The parties' submissions
35In the Notice of Appeal and the submissions put by Mr Allan, it was claimed that the Tribunal erred in law in two respects, namely, in stipulating that evidence was needed to demonstrate foreseeability of the relevant risk of harm and in defining the risk of harm too narrowly. Three other matters also received his attention: the onus of proof, the Tribunal's interpretation of a part of Mr Kelly's evidence and an observation by the Tribunal as to the foreseeability of loss by fire.
36The role of evidence in establishing foreseeability. The first alleged error by the Tribunal, as formulated in paragraph 16 of Mr Allan's written submissions, was that of treating the question whether the relevant risk of harm was reasonably foreseeable to a person in the Respondent's position as a matter to be 'proved' or 'demonstrated' by a 'piece' of evidence. Mr Allan argued that the Tribunal should instead have regarded all the evidence in the case, 'to every last piece of information', as relevant to this question. It should have made a 'determination' on foreseeability based on a 'global' look at all the circumstances. These circumstances should have included the following (to quote again from paragraph 16 of the submissions):-
... the fact the respondent was running a business, the fact his lease specifically adverted to fire, the fact dryers were being used on the shop floor, the acknowledged heat of that process, the absent cool cycle compared to domestic drying machines, the number of dryers working to maximise business, the push to get through as much clothing as possible (and a same day service) the hanging and storing of clothes everywhere, using flammable dry cleaning bags, dealing in flammable clothes, and taking on the peculiar responsibilities of a bailee for reward.
37In making this submission, Mr Allan referred to a statement by the Privy Council, in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd [1967] AC 617 at 641, that a decision as to reasonable foreseeability is 'not a primary finding of fact but an inference from the other findings'. He also cited the following dictum of Lord Steyn in a House of Lords case, Jolley v Sutton London Borough Council [2000] 3 All ER 409 at 415:-
The issue whether an accident of the particular type was reasonably foreseeable is technically a secondary fact but perhaps it is more illuminating to call it an informed opinion by the judge in the light of all the circumstances of the case.
38In response, Mr Perla relied on a passage in a recent Court of Appeal case decided under the CL Act, Shoalhaven City Council v Pender [2013] NSWCA 210. In this case, the appellant was employed by a company that operated a car ferry service between Nowra and an island nearby. He slipped and fell on a ramp forming part of a wharf at Nowra owned and occupied by the appellant council. His evidence included an allegation that at the time of his accident the ramp was dry and smooth and a 'surmise' that this was because dry algae was present on it. The trial judge held that the ramp was slippery, that the appellant, which knew that it regularly became slippery, should have taken (but did not take) the simple and inexpensive precaution of cleaning it from time to time and that liability was therefore established under the CL Act.
39The Court of Appeal upheld the council's appeal and entered a verdict for the appellant. The passage cited by Mr Perla as showing that evidence may be required to establish the foreseeability of a risk under the Act appears in the judgment of McColl JA at [88], [89] and [91 - 93]:-
88 In some cases, it can be inferred as a matter of common sense and common knowledge, that particular surfaces will ordinarily be slippery, particularly when wet: see Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239 (at [6]) per Macfarlan JA (Beazley JA agreeing); see also Neill v NSW Fresh Food & Ice Pty Ltd [1963] HCA 4; (1963) 108 CLR 362 (at 368) per Taylor and Owen JJ. The same cannot be said about dry surfaces.
89 This was not a case where common experience enabled the primary judge to infer that the respondent's injury arose from the appellant's negligence: cf Jones v Dunkel (at 305) per Dixon CJ. It was not a shopping centre case where the presence of a greasy substance on a floor in an area adjacent to a food court but in respect of which there was no system for periodic inspection and cleaning, there being thereby admitted breach, enabled a conclusion on the probabilities as to when the greasy substance was dropped on the floor: cf Strong v Woolworths Ltd.
91... The risk posed by the dry ramp was, in my view, a matter which required evidence as to the nature of the risk posed and the steps the appellant ought reasonably have taken to obviate it: see Arabi v Glad Cleaning Service Pty Ltd [2010] NSWCA 208 (at [40] - [41]) per Sackville AJA (Hodgson JA and Harrison J agreeing).
