Moor v Liverpool Catholic Club Ltd - [2013] NSWDC 93 - NSWDC 2013 case summary — Zoe

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Moor v Liverpool Catholic Club Ltd

[2013] NSWDC 93

District Court of NSW|2013-05-29|Before: Mr J

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At a glance

Source facts

Court

District Court of NSW

Decision date

2013-05-29

Before

Mr J

Catchwords

(198) 162 CLR 479 Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352
(2000) 50 NSWLR 338 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Graham v Baker [1961] HCA 48
(1995) 182 CLR 1 Papatonakis v Australian Telecommunications Commission [1985] HCA 3
(1985) 156 CLR 7 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42

Source

Original judgment source is linked above.

Catchwords

(198) 162 CLR 479 Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352(2000) 50 NSWLR 338 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Graham v Baker [1961] HCA 48(1995) 182 CLR 1 Papatonakis v Australian Telecommunications Commission [1985] HCA 3(1985) 156 CLR 7 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42(1965) 114 CLR 481 Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19

Judgment (38 paragraphs)

[1]

Table of Contents Nature of case [1] Issues [3] - [4] Credit [5] - [7] Facts [8] - [47] Plaintiff's background [9] Accident details [10] - [25] Injuries [26] Treatment and subsequent assessments [27] - [35] Disabilities [36] - [41] Work effects [42] - [46] Mitigation [47] Issue 1 - Evaluation of expert evidence on liability [48] - [81] Issue 2 - Whether an obvious risk was present [82] - [94] Issue 3 - Whether inherent risk [95] - [99] Issue 4 - Whether negligence [100] - [171] Issue 5 - Whether contributory negligence [172] - [185] Issue 6 - Assessment of damages [186] - [201] Life span of plaintiff [187] Non-economic loss [188] - [190] Past economic loss [191] Past loss of superannuation [192] Future loss of earning capacity [193 - [198] Future out-of-pocket expenses [199] Past out-of-pocket expenses [200] Summary of damages assessment [201] Disposition [202] Costs [203] Orders [204]

[7]

Accident details 10The plaintiff attended the defendant's premises with other family members in order to go ice skating. Other family members had proceeded to the ice rink and had started skating before him. He had been ice skating before, but not at these particular premises. He hired a pair of size 13 skates from the counter. He went to a row of chairs located a few metres away from the counter where he sat and donned the hired skates. He then proceeded to the head of a flight of stairs in order to descend to the ice rink, which was at a level about 2 metres below the head of the stairs. The plaintiff said, and I accept, that he did not recall seeing any warning signage on the entry doors to the premises or in the premises. There was no evidence that anyone had directed his attention to any such signs from the time he had entered the premises until the time that he had fallen. 11As the plaintiff was walking down the stairs, he was using the skate blades on the boots as pivots when placing his feet on the stairs in the course of his descent, including on the edge or nosings of the stairs. The skate blades were longer than the tread or going sections of the steps. When he reached a point at or about the last step or so, the skate blade on which he had placed his weight, slipped forward on the wet and slippery nosing edge of a step. In those events, the plaintiff fell backwards and landed on his backside, on the last step. 12The floor area in the vicinity of the stairs, including the treads or going portions of the stairs, was covered in a reconstituted or recycled rubber carpet type compound that was clearly intended to be soft, waterproof, with a non-slip characteristic. The nosing of each step comprised a grooved edge strip which was yellow, and made of a non-slip, flexible polypropelene or rubber-like compound. This too was obviously intended to have a non-slip characteristic. The nosing material was highly visible compared to the darker material used on the flooring and on the treads and risers of the stairs. A sample of that material was tendered at Exhibit "5". 13The plaintiff described the stairs as having a centre handrail. He could not recall having used the handrail in the course of his descent. He said he did not notice the railing as he went down the stairs. The CCTV footage of the incident, and the printed frames of that footage comprising Exhibit "D", suggest that in large part, the plaintiff was holding onto the handrail during his descent, and at some point his left hand was in the vicinity of the handrail in a position that looked like a position ready to steady his descent if required. There were some frames within the CCTV footage suggestive that his left hand was raised, as if positioned above or on the handrail in the second or so before he fell. 14When the plaintiff descended the stairs they were wet with moisture. As he descended he placed the blade of the skate boot on the back of the step, but because of the length of the skate blade, there was an overhang of the blade over the front of the nosing edge of the step. The plaintiff thought the overhang of the blade over the step was at about the half-way point of the length of the blade. 15When the plaintiff descended and had reached the point of the stairs where he fell, he stepped forward to take the next step. As he did so, the tread or going section of the stairs, did not accommodate the entire length of the skate boot blade. He said, and I accept, that he did not know this before he had started his descent. 16In the process of stepping forward, the blade was at an angle over the edge of the nosing of the step. Although the plaintiff does not recall precisely how he fell, it is clear from his description of having lost his balance, and from what is seen at 15:41:36 hours on Exhibit "2", the CCTV footage which covered the stairs at the time of the fall, that he had slipped as he stepped on the nosing edge of what can reasonably be assumed to be the last step of the stairs. His account of that part of the incident, which appears at T21.20 to T22.10, is as follows: "Q. It's all right. You said you lost your balance, in what direction did you lose your balance? A. I don't remember what, what, if my left or my right leg went out but slipped out and. Q. Did you fall forward or backward or to the side? A. Backwards, actually, like as I went down it was like I was in a slippery dip and I went up in the air and yeah then my right leg went behind me and I've landed on my, on my leg because it was under me and the right ankle was up a couple of steps as I landed. Q. So you've described slipping backwards like on a slippery slide-- A. Yeah. Q. --and you say your right ankle, which is the ankle which was injured-- A. Yep. Q. --ended up, you say, sort of behind you? A. Yeah, yeah. Q. What happened to your body after you came off this step? You've spoken of going backwards-- A. Yep. Q. --what happened to the rest of your body? A. It felt like I actually, I was in the air actually for a few - it happened so quick but it did feel like when I slipped, I was actually in the air, like that's how quick it happened and it's, when I've come down, my, yeah, my right leg, it's stayed behind and I've landed on it. I've landed basically just on, like, my butt kind of thing, on my back half kind of thing. Yeah. Q. Do you know when you landed on your butt, do you remember what step you were on? Were you down towards the bottom of you were on the same-- A. I was down, I was down towards the bottom. I think I was, I think I was on, my butt was on the fourth step, I think. The third of fourth step. Q. Do you remember anything about the steps themselves as you're walking down them that was not normal? A. Apart from it just having a yellow strip on it. I know I do recall it had a stainless edging on the very edge of it. My apologies on that, I don't recall about it but yeah." 17The plaintiff acknowledged that his recollection of the presence of stainless steel nosing on the edge of the steps was erroneous. 18The plaintiff described landing on the stairs after the fall and then trying to pull his right leg out from underneath, and of experiencing major pain. At that stage, he recalled having his right hand on the handrail, which he had described as being wet. 19During cross-examination, the plaintiff was shown the photographs that comprised Exhibits "1", "3" and "4". These showed a number of signs in the premises. He did not recall having seen any of those signs at the premises on the day in question. 20Although the plaintiff could not recall which step he had actually slipped on, he conceded the probable accuracy of the description recorded in the report of Dr Dave, to the effect that he had slipped on the last step. He was adamant that the stairs were wet at the time. I accept his uncontradicted evidence in that regard. 21The CCTV footage of the incident was difficult to interpret because of the relative darkness of the area and the small size of the image on the laptop computer screen when it was shown in court. When later replayed for analysis, the image could not be enlarged sufficiently for any clearer view. 22The plaintiff denied that he had not looked down as he descended the stairs. He acknowledged that he knew it was important to walk slowly on stairs. He agreed, after he had been shown the CCTV footage, that he had walked quickly down the stairs. He also agreed, after he had been shown the CCTV footage, that the events of the slip and fall happened quickly. That evidence requires evaluation in connection with the allegations of contributory negligence. 23Critically, at T55.39 to T56.7, in answers to questions put to him in cross-examination, the plaintiff gave the following evidence: "Q. I want to suggest to you, Mr Moor, that the reason you fell was firstly because you were not paying attention to the steps as you went down there as you wore your skates. Do you agree with that? A. Probably, yes, sir. Q. I wonder if you can just move your hand sir, the monitor is having difficulty recording your voice. A. Sorry. Q. Secondly, you didn't hold onto the railing as you went down, did you? A. No, sir. Q. Had you done that, you'd have been able to steady yourself as you went down, wouldn't you? A. Yeah, yes, sir. Q. Indeed, the real cause of this was that you were hurrying down those stairs so you'd get onto the rink to be with your brother, wasn't it? A. Yes, sir. " 24That evidence also requires evaluation in connection with the allegations of contributory negligence. I do not regard the plaintiff's answer that he "probably" was not paying attention as indicative of the correctness of the assertion that was put to him. Whilst the defendant was obliged to put the question, I consider the plaintiff was simply acknowledging the possibility inherent in the question, rather than the fact. With regard to the plaintiff's concession that he was "hurrying", I do not consider the CCTV footage bears out that conclusion, and I do not read the plaintiff's answer as an admission that he was hurrying in the sense of either factual or legal causation, or as a reliable basis for finding contributory negligence. The bland acquiescence apparent in those answers has to be considered in the light of his plain bewilderment with the questions at the time. Whether he was probably not paying attention, or whether or not he was hurrying, are matters that have to be assessed on the evidence as a whole, including the CCTV footage. 25The question of whether the condition of the premises and the circumstances of the plaintiff's injury amounted to a breach of duty of care on the part of the defendant, and therefore negligence, will be considered after I have set out my findings concerning the plaintiff's injuries, disabilities, and the effects of these upon his ability to work.

