear of his van and placed it in a coil over his right shoulder. He walked along the passenger side of the van towards the right hand side of the steps where the mound was slightly less high so that he could step over it. However in stepping over the mound he had to extend his step before he could place his right foot on the lowest of the steps up to the front door. As he placed his right foot on the lowest step his foot slipped sideway to the right, off the step, and went into a hole near the end of the right hand side of the steps; this hole was, it seems fairly certain, an excavation for the concrete footings of the steel supporting the steps. Mr Thomas twisted to the right and fell forward onto his knee and his elbow and felt immediate back pain. After his fall he saw that there was some wet mud on the lowest step. 8 There were two other holes at the foot of the steps, one in the centre and one on the left hand side. At each location there was a supporting steel structure. Mr Thomas did not see any of these three holes before he stepped across the mound. The mound was somewhere about 10 centimetres in height and ran across the width of the steps, which was between 1.5 and 1.7 metres. The mound was about 30 centimetres away from the lowest step. Cross-examination established that Mr Thomas did not notice the mounds of dirt near the bottom of the steps when he was at the building on 13 March 2001. 9 The substance of the Trial Judge's reasons for finding in favour of Mr Thomas appears in the following paragraphs (Red 27-30): 1. The plaintiff attended at the site on 13 March 2001 on two occasions. On the first occasion he became generally familiar with the premises and the carpeted area to be cleaned. He accessed the premises on that occasion by a ramp on the right hand side. He did not use the front entrance. 2. He was given a key to the front door only. He was not directed to use only the ramp on the right hand side of the building, nor was he directed not to use the front entrance. 3. It is apparent that the incident occurred in the course of a wet period of weather. In addition earthworks had been undertaken in the former paddock for the siting of the idea centre. The ground had also been disturbed by motor vehicles, including trucks. There was mud in the area. 4. Excavations for footings for the steps had been left unfilled after supporting posts had been embedded in concrete. The depth from the ground to the concrete was approximately 20 centimetres. 5. The holes in which the posts had been placed were obscured by two physical features, firstly they were partially covered by the bottom step in the set of steps leading up to the front entry. Secondly they were obscured from view by mounds of dirt which had been removed during the excavation of the holes. According to both the plaintiff and Mr Ralston the holes were not visible until one stood directly over them. 6. This is not a case where the plaintiff walked into, or tripped on a readily visible defect, or hazard placed in his path of travel. This is not a case where the plaintiff was even proceeding in the direction of the hole. His foot slipped into the hole as a result of a combination of factors, that is that the step was dirty and muddy and secondly the plaintiff was required to step over a mound of dirt in front of the step in a stretched fashion leading to instability as he placed his foot on the step. 7. The plaintiff conceded he was aware of the need to act with care in such circumstances. Criticism of his taking no direct route from the rear of the van to the left hand side of the steps is unfounded. It is explained by the plaintiff's evidence that he walked the length of the steps and then stepped over the mound at its lowest point. This evidence demonstrated that he not only was aware of the need to take care but he in fact exercised care in selecting a point at which to stretch in his step over the mound and on to the bottom step. The criticism of the plaintiff's decision to use the front door rather than the ramp was also unfounded having regard to the plaintiff's explanation of his method of work and of the preference to leave the machinery outside the building so as to avoid causing damage or marking to the carpets that he was cleaning. 9. The plaintiff slipped on the first muddy step, this step was muddy notwithstanding that the plaintiff arrived early in the morning and no other footsteps could be seen indicating that he was probably the first to arrive at the site. This leads to the inference that the steps had been left uncleaned overnight as had the mounds of dirt and the uncovered voids at the foot of the steps. 10. The mud and dirt on the steps caused the loss of traction by the plaintiff's right foot and it slipped into the unguarded, unfilled void at the foot of the step. These circumstances led to the injury to the plaintiff. It was argued that the plaintiff's evidence that he later placed a board on the steps to assist him in moving his machinery to the landing at the top of the steps indicated that there was a method by which he could have dealt with the situation that faced him. However, at the time the plaintiff took his first step on to the stairs in front of the premises he did not know of the void at the foot of the steps. 11. In case I have not made it obvious already, I find on the evidence of both the plaintiff and Mr Ralston that the hazard presented by the holes, or voids, was not obvious. No evidence to the contrary was called from the defendant. Unproved propositions put to witnesses in cross-examination do not establish the contention argued for, namely that the holes were an obvious hazard. 12. In the circumstances where the defendant was the occupier of the premises and had control over them, and had allowed voids at the foot of the steps to remain uncovered, and obscured from vision by mounding of dirt in front of the steps, without warning the situation must be described as highly unsatisfactory. 10 The judgment also states (Red 21-22): He said he was wearing shoes which he described as street wise runners which had a strong grip sole. These were the shoes that he normally wore. The step on to which he had placed his foot he described as dirty and muddy. The hole into which he slipped, he said, appeared to be a footing for the stairs. It was apparent from further evidence that the hole had been excavated for the purpose of pouring concrete into which a support for the stairs had been embedded. After the concrete had been poured and the support embedded in the concrete, the hole had not been refilled. The plaintiff said that the depth of the hole from ground level was about 20 centimetres. The distance from the first step to the ground was about 30 centimetres. 11 Findings by the Trial Judge in relation to the holes where there had been excavations reflect attention which had been directed to them during the hearing. In my opinion the excavation holes do not have the significance which the Jennings' counsel seems to have attributed to them at the trial. Mr Thomas did not see the excavation holes: but although with hindsight it is obvious that they presented a hazard, it was not a hazard which he encountered, as his slip and fall came when he took an extended pace and stepped on wet mud on the lowest step; he did not step into an excavation hole. When his foot slipped off the right hand end of the lowest step it went into an excavation hole, and this might well have made his injury worse than it would otherwise have been; but it is not the fact that he stepped into an excavation hole which he had failed to see.

