Victorian Workcover Authority v Bayer Cropscience Pty Ltd [2014] VSC 505

1 Shelley Pyper was injured during the course of her employment with Bayer Australia Ltd ('BAL') on 13 May 2009 when she lost her footing on the bare metal edge of stairs in the foyer of the leased Bayer office premises at 391-393 Tooronga Road, Hawthorn East. A negligence action between Ms Pyper and BAL has been settled.

2 In this proceeding, Victorian Workcover Authority claims recovery of compensation payments against Bayer Cropscience Pty Ltd ('BCS') as a third party under s 138 of the Accident Compensation Act 1985 (Vic). The only issue in dispute is factor X in s 138(3)(b) of the Act, being the extent, expressed as a percentage and if any, whereby BCS's act, default or negligence caused or contributed to Ms Pyper's injury.

3 In order to determine that issue, it is necessary to consider three questions:

(1) As an occupier, did BCS have or not have responsibility for the condition of the stairs on which Ms Pyper fell?

(2) Did any act, default or negligence of BCS in relation to its maintenance and management of the stairs cause or contribute to Ms Pyper's injury?

(3) What should be the extent of BCS's proportionate liability as an occupier as against two other occupiers (being the landlord and Bayer Materials Pty Ltd ('BM')) and BAL as the employer?

4 In BCS's submission, the evidence establishes that BAL assumed complete control for all safety issues at the premises. BCS in effect delegated its duty as an occupier to BAL. BCS neither accepted, nor had the capacity to fulfil, any responsibility for safety at the premises. Any responsibility in negligence or breach of duty for the injury suffered by Ms Pyper was entirely that of BAL. None lay in the hands of BCS.

5 I reject this submission. To the contrary, the evidence establishes that, at all material times, BCS maintained ultimate control and responsibility for the management and safety of the premises in relation to matters such as the condition and use of the stairs. I generally accept the submissions of fact made on behalf of VWA in this connection.

6 There is no question that BCS was an occupier of the premises, for that it has admitted. However, it was not the only occupier. Nor was it the lessee of the premises. Moreover, there were arrangements within the Bayer group of companies whereby environmental and occupational health and safety assistance was provided by BAL to BCS. On the nature of that assistance turns the resolution of this particular controversy.

7 As explained by Sash Petreski, the environmental health and safety coordinator or adviser of BAL at the time, he was part of a functional team overseeing occupational health and safety compliance and offering assistance to the Bayer group of companies in Victoria. He worked at the Tooronga Road premises at which BCS employed 40-50 per centum of employees. He formed an Emergency Procedures Committee comprising himself, Greg Castle, Brendan White and Angela Focas. The committee had representatives from all of the different entities at the premises.

8 According to Mr Petreski, Ms Focas was the facilities manager of the building. Her role was to oversee the facility so that, if any maintenance was required, she would engage the relevant contractor. She was also in control of security. She was a BCS employee. Mr Castle was the chief fire warden and also a BCS employee. Mr White was a human resources representative. He too was a BCS employee.

9 Mr Petreski deposed that, although it was his initiative to develop the committee, once it was formed and operating his role was purely advisory. It would meet on a regular basis and he would assist in relation to any workplace safety or environmental issues.

10 Mr Petreski described his role in assisting the committee to develop an annual safety plan. His role was advisory only. It was the committee's plan, not his. It was prepared by Mr White, a BCS employee. Mr Petreski also described his role in assisting the committee to carry out a comprehensive hazard assessment at the premises. On his evidence, that role was also advisory. Ms Focas and others were present during the assessment process. He prepared a hazard assessment report in about April 2009 in which he made recommendations for the consideration of the committee.

11 Mr Petreski's evidence was that all of the safety team for all of the states were employed by BAL, which was based in Sydney. That was the direction of his line responsibility. He was the safety person for BAL and its umbrella companies at the premises and elsewhere in Victoria. Without the approval of the committee, he did not have power to arrange for quotations in relation to necessary works. He recalled that, after Ms Pyper's accident, he asked Global Safe Technologies Victoria Pty Ltd to provide a quotation for the installation of non-slip nosing on the stairs. But after the work was done the invoice was paid by BCS. When it was necessary for communication to occur between the committee and the landlord, Ms Focas would contact the agent representing the landlord.

12 Minutes of the committee for meetings in 2008 and 2009 were admitted into evidence. These show that BCS representatives, and especially Ms Focas, carried the principal responsibility for actioning the decisions of the committee.

