Murray v Sheldon Commercial Interiors Pty Ltd

Court of Appeal (NSW)|2016-03-31|Before: Leeming JA, Payne JA, Schmidt J

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

Judgment

THE COURT: Mr Stephen Murray was seriously injured when he fell at work at a construction site in North Ryde, Sydney, on 13 December 2011. He was a glazier. He had been installing a window of an office partition as part of the refurbishment of the fourth floor of the building when he fell.
Mr Murray commenced proceedings in the District Court against the head contractor and occupier of the site, Sheldon Commercial Interiors Pty Ltd, in 2013. Following a three day trial, the primary judge gave judgment for the defendant. His Honour resolved a series of conflicts in the testimonial and documentary evidence favourably to Mr Murray and found that Sheldon had breached the duty of care it owed to Mr Murray. His Honour assessed his damages at $721,611.26. However, his Honour found that Mr Murray had failed to establish causation.
Mr Murray appeals, as of right, against the failure to establish causation, pursuant to s 127 of the District Court Act 1973 (NSW). By its notice of contention (which again is available to it as of right), Sheldon seeks to review many of the primary findings of fact (grounds 3 to 7). Sheldon also challenges the formulation of duty and the finding of breach against it (grounds 1 and 2). There are subsidiary issues in relation to a (contingent) finding of apportionment of 25 per cent of the responsibility to Mr Murray's employer for the purposes of s 151Z of the Workers Compensation Act 1987 (NSW), and the primary judge's decision not to consider contributory negligence.
For the reasons which follow, we would dismiss the appeal.

Factual background

Mr Murray and Mr Adam McPherson were employed by Clearwall Contracting Pty Ltd, which was a subcontractor retained by Sheldon in the course of refurbishing the fourth story of the building. The plans for the refurbishment show an entire floor of some 800m2, with large areas of open plan but also some 14 enclosed offices and meeting rooms. Part of the internal partitioning involved installing large sheets of glass into aluminium frames surrounding the offices and rooms. Mr Murray and Mr McPherson worked as a team. Both had metal ladders with steps rising to a platform at about waist height (we will return to the uncertainty about the physical dimensions of the ladder later). Both were wearing steel capped work boots. As the two men installed a sheet of glass which was to comprise part of the wall of an internal meeting room, one was located inside the meeting room, the other was in an open area intended to be used, when the refurbishment was complete, for personnel and storage.
The precise mechanism and cause of the accident were hotly contested at trial and on appeal. But there is no doubt that Mr Murray fell that morning, landed on his right leg, and was in excruciating pain. An ambulance was called at 9.23 am, and Mr Murray was taken to Ryde Hospital. His injuries were serious.

(a) The evidence as to dust contributing to the accident

The ambulance records state that a 34 year old man "[fell] from step ladder, unknown how he landed". A physiotherapist at the hospital recorded, "Fell off a ladder from 1 metre after slipping". Similarly, the discharge referral from the hospital stated, "Fell from about 1m high off ladder".
Mr Murray signed a worker's injury claim form two days later and, in answer to the question, "What happened and how were you injured?", said, "Fell off step ladder". That form did not state the names and daytime contact details of anyone who witnessed the incident, although, plainly enough, Mr McPherson had done so.
One week later, on 20 December 2011, Mr Murray saw Dr Brighton, an orthopaedic surgeon, who recommended an anterior cruciate ligament reconstruction and arthroscopy, and recorded this history: "This 34 year old glazier stepped awkwardly off a step ladder at work on 13/12/2011 coming down on his right knee which buckled under him. He actually landed on his backside, but was immediately aware of pain and swelling in the knee joint."
A "toolbox" meeting took place on 13 December 2011 at the site. Although there was a dispute about it, the primary judge found that it occurred shortly after and in response to the incident, and that finding is not challenged. The document stated that the meeting was conducted by "Peter V & Tony T"; the former refers to Mr Peter Vickery, the site manager, who was a witness in the defendant's case. Mr McPherson was not stated as being in attendance. Mr Raymond Villaneuva (also known as "Junior") was recorded in attendance. The document identified three "Issues/Comments Raised" as follows: "1. No 3 foot ladders to be used on site. 2. Please be careful when working on around ladders. 3. Keep areas of work clear & clean [at] all times."
It will be seen that none of these relatively contemporaneous documents referred to the presence of dust. Sheldon attached great weight to this in its submissions on the appeal.
Mr Murray's case at trial as opened was that he fell as a result of the site not being kept in a clean state. His evidence was that he slipped off the first step of a ladder as he was descending, owing to the presence of dust which made it slippery. Both he and Mr McPherson gave evidence that when they arrived at the site on 13 December 2011, there was a tradesman sanding the walls. Each man said that he spoke to the tradesman operating the sanding machine but that he did not speak English; Mr McPherson said that he was of Chinese background. Each man said that there was a lot of dust coming out of the sanding machine and that when they pointed this out to the tradesman, he ignored them. Mr McPherson described the problem as being that the vacuum, attached to the sanding machine, was "not picking up the dust properly".
However, there were many discrepancies between the recollections of Mr Murray and Mr McPherson, which Sheldon also emphasised in its submissions. In particular, Mr McPherson said that there were other trades on the site at the time, including electricians and painters. Mr Murray could not remember that painters had been there. It was put to him that "whatever sanding had been done to create dust had been well and truly finished before you arrived at the scene for the first day on 8 December". Mr Murray denied this.
The aspect of the cross-examination directed to the sequence of trades on the site was based upon a diary kept by Mr Stephen Napret, who, with his wife, traded as "A To Z Interiors" and undertook plastering or gyprock work for Sheldon as a subcontractor. Mr Napret's diary showed that there had been sanding on 27 and 28 November 2011 performed by Mr Villaneuva but that thereafter the men had been working "fixing the alley" and setting the ceiling until 13 December 2011. According to the diary, it was on 14 December 2011 that sanding (this time of the ceiling) resumed. Mr Napret and Mr Villaneuva also gave evidence that the sanding created only minimal dust. Both men appeared to be fluent speakers of English.
The site manager, Mr Vickery, confirmed that sanding was the plasterboard contractor's responsibility; that Sheldon used no one other than A To Z Interiors to do plasterboarding; that A To Z Interiors used no other labourers apart from Mr Villaneuva and Mr Napret, and that there was no one who was Asian or Chinese who could not speak English or understand English at any time on the site.

