Caruana v Darouti

Court of Appeal (NSW)|2014-03-28|Before: Emmett JA, Leeming JA, McDougall J

Judgment 1EMMETT JA: This appeal arises out of injuries suffered by the respondent, Mr George Darouti, when he slipped and fell on the driveway of a property situated in Seaforth, New South Wales (the Property). The appellant, Ms Rita Caruana, was an occupier of the Property at the time of the fall and Mr Darouti sued Ms Caruana in the District Court. Mr Darouti also sued Coastline Concreting Pty Limited (Coastline), which had constructed the driveway. 2Coastline did not appear and judgment was entered against it for damages to be assessed. After a trial in the District Court, the District Court found a verdict against Ms Caruana in favour of Mr Darouti and entered judgment against Ms Caruana and Coastline in the sum of $121,560. Ms Caruana now appeals from the orders made by the District Court.

The Circumstances of Mr Darouti's Fall 3The Premises were owned by Ms Caruana's mother, Mrs Antoinette Caruana and, since February 1979, Ms Caruana had lived in the Premises with her mother. Mr Darouti was Mrs Caruana's nephew and therefore Ms Caruana's cousin. 4Mrs Caruana died in Hornsby Hospital on 4 September 2010. Both Ms Caruana and Mr Darouti were visiting Mrs Caruana at Hornsby Hospital on the day she died. After Mrs Caruana died, Ms Caruana and Mr Darouti agreed that they would meet at the Property. They went to the Property separately. Ms Caruana arrived first and parked her car at the foot of the driveway. Mr Darouti parked his car on the street and walked along the street to the top of the driveway. It was a wet day. 5The Property has a driveway descending from the street to the residence erected on the Property. Mr Darouti said that, when he arrived at the Property, he noticed a copy of a local newspaper near the top of the driveway. He picked it up and took about four to five steps down the driveway. His left foot then lost traction and, as he tried to take some quicker steps, he continued to slip. He fell and his left knee hit the ground. Mr Darouti's evidence was that Ms Caruana came up to him and said that "she's sorry and that due to the rain the driveway is very slippery". Ms Caruana did not accept that that version of the conversation. However, the primary judge accepted the evidence of Mr Darouti and that finding is not challenged on appeal.

The Resealing of the Driveway 6Ms Caruana had lived at the Property since February 1979, when she took up residence with her mother. At that time, the driveway consisted of concrete blocks, dirt and grass. It was quite steep. By 2000, Ms Caruana considered that the driveway was in a poor condition and dangerous, particularly in view of the fact that her mother had arthritic knees. Ms Caruana therefore set about selecting a contractor to put a new driveway in place. She ultimately selected Coastline and told Coastline that the driveway had to be safe for her mother to go up and down. Mrs Caruana went up and down the driveway frequently in both wet and dry conditions. The primary judge concluded that no criticism could be made of Ms Caruana for failing to make all proper enquiries with a view to obtaining a competent contractor. 7After Coastline constructed the new driveway, it was not as steep as the driveway that had previously been in place. Some of the driveways in the street where the Property is situated are steeper than the driveway on the Property. The slope of the driveway was approximately 4 at the top and increased steadily to a maximum of about 10 at the approximate location where Mr Darouti slipped and fell. 8After the driveway was put in by Coastline, Ms Caruana walked up and down it many times. She did so in dry conditions, as well as wet conditions, and thought that it had good adhesive qualities. After the driveway was put in, friends regularly visited Ms Caruana and tradesmen also visited on occasion. That happened in both wet and dry conditions and no other person was known to have slipped on the driveway, either before or after the incident on 4 September 2010. 9In August 2001, Mrs Caruana went into care following a fall, when she fractured her hip. She then had early dementia and did not live in the Property after that fall, but did visit the Property occasionally. When she did so, she was able to negotiate the driveway. 10On two occasions after the driveway was constructed, Ms Caruana resealed the driveway. The last occasion when she did so was in 2009 or possibly 2010. Ms Caruana said that she resealed the driveway using the same product that Coastline had used in constructing the driveway. However, the primary judge concluded that Ms Caruana was in error in that regard and that the evidence did not support a finding that Coastline sealed the driveway. His Honour reached that conclusion by reason of the terms of the contract entered into between Coastline and Ms Caruana for the construction of the driveway. 11The contract, which made no mention of sealing, described the works to be done in the following terms: Remove part of existing concrete driveway and replace full driveway with new concrete 100 mm thick and reinforced with F72 steel mesh. Stencil finish. Saw cut where required. His Honour concluded from that description of the works that sealing was not required under the contract and therefore was not employed. On the other hand, a pamphlet provided to Ms Caruana by Coastline concerning "Texcrete stencil pattern concrete" described the process involved in the following terms: Once concrete has been placed and levelled, it is then bullfloated. The stencil is then laid and rolled into the surface. Two coats of colour hardener are applied and trowelled or floated depending on required finish. The stencil is removed to reveal the chosen pattern. Once dry, a concrete sealer is applied to the new surface. The application of Texcrete may vary due to different technique and finishing methods employed by contractors. 12Ms Caruana also gave evidence to the effect that her choice of sealant was based on a recommendation from her local hardware store. Her evidence shifted slightly, in that she did not initially specify that the reason for her using this particular sealant was not only that it was the same one that Coastline had employed, but also that there had been a specific recommendation to that effect by the hardware store. The primary judge did not refer to Ms Caruana's evidence about the recommendation of the hardware store, but his Honour did consider the more relevant issue of whether Ms Caruana had used a non-slip additive, also purchased from the hardware store, on the driveway. If the inference is drawn that Ms Caruana was aware of the warnings on the sealant drum, which are referred to below, such that it became necessary for her to purchase the non-slip additive, then the particular reason why she chose the sealant in question becomes less important. 13Ms Caruana gave evidence that, when she resealed the driveway in 2009 or 2010, she added a material to the sealant that she used. She described the additive as a "grainy, sandy, sort of rough" mixture. She applied the sealant by rolling it on with a roller. The primary judge found that Ms Caruana was aware that, if an inappropriate sealant was applied to the driveway, the surface could be rendered slippery. There were indications that Ms Caruana was aware of the slipperiness that could result from application of the sealant. For example, in cross examination, she said that the surface needed preparation to make sure that it was clear but that now it needed to be done properly because it had deteriorated. She said it needed to be done "just for aesthetic purposes" and that: the sealant really does nothing as far as just making it look good aesthetically. As long as the additive is used to prevent it from being slip free [sic]. [Emphasis added] She said, however, that there was never any loss of adhesion as a result of her resealing the driveway. 14The label on the drum that contained the sealant that Ms Caruana used displayed a warning in the following terms: Not recommended for smooth or sloping surfaces. Addition of a slip-resistant powder may improve pedestrian safety. On another part of the label on the drum, the following appeared: CAUTION. Application of sealant to concrete surfaces will result in reduced slip resistance. On a third part of the drum, it is stated that one coat is "recommended for previously sealed concrete". 15A "Guide for Resealing Concrete Pavements" published by the manufacturer of the sealant used by Ms Caruana contained the following statement: Resealing moderate to steep graded pavements is not recommended. Reduced slip resistance will result. There was no evidence that the guide came into the hands of Ms Caruana.

