Broadspectrum (Australia) Pty Ltd v Farmer

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

HEADNOTE [This headnote is not to be read as part of the judgment] The proceedings concern a personal injury sustained by Mr Farmer as a result of tripping and falling down a flight of stairs on 6 November 2016 at the Regional Processing Centre (RPC) in the Republic of Nauru. He brought a claim for damages against his employer, Wilson Security Pty Ltd (Wilson), and Broadspectrum Pty Ltd (Broadspectrum), who was responsible for inspecting, maintaining and performing repair works at the RPC. The primary judge gave judgment against Wilson and Broadspectrum, who subsequently both brought this appeal (the appellants). Mr Farmer's case was that he tripped on exposed aluminium capping on the edge of the top platform of a flight of stairs, known as "stair nosing", which had raised metal lips between which there should have been a non-slip yellow strip held in position by glue. It was common ground that the yellow strip was missing from the frame at the top of the stairs where he tripped. Mr Farmer recalled his left foot "stopping" as it was moving forward over the frame, which caused him to be propelled into the air and down the stairs. A colleague of Mr Farmer, Mr Alexander, used a ruler to measure the height of the lip and said that it was a quarter of an inch or 6.25mm. The experts retained by the parties, namely Professor Cooke and Mr Johnston, respectively measured the height of the lip to be only 2 to 2.5mm. On appeal, the principal issues were: (i) Whether the primary judge erred in 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. (ii) Whether the primary judge erred in finding that the lip caused Mr Farmer's fall. (iii) Whether the primary judge erred in finding that the appellants breached their duty of care to Mr Farmer. The Court (Griffiths AJA, Mitchelmore JA and Basten AJA agreeing) held, dismissing the appeal, with costs: As to issue (i) (1) The claimed error is not material 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: at [44]. The primary judge's ultimate findings regarding the cause of Mr Farmer's fall did not depend on an acceptance of Mr Alexander's evidence regarding the height of the lip and instead was based upon his Honour's assessment of the reasoning of Mr Johnston and the application of general principle by Professor Cooke, as applied to Mr Farmer's account of how he tripped and fell: at [45]. (2) The appellants' criticisms of Mr Johnston's evidence were not put to him during cross-examination: at [55] and [56]. It was significant that Mr Johnston's test, which involved him using an exemplar of the boot worn by Mr Farmer and passing its tread over the lip while applying downward pressure, was carried out using the lip of the actual frame with the missing strip. The measurement of the lip was therefore immaterial for the purpose of that physical test: at [56]. No appellable error was demonstrated with regard to the primary judge's acceptance of Mr Johnston: at [57]. As to issue (ii) (3) The variations in Mr Farmer's evidence are not sufficient to impugn his reliability: [67]. As to Mr Farmer's initial account having changed from slipping on water at the top of the stairs to his foot stopping on the frame, the reliability of his evidence was confirmed by his repeated evidence throughout the proceedings that his foot "stopped" as he started to descend the flight of stairs and was supported by Mr Johnston's evidence: at [54] and [72]. Mr Farmer's statement during cross-examination that he recalled landing on his buttocks and not merely his back was consistent with his evidence that he was propelled forward and rolled and landed on a number of places: at [70]. (4) The appellants' contention that an acceptance of Mr Farmer's account, namely that his boot came to a stop, was insufficient to prove on the balance of probabilities that the lip was the cause of his fall was rejected: at [73]-[75]. Their criticism that the primary judge failed properly to exclude the possibility of a "misstep", having regard to Professor Cooke's evidence, overlooked that Professor Cooke expressly acknowledged the possibility that, if there was a sufficient obstruction, a person could fall if, when the person was about to descend and expected their foot to follow through, it suddenly stopped: at [75]. The claim that the primary judge erred by not accepting the appellants' contention that falls down stairs for unexplained reasons are common was also rejected: at [76]. Mr Johnston concluded that the mechanism of the tread of the boot catching on the lip was sufficient to cause Mr Farmer to fall and Professor Cooke acknowledged that that mechanism may be a possible cause of fall: at [76]. (5) The primary judge had an actual persuasion that the injuries were sustained in the manner described by Mr Farmer, having regard to the evidence: at [77]-[78]. Helton v Allen (1940) 63 CLR 691; [1940] HCA 20 considered. As to issue (iii) (6) The absence of the non-slip yellow strip created a "significant hazard": at [80]. The appellants claim that such absence was obvious and that nothing was required by the occupier to address the risk of harm was rejected: at [82].