(b) The expert evidence of Mr Burn

Mr Ian Burn prepared a report for Mr Murray's solicitors. The report stated amongst "the Facts" that "while attending to his duties, Mr Murray slipped from the platform of a ladder and fell thereby sustaining injuries."
Mr Burn referred to the hazard caused by the accumulation of dust on surfaces, which became slippery. He stated that: "With so many different contractors and workers on the site, risk assessment prior to the commencement of work for the day would have revealed that sanding work was to be carried out and the subsequent hazards caused by that work."
Figure 2 of Mr Burn's report comprised two photographs of a step ladder, with a platform, which were described as "type of ladder used (scanned from instructions)". Mr Burn had received two sets of instructions, but only one (that dated 3 February 2014) was in evidence. (Both should have been annexed to the report, although little turns on this, because it is clear that both were available to the parties at trial.) It may be assumed that the photograph was attached to the second set of instructions dated 24 September 2014 (the same day as the report). To anticipate what follows, it was plain that there was not in evidence any picture, let alone any precise specification of the dimensions or characteristics, of the actual step ladder from which Mr Murray fell.
Mr Burn's report continued as follows: "I am instructed that at the time of injury Mr Murray was working on the platform of a step ladder similar to that seen in figure 2. The platform was 1.6 metres above the ground and Mr Murray was placing silicon joints in glass partitions at a height of approximately 2.7 metres. This work is carried out by using a standard type applicator and may require the worker to rebalance by moving his foot on the work surface. The surface being used by Mr Murray at the time of injury is smooth and does not have a fence around it to prevent falling. Dust on this surface would reduce the coefficient of friction to a level where the risk of slipping would be very high." (As mentioned above, Figure 2 was a photograph of a ladder, although it did not purport to be a photograph of the actual ladder which had been used.)
This passage of Mr Burn's report is next to a picture of two shoes. One appears to be a dress shoe, the other a gym shoe. Both pictures illustrate that dust would compromise the underfoot friction between the sole of the shoe and the surface upon which it was placed.
There is no reasoning in the report supporting the conclusions reproduced at [19] above. There was no quantitative assessment of what the reduction in the coefficient of friction would be for any form of footwear, let alone the work boots Mr Murray was wearing when he fell. There was no analysis of how much dust on any surface would be required in order to achieve a "very high" risk of slipping. There was no explanation as to what in fact was meant by a "very high" risk of slipping. There was nothing in the report concerning the effect of dust upon a person wearing work boots.
There were two further important deficiencies in the probative value of Mr Burn's report, because the evidence at trial and the findings by the primary judge were quite different from the instructions given to Mr Burn.
The first was that the primary judge found, in accordance with evidence that was uncontradicted, that the platform of the ladder was covered in yellow plastic, rather than being of smooth metal of the kind apparently depicted in Figure 2 of Mr Burn's report. The second was that the primary judge found that Mr Murray's fall occurred not when he was standing on top of the platform, but instead when he had attempted to place one foot on the first step down from the platform. Both those matters accorded with Mr Murray's evidence at trial, which departed from the instructions provided to Mr Burn, in ways that are material. There seemed to be no dispute that the edges of the metal steps of whatever ladder Mr Murray had been using had ridges designed to make them less slippery.
Objection was taken to the admission of Mr Burn's report, primarily because it did not disclose any process of reasoning or the application of specialised knowledge to the assumptions given to him. Nevertheless, it was admitted at the end of the first day of the trial, with the primary judge stating that it was "very much a question of weight". There was no attempt to adduce further evidence from Mr Burn in light of the discrepancies between his instructions and the evidence which had been adduced. He was also not cross-examined.