Opinion Evidence 16The primary judge had before him written reports by engineers prepared for the purposes of the proceedings: Mr Neil Adams on behalf of Mr Darouti and Mr Ron Beckett on behalf of Ms Caruana. Much of the material in the written reports was clearly inadmissible in so far as it failed to satisfy the prerequisites of s 79 of the Evidence Act 1995 (NSW). The written reports dealt reasonably adequately with the training, study and experience upon which certain specialised knowledge of the authors was based. However, neither of the reports demonstrated adequately how the opinions expressed in them were wholly or substantially based on that specialised knowledge. Nevertheless, all of the reports were admitted without objection. 17There was some disagreement between Mr Adams and Mr Beckett. Neither of them gave oral evidence and it is fair to say that little assistance was given to the primary judge in relation to the resolution of the conflict between their respective opinions. The primary judge preferred the opinion of Mr Adams to that of Mr Beckett. There is no basis for concluding that his Honour erred in that preference. 18The reports dealt with the question of the slip resistance of the surface of the driveway. Measurements of the co-efficient of friction on different spots on the driveway were made by Mr Adams and Mr Beckett. Mr Adams tested five areas at the steepest section of the driveway, where Mr Darouti had indicated that he fell. Mr Beckett, on the other hand, focused his testing on only one location near the top of the driveway, where the slope is less steep and where Ms Caruana had indicated that Mr Darouti fell. Since the primary judge preferred Mr Darouti's evidence as to where he had fallen, his Honour found Mr Beckett's evidence to be "not helpful" to that extent. 19Mr Adams observed that the driveway had been treated with a clear product, which he assumed was a concrete sealant. He said that treatment of concrete surfaces by products such as sealants and paving paints can reduce the effectiveness of the slip resistant properties of the underlying surface to which they are applied. He also said that newly sealed concrete surfaces are generally more slippery than unsealed concrete surfaces and that the level of slip resistance provided by sealant tends to increase over time as the product wears and degrades such that the slip resistant properties of the underlying surface are re-established. 20He thus expressed the opinion that the driveway was more slippery at the time of Mr Darouti's fall in September 2010 than it was at the time of his inspection in March 2011. At the time of his inspection, a significant proportion of the product had become degraded and worn away through vehicular and pedestrian traffic, as well as weathering. He expressed the opinion that both the textured and non-textured areas of the driveway would be highly slip-resistant when dry and free of any other potential lubricants such as oil. 21Mr Adams's measurements were made when the relevant sections of the surface were wet with water. He employed a calibrated pendulum device for the purposes of making measurements of slip resistance of the surface of the driveway. He made measurements at five points on the driveway using the pendulum device. Mr Beckett also made measurements at two points. It is unclear whether any of Mr Beckett's points were the same as any of the points chosen by Mr Adams. The primary judge made no finding as to the precise location of Mr Darouti's fall, although he accepted Mr Darouti's evidence that the slip occurred around the driveway's steepest point, about halfway down. Accordingly, the location of Mr Darouti's fall may have been any one of those seven points. It could also possibly have been a different point. 22A table prepared by Mr Adams in his second report indicates that both his and Mr Beckett's individual results, when corrected for the maximum slope of the driveway, ranged from a corrected co-efficient of friction of 0.33 to a corrected co-efficient of friction of 0.52. Five of the seven individual results would be regarded as adequately slip-resistant, when assessed in terms of Australian Standard 3661.1, in that they exceeded 0.40. Two of the individual results from Mr Adams's tests failed to meet the criteria for slip resistance under that Standard, although in Mr Adams's first report, which did not contain Mr Beckett's results, three of the individual results fell below 0.40. However, as I have said, there was no finding as to whether any of those two or three locations was the spot where Mr Darouti put his foot and slipped. 23Both Mr Adams and Mr Beckett made some observations about the non-slip additive that could be used in combination with the sealant. Mr Adams indicated that he was unable to detect any such additive on the driveway and Mr Beckett commented generally that such additives are "very fine" and not "a crystalline asperitic quartz granulated powder". Neither expert's observations were consistent with Ms Caruana's evidence that she had added a "grainy, sandy, sort of rough" mixture to the sealant.

The Primary Judge's Conclusions 24The primary judge found that wet surfaces can be notorious for their potential slipperiness and that that is more so when the surface is sloping. Further, his Honour found, despite her denial, that Ms Caruana commented to Mr Darouti, when he fell, that she was sorry that the driveway was slippery when wet. His Honour found that that she did so because she was aware of that fact and could hardly have made the comment if she was not so aware. However, his Honour did not take the comment any further and did not consider her "sorry" comment to be an admission of negligence or of anything else. 25The primary judge concluded that it was "plainly foreseeable" that persons walking on the driveway when it was wet could slip. His Honour accepted that the fact that nobody had slipped before or since was relevant, but considered that that was "somewhat remarkable". 26The primary judge found, in the light of concessions made by Ms Caruana in cross-examination, that, while the driveway had been resurfaced in late 2009, or possibly early 2010, it needed resealing by an expert at the time of the accident, which was within twelve months of the previous resurfacing by Ms Caruana. His Honour considered that that deterioration in the condition of the driveway was suggestive of some problem with the application of the sealant by Ms Caruana, or with the preparation of the sealant for its application by her, in late 2009 or 2010. His Honour accepted the opinion expressed by Mr Adams that the sealant, if not properly prepared and properly applied, was likely to reduce the frictional properties of the surface. 27The primary judge accepted that there were parts of the driveway that were not adequately slip-resistant, and concluded, in effect, that Mr Darouti had placed his foot on a part of the driveway that was not adequately slip-resistant. There was no factor other than slipperiness of part of the surface that was likely to have caused Mr Darouti to slip and fall. His Honour therefore concluded that Mr Darouti's slip was caused by his placing his foot on one of those parts of the driveway. 28The primary judge found that the condition of the driveway was caused by Ms Caruana's actions in sealing it. His Honour concluded that Ms Caruana was negligent in:

sealing the driveway contrary to the recommendation not to employ the sealant on sloping surfaces, and
applying the sealant without the proper addition of a slip-resistant material. His Honour also found, in effect, that the fact that the sealing needed re-doing by an expert within a short time of its having been done by Ms Caruana was indicative of some underlying problem in the preparation of the driveway or the application of the sealant by her in 2009 or 2010. 29His Honour considered that the risk of slipping and falling was foreseeable for the reasons indicated above and that that risk was not insignificant. His Honour found that the consequences of such a slip could be serious and that a reasonable person in the position of Ms Caruana would have taken precautions against that risk. His Honour found that the available precautions would have included the following:
not applying the sealant at all,
having an expert apply the sealant,
applying the sealant properly with a slip-resistant additive, and
applying the sealant properly so that it would not break down within a short time. His Honour found that, once Ms Caruana had knowledge of the slipperiness of the surface, those "precautions" could and should have been taken. The third and fourth "precautions" are probably no more than the consequences of having the sealant applied by an expert. 30The primary judge also found that a handrail would have been a practical and non-burdensome remedy. That is a possible step that could have been taken against the risk of harm that Ms Caruana had created. However, his Honour accepted that one does not see handrails, generally speaking, at suburban residences and one would hesitate normally to suggest that it was a reasonable remedy required. That observation, his Honour said, needed to be understood in the context of many suburban residences being on the flat and those on hilly slopes probably having non-slip driveways or other means of access. His Honour appears to have made a finding that a reasonable person in the position of Ms Caruana would have taken the precaution of installing a handrail to guard against the risk of harm that she herself had created.