[9]

Treatment and subsequent assessments 27An ambulance was called to the scene to attend to the plaintiff's injuries, and he was then transported to Liverpool Hospital. The ambulance transport records described the plaintiff as having fallen down a step whilst wearing skates, injuring his right ankle, which was noted to be painful and causing difficulty with weight bearing. 28The plaintiff remained in Liverpool Hospital for the ensuing 9 days, between 14 January and 22 January 2009. During that time he was initially treated with a back slab plaster to his leg to keep it in a stable position, and he was mobilising on crutches without weight bearing on the right lower leg. The plan was for the plaintiff to be transferred to Fairfield Hospital to await planned operative treatment, which was to consist of an open reduction and internal fixation of the ankle with screws. He was under the care of a consultant orthopaedic surgeon, Dr Chandra Dave. 29The plaintiff remained as an inpatient at Fairfield Hospital between 22 January 2009 and 24 January 2009. The contemplated operative procedure was performed on 23 January 2009. After his initial surgery, the plaintiff was fitted with a plaster cast, which remained on his right leg and ankle for 3 months. 30On 8 May 2009, the plaintiff was admitted to Campbelltown Hospital under the care of Dr Dave for removal of a diastasis screw to the right ankle. After recovering from this procedure, the plaintiff was discharged from hospital to be followed up by Dr Dave in his rooms. There is still some indwelling hardware in his right ankle that has not yet been removed. 31The plaintiff subsequently had physiotherapy to his right ankle, as was recommended to him. 32On 19 October 2010, the plaintiff was examined by Dr Dave for the purposes of a medical examination conducted at the request of his solicitor. At that time, Dr Dave stated the surgical procedure of open reduction of the ankle fracture had gone well from a technical perspective. Dr Dave stated that the plaintiff had some limitations in extremes of ankle movement, which resulted in the plaintiff ceasing his participation in sports. Dr Dave also noted some painful rotational movements of the right ankle. Dr Dave stated that apart from the permanent scar on the right lower leg, the plaintiff's prognosis was fair, in that he said he will probably have ongoing stiffness of that ankle. 33Dr Dave also noted that the plaintiff was at an increased risk of developing osteoarthritis in the injured ankle. He expressed that the increased risk as being 5 percent. He did not indicate whether this was an overall lifetime risk, or a shorter term risk that might increase with age 34On 11 May 2012, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Anthony Smith, a consultant orthopaedic surgeon. Dr Smith noted the plaintiff's history of intermittent experience of pain in his right ankle, with aching at the end of the day and in cold weather, with associated stiffness, as well as aching after sitting for any length of time, and early in the mornings. Dr Smith was of the opinion that apart from a residual scar, "there was nothing else wrong with the ankle". 35Neither party called oral evidence from those doctors to explain or elaborate upon the opinions they had expressed in their reports.

[10]

Disabilities 36As I consider the plaintiff was a truthful witness, I am satisfied that I should accept his account of his injuries and their effects as summarised in the various medical reports that were tendered. Accordingly, in addition to the plaintiff's oral evidence, I propose to draw upon the medical reports for evidence of the plaintiff's early post-injury difficulties, his treatment and his ongoing disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995. 37The plaintiff initially experienced pain and itchiness around the site of the plaster cast, which he wore for 3 months following his surgery. During that time he took a lot of pain killing medication. At that time he was in constant pain, which he rated as being at 8 on a scale of severity of 1 to 10. After the plaster cast was removed, he found he had difficulty weight bearing on his right foot. The plaintiff is a large framed man who weighs a little over 100 kgs. 38The plaintiff continues to experience pain in his ankle and cramping on waking each morning. It takes him some time to ease this problem by moving about. He experiences difficulty with stiffness, mobility and agility with his right leg. He finds difficulty lifting, squatting and bending, tasks that he did without difficulty in his former employment. 39The plaintiff describes his style of walking since his accident as being like that of an old man, because of the way his ankle stiffens up. His ankle is always in pain. He finds that after a full day of work, he has to rest his ankle by putting his feet up to relieve the discomfort. His ankle pain feels worse in cold weather conditions and he feels he moves awkwardly on his right foot. He has difficulty with weight bearing and turning to pivot on his right foot. He is concerned about bumping or twisting his injured ankle and he has therefore not returned to exercising in a gymnasium, in part due to not feeling comfortable. 40The plaintiff has been left with scarring to his right lower leg, and some residual pain, discomfort and restriction of certain movements. The pain is an almost daily experience for the plaintiff, depending upon his activities. The plaintiff's behavioural response to these disabilities has been stoic, to say the least. 41In light of the above findings, based on my acceptance the plaintiff's factual account, I do not accept the opinion of Dr Smith to the effect that there is nothing wrong with the plaintiff's right ankle. It is clear that Dr Smith did not have the same opportunity to review the plaintiff's more fulsome evidence concerning his ongoing complaints that related to his ankle fracture.

[11]

Work effects 42Following his accident, the plaintiff remained unable to work until about mid-August 2009. At that time, he started to look for alternative work to his pre-accident employment because his residual disabilities precluded him from resuming that type of work. After a few weeks of looking for a job he found employment with MT Andrews Auto Freight. That work involved him assisting the drivers of trucks with inter-urban vehicle deliveries, and occasionally driving such vehicles. 43After about 6 months carrying out that work, he moved on to workshop duties, including assisting the mechanic with diesel repairs when the company vehicles had broken down. That work was on occasions heavy and it involved activities such as bending and squatting, which the plaintiff found caused him difficulty with his ankle. 44About seven months before the hearing, the plaintiff moved on to duties as a truck driver with the same employer. This remains his present position. His duties require him to drive non-articulated rigid top trucks from a depot at Badgery's Creek to various urban delivery sites in NSW. He works 40 hours per week Monday to Friday, and at times works an extra 20 hours per week in overtime. At times his earnings are about $800 per week net. At the time of the hearing, he was earning $697 per week net of tax. 45There are aspects of the plaintiff's work activities, which cause him difficulties. These include walking, standing, cramping when sitting for prolonged periods, including whilst driving, squatting lifting and bending. He has difficulty weight bearing and turning using his right ankle as a pivot. He has difficulty sitting and driving for prolonged periods as his ankle stiffens and he has trouble having his foot on the accelerator. 46As a consequence of his injury, the plaintiff is no longer able to sustain a full range of work activities that require unimpeded standing capacity and normal agility. These matters are all relevant to assessing the plaintiff's entitlement to damages for impairment of his future earning capacity.