There was no contemporaneous evidence explaining in any detail how Mr Murray fell. There were no photographs taken of the site as it had been in mid December 2011. There were not even any photographs or other records of the ladder from which Mr Murray had fallen. If there were any statements made by any of the people who saw the accident on 13 December 2011 at the time, they were not in evidence.
Mr Murray gave evidence that he had slipped off the first step of the ladder, by which he meant the first step below the platform. He said that he noticed dust floating in the air as he climbed up. He said that he had been pumping the silicone into the seal with Mr McPherson on the other side. He said he had been wearing safety boots, which he replaced every six to eight months. He agreed that the boots had a "fairly distinct tread pattern to them".
The ladder itself was provided to Mr Murray by Clearwall, and kept in his possession, being taken home each evening.
It was squarely put to Mr Murray that he had slipped because there was some silicone on the ladder; that any sanding had been completed by 8 December; and that, to the extent that there was any sanding taking place on 13 December, it was well away from where he was working at the time of the accident. Mr Murray maintained that there was sanding going on about 3 - 4 metres away from the partition he was installing when the installation was taking place.
It was also put to Mr Murray that the reason that dust was not mentioned in any of the contemporaneous histories he had given to the ambulance paramedics and the medical practitioners whom he subsequently saw, nor in his workers compensation claim, was that dust was not a cause of the accident. He denied this.
Mr McPherson was a work friend of Mr Murray. He gave a similar account of the location where the accident occurred. However, there were other differences between his recollection and that of Mr Murray.
Mr McPherson said that it was he who was using the silicone gun to do the join and that Mr Murray was on the other side, removing the excess silicone (which is to say, the opposite configuration from Mr Murray's recollection). Mr McPherson also gave a different account of the amount of dust: "Dust everywhere from the sander, literally when you've walked when you sat - because there's no ventilation in there and it's hard to explain, if someone was to sand a wall and the vacuum was not picking up the dust properly, it's stuck in this room, so it's on your - you go like that it's going to pat off your clothes, it's in your hair, it's on everything that's around you".
He accepted that keeping the platform of the ladder free of dust was something which he knew he should do at all times.
Mr McPherson also gave evidence that the Filipino or Chinese tradesman who was sanding had started work "as we were doing the rubbering". He agreed that the tradesman had been doing so for "possibly 45 minutes to an hour".
Mr McPherson denied filling in a site induction form on behalf of Mr Murray. That question was prompted by the concerning fact that that form, which bore a scrawled signature not dissimilar to Mr Murray's, contained incorrect details as to his emergency contact person and his OHS card.
Mr Vickery did not see Mr Murray fall, but was on hand shortly afterwards. Prominence was given to two answers he gave in evidence in chief as to what he was told by Mr Murray when he asked how the accident had happened. Mr Vickery said: "I can't [say] verbatim but I'm quite sure he said that he stepped back off the ladder and he slipped and hurt his knee" and "I asked him and when I first come up and he said he'd stepped back off the ladder and misplaced, and slipped. So it was in the process of that, there was no mention of dust or anything else." An intervention by the primary judge immediately after suggests that Mr Vickery had withdrawn the word "misplaced" in that answer.
Mr Vickery said that he had seen little pieces of silicone on the platform of the ladder. He said there was no one in the vicinity using a sander in that room and that he could not remember seeing anyone sanding on the floor. He said that Mr McPherson had packed up and had left by the time the ambulance had taken Mr Murray away.
Mr Vickery was asked in chief and in cross-examination about the record of the "toolbox" meeting. He said that the reference to keeping areas of work clear and clean at all times was "a standard thing that we put on all toolbox talks so that we can keep clean and tidy sites". He maintained in cross-examination that the site was neat and tidy.
There was also relatively brief evidence from Mr Napret (who was not on site at the time) and Mr Villaneuva (who was). Both said that the site was generally clean. Mr Villaneuva denied that he had been asked to stop sanding on the site on the day. He said he had been working on installing alloy skirting which was placed on the walls after they had been painted. He gave this evidence in chief: "Q. Now, prior to seeing [Mr Murray] on the ground, had you seen him doing any work at that site on the day of his accident? A. Nah, to be honest, cause I do my own work so I don't really -"

The reasons of the primary judge

The primary judge delivered judgment on 24 April 2015 after the trial on 13, 14 and 15 April. The first 168 paragraphs recount the testimonial and documentary evidence, and may be passed over for present purposes.

(a) The factual findings

Paragraphs 169-190 contain findings of fact. In so doing, his Honour evidently had regard to the inconsistencies between Messrs Murray and McPherson (for example, as to who was doing the siliconing and who was cleaning up, the position of the ladder and where Mr Murray was when he fell). In all cases, his Honour preferred the evidence of Mr Murray. The primary judge observed that since Mr Murray had been injured his recollection was more likely to be accurate. He also noted that little turned on this (at [170] and [171]).
His Honour found that the mechanism of the fall was as follows: "I find that the plaintiff fell whilst placing one foot on the first rung down from the plastic platform. In this regard Mr McPherson thought that [Mr Murray] may have fallen from the platform itself, but again it is the plaintiff's evidence that I accept in this regard. In any event one foot would still have been on the platform so it could give the appearance of a fall from the platform": at [173].
His Honour observed that there was no evidence as to the condition of the soles of Mr Murray's work boots, and "no satisfactory evidence as to the description of the first rung down on the ladder", although his Honour stated that "[a]s a matter of common sense almost all ladders have some form of tread or ridging to lessen the possibility of slipping": at [175].
His Honour accepted the evidence that the platform had yellow plastic and was smooth and rounded at the edges, but observed that the plaintiff's own evidence was that he did not slip as a result of the edge of the platform, but on the first step down from the platform.
By way of further summary of the way in which his Honour resolved the conflicts in the evidence, he said at [178]: "I have carefully assessed the evidence given by the various witnesses and I found the plaintiff, although a somewhat depressed and anxious witness, to be generally straightforward and factual in relation to his work and the accident itself. This finding was somewhat diminished when he was subject to cross-examination concerning his ability to look after himself and undertake domestic tasks since the accident. However, generally I found him to be a witness of truth."
His Honour also concluded that Mr McPherson was doing his best to remember and truthfully outline what had occurred more than three years earlier, but as noted above had preferred Mr Murray's account where they differed.
The primary judge rejected Mr Vickery's evidence that the work area was in a very clean state. His Honour raised concerns about the work induction form signed by Mr Vickery, and concluded that Mr Vickery's evidence concerning the note on the toolbox meeting "Keep areas of work clear and clean at all times" was unsatisfactory: at [182]. The primary judge was conscious of the unequivocal evidence of Messrs Napret and Villaneuva that there was no sanding and that the area was relatively clean, but concluded: "Given the considerable passage of time and the repetitive nature of their work I prefer the evidence of the plaintiff and Mr McPherson in this regard": at [183].
His Honour then articulated a further reason for that conclusion: that neither worker had been asked to recall these matters for a number of years. His Honour noted that although the diary suggested that sanding had been completed by 28 November, both Messrs Murray and McPherson were clear that it was very dusty and that someone, perhaps of Chinese extraction, was operating a sander. His Honour concluded: "On balance I accept this evidence [namely, that of Messrs Murray and McPherson] although I cannot find that either Mr Napret or Junior were actually operating a sander at the time of the accident. I accept that Mr McPherson and/or the plaintiff spoke to someone just prior to the accident to try to get them to stop making dust. I accept that dust was in the air and that it probably coated items, including the plaintiff's ladder. However, I cannot find how much dust there was on the first rung down from the platform on the plaintiff's ladder": at [186].
The primary judge also had regard to the contemporaneous documents, and found that clean-ups were undertaken on 7 and 14 December 2011. His Honour concluded that notwithstanding the evidence of the three witnesses called for Sheldon, there was an accumulation of dust on both the plastic platform and on the steps of the ladder: at [189].
The primary judge then turned to the report of Mr Burn and said that he could not place much weight upon it because it was based - in accordance with his instructions - on the proposition that Mr Murray fell from the platform: at [188]. In relation to Mr Burn's statements to the effect that dust would reduce the coefficient of friction to a level where the risk of slipping would be very high, his Honour accepted Sheldon's submissions that the expert had not provided any factual or scientific basis for the statements: at [190].

