Broadspectrum (Australia) Pty Ltd v Farmer

JUDGMENT

1. MITCHELMORE JA: I agree with Griffiths AJA.
2. BASTEN AJA: I agree with Griffiths AJA that the appeal in this matter must be dismissed and that the appellants must pay the respondent's costs. I also agree with his reasons.
3. There are, however, three curiosities about this case which should not go unnoted. They are (i) the identification of the applicable law; (ii) the fact that the appellants were jointly represented; and (iiii) the absence of any payment of worker's compensation.

Applicable law

1. As to the first matter, the plaintiff pleaded and the defendants accepted, that issues of both liability and the assessment of damages were to be governed by the law of the Republic of Nauru, where the accident occurred. In so far as the claim was brought in tort, that was clearly correct. (A claim pleaded in contract appears not to have been pursued.) The choice of law rule operating in Australia, in accordance with Regie Nationale des Usines Renault SA v Zhang, [1] identifies the lex loci delicti, which, in the present case, is the law of Nauru.
2. The next issue was to identify the content of the law of Nauru. The trial judge accepted that "with respect to claims in damages for personal injury, no party sought to identify any relevant difference between the law of Nauru and the common law of Australia, save for the issue of damages for gratuitous domestic assistance". [2] Despite that statement, expert evidence was called which established that the comparison should have been made with English law.
3. The Custom and Adopted Laws Act 1971 (RoN) contains s 4, which relevantly provides: 4 English laws adopted (1) Subject to the provisions of subsection (4) …, the common law and the statutes of general application … which were in force in England on the 31st day of January, 1968, are hereby adopted as laws of the Republic. … (4) The principles and rules of the common law … adopted by this Section may from time to time in their application to the Republic be altered and adapted by the courts to take account of the circumstances of the Republic, and of any changes of those circumstances, and of any alterations or adaptations of those principles and rules, which may have taken place in England after the 31st day of January 1968, whether before or after the commencement of this Act … .
4. The application of these two provisions might have caused some complexity if there had not been agreement that there was, apparently at the present time, no difference between English tort law in 1968 and the common law of Australia. The "common law" of Australia seems to have been taken as the law of negligence unaffected by recent statutes, such as the Civil Liability Act 2002 (NSW) (and similar legislation in other jurisdictions), but subject to earlier legislation, such as the changes to the defence of contributory negligence effected by the Law Reform (Miscellaneous Provisions) Act 1965 (NSW). No doubt that step could be justified on the basis that Nauru law would have adopted the Law Reform (Contributory Negligence) Act 1945 (UK).

Joint representation

1. A further difficulty was concealed by the fact that, at the time of the appeal, though not the trial, the appellants had common counsel. Nevertheless, even at trial they appear to have adopted a common approach as to the relevant legal principles, subject to a cross-claim between them based on the terms of a contract, which did not arise on the appeal. The trial judge (and this Court) were left in a somewhat uncertain position as to whether the standard of the duty of care was that applicable to an employer or to an occupier of premises, or whether they were thought to be the same in England in 1968.

Worker's compensation

1. Although the trial judge stated that there was agreement that "no Australian statute applied to this case", [3] that was not strictly correct, for reasons already noted, in relation to contributory negligence. However, what is more surprising (and unexplained) was that the provisions of the Workers Compensation Act 1987 (NSW) were not invoked in relation to payments of compensation. As is well known, s 9AA relevantly provides: 9AA Liability for compensation (1) Compensation under this Act is only payable in respect of employment that is connected with this State. (2) The fact that a worker is outside this State when the injury happens does not prevent compensation being payable under this Act in respect of employment that is connected with this State. (3) A worker's employment is connected with - (a) the State in which the worker usually works in that employment, or (b) if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment, or (c) if no State or no one State is identified by paragraph (a) or (b), the State in which the employer's principal place of business in Australia is located. …
2. According to the amended statement of claim, the plaintiff was employed by Wilson Security Pty Ltd on "fly-in fly-out" basis. That may have satisfied s 9AA(3)(b). Alternatively, because the amended statement of claim which joined Wilson Security identified its address as in Adelaide, South Australia, s 9AA(3)(c) may have been engaged. Assuming that the relevant connection is with the employer's principal place of business in Australia and that place was South Australia, then there is a similar provision providing an entitlement to compensation under the Return to Work Act 2014 (SA), s 10, in respect of employment connected with that State. If the connection were under par (b) with Queensland, there is an equivalent provision in the Workers' Compensation and Rehabilitation Act 2003 (Qld), s 113.
3. Had compensation been paid, it would have been impossible for the Court to avoid consideration of the interaction between statutory compensation regimes and claims for damages under the "common law in Australia", or even under the laws of England in 1968.
4. None of these considerations affects the outcome of the present appeal: however, they suggest that certain circumstances and the understanding of applicable laws may have rested upon insecure foundations.
5. GRIFFITHS AJA: This appeal is from orders and a judgment dated 28 September 2023, Farmer v Broadspectrum (Australia) Pty Ltd (No. 2) [2023] NSWSC 1076 (primary judgment or PJ). The primary judge, Garling J, gave judgment for the plaintiff (Mr Farmer) against both defendants (now appellants), Broadspectrum (Australia) Pty Ltd (Broadspectrum) and Wilson Security Pty Ltd (Wilson).
6. The proceedings involve a claim for damages for personal injury sustained by Mr Farmer in the course of his employment as a Safety and Security Advisor with Wilson in the Republic of Nauru on 6 November 2016. It is common ground that Wilson was Mr Farmer's employer. Broadspectrum was responsible for inspecting, maintaining and performing repair works at the Regional Processing Centre (RPC) in Nauru, pursuant to an agreement it had with the Commonwealth of Australia.
7. I will summarise the background facts before summarising the primary judge's reasons for judgment.