12 Her Honour also said: (Red 31) I have reached the conclusion that it was foreseeable in the circumstances of mud and water on the steps to the front entrance of the premises that a risk of slipping existed. Further, leaving voids in any area of pedestrian activity which the foot of a set of stairs inevitably must be, also created a foreseeable risk. 13 At Red 32 Her Honour said: As far as preventability is concerned, it might perhaps be less than reasonable in the conditions of this site to insist that no mud or dirt remain on the steps themselves, but at least the defendant could, and ought to have ensured that conditions were such that persons using the stairs were not at risk if the mud or dirt caused them to slip. The situation could have been avoided if the holes had been filled and the mounds of dirt removed making straightforward access to the stairs possible. Having rejected the claim that the hazard was obvious, and having noted that the plaintiff gave evidence that he in fact used a level of care in approaching the steps, the claim of contributory negligence is rejected and I make no finding of contributory negligence against the plaintiff. 14 The situation described by Mr Thomas and accepted by the Trial Judge can be readily interpreted as showing that three holes had been excavated for concrete footings for the steel supports, that the mounds of dirt consisted of the excavation spoil, and that as work progressed it was likely that at some time in the near future the excavation spoil would be put back into the holes. As there had recently been a lot of rain, the mounds were wet. It is not surprising that there was some wet mud on the lowest step. 15 Nothing in the findings or evidence suggests any reason why the mounds of dirt were in the position in front of the steps, except that it might be that the most convenient thing to do when excavating for the footings was to side-cast the spoil immediately beside each excavation. However convenient that might be, it must be an extremely simple operation to side-cast the spoil to one side of the steps (instead of immediately beside each excavation), or to remove it with a spade or a rake to one side so that it would be conveniently available when the time came to fill the excavations, and at the same time not to be in the path of persons approaching the steps. Removal of the spoil to one side would have left the rough paddock surface as the available access to the steps. 16 In her Honour's reasons the Trial Judge mentioned some of the matters with which Mr Thomas had been confronted during a lengthy cross-examination. Cross-examination confirmed that he understood the need to proceed with care so as not to expose himself to injury and to keep a proper lookout when taking equipment from his van to the site. He also agreed that he was required, in the course of taking care, to adopt a route which did not expose him to injury. Her Honour said: (Red 23) Much was made of the fact that the plaintiff had walked to the right hand side of the steps before stepping over a mound rather than accessing the building from the left hand side. … the plaintiff's explanation … was that he looked for the lowest point of the dirt mound to step over before moving on to the steps.

In my opinion there is no room for criticism of Mr Thomas in respect of his walking to the right hand end of the steps, for the reason which he gave, that is that he looked for the lowest point of the dirt mounds to step over. 17 The Trial Judge reviewed circumstances which it had been contended had the effect that Mr Thomas' account of the events should not be accepted, including what were claimed to be inconsistencies in descriptions of the events which he had given in medical histories. Notwithstanding this contention her Honour accepted Mr Thomas' evidence.

18 The Trial Judge also in her Honour's judgment reviewed the evidence of Mr Ralston, a brick-layer, who is an acquaintance of Mr Thomas and was working in a building behind the Ideas Centre at the time. Mr Ralston's evidence generally confirmed Mr Thomas' evidence about the condition of the site, in some respects with more detail.

