Towers v State of New South Wales

Issues to be Determined

1. The issues therefore to be determined in this matter are as follows: 1. Did the defendant breach its duty of care to the plaintiff as occupier of the premises? 2. If so, was that breach causative of the plaintiff's injuries? 3. Did the plaintiff contribute to his injuries by his own contributory negligence? 4. Was the plaintiff's employer negligent in the circumstances? 5. If so, how is liability to be apportioned? 6. What damages did the plaintiff suffer?

The Evidence in Respect of Liability

1. The plaintiff gave evidence that he received a phone call from his supervisor and was told that the rostered cleaner who lived in Wingham could not get through to the Taree West Primary School because the road was flooded and he was asked to attend there. He started at about 2.30pm and cleaned the rooms in the permanent buildings at the school. He then walked towards the weatherboard buildings known as demountables. He walked along a pathway and described "about an inch of water running down the pathway". The weather he described as "torrential, it was flooding" and "raining and pouring, absolutely raining cats and dogs".
2. The plaintiff was carrying the bucket and mop in his right hand and cleaning materials in his other hand in a bucket. When asked what happened he gave the following evidence: "A: So I proceeded towards the demountable. As I got to the demountable it was ‑ like I said, it was raining fairly heavily. I could see the rain blowing in off the roof and it was blowing straight in onto the step. So as I got to the top step I looked at the door and I realised I didn't have to do this room. I didn't recognise it, cause they all looked the same. I did have to do a couple of demountables that day, but this particular one wasn't on my list. When I got to the door I seen it was number 16, I think that's correct. I realised that wasn't the one I was supposed to be doing. As I turned to go down the steps, I slipped. My feet ended up out in front of me. I fell three steps and I landed on my right hip on a cement ‑ cement at the bottom, bit cement step at the bottom. Q: You say you slipped. How did your body travel as you went down the stairs? A: Well, I think it sort of slid down the stairs, like a piece of paper, you know what I mean, but‑‑ Q: But what was in front and you went down the stairs? (sic) A. My feet were in front of me. Q: Just tell us again. You look at the door, you turn and you say you slipped. Just describe what you felt happening? A: I felt one foot just slip out from under me. The other foot was halfway on the step and halfway off and it sort of slipped as well. As I fell down the steps I couldn't gain my composure because I was ‑ I had my hands full and by the time I dropped the gear to support myself I was already in the process of falling. And when I fell, I woke ‑ I didn't wake but I ‑ when I fell, when I got myself up I found my head pointing towards the door of the classroom and my legs pointing towards ‑ it was like a tennis courts or something. Q: You mentioned about when your body landed on the bottom step, what part of your body landed on the bottom step? A: I landed right on my hip. Q: Which hip? A: My right hip. Q: Just going back a step. You've indicated that there was water, I think you said, coming off the awning? A: Yeah. Q: Just tell us what the condition, the appearance of the steps were as you went to go up them? A: They were covered in water and, yeah, it was dim‑ish sort of light. I guess there was a light there, I don't really recall about the light. I didn't take much notice because, after all, I was just looking at the door to see what number it was."
3. Following his fall, the plaintiff gave evidence that he felt excruciating pain straight away in his right hip. He had never had pain like it before. It took him some time to get to his feet and he walked to the Principal's office where he gave evidence that he laid on the floor for about a further 4 hours before he went home at the end of the shift. The plaintiff gave evidence that he was doing the cleaning by himself on that day, and one person does that school. He had worked there on several occasions before this incident.
4. In cross-examination it was put to the plaintiff that he was not at work on 14 June 2011, which he did not accept. It was further put that nothing of the kind that he had alleged in relation to the demountable steps occurred on 14 June 2011, which he did not accept.
5. He gave this evidence: "Q: I want to suggest to you that you've latched on to 14 June 2011 because that's the day you know that there was torrential rain and that might be an explanation for why you slipped on the demountable. What do you say about that? A: No, I don't accept that either."
6. It was further put to the plaintiff that he notified his employer about an incident in which he tripped "up" some steel steps that were wet after rain, landing on his right hip, which he denied. The plaintiff could not remember which way he turned at the top of the stairs and was not exactly sure which foot he stepped off with first, but said that as he was right footed, it was probably his right foot. He slipped from the top step and he was just taking a normal step, when he went to take a step and slipped.
7. The plaintiff agreed that he had told an expert witness, Mr Cockbain, who attended the premises with him in 2013, to inspect the site of his fall, that there was a build up of mud and dirt on the soles of his work boots at the time of his fall.
8. The plaintiff gave evidence that he was carrying the two buckets because that was the way his employer ISS had inducted him, meaning had trained him. It did not occur to him at the time that it might have been a better idea to put one bucket down and walk up the stairs while holding onto the handrail. When asked whether it was because of the induction and training he had received from ISS that he carried the two buckets, he said: "A: No, it's just because I wanted to get my work done quick and, you know, I was pretty good at my job and I just wanted to get it done so I think that's why I just take the buckets with me when I go around."
9. He agreed that he had no opportunity to grab the handrail when he slipped because he was carrying a bucket in each hand.
10. The plaintiff was cross-examined about a number of documents that had been produced on subpoena. The first was exhibit D, entitled "OHS Toolbox Talk and Attendance List", noting the attendance of the plaintiff at a Toolbox Talk presented by his supervisor Paul Robinson on 20 June 2011 at Taree West Public School. The document noted the discussion concerned "Reporting Incidents to Area Manager and Helpdesk".
11. Exhibit E was a workplace incident notification report and investigation dated 20 June 2011 signed by the plaintiff and Mr Robinson. It recorded the following description of the accident: "Walking up stairs on a d/m and slipped on wet steps onto right hip was raining at the time about 4pm on Tuesday 14 June 2011. Today seems to be getting better but seeing doctor as is still sore, seeing doctor at 2.30pm 20/6 is just resting till 27/6."
12. Exhibit 8 was a communications book in which an employee of ISS with initials MH entered the following entry on 14 June 2011: "Leaving early due to rising flood waters rang Paul and left message at 4.43pm."
13. The plaintiff completed a workers compensation claim form on 7 November 2011 (exhibit 10). The entry as to the accident reads as follows: "Sliped and fell down three steps onto my right hip. It was raining heaverly at the time. I was carrying cleaning geare in both hands. I was working at Taree West Primery (sic)." The date of injury is recorded as "20 June 2011 at 5.30pm".
14. Exhibit 13 comprised staff time sheets produced by ISS which contained entries for the plaintiff, who was employed as a casual cleaner, being in attendance at work on 16 and 17 June 2011, but not on 14 June 2011. The same records contained an entry for 14 June 2011 for two other employees, one of whom was M Howe, with the same initials MH referred to above. Those timesheets did not indicate at what location the employees were working.