The Appeal 31Ms Caruana's notice of appeal relies on six grounds of appeal. They may be summarised as being that the primary judge erred in:

Finding, in circumstances where no other person had previously suffered misadventure on the driveway in either wet or dry conditions, that Ms Caruana was aware that the driveway was slippery when wet and therefore that it was reasonably foreseeable by Ms Caruana that persons such as Mr Darouti could slip and fall on the driveway;
Finding that the accident was caused by a positive act on the part of Ms Caruana in sealing the driveway with an inappropriate substance and without expert assistance, thereby misdirecting himself as to the applicability of s 5B of the Civil Liability Act 2002 (NSW);
Finding that, in the absence of a regulation, standard or bylaw requiring erection of a handrail on a residential driveway, reasonable care on the part of Ms Caruana extended to taking such action in circumstances where there had not previously been an incident of slipping on the driveway;
Failing to have regard to relevant authorities that ought to have guided his Honour's determination of the scope of Ms Caruana's duty, which ought to have informed his Honour's consideration of the alleged breach of duty of care on Ms Caruana's part as the occupier of a residential property. 32The last ground may be dismissed peremptorily. It is not an error to fail to cite authority for any particular proposition relied on in the process of analysis and reasoning that leads a court to conclude that there has been a breach of duty. The question is whether it can be demonstrated that the court applied a wrong principle in that process.

Foreseeability 33I have had the advantage of reading in draft form the proposed reasons of McDougall J. I agree with his Honour's conclusion, generally for the reasons proposed by his Honour, that the primary judge did not fall into error in concluding that the risk of slipping and falling on the driveway when it was wet was foreseeable by Ms Caruana. 34The foreseeability of the risk of harm depends upon whether it was open to the primary judge to find that Ms Caruana was aware that the driveway was slippery when wet. As I have said, his Honour found that Ms Caruana could hardly have made the "sorry" comment when Mr Darouti slipped unless she was aware that the driveway was slippery when wet. It was on that basis that his Honour concluded that it was "plainly foreseeable" that persons walking on the driveway when it was wet could slip. 35The primary judge appears to have placed particular weight on the "sorry" comment, though it is doubtful that that evidence, without more, would be sufficient to sustain a finding that the risk of someone slipping on the driveway was foreseen. It is also relevant, as his Honour found, that at least since the most recent resealing in 2009 or 2010, no one else had slipped on the driveway. However, that fact is of course not determinative in a finding of negligence (see Francis v Lewis [2003] NSWCA 152 at [57]). 36In any event, as McDougall J points out, there was other evidence, adverted to by the primary judge, that supports a finding of foreseeability. As I have said, there were three separate warnings on the drum containing the sealant advising of the risks involved in its use on a surface such as Ms Caruana's driveway, that is, a sloping concrete surface that had previously been sealed. 37It was open to the primary judge to draw the inference that Ms Caruana was aware of those warnings, not only because of their prominent location on the drum, but also because Ms Caruana had additionally purchased a non-stick additive "to ensure adhesion". She purchased that additive and the sealant at the same time when she visited the hardware shop on 19 October 2009, as recorded on the tax invoice admitted into evidence. 38The significance of the inference that Ms Caruana was aware of the warnings on the sealant drum is that she was put on notice that if she did not take adequate preventative measures, there would be a real risk that someone would slip on the driveway. Clearly, she viewed the application of a non-slip additive as an adequate preventative measure to counteract the consequences of applying the sealant on a surface on which it should not be applied. But if that additive was not applied, or was improperly applied, then the risk of someone slipping on the driveway would not be averted.

Section 5B 39Section 5B relevantly provides that a person is not negligent in failing to take precautions against a risk of harm unless:

the risk was one of which the person knew or ought to have known,
the risk was not insignificant, and,
in the circumstances, a reasonable person in the person's position would have taken those precautions. In determining whether a reasonable person would have taken precautions against a risk of harm, a court is required to consider the following, amongst other relevant things:
the probability that the harm would occur if care were not taken,
the likely seriousness of the harm,
the burden of taking precautions to avoid the risk of harm, and
the social utility of the activity that creates the risk of harm. 40The primary judge characterised the acts of negligence found by him as positive acts and then considered the operation of s 5B of the Civil Liability Act in the present circumstances. His Honour considered that, because the acts were positive acts, s 5B had no application. Nevertheless, his Honour gave consideration to the prerequisites of s 5B and concluded that they were satisfied. 41The language of s 5B indicates that the provision is concerned with laying down prerequisites that are necessary to be satisfied before finding that a person has been negligent by failing to take precautions. It does not specify conditions that are sufficient for making such a finding. That is to say, even if the prerequisites specified in s 5B are found to be present, it does not necessarily follow that a person was negligent in failing to take relevant precautions. 42The primary judge found that Ms Caruana should have acted in a way that his Honour characterised as taking precautions. His Honour referred to "precautions" such as not applying the sealant at all, applying the sealant properly with a slip-resistant additive and applying the sealant properly so that it would not break down within a short time. However, acting in that way does not constitute "taking precautions" against the risk of harm from slipping and falling. Rather, it was because Ms Caruana did not act in that way that the risk was created. 43Thus, the primary judge did not make findings as to the precautions that could have been taken by Ms Caruana to avoid the risk of harm by reason of walking on a slippery sloping driveway. Rather, his Honour made findings that Ms Caruana created a risk of harm by applying the sealant in the first place, by not applying the sealant properly with a slip-resistant additive and by not applying it properly so that it would not break down within a short time. Thus, his Honour does not appear to have directed attention to the precautions that could have been taken, or should have been taken, against the risk that Ms Caruana herself created, except in so far as he suggested the construction of a handrail. For example, there are steps that could have been taken to reduce the slipperiness or increase the adhesiveness of the surface of the sloping driveway. That question does not appear to have been explored in the context of s 5B. 44Once it is established that the risk of harm from slipping on the driveway when wet was foreseeable by Ms Caruana, and that the risk was not insignificant, it is necessary to enquire as to the precautions that a reasonable person in the position of Ms Caruana would have taken. There is little difficulty in concluding that it was highly probable that the harm of slipping and falling on the wet driveway would occur if care were not taken and that that harm could be quite serious. Further, there is no particular social utility in applying a sealant to a residential driveway. It may have some aesthetic value. However, the fact that Ms Caruana herself undertook the application of sealing and, whether or not incompetently or negligently, sought to include an anti-slip additive, indicates that there would be no real burden of taking the precaution of coating the driveway with a substance that would reduce the slipperiness or increase the adhesiveness of its surface. In the circumstances, the prerequisites s 5B were satisfied in the present case. 45That is probably the reasoning of the primary judge in reaching the conclusion that s 5B was satisfied. It was not suggested on behalf of Ms Caruana that, if the prerequisites of s 5B were otherwise satisfied, she was nevertheless not negligent in the circumstances of this case.

Need for a Handrail 46If it was apparent to Ms Caruana that the driveway was slippery when wet, it was foreseeable that there was a risk of harm. In those circumstances, as I have indicated, Ms Caruana was under a duty to take precautions such as resealing the driveway such that it was no longer slippery or had greater adhesiveness for people walking on it. An alternative precaution may have been to install a handrail. There was no evidence of the cost of installing a handrail as compared with resealing the driveway to ensure that it was not slippery when wet. It is therefore difficult to reach any conclusion as to whether the installation of a handrail was a precaution that a reasonable person in the position of Ms Caruana would have taken in the circumstances. In any event, it does not matter since Ms Caruana was negligent in failing to take the precaution of properly resealing the driveway by coating it with a substance that would reduce the slipperiness or increase the adhesiveness of its surface. That may require the retainer of a professional or, at the very least, following any relevant instructions carefully and accurately.