19 The Trial Judge went on to deal with contentions about the responsibility of Our Town Carpets as Mr Thomas' employer. This subject was embarked on as an illustration of the position and liability of Jennings, and Our Town Carpets was not a party to the proceedings. The Trial Judge's observations show that her Honour was of the view that there had been no breach of duty by Our Town Carpets. 20 I see the Trial Judge's reasons as meaning that her Honour disposed of the case on the view that, from the point of view of Jennings as occupier of the Ideas Centre and worksite, there was a foreseeable risk of injury to persons approaching and using the steps for access to the front door which was presented by mounds of wet spoil and by mud on the lowest step, and the reasonable response by an occupier to that foresight was to clear the mounds of spoil into the excavations or to one or other side of the steps where they would be available when they were needed again, and to clean the steps. I see nothing difficult or abstruse about a decision that an occupier of a worksite was under a duty of care which required it to clean access steps to the worksite and remove tripping hazards from the path of access. Keeping access ways clean and tidy is an elementary requirement for a worksite. 21 The primary position taken by counsel in support of the appeal was to the effect that the Trial Judge was in error in not having regard to the particular position of Mr Thomas as a skilled tradesman as an element for consideration when deciding whether there was a duty of care; and this contention extended to consideration of what was the reasonable response to foreseeability of risk of injury. In a related submission Mr Thomas' being a skilled tradesman was put forward as showing that any negligence of Jennings was not causative of the injury. The form of submissions reflected a characteristic difficulty of the law of negligence in assigning relevant aspects of the events to particular parts of the array of questions which arise. 22 The Trial Judge found that Mr Thomas was a skilled tradesman. Counsel for the appellant contended to the effect that the question whether a duty of care was owed to Mr Thomas was not addressed in the context of the specific circumstances of this finding. It was contended that for this reason the Trial Judge had not posed the question of duty of care in the terms of the test as established in Romeo v. Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 438 (Kirby J): the duty of care owed by Jennings had to be "appropriate to the nature of the land or premises entered and to the relationship which exists between the entrant and the occupier." 23 In developing these submissions counsel appeared to me to treat the law of negligence relating to the duty of occupiers and the law of negligence relating to the duty of persons in control of work operations towards employees or contractors participating in the operations as discrete subjects. In my opinion questions of foreseeability of risk, standard of care or scope of duty and breach should not be approached as if occupier's liability and the liability of a person in control of a workplace were in separate compartments. Jennings was both the occupier of the worksite who had control of the access to it, and the person in control of work operations at the worksite; where there are elements of both in the facts, the questions which arise have to be addressed in the light of all the facts.

24 It was further contended that the Trial Judge did not consider the issue of duty of care in terms of the steps which Mr Thomas could have been expected to take to avoid injury. Counsel contended that the Trial Judge had not brought under consideration, in relation to whether there was a foreseeable risk of injury, the fact that Mr Thomas and persons in his position were to be assumed to exercise reasonable care for their own safety. In oral submissions counsel said to the effect that Mr Thomas was and should reasonably have behaved as an experienced carpet cleaner used to carrying bulky equipment into premises, and that in doing so he had to satisfy himself that he could get access with safety. It was further contended that the appropriate test for access is what was acceptable to and accepted by Mr Thomas himself when he came to do an expert job, and that it was for him to decide whether or not to use the access, whether to find some other access, or whether to modify the means of access. In this regard the evidence shows that Mr Thomas, who after his injury worked on the job but was unable to complete it, brought to the foot of the steps a piece of board which he took from the work-site of some brick-layers nearby, and laid it so as to form a duckboard over which to bring his heavy equipment. The contention was to the effect that, if he was to use the steps as means of access, he should have taken this measure in the first place.

25 The appellant's counsel pointed out that Mr Thomas could have entered by the front door and then proceeded across the interior of the building, opened the door at the top of the ramp and brought his heavy equipment up the ramp, then through the interior of the building to the landing at the top of the steps outside the front door. It is true that he could have done this, but the possibility casts no light on what Jennings' Manager should reasonably have expected Mr Thomas to do, or what Mr Thomas should reasonably have done about getting access to the building, particularly as he had been given the key to the front door.

26 Giving Mr Thomas the key to the front door was a plain indication that he should use the front door for access and that Jennings knew and expected that he would do so. Contentions in the course of arguments that it was open to Mr Thomas to choose the means of access and that if access by way of the front door was not satisfactory he should have gained access through the ramp and the door on the right hand side are not realistically related to the facts or to what Mr Thomas could reasonably have been expected to do, or what Jennings could reasonably have foreseen he would do. He was given the key to the front door, it was expected that no one else would be there working in the building when he arrived, no one else was there when he arrived, and it was for him to open the front door of the building with the key which was his available means of getting in. In making a decision about what behaviour was reasonable Mr Thomas should not have been expected to do otherwise than what he did. 27 In written submissions references to Mr Thomas as a skilled tradesman were supported by citation of Sydney County Council v. Dell'Oro (1974) 132 CLR 97, but in a supplementary submission counsel moved away from reliance on that case, as it can now be of little authority in view of observations on it in Bus v. Sydney County Council (1989) 167 CLR 78 at 90-91 by Mason CJ, Deane, Dawson and Toohey JJ; those observations have some importance to the present case and I will set them out: Since the decision in Dell'Oro the law has progressed by placing an increased emphasis upon the relevance of the possibility of negligence or inadvertence on the part of the person to whom a duty of care is owed. That possibility is now recognised as being relevant to the standard of care owed by an employer to an employee and as well generally in situations in which a duty of care exists. As was observed by Mason, Wilson, Brennan and Dawson JJ in McLean v Tedman (1984) 155 CLR 306 at 311-12; 56 ALR 359 at 363: It is not an acceptable answer to assert that an employer has no control over an employee's negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law defence … The employer is not exempt from the application of this standard vis-a-vis his employees … The possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk. See also Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR at pp 308-9 The observation that a duty is owed to a person who may inadvertently or negligently injure himself if the duty is breached is not unique to employment situations. Cases of occupiers' liability frequently concern injury involving the inadvertence of the person present on the land concerned; see, for example, Cooper v Southern Portland Cement Ltd (1972) 128 CLR 427 at 449.