15. The location at Taree West Public School was also subject to OHS Risk Assessment, Site Audit and Quality Monitoring Reports completed by the employer. Exhibit 18 was a Site Audit Check List dated 25 January 2011. Exhibit 19 was an OHS Risk Assessment dated 28 February 2011, and exhibit 20 comprised Quality Monitoring Reports dated 21 July 2011, 6 September 2011, 21 September 2011, 31 October 2011 and 21 November 2011.
16. The plaintiff gave evidence that he never worked after 14 June 2011. When he was shown the timesheets he gave evidence that, in respect of the entries for 16 and 17 June, he must have written them in the wrong place on the timesheet. He gave this evidence: "Q: You're not suggesting that after the 14th you wrote down that you worked shifts when you hadn't worked shifts? A: No. I filled it in when I was there. I filled it in - you're not supposed to, but I filled it in probably the day or two when I was - when I was there I may be filled it in. I may be filled in the wrong section. I was supposed to be on the 14th and I filled it in for the 16th because, as you've seen, it was halfway down the page. It was confusing to me. Q: What about the next day, how do you explain that away? A: I filled it in the same day. Q: What, for the next day? A: Yeah. Q: So you're filling in a timesheet when you hadn't even worked? A: Well, yeah. It was a dumb thing. At the time everyone was doing it. Q: That dumb thing, can I suggest to you, you're just making it up as you go to try and explain away obvious conflicting evidence in your case that really nothing happened to you on 14 June 2011? A: It's not true, I'm sorry."
17. The plaintiff had no explanation as to why in his application for workers compensation dated 7 November 2011 he wrote 20 June 2011 twice on the document as the date of his injury.
18. In re-examination the plaintiff was asked about the other cleaner employed by ISS, Mr Howe. He then gave this evidence: "Q: You don't ever remember there being another cleaner around called Mr Howe? A: Actually there could have been, but I don't remember, I think that day that it was raining a guy come up to me and said, 'Look, I've got to get going, I'm not going to get home, it's flooding, you'll be right on your own won't you?' and I said, 'Yeah, sure, no problem, I know what I've got to do, I'll be right'. Q: You think there might have been another person there? A: There may have been another person at the start of the shift, but I think he left halfway through it because it was flooding that night and he wanted to get home, and I think he could have told me that even."
19. The defendant called Mr Errol Bennett, who had been employed at the Taree West Public School as a general assistant from October 2000 until April 2014. He had worked full time since 2008. His role was essentially to look after minor maintenance at the school, but also attend to gardening and mowing. Any major maintenance was carried out by contractors. The firm O'Donnell & Hanlon took over those duties in 2007 or 2008. Any request for work to be carried out was made by the school on a facility management web page. That facility was not utilised to notify the contractor about repainting the steps of the demountable classrooms at the school.
20. Mr Bennett became aware of the plaintiff's injury in 2012 when he was asked to give a statement to an investigator. Apart from that incident, he was not aware of any other incident concerning a student, member of staff or parent slipping on or having an issue about slipping on the demountable stairs in wet conditions.
21. Mr Bennett had also observed the school students and teachers coming up or down the stairs of demountable number 16 in wet conditions. He had never seen anyone slip there.
22. Mr Bennett was aware that the Department of Education had directives and regulations in respect of demountable classrooms. The Taree West Public School was required to deal directly with the Forster District Education Office about any problem with the demountables at the school.
23. Mr Bennett had traversed the stairs on which the plaintiff fell on numerous occasions. He gave evidence that over a period of time the wear patch on the top stair was probably larger because of the amount of traffic. He himself did not find them to be slippery underfoot. He gave evidence that the steps were made of composite fibre cement and in wet weather it "absorbs moisture into the top layer, and causes the fibres to fur up and cause better traction". He had observed children going up and down the stairs, including during periods of rain.
24. Photographs were tendered of some steps on other demountable buildings at the school which showed a yellow strip on the edge of the steps. Mr Bennett gave evidence that he had applied that yellow strip after being directed by the Principal to put it there. The reason was because a staff member had a sight problem and the yellow strip was to give her a safer idea of gauging step depth.
25. He had never been spoken to by any parent or teacher at any time about the condition of the stairs on the demountable buildings, particularly in wet conditions.
26. Mr Bennett identified the location of the demountables on a plan of the Taree West Public School which became exhibit 2. Mr Bennett had never experienced any problem with the steps on any of the demountable buildings during his employment, during rainy conditions or wet weather. He also gave evidence that he had never been told by the Principal that the stairs were unsatisfactory.
27. In cross-examination Mr Bennett gave evidence that the Asset Management Unit performed regular assessments of schools. He estimated that occurred every two years as a thorough assessment, plus regular call-ins to "run their eyes across it other than the annual check".
28. Mr Bennett was not aware of records produced by the defendant which demonstrated that the steps and landings of demountable 16 had been painted with a non-slip coating in 2004. He did not agree that his visits to room 16 itself would have been quite irregular.
29. Mr Bennett's evidence that he was not aware of anyone slipping and falling on the school premises was also challenged by him being shown a report relating to a teacher who slipped and fell on a demountable in 2010. He had no knowledge of that incident. He was also shown the minutes of the meeting of the OHS committee of the school, of which he was a member, dated 16 March 2012 which stated that the committee had not been functioning very much for the past 14 months or so. He said he was surprised that the minute existed and was held by the school. He did not think it was correct.
30. In respect of the fibro cement steps, Mr Bennett gave evidence that the surface of the material "burrs up and causes a grip" when wet. He referred to this as a "well known fact". He gave the following evidence: "Q: Are you saying that that product made of compressed dried cement with fibres swells in some way when wet? A: I am saying that, yes. Q: In some way the fibres come to the surface, is that what you are saying? A: Like I said before, it's compared to timber when it's wet. The surface tension, it becomes more rough and better traction because of the irregular surface that it develops when it changes its surface shape."
31. Mr Bennett went on to give evidence of testing that he and an investigator, who examined the steps, carried out on the steps in question. He gave further evidence that the people from the Asset Management team from the Department of Education had spoken to him about the material on the demountable steps as being safe. When asked whether the surface of the fibro cement steps actually rises when wet, he denied that, but said that there was a slight change in the surface tension of the steps.
32. Mr Bennett accepted that he had no technical qualifications to explain his "theory" that there was burring or swelling of the material, sufficient to cause a grip in wet weather.
33. In re-examination Mr Bennett gave evidence that testing the traction on the tread of the steps with his feet with the investigator, included pouring nine litres of water over the steps.