Summary of background facts

1. Mr Farmer was injured when he tripped and fell down a flight of stairs early in the morning of 6 November 2016. He had just left his accommodation room at the RPC to commence his shift, when he tripped on what was described as an "exposed steel capping on the edge of the top platform" of a flight of stairs. The exposed steel capping was part of an aluminium device known as a "stair nosing". The stair nosing was screwed to the landing at the top of first stair and on the edge of each stair below it. The nosing was as wide as the stair itself and was approximately 50 mm from edge to edge. Each edge had a raised metal lip. In the cavity between the two raised edges, there should have been a non-slip yellow strip held in position by glue. It is common ground, however, that the yellow strip was missing from the frame at the top of the stairs when Mr Farmer tripped. The following photograph of the area was taken shortly after Mr Farmer's fall.
2. The yellow strip at the top of the stairs had been missing for at least one month. A colleague of Mr Farmer, Mr Alexander, used a ruler to measure the height of the lips on the edges of the frame (into which the yellow strip should have been placed) and said that they were a quarter of an inch or 6.25mm. This is to be contrasted with measurements conducted by experts who were retained by the parties respectively. The experts said that, having ultimately examined the actual frame, the depth or height of the lip was only 2 to 2.5mm.
3. The discrepancy between Mr Alexander's measurement and those of the experts is at the forefront of the appeal.
4. I will summarise the experts' relevant evidence within the next section of these reasons.