28 Counsel developed the references to the position of a skilled tradesman and the responsibility owed to him by referring to O'Connor v. Commissioner for Government Transport (1954) 100 CLR 225 and to the judgment of the High Court at 229; the High Court said, after referring to a conclusion in the decision under appeal that there was no evidence of negligence: This conclusion seems inevitable. The defendant as employer was of course under a duty, by his servants and agents, to take reasonable care for the safety of the deceased by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury. But the party was provided with trestles and plank and nothing was wanting in tools or equipment. The deceased was experienced in his work. It was obvious that a question must exist whether the awning would bear his weight. The party sent down was as "expert" or competent to judge of that simple subject as anybody that could reasonably be sent. Doubtless Blyton, who told the deceased to go, thought that he would work on the roof, but it was left to the deceased and the rest of the party to do the job as they thought fit.

At 230 the High Court also said: The standard of care for an employee's safety is not a low one, but in a case such as this the question must be whether any suggested course that was omitted could really be regarded as reasonable. 29 In connection with this submission counsel referred to the following passage from Van der Sluice v. Display Craft Pty Limited [2002] NSWCA 204 at [74] (Heydon JA): [74] A primary difficulty in the plaintiff's position goes beyond the fact that he ought to have perceived the dangers in working very high on the ladder because of his experience in that type of work and on the very site of his injury, and beyond the fact that it would have been reasonable for the defendant to assume that he, as a skilled and experienced contractor in that line of work, would have perceived and guarded against those dangers. The fact that the higher up a ladder one moves the more care one must take for one's own safety is one of those simple facts affecting human existence in the physical world which adults in industrialised societies have learned by the time, or indeed well before the time, they have become adults. It is a fact as fundamental, as elementary, as clear and as well known as, for example, the fact that it is dangerous to behave boisterously near pots cooking on stoves, the fact that broken glass needs to be carefully handled when picked up, the fact that rocks along the seashore can be slippery, the fact that shells in the sand of beaches can be sharp, and the fact that when moving about rubbish dumps one must bear in mind the possibility that rubbish may be lying there. These are matters which no adult need be told about and which any adult can be trusted to guard against the dangers of because it is part of the equipment of all normal adult human beings. All citizens can safely and reasonably assume that each normal adult human being acting autonomously and voluntarily will not incur unnecessary and blatantly obvious risks. The assessment of risk in those areas is for the judgment of each normal adult in the light of the particular adult's capacity. Mr Smink felt that for him it was risky to climb the ladder. The plaintiff did not. But Mr Smink was a backpacker from Holland working in Australia, not a skilled and experienced specialist. In view of the interposition of the judgment of the workmen between the task which the defendant had engaged them for and any risk of injury, the risk of injury was not reasonably foreseeable.

30 Counsel also referred to Richmond Valley Council v. Standing [2002] NSWCA 359 at [26], [29] and [53] (Heydon JA) and to Kolodziejczyk v Grandview Pty Limited (2002) Aust Torts Reports 81-673 at [73] (Heydon JA) where, in a passage deeply enmeshed in the facts of that case Heydon JA showed the relevance to that case of the relative freedom from control of the plaintiff in carrying out a work operation as a subcontractor with an unsecured ladder. 31 The facts of O'Connor's case present no analogy with the present facts; the workman was engaged in removing corrugated iron sheets forming the roof of an awning, decided to go on the awning to do the work, and was killed because the awning could not support his weight. There were means at hand for doing the work required without mounting the structure, and he decided for himself how he would do it. Counsel put forward the passage in Van der Sluice which I set out earlier as a further statement of what was said to be a principle shown by O'Connor's case. 32 I do not find any assistance in O'Connor's case, or in the passage from Van der Sluice, as the matters under consideration are remote from the present facts, in which the choice of means of access and the manner of using the access was not a subject of expertise. Although Mr Thomas was a skilled tradesman, his skill had no particular relation to the use of the means of access, as he was in no different position to another ordinary person. His work was subject to the control and direction of Jennings only in very general ways, such as pointing out which rooms he was to work in, stating when he was to arrive and start work, indicating that he was to use the front door and giving him the key to that door. Mr Thomas had no more ability to bring to bear on those subjects than any other person using the access, and it had been indicated to him in a clear way that the steps and the front door were the means of access that he was to use. To contend that it was for Mr Thomas to rearrange the means of access in some way such as to wash down the steps, or to shovel or rake away the mounds of spoil so that he could reach the lowest step by taking a pace of ordinary length, or that he should have extemporised a duckboard, appears to me to test the facts by departing altogether from standards of reasonableness. 33 It was obviously foreseeable that if mounds of wet spoil were left in position and the steps were not cleaned, while most people who used the steps would be able to negotiate their way without injury, before very long someone would not succeed and would be injured. For a person in the position of Jennings, occupying the Ideas Centre and the access and controlling use of them, consideration of whether and how to respond reasonably to the obvious foreseeability of risk of injury should reasonably have prompted a decision that the spoil should be cleared out of the access way and the steps should be cleaned. It would not be a reasonable conclusion for Jennings to decide that the foreseeable risk to persons using the steps was adequately dealt with by leaving it to contractors who came along to do two hours' work to consider and solve the problem of safe access by clearing away the spoil, cleaning the steps or extemporising a duckboard. Such a line of thinking could not be reasonable, as no one could reasonably expect that it was likely to happen. The occupier's entitlement and opportunity to control the situation by observing ordinary standards of cleanliness and tidiness on a worksite should have far more influence on decision than the expertise or skill of Mr Thomas in the other field of carpet cleaning, which was all but irrelevant to Jennings' duty of care. The Trial Judge found that there was no contributory negligence on the part of Mr Thomas and in my opinion nothing in what Mr Thomas did has been shown to fall short of a reasonable standard of conduct in his own interest.