Causation 47It was an essential element in Mr Darouti's cause of action against Ms Caruana in negligence that her breach of duty caused the harm suffered by him. Under s 5D of the Civil Liability Act, a determination that negligence caused particular harm comprises two elements. The first (factual causation) is that the negligence was a necessary condition of the occurrence of the harm. The second (scope of liability) is that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused. Under s 5E, a plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. 48The primary judge did not make a finding as to precisely where Mr Caruana slipped on the driveway. Accordingly, there was no finding that the spot where Mr Darouti put his foot and slipped had a corrected coefficient of friction of less than 0.4. If there were a finding that it was more probable than not that Mr Darouti had put his foot on a spot that had a corrected coefficient of friction of less than 0.4, a causal connection between the slipperiness of the surface and the fall could have been established. However, those matters do not appear to have been explored. On the other hand, there was no challenge to the causal connection in the appeal.

Conclusion 49It follows from the above that the appeal should be dismissed. Ms Caruana should pay Mr Darouti's costs of the appeal. 50LEEMING JA: I agree with the orders proposed by McDougall J and his Honour's reasons. I add the following merely by way of elaboration of two more general issues. 51First, Mr Darouti's claims against Ms Caruana and Coastline Concreting Pty Ltd were not "apportionable claims" within the meaning of s 34 of the Civil Liability Act 2002 (NSW). He therefore obtained judgments in the amount of $121,560 against both Ms Caruana and Coastline (which did not appear). Although Ms Caruana's and Coastline's liabilities are coordinate and she is entitled to contribution, she remains primarily liable on the judgment entered against her, and so enjoys an appeal to this Court as of right. 52Secondly, I echo McDougall J's remarks about the deployment of expert evidence and the lack of assistance given to the primary judge. On the one hand, Mr Adams said that he had made "literally tens of thousands of measurements" using the pendulum device in his career and expressed opinions which the primary judge accepted. On the other hand, the gravamen of Mr Beckett's criticism was that Mr Adams lacked appropriate engineering or building science experience, misused the equipment, used the wrong standards, made basic errors, and concluded that his understanding was "devoid of all credibility". Putting to one side the unhelpfully and inappropriately intemperate language, the primary judge was left to assess no fewer than six expert reports from those two men. His Honour appears to have been unassisted by a summary of issues, or a statement of areas of agreement and disagreement, let alone cross-examination, on what were the critical issues in the trial. That was the consequence of the parties' forensic choices. In particular, the trial was adjourned to a date convenient to the experts, and it is clear from the transcript that at least one of them was present in court on that day when the defendant made the decision not to call him. 53This Court is poorly placed to assess why those choices were made, and indeed the extent to which the courses adopted by either or both parties in relation to expert evidence were consistent with their obligations under s 56(3) of the Civil Procedure Act 2005 (NSW) to assist the resolution of the real issues in the proceedings. However, in those circumstances, no valid complaint can be made on appeal in relation to the primary judge's acceptance of the methodology and opinions of Mr Adams over those of Mr Beckett. 54McDOUGALL J: On 4 September 2010, the respondent (Mr Darouti) was injured when he slipped and fell whilst walking down the driveway of a property at Seaforth occupied by the appellant (Ms Caruana). The house was owned by the late Mrs Antoinette Caruana (the deceased). The deceased, the mother of Ms Caruana and the aunt of Mr Darouti, had died earlier that day. Ms Caruana and Mr Darouti had been with the deceased when she died. Afterwards, they returned to the house at Seaforth to discuss funeral arrangements and the like. 55Mr Darouti said that the accident occurred as a result of negligence on the part of Ms Caruana or the deceased. He sued Ms Caruana, both in her personal capacity (as an occupier of the property) and in her capacity as executor of the deceased's state. 56The primary judge concluded that Ms Caruana owed and breached a duty of care to Mr Darouti, and that Mr Darouti suffered loss and damage as a result of the fall. He assessed damages at $121,560.00. Ms Caruana appeals from that judgment. 57The grounds of appeal allege that the primary judge erred: (1) in finding that Ms Caruana had been negligent; (2) in finding that Ms Caruana was aware, before the accident, that the driveway would be slippery when wet; (3) in holding that it was reasonably foreseeable on Ms Caruana's part that persons such as Mr Darouti could slip and fall, in circumstances where no such accident had happened in the past; (4) in finding that the accident was caused by a positive act on Ms Caruana's part, namely, in sealing the driveway inappropriately and without expert assistance, and thus in concluding that s 5B of the Civil Liability Act 2002 (NSW) had no application; (5) in finding that the exercise of reasonable care on Ms Caruana's part extended to erecting a handrail on or adjacent to the driveway; and (6) in failing to have regard to authorities which, it is said, should have informed the primary judge's decision of the existence and breach of a duty of care. 58At the hearing, Mr McCarthy of Counsel, who appeared with Ms Compton of Counsel for Ms Caruana, stated the broad issues arising from those grounds as being whether the primary judge had erred: (1) in assessing the question of foreseeability retrospectively rather than prospectively, so that his reasoning on foreseeability was tainted by fallacy; (2) in reasoning that s 5B of the Civil Liability Act had no application; (3) in finding breach of duty both in the absence of evidence to support the finding and in the face of unchallenged evidence against it; and (4) in making what Mr McCarthy said was illegitimate use of expert evidence, by (to paraphrase the way that Mr McCarthy put it) pulling apart the expert's "scientific recordings" and reassembling them to support "a finding of slipperiness". 59That restatement of the issues, and Mr McCarthy's development of them, to some extent expanded on the grounds of appeal. However, Mr Sheldon of Senior Counsel, who appeared with Ms Campbell of Counsel for Mr Darouti, was content to argue the appeal upon the basis of the issues so stated by Mr McCarthy.

The factual background 60In what follows, I draw substantially on the findings of the primary judge. In some areas, the primary judge's findings were influenced by his preference for the evidence of Mr Darouti over that of Ms Caruana where there was a conflict of testimony. His Honour gave reasons for preferring the evidence of Mr Darouti. Mr McCarthy accepted that he had no basis for challenging this aspect of his Honour's reasons. 61The deceased lived at her home until about 2001, when she moved to a nursing home. Ms Caruana had lived at the deceased's home for some years before 2001, and continued to live there until (and after) the date of the accident. The only access, vehicular or pedestrian, to the property is by the driveway. The house is situated below street level, so that the driveway slopes down from the street. According to expert evidence, the driveway had a slope of about 4 degrees (or one in fourteen) at the top, and a maximum slope of about 10 degrees (or somewhat more than one in six) at its steepest point. Mr Darouti said, and the primary judge appears to have accepted, that he fell at the steepest point of the driveway. 62The driveway was constructed of concrete. It had a textured finish, intended to resemble paving bricks. A clear sealant had been applied over the textured finish. As the primary judge found, one consequence of sealing the surface is to make it (relatively) more slippery. The sealed surface is likely to be more slippery when (as was the case on 4 September 2010) the surface is wet. 63Ms Caruana said that the driveway had been reconstructed, in the way that I have described, in 2000. She gave evidence, which the primary judge accepted, of steps undertaken by her to ensure that the reconstructed driveway would be safe, and that the contractor selected to do the work (Coastline Concreting Pty Ltd - Coastline) was experienced and capable. Coastline was joined as a second defendant to the proceedings. It did not appear. Mr Darouti obtained judgment against it for damages to be assessed. Nothing of present moment turns on those facts. 64Ms Caruana said that Coastline sealed the driveway with what it said was an appropriate sealant. She said, further, that she herself thereafter resealed the surface, using the same or a similar product, on a number of occasions. Her evidence on this was less than clear. At first, she said, she did so every two or three years. Ultimately, she seemed to accept that she had done so on two occasions only, the last of those being in or after October 2009. She fixed that date by reference to a tax invoice for the purchase of sealer and additive. 65Ms Caruana said, and the primary judge accepted, that many people had visited the house over the years since 2000, both in dry conditions and in wet, and that no one had experienced any problem with slipping on the driveway. One explanation for that may be that the surface became more slippery each time it was resealed. I will return to this topic (which was not the subject of submissions to, or decision by, the primary judge). 66Mr Darouti suggested that he had noticed on occasion, when visiting the house during rain, that the driveway was slippery. However, he did not give any evidence of informing Ms Caruana of this. 67On the evidence, no one had made any report or complaint to Ms Caruana, to the effect that the driveway was slippery either in wet or in any other conditions, from 2000 on.