Expert Evidence on Liability

1. The plaintiff relied on a report of Mr David Cockbain dated 28 June 2013. Mr Cockbain's qualifications in occupational health and safety and risk management were not challenged, nor was he cross-examined. He supported the plaintiff's claim in negligence by outlining nine factors which contributed to the plaintiff's injury which included a failure by the defendant to exercise due and proper care, to ensure that the steps were safe and to maintain or properly maintain the steps in a safe condition. Other factors included a failure to ensure that the non-slip paint on the surface of the steps was adequately "touched up or replaced", a failure to ensure a proper system of inspection and maintenance, a failure to develop, implement and develop safety audits or inspection processes and failing to provide an adequate roof or cover for the steps to ensure safe access and egress to the demountable. Mr Cockbain set out a number of preventative measures in his report which included the cost of resistant treatment to the steps within a range of $100 to $150, representing the cost of non-slip paint.
2. Mr Cockbain attended a view of the site on 14 May 2013, nearly two years after the incident. At that time, the plaintiff advised him that the soles of his shoes may have been contaminated with mud and Mr Cockbain was of the opinion that that factor would have reduced the coefficient of friction between the plaintiff's shoes and the pedestrian walking surface. He described the area on the step where the plaintiff slipped as being abraded by pedestrian traffic. Following slip resistance testing of the relevant step, Mr Cockbain described the risk of slipping on the abraded fibro-cement step when it was wet was a medium risk. He put forward a number of preventative measures which included non-slip nosings on each step, the provision of slip resistant treatment and the installation of an effective awning or cover above the stairway.
3. Dr John Cook provided a report which was relied on by the defendant dated 14 August 2013. Dr Cook also carried out slip resistant testing on the steps and concluded that the actual risk of slipping was low. He considered that the plaintiff lost his footing when he overstepped the top landing as a result of insufficient care for his own safety when he turned to descend the steps. His testing concluded that the bare compressed fibro cement sheet surface was "adequately slip resistant under dry and wet conditions". In other words, the landing surface did not pose a slip hazard and the plaintiff was 100% culpable for his own injuries.
4. Dr Cook responded to the opinion set out in Mr Cockbain's report and disagreed that any of the nine factors listed by Mr Cockbain was a contributing factor to the plaintiff's injury. He opined that the top landing did not pose a foreseeable risk of harm to visitors using the landing on the basis that there was no history of incidents, and the school's OH&S committee did not identify any problems with the steps or landings. In his opinion the stair did not pose a hazard at the time of the incident. He further opined that the test results produced by Mr Cockbain were invalid because the testing had been carried out at one site only instead of the minimum required of five test sites under the relevant Australian Standards.
5. Dr Cook was not cross-examined as to the opinions set out in his report.