13 On the evidence, I find that BCS employees, and particularly Ms Focas as the facilities manager, had primary and ultimate control and responsibility for the safety and management of the premises at the relevant times. BAL did not have that responsibility. Through Mr Petreski, its role was advisory. It is not suggested that any breach of duty occurred in relation to his performance of that role. The arrangement within the Bayer group of companies at the Tooronga Road premises was not that control and responsibility for workplace safety was in effect delegated to BAL through Mr Petreski. Rather, the arrangement was that he would assist and advise BCS in the discharge of the control and responsibility that it had, especially through Ms Focas, for the physical management of the facility in those respects.

BCS's negligence in relation to maintenance and management of stairs

14 While disavowing any contributory negligence on the part of Ms Pyper, BCS contended that no act, default or negligence on its part caused or contributed to her injury. The stairs were fully compliant with the Building Code of Australia. BCS had a safety committee which properly discharged its functions. At the time of the accident, the stairs were not wet and Ms Pyper did not have wet shoes. Although hazard assessments revealed that slips and falls were a general risk and that the stairs in question, if wet, presented a particular risk, no other incident had occurred on the stairs.

15 I must also reject these submissions. On the evidence, for female employees wearing anything but flat shoes, these stairs were an accident waiting to happen. Ms Pyper was a sales representative working on the road. She felt an understandable need to look presentable for Bayer clients and, on the day, was wearing shoes with a 20-30mm high heel with a rubber layer on the heel and a leather sole on the ball of the shoe. These shoes were perfectly sensible and appropriate for her work yet she slipped on the bare metal edge of the stairs and suffered a very nasty fall. That was because the edge of the stairs was too slippery for this kind of normal use and the all too foreseeable risk of injury caused by a slip and fall ultimately happened.

16 In relation to the nature of the accident, I accept Ms Pyper's account. I found this dignified woman to be a credible and truthful witness with a good recollection of the incident. On her evidence, her foot slipped off the edge of the stairs. Her injury claim form speaks of tripping over and falling to the ground. So do two medical reports. Another speaks of her foot slipping. In the circumstances, these accounts are not very different. Her evidence in court is the critical thing and I accept that she fell badly when her foot slipped off the bare metal edge of the stairs. This is consistent with the video evidence of the incident, albeit that the slip itself was largely obscured.

17 As submitted for VWA, the video shows that Ms Pyper was walking down the stairs at a measured pace, concentrating and not carrying anything. She had her right hand on the rail as she walked down and as she slipped. She did not slip on any contaminant.

18 On the evidence, the proximate and highly probable cause of the fall was the slippery nature of the bare metal edge of the stairs. The stairs were made of metal check plate. While the flat part of the steps was moderately slip-resistant due to the raised check in the plate, the edge of the steps was made of bare metal. At the time of the accident, the edge did not have slip-resistant nosing.

19 As BCS's expert, Mr Leonard (whose evidence was excellent) made clear, the stairs were compliant with the BCA. Further, the raised check on the flat surface gave the steps a slip-resistant property at that point. This does not answer the claim of negligence in this case. The workplace was an office in which females worked whilst dressed in normal office clothing, including shoes with high heels. Ms Pyper's shoes had only moderate heels but they were suitable for a female wishing to appear presentable in her sales role, not rubber work boots. In my view, there was a reasonably foreseeable risk that the slippery bare metal edge of the stairs would present a hazard to a female working in the premises. This was not a case where Ms Pyper misjudged her footing and slipped as a result of failing to take reasonable self-care. The risk was easily preventable or at least could have been significantly reduced by the application of rubber nosing to the edge of the steps, as was later done at minimal expense. Such precautions should have been taken not because BCS as the controlling occupant had a duty to use every human ingenuity to guard against all risks but because it was reasonable to guard against the particular risk which existed in the circumstances.

20 There is some evidence that the Bayer companies, and BCS in particular, were generally aware of the hazard presented by slippery surfaces and the risk of slipping and falling. I think it is surprising that this general awareness did not translate into a consciousness that the steps on the stairs, and especially the bare metal edges, presented a risk that had to be managed even when the steps and shoes were dry. On the other hand, there had been no previous incident or even a near-miss like the accident that happened. Giving full weight to that latter consideration, I think it should have been apparent that the bare metal edge of the steps constituted a slipping hazard, in particular for female employees, even when the steps and shoes were dry.