Primary judge's reasons summarised

1. It is unnecessary to outline all of the primary judge's findings and reasons. That is because, in substance, the appeal relates to the primary judge's findings concerning the cause of Mr Farmer's fall, particularly the height of the raised edge of the frame, and whether it presented a safety hazard.
2. It was common ground that Mr Farmer's claim, which was brought as both a common law claim for damages for negligence and for breach of contract, fell to be determined in accordance with the substantive law of the Republic of Nauru.
3. The primary judge noted at PJ[4] that Mr Farmer pleaded that Broadspectrum was responsible for inspecting, maintaining and performing repair works at the premises and that it was negligent in wrongfully permitting the yellow strip on the edge of the top step to be missing from the aluminium frame. He also claimed that Broadspectrum failed to ensure that the premises, including the accommodation premises, were inspected at reasonable intervals so as to ensure that the steps were safe.
4. At PJ[5], the primary judge summarised Mr Farmer's claims that, as his employer, Wilson was obliged to manage and maintain the accommodation buildings in which its employees were housed. He claimed that Wilson failed to provide him with a safe workplace, including the building in which he was accommodated.
5. The primary judge described the events relating to Mr Farmer sustaining his injuries on 6 November 2016 (from PJ[38]ff). His Honour noted at PJ[47] that "the cause of the plaintiff's fall is a central issue in this case".
6. At PJ[49], his Honour described the aluminium frame at the top of the stair and on each stair below that. He described it as a "non-slip tread of a commonly seen kind installed" and added at PJ[49]: …That non-slip tread had two components: an aluminium frame generally of a "U" shape, and a non-slip strip. The frame comprised a flat bottom component which was attached to the concrete platform or wooden step (as the case may be). That flat component had two raised edges. The flat component was about 2" wide (or 50mm) and each of the raised components at its outer edges were measured by Mr Alexander to be ¼" (or 6.25mm).
7. It is well to set out PJ[51] and [52] in relation to this subject: Clearly, the non-slip tread was in a defective state in that the non-slip strip component was missing and the remnant aluminium frame presented a vertical hazard of 6.25mm (or so) for a person walking in the direction that the plaintiff was. The plaintiff's final position, as pleaded, on the cause of the fall, was that just as he commenced to negotiate the top of the staircase, the tread on his left work boot caught on the exposed aluminium frame on the edge of the top step of the staircase. The frame was "exposed" because it was missing the non‑slip strip. On all of the other steps in the staircase, a non‑slip strip was embedded into the frame (although evidence demonstrated that such a strip was also missing from a number of other steps in other parts of the RPC).
8. At PJ[54], the primary judge noted that Mr Farmer's evidence was consistent with his pleading in that he said "that leading up to his fall, his left foot had been in its forward motion when it stopped at a point at the top of the stairs as he was starting to descend them". His Honour then described how Mr Farmer changed his initial claim that he had stepped in a puddle of water on the landing above the stairs (see the dark area on the landing in the photograph at [16] above) and then slipped, causing him to fall (a scenario which was suggested to him by others immediately following the incident). In his affidavit filed on 12 September 2018, Mr Farmer said he was wearing Magnum boots which were almost brand new and that he believed "it was my left foot that tripped however, I cannot recall what I tripped on. I just recall my left foot 'stopping' as it was moving forward which then caused me to be propelled into the air, and down the stairs".
9. The primary judge referred at PJ[58] to Mr Farmer's evidence under cross-examination regarding the change in his evidence: In cross-examination by counsel for Broadspectrum, the plaintiff said that he had a clear recollection of being propelled forward and landing on the stairway before coming to rest on the mezzanine platform. He said he fell in a direct forward motion. It was suggested to him that he had no recollection of whether he slipped or tripped or what the sensation of his feet was at all. The plaintiff rejected that proposition. He gave the following evidence: "Q. By that answer did you mean to say that your memory of how it had occurred changed or not? A. Perhaps not changed, I think that what has happened is I had more of a recollection of what happened. I always thought I'd stopped, my foot had stopped, had come to a stop, however, when people were talking and discussing water, I believe that perhaps that may have made me believe that I'd slipped in water. … Q. You then say 'I believe it was my left foot that tripped'. Do you see that? A. Yes. Q. Is it the case that you are not sure which foot tripped? A. No. Q. You are sure are you? A. Yes. Q. Is that because as you sit there now, you have a firm recollection of which foot tripped? A. Yes. … Q. What I am suggesting to you sir is that at no time have you had any memory of your foot stopping, what do you say to that? A. That's incorrect Mr Priestley."
10. At PJ[64] the primary judge described Mr Alexander's evidence regarding his measurements of the stairs using a ruler. As noted above, Mr Alexander recorded that the depth of the slot into which the yellow strip would be embedded was a quarter of an inch. Mr Alexander also said that he had tested the top step to establish whether there was a trip hazard and that on two of three occasions he found that the tread of his boots (which were said to be like Mr Farmer's boots) "locked" into the gap created by the missing yellow strip and that this "checked" his forward progress.
11. After describing the evidence relating to the inspection system which the defendants had in place, the primary judge concluded at PJ[85] that, whatever system of inspection was in place and being undertaken by relevant personnel, "it was wholly inadequate to detect what Mr Williams [who was Wilson's Health and Safety Environment Co-ordinator] himself said was a significant hazard to the safety of people using the staircase which required rectification". His Honour added that the failure to detect the missing yellow strips (of which there were eight in total, including the one involved in Mr Farmer's accident) confirmed his conclusion that "the safety inspections were entirely inadequate to ensure a safe accommodation block and to identify and either repair or remove the features of the accommodation block which constituted a significant hazard to peoples' safety".
12. From PJ[87]ff, the primary judge addressed the question whether the absence of the yellow strip was causally related to Mr Farmer's fall.
13. His Honour noted that while Mr Farmer's memory of his account of the fall was challenged by senior counsel for Broadspectrum, no different version of the facts was put to Mr Farmer to suggest any other possible cause of the fall.
14. At PJ[101], the primary judge described Mr Farmer as "an impressive witness who gave truthful evidence". His Honour added that: There was nothing about the manner of his giving evidence which caused me to doubt his truthfulness or the overall accuracy of his evidence. I accept his evidence as to how he came to fall - namely that he tripped on the aluminium frame at the top of the flight of stairs, which frame did not contain any non-slip strip which it ought to have.
15. His Honour then described the expert evidence, being that of Mr Grant Johnston (for Mr Farmer) and Professor John Cooke (for Broadspectrum and Wilson). Both experts gave several reports individually, as well as a joint report. Each prepared a supplementary statement after they had an opportunity to examine the actual aluminium frame with the missing strip.
16. The primary judge summarised Mr Johnston's evidence concerning the cause of the fall at PJ[109]-[111]: In oral evidence, Mr Johnston was asked to assume the correctness of the plaintiff's account that, as he stepped onto the edge of the landing, he felt his left foot stop and then he fell, tumbling forward. Of that account, Mr Johnston said this: "It is more of a foot entrapment and stumble as opposed to any of [the mechanisms described in his report] and their traditional form is slip, trip or a misstep." In his evidence, Mr Johnston noted that he had available to him the actual aluminium strip which had been on the landing at the top of the stairs at the time of the plaintiff's fall. He used that strip, which was identical but had a yellow insert in it, to test a boot which he understood to be of the kind which had been worn by staff. The boot which he used, he understood to have been provided by Mr Alexander. He concluded that the description of the fall given by the plaintiff was consistent with a mechanism whereby the boot which he inspected was arrested by the edge of the aluminium frame. He said in such a circumstance, because when a foot stops the weight of a person is going forward, a fall can follow. A groove of the kind he observed would impede that forward motion and the tread would hold the boot in place. He said that that was the mechanism he concluded contributed to the fall. Mr Johnston was cross-examined, and it was suggested to him that, having regard to the photographs of the scene and of the relevant items, it would be extremely unlikely for the leading edge of the aluminium frame to impede the forward movement of the boot at all. He disagreed, saying that in his examination and testing on his test equipment, such a phenomenon had clearly happened. He said that the groove he had identified in his reports had kept catching.
17. His Honour noted at PJ[112] that Professor Cooke said that he did not think that the mechanism of the tread of the boot catching in the aluminium frame constituted some risk of misstep or trip (i.e., contrary to Mr Johnston's view).
18. His Honour then set out the following extract from Professor Cooke's cross-examination (emphasis added, and noting that the primary judge did not set out the entirety of the extract below): PJ[113] In cross-examination, he agreed that the absence of the yellow strip meant that the remaining aluminium frame, in a dry area, created an unevenness in the area where a foot was likely to land prior to a person descending the stairs. He also agreed that there was a clear possibility of a shoe being slightly arrested by the absence of the non-slip strip. He also gave this evidence: "Q. It doesn't take more than a relatively slight arrest for somebody to lose the mechanism of rhythm that they are adopting as they leave the landing to go down the stairs does it. They're expecting their foot to follow through. It suddenly stops. They lose their balance, they lose their orientation, and then they tumble. Do you agree that's a likely scenario? A. In the - if the obstruction is sufficient, that can occur. [Q. I'm sorry. I didn't mean to interrupt you, sir. I beg your pardon. A]. If the obstruction is sufficient then that could occur, certainly. …"
19. It is important to note how the primary judge expressed his ultimate conclusions at PJ[115]-[116] concerning the cause of the accident: My conclusion from the expert evidence is that if one accepted the plaintiff's account, and had regard to the reasoning of Mr Johnston, and the application of general principle by Professor Cooke in the evidence recently described, then the fall which caused the plaintiff's injuries was caused by the presence of the raised lip of the aluminium frame which impeded the forward progress of the plaintiff with his heel becoming caught on that unevenness which constituted, in my view, an obstruction, which was sufficient to amount to a safety hazard. In those circumstances, I accept the plaintiff's evidence and I accept that his fall was caused by the presence of the aluminium frame without the non-slip strip in it which impeded the progress of his boot as he reached the top of the stairs intending to walk down them.
20. It is notable that these conclusions do not involve any reference to Mr Alexander's evidence or his measurement of 6.25mm.