[15]

53Mr Burn pointed to a lack of consistency within the measurements of the treads and the risers on the flight of stairs. In his view, this meant that persons using the stairs would have no assurance when placing a foot on each step. In my view, when a person of the plaintiff's height was descending the stairs, those discrepancies would not have been obvious when looking down the flight of stairs. 54Mr Burn identified the length of a size 10 male skate blade to be 330mm, which was 73mm longer than the average tread on the stairs. That measurement has to be considered in the light of the plaintiff having worn a larger, or size 13 skate, which would have been at least to some length, if not longer. Mr Burn pointed to the manner in which the stairs would have to be negotiated, namely, with the ball of the foot (or blade in this case) being at or slightly in front of the nosing, thus creating a high risk of overstepping on descent. 55Although Mr Burn's initial report wrongly assumed the presence of a metal nosing strip, based on an assumption that came from the plaintiff, that incorrect assumption is severable has been filtered out of my consideration of his evidence. 56At Table 24.25 of his initial report and in the context of the requirement that the treads and risers be consistent throughout a flight of stairs, Mr Burn demonstrated that the treads and risers, whilst not constant, were more or less in accordance with the maximum and the minimum parameters. 57Against the background of slip resistance test results for the type of materials used on the step nosings, essentially, Mr Burn considered that the plaintiff's accident could have been avoided by requiring skaters to put on their skates at the bottom of the stairs, placing signs saying that skates should not be worn on the stairs, and changing access requirements in the form of a ramp. 58On 13 September 2012, Mr Burn provided a supplementary report at the request of the plaintiff's solicitor. For that purpose, he was provided with a CD-ROM said to show CCTV footage of the plaintiff's fall at the time of the accident. He was not able to access the footage. Instead, he inspected some 52 still frames or printed images taken from that footage. 59Those still frames show the plaintiff's fall at images 38/39, after descending the steps with his feet in a splayed position from the perpendicular. Mr Burn stated that this appeared to be necessary because the skate blades (300mm) were 73mm longer than the average steps tread, namely plus or minus 15mm. Mr Burn stated that the observed splayed position of the feet was an unnatural alignment. In that regard, he stated: "Without the use of a splayed stride (an unnatural foot alignment for most people) there is high probability the 'normal' placement of the skate as if it were a shoe will be the 'natural' step down from one step to another. At a skating rink there is sufficient activity to momentarily distract people as they descend the steps to approach the rink; any distraction can result in a 'normal' foot alignment placement on the step instead of a splayed foot alignment. If the normal alignment is used overstepping occurs relying on skate/nosing friction to prevent the foot sliding forward. Unless the skate blade cuts into the step nosing and binds (unlikely), the skate will slide forward as weight is transferred from the rear foot to the leading foot. The skate sliding forward unexpectedly will result in a fall." 60Mr Burn's interpretation of the photographs was that on the third-last step of descent, the plaintiff's foot was sliding forward and the plaintiff was falling backwards, with the limited space between the base of the steps and the rink wall, this resulted in the wall being struck by the skate as the plaintiff fell. 61I have viewed the CD-ROM of the CCTV recording, and I agree with Mr Burn's interpretation. Mr Burn considered the images showed the plaintiff using a handrail on his descent down the stairs. My viewing of the CCTV footage does not contradict the correctness of that observation. 62In August 2012, the plaintiff's solicitor issued a subpoena calling for the defendant to produce documents, including architect's recommendations, safety audit and risk assessment documents and some policy documents. No architectural recommendations were produced, but the safety audit documents and 8 incident reports were produced, covering the period 15 February 2008 to 16 January 2009, the last dated report relating to the plaintiff's accident: Exhibit "C". In that form the details of the incident were summarised as follows: "Chris was walking down the stairs at the (sic) of the ice rink when looking up to see where his family members were on the ice were (sic) he missed the last step slipping and having his ankle buckle underneath him with his full body weight on him. Chris said he heard something pop." 63The incident was reported to someone at the defendant's premises named Deb. Someone called Anthony, another employee of the defendant, gave the plaintiff some assistance at the scene. Neither of those witnesses were called to give evidence. 64A matter of interest arising from the incident reports was that the plaintiff's footwear was described in the form as being "other", which clearly related to his skating boots. An incident report dated 4 May 2008 described that person's footwear as "shoes" and all of the remaining incident reports described the footwear worn as "other". The plaintiff seeks an inference that all references to "other" are references to skating boots being worn.

[16]

Dr John Cooke - expert architect qualified by defendant 65The defendant relied upon a report dated 19 September 2012 from Dr Cooke. He surveyed the regulatory framework for the premises and concluded that the stairs were compliant with Ordinance 70, and that otherwise, no relevant Australian Standard applied at the time of the accident. However, he made tests which adopted the test procedures specified in AS/NZS 4663:2004 and he proceeded to attempt measurements of the co-efficient of friction between a piece of polished metal plate he assumed simulated the surface of an ice skate blade, and the nosing on the stairs. 66Using that technique, Dr Cooke measured that co-efficient of friction to be 0.24. He concluded that in those circumstances, there was sufficient friction available for users of the stairs wearing ice skates to descend the stairs without losing their footing, if reasonable care was taken. That finding on testing of the co-efficient of friction made no allowance for the extent to which the stairs were wet. 67Dr Cooke gave consideration to Mr Burn's report and he also had regard to the CCTV video footage. He disagreed with Mr Burn's view that the plaintiff had not descended the stairs recklessly. Those differences of opinion can be essentially summarised as follows: (a)Dr Cooke was critical of Mr Burn's report as it was not based on testing; (b)Dr Cooke disagreed with the suggestion that narrower stairs were indicated, for separate descent and ascent because users could not simultaneously use both handrails; (c)Dr Cooke disagreed with the proposal that skaters should be required to don their skates at the foot of the stairs, as he thought they could use the stairs by placing their skates at an angle, if necessary, to feel secure when using the stairs, as is evident from the CCTV footage as to the way in which other users descended the stairs. 68Counsel for the plaintiff made extensive criticisms of the content of the report of Dr Cooke: T92 to T101. In essence, the criticisms were that Dr Cooke's opinions are largely unsubstantiated statements: T92.40. 69Mr Burn prepared a supplementary report in response to some of Dr Cooke's criticisms of his analysis. In his reply to Dr Cooke's commentary, Mr Burn made the following remarks critical of Dr Cooke's analysis and report: (a)When Dr Cooke undertook his wet co-efficient of friction tests (at paragraph [3] of his report), this was not a valid comparison because the pendulum slider used in that testing not only impacted with the polypropylene stair nosing, but also with the rubberised compound that covered the adjacent stair tread, which was higher than the edge nosing intended to be tested, and this would influence the test result; (b)The remarks made by Dr Cooke (at paragraph [40] of his report), to the effect that at 15:41:37 on the CCTV footage, the plaintiff appeared to be paying inadequate attention to the task of descending down the stairs whilst wearing skates, and an expressed uncertainty as to whether at that time, he was using the handrail on his left, were observations different from his own, which were based on an animation of sequential still prints. This is a factual matter that I must resolve by making a finding. (c)Dr Cooke's comment (at paragraph [41] of his report) that a person wearing ice skates needs to apply a reasonable level of attention to the tasks to avoid a loss of balance, is a statement of commonsense. Dr Cooke's observation that other users of the stairs, as seen on the CCTV footage, took the precaution of placing their skate blades at an angle to the stairs to obtain maximum purchase on the tread needs evaluation. Mr Burn described the manoeuvre differently, pointing out that when the ball of the foot in the skate is at the edge of the stair nosing when the skate is perpendicular to the flight of stairs, this is an unstable position, and unless a "duck walk" manoeuvre is adopted, to spread the feet at an angle, there is a risk of sliding due to the load point or fulcrum or the ball of the foot in the skate, being in front of the nosing; (d)Dr Cooke's comment (at para [46] of his report), expressing disagreement with his interpretation of Mr Burn's commentary on "defective ... [stair]... geometry" is a misrepresentation. Mr Burn pointed out his comment that was so characterised by Dr Cooke, was "the goings and risers of the flight are not consistent throughout"; (e)Mr Burn rejected Dr Cooke's comment (at paragraphs [56]-[57] of his report), to the effect that the probable cause of the plaintiff's loss of footing was that he had overstepped the nosing, and in doing so, had taken insufficient care on descending the stairs and this was due to inadequate foot support on the stairs rather than inadequate slip resistance of the tread surface. This was because the length of the treads was shorter than the skate blades, so that any adult descending the stairs in skates, would have to place the ball of the foot in skates, or the load or fulcrum point, at or beyond the nosing edge, thus leading to overstepping, unless a "duck walk" procedure is adopted; (f)Mr Burn's overall comment was that the stairs as constructed, were suitable for pedestrians using normal footwear, whereas skates have a blade significantly larger than the boot, thereby changing the position where the load under foot is placed on the steps, effectively resulting in overstep, unless drastic change is made to the gait of the wearer, to the "duck walk" style of stair descent. For the stairs to be safe for use by skate wearers, Mr Burn was of the view that the treads or goings had to be significantly longer than the standard stair going intended for normal footwear; (g)Mr Burn thought it significant that from the incident reports (which comprised part of Exhibit "C") none of the accidents appeared to involve slipping or falling on the ice rink, and the majority involved accidents associated with persons using the stairs.