34 Counsel referred to the observations about the development of the law of negligence in Waverley Municipal Council v. Swain [2003] NSWCA 61 of Spigelman CJ. At [114] Spigelman CJ said: [114] As quoted above, Bus v Sydney County Council identified a change in the law, between Dell'Oro in 1972 and 1986, to the effect that the law has "progressed" by giving greater weight to the possibility of inappropriate conduct on the part of others. It now appears possible to identify a change in the law in the other direction, i.e. greater weight is being given to the proposition that people will take reasonable care for their own safety. (See in addition to the observations in Romeo and Multi-Sport quoted above, Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512 esp at [163] and [355]; Richmond Valley Council v Standing [2002] NSWCA 359 at [54] and [59]-[60] per Heydon JA; RTA v McGuinness [2002] NSWCA 343 at [33] and Burwood Council v Byrnes [2002] NSWCA 343 at [33] per Handley JA; Edith Cowan University v Czatryko [2002] WASCA 334 at [29] per Murray J.) There can be no doubt, in my perception, of the reality of the change in judicial opinion on personal responsibility and assessment of the reasonableness of conduct which Spigelman CJ has recognised. This change appears earlier in shifts in perceptions of what is reasonable behaviour and what is not reasonable behaviour, which may take place without explicit recognition, than in changes in rules of decision. Opinion including judicial opinion on what behaviour is reasonable and what is unreasonable is subject to shifts over decades and generations which are difficult to articulate in a clear way, but can be recognised by those who have recollections of the state of opinion in earlier decades. Changes over longer periods as revealed by the Law Reports can be quite astonishing: see McFerran v. Randle (1903) 3 SR (NSW) 445; and Mountney v. Smith (1903) 3 SR (NSW) 668 in which Pring J said, at 671: It is contended that the evidence is admissible on the ground of authority on the part of the barmaid to direct male customers to the places of convenience. I decline altogether to lay down a rule of law which would lead to such indecency.

Owen J spoke to similar effect at 670. A shift of opinion can be expected to have more influence on fact finding and perceptions of reasonable behaviour and to have it sooner than the influence it has on legal doctrines.

35 Counsel contended that it was for Mr Thomas as a matter of personal responsibility to inform and satisfy himself that the access provided was appropriate, and if it was not he should either do something about it himself or require it to be done. Counsel contended that the principle of taking responsibility for one's own actions caused a proper analysis of the case to proceed along the basis that it was not foreseeable that Mr Thomas would do what he did.

36 Change in recent years in judicial opinion and approaches to personal responsibility and assessment of the reasonableness of conduct have not produced a rule or an approach to personal responsibility in which persons who are careless, inadvertent or irresponsible are outside the law of negligence. To take an extreme illustration, there has been no retreat from the view that motorists owe a duty of care to other road users even if the road users are drunk; see March v. E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 520, 537, and Bus v Sydney County Council at 90-91. A significant new turn in the law of negligence was taken in Australia in Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 CLR 479, but in my understanding although the subdivision of Occupiers' Liability Law into categories has ended there has been no major change in the view taken of the relative responsibilities of occupiers and of persons who use premises which occupiers make available to them although some defect or hazard is observable. There has not in my opinion been any evolution towards a principle in which an occupier is only liable for concealed dangers, and hazards which can be observed can be left to be dealt with by the entrant. The law cannot evolve to such a rule because to do so would be to depart from application of standards of reasonable behaviour, in a context where occupiers are able to carry out work directed to safety, while entrants typically have no right and little opportunity to alter the state of the premises. 37 As appears from the passage from Bus v Sydney County Council which I cited earlier, it has for long been well established that knowledge by an entrant of a danger may not excuse the occupier, and that the occupier's duty may not be discharged by giving warning of a danger. The classic position was explained fully and clearly in AC Billings & Sons Ltd v. Riden [1958] AC 240 by Lord Reid at 250-253. His Lordship said at 250 "There may be many cases in which warning is an adequate discharge of the duty … but there are other cases when that is not so" and illustrated this view by reference to case law, commencing in 1848. At 252-253 his Lordship said: The conclusion to be drawn from these cases appears to me to be that there is no magic in giving a warning. If the plaintiff knew the danger, either because he was warned or from his own knowledge and observation, the question is whether the danger was such that in the circumstances no sensible man would have incurred it or, in other words, whether the plaintiff's exposing himself to the danger was a want of common or ordinary prudence on his part. If it was not, the fact that he voluntarily or knowingly incurred the danger does not entitle the defendant to escape from liability.