Notice of appeal

1. The notice of appeal filed on 22 December 2023 contains the following appeal grounds: 1. The primary judge erred in finding that the alleged hazard said to have caused the respondent to fall, a raised lip in an aluminium frame, (the lip), was "6.25mm (or so)" in height, when the weight of the evidence, including expert evidence, established that it was only 2 to 2.5mm (true height). 2. The primary judge erred in failing to refer to the evidence which established the true height of the lip. 3. The primary judge ought to have found that the lip was the true height. 4. The primary judge erred in finding that the lip caused the respondent's fall, in circumstances where the evidence did not allow the court to determine the cause of the fall beyond mere conjecture. 5. The primary judge erred in failing to take into account the true height of the lip in determining the cause of the respondent's fall. 6. The primary judge ought to have found that the respondent's case failed for want of proof of the cause of the fall, as an element of factual causation. 7. The primary judge erred in finding that the lip constituted a safety hazard which required the appellants to take reasonable precautions against any risk of harm created by [the] lip. 8. The primary judge ought to have found that the respondent's case failed because the presence of the lip did not require either appellant to take any reasonable precautions, and so neither appellant had breached its duty of care to the respondent.
2. The appellants attached to their outline of written submissions in the appeal a document, as required by r 51.36(2) of the Uniform Civil Procedure Rules 2005 (NSW), which identified the primary judge's factual findings which were challenged on appeal. In brief the appellants claim that: 1. the primary judge's finding that the lip or raised edge was a quarter of an inch or 6.25mm was glaringly improbable in the face of the expert's evidence; and 2. the primary judge should have found that the cause of the fall was not established on the balance of probabilities and ought not to have found that the cause of the fall was the raised lip of the frame, which impeded Mr Farmer's forward progress, with his heel becoming caught on the unevenness.

Consideration and Determination

1. Given that the appellants' challenge to some of the primary judge's factual findings are at the heart of the appeal, the standard of appellate review is that stated in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9. No party suggested otherwise. Thus the correctness standard of appellate review on a rehearing applies and not the deferential standard which applies in appellate review of an exercise of judicial discretion (see also Sun v Chapman [2022] NSWCA 132 at [11] per Leeming JA (with whom Brereton JA agreed) and at [116] per White JA). It is convenient to address the grounds of appeal in categories.

