Willett v United Concrete Pty Limited and Anor

Civil Liability Act 2002 Civil Procedure Act 2005 LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1946 Occupational Health and Safety Act 2000 Uniform Civil Procedure Rules Workers Compensation Act 1987

Barboso v Di Meglio [1999] NSWCA 307 Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 Conceicao v Visypak Operations Pty Ltd [2008] NSWCA 307 DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 Penrith Rugby League Club Ltd trading as Cardiff Panthers v Elliot [2009] NSWCA 247 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) 172 IR 453 CASES CITED : Rasic v Cruz [2000] NSWCA 66 Rhoden v Wingate [2002] NSWCA 165 S v State of New South Wales [2009] NSWCA 164 Spedding v Nobles [2007] NSWCA 29; (2007) 69 NSWLR 100 Sydneywide Distributors v Red Bull Australia Pty Limited [2002] FCAFC 157; (2002) 55 IPR 354 Thompson v Woolworths (QLD) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 TNT Australia Pty Limited V Christie & 2 Ors; Crown Equipment Pty Limited v Christie & 2 Ors; Manpower Services (Aust) Pty Limited v Christie & 2 Ors [2003] NSWCA 47 Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818 Wilkinson v BP Australia Pty Ltd [2008] QSC 171 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Plaintiff - David Willett PARTIES : First Defendant - United Concrete Pty Limited Second Defendant - PF Transport Pty Limited

Plaintiff - Dr AS Morrison SC with Mr WJ Nicholson of counsel COUNSEL : First Defendant - Mr RA Cavanagh of counsel Second Defendant - Mr D Kelly of counsel

Plaintiff - Marshall & Gibson Lawyers SOLICITORS : First Defendant - Gillis Delaney Lawyers Second Defendant - Moray & Agnew

• 62 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

020223/07 DAVID WILLETT v UNITED CONCRETE PTY LIMITED & ANOR

JUDGMENT 1 HER HONOUR: By an amended statement of claim filed in February 2008 the plaintiff, Mr David Willett, claimed damages for injuries suffered in 2004 during a workplace accident which occurred while he was working as a truck driver for the second defendant, PF Transport Pty Limited ('PF Transport'), delivering a load of sand at the premises of the first defendant, United Concrete Pty Limited ('United Concrete'). Mr Willett has received payments under the Workers Compensation Act 1987 in respect of the injuries which he suffered that day. In these proceedings, both defendants deny liability for what occurred and in the alternative, allege contributory negligence by the plaintiff. Defences under s 5G, s 5F and s 5S of the Civil Liability Act 2002 were also raised by the first defendant, as was s 151Z(2)(c) of the Workers Compensation Act. 2 By a cross claim filed in August 2007, United Concrete claimed contribution and/or indemnity from PF Transport, pursuant to s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946, alleging negligence on the part of PF Transport. The cross claim was defended and by a second cross claim, filed in March 2008, PF Transport also claimed contribution and/or indemnity from United Concrete pursuant to s 5(1) of the Law Reform (Miscellaneous Provisions) Act, alleging negligence on its part. It also claimed an indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act. This cross claim was also defended and in the alternative, contributory negligence by PF Transport was claimed. 3 There was no issue between the parties that the defendants each owed Mr Willett a duty of care, when he was performing his work at the United Concrete site, although they differed as to the nature of those duties and whether they had been breached. What was also not agreed was whether there was a foreseeable risk of harm at the United Concrete yard where Mr Willett claimed he fell while performing work associated with the delivery of a load of sand, namely the risk of slipping. Whether Mr Willett's injuries resulted from that risk materialising, was also in issue.

The onus falling on Mr Willett 4 It was the case put for Mr Willett that the question of whether or not the risk existed, would be determined in the way discussed by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47:

"13. A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone [1951] UKHL 2; (1951) AC 850, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.

14. In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

15. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors." 5 While the case put for Mr Willett was not expressly directed to the regime established by the Civil Liability Act, its requirements may not be overlooked in determining whether the onus which fell on Mr Willett has been met on the evidence. That onus requires Mr Willett to show that a foreseeable risk of harm existed and that his injuries resulted from that risk materialising, s 5E of the Civil Liability Act, providing:

In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation" 6 In considering questions of onus, note should also be taken of what was recently said in Penrith Rugby League Club Ltd trading as Cardiff Panthers v Elliot [2009] NSWCA 247, where Sackville AJ observed in relation to the provisions of the Civil Liability Act that:

"22 As is pointed out by D Villa , Annotated Civil Liability Act 2002 (NSW) (2004) Law Book Co, at [1A.5B.050], s 5B of the Civil Liability Act does not itself impose an obligation on a person to exercise reasonable care to avoid harm to another person. The section sets out requirements that must be satisfied before the first person can be found to be " negligent in failing to take precautions against a risk of harm " (s 5B(1)). As Villa observes, "[s] satisfaction of the conditions is a necessary, but not a sufficient prerequisite for civil liability to arise." " 7 It follows that in considering the matters in contest between the parties, s 5B and s 5C of the Civil Liability Act must be born in mind. They provide: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."

What was the nature of the duties owed to Mr Willett? 8 Mr Willett performed his work under the direction and control of his employer, PF Transport and while at its premises, under the control of United Concrete, the occupier of the premises. Their duties towards Mr Willett were not identical.

PF Transport 9 The duty owed to an employee has often been discussed, the Court of Appeal observing, for example in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) 172 IR 453:

"36 An employer's non-delegable duty is one "… of a special and 'more stringent' kind": Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520 (at 550) per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ. The employer must ensure that the duty is carried out; if the duty is to take reasonable care of some person or property, the person must ensure that reasonable care is taken: New South Wales v Lepore per McHugh J (at [144]). The duty extends to giving employees directions in the performance of their work where directions might reasonably be thought to be required to secure them from danger of injury ( Kondis (at 689) per Mason J) and to devise a method of operation for the performance of the task that eliminates the risk, or adequately safeguards against it: Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 (at [12]). As Mason P (with whom Foster AJA agreed) said in English v Rogers [2005] NSWCA 327 after referring to this passage from Czatyrko: "73 …This passage emphasises that it is for the employer to devise reasonably appropriate measures to eliminate the risk. If such measures are not taken and the risk comes home in consequence of the breach, then liability will generally ensue." (emphasis added)

37 In deciding whether an employer has discharged its obligation to establish, maintain and enforce a safe system of work, the Court must take into account the power of the employer to prescribe, warn, command and enforce obedience to its commands: McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 (at 313).