38 In my understanding this view has never been departed from by the High Court of Australia; and its continuance is in no way inconsistent with the profound change effected by Australian Safeway Stores Pty Ltd v Zaluzna. In David Jones Ltd v. Bates [2001] NSWCA 233 at [17] to [19] Davies AJA referred to a number of recent instances which illustrate that the view in AC Billings has not been departed from. 39 Mr Thomas did nothing which indicates that he was knowingly incurring a risk, engaging in a risky activity or behaving in a foolish or imprudent way, and a development of the law towards higher standards of personal responsibility does not appear to me to have any impact on the finding for Mr Thomas or on the present case. 40 In the context of Occupiers' Liability Law I made observations on this development in Turnbull v Alm & Anor [2004] NSWCA 173 at [42] in these terms: [42] In Waverley Municipal Council v. Swain [2003] NSWCA 61 at [114] Spigelman CJ noted decisions from which it is possible to identify a change in the law in the direction of greater weight's being given to the proposition that people will take reasonable care for their own safety. This is a proposition for consideration, with other considerations which present themselves when addressing the succession of questions which a negligence case raises, including the question of reasonable response to foresight of risk: it is not a rule of law and does not impose a clear or "bright line" limit to responsibility. Allowance must be made for inadvertence: Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512 581 [163] and a shopkeeper owes a duty of care even to careless customers: see David Jones Ltd v. Bates [2001] NSWCA 233 at [17] to [19] (Davies AJA) and authorities there cited.

It remains the law that allowance must be made for inadvertence and that an occupier owes a duty of care even to careless entrants. 41 I do not think that Mr Thomas' conduct should be classified as inadvertence; when he encountered an obstacle in his path he endeavoured to deal with it by moving to the right hand end of the steps where the mound was the lowest and taking an extended step to reach the lowest step. His behaviour was not, to my mind, careless, inadvertent or irresponsible and did not enhance the risk of inquiry. For most people using the steps, such a manoeuvre would have worked and the risk would not have materialised, but the risk was nonetheless foreseeable and real and for him it did materialise. It could be called a misjudgement: it was just the sort of misjudgement which was likely to involve somebody sooner or later with the access in the state it was. 42 Where an entrant has been injured when encountering a hazard, stringent scrutiny of the entrant's response to a hazard which should not have confronted him will not lead to the answer to questions of foreseeability of risk, reasonable response of the occupier to that foreseeability or causation. A misjudged or ineffective response is the realisation of the foreseeable risk, and unless the entrant's behaviour has been irresponsible or otherwise unreasonable, or shows conscious acceptance of risk, it would be a departure from relevance and principle to dispose of liability by close scrutiny of the response.