(a) Grounds 1, 2 and 3 (Height of the lip)

1. These grounds relate to what is said to be an error in the primary judge's factual finding concerning the height of the lip in the aluminium frame. They focus in particular on the primary judge's finding that the height of the lip was a quarter of an inch or 6.25mm, as opposed to the figures of 2mm and 2.5mm provided by Professor Cooke and Mr Johnston respectively.
2. There is a fundamental difficulty with this aspect of the appellants' case. It relates to the fact that although the primary judge appears to make a finding that the height of the lip was 6.25mm (perhaps most clearly at PJ[51]), I am not persuaded that the claimed error is a material error. That is because any such error did not form part of the primary judge's central reasoning at PJ[115] and [116] regarding the cause of Mr Farmer's fall. Those paragraphs are set out at [38] above. The reasoning can be broken down as follows: 1. The conclusion the primary judge drew from the expert evidence was that if Mr Farmer's account was accepted, together with the reasoning of Mr Johnston and the application of general principle by Professor Cooke, the cause of the injuries was the presence of the raised lip which impeded Mr Farmer's forward progress when his heel became caught on the raised lip. 2. This constituted an obstruction which was sufficient to amount to a safety hazard. 3. In these circumstances, the primary judge accepted Mr Farmer's evidence that the cause of the fall was the height of the lip, with the yellow strip missing from it, which impeded the progress of Mr Farmer's boot as he commenced his descent down the stairs.
3. As emphasised above, this reasoning does not depend on an acceptance of Mr Alexander's evidence regarding the height of the lip. Rather, the primary judge's ultimate findings regarding the cause of Mr Farmer's fall and injuries was based upon his Honour's assessment of the reasoning of Mr Johnston (which was analysed by the primary judge at PJ[110] and [111]) and the application of general principle by Professor Cooke (as analysed by the primary judge at PJ[112]-[114]), as applied to Mr Farmer's account of how he tripped and fell.
4. For the following reasons, I also consider that the primary judge's reasoning and the factual findings which underpinned it were correct and no appellable error has been demonstrated.
5. As noted above, the primary judge found Mr Farmer to be an impressive witness who gave truthful evidence. This positive credibility finding is not challenged. The appellants submitted, however, that a distinction should be drawn between Mr Farmer's credibility and the reliability of his evidence. They submitted that it was necessary to test the reliability of his evidence against the objective evidence.
6. The relevance of "objective evidence" is accepted and is addressed elsewhere in these reasons. It is difficult, however, to see any substance in the appellants' particular claim that the primary judge erred in not referring to and adopting the experts' measurements concerning the height of the lip. It may be noted that Mr Farmer gave no evidence himself regarding the height of the lip. The measurement of 6.25mm was that of Mr Alexander and it was that evidence which the primary judge must have had in mind when he made his finding at PJ[51]. Significantly, however, that finding was not referred to or relied upon by the primary judge in his critical reasoning at PJ[115] and [116]. Accordingly, I reject the appellants' submission that the primary judge's finding at PJ[51] was material or was "glaringly improbable" because he failed to refer to the experts' measurements.
7. Indeed, it may be inferred from the primary judge's reference in those paragraphs to the reasoning of Mr Johnston and the application of general principle by Professor Cooke (as described at PJ[112] and [114]), that if the primary judge had any measurement of the lip in mind in his critical reasoning at PJ[115] and [116], it was the figures of either 2.5mm or 2mm, as measured by the respective experts.
8. The grounds of appeal relating to causation are addressed in the next section of these reasons for judgment, but it is convenient to deal immediately with the appellants' challenges to the reliability of Mr Farmer's evidence regarding the cause of the fall. First, this Court would be reluctant to interfere with the primary judge's unqualified acceptance of Mr Farmer's evidence having regard to the advantage enjoyed by his Honour as the trial judge.
9. Secondly, having regard to the terms of PJ[101], I consider that the primary judge accepted Mr Farmer's credibility and reliability, as is reflected in his statement that the manner in which Mr Farmer gave his evidence did not cause the primary judge "to doubt his truthfulness or the overall accuracy of his evidence".
10. Thirdly, I would not accept any contention (assuming one to have been made) that the primary judge's unqualified acceptance of Mr Farmer's evidence resulted in a finding which was "glaringly improbable". It is uncontroversial that in the insurance claim form completed by Mr Farmer shortly after the accident he said that he believed that he had slipped on a pool of water at the top of the stairs as opposed to having tripped. When challenged in his oral testimony on the difference between that explanation and his subsequent affidavit and oral evidence that he had tripped, Mr Farmer said that his evidence had "perhaps not changed" but that he had "more of a recollection of what happened" (the exchange is set out at [28] above). He explained that his initial statement as to the cause of his accident was influenced by what he was told at the time by other people. Given the nature of his injuries and the evidence that his injuries caused him considerable pain, the primary judge was justified in not attaching any particular significance to the different, earlier version given by Mr Farmer.
11. In any event, putting what was said in the insurance claim to one side, Mr Farmer consistently and repeatedly said in both chief and cross-examination that he felt his left foot "stop" as it was moving forward over the aluminium frame. Moreover, it is telling that no other explanation for his fall was put to Mr Farmer in cross-examination.