Defendant's Submissions on Liability

1. Counsel for the defendant referred the Court to a number of well known appellate decisions concerning persons being injured having slipped on stairs, including Wilkinson v The Law Courts Limited [2001] NSWCA 196. In Hilas v Todburn Pty Limited (Trading as Hurstville Supercentre) [2007] NSWCA 315, Hislop J said at [10] "10. The principal authorities in this area of law have been collected by McColl JA in New South Wales Department of Housing v Hume [2007] NSWCA 69 at [66] et seq. The following principles are established by those authorities; (a) The issue of breach of duty in an action framed in negligence is one of fact - Vairy v Wyong Shire Council (2005) 223 CLR 422 at [2]; (b) An occupier of premises is only required to take such care as is reasonable in the circumstances. The duty is not to make the premises as safe as "reasonable care and skill on the part of anyone can make them" - Wilkinson v Law Courts Limited [2001] NSWCA 196 at [21]'; (c) Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances - Wilkinson at [32]."
2. At [11] Hislop J (with whom McColl JA and Handley AJA agreed) referred to a finding made by the trial judge that the claimant had slipped a couple of times before on the stairs, but had never injured herself and had not reported it. His Honour went on to say: "In any event, the history of only one or two falls on stairs, which would be used daily by very many people, does not lead to an inference that they must have been unreasonably slippery whenever they were wet."
3. In respect of the application of the Civil Liability Act 2002 to the question of breach of duty of care and causation, counsel referred the Court to Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151, and also to Jackson v McDonalds Australia Limited [2014] NSWCA 162, which case concerned a slip and fall at retail premises on a recently mopped floor. It was submitted that that case was relevant to the proposition that it was necessary to consider what effect or impact the soles of a person's shoes would have on any particular surface, bearing in mind its co-efficient of friction. That was relevant here as the plaintiff had told his expert, Mr Cockbain, that there was mud and other dirt contaminants on the soles of his shoes and the expert had reported that to be a contributing factor.
4. The defendant relied on Garzo as setting out the correct application of Part 1A of the Civil Liability Act in the determination of negligence in an occupiers liability case. Section 5B of the Act requires the risk of harm to be identified, a determination of whether the risk was foreseeable and not insignificant, and whether a reasonable person in the defendant's position would have taken precautions against that risk of harm (s 5B(1)). In determining those matters the court is to consider the matters set out in s 5B(2) and s 5C.
5. On the question of causation pursuant to s 5D, the defendant relied on Dr Cook's evidence that the coefficient of friction as tested by him meant that the surface of the steps provided sufficient traction to prevent a slip and fall accident on a wet surface, and therefore submitted the plaintiff had failed to discharge its burden of proof as to causation.
6. The defendant submitted that on the basis of documents referred to in [18] - [21] above, the court would not be satisfied that the plaintiff's injury occurred as he alleged on 14 June 2011. Rather, that date was relied on by the plaintiff because it matched the rainfall records and he tailored his case.
7. Alternatively, Counsel for the defendant submitted that the circumstances which the plaintiff described in his own evidence in which he fell bore the hallmarks of a misstep. The question then became whether the step in question was unacceptably or unreasonably slippery. Accepting that there had been a previous fall in October 2010, it was submitted that there was no evidence that wet weather was responsible for that fall and therefore no weight could be placed on the evidence of the previous incident. In those circumstances the risk of harm to the plaintiff in falling on the wet steps was neither foreseeable nor "not insignificant".
8. Moreover, the stairs handle a lot of traffic in terms of the school children using them on numerous occasions throughout the day, as well as parents and teachers.
9. Counsel submitted that the Court would accept the evidence of Mr Bennett as to the condition of the stairs when wet and also prefer the evidence of Dr Cook to that of Mr Cockbain.
10. As to the risk of harm, Counsel for the defendant submitted that that risk was "the risk of a person slipping and falling when negotiating the dangerously slippery steps in wet conditions or simply when wet".
11. The defendant submitted that there were no precautions that the defendant was reasonably required to take because in the circumstances the stairs were not unsafe.
12. Further, Counsel for the defendant referred to the number of inspections undertaken by the employer, referred to in exhibits 17, 18, 19 and 20. Those documents demonstrated that the employer was regularly undertaking site inspections and had not raised any issue in relation to the stairs in terms of them being a slip/trip and fall hazard.
13. Counsel submitted that the Court would prefer the expert evidence of Dr Cook to that of Mr Cockbain and accept his conclusion that the accident "really was caused by the plaintiff, and in terms of responsibilities about what he was supposed to do, in particular, holding the buckets, and the footwear and want of instructions, is really all the employer, and not the defendant". That submission went to contributory negligence by the plaintiff, and supported a submission that the plaintiff had failed to make out a case of negligence against the defendant, but that it was "all the employer's fault".

Plaintiff's Submissions on Liability

1. Learned Counsel for the plaintiff relied on exhibit E, the Workplace Incident Notification Form which was completed by Mr Robinson. He was the point of contact with the employer ISS and it was he who rang the plaintiff to ask him to go to Taree West on the day that he was injured. He interviewed the plaintiff on 20 June and the document records that the accident occurred on 14 June. Mr Robinson was not called to explain away any inconsistency in the documentation.
2. Counsel defined the risk of harm as being the risk of someone slipping and falling when negotiating the stairs. That risk of harm was foreseeable, and significant in terms of negotiating these stairs. Counsel submitted that the stairs were in a worn condition with the rubber non-slip coating worn off. Further, the top landing or step was worn in the area of greatest traffic to form a depression where water gathered. The defendant had deliberately declined to call evidence from the people who had relevant knowledge about these matters, the Asset Management Unit from Forster, where there were five employees who did detailed assessments of the school. They were also responsible for instigating repairs. Rather, the defendant called Mr Bennett, who Counsel submitted was partisan and had difficulty conceding that there could be any deficiency in the stairs.
3. Counsel submitted that the Court would not accept Mr Bennett's theory as to the adhesiveness of the stairs when wet. Neither expert agreed with the theory in any event.
4. According to exhibit M the stairs had been painted with a non-slip paint in 2004, 2008 and again at some point in 2011, after the accident. It was submitted that the stairs when built and installed had rubber non-slip coating on them to provide safety and grip for people using the stairs. That coating wore down, and on two previous occasions had been re-painted and had obviously worn again. The Asset Management Unit regularly inspected the premises and had the opportunity to assess the state of the stairs. The cost of the painting was, according to the evidence of Mr Cockbain, was between $100 and $150. No evidence was called from the defendant to suggest that that cost was prohibitive if demountables throughout the State of New South Wales required the same treatment.
5. Counsel submitted that the evidence of the plaintiff established that he felt his foot slip, and did not overstep the landing as advocated by Dr Cook.
6. In respect of the testing carried out by experts, the Court had to be careful to bear in mind that the accident occurred on a very wet day, and it was difficult to replicate the actual circumstances on that day. In short, the plaintiff submitted that the problems alluded to by the defendant "under the Civil Liability Act disappear because this is simply a matter where the defendant did not do what they should have done under their own systems, and they did not choose to bring along the very people who could explain the position".

Was the Defendant Negligent?