[17]

Conclusions on utility of the expert evidence 70Having considered the respective reports of Mr Burn and Dr Cooke, I have concluded that Mr Burn's analysis of the mechanics of the plaintiff's fall is more reliable when compared to the opinions of Dr Cooke. 71I consider this to be so notwithstanding the erroneous assumption made by Mr Burn concerning the severable assumption concerning the presence of stainless steel nosing on the edges of the steps. When that erroneous assumption is severed from the consideration, it makes no real difference to the validity of the opinions of Mr Burn. Furthermore, I consider that Dr Cooke's report contains a number of unsubstantiated or unreasoned statements that undermines the acceptability of the opinions in his report. 72On the other hand, as has been pointed out by Mr Burn, Dr Cooke's assumptions and conclusions are flawed by the nature of his testing and by some of his incorrect assumptions. My reasons for that view are as follows. 73First, I find that Dr Cooke's measurements of the co-efficient of friction between the simulated surface of a polished ice skate blade and the edge nosing material are unreliable because, as Mr Burn pointed out, the results are contaminated because of the influence of the rubberised flooring compound on the test results where the relevant fiction contact was between the ice skate blade and the edge nosing material. In my view, in the absence of an explanation from Dr Cooke to the contrary, this fact must be taken to have an adverse impact upon the reliability of his opinion based on an analysis of the co-efficient of friction of the relevant surfaces as causative a factor. 74Secondly, Dr Cooke's calculations concerning the wet co-efficient of friction do not precisely replicate the effect of a 100kg man wearing ice skates. The adaptations of the testing procedure adopted by Dr Cooke, and the effect of those adaptations, remain incompletely explained: Report of Dr Cooke, page 7, paragraph 33. 75Thirdly, I consider that Dr Cooke's commentaries to the effect that the plaintiff appeared not to be paying adequate attention during his descent down the stairs was not determinative. I took that commentary to be in the nature of a submission on that issue. That is a matter on which I must make a finding after considering the evidence as a whole. 76Dr Cooke's criticism of Mr Burn's opinion to the effect that Mr Burn had, in Dr Cooke's view, been critical of the "geometry" of the stairs in reality went nowhere, as the dispute on that issue amounted to a semantic interpretation of the significance of the uneven dimensions on the treads, goings and risers. 77In my view, a common sense analysis dictates that the splayed foot position required for Dr Cooke's "duck walk" manoeuvre, represented an unnatural means by which to descend stairs wearing ice skating boots. I consider that this merited some discussion from Dr Cooke along the lines suggested by Mr Burn. In my view, the absence of such a discussion undermines the reliability of the report of Dr Cooke. 78Further, the analysis by Dr Cooke has not considered, as Mr Burn has, and as I must, the significance of the other slip and fall incidents that have occurred at the premises and which involved the stairs: Exhibit "C". 79Overarching all of these matters is the fact that the stair on which the plaintiff stepped was wet to a degree that precludes empirical analysis. This is a factual matter that did not feature in and was not explained in Dr Cooke's expert analysis. On the evidence, I am unable to conclude that the degree of wetness of the stairs when the plaintiff fell, and the plaintiff's manner of walking, equated to the test conditions adopted by Dr Cooke for the purpose of his analysis. The evidence was silent on this point. This compels me to the conclusion that the utility of Dr Cooke's analysis is very limited in this case. 80For these reasons, I prefer the opinions of Mr Burn as being more reliable than those in the report of Dr Cooke, except for Dr Cooke's explanation at paragraph 51 of his report at pages 11 and 21, where he identifies the essential problem as being factual, namely, when a pedestrian walks at a modest speed, a slipping risk tends to arise when an unexpected change in the surface (such as water on an otherwise dry surface) is encountered and no adjustment is made to the stride or speed of movement to avoid slipping. The relevance of that observation to this case is that the plaintiff had no notice of the water on the steps before he slipped on them. 81The defendant relies on the propositions that the building in question was architect designed, and built by reputable builders, and had been in use for some 14 years: T61. In the absence of evidence that the structure in question was built in conformity to the design, nothing turns on that point. The real question is whether the defendant was negligent in respect of the occupation and use of the premises as an ice rink at the time of the plaintiff's injury.

[18]

Issue 2 - Whether an obvious risk was present 82The defendant has pleaded a defence of obvious risk, pursuant to s 5F, s 5G and s 5L of the CL Act. The questions for decision in connection with that defence is whether the activity of walking down stairs whilst wearing ice skates at an ice rink, involves an obvious risk within the meaning of s 5F(1) of the CL Act, and whether such argued obvious risk in fact materialised and caused injury to the plaintiff. These concepts require a structured analysis. 83The question of whether there was an obvious risk present pursuant to s 5G of the CL Act involves an objective determination of whether the plaintiff's conduct involved a risk of harm that would have been obvious to a person in the position of the plaintiff: Jaber v Rockdale City Council [2008] NSWCA 98, at [27]-[28]; Lalouach v Ibrahim [2011] NSWCA 402, per Giles JA, at [79]. The question of obviousness of the probability of the occurrence of harm in the circumstances is dependent upon what is, or is not, readily apparent to a reasonable person in the position of the plaintiff: Jaber v Rockdale City Council, at [35], per Giles JA. 84The analysis must begin with the non-controversial proposition that the activity of descending down stairs carries with it an ever-present risk of falling, even when wearing normal footwear. By extension, that risk must also be present when descending stairs whilst wearing ice skating boots. Such risks would obviously be heightened where the person descending the stairs was aware of the surface or edge nosing being wet and where the treads, goings and risers were the subject of unevenly distributed dimensions. In my view, these considerations are patent, and must be assumed to have been within the common knowledge of people in the community who act reasonably: s 5F(2) of the CL Act. 85It is also a given that the ever-present risk of falling down stairs during descent, whether whilst wearing ordinary footwear, or ice skating boots, lessens and involves a lower probability of occurrence if the individual descending the stairs takes prudent precautions during the descent. Nevertheless, a reduced risk with low probability of harm occurring still remains an obvious risk: s 5F(3) of the CL Act. 86Those propositions must be evaluated in light of the known and found facts relating to this particular case. 87In my assessment, for the reasons that follow, the distinguishing features between the above statements of principle and the application of those principles to the facts of this case, is that the defendant has not proven any of the elements required to establish the defences relied upon under s 5F, s 5G and s 5L of the CL Act. 88First, the defendant has not shown that the activity in which the plaintiff was engaged, namely descending down the stairs wearing skate boots, was a dangerous recreational activity within the meaning of s 5L of the CL Act, namely an activity that carried with it a significant risk of harm: Lormine Pty Ltd v Xuereb [2006] NSWCA 200, per Mason P, at [31]. On the contrary, the effect of the expert evidence is that if the stairs were appropriately constructed, and an appropriate technique was adopted for the descent, the task could be carried out safely. Furthermore, the activity of descending the stairs was merely preparatory to engaging in the recreational activity of ice skating. That preparatory activity was not in itself dangerous recreational activity. The distinction is material. 89Secondly, the description of the plaintiff's descent down the stairs and the CCTV footage showing the course of his descent does not demonstrate any unreasonable conduct on the plaintiff's behalf. In my view, the suggested untoward rapidity of the plaintiff's descent down the stairs is a matter that is difficult to confirm from the medium of the CCTV footage. In my view, on the evidence adduced in this case, the defendant has not established the allegation that the plaintiff had descended the stairs in a manner that was oblivious to the risk of him falling. This is a matter to which I shall return when considering the defence of alleged contributory negligence. 90Thirdly, in my view, the defendant has not established that the plaintiff had either actual or constructive knowledge that descent of the stairs whilst wearing skate boots involved an obvious risk. In this regard, the following factors are relevant to that conclusion:

The plaintiff was not aware of the uneven distribution of the measurements of the treads, goings and risers that may have been influential in arriving at a common sense assessment of the risk of descent down the stairs by someone in the plaintiff's position at the time;
The defendant has not established that the plaintiff had been given either a general or specific warning of risk due to the state of construction of the variable dimensions of the stairs at the time when he entered the premises, and before he was about to descend the stairs. I am not satisfied that the sign to the effect of requiring "no skates beyond this point" was in fact present and available to be seen by the plaintiff on the day in question before he commenced his descent of the stairs;
There is no evidence that at the time of entry onto the premises, and at the time of payment of fees for using the premises, the plaintiff was made aware of conditions of entry that excluded liability for the condition of the stairs, as is sometimes seen in "ticket cases": Sydney Corporation v West [1965] HCA 68; (1965) 114 CLR 481, at page 486, [3].
It has not been shown that the plaintiff either knew or ought to have been aware that the stairs and the nosing edges of those stairs were wet, and were therefore slippery, either for use with skates, or otherwise. 91The evidence is in fact to the contrary. The plaintiff was not aware of any warning signs. That is not an unusual circumstance for people entering commercial premises. Absent specific attention being drawn to signage, it is not a given that persons entering premises would stop to read the detail of signs on entrance doors especially if they had no knowledge of any specific dangers within the premises, or knowledge of an array of such dangers. 92With regard to the photographs showing signs on the premises, the defendant's employee, Mr Tsoulis stated that the photographs in question had been taken well after the incident, and he was not the person responsible for the signage. Furthermore, Mr Tsoulis had no knowledge of any records concerning the frequency of inspection of the premises. This is particularly relevant to the sign to the effect that no skates were to proceed beyond a particular point near the head of the stairs. There was no satisfactory evidence that the sign was in that position on the day of the plaintiff's injury. It is noteworthy the sign in question was not a fixed structure, either at the time the photograph was taken, or beforehand. 93The plaintiff followed the course that others had taken in descending the stairs to the ice rink before him. Beforehand, he had used the chairs provided at the upper level of the premises to sit and had put on his skating boots. He then used the stairs as others had done. The plaintiff's description of the events in his oral evidence and the CCTV footage does not demonstrate that the plaintiff had either acted unreasonably or that he ought to have been aware of specific obvious risks whilst wearing ice skating boots and descending the stairs in question. 94Accordingly, on the tests propounded in Jaber v Rockdale City Council, and in Lalouach v Ibrahim, and on the factual considerations outlined in the preceding paragraphs, in my view, the defendant has not established its claimed defences of materialisation of an obvious risk, or any defence based on s 5F, s 5G or s 5L of the CL Act.

[21]

Whether a duty of care was owed: s 5M of the CL Act 101The defendant argued that as the plaintiff had been generally warned of the risk of engaging in ice skating, through signs in the premises making those warnings, consequently the defendant did not owe the plaintiff a duty of care: s 5M of the CL Act. 102The warnings relied upon by the defendant comprised the content of a number of signs in the premises: Exhibits "3" and "4". The content of the relevant signs was as follows: (a)"NO RESPONSIBILITY The Activities provided in this centre have a certain amount of risk attached. By entering the Centre our patrons and their guardians accept that there is a degree of risk and release the Centre from any responsibility or legal liability in an activity or actions of other patrons present or participating in [indistinct word] activity": Exhibit "4"; (b)"ARE YOU A BEGINNER SKATER? Assistance available during some public skating times, Please ask at Cashier Counter": Exhibit "4"; (c)"NO SKATES BEYOND THIS POINT : Exhibit "4"; (d)"Ice skating is a dangerous sport. All patrons are requested to read and understand the Conditions of Entry and the No Responsibility signage before entering the Ice Rink. Please skate carefully at all times": Exhibit 3"; 103The significance of these signs, and the intention behind them are matters requiring construction from the viewpoint of whether a reasonable person entering and using the premises for whatever purpose, would have regarded such signs as warnings to which the exclusionary provisions of s 5M of the CL Act apply. 104The sign replicated in paragraph [102] at (a) was in red text on a black background. The sign replicated in paragraph [102] at (b) was in yellow text on a black background. The sign replicated in paragraph [102] at (c) was in black text on a green background. The sign replicated in paragraph [102] at (d) was in black text on a white background, with the underlined text appearing in red, including the underlined text. 105There was no evidence either way as to whether or not the plaintiff had any problems with red green colour blindness, or any other form of colour blindness, and I shall therefore disregard that as a factor in my consideration of the evidence of the plaintiff that he did not recall seeing any signs on entering the premises. 106There is evidence that the plaintiff had problems with reading and pronouncing big words. That evidence was not contradicted, and it is a subjective matter that I must take into account in my assessment of his evidence that he did not see, and could not recall seeing, any signs in the premises before his fall. 107The sign in [102] (a) above clearly drew attention to the respective concepts of "No Responsibility", "liability", "Activities", and "risk". That sign was located at the entrance to the premises, as was the sign in [102] (b) above, and it was obviously directed at all person entering the premises. 108The sign in [102] (b) above was directed at beginner skaters requiring assistance. Clearly, this sign did not apply to the plaintiff as he had skated before at other premises and he was not a beginner. 109Questions as to the relative prominence of the signs in [102] (a) and (b) above, or any predominant perception that was open to be gained from those signs, which sometimes arises in warning sign cases, do not arise in this case as the evidence of the plaintiff was that he did not recall having seen these signs on the doors, and the undisputed evidence of Mr Tsoulis was those signs were present on the day in question. 110The sign in [102] (b) above was, as seen in that photograph, placed to the right of the top of a flight of stairs in the premises. Mr Tsoulis described the location of the signs at the top of the stairs in the present tense at the time of the trial: T62.48 to T62.3. He said he was responsible for maintenance at the premises, but was not responsible for the signage: T65.22. He did not say that the sign in [102] (c) above was in that location at the time the plaintiff was injured. The photographs were taken some time later. 111Accordingly, I find that there is no reliable evidence to suggest the green sign with black print in [102] (c) above, which appeared to be on a moveable stand, was in that place on the day of the plaintiff's fall, and in a position the plaintiff was likely to have been able to see before he commenced his descent down the stairs. 112The evidence was silent on whether the cashier at the counter drew the attention of the plaintiff to any of these signs at the time he paid for use of the premises and for the hire of the skate boots. 113Against that factual background, and employing a purposive construction, the terms of s 5M of the CL Act must be applied to those facts. 114In the context of this case, I construe the "risk of the activity" referred to in s 5M(1) of the CL Act to be a reference to the activity of ice skating. I consider this must be so because the premises comprised an ice rink and the sign in [102] (a) above referred to the "The Activities provided at this centre". The relevant activity referred to in that sign was ice skating, not using the stairs to proceed to engage in the activity of ice skating, the latter being what the plaintiff was doing at the time he slipped and fell. I consider the distinction to be material in this case. 115That construction is consistent with the message conveyed by the sign in [102] (d) above which has as its focus the dangers of the sport of ice skating. 116The sign in [102] (d) above raises a question as to whether the sign in [102] (a) above was intended by the defendant to be the "Conditions of Entry" referred to in the sign in [102] (d). I consider that the answer to that question to be no, because, were it otherwise, the sign in (a) above would have specifically referred to its status as comprising "conditions of entry". If the sign on the entrance door was in fact intended to comprise conditions of entry, it would ordinarily be expected that it would state this on its face, rather than leaving it open to interpretation by a range of readers with varying literacy skills to draw such a conclusion. 117I therefore conclude that the risk warnings contained within those signs were not likely to have the result of alerting the plaintiff of the risk of falling whilst negotiating the stairs within the premises, irrespective of the type of footwear that was being worn: s 5M(3) of the CL Act. The warnings inherent in the signs related to the recreational activity of ice skating, not other actions taken in preparation for ice skating, such as negotiating stairs within the premises in order to gain access to the ice rink for the purposes of engaging in the contemplated recreational activity of ice skating. 118In arriving at that conclusion, I have not overlooked s 5M(5) of the CL Act, which provides that a "risk warning" need not be specific to the particular risk, and can be a general warning that includes the particular risk concerned. The meaning of "risk warning" referred to in that sub-section was considered in Action Paintball Games Pty Ltd (in liquidation) v Barker [2013] NSWCA 128. 119In Action Paintball Games Pty Ltd (in liquidation) v Barker, at [27], the term was construed to mean a warning with respect to the existence of a risk, noting that it was possible to warn of a risk without instructing the recipient of the warning as to all steps necessary to avoid the risk. In that case, the risk which materialised was that of a 10 year old girl tripping over a tree root in bushland whilst playing outdoor games known as action paintball and laser tag, Action Paintball Games Pty Ltd (in liquidation) v Barker [1] - [2]. 120The warning provided in the signs at the defendant's premises clearly related to a range of risks involved in ice skating at the ice rink. I do not consider the warnings constituted by the signs to were of sufficient specificity to have also encompassed the risk of traversing down a flight of stairs, whether in skate boots or not, in order to gain access to the ice rink to engage in recreational activity. I consider that view of specific risk is not a hindsight evaluation of the type referred at [26] in Action Paintball Games Pty Ltd (in liquidation) v Barker, because there the mechanism of injury by tripping over a tree root whilst playing a game in bushland was of a materially different character of injury to the present case, which involves a fall on a foreseeably wet, slippery step in the course of gaining access to the place where the recreational activity was to be undertaken. 121It is beyond argument that the risk of harm through tripping and falling is a common risk of daily life: Action Paintball Games Pty Ltd (in liquidation) v Barker, at [35]. In my respectful view, that case is distinguishable from the present case because the risk of harm by traversing foreseeably wet stairs with an uneven distribution of dimensions of the treads, goings and risers, in conjunction with wearing ice skating boots, raises a different spectre for the evaluation of the existence of a duty of care, the scope of that duty and questions of breach. 122Consequent upon these conclusions, it is necessary to identify the duty of care owed and the scope of that duty.