The accident 68Again, I draw substantially on the findings made by the primary judge. 69Mr Darouti and Ms Caruana went to Hornsby Hospital to see the deceased. The deceased died whilst they were with her in hospital. They went, separately, to a place at Manly for lunch. They then went, again separately, back to the house at Seaforth. 70The primary judge accepted Mr Darouti's account of the accident to the extent that it differed from Ms Caruana's. As his Honour found, Mr Darouti parked his car on the street. He started to walk down the driveway. He saw a local newspaper lying on the driveway and bent over to pick it up. He then continued down the driveway. When he got to the steepest part, he felt his feet begin to slip from under him. He could not prevent himself from falling over. 71It is common ground that Ms Caruana saw the accident. According to Mr Darouti, she came up to him and said, among other things: I'm sorry. Due to rain, the driveway is very slippery. 72Ms Caruana gave evidence in chief that she had said "I was sorry", but that she did so because "I felt responsible... because he fell in my driveway". 73In cross-examination, Ms Caruana denied that she said the driveway was wet and slippery, or that she said slippery. However, she then said: I didn't say slippery - I can't remember - I don't recall saying slippery. I recall saying it was very wet. 74The primary judge found that the conversation occurred substantially as alleged by Mr Darouti. He said that Ms Caruana used the words attributed to her because she was aware that the driveway was slippery when wet. He added: I do not take her statement to the plaintiff any further. Her "sorry" is no admission of negligence or of anything else. 75Since there was no challenge to the primary judge's quantification of damages, it is not necessary to go into the detail of the injuries sustained by Mr Darouti, or the consequent disabilities (to the extent that the primary judge found them to have been proved).

Grounds 1 and 6: negligence; failure to cite authority 76Ground 1 is a general challenge to the conclusions of the primary judge on the question of negligence. Ground 6 challenges the failure of the primary judge to refer "to any of relevant authorities which ought to have guided his Honour's determination of the scope of the... duty which in turn ought to have informed his Honour's consideration of the alleged breach of duty". 77Counsel below did refer the primary judge to authorities on the question of duty of care. The primary judge did not deal with those authorities. It may have been preferable for him to do so. But in circumstances where his reasoning does not portray any relevant misapprehension of the relevant principles as they emerge from the authorities, nor any relevant misapprehension of fact, these grounds go nowhere.

Grounds 2 and 3: foreseeability 78As the grounds of appeal indicate, and as one might expect, Ms Caruana relied very much on the absence of any report or complaint of slipperiness. In those circumstances, Mr McCarthy submitted, the reasoning of the primary judge, to the effect that it was indeed foreseeable that the driveway would be slippery when wet, was tainted by hindsight. 79Mr Sheldon accepted that the question of foreseeability was to be decided upon a basis which (as had been submitted for Ms Caruana) included the absence of any direct report or complaint of slipperiness. However, Mr Sheldon relied, as the primary judge had done, on what Ms Caruana had said to Mr Darouti when the accident occurred. 80Mr McCarthy submitted that the primary judge had placed far too much weight on the supposed admission of knowledge that the driveway was slippery when wet, and had discounted, with no justifiable reason, the evidence that numerous people had visited the property since the driveway was reconstructed, none of whom had reported to Ms Caruana that they had experienced any slipperiness. 81There is force in this submission. Even on Mr Darouti's account of the conversation, considered devoid of any context, the words used by Ms Caruana could be understood as no more than a recognition of the obvious fact that, at the time of the accident, the driveway was slippery because it was wet. 82However, there is other material that goes to the question of foreseeability. Of particular importance, Ms Caruana identified, and (after an adjournment) produced, a can containing the sealer that she had applied when she last resealed the driveway. The can has printed on it a warning, in what appears to be clearly legible bold print, in the following words: Not recommended for smooth or sloping surfaces. Addition of Slip Resistant Powder may improve pedestrian safety. 83On another part of the can, there is printed another warning: Caution Application of sealer to concrete surfaces will result in reduced slip resistance. 84Finally, on yet another part of the can, there is a printed note, or caution, that only one coat of sealer is "recommended for previously sealed concrete". 85Thus, on the can of sealer which Ms Caruana said she had bought for the purpose of resealing of the driveway, there were warnings, in three different locations: (1) that the sealer might not be appropriate for use on sloping surfaces; (2) that use of the sealer would result in reduced slip resistance; and (3) that only one further coat of sealer should be applied to concrete that had been sealed in the past. 86The manufacturer's guide to the use of the sealer contained two relevant warnings. The first stated: Resealing moderate to steep graded pavements is not recommended. Reduced slip resistance will result. 87The second warning stated: Slip resistance may or will be reduced when acrylic sealer is applied and/or reapplied on smooth concrete surfaces or steep to moderate sloping pavements. Surface texture should have appropriate slip resistance for the pavement grade as advised by AS/NZS 4586-2003. Where slip hazards may occur refer to guidance given in AS/NZS 3661.2:1994 Guide to the reduction of slip hazards. 88There is no evidence that Ms Caruana had obtained or read the manufacturer's guide, or that anyone had brought its contents to her attention. Nor was that put to her; no application was made to cross-examine her further after the adjournment. One of the stated purposes for seeking the adjournment was to allow the can to be produced. 89Ms Caruana said that, on the advice either of Coastline or of the retailer from whom she bought the product, she bought and added a substance. The substance was "very grainy, sandy, sort of rough". She understood its purpose to be "[t]o ensure adhesion". 90Ms Caruana said that she had resealed the driveway "[e]very two or three years", and that the last time she had done so before the accident was in about 2008. However, in cross-examination, she appeared to accept that she had not done so "every two to three years" but, as best she could recollect, twice. She said that when she resealed it she would clean it up, using something like a domestic bleach to do so. 91Further, Ms Caruana said, she had intended, before the accident, to have the driveway resealed by a contractor, who would use machinery or "the proper tools to clean it properly for it to be resealed". However, she said, that was purely for aesthetic reasons. 92It is clear from Ms Caruana's evidence, both in chief and in cross-examination, that she was aware at all material times that sealing the surface of the reconstructed driveway could make it more slippery. Her understanding of the reason for using an additive in the sealer - "[t]o ensure adhesion" - was to ensure that it did not become slippery. 93The primary judge accepted that nobody had slipped on the driveway before or since Mr Darouti's accident. He said that this was "somewhat remarkable". He recognised that it was a factor to be considered on the question of foreseeability. 94In my view, it was open to the primary judge to conclude that, at and before the time of the accident, it was reasonably foreseeable that the driveway would become more slippery if it were sealed and if the sealer were mixed or applied in an inappropriate way. As I have said, it is clearly open to infer, from the evidence of Ms Caruana as a whole, that she was keenly aware of this risk. That is, no doubt, why she insisted that she had purchased an additive to improve the "adhesion" of the surface. 95The primary judge did not refer to all those matters. He appears to have placed particular weight on Ms Caruana's comment made to Mr Darouti immediately after the accident. As I have said, I have some doubt that this comment, taken alone and out of context, could have the evidentiary force that his Honour appeared to place upon it. But in my view, when it is combined with the background to which I have referred, and the evidence of Ms Caruana as to precautions that (she said) she took in mixing and applying the sealer, the remark attributed to Ms Caruana does have probative force. More importantly, however, the only conclusion available from the whole of her evidence on this point is that she was (or at the very least ought to have been) well aware, before the accident, that it was likely that the surface of the driveway could become slippery if the sealer were improperly mixed or improperly applied. 96Thus, I conclude, his Honour's conclusion can be sustained, without the tainting vice of hindsight, on the whole of the evidence. 97Mr McCarthy submitted that the primary judge had erred in failing to take into account, or to give appropriate weight to, the entire history since the driveway had been reconstructed. He laid particular stress on the absence of any report or complaint that the driveway was slippery under any conditions. 98Mr Sheldon submitted that the whole of the history was not relevant. He noted that the driveway had last been resealed at some time in or after October 2009. In those circumstances, he submitted, all that could be relevant was the absence of complaint between then and the date of the accident. 99In principle, I think, Mr McCarthy's submission, that the entire history is relevant, is correct. On Ms Caruana's evidence, the driveway had been sealed by Coastline when it was first rebuilt and resealed twice by her thereafter. If events prior to the date of the accident are relevant to the question of foreseeability (as Mr Sheldon accepted they were), it seems to me to be entirely artificial to confine those events in the way that he submitted. 100The primary judge did take into account the absence of complaint, although it did not dissuade him from his conclusion on foreseeability. 101Although, as I have said, I think that Mr McCarthy's submission on the duration of the relevant history is correct, there is an important practical limitation. It was the case for Ms Caruana that Coastline had sealed the driveway after it was reconstructed. Thereafter, as Ms Caruana's evidence finally appeared to be, she resealed it on two occasions. If all of that be correct, it is necessary to pay regard to the manufacturer's warning about the impact of resealing (that is to say, of applying a fresh coat of sealer to previously sealed concrete). That practice is not recommended for moderate to steeply sloping surfaces and is said to be likely to make the surface more slippery. 102If the history of events were as Ms Caruana said it was, there is a distinct possibility that the surface became more slippery after it was resealed for the second time, in or after October 2009. On that view of the facts, the history (of absence of complaint) prior to the second resealing becomes less significant, and the more significant history is the relatively brief period of time between the second resealing and the date of the accident. 103Of course, if Coastal had not sealed the driveway after it was reconstructed, this qualification would be less significant. But it was Ms Caruana's evidence that the driveway had been sealed, by Coastline, after it was reconstructed. The primary judge dealt with this, in a way to which it will be necessary to turn when considering the question of breach.