1. In determining whether the defendant was negligent, I make the following findings of fact: 1. I find that the plaintiff fell on stairs outside the number 16 demountable at the Taree West Public School on 14 June 2011. 2. The incident was reported in the Workplace Incident Notification Form (exhibit E) which was signed by both the plaintiff and Mr Robinson on behalf of his employer ISS. Mr Robinson was not called to give evidence to explain any inconsistency between that document and other records kept by the employer. The fact that the plaintiff, when completing his workers compensation claim form on 7 November 2011, recorded the date of injury as 20 June 2011 was a mistake on his part. 3. I accept the plaintiff's evidence as to the weather conditions at the time, namely, that it had been raining heavily and that there was a great deal of water both on the stairs to the demountable and on the ground surrounding it. 4. At the time he fell, the plaintiff was carrying cleaning materials in both hands. It was only after he reached the top step to demountable 16 that he realised that that classroom was not on his list and he turned to walk down the stairs. 5. The stairs were constructed of a compressed fibro-cement material which was subject to wear over time. 6. The stairs had been painted with a non-slip material in 2004 and 2008. They were also painted at a time subsequent to the plaintiff's accident later in 2011. 7. The stairs were often used by students, teachers and parents in all weather conditions, apparently without incident. 8. The Taree West Public School had an Occupational Health and Safety committee which reported on matters of safety from time to time. It had not done so for many months prior to the plaintiff's injury. 9. The school premises were, however, subject to regular inspection by the Asset Management Unit of the Department of Education based at Forster. 10. Any minor maintenance was carried out by Mr Bennett at the premises. However, any major maintenance was carried out by contractors who, from 2008 were the firm O'Donnell & Hanlon.
2. The risk of harm here was the risk of someone slipping and falling when negotiating the stairs in wet weather. Pursuant to s 5B(1) that risk was foreseeable and not insignificant. The question then in determining whether there has been a breach of the defendant's duty of care as occupier of the premises was whether a reasonable person in the defendant's position would have taken the precautions advocated by the plaintiff against that risk of harm. Those precautions are as set out in the particulars of negligence as per [4] above, and essentially amount to a system of inspection and maintenance that would ensure that the stairs were kept in a good state of repair, in this case meaning that the surface of the stairs which had deteriorated with wear in the past and had been re-painted with a non-slip surface, would be maintained in a safe condition.
3. The evidence established that the steps had been so re-painted in 2004 and 2008. Further, the premises were subject to regular assessment by the Asset Management Unit at Forster. That unit comprised five employees, however, the defendant did not call any witness to explain the system of inspection and maintenance referred to in the evidence of Mr Bennett. The defendant's failure to do so was unexplained and therefore an inference may be drawn that their evidence would not have assisted the defendant's case - see Jones v Dunkel(1959) 101 CLR 298 and Manly Council v Byrne [2004] NSWCA 123.
4. I accept the plaintiff's submission that the evidence given by Mr Bennett was partisan to the defendant's case, eg, his reluctance to concede the OH & S committee, of which he was a member, had not met for 14 months, and his "theory" that the steps became less slippery when wet.
5. In determining whether a reasonable person in the position of the defendant would have taken precautions against the risk of harm, the Court is to have regard to the matters set out in s 5B(2) CLA. I find that it was probable that the harm would occur in wet conditions if reasonable care was not taken by the defendant. This was clearly a risk which was known to the defendant and which they had responded to by taking precautions on two previous occasions. It was also a risk which involved the likelihood of serious injury if persons fell on the stairs. The burden of taking the precautions to avoid that risk of harm was minimal, the evidence establishing that the cost of painting the stairs was between $100 and $150. Clearly, there was a social utility in ensuring that the stairs were safe for all passage in all weather conditions.
6. I note the matters set out in s 5C of the Act, however, whilst the subsequent taking of precautions by painting the stairs later in 2011 cannot constitute an admission of liability in connection with the risk, that becomes less significant when the evidence established that the defendant had responded to that risk on two previous occasions.
7. The question of breach of duty of care is a factual matter, and I am not persuaded that it is a matter that can be determined purely on the evidence of either expert, namely, Mr Cockbain for the plaintiff, nor Dr Cook for the defendant. Neither expert was cross-examined, and therefore their competing opinions have to be assessed in light of the facts as determined by me. Whilst both carried out slip resistance tests on the steps some years after the incident, neither testing replicated the conditions that the plaintiff was faced with on the day he fell. Further, that testing was carried out after the steps had been repainted in 2011 after the plaintiff's accident. Neither report could be determinative of whether the defendant was negligent, which is ultimately a matter for the Court.
8. I find, in circumstances where the defendant must have known that the steps were subject to wear and had required repainting with a non-slip paint on two occasions in the past, and were dangerously slippery when wet, that reasonable care on the part of the defendant required it to take the precautions advocated, i.e. to inspect and repaint the steps. It did not do so and its failure was left unexplained by those who were responsible for doing so. I find the defendant breached its duty of care to the plaintiff.
9. As to causation, pursuant to s 5D of the CLA, I find that the negligence was a necessary condition of the occurrence of harm on the "but for" test - see Strong v Woolworths Ltd (2012) 246 CLR 182 at [18]. Therefore factual causation has been made out and I further find that it was appropriate for the scope of the defendant's liability to extend to the risk of harm so caused and therefore I am satisfied as to the scope of liability as required by s 5D(1)(b).
10. I therefore find that the defendant breached its duty of care as occupier of the premises to the plaintiff and that negligence was causative of the plaintiff's injuries.

Contributory Negligence

1. The plaintiff was carrying out his duties as a cleaner in accordance with his employer's instructions and the induction that he had undergone when he commenced that employment. In circumstances where he was required to carry out those duties in very bad weather conditions, he could not be said to have contributed to his own injuries by failing to take care of his own safety. He was carrying cleaning materials in both hands so as to complete the work quickly. Once he recognised the number on the demountable classroom was not on his list for cleaning, he turned to leave by going down the stairs. It was then a combination of the slippery surface on the top step and the lack of adhesion in his work shoes which I find were embedded with mud at the time, which led to his fall. He was unable to break his fall by use of either hand because he was carrying cleaning materials as directed by his employer. In those circumstances, there can be no finding of contributory negligence.

Was the Employer Negligent in the Circumstances?