(b) Reasoning as to duty, breach and causation

The primary judge identified the risk of harm that Sheldon was required to do something about was the risk of Mr Murray slipping off his ladder as a result of sanding work being conducted in the areas where he was working (at [198]), and formulated a duty of a reasonable person in its position to take "precautions of ensuring a clean relatively dust free area for glazing or have required glazing work to be halted until such a position existed": at [211]. His Honour concluded that this duty had been breached: at [201].
However, his Honour concluded that Mr Murray had not discharged the onus he bore, in accordance with s 5E of the Civil Liability Act 2002 (NSW), to show factual causation. The dispositive paragraphs were [217]-[221]: "217. I found that the defendant owed the plaintiff a subcontractor, a duty to take reasonable care and also that the defendant has breached that duty of care by allowing glazing work to be carried [out] whilst dust was being created nearby and by failing to carry out an appropriate risk assessment and in failing to stop any glazing work until the site was safe. However, pursuant to s 5D of the CLA can the plaintiff satisfy the "but for" test in this matter? Was the negligence of the defendant a necessary condition of the plaintiff falling and injuring himself? I accept the defendant's submission that the plaintiff needs to prove that any dust on the platform ladder caused or materially contributed to the risk of slipping off it. 218. Furthermore the plaintiff will need to prove that it was dust, in a sufficient quantity, resulting from the defendant's negligence, that was the cause of his injury. This requires expert evidence and unfortunately Mr Burns' (sic) report does not deal with the factual situation of the plaintiff slipping not from the top plastic platform but from one rung down. There is no satisfactory evidence as to the amount of dust on the first rung down. Further there is no expert evidence as to the effect of dust and/or the amount of dust on that step. Indeed, the plaintiff's evidence in regard to slipping was not clear. He says he did not slip from the plastic platform and his expert's report does not deal with a slip from the first rung down. There are other possible causes for the fall, such as inadvertence or not placing his foot properly on the rung or indeed the state of his footwear that could have contributed to his fall. 219. As stated there is no expert evidence to conclude that it was the dust on the ladder that caused the slip and indeed there is no expert evidence to show that dust from other sources such as the floor or clothing, contributed to the fall. Further there is no expert evidence as to how much dust on the platform or steps was necessary to explain the fall. 220. There is no evidence to show what the step on which the plaintiff slipped was made of or what non-slip surface it had and how much dust was necessary to cause his fall. Further, as stated, there is no evidence as to the bottom or soles of his footwear. 221. The plaintiff has therefore failed to establish causation in this case and therefore failed to establish negligence."

The primary judge said that it was not necessary to consider contributory negligence, and declined to do so in the alternative: at [222]. His Honour did consider the apportionment required by s 151Z and found that Clearwall was 25% responsible for that purpose: at [223].
His Honour assessed damages at $721,611.26. His Honour's assessment of damages was the only aspect of the judgment which was not subject to challenge on appeal. (A ground of appeal challenging one aspect of the calculation was withdrawn at the commencement of the hearing.)

Issues arising on the appeal

It is logical to deal with the issues arising on the appeal in the following order. First, we shall address grounds 3 to 7 of Sheldon's notice of contention, which challenge the findings of primary fact as to how the accident occurred and whether dust played any role in it. We shall then address the challenge to the failure to find causation which is the main issue in Mr Murray's appeal. We shall then deal with grounds 1 and 2 of Sheldon's notice of contention, which concern duty and breach. Finally, we shall address contributory negligence and s 151Z.