12. Mr Farmer's account of the cause of his fall was supported by Mr Johnston's evidence, particularly that in his second supplementary report dated 29 October 2021. As noted above, this report was provided after Mr Johnston was supplied with the aluminium stair nosing, as well as with what he described as "an exemplar boot to that worn by Mr Farmer at the time of this incident". Mr Johnston noted that the boot he had been provided with was "well worn", as opposed to the boots worn by Mr Farmer which were "in a much newer condition with much sharper edges to each of the tread blocks". Mr Johnston gave evidence that when he held the boot in his hand and moved it across the aluminium frame with the yellow slip missing there was a straight line groove across the tread block towards the front of the boot which caught on the raised lip and prevented the boot from releasing forward (see the photograph below at [74]). Mr Johnston said that "this mechanism was sufficient to distrust Mr Farmer's gait pattern as a result of the exposed edge preventing the boot from releasing and moving forward as Mr Farmer was descending the subject staircase".
13. The appellants criticised Mr Johnston's evidence on these matters in several ways. First, they contended that the boot supplied to Mr Johnston was not the same brand of boot as that worn by Mr Farmer. As the respondent pointed out, however, the significance of this (if any) was never put to Mr Johnston in cross-examination (including his evidence that the tread on the boot he used for the test was well worn and more rounded than would be expected on a new boot such as that worn by Mr Farmer who had only just started work at the RPC). Nor was it taken up in the cross-examination of Mr Alexander, who supplied the boot.
14. Secondly, there was criticism of the mechanism used by Mr Johnston to test how the tread block caught on the lip, involving the use of his hand to provide downward pressure on the boot. However, Mr Johnston was not challenged in cross-examination regarding the validity of the mechanism he used, notwithstanding that he explicitly stated in his report that the mechanism was sufficient, a position which he maintained throughout his cross-examination. Mr Johnston concluded his second supplementary report with the following statement: Examination of the subject nosing and an exemplar boot has confirmed the possibility of the trip mechanism previously identified where the tread block became "trapped" on the edge of the void where the non-slip insert was missing and had not been replaced. It is notable that Mr Johnston's test was carried out using the lip of the actual frame with the missing strip which had been brought to Australia from Nauru. Thus the measurement of the lip was immaterial for the purpose of that physical test.
15. No appellable error has been demonstrated with regard to the primary judge's acceptance of Mr Johnston's reasoning.
16. Turning now to the primary judge's reliance on "the application of general principle by Professor Cooke" as referred to at PJ[115], this seemingly refers to the primary judge's analysis of that evidence at PJ[112] to [114], which may be summarised as follows: 1. His Honour acknowledged Professor Cooke's evidence in chief where he said that he did not think that Mr Johnston's description of the mechanism of the tread of the boot catching in the aluminium frame constituted some risk of misstep or trip. 2. In cross-examination, however, Professor Cooke agreed that the missing yellow strip meant that the remaining aluminium frame in the dry area created an unevenness in the area where a boot was likely to land and that there was a "clear possibility" of a shoe being slightly arrested by the absence of the non-slip strip. 3. In particular, the primary judge referred to Professor Cooke's evidence in cross-examination which is set out at [37] above, where he agreed that if a person was about to go down stairs and expected their foot to follow through, but it suddenly stopped, and they fell, this was a likely scenario "if the obstruction is sufficient". 4. The primary judge also referred to Professor Cooke's evidence in cross-examination regarding the difference between the heel of the boot overstepping a stair and the mechanism of a boot being caught in the aluminium frame.
17. Shortly after Professor Cooke accepted in cross-examination that if the obstruction is sufficient, a person could find that their foot suddenly stops and they could lose their balance and fall (which is referred to at [58(3)] above), there was the following further exchange which confirmed Professor Cooke's acceptance of the possibility of that particular scenario occurring (emphasis added): Q. That if Mr Alexander, in stepping onto the non-skid area as if he was to go down the stairs, found that his foot was arrested so that [t]he natural rhythm was affected of his expected descent, then that would be sufficient to cause someone to tumble over and lose their balance. A. Well, it could be. It would depend on the extent of - to which the movement was arrested.
18. Finally, the appellants seized upon the fact that in the primary judge's core reasoning at PJ[115], he referred to Mr Farmer's "heel" being caught which, as they correctly point out, is unsupported by the evidence.
19. There are two reasons, however, why this reference to the "heel" does not constitute an appellable error. First, fairly read and in context, the use of the term "heel" was a slip on the part of the primary judge. Neither Mr Farmer nor Mr Johnston gave any evidence which suggested that the heel of the boot had caught on the lip. There is, however, a reference in the paragraph of the primary judgment immediately preceding that in PJ[115] to the heel being involved in what was described by Professor Cooke as "an overstep". This may explain why the primary judge used the word "heel" in the very next paragraph, rather than referring specifically to Mr Farmer's evidence that his boot had "stopped" or to Mr Johnston's evidence to the effect that the tread of the boot had caught on the lip.
20. Further support for the view that the primary judge's reference at PJ[115] to the term "heel" was a slip is supported by the fact that in the very next paragraph (i.e., PJ[116]), the primary judge refers to the progress of Mr Farmer's "boot" being impeded, not "the heel".
21. Secondly, and in any event, because the appeal is in the nature of a rehearing, and having regard to the relevant evidence described above, I would not hesitate in adopting and confirming the language used by the primary judge at PJ[115] save for substituting the words "his boot" for the words "his heel".