1. In assessing the question of the employer's negligence, it must be borne in mind that the employer had a non-delegable duty of care to ensure that the plaintiff was not exposed to unnecessary risk of injury. By requiring the plaintiff to work in the conditions as described above, and to carry out his duties as a cleaner in accordance with his induction as outlined above, meant that the employer did expose the plaintiff to a significant risk of injury by failing to provide him with a safe system of work. That system involved him walking through muddy school grounds with the result that mud adhered to his work boots. That in turn contributed to his slip and fall, as did the fact that by carrying his cleaning materials in both hands, he had no hand free to steady himself.
2. I therefore find that the plaintiff's employer did breach its duty of care to him in the circumstances, and that that breach was causative of his injuries.

Apportionment

1. The principles relevant to apportionment of liability between tortfeasors are well established - see Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492. That case concerned the appropriate approach in determining contributory negligence. However, the High Court's decision has been held to be the appropriate approach in determining contribution between joint and several tortfeasors. At p 494 the court said with respect to making a relevant apportionment: " … involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination." See also for example, Izzard v Dunbier Marine Products (NSW) Pty Limited, [2012] NSWCA 132 at [104].
2. In assessing the culpability of each tortfeasor here, I am satisfied that the degree of departure of both the defendant as occupier and the employer contributed equally to the plaintiff's injuries.
3. I therefore apportion 50% to the defendant and 50% of liability to the plaintiff's employer for the injuries he suffered.

Damages

1. The plaintiff, who is currently 48 years of age, left school in year nine in 1990. He worked for the State Rail Authority of NSW for a period of nine and a half years and became an assistant train driver. He left that employment after he was involved in a near fatal accident. That incident he described as having a "pretty catastrophic effect" on him and he then worked in a number of unskilled jobs including as an abattoir worker. He suffered a shoulder injury in a motorcycle accident and has continued to suffer ongoing problems with his left shoulder and arm which meant he could not fully extend his left arm. He was then employed on the Taree Council as a general labourer and as a concreter. He also worked in a tyre shop, a wrecking yard and as a factory worker. Despite the problem with his left shoulder he was always able to obtain employment.
2. In 2010 the plaintiff underwent an x-ray of his right hip and pelvis as a result of pain in his hip, which he felt at the end of the working week. He made an application for a disability support pension which was declined, however, he was referred to a rehabilitation provider, as a result of which, on 14 March 2011 he commenced employment with ISS. He was employed as a casual worker but was employed on an almost daily basis. He described it as "best job I ever had", and explained that it was a job that was physically easy for him to carry out. He hoped to be employed in that position until he retired.
3. The job involved him working at various schools, as well as the TAFE college, the police station and the courthouse at Taree. He got on well with his supervisor, Mr Paul Robinson, and made it known that he wanted a full time job.
4. The plaintiff attempted a return to work after the accident at Chatham High School, but was unable to carry out his duties because of his right hip. He gave the following evidence: "Q: Had you ever had problems like that before in your right hip? A: Never ever had a problem like that. I've had a small pain. Like I said, at the end of the week it will be sore and I feel a bit of pain but nothing like this."
5. The plaintiff also noticed that he developed pain in his right knee which he reported to his local medical officer, Dr Kang. He was referred in due course to Dr Bruce White, an orthopaedic surgeon, who recommended a total hip replacement. He has been unable to afford that procedure.
6. In early 2012 the plaintiff was referred to a psychologist who he saw on two or three occasions for depression. He was prescribed anti-depression medication which he is still taking.
7. The plaintiff has continued to suffer pain in his right hip and knee and has been unable to work since the accident. He used a walking stick to walk any distances, however, he still assisted his father on his property. He described the pain in his right leg as deteriorating. He gave evidence that he was in pain constantly and took Endone and Morphine patches for the pain.
8. The pain suffered by the plaintiff prevented him from sleeping and he required medication for that. In addition to Endone, he had been prescribed Norspan patches for pain, together with Endep and Tramal. He also took Panadeine Forte tablets but tried to restrict their use because of constipation. Because he was on a pension the medication, including his anti-depressant medication, was costing him $25 per month.
9. The plaintiff is still under the care of Dr Kang who he sees every two weeks. He was unable to afford ongoing physiotherapy and had some assistance from hydrotherapy. He gave evidence that he would require paid assistance with heavier tasks at home for up to two hours per week.
10. The plaintiff was subjected to a lengthy cross-examination in which all of the inconsistencies in the employer's documentation, referred to above, were fully explored with him. Notwithstanding those inconsistencies, and his lack of a full explanation for some of them, the plaintiff's credit was not seriously impugned. It was clear from his evidence that he was a poor historian, no doubt reflecting his lack of educational opportunity. He made appropriate concessions throughout his evidence, particularly in respect of his pre-existing medical conditions and failed relationship.
11. 91 The plaintiff's medical evidence (exhibit C) comprised a number of medico‑legal reports from Dr Hyde Page, orthopaedic surgeon, together with a copy of his treating records from the practice of Dr Kang. Dr Hyde Page was given a history of the accident consistent with the plaintiff's evidence. He diagnosed an aggravation to an underlying osteoarthritic hip which had left him with "severe lateral right hip pain as a consequence of developing a right hip effusion and a laterally situated synovial cyst in the gluteus muscle as well as surrounding tendonitis". In his report dated 21 June 2012 Dr Hyde Page gave the following opinion: "The severe aggravation to his right hip condition makes him completely unfit to return to his pre-accident employment as a cleaner. It is unlikely that he will improve sufficiently to return to this type of work in the future unless he has a total hip replacement. His ability to work generally is severely affected. He has only ever done manual work such as labouring and cleaning as well as operating plant and equipment. His right hip condition would prevent him from doing any of this type of work in the foreseeable future. If he had a right total hip replacement then there would still be significant restrictions on what work he could undertake. He is presently able to do all his own domestic tasks and lives on his own. However, with the increasing pain and stiffness in his right hip, he is struggling to do his housework, cooking and care for himself and he may need assistance in the future."
12. In a further report dated 10 October 2013 Dr Hyde Page opined that the plaintiff's right hip condition had become progressively worse over the 15 months since he last saw him. His symptoms were by now severe enough for him to have a total hip replacement in the near future, the cost of which would be $27,000. Following successful total hip replacement, Dr Hyde Page was of the opinion that he may be able to return to cleaning work some four to six months following surgery, however, there would still be some restrictions. He estimated that he now needs four hours of domestic assistance per week to undertake heavy domestic tasks and that that would continue for some months after a total hip replacement.
13. Exhibit C also contained a note from Dr White in which he stated as follows: " … I confirm that Mr David Towers has significant post-traumatic arthritis and his only real option for improvement is to have a right total hip arthroplasty. On balance I feel the history of his work related accident on 14 June 2011 has been a significant aggravation of his underlying hip pathology and he is unlikely to gain any significant improvement without a total hip replacement surgery. This surgery relates to the work related injury on 14 June 2011."
14. The defendant's medical evidence comprised a report of Dr Anthony Smith dated 6 December 2011 and a report of Dr Seamus Dalton dated 9 August 2013. Dr Smith diagnosed bilateral osteoarthritis in both the plaintiff's hips, the right being "quite advanced". He also explained that any pathology in the hip can produce knee pain and was of the opinion that the plaintiff suffered an aggravation of his right hip condition. Dr Smith gave an opinion that ultimately the plaintiff will have to have a total hip replacement which will restrict his working capacity. Notwithstanding that opinion, he went on to state: "There is no incapacity in my opinion that is as a result of the fall of 14 June 2011. He would appear to have recovered from that. He has incapacity because his bilateral, in particular his right, hip arthritis."
15. Dr Dalton also diagnosed advanced osteoarthritis of the right hip with milder symptoms on the left side. He went on to opine that the plaintiff displayed considerable pain behaviours on assessment suggesting there was an element of psychological overlay. Dr Dalton went on to state: "There is no evidence to indicate that Mr Towers sustained a significant injury to his right hip likely to result in significant aggravation for acceleration of pre-existing osteoarthritis. It would appear that he suffered a soft tissue injury to the lateral aspect of his hip which has resolved. Gradually over time he became increasingly aware of pain in his right hip, right knee and thigh which was likely related to the underlying osteoarthritis in his right hip, although I note that subsequent examination of his right knee revealed mild degenerative arthritis in that joint as well. The mechanism of injury would appear to have been a fall onto the lateral aspect of his right hip resulting in soft tissue injury. Such an injury would not have resulted in a significant injury to the hip joint itself or the femoral head. If such an injury had occurred then undoubtedly Mr Towers would have been symptomatic with weight bearing and movement of the right hip which does not appear to have been the case."