Notice of contention grounds 3-7: Challenge to factual findings

Sheldon challenged the findings that there was dust which was in any way connected with Mr Murray's accident. Sheldon pointed to: 1. the absence of any mention of dust in the contemporaneous histories given by Mr Murray; 2. the evidence of the absence of any sander of Chinese origin working on the site at the time; 3. the diary records of A to Z Interiors which stated that sanding had ceased the previous week; 4. the discrepancies between the recollections of Messrs Murray and McPherson; 5. the inherent improbability of there being such an amount of dust in the air and on surfaces while painting was taking place; and 6. the evidence of Sheldon's witnesses that the site was clean.
Sheldon went so far as to say that if the findings of the presence of a Chinese tradesman were accepted: "it could only be that all of Mr Vickery, Mr Napret and Mr Villaneuva were simply giving false evidence about the non-existence of this person. Yet this was not squarely put."
Sheldon relied upon what had been said in Nominal Defendant v Smith [2015] NSWCA 339; 73 MVR 257 by Basten JA and Leeming JA by way of support for the proposition that there had not been a sufficient resolution of the conflicting evidence, such that the process of fact finding had miscarried.
It is not necessary to repeat what was there said (at [6]-[11] and [73]-[75]) as to the nature of an appeal and the function of this Court. Central to Sheldon's case on appeal was the submission that there was an insufficient balancing or weighing of the conflicting testimonial evidence against the incontrovertible facts, the contemporaneous documents and the inherent probabilities. It was said orally that there were so many inconsistencies that it was not possible for the primary judge simply to say, "It's a recollection problem and the plaintiff is an honest witness and I prefer his evidence".
We would make the following observations about this.
First, there will undoubtedly be cases where, in the course of conducting the appeal by way of rehearing in accordance with s 75A of the Supreme Court Act 1970 (NSW), error is disclosed by a failure by the primary judge adequately to evaluate the competing evidence in the course of making factual findings. Such errors can arise in a variety of ways. In what follows, we are not seeking to enumerate those ways exhaustively, and indeed we doubt whether that could be done. Sheldon's submissions drew upon the well established principle that where there is a real conflict in the evidence, it is necessary to "engage with, or grapple or wrestle with the cases presented by each party". Examples may be seen in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116]; Sexton v Homer [2013] NSWCA 414; 65 MVR 460 at [43] and Keith v Gal [2013] NSWCA 339 at [109]-[119]. As was said in Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73 at [53], the point of the metaphor of "grappling" is that it is not sufficient to set out the conflicting evidence and conclude, without analysis, that the judge prefers one body to another: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 at [28].
Secondly, this appeal is not an example of the primary judge merely setting out the conflicting evidence and expressing a preference for that of the plaintiff. True it is that the primary judge comprehensively summarised the competing testimonial evidence. However, his Honour, at [169]-[190], in the course of making findings, attended to the discrepancies and inherent improbabilities in that evidence.
Thirdly, it is almost certain that after the event, a disappointed litigant will be able to point to errors of omission and commission in the course of making contested factual findings in any mildly controversial trial. The nature of the fact-finding process, coupled with human fallibility, the exigencies of time and the limitations of reasons for judgment, not to mention the creativity of appellate advocacy, means that it will inevitably be amenable to criticism. That of itself is immaterial; as Lord Hoffmann said, "[t]he exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed": Piglowska v Piglowski [1999] UKHL 27; [1999] 1 WLR 1360 at 1372. It is the quality and quantity of any such errors in the fact-finding process which matters for the purposes of concluding that the process is sufficiently flawed to amount to appellable error.
Fourthly, in assessing the quality of alleged errors in the fact finding process, it is important to have regard to the nature of the contested issues and the cases presented by the parties at first instance. The way in which a case was run at trial can exclude some errors from being material. For example, Sheldon's submission on appeal that the presence of a Chinese or Filipino tradesman using a sander carried the consequence that Messrs Vickery, Napret and Villaneuva were lying is quite inconsistent with the submission advanced at trial by counsel then appearing for Sheldon. He positively submitted that if, contrary to the defence case, it was concluded that sanding had caused the dust, then: "commonsense would suggest that ... an unknown person ... has come along and done sanding on that morning for a period of time and has either ignored or fail[ed] to abide by a request to stop while the plaintiff and Mr McPherson were working there."
Similarly, it will commonly not be to the point to criticise a primary judge who disregarded documents which were not the subject of prominent submissions. The High Court said in Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar [2008] HCA 42; 237 CLR 66 at [121]: "Where it is said on appeal that a primary judge was in error in not taking into account a particular consideration 'expressly', even though it was not explicitly submitted to the primary judge that it should be, a benevolent construction of the primary judge's reasons will often reveal, by a process of inference and implication, that the relevant consideration was borne in mind, even though it was not stated in as clear-cut a way as an appellate court, dealing with a hostile submission by one party not put nearly as distinctly, or at all, to the primary judge, might prefer." The High Court was referring there to a discretionary decision, but substantially the same applies to an attack upon the reasons explaining the process of fact finding.
Fifthly, the reasons which are actually stated are to be understood, on appeal, as recording the steps that were in fact taken by the trial judge in arriving at the end result: Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [130]. That said, the reasons will, inevitably, be incomplete. We respectfully agree with the force of Lord Hoffmann's observations concerning the limitations of reasons in Biogen Inc v Medeva Plc [1997] RPC 1 at 45: "The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la vérité est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."
Sixthly, ultimately the burden of the appellant in advancing such a ground of appeal is to persuade the appellate court to infer that the fact finding process has miscarried. Given the evidence on the record, and what emerges from it in relation to what is incontrovertible, what is glaringly obvious, and what is more or less contestable, and bearing in mind the advantages of a primary judge who has seen the evidence unfold in real time (see Fox v Percy [2003] HCA 22; 214 CLR 118 at [23]), the relevant question is whether it is to be inferred from particular findings and the reasons given for them that the process has miscarried? On some occasions, that may be relatively straightforward. As McColl JA said in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66]: "Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried." Similarly, if there is an unexplained failure to attend to a particular piece of evidence which has been emphasised in submissions, it may be possible to infer that the fact-finding process has miscarried.
On the other hand, where there has been a fair attempt by a judicial officer who is plainly trying conscientiously to make findings of fact, not lightly is it to be inferred that the process has miscarried. Where points which are raised on appeal were not at the forefront of the submissions at trial, less weight is to be given to the failure by the primary judge expressly to have regard to them.