21 In the hazard evaluation carried out for the safety committee, Mr Petreski identified the stairs as a risk hazard if the soles of shoes were wet. He recommended the attachment of anti-slip edging. For that I give him and the committee credit. But the focus of this evaluation was not upon the bare metal edge of the stairs. The evidence revealed that at this physical point the stairs were a slipping hazard wet or dry, even for workers taking reasonable care for their own safety, and it is not suggested that Ms Pyper did otherwise. In terms of s 48(1)(a) of the Wrongs Act, BCS should have known that but apparently it did not.

22 In terms of s 48(1)(b), the risk was not insignificant. I repeat, this was an office environment in which it was foreseeable that female workers wearing office shoes, not work boots, would walk down metal stairs with bare metal edges. Looking forward prospectively and not backwards with the wisdom of hindsight, the degree of risk was not fanciful or far-fetched. Indeed it was much greater than that. I have already expressed the view that this was an accident waiting to happen. I think that is a reasonable and accurate assessment as a matter of common sense and ordinary human experience. I must also note that, unfortunately, any person actually slipping and falling would potentially be exposed to serious injury, as actually happened in Ms Pyper's case.

23 I regret that I have not been much assisted by the evidence of Mr Hennessy, VWA's expert. His research methodology and testing techniques had certain limitations. I do take into account his evidence that the flat checked surface of the steps was moderately slip-resistant, but it is the bare metal edge that was in issue here. Also, as he deposed, rubber nosing is much more slip-resistant than checked metal. Again, that was not in issue.

24 I do not think it could seriously be disputed that, in terms of s 48(1)(c), a reasonable person would have taken precautions against the potential risk of serious harm that the bare metal edge of the steps presented. Taking into account the matters specified in s 48(2), the application of rubber or similar nosing to the edge of the steps constituted such precautions. The problem in this case was that BCS did not appreciate that the bare metal edge of the stairs presented a significant risk of serious harm to female office workers, even when the steps and shoes were dry. If they had, I think the precautions would have been taken for it was, in other respects, a safety conscious and responsible controlling occupant of the premises.

25 It follows that, in my view, BCS as an occupier did not take reasonable care of Ms Pyper as required by s 14B(3) of the Wrongs Act, having regard to the considerations in s 14B(4).

26 The question here, as set out in s 138(3)(b) of the Accident Compensation Act, is the extent, expressed as a percentage, whereby BCS's act, default or negligence caused or contributed to Ms Pyper's injury. That percentage will be factor X.

27 According to the submissions made for BCS, the potential candidates for a finding of proportionate contribution are:

• BAL as the employer
• BCS as a co-occupant
• The landlord (who was an occupant by virtue of the definition in s 14A of the Wrongs Act)
• BM as a co-occupant.

It was submitted that each of these entities should be found to have some proportionate responsibility and that, as the employer, BAL should be adjudged to have 75 per centum responsibility.

28 In my view, contributory responsibility should be shared equally between BAL as the employer and BCS as the controller and manager of the facility with respect to workplace safety.

29 The landlord had no responsibility for the accident. The stairs were compliant with the BCA and BCS did not ask the landlord to take any action in relation to the stairs. Nothing was brought to its attention giving rise to a duty or obligation to act. The terms of the lease take the matter no further. In the circumstances, the risk of harm presented by the bare metal edge of the stairs arose out of the use of the premises by the Bayer group of companies and responsibility for taking reasonable precautions against that risk fell upon BCS.

30 Although it appears on the evidence that BM was a co-occupant of the premises, the evidence is otherwise scant in relation to that company. There is no evidence to suggest that it had any control or responsibility with respect to the safety of the premises as a workplace. There is simply nothing to supply a proper foundation for the attribution of any responsibility to it. In my view, within the Bayer group, the evidence establishes that it was BCS's role as the facilities manager to manage the relevant risk and take precautionary measures. BM had no responsibility for the accident.

31 That brings me to BAL and BCS. BAL was the employer and owed a non-delegable duty of care to Ms Pyper. It should have ensured that BCS properly managed the risk and took precautionary measures and, failing that, it should have taken steps of its own to protect her. It did not do so. But, without waiting to be asked by BAL, BCS should have properly managed the risk and taken precautionary measures as the controlling and responsible occupier. Neither did it do so. In the circumstances, contributory responsibility for causing the injury must be shared equally between the two companies.