Ground 4: s 5B 104I start by setting out s 5B of the Civil Liability Act: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 105The primary judge reasoned that s 5B had no application. That was because, in his view, the acts of negligence that were proved were "positive acts of negligence". The primary judge noted that s 5B applies to negligence "in failing to take precautions against a risk of harm". Thus, his Honour reasoned, the section had no application to the positive acts of negligence that in his view had been made out. 106The primary judge said that "the condition of the driveway causing the plaintiff to slip and fall was caused by the defendant's act in sealing the driveway". He found that Ms Caruana had been negligent in three ways, which he characterised as "positive acts of negligence": (1) sealing the driveway contrary to a recommendation not to do so on sloping surfaces; (2) applying the sealer without first adding an appropriate slip-resistant material; and (3) applying the sealer in a way "indicative of some underlying problem in the preparation of the driveway or the application of" the sealer. 107I do not agree with the way in which the primary judge characterised at least the second and third of those activities. The second is in effect a conclusion that Ms Caruana failed to add a necessary a slip-resistant material to the sealer. The third is in effect a finding that Ms Caruana failed to apply the sealer in a proper and workmanlike way. 108It is unnecessary to dwell on this, except to note that if the approach taken by the primary judge were correct, the application of s 5B would depend more on creativity in pleading than the language of the legislature. I do not think that it is appropriate to construe a contemporary statute in a manner analogous to the approach taken by 19th Century pleaders in attempting to draft mandatory injunctions in negative form. 109Nonetheless, the primary judge then considered the matter by reference to s 5B. Mr McCarthy attacked this, as he called it, "contingent" analysis. He submitted that, because the primary judge had misdirected himself as to the application of s 5B, he had failed to give proper consideration to what was required to be proved. 110Mr Sheldon did not support with any enthusiasm the view of the primary judge that s 5B had no application. He relied, instead, on the analysis made by the primary judge in effect on the assumption that s 5B did apply. The thrust of Mr Sheldon's submissions on this issue was that the primary judge had correctly identified the relevant factors (on the assumption that s 5B did apply) and that his conclusions in respect of them were open to him on the evidence. 111The application of s 5B to intentional, or positive, acts has been the subject of observations in a number of decisions of this court. There is no decision that establishes that the section does, or for that matter does not, apply where the acts of negligence proved are positive acts rather than negative. Because I consider that the conclusion of the primary judge can be supported on the view that s 5B does apply, I see no point in adding to the dicta on this question. That was the approach taken in Drinkwater v Howorth [2006] NSWCA 222 at [10] to [13], [24], [25] and in Council of the City of Greater Taree v Wells [2010] NSWCA 147 at [54], [55]. It is the approach to take in this case also. 112The primary judge concluded that the risk of harm was foreseeable. For the reasons I have given, I think that he was correct to do so. Not only was the risk objectively foreseeable, it was a risk of which Ms Caruana was actually aware. 113The primary judge then turned to the significance of the risk. He concluded that the risk was not insignificant. In that context, his Honour stated that the fact that no one else had slipped (or reported slippery conditions) was relevant, and indeed "somewhat remarkable". Essentially for the reasons I have given in dealing with the question of foreseeability, that history did not require the conclusion that the risk of harm was insignificant. The driveway was steep, with a grade of approximately one in six at its steepest point. The sealer, if improperly applied (including, if improperly reapplied), was likely to make the surface more slippery. It is commonplace that a surface, not necessarily inherently slippery, may become slippery when wet. Rain - heavy rain - is not an unknown phenomenon in Sydney. 114In those circumstances, it was open to the primary judge to conclude, as he did, that a reasonable person in Ms Caruana's position would take precautions against that risk. I do not think that Mr McCarthy challenged this aspect of the reasoning. It is common human experience that people can be injured, in some cases severely, and suffer disabilities, again in some cases severe, by slipping and falling on hard surfaces. 115In short, if the matter is to be assessed by reference to s 5B of the Civil Liability Act, the primary judge did so. His conclusions were open on the evidence. It is thus unnecessary to inquire further into the reasoning of the trial judge, to the effect that positive acts of negligence had been shown.