92 Further, the evidence did not, in my view, establish that the appellant was aware that there was a foreseeable risk of persons slipping on the dry ramp. There was no evidence that anyone had slipped on the ramp's dry surface prior to the respondent's fall. The evidence relating to Mr Wallace's falls did not afford any evidence as to why he slipped.
93 There was no explanation as to the nature of dry algae, why, if it was present, it was imperceptible to view and why apparently imperceptible dry algae might be slippery. It was by no means apparent on the evidence, in my view, that the appellant knew, or ought to have known, that a dry surface of the ramp which to all intents and purposes appeared to be merely concrete posed a foreseeable risk of harm.
40Relying on this statement of principle, Mr Perla argued as follows: (a) there was no evidence that the Respondent knew of the risk that stacked clothes might self-ignite spontaneously following their removal from a dryer; (b) the question to be resolved was therefore one of constructive knowledge, i.e., whether the Respondent ought to have known of this risk; (c) the phenomenon of self-ignition in these circumstances was not a matter of common knowledge; (d) accordingly, it was appropriate for the Tribunal to treat this question as one to be determined after considering relevant evidence on the matter.
41Defining the 'risk of harm'. The second alleged error by the Tribunal was one on which Mr Allan placed greater emphasis. It was that the Tribunal formulated the relevant 'risk of harm' in unduly narrow terms. The risk that it identified was, to quote from its decision at [82], that 'there would be a fire in the premises caused by spontaneous combustion of laundered items'. The relevant risk should, according to Mr Allan, have been formulated in distinctly broader terms: namely, as the risk of damage to the premises by fire.
42Mr Allan submitted that in the common law of negligence it was well accepted that even 'remote' risks may have to be regarded as 'reasonably foreseeable'. He quoted the following dictum of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48 (which the Tribunal also quoted): 'A risk which is not far-fetched or fanciful is real and therefore foreseeable...' He also referred to the following passage in the judgment of Murphy J in that case (at 49):-
Most traffic and industrial accidents result from circumstances in which the chance of an accident occurring is extremely slight. Under modern urban conditions, most people habitually drive carelessly. One only needs to observe peak-hour traffic in and out of a city to notice that almost every car is driven unsafely close to the car in front; speed limits are also habitually exceeded. The chances of an accident from any breach of traffic rules is very slight, but, if harm does result (and if the court concerns itself with "foreseeability"), it is treated as foreseeable.
43Mr Allan further argued that if the relevant risk was formulated too narrowly, the 'second stage' of determining a negligence claim - that of deciding whether a breach of the duty of care had occurred - might not be reached. The court would not be required to adopt what he described as the 'Shirt calculus', whereby it weighs up the following factors listed by Mason J in Wyong Shire Council v Shirt at 48:-
The magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.
44By way of illustrating the need to define the 'relevant risk' in broad terms, Mr Allan relied on four further cases on common law negligence. The relevant features of these cases are as follows.
45First, in Pitt Son & Badgery Ltd v Proulefco SA (1984) 153 CLR 645, a wool broker retained wool that it had sold to a buyer in a wooden store. An intruder set fire to the store and destroyed the wool. He or she had gained access through a gap in the surrounding fence. The High Court affirmed a decision of the Court of Appeal holding the broker liable to the buyer on the basis that, as a bailee for reward, it was obliged to take reasonable care of the wool. At 648, Gibbs CJ said:-
Secondly, Mr Staff [counsel for the broker] pointed to the evidence which showed that arson was a rare occurrence in wool stores - indeed, it may have been quite unknown - and submitted that it was not unreasonable to fail to guard against it. However, the duty of the appellant was not simply to guard against arson. It was to take reasonable care to keep the wool safe, and therefore to prevent damage from any sort of intruders, whether thieves, vandals or the unexpected arsonist.
46Secondly, in Jolley v Sutton London Borough Council [2000] 3 All ER 409, the defendant council left a boat on council property where young children could gain access to it. Two young boys propped up the bow of the boat with a car jack, got underneath it and tried to repair it. One of them was injured when the boat fell on him. He sued the council. The Court of Appeal reversed the primary judgment in his favour on the ground that it was not reasonably foreseeable that an accident would occur as a result of the boys deciding to work under a propped up boat. But the House of Lords restored the judgment, saying that neither 'the precise manner in which the injury came about' nor its 'extent' had to be foreseeable (Lord Steyn at 417) and that 'the foreseeability is not as to the particulars but the genus' (Lord Hoffmann at 418).