38 The employer's duty of care is not modified because its employees are sent to work for a client. Indeed, in such circumstances the employer may be required to adopt additional measures by way of warning or training in order to discharge its continuing duty of care to its employees: TNT (at [67]) per Mason P." 10 In S v State of New South Wales [2009] NSWCA 164, the employer's duty was described in this way:

"58 The duty of care owed by an employer to an employee was described by the High Court in Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 838 in the following terms: "An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in the workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work" (at [12], citations omitted)." 11 As to an employee's inadvertence and negligence, what the High Court held in McLean v Tedman & Brambles Holdings Ltd [1984] HCA 60; (1984) 155 CLR 306 must also be born in mind:

"7. There are several points which need to be made about this course of reasoning. Although running across the road was a means of doing the work which the appellant and other employees chose or preferred, it was nevertheless a system of work of which, as the primary judge found and the Full Court did not deny, Brambles was aware or ought to have been aware. And it was fraught with some degree of risk of injury to employees in some circumstances, especially when an employee was crossing Albany Creek Road when it was dark, as the appellant was doing on this occasion. The fact that the traffic was very light no doubt lessened the risk of injury, though it may have induced an employee to take less care for his own safety. However, there is simply no basis for saying that the risk of injury was fanciful (see Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 CLR 40, at p 47) or for brushing it aside because it was insignificant. It was a foreseeable and significant risk inherent in the way in which the garbage was collected in Albany Creek Road arising from the possibility of negligence on the part of motorists and negligence or inadvertence on the part of an employee.

8. In such a situation it is not an acceptable answer to assert that an employer has no control over an employee's negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law defence (Wheare v. Clarke [1937] HCA 7; (1937) 56 CLR 715, at p 723; Henwood v. Municipal Tramways Trust (S.A.) [1938] HCA 35; (1938) 60 CLR 438, at p 444). The employer is not exempt from the application of this standard vis-a-vis his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system. The employer's obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk.

9. Many statements are to be found in the cases which give emphasis that in discharging his duty to take reasonable care to avoid injury to his employee an employer is bound to have regard to any risk of injury that may occur by reason of an employee's inadvertence, inattention or misjudgment in performing his allotted task. Thus, in Sungravure Pty. Ltd. v. Meani [1964] HCA 16; (1964) 110 CLR 24, Windeyer J. said (at p 36): "A safe system of work is one that is safe for an average workman taking reasonable care for his own safety." But his Honour immediately followed that comment with the observation - "It is not a system which is safe only for persons of superior skill whose attention never wanders." More recently, in Ferraloro v. Preston Timber Pty. Ltd. (1982) 56 ALJR 872, the Court in its unanimous judgment said (at p 873): "The employer's duty, to whomsoever it falls to discharge it, is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury and the employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgment by the employee in performing his allotted task." See also Da Costa v. Cockburn Salvage and Trading Pty. Ltd. [1970] HCA 43; (1970) 124 CLR 192, at p 218; Turner v. The State of South Australia (1982) 56 ALJR 839, at p 842.

10. But these observations should not be regarded as exhaustive statements of the matters to which the employer must have regard. The qualified nature of some of the statements may be explained by the circumstance that contributory negligence was a defence at common law. But the occasion for the qualification disappeared when contributory negligence ceased to be a defence and became a matter of apportionment. If there is a foreseeable risk of injury arising from the employee's negligence in carrying out his duties then this is a factor which the employer must take into account. That this is so was implicitly acknowledged by Taylor J. in Smith v. The Broken Hill Pty. Co. Ltd. [1957] HCA 34; (1957) 97 CLR 337, when (at p 343) he referred to an employer contemplating "the possibility of thoughtlessness or inadvertence - or to use what is, perhaps, a stronger word, carelessness ...". "

United Concrete 12 As to United Concrete, for Mr Willett it was argued that it had obligations to provide safe premises, both at common law and under the Occupational Health and Safety Act 2000 and the Regulations made under that Act, which were relevant here to be considered, even though no breach of statutory duty was alleged. The common law duty was submitted to be 'informed' by these statutory obligations, even though the duty falling on United Concrete was already of a high order, even without the influence of the Occupational Health and Safety Act. A similar approach would be taken in relation to these obligations, as was taken in relation to liquor licensing laws, in respect of which it was said, for instance, in Spedding v Nobles [2007] NSWCA 29; (2007) 69 NSWLR 100:

"50 The Appellant's reliance on Drakulic is misplaced, for a number of reasons. First, it is clear from the authorities which have upheld the existence of a duty of care owed by a licensee to patrons that that conclusion depends not on the existence of a "special relationship" recognised by law, but on the element of control. Although the Liquor Act 1982 (NSW) does not impose a statutory duty of care on licensees, enforceable by patrons, by conferring a power of control and an obligation to exercise that power, the statute provides the basis for a finding with respect to control, which in turn attracts the common law duty of care and informs its content. The relevant statutory provisions may be found in s 2A of the Liquor Act which identifies as a primary object of the statute "the minimisation of harm associated with the misuse and abuse of alcohol (such as harm arising from violence and other anti-social behaviour)", in combination with s 103(1) which empowers a licensee or an employee of a licensee to "turn out, or cause to be turned out of the licensed premises", any person who is intoxicated. The section authorises the use of "such reasonable degree of force as may be necessary" to turn a person out: s 103(3A). In addition, s 125 of the Liquor Act provides:

(1) A licensee shall not: ... (b) permit intoxication, or any indecent, violent or quarrelsome conduct on his or her licensed premises." 13 For United Concrete it was argued that given that no breach of statutory duty was alleged against it, the provisions of the Occupational Health and Safety Act and the Regulations were not relevant to a consideration of the duties which it owed Mr Willett. 14 It seems to me that the approach which must be born in mind is that discussed by the High Court in Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 at [12], albeit there a discussion in the context of an employer's obligations in relation to safety:

"On the other hand, being a question of fact, it is undoubtedly true, as McHugh J.A. said, that what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community. This must be so, because in every case the tribunal of fact, be it a judge sitting alone or a jury, must determine whether or not in the circumstances of the particular case the employer failed to take those precautions which an employer acting reasonably would be expected to take. What is considered to be reasonable in the circumstances of the case must be influenced by current community standards. In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer. As Mason, Wilson, Brennan and Dawson JJ. said in McLean v. Tedman [(1985) 155 CLR, at p 313.] : "Accident prevention is unquestionably one of the modern responsibilities of an employer." However, it would be wrong to exaggerate the recency of the trend in this regard. It has long been required of an employer that in the case of repetitive work under strain he take account of the possibility of thoughtlessness or inadvertence or carelessness on the part of an employee: see Smith v. Broken Hill Pty. Co. Ltd. [(1957) 97 CLR 337, at pp 342-343] ; Da Costa v. Cockburn Salvage & Trading Pty. Ltd. [(1970) 124 CLR 192, at p 218.]" 15 United Concrete's duties to Mr Willett were undoubtedly akin to those discussed by the High Court in Thompson v Woolworths (QLD) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234, Woolworths there having devised a system which the appellant was bound to observe, while delivering bread to its premises:

"[27] Even so, the respondent established and maintained a system, and its obligation to exercise reasonable care for the safety of people who came on to its premises extended to exercising reasonable care that its system did not expose people who made deliveries to unreasonable risk of physical injury. A number of aspects of the facilities and procedures for the delivery of goods into the respondent's store might have involved issues of health and safety. Many, perhaps most, of the people who made the actual deliveries were outside the respondent's organisation, and were not subject to the direct control it exerted over its employees. Even so, they were regular visitors to the premises, for a mutual commercial purpose, and it was reasonable to require the respondent to have them in contemplation as people who might be put at risk by the respondent's choice of facilities and procedures for delivery." 16 There, the appellant was at Woolworths' premises to deliver bread, described at [3] as 'a mutual commercial purpose'. While performing that work, the appellant had to conform to certain systems and procedures established by Woolworths. In this case, it was the two defendants who had a mutual commercial purpose. Mr Willett was performing his work at United Concrete as an employee of PF Transport, in order to further that purpose. It was he who was obliged to perform his work, in accordance with procedures which United Concrete had established, when he was at its premises. Clearly, United Concrete was obliged to have PF Transport employees such as Mr Willett in contemplation, as people who might be put at risk by its choice of facilities and procedures, when loads of sand were delivered to its yard. 17 Unlike Thompson, however, here Mr Willett complains that the defendants failed to warn him of, or protect him from, a risk of which he was not aware, namely the risk of slipping on sand and/or aggregate lying on the ground of the yard. Both defendants deny that there was such a risk; that there was any need to give Mr Willett any warning about the sand and aggregate; or that Mr Willett was injured by the materialisation of that risk, as he complained. 18 In this case, also to be considered is the expectation discussed by the High Court in Thompson, that a person will exercise reasonable care for his or her own safety. At [35] to [37], it was observed:

"[35] When a person is required to take reasonable care to avoid a risk of harm to another, the weight to be given to an expectation that the other will exercise reasonable care for his or her own safety is a matter of factual judgment. It may depend upon the circumstances of the case. To take a commonplace example, in ordinary circumstances a motorist in a city street, approaching a pedestrian crossing, will reasonably assume that the pedestrians assembled on the footpath will observe the lights which control the crossing. Most people drive as though it may be expected that other road users will be reasonably careful. At the same time, it is often judged reasonable to expect a motorist to allow for the possibility that some other road users will be inattentive or even negligent.

[36] The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response. There are, for instance, no risk-free dwelling houses. The community's standards of reasonable behaviour do not require householders to eliminate all risks from their premises, or to place a notice at the front door warning entrants of all the dangers that await them if they fail to take care for their own safety. This is not a case about warnings. Even so, it may be noted that a conclusion, in a given case, that a warning is either necessary or sufficient, itself involves an assumption that those to whom the warning is addressed will take notice of it and will exercise care. The whole idea of warnings is that those who receive them will act carefully. There would be no purpose in issuing warnings unless it were reasonable to expect that people will modify their behaviour in response to warnings.

[37] The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration."

How did Mr Willett come to injure his back? 19 There was no issue between the parties that Mr Willett suffered a serious back injury in July 2004 while at the premises of United Concrete. His current condition is the result of his injury, later complications arising from surgery, the effects of an addiction to drugs prescribed to manage ongoing pain, as well as other drug use and other serious health issues, as well as another serious injury sustained in a motor vehicle accident. While there is no question that Mr Willett suffers serious, ongoing ill health, how the injury which he suffered in 2004 was sustained, and whether it was as the result of the defendants' failures, were in issue. 20 In considering whether the onus which fell on Mr Willett was met on the evidence, it is convenient to begin with a consideration of his evidence about what happened to him, there being no witnesses to the accident and no expert evidence called in relation to the mechanics of the fall. 21 Mr Willett commenced employment with PF Transport on 5 July 2004. He was an experienced and qualified diesel mechanic and truck driver, who had applied for the driving position which had been advertised some weeks before. He was the successful applicant. On 5 July, he was allocated a truck, pulling a tipper and dog trailer and given his first job. He then drove to a quarry at Maroota, where he collected a load of coarse sand and drove to the United Concrete site at Wetherill Park. There he was shown where to empty his load. He was experienced in this work and was given no instructions by either defendant as to how he should do it and given no warning as to any risks posed by the state of the yard. 22 After the load was emptied, Mr Willett straightened the truck and trailer. It was common ground that the yard where the accident occurred was constructed of concrete, which had been worn by use. There was sand and aggregate lying on the ground. There was an issue between the parties as to whether or not what was lying on the ground, made the surface slippery. 23 Mr Willett got out of the truck and walked to the rear of the tipper, in order to brush sand out of the airlines of the tipper and the drawbar, which connected the tipper and dog trailer. That sand had fallen from the tipper when the load was dumped. Mr Willett needed to brush this sand off, in order to ensure that sand would not fall from the truck onto the roadway after he left the site. He understood that he was liable to be fined, if he dropped sand onto the road. He used a small broom to brush the sand off the right rear side of the tipper and the draw bar, which joined on to the trailer. It was when he stepped over the draw bar to get to the left hand side, that the accident occurred. 24 Mr Willett has given a number of conflicting accounts of how he came to injure himself when he stepped over the draw bar. In a worker's compensation claim form, which he signed on 15 July 2004, he described 'what happened' as:

"I was cleaning the drawbar on the trailer when I went to hop over the bar, and sliped(sic) on the sand on the concrete and hit my left leg on the drawbar." 25 In a statement of 16 December 2004, again made in relation to his worker's compensation claim, he gave a different account, explaining what happened in this way:

"At about shortly after 12.00 in the afternoon I was taking my second load to Wetherill Park. I was removing the sand from the draw bar so as to ensure that none would be deposited on the public thoroughfares when I slipped on the sand and thereby injured my back. I am still suffering from severe back pain, severe pain in my left leg and right leg as well as suffering from severe headaches." 26 In a statement made on 9 April 2007, for these proceedings, Mr Willet gave another account, explaining what had occurred: "17. After I emptied the load from the tipper, I got out of the truck and walked to the back of the tipper. I did this in order to brush sand from the airlines of the tipper and the drawbar. As I emptied the tipper sand fell across the airlines and the drawbar. As I had driven tipper trucks previously I knew the airlines and the drawbar needed to be swept clean so that sand would not fall from the truck on to the roadway after I left the delivery site.