Ground 5: breach 116I start by observing that ground 5 as drafted challenges only the conclusion of the primary judge that Ms Caruana breached her duty of care by failing to install a handrail. Mr McCarthy's third issue, which subsumes ground 5, is wider. Since the appeal was argued on the basis of the wider issue, I shall proceed likewise. 117The primary judge concluded that the precautions that Ms Caruana could have taken included: (1) not applying any sealer; (2) having an expert of some form apply the sealer; (3) if she decided to apply it herself, doing so properly; or (4) applying it properly with some slip-resistant additive. 118The primary judge concluded that Ms Caruana had done none of those things. Thus, he said, she had breached her duty of care. 119Further, the primary judge said that once Ms Caruana became aware of the slippery nature of the surface, she could have dealt with it in at least two ways: (1) by having the driveway resealed by an expert; or (2) by having a handrail installed. 120Those last two matters can be put to one side. The first merely restates what I have said at [117(2)]. And as to the second, the finding of the primary judge was that there had been no complaint made to Ms Caruana that the surface was slippery, either when wet or at all. Thus, a precaution premised on her having become so aware did not arise for her consideration. 121The real difficulty in the case of breach arose from the way that the parties put the evidence before the court. Each called an expert. For Mr Darouti, a safety consultant, Mr Adams, gave evidence. For Ms Caruana, a civil engineer, Mr Beckett, gave evidence. Each expert provided a report in chief and a report or reports in reply. There seems to have been very little common ground between them, either as to the methodology to be adopted in testing the slipperiness (or safety) of the driveway or as to the conclusions to be drawn from such tests as were performed. 122Each expert accused the other of failing to comply with accepted methodology and applicable Australian standards. Each came to a conclusion the opposite to that of the other. The reports were tendered without objection. Neither expert was called for cross-examination. The primary judge was left to deal with this situation as best he could. It has to be said that the submissions did not give him any great assistance. 123This court has had occasion in the past to comment on the unsatisfactory practice of tendering reports of experts, whose views are sharply in conflict, without any attempt to resolve the conflict through processes such as conclave and joint report, concurrent evidence sessions, or old fashioned cross-examination. See, recently, Fitzsimmons v Coles Supermarket Australia Pty Ltd [2013] NSWCA 273 at [23], [137], [173]. 124I accept, as Basten JA said in Fitzsimmons at [23], that it is for parties to run a case as they see fit. But, equally, parties must live with the consequences of forensic choices that they make. Where, as in this case, expert evidence is not inherently illogical or implausible, or based on manifestly incorrect or unproven assumptions of fact, the primary judge must decide between the experts as best he or she can. In those circumstances, where a primary judge makes an apparently rational choice between competing inferences available from expert evidence, it is very difficult for the disappointed party to complain on appeal that some other inference should have been chosen. 125A trial is more than a rehearsal for an appeal. A party who fails to provide a trial judge with appropriate assistance in relation to evidence generally (and expert evidence in particular) should expect to have a difficult time in persuading an appellate court that some different approach to the expert evidence should be taken. 126Mr Adams used a pendulum device to test the coefficient of friction of the driveway at its steepest point. He selected that point because, on his instructions, it was at the steepest point that Mr Darouti had slipped and fallen. 127Because the precise point of the fall could not be established, Mr Adams selected five areas at the steepest point of the driveway, and took five measurements in each area. He obtained individual coefficents of friction, which he then averaged and adjusted. The adjustment was apparently undertaken to allow for the fact that the tests were on sloping rather than level ground. 128There is some difficulty with this aspect of Mr Adams' evidence, because his first report and his second (reply) report are not entirely consistent. The data differ somewhat. None of that was explored, let alone explained in a way that might assist the primary judge. 129On the basis of the data obtained in the first report, Mr Adams determined that there were three areas where the adjusted coefficient of friction was lower than the appropriate level of 0.40. That apparently is a criterion for slip resistance under AS 3661.1. 130The second report established that two only of the five readings (as adjusted) fell below 0.40, and were thus inadequate (or unsafe) according to the Standard. 131Mr McCarthy criticised Mr Adams for selecting "visibly smoother areas where [he] expected to obtain results within the lower end of the likely range". However, Mr Adams gave an explanation of that aspect of his methodology. The explanation was, at least on the surface, rational. Mr Adams said that he thought "it was more appropriate for me to determine whether or not it was possible for a slip to occur of the type that Mr Darouti described than it was to find the average, or even the best, level of frictional performance for the driveway". That, he said, was "a standard safety management approach". 132Further, and as Mr Adams also pointed out in his second report, localised variations in surface texture and in slip resistance were of themselves a source of danger because "significant levels of variation in slip resistance between different sections of a pedestrian surface inevitably increase the risk of slipping". He gave an explanation for this which again, at least on its face, appeared to be rational. Mr Adams said that it was a "well known phenomenon" which is in his view "contributed to the slip and fall that [Mr Darouti] experienced". 133Mr Beckett had criticised this aspect of Mr Adams' reasoning. Mr Adams replied, in a reasoned way, to that criticism. In circumstances where Mr Adams was not challenged in cross-examination on this aspect of his evidence, it is in my view inappropriate to criticise him, as Mr McCarthy did, for selecting apparently smoother areas of the surface to test. Unless the explanation that Mr Adams gave in his report was manifestly irrational - and it was not - the criticism that is now made should have been put to him, so that the primary judge could be informed of, and assess, his response to it. 134Mr Beckett carried out a number of tests. He used a "surface roughness survey instrument" to determine the mean roughness of the surface. He sought to establish "the wet coefficient of dynamic friction" using a "Stanley Portable Testing machine", which appears to have been some form of pendulum. He obtained "BPN" (British Pendulum Numbers) that in his view, when averaged, were of a range that would indicate only "a low contribution to the risk of slipping". 135The apparent difference between Mr Beckett's numbers and those obtained by Mr Adams may be explained in part because they tested at different portions of the driveway. Mr Beckett had been instructed that the accident occurred closer to the top of the driveway, where the slope is less. That seems to have been where he carried out his tests. Again, however, this aspect of the differences between the experts was not explored, and the primary judge was given no assistance in dealing with it. 136Mr Adams inspected the sealed surface. He said that he "looked for the presence of a textured additive in the sealer but was unable to detect same anywhere on the driveway". That is to say, Mr Adams' observations suggested that there was no "very grainy, sandy, sort of rough" additive apparent in the sealer that had been applied. 137As I have said, Mr Beckett carried out measurements of the surface roughness using an instrument designed for that purpose. He reported the values obtained. He did not however indicate whether those values were (or were not) consistent with the inclusion of some additive in the sealer of the kind that Ms Caruana had described. 138Further, although Mr Adams reported on the absence of any textured additive in his first report and Mr Beckett replied to this report, he did not criticise this aspect of Mr Adams' observations. 139Mr Beckett did provide a further report in which he commented on the additive that, it seemed, Ms Caruana had bought for the purpose of increasing the slip resistance of the sealer that she applied. He said that "[f]rom my experience, the additive is a very fine "proprietary polymer" substance... which "chemically bulks up", when placed within" the sealer. 140It is not clear whether Mr Beckett was commenting on the actual material or, generically, on the kinds of material that, in his experience, were commonly used for increasing the slip resistance of concrete sealing products generally. Mr Beckett did say however that such an additive, in his experience, is "not a crystalline asperitic quartz granulated powder". That could be translated as "not very grainy, sort of rough". 