47Thirdly, in the High Court case of Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35 at 386 [203], Gummow and Kirby JJ said, in the context of proceedings for damages in negligence on account of psychiatric injury, that 'liability does not depend upon "the capacity of a reasonable man to foresee damage of a precise and particular character or upon his capacity to foresee the precise events leading to the damage complained of"'. (The phrase in quotation marks is extracted from Chapman v Hearse (1961) 106 CLR 112 at 121.)
48The fourth and final case of common law negligence on which Mr Allan relied was Manley v Alexander (2005) 223 ALR 228; [2005] HCA 79. Here the driver of a tow truck ran over and seriously injured a man early one morning. The man was intoxicated, dressed in dark clothing and lying on the road. The High Court affirmed by majority a decision of the Court of Appeal of Western Australia holding the driver liable in negligence. The majority judges (Gummow, Kirby and Callinan JJ) said at 231 [12]:-
It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Road at 4.00 am is properly to be described as remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.
49Mr Allan acknowledged that in the present proceedings the applicable principles relating to negligence were those laid down in the CL Act, not in the common law. He maintained, however, that according to the cases decided under this Act, it was similarly recognised that a 'risk of harm' should not be defined too narrowly. In this connection, he referred to two decisions of the Court of Appeal.
50The first of these was Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151. In this case, the appellant sued the respondent school for damages for injuries suffered as a result of slipping and falling on one of the broad painted strips on a 'zebra' crossing of a road within the school grounds. In July 2007, about five months before her accident, the crossing had been repainted with a line-marking paint that was commonly used for painting narrow lines on sporting fields. Its slip-resistance was below the level recommended for a pedestrian crossing in a Slip Resistance Handbook (HB 197:1999) published by Standards Australia. There was evidence to suggest, however, that the painted strip had become weathered and therefore more slip-resistant by the time of the accident.
51The appellant failed at first instance, on the ground that the relevant 'risk of harm' was not one of which the school or its maintenance knew or ought to have known, and was therefore not foreseeable as required by section 5B(1)(a) of the CL Act.
52As noted in Tobias AJA's judgment in the Court of Appeal at [119], the trial judge identified the risk of harm as 'the risk of a person, such as the [appellant], when using the particular pedestrian crossing by walking normally, in its then condition, slipping on the painted surface and suffering personal injury'. In their judgments in the appeal, however, both Meagher JA and Tobias AJA indicated that in their opinion this formulation was too narrow.
53In the judgment of Meagher JA, the following passage at [22 - 27] should be quoted:-
22... As the primary judge notes, the provisions of ss 5B and 5C of the Civil Liability Act 2002 are directed to questions of breach of duty: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [13]; Harmer v Hare [2011] NSWCA 229; (2011) 59 MVR 1 at [194]. Those sections assume an allegation of breach of duty resulting from negligence which is or can be formulated in terms of a failure to take precautions against a risk of harm. The question which s 5B requires be answered favourably to the plaintiff is whether in the face of a risk of harm which was foreseeable and not insignificant, a reasonable person in the defendant's position would have taken those precautions having regard to, among other relevant things, the considerations in s 5B(2). To address the questions and considerations in s 5B, it is necessary to formulate a plaintiff's claim in a way which takes account of the precautions which it is alleged should have been taken and identifies the risk or risks of harm which the plaintiff alleges eventuated and to which those precautions should have been directed.
23 One way in which the appellant put her case at trial was that the respondents were negligent in failing to ensure that the crossing was surfaced with a non-slip paint or other material. The construction of the pedestrian crossing by painting a strip of the internal roadway within the School grounds, invited pedestrians to cross the roadway at that point. A risk which had to be addressed in relation to the installation and maintenance of the crossing was whether a person might slip on the painted or asphalt surface of the crossing when wet. It was argued that the respondents should have used a paint or other material, when repainting the surface of the crossing in July 2007, which complied with the recommendation in Table 3 of HB197:1999.
24 The relevant "risk of harm" for the purposes of the application of s 5B, taking into account the precaution which the appellant alleged should have been taken in July 2007 in relation to the repainting of the crossing, was sufficiently described as being that of a person slipping on the surface of the crossing when wet and thereby suffering injury.