Determination

1. I do not accept the opinions of Dr Smith and Dr Dalton that have been extracted and set out above. There is a clear nexus between the plaintiff's accident on 14 June 2011 and the onset of pain in his right hip and subsequently in his right knee. The mechanism for that has been clearly explained by Dr Hyde Page whose opinions I do accept. Further, it is supported by the opinion set out in the extract from Dr White above. He clearly requires a total hip replacement on his right side and the need for that was caused by the accident on 14 June 2011.
2. 97 I accept the plaintiff's evidence set out in [84] above that he never had a problem before the accident with his right hip as he did now. It is well settled that a defendant who alleges that a plaintiff suffered from a pre‑existing condition which may have had an adverse impact on his or her future whether or not the injury in question had occurred, bears an evidential burden to show that the plaintiff's condition would have deteriorated in any event regardless of the accident - see Watts v Rake (1960) 108 CLR 158 at [160] and Purkess v Crittenden (1965) 114 CLR 164 at [168]. I find that the defendant has not satisfied that evidentiary burden in the circumstances here. Dr Dalton's statement that a fall onto the lateral aspect of the plaintiff's right hip, resulting in a soft tissue injury would not have resulted in a significant injury to the hip joint itself or the femoral head is unexplained other than to say the plaintiff would have been symptomatic with weight bearing and movement of the right hip. The evidence has established that clearly he was and therefore Dr Dalton's hypothesis cannot be accepted.
3. 98 The defendant submitted that the plaintiff did not cross the threshold for damages pursuant to s 16 of the Civil Liability Act. Alternatively, if that threshold was passed, the defendant submitted that damages for non‑economic loss should be assessed at no more than 20% of a most extreme case.
4. The parties agreed that the plaintiff's net wage loss per week was the sum of $450 and that the past out of pocket expenses amounted to $3,985.00. The defendant accepted that, in the event of the plaintiff establishing that the defendant was negligent, that he would be entitled to past economic loss at $450 net per week, together with loss of superannuation at 11% of the total amount. For the future, assuming the plaintiff was awarded damages to enable him to undergo a total hip replacement, once he had recovered from that operation he would suffer no economic loss into the future as he would be able to earn more than $450 net per week in the sort of employment that he previously undertook, namely, operating plant or working as a storeman.
5. Past treatment expenses were agreed at $3,985.00. For future treatment expenses, in addition to the surgery, it was submitted that he would have a diminishing need for medication as he would not be in as much pain. His claim for future economic loss would be restricted to a period of some six months following the surgery, as would his claim for commercial care of two hours per week.
6. I do not accept the defendant's submission that the plaintiff would not pass the threshold in s 16 of the CLA in respect of damages for non-economic loss. I do find that the plaintiff suffered an aggravation of his pre-existing osteoarthritic right hip, however, it has been a serious aggravation which has been quite disabling for him, and requires major surgery by way of hip replacement. He is now aged 48 years and has worked in mainly unskilled labouring jobs all of his working life. He has had an excellent work record and was able to obtain employment notwithstanding that he had suffered a previous serious shoulder injury.
7. The plaintiff sought an award of damages for non-economic loss of 28% of a most extreme case. Given the severity of the pain that he has been suffering and the deterioration in his condition over the last 18 months as evidenced by Dr Hyde Page, and the amount of analgesia required, and having regard to the impact that the injury has had on all of his life activities, I assess his damages for non-economic loss as 27% of a most extreme case pursuant to s 16. Having regard to the Table in s 16, that results in an award of 10% of the maximum amount, namely, $572,000.00. I therefore award the sum of $57,200.00 for non-economic loss.
8. For past wage loss I award the sum of $450 per week from 14 June 2011 until the date of judgment, a total of 191 weeks at $450 net per week, equating to $85,950.00. I award superannuation at 11% of that amount in the sum of $9,455.00.
9. For future treatment expenses I award the plaintiff the cost of future surgery as estimated by Dr Hyde Page, together with a lump sum to represent his ongoing need for supervision by his local medical officer, occasional referral to a specialist orthopaedic surgeon and ongoing physiotherapy and medications, the need for which will diminish over time. I therefore award the sum of $40,000.00 for future treatment.
10. For future economic loss, it is clear that the plaintiff will continue to suffer ongoing economic loss until such time as he has undergone a total hip reconstruction. If successful, I accept the opinion of Dr Hyde Page that he will continue to have some restriction in his work capacity. That restriction will obviously be greater if the surgery is not fully successful. The divergence in the parties' submissions as to the period of time for which he should be compensated, meaning the amount of time following his surgery, was a period of three months, namely, the difference between nine months and six months duration. Given his excellent employment record, I find that he will in all likelihood return to paid employment as soon as he is able to. However, that may take a period of time following the surgery and given his ongoing restrictions may limit the type of work he is able to undertake. The amount is incapable of arithmetic calculation and I award of $50,000.00 as a buffer for his future economic loss, to include any loss of superannuation benefits.
11. I therefore assess damages as follows: Non-economic loss - 27% of a most extreme case $57,200.00 Past treatment expenses $3,985.00 Past wage loss $85,950.00 Loss of past superannuation $9,455.00 Future treatment expenses $40,000.00 Future economic loss, including superannuation $50,000.00 Total $246,590.00