18. I commenced the task of brushing the sand from the airlines and the drawbar by standing on the driver's side of the drawbar facing the back of the tipper. After brushing the sand from the airlines and the drawbar, whilst standing on the driver's side facing the back of the tipper, I then stepped over the drawbar in order to go to the other side of the truck with the intention of brushing the sand from the airlines on the other side of the truck.

19. As I stepped over the drawbar I raised my left foot from the ground and lifted it over the drawbar. After placing my left foot on the ground on the other side of the drawbar I then raised my right foot off the ground to lift my right foot and leg over the drawbar with the intention of putting my right foot on the ground on the other side of the drawbar. As I did so I felt my left foot slip or shift on something between it and the ground and as that happened I fell backwards striking my back as it feel across the drawbar. I did not fall onto the ground. I felt pain in my back after striking the drawbar." 27 In his oral evidence in these proceedings, Mr Willett gave quite a different account of what had occurred. He explained in his evidence in chief, that :

"A. … I walked down the right hand side of the vehicle to where the ring feeder is which holds the trailer on to the truck and the airlines are, and started to sweep off the sand and I noticed there was quite a fair amount of sand on the left hand side so I went to step over the draw bar to get on to the left hand side of the vehicle and as I did I lost my footing and fell straight back on to the draw bar.

Q. When you stepped over the draw bar could you see whether you were stepping on to anything or not? A. No.

Q. About what height is the draw bar? A. The draw bar would be, it's higher than your knee, so probably - it's higher than your knee, it's not as high as your hip, in between I would say, approximately." 28 In cross-examination, when his attention was drawn to how his earlier statements differed from the account he had given in his evidence in chief, especially that made in April 2007, Mr Willett explained that what he had said in April 2007 was not correct. He insisted that when he fell, his right leg was still on the ground. The cross examination continued:

"Q. Just going back a bit then, you agreed with me I think that whilst you are stepping over, you have your left foot in the air and your right foot on the ground, is that right? A. Yeah.

Q. At some stage your left foot comes in contact with the ground on the other side of the draw bar, is that right? A. My left foot, yeah.

Q. And then you said before that you lost your footing? A. Yeah.

Q. Well, did you lose your footing when you had both left and right feet on the ground, is that what happened? A. As soon as my left foot hit the ground, right, I lost my footing, I fell backwards.

Q. Does that mean you still had your right foot on the ground when you lost your footing? A. How can I mean, I've fallen backwards.

Q. I'm just asking you, Mr Willett. If you are not able to remember, say you are not able to remember, if you would. But are you able to remember when you lost your footing whether you had both feet on the ground, or only one? A. The only way I can answer it is when my left foot touched the ground, I lost my footing and fell backwards.

Q. When you think about it, would it be likely that you still had your right foot on the ground when you lost your footing? A. Maybe for a split second, maybe. It's very hard to say.

Q. For a split second do you think you might have actually lifted up your right foot before you started to lose your footing? A. No, I don't think so.

Q. Were you holding on to the draw bar as you attempted to climb over it? A. No.

Q. If on your evidence the draw bar is higher than shown in the photograph I showed you, just have a look at the photograph again would you please Mr Willett? A. Yeah.

Q. Would you agree you would have to lift your left leg and foot over a height of about mid-thigh level to get over the draw bar? A. Mid-thigh level? Approximately, it also depends if the air bag's pumped up after you tip." 29 Mr Willett denied that he held onto anything, as he stepped over the draw bar. He had not seen what was on the ground, on the other side of the draw bar, before he stepped over and slipped. He could not see what was on the ground on the other side of the draw bar, mudflaps obstructed his vision. He was, however, certain that he had not simply overbalanced, as he lifted his leg to mid-thigh height, without holding onto anything, as he stepped across the draw bar. 30 When again taken to his earlier statements, Mr Willett agreed that the account he had given at the trial differed, and insisted that 'as I placed my left foot upon the ground it went from under me and I went back'. He insisted that he did not lift his right foot off the ground, '[i]t come off the ground, it come off the ground when I fell backwards'. He reiterated that he was 'pretty positive' that he did not raise his right leg, although it was his intention to lift it over the draw bar, after he placed his left leg on the ground. He said that he remembered what had happened, and:

"Q. Are you sure you didn't just lose your balance as you had one foot in the air and one foot on the ground? A. I'm positive, because I would have fallen forward if I had my leg off the ground and my left leg off the ground already, I would have fallen over the draw bar, not backwards.

Q. You didn't fall to the ground, did you? A. No, no. I fell onto the draw bar.

Q. So whatever happened to you was just something that was sufficient for you to lose your balance and come into contact with the draw bar, is that right? A. I lost my footing.

Q. I'm sorry, that's my fault, I didn't mean to be suggesting otherwise caused you to lose your footing and as a result of losing your footing you say you lost your balance and came in contact with the draw bar, is that right? A. Yeah. When I placed my left foot on the ground, I lost my footing and fell backwards.

Q. Any loss of footing wasn't sufficient to cause you to fall to the ground? A. No, because I hit the A frame of the draw bar.

Q. Were you holding onto it before you lost your footing? A. No.

Q. Did you grab a hold of it as you lost your footing? A. No, I just fell, it happened so quick.

Q. You must have grabbed a hold of it when you started to lose your footing, Mr Willett, didn't you? A. No, it is only about a tubing, about that round (witness indicated.)

Q. What did you do with your hands when you were losing your footing? A. They just went back like that. (Witness indicated.)

Q. Then did you try and regain your balance by putting your hand on the draw bar? A. No, no. I put my arm around towards my back and I rolled to my left and I got off the draw bar.

Q. Back to the position you'd been in before you attempted to walk across it? A. No, because I was laying across the draw bar.

Q. Did you end up on the other side of the draw bar or the side you had been in, in the first place? A. I fell back on the right hand frame.

Q. What I'm getting at is, remember you were on one side of the draw bar, you were attempting to stand over it, step over it? A. Yeah.

Q. After you'd lost your footing? A. Yes.

Q. Did you end up on the other side of the draw bar or the side you were initially? A. I ended up on the other side.

Q. The other side, okay. Now, you drove away from the site, didn't you, after this incident? A. Yeah.

Q. You didn't tell anyone about anything that occurred? A. No, just thought I fell, never thought nothing of it.

Q. And then you continued working that day? A. Yeah.

Q. And then did you subsequently realise that you were experiencing some pain in your back? A. Yeah and my left leg was getting worse and worse.