25 The primary judge defined that risk of harm more narrowly and in a way which focused (by use of the words "in its then condition") on the condition of the pedestrian crossing at the time of the appellant's fall in November 2007: at [66]. In doing so, the primary judge excluded from the precautions which might have been taken against that risk, the precaution of using in July 2007 a paint which complied with the recommendation in Table 3. A consequence of the trial judge defining the risk of harm in this way was that he did not address one formulation of the appellant's case. Had he done so, his answers to the questions required to be addressed by s 5B(1)(a) and (b) are likely to have been different and favourable to the appellant in respect of that way in which her case was put.
26 I agree with Tobias AJA that the risk of harm to a person slipping on the wet surface of the crossing was foreseeable and not insignificant. Each of those matters, addressed to this broader formulation of the risk of harm, was conceded by the respondents in oral argument. The primary judge, addressing the more narrowly defined risk of harm, held that it was not foreseeable and that it could not be described as "not insignificant": at [98] and [115]. Each of those conclusions followed from the more narrow description of the risk that he adopted. For example, at [110] and [111] the primary judge addressed the question posed by s 5B(1)(a) by reference to what was known or ought to have been known by the respondents concerning the condition of the crossing in November 2007. In doing so he observed that there was "no obvious defect in the crossing in November 2007 at the time of Mrs Garzo's fall" and that there had been no "unusual external events, storms, road repairs, spillages of oil in the area of the crossing or the like, which meant that one might expect the crossing to be particularly dangerous".
27 I also agree with Tobias AJA that there was a failure to take reasonable precautions when repainting the surface of the crossing in July 2007...
54At [123], after having quoted the trial judge's formulation of the 'risk of harm' and referred to alternative formulations suggested by counsel for the parties, Tobias AJA said:-
123 In my opinion the risk can be identified as that of a person slipping on the painted surface of the crossing and thereby suffering an injury. I do not think that the risk needs to be articulated in any greater detail than that.
55At [7], the third member of the Court, Basten JA, suggested a formulation closer to that of the trial judge:-
7 Section 5B of the Civil Liability Act 2002 (NSW) requires identification of a risk of harm, against which a person has failed to take precautions. Given its context, the risk must be that which materialised in the case of the injured person seeking to claim in negligence. That is because s 5B is dealing with a breach of a duty of care, being the duty of care owed by the defendant to the injured plaintiff. The relevant risk in the present case was the risk which materialised when the appellant slipped and fell. The harm suffered by the appellant, if it arose from the condition of the crossing at all, arose from the condition of the crossing as at the date of her fall. To establish a breach of duty, she needed to establish that the crossing was unduly slippery on that date.
56The appellant failed in her appeal. Basten JA held that she had not established that the crossing was 'unduly slippery' at the time of the accident or that the school should have realised that this was or might be the case and have taken precautions such as having it professionally tested or repainting it. Meagher JA and Tobias AJA held that the school, when repainting the crossing in July 2007 with unsuitable paint, had failed to take reasonable precautions against the 'risk of harm' as formulated by their Honours. But they held also that, having regard to the likelihood that the crossing had become more slip-resistant in the ensuing five months, the Appellant had not established that the school's breach of duty caused her to slip and fall.
57Mr Allan's submission relating to this case was that the judgments of Meagher JA and Tobias AJA made it clear that for the purposes of section 5B of the CL Act a 'risk of harm' should be broadly defined.
58The second case that Mr Allan mentioned was one to which we have already referred, Shoalhaven City Council v Pender [2013] NSWCA 210.
59In her judgment in this case, McColl JA discussed at some length the question of how the relevant 'risk of harm' to the respondent should have been defined. Her discussion included the following passages, extracted from paragraphs [51] to [67]:-
Breach of duty
51 Acceptance that the appellant owed the respondent a duty of care did not answer the questions whether that duty was breached or whether any breach caused the respondent's injury...
52 Further, "[a] person does not breach his or her duty of care merely because there are steps that he or she could have taken to avert the risk that actually materialised": Thornton v Sweeney [2011] NSWCA 244 (at [131]) per Sackville AJA (Campbell JA and Tobias AJA agreeing); see also s 5C(b), Liability Act...
55 Despite its appearance in that part of the Liability Act headed "Duty of care", section 5B engages with the issue of breach of duty of care.