(b) Grounds 4, 5 and 6 (Causation)

1. As noted, these grounds overlap to some extent with the appellants' challenges to the primary judge's consideration of the height of the lip and its role in Mr Farmer's trip and fall, which have been addressed above. These grounds are particularly directed to the primary judge's acceptance at PJ[101] of Mr Farmer's evidence that he tripped on the aluminium frame and fell. While acknowledging that they do not challenge the primary judge's positive assessment of Mr Farmer's credibility, the appellants questioned the reliability of Mr Farmer's account. For the following reasons, I do not accept the appellants' questioning of Mr Farmer's reliability.
2. First, as to their reliance on the fact that Mr Farmer's account changed from him having slipped on water to stopping or tripping on the frame, I repeat and adopt what is set out at [52] above.
3. Secondly, the appellants rely upon the fact that while Mr Farmer said in his evidentiary statement dated 22 August 2019 that he was "propelled into the air" and then said in his oral evidence that he fell forward, he then added that he landed on his buttocks at some point on the stairway. They also point to the fact that, four days after the accident, when he filled out the insurance claim, he said that he landed on his back and hit his back on the stairs on the way down.
4. For the following reasons, I do not consider that these matters are sufficient to impugn Mr Farmer's reliability. In his evidentiary statement, Mr Farmer gave the following account of the incident at [26]: As I approached the top step I tripped which caused me to fall down approximately 9-12 stairs landing heavily on my back. I believe it was my left foot that tripped however, I cannot recall what I tripped on. I just recall my left foot "stopping" as it was moving forward which then caused me to be propelled into the air, and down the stairs.
5. Mr Farmer then deposed that he was in shock due to the amount of pain he was experiencing. He said that he was unable to use his legs properly, and he experienced extreme pain down in his lower back and the back of his hamstring which extended down to his ankle and foot. He gave unchallenged evidence that he was given an intravenous drip containing morphine, and other pain medication, before being transferred to Nauru Hospital by ambulance. He experienced incontinence around the time of the incident as well as during the ambulance journey to the hospital.
6. These variations in Mr Farmer's evidence and the nature of the injuries he sustained were relied upon by the appellants in support of their contention that, Mr Farmer must have had "very little by way of precise memory of what happened to his feet at the time that he lost his footing". They claimed that the primary judge erred in not assessing Mr Farmer's recollection with "due caution".
7. That contention should not be accepted. I do not believe that Mr Farmer's reliability is undermined by the fact that, under cross-examination, he said that he recalled landing on his buttocks and not merely on his back. This is consistent with his evidence that he was propelled forward and rolled and landed on a number of places, including his buttocks.
8. I consider that Mr Farmer's reliability as a witness is confirmed by the consistency of his repeated evidence that his foot "stopped" as he started to descend the flight of the stairs. This is reflected not only in [26] of his evidentiary statement (which is set out at [67] above), but was maintained by him throughout a searching cross-examination on this issue. Thus, under cross-examination: 1. when it was put to Mr Farmer that he had originally claimed that he had slipped and that his memory had now changed, he said that "what has happened is I had more of a recollection of what happened" and added that "I always thought I'd stopped, my foot had stopped and come to a stop …"; 2. when he was cross-examined on [26] of his evidentiary statement, he clarified that his recollection that his foot had "stopped" occurred within one to two weeks after the incident; 3. Mr Farmer confirmed that, when he filled out the insurance claim form, he did not remember either of his feet stopping on the top landing; and 4. later in his cross-examination, when Mr Farmer was shown a photograph of the stairs and he was asked whether he recognised the photograph to be of the stairway "upon which you slipped or tripped" and "fell", he responded by saying: Yeah, where I tripped, and my foot stopped.
9. The reliability of Mr Farmer's evidence regarding the circumstances of his fall and his boot "stopping" as he passed over the aluminium bracket is strongly supported by Mr Johnston's evidence, particularly in his second supplementary statement.
10. The appellants also contended that even if the primary judge was correct to accept Mr Farmer's account that his fall came after his boot had come to a stop, that was insufficient to prove on the balance of probabilities that the presence of the lip caused the fall. They contended that the possibility of a misstep in which Mr Farmer felt his boot make some contact with the lip was not properly excluded by the primary judge, particularly having regard to Professor Cooke's evidence. They also challenged Mr Johnston's opinions in his second supplementary statement, relying upon the different brand of boot he used; the difficulty of seeing any straight line channel in the tread of the boot that he used for his testing; and his testing of the boot by him applying downwards pressure using his hands as the boot moved over the lip.
11. The straight line channel in the tread of the boot that Mr Johnston used for testing (which was identified by him with a red line) and Mr Johnston testing the boot on the lip are shown in following the two photographs respectively:
12. The appellants' contentions are not accepted. Their criticism that the primary judge ought to have accepted the possibility of a "misstep" having regard to Professor Cooke's evidence, overlooks the fact that, under cross-examination, Professor Cooke expressly acknowledged the possibility that a person could fall if, when the person was about to go down stairs and expected the foot to follow through, where there was a sufficient obstruction which could cause the person's movement to be arrested, it suddenly stopped (see at [58(3)] and [59] above). As to the criticisms of Mr Johnston's tests, I repeat what is said at [55] and [56] above.
13. Similarly, I do not accept the appellants' claim that the primary judge erred by not accepting their contention that falls down stairs for unexplained reasons are common. It is true that, prior to their examination of the actual frame with the missing yellow strip, the experts considered that there were three separate mechanisms within that common experience, namely slipping (on say a puddle of water); tripping; and a misstep. As emphasised, however, having examined the actual aluminium frame with the missing yellow strip and carrying out his test, Mr Johnston concluded that the tread of the boot catching on the lip was a mechanism which was sufficient to cause Mr Farmer to fall. Although Professor Cooke did not address this particular mechanism in any of the reports, in cross-examination he acknowledged that it was possible that this may have been the cause of Mr Farmer's fall (see at [65] above).
14. Finally, the appellants submitted that there needed to be an actual persuasion of the fact that the height of the lip caused Mr Farmer to fall, referring to cases such as Helton v Allen (1940) 63 CLR 691 at 712; [1940] HCA 20. They contended that it is insufficient for there simply to be an inference of an equal degree of probability with other inferences and the evidence went no further here than establishing a possibility that Mr Farmer's injury was caused by their negligence.
15. I do not accept those claims. Having regard to the evidence described above, I am satisfied that the primary judge had an actual persuasion that the injuries were sustained in the manner described by Mr Farmer. After factoring in the primary judge's advantage in observing Mr Farmer give his evidence, I would arrive at the same conclusion.