Finally, it may be acknowledged that different judges will have different views as to whether there has been such a departure from the process of finding facts to conclude that it has miscarried warranting the allowing of an appeal. Plainly enough, there will be intermediate cases between those two extremes. Indeed, the fact that this Court was divided in Nominal Defendant v Smith well illustrates that inevitability.
In the present case, the task confronting the primary judge was particularly challenging. The testimonial evidence was diametrically opposed. There was a small number of contemporaneous documents, but it was demonstrated beyond argument that there were serious deficiencies in the way in which at least some (notably, the induction form) had been prepared. There were implausible aspects to the recollections of all witnesses. The primary judge expressly had regard to these matters.
Turning to Sheldon's submission that the primary judge should have rejected the presence of dust of which Messrs Murray and McPherson gave evidence, it was by no means shown that it was "incontrovertible" that there was no significant amount of dust at the site on 13 December 2011. Of course, that is not an end to the matter. An appellate court can intervene if the decision is "glaringly improbable" or "contrary to compelling inferences", even if (as here) the resolution of the factual controversy has been informed by credibility considerations: Fox v Percy at [29].
We place little weight upon the inconsistencies in the recollections of Messrs Murray and McPherson as to who was applying silicone and who was cleaning, and as to how precisely Mr Murray fell. Indeed, if their accounts were strikingly similar, that might suggest that they were not relying on their unassisted recollection of events more than three years earlier. We see no error in the finding by the primary judge that, having seen both men give evidence, he would prefer the evidence of the man who actually fell, as opposed to his work colleague who was with him at the time, as to how the fall occurred.
We likewise disagree with Sheldon's submission that acceptance of Mr Murray's case meant that each of Messrs Vickery, Napret and Villaneuva were dishonest. They may have had a genuine belief that the site was generally clean and that there was no sanding occurring that morning. But the accident had occurred three years earlier. Mr Vickery acknowledged that he was not in the immediate vicinity. Mr Napret was at a different building site. Mr Villaneuva said that he had not been watching. Some decisions and literature on the fallibility of human memory were referred to in Nominal Defendant v Smith at [82], to which may now be added P McClellan, "Legislative facts and section 144 - a contemporary problem?" (2016) 12 The Judicial Review 421 especially at 441-449.
Such strength as there is to Sheldon's case challenging the findings of primary fact lay in the diary record of A to Z Interiors, the objective improbability of painting taking place while so much dust was in the air, and what was said about the presence of a Filipino or Chinese tradesman who could not speak English. These matters are in a different class from the recollection of the dustiness or otherwise of a building site three years previously. However, although there is a superficial attraction to Sheldon's submissions, they are not ultimately persuasive. Our reasons are as follows. 1. Significant limitations attach to what may be inferred from the diary kept by A to Z Interiors. Each eight hour day in that diary for each man was given a very short description. Thus on 13 December 2011, Mr Napret was said to have "Set Ceiling" and Mr Villaneuva's task was described as "Fix man holes". If there were some limited sanding of patches for, say, 45 minutes in the morning by the painters, it would not have been recorded in the diary. 2. Moreover, the A to Z Interiors diary was not completed on a daily basis. That emerges clearly from the fact that the entries for the following Monday was "?". It is plain that the entry for the following Monday was not completed on that day, but on some later day when Mr Napret was unsure what had been done, although he recorded that there had been a full day's (8 hours) work. After all, the purpose of the diary was to record total hours worked, rather than to exhaustively record the activities taking place during those hours. Each day in the six weeks of entries recorded in the portion of the diary admitted into evidence contains a very terse description of activity, and the statement that 8 hours were worked, save for one day when no work took place and one day when Mr Villaneuva was not working. 3. A good example of the limitations in what may be inferred from the diary is the concession by Mr Napret that the diary was incomplete. Although he was recorded as setting the ceiling for 8 hours on the day of the accident in the diary, in his evidence in chief he said that that "would have taken me a couple of hours" and that he then left to go to another job he was working on nearby, which was why he was absent from the site at the time of the accident. His evidence demonstrates that what Mr Napret did for most of 13 December 2011 went unrecorded. 4. A key fact is that Tuesday 13 December was the third last day of a large job, which we would infer (from the A to Z Interiors diary) took 25 weeks. It took three days to do the "final clean". It does not strike us as glaringly improbable that there might have been relatively minor sanding happening at the same time as painting somewhere on the fourth floor of the building. And it strikes us as plausible that there was, by the end of what was a large refurbishment, a deal of rubbish around the site, so much so that four men worked 8 hours a day for 3 days on the final clean-up. 5. Further, no appellable error is disclosed by the primary judge rejecting Mr Vickery's recollection that the site, on that day more than 3 years previously, was "neat and tidy" and to reject his explanation for the annotation "keep areas of work clear & clean at all times". 6. As for whether there was a person who could not speak English on site on that day, the records of the "toolbox" meeting showed that "Jonathan G" and John Arnold were present. Mr Vickery denied that either was a Sheldon employee. He said that "Jonathan G" would be a subcontractor, and wasn't sure about John Arnold. The impression gained from this aspect of the cross-examination is that Mr Vickery had difficulty positively identifying either man (there is nothing surprising about that, given the passage of time and the fact that he was no longer employed by Sheldon). 7. Although Mr Vickery denied that there was anyone on site who could not speak English, he gave no reason which compels the exclusion of that possibility. We do not consider that it was established so clearly that the recollections of Mr Murray and Mr McPherson were wrong that there was error in the primary judge preferring their evidence.
The primary judge did not deal with the documents at the level of detail to which we have descended. But then his Honour was not asked to do so. Neither the written nor the oral submissions on behalf of Sheldon attended to what was said, on appeal, to be the force attaching to the A to Z Interiors diary.
There were aspects of the evidence to which the reasons of the primary judge pay little or no regard. There is no explicit engagement with what Sheldon maintained was the impossibility or at least implausibility of sanding accompanying painting. But as we have sought to show, the force of that submission is diminished by the size of the site, the fact that the accident occurred in the final days of refurbishment, and the limited amount of sanding which the primary judge found took place. Again, we do not consider that the criticisms advanced by Sheldon suffice to establish error requiring the intervention by this Court on appeal.
For those reasons, we do not consider that the grounds of the notice of contention directed to making findings of primary fact have been made out.