56 Thus, s 5B(1) sets out three preconditions that must co-exist before liability in negligence arises, while s 5B(2) provides a non-exhaustive list of factors the court is required to take into account in deciding whether the third of those preconditions exists: Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; (2009) 77 NSWLR 360 (at [173]) per Campbell JA (McColl JA agreeing); see also (at [443]) per Sackville AJA.
57 The effect of s 5B(1), accordingly, was that the appellant was not negligent in failing to take precautions against a risk of harm unless the risk was one of which it knew or ought to have known, the risk was not insignificant, and in the circumstances, a reasonable person in the appellant's position would have taken those precautions.
58 Section 5B(1)(c) invokes the notion of foreseeability as it is relevant to breach of duty of care. Reasonable foreseeability of the class of injury the plaintiff suffered is also an essential condition of the existence of the duty to take care for the benefit of another. However the nature of the foreseeability inquiry differs depending upon the stage at which it is being considered.
59 In Shirt v Wyong Shire Council [1978] 1 NSWLR 631 (at 639 - 640) Glass JA said that "[t]he inquiry to be made in relation to duty or no duty [of care] relates to the foreseeability of harm resulting to the plaintiff from the conduct of the defendant, considered quite generally", whereas "[t]he conduct relevant to the breach inquiry is the foreseeability of harm resulting from the acts or omissions of the defendant, or its servants, proved to have occurred." Thus, the foreseeability inquiry at the duty and breach stages raises different issues which progressively decline from the general to the particular: Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 (at 295) ("San Sebastian") per Glass JA; see also Vairy v Wyong Shire Council (at [70] - [73]) per Gummow J...
62 At common law, the plaintiff did not have to establish the precise and particular character of the injury or that the precise sequence of events leading to the injury was foreseeable; it was sufficient if the kind or type of injury was foreseeable: Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 (at [64]) per Gummow J. Nothing in the Act dictates any different approach when considering the requirement of s 5B(1)(b) that the risk be "not insignificant": Shaw v Thomas [2010] NSWCA 169 (at [43]) per Macfarlan JA (with whom Beazley and Tobias JJA agreed).
63 Nevertheless, as Basten JA emphasised in Hoffmann v Boland [2013] NSWCA 158 (at [3]) "[t]he focus of [s 5B] is upon the 'risk of harm' and the 'precautions' which might be taken against such a risk."
64 Thus the breach inquiry required the primary judge to identify accurately the actual risk of injury the appellant faced as it was only through the correct identification of the risk that her Honour could determine what a reasonable response to that risk would be: Roads and Traffic Authority of New South Wales v Dederer (at [18], [59]) per Gummow J. As Gummow and Hayne JJ explained in Graham Barclay Oysters Pty Ltd v Ryan (at [192]), the inquiry as to breach "involves identifying, with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk". In so saying, their Honours referred with approval to Isaacs A-CJ's observation in Metropolitan Gas Co v City of Melbourne [1924] HCA 46; (1924) 35 CLR 186 (at 194), that "[n]o conclusion of negligence can be arrived at until, first, the mind conceives affirmatively what should have been done".
Identifying the risk of harm
66 The influence of Gummow J's statement in Roads and Traffic Authority of New South Wales v Dederer concerning the need to identify the relevant risk of harm accurately for the purposes of s 5B is apparent in recent decisions.
67 Shaw v Thomas concerned, relevantly, the question whether the occupiers of a home had breached their duty of care to a 10 year old visitor who suffered serious head injuries when he fell whilst descending from the top level of a bunk bed. The parties were at issue as to how the risk of harm should be characterised for the purpose of s 5B. Macfarlan JA held (at [45]) that the risk was sufficiently defined as one of the plaintiff "falling and injuring himself whilst descending from the top bunk of the bed", a risk his Honour regarded as "not insignificant [because] [t]here is always some risk of injury when children climb up to and down from elevated surfaces."
60Her Honour then quoted (at [68 - 71]) from the passages in the Court of Appeal's judgment in Garzo that we have reproduced above. At [72], she added the following observation:-
72 As is apparent all formulations of the risk of harm in Garzo focused on the condition or particular nature of the surface (the painted strip of the pedestrian crossing) on which the appellant had slipped.
61McColl JA's discussion of how the relevant 'risk of harm' in the proceedings before the Court should have been defined appeared in paragraphs [84 - 87] of her judgment:-
84 If the primary judge accepted the respondent's evidence in this respect, she then had to identify the risk of harm for the purposes of s 5B(1). That required her Honour, as I have said, to identify accurately the risk of harm of which the appellant knew, or ought to have known.