141Again, neither expert was cross-examined on this point. The primary judge was left to deal with it as best he could. 142Two things do emerge from this evidence. First, if Ms Caruana's description of the additive is to be accepted, Mr Adams' observations suggest that there was no trace of any such additive in the sealed surface that he observed. That may mean that Ms Caruana did not in fact add anything. It may mean that she did add something, but did not do so properly, so that the addition was inefficacious. It may mean that the additive had been applied, but had worn away. Or it may mean something else altogether. 143The second point is that if Mr Beckett's description of the kind of additive that is normally used is to be accepted, it is inconsistent with Ms Caruana's evidence of what she did add. In substance, Ms Caruana's evidence was to the effect that the additive was a gritty substance which of itself rendered the sealed surface less smooth, and thus presumably less slippery. Mr Beckett's evidence, however, was to the effect that the additive was a product which reacted chemically with the sealer to produce "micronodules some 50-150 microns in size". Mr Beckett did not explain whether his observations and measurements of surface roughness, showing roughness values between 10.77 and 18.53 microns, were consistent with the use of such an additive. This is another aspect of the evidence that, in the absence of elucidation through cross-examination, the trial judge was required to absorb and with which he was required to deal. 144Having regard to the way in which the expert evidence was admitted, and having regard also to the failure to test the numerous inconsistencies by cross-examination, it was in my view open to the primary judge to proceed as he did, by preferring the evidence of Mr Adams. In particular, it was open to the primary judge to accept the view of Mr Adams that the disparate roughness between adjacent portions of the driveway in fact increased the risk of harm. 145On the evidence that was admitted before the primary judge, the following conclusions were open: (1) the sealer that Ms Caruana had used was not recommended for use on, among other things, sloping surfaces; (2) the driveway was sloping, and at least in part (as the primary judge found) steep; (3) the risk that someone might slip on the surface could be reduced by the addition of slip resistant powder, as again the container advised; (4) there was no evidence of any textured additive in the sealing coat on the surface of the driveway; and (5) there was no direct evidence of the addition of any other form of slip resistant powder to the sealer. 146In addition, and as the manufacturers' guide to application of the sealer stated, resealing of moderately or steeply graded pavements was not recommended because it would reduce their resistance to slip. There was no evidence that this publication came to the attention of Ms Caruana. However, it could be inferred that an "expert" in the field of sealing concrete surfaces would be aware of the manufacturer's recommendations, and would advise against reapplying coats of sealer on the driveway to Ms Caruana's house. 147In all the circumstances, it was open to the primary judge to conclude, as he did, that Ms Caruana had breached her duty of care. I should note that, although the case against her was pleaded both on the basis that she was an occupier and on the basis that, as executor of her mother's estate, she was the owner, his Honour appears to have found against her on the former basis. For the reasons I have given, it was open to him to do so. She had had effective control of the premises for at least nine years preceding Mr Darouti's accident, and had carried out, or caused to be carried out, the works which, on the findings of the primary judge, created the dangerous situation that in fact caused Mr Darouti to slip and fall. 148In those circumstances, it is not necessary to deal with the criticism of the primary judge for finding that the exercise of reasonable care required Ms Caruana, either alternatively or as well, to install a hand rail. 149Mr McCarthy submitted that the primary judge had made illegitimate use of the expert evidence by "disassembling" it. But that is not what the primary judge did. He took the totality of one aspect of Mr Adams' evidence, which was to the effect that where there are adjacent areas that have disparate slip resistance, a separate situation of danger is created. Since, in Mr Adams' opinion, it was shown that there were adjacent areas with disparate slip resistance, that approach was open to the primary judge. And that approach shows why it is that Mr McCarthy's alternative criticism of the primary judge, for ignoring the average of the results obtained by Mr Adams, ought not be accepted. 150Mr McCarthy criticised the primary judge for overlooking, or ignoring, what he said was unchallenged evidence of Ms Caruana. For example, Ms Caruana had said in chief that she "purchased the same product the concreters used, recommended". That was apparently intended to refer to a recommendation made by Coastline. However, it appeared in the course of her cross-examination that Ms Caruana may have relied on a recommendation from the hardware store from which she brought the product. The primary judge thought that Ms Caruana was in error in saying that she had used a product recommended by Coastline, because the contract between her and that company, which described the work to be carried out, made no reference to the application of a sealer. 151Mr McCarthy submitted that one would not expect a brief description of the scope of works to include something of that obvious nature. I am not sure of this. The scope of works did specify, among other things, the kind of reinforcing mesh to be used; the fact that a stencil finish was to be applied; and the fact that saw cuts were to be made (presumably, to accommodate expansion and contraction of the slab). Regardless, the simple fact is that Ms Caruana's position fluctuated, from saying that the product had been recommended by Coastline (if this is what she is to be read as saying) to saying that it was recommended by the hardware store, or by the hardware store "as well as the concreters". 152The point of the criticism, as I understand it, was that his Honour effectively disregarded Ms Caruana's evidence that, following the advice of whoever it was that gave it, she used an additive in the sealer when she reapplied it. The primary judge did refer to this aspect of her evidence. But it is apparent, from his acceptance of Mr Adams' evidence as to his observations made of the sealed surface, that he did not accept it. 153Mr McCarthy criticised the primary judge for failing to take into account the essentially uncontroverted evidence of Ms Caruana that no one had ever reported any problem with slipping on the driveway. It is incorrect to say that his Honour overlooked that evidence. He referred to it specifically, and took it into account in dealing with the question of foreseeability. 154The third criticism made by Mr McCarthy under this heading relates back to the first: specifically, Ms Caruana's evidence as to the way in which she had applied the sealer. For the reasons I have given, that criticism is unjustified and leads nowhere. 155I should note that, at least in his written submissions, Mr McCarthy sought to deal with Mr Adams' observations, as to the absence of any textured additive in the sealer, by saying that it was "doubtful that he was specifically asked to look for it" or that it was "something that he was not specifically looking for in circumstances where it would not have been visible, even if he had looked for it". Neither of those criticisms was taken up with Mr Adams in cross-examination. More importantly, they overlook entirely what Mr Adams said in his second report: [A]t the time of my inspection I looked for the presence of a textured additive in the sealer but was unable to detect same anywhere on the driveway. 156Mr McCarthy sought to derive, from Mr Beckett's supplementary report, the proposition that the additive would not be detectable in any event. However, as I have said, Mr Beckett's description of what the additive might or would be "from my experience" was inconsistent with Ms Caruana's evidence of what it was that in fact she added. Further, and as I have observed, it is by no means clear that Mr Beckett was reporting on the actual additive, rather than on what in his experience was the kind of additive normally used. 157I do not accept Mr McCarthy's submissions, to the effect that the primary judge had overlooked or failed to deal with unchallenged evidence from Ms Caruana on the question of breach.

Causation 158I mention this only to make the point that the only ground of appeal that involved the question of causation was ground 4. Ground 4 did not seek to agitate the question of causation except to attack the conclusion of the primary judge that s 5B of the Civil Liability Act had no application because the acts of negligence proved were positive acts and not omissions.

Conclusion 159In my view, the appeal should be dismissed with costs.

Amendments 28 March 2014 - Replace reference to "Ms Compton" with reference to "Ms Campbell". Amended paragraphs: 59 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: 28 March 2014

Civil Liability Act 2005(NSW)

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