Application of Section 151Z of the Workers Compensation Act 1987

1. Section 151Z of the WCA relevantly provides as follows: "(2) If, in respect of an injury to a worker for which compensation is payable under this Act: (a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and (b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer, the following provisions have effect: (c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable, (d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages …'
2. The effect of the section was explained by McColl JA (with whom Mason P and Beazley JA agreed) in Pollard v Baulderstone Hornibrook Engineering Pty Ltd & Anor [2008] NSWCA 99 at [30] as follows: "30 The calculations s 151Z(2)(c) requires the Court to undertake were explained in Forstaff Blacktown Pty Limited v Brimac Pty Limited; Brimac Pty Ltd v Johnston [2005] NSWCA 423; (2005) 4 DDCr 179 (at [74]) as follows (including the names of the first respondent, BHE, and Dependable to make the exercise clear): "(a) Section 151Z(2)(C) provides for a reduction in the damages the plaintiff worker may recover from a tortfeasor (the non-employer) [BHE] other than the employer tortfeasor [Dependable] in the proceedings which the plaintiff worker has taken for damages against the non-employer [BHE]: Grljak no 1 (at 88); Clout at [29]); the worker's entitlement to recover from the employer tortfeasor [Dependable] either directly or indirectly is to be no greater than if the worker had sued the employer tortfeasor [Dependable] alone, but the net burden on the non-employer [BHE] is not to be increased; Grljak no 2 (BC9601317 at 7); Clout (at [29], [38]); (b) The figure used in s 151Z(2)(c) is calculated by the Court: (i) deciding the amount of the contribution the non-employer [BHE] would (but for Pt 5) be entitled to recover from the employer tortfeasor [Dependable] as a co-tortfeasor or otherwise at common law; (ii) deciding what is 'the amount of the contribution recoverable' within s 151Z(2)(c) and s 151Z(2)(d); and (iii) deducting the second figure from the first, the product being the amount by which the plaintiff worker's common law damages from the non-employer [BHE] are to be reduced: Grljak No 1 (at 88-89) Clout (at [29] - [31]); (c) Where step (b)(ii) leads to the conclusion that the employer tortfeasor [Dependable] would have been liable to pay no damages if the plaintiff worker's damages were calculated under Pt 5, Div 3, the whole of the figure derived after step (i) is deducted from the plaintiff worker's damages: Grljak no 1 (at 89); Grljak no 2 (BC9601317 at 7) Clout (at [34]);"
3. There was no evidence led by the defendant to demonstrate that the plaintiff's injury resulted in a degree of permanent impairment of the plaintiff of at least 15% with the consequence that, by virtue of s 151H WCA, no damages could be awarded against the employer. Neither party in fact made any submission about the application of the section at all, other than the defendant submitting, as outlined above, that liability fell "all to the employer".
4. It is the defendant who bears the onus of proving the elements set out in s 151Z(2)(c) in order to obtain any reduction of damages - see Pollard at [32].
5. Having determined the amount of contribution that the defendant would be entitled to recover from the employer tortfeasor as 50% of the total liability, applying Pollard as set out above at [30(c)], 50% of the damages as assessed are to be deducted so as to comply with s 151Z(2), even though no damages would be recoverable from the employer - see Izzard v Dunbier Marine Products (NSW) Pty Ltd , supra, per Macfarlan JA (with whom Basten and Barrett JJA agreed) at [124].
6. For those reasons, the amount of the judgment to be awarded to the plaintiff will be the sum of $123,295.00.

Orders

1. I make the following orders: 1. Verdict and Judgment in favour of the Plaintiff against the Defendant in the sum of $123,295.00. 2. The defendant is to pay the plaintiff's costs of the proceedings. 3. The exhibits are to be returned forthwith. 4. The parties are to have liberty to apply on 7 days notice in respect of any special costs order.

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: 16 February 2015