85 The primary judge identified the risk of harm merely as a slippery ramp. A formulation pitched at that level of generality failed, in my view, accurately to identify the risk of harm the respondent faced. It also distracted the primary judge from determining the significance of the risk and what a reasonable response to that risk was.
86 As is apparent from the previous discussion, in a case such as the present, identifying the risk of harm for s 5B purposes required focus on the nature of the surface on which the respondent slipped. Having regard to the respondent's evidence as to his observations of the surface of the ramp (and giving him the benefit of his surmise concerning the presence of dry algae), the risk of harm was, in my view, that of slipping and falling on dry algae on the ramp.
87 Had her Honour identified the risk of harm in the terms I propose, she would have realised that, save as to the respondent's allegation of his fall on dry algae, there was no evidence that there was a risk of slipping on the dry part of the ramp, even if dry algae was present.
62At [151] and [153 - 158], Ward AJA dealt as follows with the question of identification of the 'risk of harm':-
151 It is not disputed that Mr Pender was required to establish that there was a "not insignificant" risk of harm of which the Council knew or ought to have known and to which it ought reasonably to have responded. In Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330 Gummow J at [59]-[61] referred to the need for there to be a correct identification of the risk of harm in order for an assessment of the reasonable response to be made.
153 Ms Norton [counsel for the respondent] submits that the relevant risk of harm was the risk that a person would slip on the ramp and thereby suffer injury; and that there was no need to articulate it more clearly than that, referring to Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 [24] and [123]. In Garzo, Tobias AJA had considered at [123] that the risk of harm could be sufficiently identified as that of a person slipping on the painted surface of the crossing and thereby suffering an injury.
154 It is implicit in [the trial judge's] findings that the risk of harm her Honour had identified was, at its broadest, the risk that a person in the position of Mr Pender would slip on the ramp and suffer harm. The finding at [30.2] that it was not reasonably foreseeable that a person in Mr Pender's position would have gone onto the ramp for the particular purpose that he did, i.e. to check the underneath of the ferry for ferry clearances, is not necessarily inconsistent with the implicit finding that there was a risk that a person in his position might go onto the ramp, for whatever reason, and fall.
155 The Council was clearly on notice that ferry operators might from time to time walk on the ramp since it was on notice of at least two earlier incidents involving ferry operators falling on the ramp. Therefore, I do not accept the submission that the finding at [30.2] should have led to a finding of no negligence.
156 In oral submissions, it was argued by Mr Sexton that a more specific risk of harm (by reference to the state of the ramp's surface rather than by reference to the purpose for which someone might go onto the ramp) was the risk that had to be identified, namely the risk of a workman slipping on (imperceptible) dry algae, so as to enable focus to be made on the question what should have been done to prevent the risk or to take precautions against the risk. That accords more closely with the way in which the risk of harm was identified in Garzo and focuses attention on the relevant enquiry, which is what the Council ought reasonably to have done to address that risk. I would accept that finding such a risk of harm was necessary in order to give rise to a claim in negligence as contended for by Mr Pender.
157 Nevertheless, having regard to the measure her Honour referred to as available to remove the risk, i.e., pressure cleaning, it is implicit in her Honour's overall reasons that the risk of harm identified by her Honour was that of slipping on a ramp that was slippery because of dirt or some kind of covering, such as algae, on the ramp. Whether or not the Council could reasonably have foreseen that dry algae was slippery, there was clearly a basis for the finding that it was reasonably foreseeable by the Council that if the ramp became slippery by reason of slime or contaminants or algae growth of some kind, then someone in the position of Mr Pender could slip and fall.
158 Ultimately, although not precisely identified, the risk of harm was sufficiently clear from her Honour's reasons as a whole.
63The third member of the Court, Barrett JA, expressed his agreement with the judgments of McColl JA and Ward JA and did not address the question of how the risk of harm should be identified.
64Mr Allan put forward two submissions based specifically on the judgments in Pender. The first was that we should bear in mind McColl JA's statement (at [62]) that under the CL Act, as well as at common law, a plaintiff does not have to 'establish the precise and particular character of the injury or that the precise sequence of events leading to the injury was foreseeable', since it is sufficient that 'the kind or type of injury' is foreseeable. Secondly, he maintained that her Honour's observations as to formulation of the risk of harm, while warning against defining this risk 'in the abstract', also demonstrate that it should not be defined in excessive detail.