[22]

Duty of care and scope of that duty 123The plaintiff claimed, correctly in my view, that as the occupier of the ice rink, the defendant owed him, as a customer entrant onto the premises, a general duty of care to take reasonable care to avoid a foreseeable risk of injury: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (198) 162 CLR 479, at pp 487 to 488, [11] to [12]. 124The duty of an occupier of premises extends not only to a static condition of premises, but also to activities conducted upon the premises: Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 at [26]. Relevant to this case, this must be taken to be a reference to the state of the stairs and the manner in which the stairs were used by the defendant's patrons. 125It can be assumed that the defendant was aware of that scope in this case because of the content of the sign inviting skaters who were beginners to consult the cashier for assistance: Exhibit "3". 126That scope or content of that duty of care generally varies according to the circumstances, which includes the degree of knowledge or skill an occupier may assume an invitee was expected to have, based upon the purpose for which the invitee enters the premises: Thompson v Woolworths (Queensland) Pty Ltd, at [25], citing Papatonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7, at [20]. The scope or extent of a duty owed by an occupier is that of an occupier exercising reasonable care to prevent injury to entrants who use reasonable care for their own safety: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330, at pp 345 to 346, [45], citing Indemaur v Dames (1886) LR 1 CP 274 at 288. 127The scope of such a duty of care is to be considered in conjunction with the expectation of the occupier that entrants onto the premises will exercise reasonable care for their own safety, but also envisages the possibility that entrants may at times be inattentive or negligent: Thompson v Woolworths (Queensland) Pty Ltd, at [35]. 128Relevant to the facts of this case, for example, the defendant was aware that on 17 August 2008, a patron had slipped whilst walking down the stairs whilst wearing skate boots notwithstanding that she had been holding onto a hand rail. 129In appropriate cases, the duty may be taken to extend to take into account, or allow for, the thoughtless, inadvertent, careless or misjudged actions of customers: Sutherland Shire Council v Henshaw [2004] NSWCA 386, at [63] to [68]. 130In applying those principles to the present case, the defendant owed the plaintiff a duty of care to ensure that the plaintiff was provided with a safe means of access to the ice rink, knowing that its customers used the stairs whilst wearing ice skating boots. 131In the present case, it is clear from the evidence of Mr Tsoulis that the defendant knew or ought to have known that its customers used the stairs in question as a means of ice rink access and egress. This is apparent from the evidence of Mr Tsoulis in which he described the practice of replacing worn or marred step edge nosings that were damaged by the blades of ice skates worn by customers. Further, on an analysis based on common knowledge, by extension, because the area at the base of the stairs comprised an ice rink, and because where there was ice there must also be moisture where the ice is in contact with the atmosphere, the defendant must be taken to have known that it was foreseeable that the area of the steps could become moist or wet through contact with wet ice skate blades, if not from general atmospheric condensation in proximity to ice.

[23]