43 The appellant's counsel raised several other points which do not require detailed disposition. One was to the effect that control of the premises passed to Mr Thomas when the key was handed to him. There is no substance in this contention. What that event shows is the exercise by Jennings of control over access. Another was to the effect that an exact reading of Mr Thomas' pleadings showed that it was not alleged that Jennings was the occupier of the access to the steps. Accordingly Jennings' duty care did not extend to the access. This was supported by reference to Gould & Birbeck & Bacon v. Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 517. This is a case from an era when pleadings were accorded importance and strictness which are no longer appropriate. Yet it supports flexibility, not rigidity. At 517 Isaacs and Rich JJ said: But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly bought out, it is impossible for either of them to bark back to the pleadings and treat them as governing the area of contest. 44 There is no reason in substance why Jennings' duty of care would not extend to access to the steps from the road through the paddock on which the building was constructed. If this contention had any substance its correct expression was to maintain objection to all evidence of events that happened outside the area of occupancy described in the pleadings; if this course had been taken at the hearing there could be no doubt that an amendment of the pleadings would have followed, and the case would have proceeded as it did. There is no sign that this view of what the pleadings meant had any effect on the conduct of Jennings' case, or on the course of the trial. 45 In another submission Jennings' counsel claimed that the fact that Mr Thomas was carrying 15 metres of vacuum hose was in some way significant. That element of the facts has no importance in my opinion, as there was no reason to suppose that carrying the hose increased any danger or contributed to his slip and fall, by being heavy or unwieldy, by upsetting in his balance or in any other way. The people attending the building while work was in progress would include other contractors who would carry their equipment to the building; this was just what Mr Thomas should have been expected to do. His carrying the hose is an unimportant fact. 46 In my opinion no ground has been shown on which the Court of Appeal should disturb the Trial Judge's conclusions on liability. 47 Senior counsel for Jennings made a number of submissions on the quantum of damages. Ground 19 of the Notice of Appeal is as follows: 19. Her Honour erred in not finding that any incapacity of the Respondent was a partial incapacity only, making the Respondent unfit only for "activities involving heavy lifting, excessive bending and excessive twisting." 48 In the judgment the Trial Judge reviewed at length the evidence relating to damages, including evidence on Mr Thomas' pre-accident condition, and on the impacts of the injury on him; the Trial Judge accepted Mr Thomas' evidence (Red 33). There are findings to the effect (Red 34) that before the accident Mr Thomas had been strong, outgoing and confident, calm and rational, and as an illustration of his physical strength he had been able to ride a bicycle for 20 kilometres a day over 15 years and weighed about 92 kilograms. His evidence shows many adverse effects of his injury and it is clear that the Trial Judge accepted them. 49 Mr Thomas' general health and physical strength are far different to his previous condition. He at one time gained considerable weight, but later reduced weight to some extent. He became depressed, which adversely affected his relationship with his wife and children and led to him having antidepressant medication regularly. He has been having many psychological counselling sessions, and the evidence of the psychologist Ms Pritchard is to the effect that he would continue to benefit from psychological counselling on a fortnightly basis and at a later stage less frequently. He had one hospital admission after a panic attack. He had two months' attendance at East Maitland Private Hospital for group sessions, counselling and directions in relaxation for pain management. He has continuing back pain, which it was accepted is still constant. His sitting tolerance is one hour and when he stands up after sitting for this period, he will be in great pain. He can walk for 40 minutes before pain is increased. He can no longer run, or ride a bicycle. He continues to have physiotherapy twice a week and hydrotherapy three times a week. The hydrotherapy caused a skin ailment, which is itself painful. He continues to take antidepressant medication, Panadeine Forte for pain relief and cream for his skin ailment. A surgeon has discussed the possibility of a double fusion operation with him; he has thought about it and decided not to proceed with it at this point. 50 Mr Thomas has encountered major financial problems since his accident and this has placed strain on his family relationships. He complained of erectile problems which had complicated his personal relationship with his wife; medication has helped him but he still has some restrictions. His wife has increased her hours of work to provide financially for the family, while Mr Thomas does most of the housework, takes his children to school and generally adopts a househusband role.

51 In a work trial of about 11 weeks commencing in October 2001 he could only achieve 16 hours' work per week in measuring up houses and preparing quotations for another carpet layer. In the work trial he had difficulties getting out of the car and being on his feet for the time required to do the work. He has difficulty in work which involved driving as he has difficulty getting in and out of a normal sedan vehicle because of the position of the seat. He can use his van with less discomfort. He had done some voluntary work for the Salvation Army, and currently holds a voluntary position in Rugby League administration; for this he receives a small honorarium. 52 Before working as a carpet cleaner, Mr Thomas spent many years working in textile technology until he lost his employment with National Textiles business in the Hunter Valley, which closed down in January 2000. While working in the textile industry he obtained a number of qualifications and showed ability in management functions such as production supervisor, management study and training for which he gained qualifications. He went into the carpet cleaning business with equipment he purchased shortly after losing his employment with National Textiles. There is no corresponding textile industry employment available to him in the Hunter Valley. In Mr Thomas' assessment work in sales is his only option; he has applied for between 20 and 30 positions in sales, obtained one interview but was not offered a position, and continues his search. He has enrolled in a retail sales skill course. Earlier in life he has had no experience in sales. While in the textile industry he showed that he is a person of resource and ability and able to benefit from training. In a passage expressing conclusions her Honour said: Having regard to these materials it is apparent that the plaintiff had suffered a very significant injury to his low back. He is still a young man, 39 years of age. The injury has had a significant impact upon his day to day life and upon his relationship both emotional and intimate with his wife and on his relationship with his children. He has significant restrictions on his physical capacity and will remain significantly disabled.