65According to Mr Allan, the Tribunal's error in defining the risk of harm too narrowly induced it to ignore evidence of a substantial risk of fire within the Premises that it should have taken into account. This included evidence that during the Respondent's occupation of them the temperature was frequently very high and, as a number of photographs clearly demonstrated, much of the available space was occupied by garments and other flammable items. In this context, Mr Allan maintained (in paragraph 39 of his written submissions) that since the Respondent was a bailee for reward of the items entrusted to him by his customers, there were 'social and economic reasons for treating a reasonable person in his position as one who responds vigilantly to the mere possibility of fire'.
66In response to these submissions, Mr Perla argued that in a number of paragraphs that we have quoted from McColl JA's judgment in Pender, her Honour was concerned to emphasise that the risk of harm should not be defined too broadly. He drew our attention specifically to paragraphs [66], [68 - 72] and [84 - 87].
67A further authority on which he relied was paragraph [41] of the judgment of Campbell JA in Sibraa v Brown [2012] NSWCA 328 (from which the Tribunal quoted an extract in its decision at [69]):-
41 Section 5B requires risks to be assessed prospectively. As a matter of ordinary language a "risk of harm" relates to harm that has not yet happened. That is consistent with the requirement in s 5B(1)(a) that the risk of harm be "foreseeable", which happens when a person knows or ought to know that there is a risk that harm might arise in the future. The "risk of harm" to which s 5B(1) refers is harm that might be suffered by anyone to whom the defendant owes a duty of care, as a consequence of the failure to take the precautions referred to in s 5B(1).
68Finally, Mr Perla argued that the Tribunal, appropriately, had 'imported the articulation of the risk' that the Appellant had himself put forward in his Application for Original Decision, but now sought to abandon - namely, the risk that recently dried clothes that were left in a container might self-ignite.
69The onus of proof. In paragraphs 4 and 11 of his written submissions in the appeal, Mr Allan raised the argument that in defending the contractual claim the Respondent bore the onus of showing that the fire was not attributable to negligence on his part. The relevant passages were as follows:-
4. Basically the premises were the respondent's responsibility while he remained tenant. He could only escape responsibility for damage if he could show that there was no 'neglect or default' on his part leading to that damage.
11. The covenant in the lease was an absolute promise to keep the premises in good repair. To not do so was to breach the lease, leading to a claim for damages. The respondent could exculpate himself by showing that disrepair was not a product of his neglect or default. In other words, the parties agreed that the respondent would carry an onus of proof should damage occur to the building.
70In his oral submissions in the appeal, Mr Allan did not elaborate on this argument. This question of onus was not mentioned in Mr Perla's submissions, in the Tribunal's decision or (as far as we can ascertain) in the parties' submissions to the Tribunal.
71The Tribunal's interpretation of evidence given by Mr Kelly. The passage in the Tribunal's decision to which this submission of Mr Allan was directed comprised the first two sentences of paragraph [60]:-
60 The knowledge which has been acquired by Mr Kelly in the course of his experience investigating fires as to the incidence of apparent spontaneous combustion in commercial laundries appears to have largely arisen in "recent years". Apparently, Mr Kelly may only have become aware of this incidence in the period following the date of his first report on 24 August 2010 because it was not mentioned in his first report; this was, of course, after the fire.
72Mr Allan argued that the Tribunal misrepresented what Mr Kelly had said in the relevant part (paragraphs 6.2 and 6.3) of his first report. He had shown that at the time of this report he was fully aware of the risk of spontaneous combustion of heated cloth materials in commercial laundries.
73Mr Perla did not respond to this argument in his submissions.
74The Tribunal's observation regarding the foreseeability of loss by fire. The observation to which this submission by Mr Allan refers was the following statement in the Tribunal's decision at [71]:-
71 The Applicant submits that the simple fact of running a laundromat for a number of years creates the foreseeability of loss by fire; this bald proposition is not supported by any evidence...
75In his oral submissions, Mr Allan described as 'odd' the proposition that there was no evidence that the conduct of a laundromat business created a foreseeable risk of loss by fire.
76This was another argument to which Mr Perla did not respond.