Q. And you went to see your general practitioner? A. No.

Q. You didn't? A. No." 31 As to the mechanics of the fall, it was later submitted for Mr Willett in re-examination that it was obvious that the fall occurred after a transfer of weight onto the left foot, although how far through the process his foot had slipped, was a matter of some uncertainty. Consistently, Mr Willett had always said his foot slipped and that:

"... if his foot, if he is facing towards the back of the truck which appears to be the case if he's swinging his left leg over and his left leg, left foot, slips forward in the process of transferring his weight from his right to his left, whether his right is still some part is on the ground is neither here nor there. In the process, if his foot slips forward he falls back on to the draw bar rolling on to his left, which is the description he has consistently given of what has occurred, that is perfectly consistent with slipping."

32 It was also finally submitted for Mr Willett that what had to be established on the evidence, was that the surface was slippery, not the amount of slippery material which was actually underfoot when he slipped. 33 The upshot of all of the evidence was that Mr Willett's first account of his fall, given in 2004, some days after the accident, was that he fell when he went to 'hop' over the draw bar and that when he fell, he hit his left leg. There was no mention of hitting his back. The second version, given not long afterwards, made no mention of attempting to cross the draw bar when he slipped, injuring his back. Mr Willett's third account, given in April 2007, had him facing the rear of the tipper, then stepping over the draw bar, with his left leg on the ground and his right left being lifted, when his left leg slipped and he hit the draw bar as he fell backwards. When called upon in cross-examination to explain how it was that he came to fall, Mr Willett said that his April 2007 account was wrong. 34 Mr Willett then explained that when he stepped across the draw bar, he momentarily had both feet on the ground, one on either side of the draw bar, having lifted his left leg across the draw bar and put his left foot to the ground, whereupon his left foot slipped immediately, causing his right leg to come off the ground, he not as yet having lifted it. This caused him to fall backwards, hitting his back on the draw bar, with him ending up lying across the draw bar, on the right side of the 'A' frame. He grabbed the draw bar behind him only after he hit it, not before. He insisted that he did not fall to the ground, but ended up on the other side of the draw bar, that is on the left side of the draw bar. 35 This final account was attacked by the first defendant as being entirely implausible, denying both logic and commonsense. That submission was met with the argument that Mr Willett must have been facing the back of the truck, when he swung his left leg over the draw bar, slipped and fell, even though Mr Willett has never himself given an account that he had swung his left leg over the draw bar, while standing, facing the rear of the truck. Nevertheless, it was argued that his evidence proved that there was a hazard on the ground where his foot slipped and that an inference would readily be drawn that the hazard was causative of the injury (relying on the approach of Gaudron J in Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408). Accepting that this is the view which her Honour took, which, it would seem to me is open to some debate, in this case, of course, there was an issue between the parties as to whether the sand and aggregate on the ground was a hazard at all. I will return to deal with that issue below, but note at this stage, that for reasons which will become clear, I am unable to accept the submission that in this case, such an approach is available. 36 In his evidence at the hearing, Mr Willett described his action as stepping over the draw bar, although at one point he said he jumped. In various earlier accounts he has said that he had stepped, hopped, or jumped over the draw bar. He has never described what he did as swinging his left leg over the draw bar while standing facing the back of the tipper, as was submitted must have been his action. That action seems quite a different one to that which Mr Willett has ever described. 37 That it is unlikely that Mr Willett was facing the rear of the tipper when he fell, follows from his evidence at the hearing. He explained that he had to brush sand off the back of the tipper and off the drawbar, which ran from the back of the tipper, forming an 'A' frame when it joined onto the trailer. To do so, Mr Willett must have turned towards the draw bar, in order to sweep along its length with the brush, as he described in his evidence, with the sand all falling on the right hand side of the truck, not on the left where he then stepped. Mr Willett noticed sand on the left hand side of the tipper, which he had to brush off and so he stepped across the draw bar and fell. This description makes it unlikely that Mr Willett was then facing the rear of the tipper. It would appear from his evidence at the hearing that he was facing the drawbar when he stepped across it. If Mr Willett crossed the draw bar using a stepping motion, first lifting his left leg across the draw bar and placing his left foot onto the ground on the other side, before lifting his right leg up and over the draw bar, then the draw bar would have been between his legs when he fell, unless he had lifted his right leg before he fell. 38 Mr Willett could plainly have fallen backwards and hit his back on the draw bar as he fell, if his April 2007 account of how he fell after he lifted his right leg to lift it over the draw bar was correct. Then he would have had his left foot on the ground and his right leg in the air, before he fell backwards, with the draw bar behind him, when he fell onto it. In his April 2007 account, however, he said that when he stepped over the draw bar, he was facing the rear of the truck. From that position, it is difficult to see how he could have 'stepped' across the draw bar. Standing in that position, he would have had to swing his left leg over the draw bar, forwards, or backwards. If forwards, it is difficult to see that he could have fallen backwards at all. If he swung his leg backwards it is difficult to see how he could have ended up as he described at the hearing, lying with this back across the draw bar. 39 Mr Willett's evidence at the hearing was, however, that his April 2007 account was wrong and that when he stepped across, he fell backwards onto the draw bar, immediately when he put his left foot to the ground, before he lifted his right leg off the ground at all. This scenario had the draw bar between his legs when he fell. From that position, it is difficult to see how he could have hit his lower back on the draw bar, as was his evidence. The draw bar was between his legs as he fell, when his right foot came off the ground. From that position he could not have hit his back on the draw bar at all. It was not behind him. He could certainly have hit his left leg, as he fell backwards, as was his first account, given immediately after the accident, but that was not his description of what occurred at the hearing. From the position which he then described, he would have fallen to the ground, which he insisted he did not do. 40 While Mr Willett has given a number of different accounts of what happened in 2004, this was not a case where Mr Willett claimed to have any difficulty in remembering what had occurred, when he gave his evidence. To the contrary, it was argued that his evidence was credible and would be accepted. Mr Willett insisted that he had a clear recollection of what had happened and that his earlier accounts were wrong. He insisted that he stepped across the draw bar, in what was later, accurately it seemed to me, described for United Concrete, as a 'hurdling motion', stepping across the draw bar at mid-thigh height, while not hanging on to the bar. It was not Mr Willett's evidence that he swung his leg over the draw bar, while standing facing the rear of the tipper. 41 Even if Mr Willett had been standing facing the rear of the tipper and had swung his left leg over the draw bar, from such a standing position, it is difficult to see that he could have fallen and hit his back as he described in his oral evidence. If he swung his leg backwards, he would then have fallen backwards from a position where he was straddling the bar, with both feet on the ground, his left foot slipping immediately that he transferred his weight to his left foot, causing his right foot to come off the ground. From that position, how could he have ended up in the position which he described, namely lying with his back across the draw bar, on the right hand side of the 'A' frame, with his legs on the left hand side? That was not explored in cross-examination, no doubt because it was not a scenario which came from Mr Willett. As I have said, if he had swung his leg forward, which has never been suggested, he is unlikely to have fallen backwards at all. 42 The difficulty with Mr Willett's evidence was that it made unlikely that he fell backwards to strike his back on the draw bar as he described. That, undoubtedly, explained the submission eventually put, that he had crossed the draw bar in quite a different way. 43 For Mr Willett it was also submitted to be relevant that he had given entirely consistent accounts as to how he fell, to the various medical practitioners who he has seen over the years. The notes of the various medical practitioners mention stepping, hopping or jumping across the draw bar, loosing his footing, slipping, hitting the draw bar and striking his lower back and left leg. Understandably, none of them contain an account of the kind which Mr Willett gave at the hearing as to the mechanics of the fall. The medical practitioners were not concerned to ascertain how he fell and whether the injury to his back could have been caused by such a fall. None of these accounts, however, nor his evidence at the hearing, suggest that he fell while swinging his left leg over the bar, while standing facing the rear of the truck. Nor did the amended statement of claim allege that this is what occurred. 44 The amended statement of claim alleges that:

"14. After sweeping the driver's side lines and the driver's side of the drawbar with a brush, the plaintiff raised his left leg and raised it over the drawbar placing his left foot on the passenger side of the drawbar, standing with both feet on the ground on each side of the drawbar, and then raised his right leg to cross the drawbar in order to stand with both feet on the passenger side of the drawbar and commence the process of sweeping the sand from the passenger side lines and drawbar.

15. As the plaintiff raised his right leg across the drawbar his left foot slipped on loose aggregate, and in the alternative slipped on loose sand, and in the alternative slipped on loose sand and or loose aggregate, and he fell backwards across the drawbar striking his back and sustained injury." 45 These allegations largely accorded with Mr Willett's 2007 statement, an account which he said in his evidence at the hearing was inaccurate in various ways. On that evidence, it may not be concluded that these allegations were made out. 46 Mr Willett's account at the hearing of how he came to fall, made hitting his back on the draw bar as he fell across it quite unlikely. There were, undoubtedly, other ways in which Mr Willett could have come to lose his footing, so that he fell and injured his back. One obvious way in which that might have occurred, was by Mr Willett overbalancing, while he stepped, hopped or jumped across the draw bar, while not holding onto it. Hopping and jumping across the bar made the possibility of overbalancing even more likely, than while stepping across. He, however, denied any overbalancing. 47 It was not a part of the case pressed that the defendants had been negligent in allowing Mr Willett to step over the draw bar at all. This was not a case where casual, careless inadvertence which a system of work should guard against, was in question, as was the case in Conceicao v Visypak Operations Pty Ltd [2008] NSWCA 307. Nor was this a case like that considered in Wilkinson v BP Australia Pty Ltd [2008] QSC 171, where a known, obvious slipping hazard was overlooked by a driver whose evidence was that it had simply slipped his mind. Here, both the existence of the claimed slipping hazard and that the injury was the result of the manifestation of that risk, were in issue. 48 Ordinary human experience shows that even an activity which may ordinarily be undertaken safely can lead to injury, even serious injury, as the result of factors for which no one else may properly be held accountable in negligence. Undoubtedly the duty which falls on an employer, in particular, is a high one, as the High Court discussed in McLean v Tedman. What was discussed in TNT Australia Pty Limited v Christie & 2 Ors; Crown Equipment Pty Limited v Christie & 2 Ors; Manpower Services (Aust) Pty Limited v Christie & 2 Ors [2003] NSWCA 47; (2003) 65 NSWLR 1, must as also be born in mind. There it was observed:

49 In the realm of negligence, there are many authoritative statements to the effect that an employer is not an insurer of workplace safety. The employer does not warrant the safety of plant (Glass, McHugh and Douglas, The Liability of Employers in Damages for Personal Injury 2nd ed, 1979, p61). The primary question is whether the employee's injury has resulted from some failure on the part of the employer to take reasonable care for the employee's safety ( Rae v The Broken Hill Pty Co Ltd (1957) 97 CLR 419 at 430 per Taylor J). In Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Hayne J said (at 98, citations omitted): The duty is, of course, not absolute; it is the duty of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury.

See also New South Wales v Lepore at [22], [257]-[261]. 49 In the context of United Concrete, as Fitzgerald JA observed, in Rasic v Cruz [2000] NSWCA 66 at [42]:

42 A shopkeeper owes a duty of care even to careless customers. However, a duty of care is not a general duty to protect careless people from the consequences of their own carelessness. The test of reasonable care is not whether the safety of the shop could be improved. 50 While Mr Willett denied that what happened to him in 2004 was that he lost his footing because he just overbalanced when he stepped across the draw bar, insisting that he had slipped on something on the ground, the onus imposed by the Civil Liability Act, requires that the evidence establish, on the balance of probabilities, that Mr Willett fell in circumstances where the injuries to his back were caused, or contributed to, by the defendants' negligence. 51 While Mr Willett's 2007 account of the accident and what was alleged in the amended statement of claim were consistent with a fall which could have resulted in Mr Willett hitting his lower back on the draw bar as he fell backwards, when his left foot slipped as he stepped across the draw bar, while raising his right leg, Mr Willett's insistence in cross examination that this account was inaccurate and the explanations which he then gave as to how he fell, made striking his back on the draw bar as he fell backwards, when his left foot slipped on something on the ground, quite unlikely. It follows that the onus which fell upon Mr Willett to make out the case which he advanced, was, in this respect, not met.