53 At a later point (Red 44) when dealing with Mr Thomas' earning capacity her Honour found: However, he is restricted in his capacity to drive, and he is restricted in his capacity to sit or stand for long periods, or to undertake any work which would involve bending, lifting or twisting. Notwithstanding the medication that he takes, he is left with a significant amount of pain and discomfort. Thus if the plaintiff is able to find employment to which he can return, in my assessment, this employment is unlikely to be more than on a part-time basis. 54 In support of the appeal it was contended that there was no medical evidence in support of the finding by her Honour that Mr Thomas would remain significantly disabled. Counsel presented an analysis of expressions in the medical reports, and claimed that the terms "remain significantly disabled" adopted by her Honour were not a direct quotation from any medical evidence, although Dr Ghabrial assessed Mr Thomas' permanent impairment of the back at 30 percent. In my understanding her Honour's finding to the effect that Mr Thomas would remain significantly disabled had a basis in the medical evidence, including Dr Ghabrial's assessment about permanent impairment, but was not based solely on the medical evidence but also on the careful account of Mr Thomas' history and experience, his perceptions of his disabilities and limitations on his life and of his pain. The findings that he would remain significantly disabled, and that he would be limited to employment on a part-time basis, are well justified by the evidence. 55 It was then contended that the Trial Judge's disposition of the head of damages of loss of future earning capacity was erroneous. I have referred to significant parts of her Honour's disposition of this issue. It was contended that there was evidence - "a great deal of evidence" - that Mr Thomas was in a position to work in a variety of positions for which he was well suited by training or experience, and references were made to a number of possible kinds of positions including sales, supervisory and management positions, and to his skills, qualifications and state of health. In submissions criticism was offered in relation to Mr Thomas and his case in that he had made no attempt to obtain work as a customer service manager, or as a clerk including a transport clerk. 56 Contentions that Mr Thomas had not taken up appropriate avenues for potential employment were well canvassed in cross-examination and from the terms of her Honour's disposition it appears that they were the subject of submissions at the trial. The Trial Judge's conclusion were not reached without addressing Mr Thomas' history of employment success and resourcefulness; the skills which he exhibited in the past are undoubted. From the Trial Judge's disposition of the case overall it is clear that her Honour thought very little of the asserted prospects of Mr Thomas' obtaining any kind of management or supervisory position; indeed her Honour did not express any endorsement or acceptance of his prospects of obtaining the kind of sales position which plainly it is Mr Thomas' judgment he should seek. In view of Mr Thomas' evidence about his present condition, his suffering from depression, back pain, the continuance of these conditions after some years, and the circumstances, which he put forward and which the Trial Judge accepted, adverse to an active life, it is not surprising that the appellant's submissions depicting an economically successful life as available to Mr Thomas did not find acceptance. In my view these contentions were not well related to Mr Thomas' condition, experience and the limitations on his life and activity which were found to exist. The contentions had little claim on the Trial Judge's attention and her Honour's disposition of them reveals no error. The finding which the Court of Appeal was asked to substitute for her Honour's disposition was a finding that Mr Thomas had suffered no loss of earning capacity; in the plainest way, this disposition of Mr Thomas' claim would not be justified. 57 It was then contended that the Trial Judge erred in using earnings figures of Mr John Campbell, set out in Exhibit L, as a comparable yardstick when assessing Mr Thomas' past economic loss. It was contended that her Honour should have looked at the most recent earnings of Mr Thomas himself as disclosed in his 1999 - 2000 Tax Return. 58 That Tax Return should be used with care. While it showed the income from Mr Thomas' business during the starting up period from February 2000 to the end of June 2000, that is a starting up period and not on its face a good indication of the long term returns of the business. The figures are difficult to analyse without knowing exactly how many weeks they represent but, depending on how much of February 2000 was an income earning period, the figures could be understood as indicating that reliance on Mr Campbell's earnings was if anything conservative. There was very little evidence about Mr Campbell's activities or the respects in which his activities were comparable to those of Mr Thomas. Evidence of Mr Campbell's earnings was admitted without objection or debate, and without any endeavour by the appellant to adduce evidence showing that his earnings were unsatisfactory as a yardstick. The evidence that Mr Campbell's earnings were satisfactory as a yardstick was slight indeed, and if the issue was contentious, an objection to its admissibility should have been the appropriate forensic response. 59 In so far as any conclusion can be built on the Income Tax Return, adoption of Mr Campbell's earnings appears to be somewhat conservative. The Trial Judge further discounted Mr Campbell's earnings before proceeding to a conclusion. Adoption of Mr Campbell's earnings, as discounted, led the Trial Judge to carry out calculations of future economic loss on the basis of a loss of earning capacity valued at $350 per week. In relation to her Honour's other findings relating to earning capacity, this figure can only be regarded as modest and conservative. There is no indication from my general understanding of employment and economic conditions that any element of excess has entered into the assessment. 60 It was contended that the Trial Judge's assessment of general damages at $130,000 was manifestly disproportionate and excessive, and that the Court of Appeal should set that assessment aside and substitute an assessment of $70,000 to $90,000. It was contended that the Court should have regard to awards for high level quadriplegics as to whom counsel asserted, for a young ventilated quadriplegic, $400,000 to $430,000 was as much as has been awarded. It was contended that in relation to Mr Thomas' injuries and condition, $130,000 was excessive and beyond the proper exercise of discretion. 61 This is a field where yardsticks are not available and comparison exercises are very unreliable. The range of conclusions with respect to general damages for pain and suffering which could be reached in relation to Mr Thomas' injuries and continuing condition is quite wide. For the many severe and adverse impacts on Mr Thomas which were established by the Trial Judge's findings, I am of the view that there is no element of excess, and indeed nothing remarkable at all about the assessment of this element of damages at $130,000. 62 In my opinion there is no ground upon which the Court of Appeal should vary the Trial Judge's assessment of damages. 63 In my opinion the Court of Appeal should make the following order: Appeal dismissed with costs. 64 PALMER J: I agree with Bryson JA.

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