Mr Murray's appeal - causation

The reasoning of the primary judge as to causation is reproduced above. The primary judge had made it clear during addresses that he regarded causation as a critical issue: "The difficulty that is really put by Mr Gambi is causation"; "I mean [Mr Gambi] is fighting on all fronts, but the causation that I would have to be satisfied to start with is that it was indeed dusty, because all of his witnesses say it wasn't but Mr McPherson and the plaintiff say it definitely was. Then if it was indeed the dust, I have to still be satisfied, in a causation way, that it was the dust that caused him to fall."
Dr Morrison SC advanced three principal submissions in relation to the reasons of the primary judge in failing to find causation. The first was to point to the opinion of Mr Burn, noting that he had not been cross-examined. The second was to submit that it was commonsense that dust on a surface would make it slippery. The third was that given the findings of primary fact as to the mechanism of the fall and the dustiness of the site, it necessarily followed that the dust had materially contributed to the fall.
Dr Morrison placed considerable reliance on the use by the primary judge of the word "slip" in this aspect of his Honour's reasons and the acceptance by Mr Vickery in examination in chief that Mr Murray had "stepped back off the ladder and he slipped and hurt his knee". He did so on the basis that it amounted to a concession that Mr Murray had slipped, as opposed to fallen. We do not consider that that is a fair reading either of Mr Vickery's evidence or the primary judge's reasons. As Mr Cavanagh SC said, "slip" as a matter of ordinary English is apt to extend to a variety of cases: "He might have slipped because of the dust, he might have slipped because there was silicone on the step which was specifically raised for him. He might have slipped because it was a misstep and he only put the toe of his foot. He might have slipped because he only put the heel of his foot. Slipping is a term of general usage."
It is quite plain from the express reference by the primary judge at [218] to there being "other possible causes for the fall, such as inadvertence or not placing his foot properly on the rung or indeed the state of his footwear that could have contributed to his fall", that his Honour was not proceeding on the narrow basis of the meaning of "slip" for which Dr Morrison contended.
The primary judge regarded Mr Burn's report as having no weight, given the absence of reasoning and the discrepancies between the instructions given to the expert and his Honour's findings. We agree. We do not regard the fact that Mr Burn was not cross-examined as relevant. The report should not, in truth, have been admitted at all: see Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at [91]-[92]. In any event it was open to accept the submission at trial that Mr Burn's opinion could not assist Mr Murray in making out a case. There was no reasoning process exposed to support the opinions expressed. Further, falling from a smooth metal (or even plastic) platform, presumably while wearing a dress shoe or gym shoe, is completely different from slipping on a metal step while wearing work boots.
Section 5E of the Civil Liability Act provides: "In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
It followed that Mr Murray bore the onus of proving, on the balance of probabilities, that the dustiness of the ladder was a necessary condition of his fall, which is to say that but for Sheldon's negligence, he would not have slipped on the ladder. The starting point is some admissible evidence about the two surfaces which interacted: the sole of his shoe and the surface of the step. In this trial there was none.
The gravamen of the reasoning of the primary judge was the evidentiary gaps in Mr Murray's case. His Honour said there was "no satisfactory evidence as to the amount of dust on the first rung down", "no expert evidence as to the effect of dust and/or the amount of dust on that step", "no expert evidence as to how much dust on the platform or steps was necessary to explain the fall", "no evidence to show what the step on which the plaintiff slipped was made of or what non-slip surface it had and how much dust was necessary to cause his fall" and "no evidence as to the bottom or soles of his footwear".
Those negative statements about the evidentiary vacuum in which the litigation was being conducted fairly described the position.
As discussed in Fox v Percy at [31], such evidence as there was about the dust had to be assessed in light of "the apparent logic of events".
The evidence about the amount of dust came from Mr Murray and Mr McPherson. Mr Murray's evidence in chief was that what he had noticed when he climbed the ladder was that it was "just dusty, floating in the air, dust floating in the air". In cross examination he said that the sanding was occurring some 3 to 4 metres away, but he denied that no significant dust was on the platform on which he was working. Mr McPherson said in chief that he had seen white dust, which could not escape because there was no ventilation; that it was not being picked up properly by the sander; and that it was sticking to his clothes, hair and on everything around. In cross examination he said that there was so much dust that he was choking. When pressed he said that he was not having difficulty breathing. He denied that this account, quite inconsistent with Mr Murray's evidence, was a fabrication.
His Honour's finding that Mr Napret and Mr Villaneuva had not been sanding on the day of the accident, was not challenged on appeal. The uncontested evidence of Mr Vickery was that the work being undertaken at the site was a refurbishment. It began with everything being demolished. After the rebuild commenced, new carpet was laid, which was protected by a plastic polyweave cover, which was removed when the furniture was put down. When the gyprock partitions were installed, they had to be sanded in preparation for painting. The glazing work began after the walls were finished and painted and the gyprockers had installed the aluminium framing into which the glass was locked and siliconed by the glaziers. If defects in the painting was found, the walls had to be sanded and repainted.
Before the accident Mr Murray and Mr McPherson had already installed at least 40 glass partitions. They both saw furniture installers at work the day they returned to install further partitions. Mr McPherson also saw painters there that day, whom Mr Murray could not recall, as well as the gyprockers. Mr Vickery confirmed that painters were present. Mr McPherson said that the majority of the walls had been painted and that the painters had to do some patch up work. Logically, given his evidence, as well as that of Mr Vickery, Mr Napret and Mr Villeneuva, which left open the possibility that a painter was nearby sanding a painted wall which had to be patched, the dust is likely to have been caused by a painter using a defective sander.
Contrary to some of Dr Morrison's submissions, it was not sufficient for Mr Murray merely to disprove some other explanation for the accident (such as silicone, or misjudging a step). Building sites are dusty. As it was put during the trial, the site was "not a hospital". Questions of the amount of dust were important if Mr Murray were to discharge his burden of proving that the quantity of dust on the ladder was causally connected with his accident.
We do not accept Mr Murray's submissions based on common sense. Common sense cannot, in a case such as this, discharge the onus borne by Mr Murray. As Barrett JA stated, with the agreement of Ward JA, in Jackson v McDonald's Australia Ltd [2014] NSWCA 162 at [119]-[123]: "The appellant was required to prove on the balance of probabilities that there was water on his shoes and that this caused him to slip. He did not say that he knew that his soles were wet; he merely surmised that they were. Even if it be assumed that there was water on his soles when he slipped on the particular surface, it does not follow, as a matter of 'common experience', that it is more probable than not that he slipped by reason of the wetness of his shoes. The appellant submitted that it was more probable that, if his shoes were wet, he slipped because of the water on them rather than for any other reason. But there is nothing in common experience that tells us that someone with wet shoes who traverses a floor having the particular characteristics of the McDonald's floor is more likely to slip because of water on their shoes than for any other reason, such as inattention (because engaged in conversation or for any other reason), excessive speed or failing to take advantage of a handrail. People wearing dry shoes walk on wet stairs every day and do not slip. People wearing wet shoes walk on dry stairs every day and do not slip. People wearing dry shoes slip on dry stairs every day. And, as Heydon JA observed in Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [32], stairs are, in any event, 'inherently, but obviously, dangerous'. ... The task of proof was facilitated, if at all, only by s 144 of the Evidence Act 1995 (NSW) which, as the High Court recognised in Gattellaro v Westpac Banking Corporation [2004] HCA 6; 78 ALJR 394 at [17], dispenses with the need for proof only as to matters which are 'common knowledge'. The need to prove the effects of wetness on one's soles when traversing flooring materials of the particular kinds would therefore be avoided if those effects were 'common knowledge'. It cannot be said that 'common knowledge' provides an answer to the question whether a person wearing shoes of the particular kind the appellant was wearing is more likely to slip on flooring materials of the particular kinds within the McDonald's premises when the soles of the shoes are wet than when they are dry. The appellant did not call any evidence from persons qualified to express an opinion on the issue of slip resistance of the particular surfaces and the effect that wetness on soles might be expected to have had ... Nor did the appellant call any expert evidence as to the likely state of a sole of the kind he was wearing after it had traversed a wet area and then a dry area of between one and three metres consisting of the particular surface in fact installed at the top of the stairs. He thus chose to leave an evidentiary vacuum on the issue of, first, the extent to which soles of the particular kind, having encountered wetness on the floor surface, were likely still to be wet at the time of his fall and, second, the propensity of soles of the particular kind, if wet, to cause slipping to a greater degree than if dry when traversing surfaces of the particular kinds. Even taken at its highest, the appellant's evidence cannot support the inference that he asks this court to draw. The appellant's submissions on causation must fail accordingly."
Although the passage reproduced above is lengthy, the fact situation and absence of evidence is sufficiently similar that substantially the same reasoning applies here. It cannot be said that "common knowledge" provides an answer to the question of whether a person wearing work boots is more likely to slip on the step of a ladder if there is an (unidentified) amount of dust on the step than if there is not. Workers on building sites, including painters patching walls, who constantly have to use dusty ladders in the course of their work, do so without slipping.
For those reasons, we would dismiss the appeal.