(c) Grounds 7 and 8 (Breach of Duty)

1. The appellants contended that when regard is had to the relatively small height of the lip, the risk of harm to Mr Farmer should have been characterised as insignificant and not reasonably foreseeable. They relied on Professor Cooke's evidence that the risk was not significant, when he said in his oral evidence in chief that he did not think that the potential for the tread of the boot to catch on the lip constituted a risk of misstep or trip. The appellants also relied upon Professor Cooke's evidence that slightly raised strips are commonly used to reduce the risk of slipping on steps, referring to Professor Cooke's evidence that strips of metal approximately 1.5mm high were used on the stairs at the Sydney Opera House to improve the grip of a shoe on the nosing of a stair.
2. As Mr Farmer pointed out, this claim ignores the evidence of Mr Williams, who was Wilson's Health Safety and Environment Co-ordinator. He gave evidence under cross-examination, which evidence was accepted by the primary judge, that the absence of a non-slip yellow strip created a "significant hazard", because its absence meant that the non-slip portion did not perform its function as a non-slip strip. There is, I believe, much to be said for Mr Farmer's oral submission on the appeal that although Professor Cooke expressed a different opinion, this "is one of those situations where the opinion can be as faithfully and earnestly given as one likes, but where the fact and the view of those on the spot are different, the opinion from the academic would yield".
3. As to Professor Cooke's evidence relating to the use of metal strips on the stairs at the Sydney Opera House, it is difficult to see the relevance of that evidence in the different context of a workplace environment. (The same may be said regarding Professor Cooke's evidence concerning the Guide to Traffic Engineering Practice Part 13 - Pedestrians). I accept Mr Farmer's oral submission that the difference here is that the missing yellow strip presented "an unexpected hazard, an unexpected variation in the standard formation of these stairs". In any event, I do not consider that Professor Cooke's description of those metal strips provides any sufficient comparison with the aluminium bracket here and the dimensions of the lip as measured by either Mr Johnston or Professor Cooke.
4. Finally, the appellants claimed that the absence of the strip was plain and obvious and nothing was required by the occupier to address the risk of harm asserted by Mr Farmer. This claim should be rejected. It is inconsistent with Mr Williams' evidence, as described above.

Conclusion

1. For these reasons the appeal should be dismissed, with costs.

Endnotes

1. (2002) 210 CLR 491; [2002] HCA 10 at [75] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
2. Farmer v Broadspectrum (Australia) Pty Ltd (No 2) [2023] NSWSC 1076 at [18].
3. Farmer v Broadspectrum at [17]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 April 2024