Concurrent evidence 52 The parties led evidence from various experts. When the hearing commenced, it became apparent that sufficient attention had not been paid to ensuring that the expert evidence could be received concurrently at the hearing, as the Court's Practice Direction - Practice Note SC CL 5 - Supreme Court Common Law Division - General Case Management List requires. Finally, only two of the experts, Mr Underwood and Mr Nicholson, whose evidence went to the question of whether there was a risk of slipping at the yard, were required for cross-examination. 53 Unless relieved from the obligations imposed by the Practice Direction, parties must take the steps necessary to ensure that the evidence of such competing experts can be received concurrently. The Practice Direction is intended to assist the Court to meet the obligations imposed by s 65 of the Civil Procedure Act 2005, which requires that the Court seek to give effect to the overriding purpose there specified, namely 'the just, quick and cheap resolution of the real issues in the proceedings'. 54 While it is possible to deal with problems such as those which arose in this case, when they present themselves at a hearing, parties' legal representatives may not ignore that the Practice Direction requires that expert evidence be given concurrently. That requires that the steps necessary to ensure that the evidence can be so given, are taken before the hearing. 55 That requires not only that the legal representatives familiarise themselves with the processes involved, both prior to and at the hearing, but that experts who are engaged to give evidence, also ensure that they participate properly in the necessary preparatory processes. While this obviously requires experts to spend more time prior to a hearing, identifying what is truly disagreed between them, with a resulting increase in costs for the parties at that stage, this is counterbalanced by the resulting reduction of hearing time and costs and importantly, improving outcomes for parties by ensuring that the experts have a common understanding, before the hearing, as to what they agree and disagree, so that the hearing may be directed to ensuring that the trial judge gains a real understanding of what is in issue between the experts and why. That process has the additional benefit of assisting parties to reach settlements before a hearing, or at least by reducing what is in issue between them. 56 In this case, the parties had sought to be relieved of the obligation to call expert evidence concurrently, but had instead been directed to have the experts produce statements identifying what they disagreed upon. When the hearing commenced, there were still problems with those statements being prepared and the evidence being given concurrently. Necessary steps had not been taken to agree on an agenda for the concurrent evidence, nor had steps been taken to ensure that could occur. 57 There were belated attempts to have the various experts meet and identify what they truly agreed and disagreed. In some cases there were difficulties created by experts having relocated interstate and in one instance, an expert had died. These are obviously problems which can arise and must be managed if they do. The document finally produced in respect of Mr Nicholson and Mr Underwood, which sought to identify their differences, was however, obviously unsatisfactory, as the parties then came to submit. This was due, no doubt, in part to the time at which it was produced. 58 The final result was that Mr Nicholson and Mr Underwood did not give their evidence concurrently, although that was a possibility which remained open, until the two experts were each excused. Given the common ground which emerged from the respective cross-examination, it was not necessary to require further evidence to be given concurrently. The same result, it seemed to me, would have been achieved in a timelier, more cost effective and helpful fashion, had the Practice Direction been earlier attended to.

Challenge to the expert evidence 59 Mr Nicholson's evidence was challenged on the basis of his claimed expertise and that his reports did not satisfy what was specified by Heydon J in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85], where his Honour said: "85 In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R (1999) 197 CLR 414, on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise" (at [41])." 60 Having heard the parties, I came to the view that Mr Nicholson's reports had to be received, even though there were some obvious difficulties with them. I indicated that I would in due course give reasons for that conclusion. 61 In the view which I came to, the difficulties complained about had to be resolved in accordance with the approach discussed in Barboso v Di Meglio [1999] NSWCA 307 at [33], namely that the fact that an expert's reasoning process takes the form of an argument, was not a proper basis for rejecting the report, although it might prove to be the case that the reasoning process was not sound and did not support the opinions expressed, so that it would not be accepted as well founded, or be given little weight. This also accorded with the approach discussed in Sydneywide Distributors v Red Bull Australia Pty Limited [2002] FCAFC 157; (2002) 55 IPR 354, where Weinberg and Dowsett JJ observed at [87], when referring to Heydon J's observations at [85]:

"87 The use of the phrase "strictly speaking" in the last sentence should not be overlooked. It may well be correct to say that such evidence is not strictly admissible unless it is shown to have all of the qualities discussed by Heydon JA. However many of those qualities involve questions of degree, requiring the exercise of judgment. For this reason it would be very rare indeed for a court at first instance to reach a decision as to whether tendered expert evidence satisfied all of his Honour's requirements before receiving it as evidence in the proceedings. More commonly, once the witness's claim to expertise is made out and the relevance and admissibility of opinion evidence demonstrated, such evidence is received. The various qualities described by Heydon JA are then assessed in the course of determining the weight to be given to the evidence. There will be cases in which it would be technically correct to rule, at the end of the trial, that the evidence in question was not admissible because it lacked one or other of those qualities, but there would be little utility in so doing. It would probably lead to further difficulties in the appellate process." 62 It also accorded with that of the Court of Appeal in Rhoden v Wingate [2002] NSWCA 165 at [86]:

"86 When assessing the admissibility of expert opinions, it is not the case that an opinion is only admissible if at the close of the case of the party relying on it the evidence establishes each of the assumptions on which it is based on the balance of probabilities. The primary evidence relating to those assumptions might be controversial. Which parts of the primary evidence are to be accepted, and what the correct conclusions from the primary evidence are, are matters for the trier of fact at the end of the trial. The opinion evidence may be admitted if there is evidence which, if accepted, is capable of establishing the truth of the assumptions. On the appeal the defendant put no submission suggesting that the test was more onerous for the plaintiff in this case. For present purposes let it be assumed that it is not less onerous." 63 I also had in mind what Part 31.27 and Schedule 7 of the Uniform Civil Procedure Rules provide as to the form which a report must take, and what appeared in the reports. Part 31.27 provides: "31.27 Experts' reports (cf SCR Part 36, rule 13C; DCR Part 28, rule 9C; LCR Part 23, rule 1D) (1) An expert's report must (in the body of the report or in an annexure to it) include the following: (a) the expert's qualifications as an expert on the issue the subject of the report, (b) the facts, and assumptions of fact, on which the opinions in the report are based (a letter of instructions may be annexed), (c) the expert's reasons for each opinion expressed, (d) if applicable, that a particular issue falls outside the expert's field of expertise, (e) any literature or other materials utilised in support of the opinions, (f) any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out, (g) in the case of a report that is lengthy or complex, a brief summary of the report (to be located at the beginning of the report). (2) If an expert witness who prepares an expert's report believes that it may be incomplete or inaccurate without some qualification, the qualification must be stated in the report. (3) If an expert witness considers that his or her opinion is not a concluded opinion because of insufficient research or insufficient data or for any other reason, this must be stated when the opinion is expressed. (4) If an expert witness changes his or her opinion on a material matter after providing an expert's report to the party engaging him or her (or that party's legal representative), the expert witness must forthwith provide the engaging party (or that party's legal representative) with a supplementary report to that effect containing such of the information referred to in subrule (1) as is appropriate." 64 Clause 5 of Schedule 7 also relevantly provides: "5 Experts' reports (1) An expert's report must (in the body of the report or in an annexure to it) include the following: (a) the expert's qualifications as an expert on the issue the subject of the report, (b) the facts, and assumptions of fact, on which the opinions in the report are based (a letter of instructions may be annexed), (c) the expert's reasons for each opinion expressed, (d) if applicable, that a particular issue falls outside the expert's field of expertise, (e) any literature or other materials utilised in support of the opinions, (f) any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out, (g) in the case of a report that is lengthy or complex, a brief summary of the report (to be located at the beginning of the report)." 65 Mr Nicholson had given two reports, the first made after he had looked at the former United Concrete yard in 2007 from the street, at a point where he could not see the place where Mr Willett fell. There were obvious difficulties with the opinions which he expressed in that report, given what they were based upon. The second report was prepared after Mr Nicholson had inspected the yard in 2009. That report incorporated the first and it was accepted that the two reports thus had to be considered together. Mr Nicholson came to the view that the yard posed a risk of slipping; that it ought to have been cleaned in a different way than he assumed that it had been; and that the work Mr Willett was required to perform when brushing the sand off his truck, should have been done elsewhere on the site, if the risk of slipping was to be addressed. 66 While undoubtedly the two reports could have been more clearly expressed, a fair reading of them showed that in coming to his conclusions, Mr Nicholson had made various assumptions, including that what he observed as to the state of the yard in 2009, was similar to the state of the yard in 2004, when Mr Willett was injured; that the yard was then operated and cleaned in a similar way to what had been done in 2004; and that Mr Willett had come to slip and fall, as he described in his April 2007 statement. Plainly, if the assumptions made were not established at the hearing, the basis of the opinions expressed would fall away and could be given little, or even no weight in resolving the issues lying between the parties. That possibility provided no basis for rejecting the reports. 67 The reports were also criticised on other grounds, including that they did not show any scientific basis for the opinion reached that the yard was slippery, such as a test of the slipperiness of the ground, in the context of the work boots Mr Willett was wearing when he fell. There was a firmer basis for that submission, it seemed to me, but it was apparent from the joint statement which the experts had produced that there was some testing conducted by Mr Nicholson, which in my view had to be considered, given that the challenges otherwise made to Mr Nicholson's expertise could not be accepted. He was a qualified engineer, with relevant experience working in industry, including at workplaces with similar concrete floored yards; he had sat as a member and a chairman of a safety committee and had had many years experience in investigating workplace accidents and their causes, both from the perspective of the mechanics of what had occurred and the systems of work involved. 68 A similar objection was put on a formal basis to the evidence of Mr Underwood, but it was not developed, or pressed further. I was also quite satisfied that there was no proper basis for declining to receive his evidence, for reasons which it is unnecessary to develop greatly. Mr Underwood plainly had relevant qualifications and experience to give evidence and like Mr Nicholson, in so far as his evidence was based on various assumptions, they had to be considered in the context of whether those assumptions were established on the evidence.