Was there a breach of the duty of care owed? 132The question of whether the defendant was in breach of a claimed duty of care, and was therefore negligent, must be considered and resolved within the statutory framework provided by s 5B of the CL Act. 133The allegations of breach of duty of care relied upon by the plaintiff can be essentially summarised as being: (a)Failure to ensure the steps were adequately slip resistant given that patrons would be likely to walk down the steps wearing ice skates; (b)Failure to ensure the steps were reasonably safe to walk upon using ice skates; (c)Failure to warn the plaintiff not to put on ice skates at the top of the steps because the steps were slippery; (d)Failure to take adequate precautions for the safety of the plaintiff; (e)Exposure of the plaintiff to the risk of injury that could have been avoided by the exercise of reasonable care. 134In support of the pleaded allegations of negligence, the plaintiff relied upon the opinions of Mr Burn, and some aspects of the opinion of Dr Cooke, as well as invoking a common sense analysis of the factual circumstances. 135Having regard to the factual circumstances, it is plain from the evidence that the defendant had discharged its obligation to provide slip resistant steps because it provided rubberised tread covering and polypropylene yellow edge nosing to the steps. 136Questions relating to the safety of the stairs for persons wearing skates, the slipperiness of the stairs, and the need to take precautions against the risk of injury, remain to be considered and resolved. 137Through the evidence of its expert, Dr Cooke, the defendant maintained that it was not hazardous to traverse the steps in question whilst wearing ice skates provided the user adopted a splayed foot position at an angle to the step treads, or a "duck walk" as it was described, when negotiating the steps: Dr Cooke, report, page 2, paragraph 10. 138The question of whether the defendant was in breach of a relevant duty of care, and therefore negligent, must be considered and resolved within the statutory framework provided by s 5B of the CL Act. That consideration follows. Requirements of s 5B(1) of the CL Act 139The initial inquiry is whether the plaintiff has established the three pre-conditions required by s 5B(1) of the CL Act. In my view, the evidence discloses that the plaintiff has fulfilled each of those three requirements. 140First, the defendant clearly knew or ought to have known that there was a risk that a person using the stairs might slip and come to harm, thereby satisfying the requirement of forseeability: s 5B(1)(a) of the CL Act. 141That knowledge may be inferred from the evidence of Mr Tsoulis, whose job was to maintain and to arrange maintenance within the premises, and periodic replacement of the non-slip edge nosing on the stairs. That knowledge is also demonstrated within Exhibit "C", which comprises copies of a number of incident reports showing that that there were previous incidents including injuries to patrons on 15 February 2008, 23 April 2008, 28 April 2008,17 August 2008 and 26 September 2008 involving falls on stairs. In some of those instances, customers were wearing skates whilst using the stairs. 142Secondly, the risk of falling on stairs was not insignificant in the circumstances: s 5B(1)(b) of the CL Act. That conclusion is similarly available on the evidence in the form of the incidents cited and described in Exhibit "C", as well as common knowledge. That assessment of significance of risk must be seen to be heightened when the stairs are predictably or foreseeably wet due to the effects of moisture on them. 143Thirdly, in the light of those matters, and on a common sense analysis, a reasonable person in the position of the defendant would have taken precautions to seek to avoid the risk of harm to persons who might fall on the stairs: s 5B(1)(c) of the CL Act. 144That conclusion arises in part from the sign photographed after the accident as shown in Exhibit "4", which requests patrons not to wear skates on the stairs. It also appears from the evidence of Mr Tsoulis to the effect that this particular sign was available at the premises before the plaintiff's accident, although there is no evidence it was in place at the spot identified in the photograph on the day of the plaintiff's fall. 145That conclusion also arises from the evidence of Dr Cooke, which acknowledged that in order to safely traverse the steps whilst wearing ice skating boots, patrons should adopt a splayed foot position or "duck walk" down the steps. In my view, this required that patrons be informed of the need to traverse the stairs in that manner, or that a safe alternative be provided for patrons to arrive at the ice rink especially if the risk of slipping was difficult to ameliorate because of the stairs being wet. 146I therefore find that the plaintiff has satisfied the requirements of s 5B(1) of the CL Act for establishing that the defendant should have taken precautions against the risk of harm to patrons from slipping on wet stairs. Requirements of s 5B(2) of the CL Act 147The above finding requires an evaluation of whether in the circumstances, a reasonable person would have taken precautions against the risk of harm: s 5B(2)(a) to (b), as follows. 148The first consideration is to evaluate the probability that harm would occur if care were not taken: s 5B(2)(a) of the CL Act. 149On the facts of this case, I consider that there was a high probability that harm would occur if patrons walked down the stairs irrespective of the presence of non slip edge nosing being in place. Such edge nosing would not have provided much of a slip retarding grip surface between the smooth surface of ice skating blades and the wet edge of the underlying step. 150In my view those circumstances required that specific warnings be given to patrons intending to use the steps to inform them of the risk of slipping and the need to adopt an unusual splayed footed method of descent on the stairs, quite apart from considerations of the irregular dimensions of the treads, goings and risers of the steps. 151Those circumstances also required that patrons be warned of the further risk of slipping and falling on the stairs due to the likelihood of the step edges being wet. 152The second consideration to be evaluated is the question of the likely seriousness of the harm that might occur in the event that precautions were not taken: s 5B(2)(b) of the CL Act. 153On the facts of this case, the risk of injury from falling on the stairs was not insignificant, and the range of possible injuries to patrons, such as limb, head and other injuries, was a matter already known to the defendant, as before the plaintiff's injury, a number of persons had already fallen whilst using the stairs: Exhibit "C". 154In my view, subject to the considerations required by s 5B(2)(c), those circumstances required that precautions be taken. 155The third consideration to be evaluated is the question of the extent of the burden faced by the defendant if the contended precautions for avoiding harm were required to be taken; s 5B(2)(c) of the CL Act. 156The relevant precautions that arise for consideration in this case were threefold, namely the provision of a safe set of steps of even dimensions with treads or goings wide enough to accommodate the length of ice skating boot blades, the provision of a warning to patrons, both in the form of a sign and a verbal instruction, requiring that ice skating boots be worn only after patrons had descended the stairs in question, and in the absence of the first two sets of precautions, provision of adequate warnings to ensure that patrons were properly instructed as to the need to adopt an unusual method of walking down the stairs in a splayed footed fashion, but even then, that a risk of falling due to wet stairs and wet stair nosings, still remained. 157As to the first possible precaution, namely the provision of a safe set of steps of even dimensions, there was no evidence as to the cost of altering the stairs to provide evenness of dimensions of the treads, goings and risers. The absence of evidence as to cost does not of itself preclude the consideration of the suggested precaution. 158However, the logical scale of a project to demolish a set of internal concrete steps and to replace them with stairs of evenly distributed dimensions capable of being used safely by person wearing skate boots suggests significant expense, with the need to engage an architect or designer, for the design to proceed through the approvals process, and for a builder to carry out the necessary work, with the required level of supervision. 159Having regard to those considerations I am of the view that the possible option of constructing an alternative stet of steps would most probably involve an excessive burden on the defendant. 160As to the second possible precaution, namely the provision of a warning to patrons not to put on their ice skating boots before descending the stairs, this suggested precaution does not seem unduly burdensome on the defendant. 161In that regard, patrons had to proceed through a gate keeping process for entry onto the premises after paying a fee, as well as for the hiring ice skating boots. It would not seem unduly burdensome for patrons to be told at the time of paying their entry fees and/or the time at which they hired their skates, that they should not descend the stairs wearing ice skating boots, but should instead wait until they reached the bottom of the stairs before putting on their boots. This is so particularly since the defendant was on notice of previous slips and falls on the stairs involving patrons wearing ice skating boots. This did not necessarily mean stationing a supervisory employee at the head of the stairs. A simple verbal instruction and explanation from the cashier would have involved a negligible burden in such circumstances, and this would have been an adequate discharge of the obligation at no discernable extra cost to the defendant. 162As to the third possible precaution, namely the provision of a verbal and diagrammatic warning and instruction for patrons to use the suggested "duck walk" or splayed footed technique for negotiating the stairs, I consider the burden of providing this information could have easily been discharged by the cashier advising patrons of this, as well as by the placement of a fixed and prominent sign at the landing before the head of the stairs, and which included a suitably prepared diagram of instruction, and for the cashier to draw the attention of patrons to the existence and content of such signs. 163The latter suggested precaution could also have easily incorporated a warning to alert patrons to the stairs being slippery due to wetness of the stairs from whatever source, be it due to trafficked moisture on ice skating blades from patrons leaving the ice rink and walking up the stairs with their ice skating boots, or from condensation due to the prevailing temperature at the ice rink. 164In either case, I consider that the cost of suitable signs and warnings along the above lines would seem negligible, and not out of proportion to the nature of the defendant's operations, given the defendant had beforehand expended monies on other, and less specific signs. 165Accordingly, I find that the burden of the defendant taking suitable precautions to avoid the risk of injury to patrons was not unduly great, especially in the context of a commercial enterprise where the cost of such precautions would have been an unremarkable business overhead. 166The fourth consideration to be evaluated is the question of the social utility of the activity that created the risk of harm: s 5B(2)(d) of the CL Act. 167In that regard, there is a high social utility in the provision of recreational activities to members of the public. Where, for example, such activities or facilities are provided by public authorities, the cost and practicality of taking precautions is a relevant consideration. The same considerations apply to commercial undertakings but without the protections afforded by Part 5 of the CL Act. 168In the case of a commercial undertaking, the cost of taking adequate precautions is a factor that is ordinarily built into the retail cost of the use of the facilities. There is no social utility in providing patrons with dangerous and unsafe means of access to areas where recreational activities are carried out and, in the process, to needlessly expose patrons to the risk of injury that could have been avoided by the exercise of reasonable care. 169Accordingly, for the preceding reasons, I consider that the plaintiff has satisfied the requirements of s 5B(2) of the CL Act as a precondition for a finding of negligence.