Notice of contention grounds 1 and 2: duty and breach

In light of the foregoing, these grounds are not determinative, and we shall deal with them more briefly than would otherwise be the case.
In formulating the duty owed by Sheldon and the way in which it was breached, the primary judge was not much assisted by the pleadings. The statement of claim did not allege a duty at all, let alone a "risk of harm". The pleader ignored what Sackville AJA had said in Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; [2014] Aust Torts Rep 82-172 at [52], namely, that in order to apply ss 5B and 5C "it is necessary, just as it was under the pre-existing general law, to identify the relevant 'risk of harm'".
In brief closing submissions, counsel then appearing for Mr Murray responded to criticisms of the pleading as follows: "The risk of harm is identified as the accumulation of dust and the failure to ensure that the sander was used in such a fashion so as to minimize dust i.e. to empty out the vacuum on the sander as required by the plaintiff and Mr McPherson."
Once again, those submissions do not identify a risk of harm. However, and perhaps generously to Mr Murray, the primary judge identified a risk, namely, of harm from a fall caused by sanding work being conducted in the areas where he was working, which was inherent in the plaintiff's case.
The primary judge was, with respect, in error in identifying as a breach of duty "failing to ensure the workplace was at all times clean with good access" (at [199]) which was breached by not taking the precautions of "ensuring a clean relatively dust free area for glazing or [requiring] glazing work to be halted until such a position existed" (at [211]).
Even an employer owes only a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury: Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 at [12]. The duty owed by a head contractor to the employees of a subcontractor is more attenuated still: see Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1 at [20]-[21].
Further, and turning to Mr Murray's case as found by the primary judge, a man was sanding on the fourth floor for some 45 minutes that morning. On that finding, excessive dust was being distributed because of a fault in the vacuum attached to the sanding machine. The fact by itself that sanding was taking place on the same site and on the same day as the installation of glass does not mean that there was a breach of duty to take reasonable care. It was necessary to show that the head contractor, acting reasonably, should have noticed the sanding and the fact that excessive amounts of dust were being distributed as a result, and done something about it. The limited time in which this took place, on the findings of the primary judge, and the size of the site are important considerations, as is the fact that the reasoning must be prospective: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [31].
Accordingly, we are of the view that the primary judge erred in formulating the duty and in finding that there was a breach of duty.

Remaining issues: contributory negligence and s 151Z

The primary judge dealt with s 151Z in a single paragraph at [223], conscious that the issue was hypothetical. However, there was force in Mr Murray's criticisms of the paragraph. He said, with respect correctly, that an employer's liability was not strict (see New South Wales v Lepore [2003] HCA 4; 212 CLR 511), and that it was necessary to find some breach in order for the s 151Z apportionment to occur. The primary judge appears to have proceeded on the basis that "the appropriate percentage of fault on the part of an employer should be in the range of 15 to 25%", and found 25% in light of the facts that the glazing involved large sheets of glass and the need to climb ladders. That is an erroneous basis to determine the reduction for the purposes of s 151Z. What was required was first a finding that the employer was in breach of the duty it owed to Mr Murray, and then an evaluation of the quality and relative contributions of the breaches of duty by the employer and by Sheldon.
In light of the outcome of the issues which are determinative of the appeal, and the absence of factual findings, it is not necessary to say anything further. Nor need anything be said as to question of contributory negligence, other than that it should have been dealt with as the case against the employer and damages were.

Orders

For those reasons, the appeal must be dismissed.
Although Mr Murray has failed, Sheldon chose to expand the scope of what would otherwise have been a very narrow appeal, by its challenge to the findings of primary fact. The largest section of its written submissions, and the majority of its oral submissions (and the largest section of these reasons), were directed to those facts. In light of the magnitude of those issues, and Sheldon's failure on them, we incline to the view that a special costs order is warranted. Although those issues were relatively discrete, a costs order confined to issues would be productive of delay and further costs. Instead, a broad brush approach should be applied: see Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [18]-[19].
We will order that Mr Murray pay 80% of Sheldon's costs of the appeal. If either party wishes to be heard further on the question of costs in light of these reasons, or wishes to rely upon material not before the Court, he or it may apply within the time permitted by UCPR r 36.16.

Amendments 15 April 2016 - [9] - "2012" replaced with "2011" [23] - "Burns" replaced with "Burn" [25] - "in 13 December" replaced with "on 13 December" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2016

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