[25]

Issue 5 - Whether there was contributory negligence 172The defendant pleaded a defence of contributory negligence. The determination of whether there was contributory negligence on the part of the plaintiff must be assessed prospectively: s 5R(1) of the CL Act. The standard of care required of the plaintiff for the purposes of a determination of whether there was contributory negligence on his part is that of a reasonable person in the position of the plaintiff at the time the events occurred: s 5R(2)(a) of the CL Act. The basis of any such determination must be what the plaintiff knew or ought to have known at the time of the events in question: s 5R(2)(b) of the CL Act. 173The defendant relied upon the following particulars of contributory negligence: (a)Failure of the plaintiff to take reasonable care for his own safety; (b)Failure of the plaintiff to descend the stairs in a slow and measured fashion; (c)Failure to make adequate use of the handrail whilst descending the stairs; (d)Failure of the plaintiff to adequately watch his step whilst descending the stairs; (e)Failure of the plaintiff to take reasonable care in the face of what was an obvious risk. 174After considering the defendant's submissions on those particulars in light of the evidence, and generally, I consider that the defendant has not established its defence of alleged contributory negligence. My reasons for that conclusion are as follows. 175As to particular (a), which concerns an alleged failure of the plaintiff to take care for his own safety, the uncontested evidence is that the plaintiff had descended about 6 steps before he slipped and fell. There was nothing that emerged from the plaintiff's description of the events leading to that point, or from the CCTV footage, which suggested that the plaintiff had descended the steps without taking reasonable care for his own safety. He had succeeded in descending the stairs to the last step without any difficulty, slipping incident or fall. In my view, this suggests there was something about the step that was a factor that influenced the plaintiff's slip and fall, rather than fault on the part of the plaintiff. I therefore do not regard the apparent admissions by the plaintiff, cited at paragraphs [23] to [24] above, as determinative of whether or not he was keeping a proper lookout or hurrying. 176As to the component of particular (b), which concerns the plaintiff allegedly failing to descend the steps in a measured manner, this allegation is difficult to accept on a prospective analysis of the events because the plaintiff was unaware of any specific obstacles or any unusual measurements or dimensions associated with the steps, other than the fact that skate blades on his boots overhung the edges of the nosing of the steps. There is no evidence to suggest the plaintiff had bounded down the steps, or had taken more than one tread and riser combination in any one of his steps. In my assessment, in taking one step at a time as the plaintiff did whilst descending, absent any awareness of an uneven distribution of the dimensions of the treads, goings and risers, this does not suggest or demonstrate that the plaintiff had descended the steps in a fashion that was not measured. 177As to the component of particular (b), which concerns the plaintiff allegedly failing to descend the steps in a slow manner, this too is an allegation that is difficult to accept on a prospective basis because there appeared to be no change in the speed of the plaintiff's descent until he reached the point where he slipped and fell. When that fact is taken together with the fact that the stairs at that point were wet with moisture, the clear inference that emerges is that it was the slippery nosing edge due to wetness that caused the plaintiff to slip and fall. There is no evidence that a slower rate of descent would have made any difference to the occurrence of the plaintiff's slip and fall. The defendant relies on its interpretation of the CCTV footage of the plaintiff lifting his left hand off the handrail as evidence of the plaintiff walking down the stairs with some speed. That conclusion does not follow from an observation that the plaintiff had lifted his hand off the handrail. In my view, the plaintiff's slip occurred because of the presence of moisture on the step nosing, which had the effect of materially changing the slip resistance friction between the surface of the smooth skate blade and a dry edge nosing, and had nothing to do with an alleged failure on his part to use the handrail. 178As to particular (c), which concerns an alleged failure of the plaintiff to make adequate use of the handrail, the defendant argued that the CCTV footage shows the plaintiff lifting his left hand off the handrail as he walked down the stairs. In my view, there are several problems for the defendant relying upon this particular allegation. 179First, I am not convinced that the plaintiff did not use the handrail during his descent, and the defendant's interpretation of the CCTV footage is consistent with that view. In that regard, frames 12 to 35 of Exhibit "B" show he used the handrail. Frames 37-39 are indistinct. At those frames, the plaintiff is descending the stairs and it would not have been unreasonable for him to move his hand off the rail momentarily as he adjusted the position of his hand during his descent. Although he appears to have lifted his hand off the rail at about frame 36, I do not consider that casual action on his part can be properly characterised as a failure to make adequate use of the handrail. 180Secondly, accepting for the purpose of analysis that the plaintiff had not used the handrail at any time during his descent, it is clear that his left hand was near the handrail, and he could have grabbed it if he needed to steady himself during his descent. However, gauging from the plaintiff's descent to the point where he slipped, I consider that he had no notice that he needed a handrail to steady himself as he had successfully negotiated some 6 steps to that point without difficulty. This strongly supports the inference that the relevant causative factor in the fall was slipperiness of the pivot point on the edge of the step due to the presence of moisture on the polypropylene nose edge. 181Thirdly, and importantly, there is no cogent evidence to suggest that other than by means of speculation, the plaintiff's slip and fall would more probably than not have been arrested if he had been holding onto the handrail at all times whilst he descended the steps. I have come to this conclusion because of the plaintiff's considerable weight of about 100 kgs, which leads me to conclude that it was more probable than not that the plaintiff's slip on the wet edge nosing of the step meant that gravity would have had its inevitable effect with the fall that followed. Without evidence on this point I am not prepared to speculate that if the plaintiff held onto the handrail with his left hand during his descent, he would have been able to stop himself from falling down and sustaining injury as he did. 182As to particular (d), which concerns the plaintiff allegedly failing to watch his step as he was descending the stairs, there is no evidence that he did not in fact watch his step as he descended. The CCTV footage does not suggest the plaintiff was not watching his step. He was not on any notice of any unevenness in the dimensions of the treads, goings and risers, as had later been measured by Mr Burn on his inspection. Therefore, given that the plaintiff had arrived at about the last step without slipping, this suggests he was keeping a proper lookout for his own safety until the moment he encountered the moisture affected step. At that point he pivoted his foot on the edge of the step only to find it had slipped due to the presence of moisture on the edge. At that time, the plaintiff had found himself at a point of no return, and the consequent slip was inevitable. There is no suggestion from the evidence that the plaintiff ought to have been able to see the presence of moisture on the bright yellow edge nosing in the prevailing light conditions. 183As to particular (e), which concerns an alleged failure to take care in the presence of what was argued to represent an obvious risk, this is an issue that I have already dealt with and rejected in connection with my consideration of Issue 2 above. 184The defendant submitted that if the plaintiff had either been looking where he was going, or observed where he was placing his feet, or had maintained a continuous hold on the handrail, it would have been extremely unlikely that he would have suffered injury as he did. These are matters for which the defendant carries the burden of proof: s 5D of the CL Act. In my view, that submission is not sustained by the evidence, or any reasonable inference open on the evidence. 185For the foregoing reasons, I therefore reject the defence of alleged contributory negligence.

[31]

Future loss of earning capacity 193On behalf of the plaintiff, it was submitted that the claim for future loss of earning capacity should be assessed in the buffer amount of $50,000. In contrast, on behalf of the defendant, it was submitted that the appropriate buffer should be in the sum of $20,000. 194The plaintiff's current earnings are $697 per week net. Those earnings provide a relevant background to the claim for future loss of earning capacity. 195Although the plaintiff's present employment circumstances do not suggest any current loss of earnings, clearly, his ongoing symptoms of discomfort, especially when driving and when he is required to be agile, will have some impact upon his future earning capacity. Were it not for the effects of the accident, the plaintiff would not have had to endure these problems. I consider that these problems will be a future source of impairment of earning capacity and financial loss for the plaintiff as he ages: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1. 196As the likely timing of the deleterious impact of these matters is not predictable, all that can reasonably be said on the issue is that they will continue to adversely affect him in his work. He has many years of working life ahead. 197In my view, those circumstances justify the award of a buffer sum to cushion the plaintiff against the deleterious impact of that impairment to his earning capacity even though it is difficult to form a precise assessment of that loss: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], citing State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [87]; Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 338, at [49]. 198On that approach, I consider the amount of $50,000 represents a fair means of compensating the plaintiff for that loss. Accordingly, I award the plaintiff damages for future loss of earning capacity in the amount of $50,000.

Moor v Liverpool Catholic Club Ltd

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Judgment (38 paragraphs)

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Cases Cited (25)

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