Did the evidence establish that there was a risk of slipping? 69 The fact that it was Mr Willett's evidence that he fell and injured his back when his foot slipped on sand and aggregate lying on the ground, of itself was not a basis on which the onus which fell upon him, could be satisfied, even if it could have been accepted that he fell as he described in his evidence. Ipp JA observed in Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818 at [41] that 'a fall might be caused by an infinite variety of circumstances', impossible to identify in advance and that:

"42 As Bryson JA said in Doubleday v Kelly [2005] NSWCA 151: "The actual events as they happened are not the circumstances to which consideration of foreseeability of risk of injury is applied; what is to be considered is foresight in more general terms of risk of injury ..." 70 In his 2007 statement, Mr Willett's evidence was:

"20. Immediately after the incident, I looked at the area where I felt my left foot shift or slip on something and I noticed in that area on the ground loose blue metal aggregate and sand lying on the ground. the ground level of the premises was a concrete surfaced area. The area I had been standing on at the time was a slope of about 5 degrees falling away from the drain, which was side-on to the entry. From my observations at the time I believe that the blue metal aggregate was 10mm and 20mm in diameter." 71 In his evidence at the hearing, Mr Willett said that after he fell, he noticed that: "... there was blue metal or aggregate, the whole area. It's not actually impacted or anything, it was scattered everywhere, and sand from the bin." 72 Samples of the sand and aggregate were tendered and when shown photos taken of the yard in 2009, Mr Willett explained that by comparison to when he fell in 2004, in 2009 the yard was a lot cleaner and:

"There's not as much blue metal aggregate, sand, things lying around on the ground. Just in general it's a hell of a lot cleaner." 73 In cross-examination it was suggested to Mr Willett that there really wasn't any aggregate on the ground, which caused him to fall. He insisted that there was both aggregate and sand on the ground. He agreed that this was not surprising, given the bins of sand and aggregate at the yard, but claimed that 'its not cleaned or anything else and what is deposited on the ground stays there'. That evidence may not be accepted in the face of Mr Thiedeke's evidence as to how the yard was cleaned in 2004 and given Mr Willett's evidence that he was at the site for only some 10 minutes in total on one day in 2004. He did not go back to the site until 2007, when he stood outside the yard with Mr Nicholson. It was not until 2009, that he again went inside the yard. 74 Mr Willett also explained that he only went to the site twice on the day that he was injured in 2004, although in some statements he said he had gone there three times. On the second occasion Mr Willett did not get out of his truck. Mr Willett explained that when he was there, he could see from what was in the bins, that fresh loads had been tipped earlier that day by other trucks. In re-examination, he explained that it was the damp material underneath the freshly tipped load, which showed that another load had been tipped. There was no suggestion, however, that whether what was on the ground was wet or dry, affected its slipperiness. The day of the accident was fine and dry. 75 As I have explained, the only evidence about how he fell came from Mr Willett. On that evidence, I have been unable to accept that Mr Willett fell and injured his back, as he claimed. For their part, the two experts assumed that the fall had occurred in the way described by Mr Willett in his 2007 affidavit, but their evidence did not deal with the mechanics of the fall. In so far as the experts' opinions rested on Mr Willett's 2007 account of his fall, the factual assumptions on which those opinions rested, were not established. Not much really turns on this, given what their evidence dealt with, namely the question of the slipperiness of the concrete ground of the yard, contaminated as it was by sand and aggregate. What was of greater moment was that Mr Willett's evidence showed that an assumption made by Mr Nicholson as to what was underfoot when he fell, was not made out. 76 On the evidence as it unfolded at the hearing, can it be concluded that in 2004, it was reasonably foreseeable that there was a risk of slipping, or a slipping hazard, posed by the sand and aggregate lying on the ground at the United Concrete yard? 77 In considering that question it is relevant to note the submissions advanced for Mr Willett. It was accepted that the risk of slipping was modest and that, so far as PF Transport was concerned, that:

"The second defendant's duty was to inspect, review risk, warn and if necessary, intervene. There is no evidence that any appropriate inspection occurred. The second defendant was in breach of its duty. However, as in DIB, for the second defendant to be liable, it has to be shown that any inspection would have disclosed the risk and the need for intervention. The first defendant whilst not challenging the plaintiff's assertion that the premises were more contaminated in 2004 than in 2007 and 2009 did not establish that the premises were so contaminated and so consistently contaminated that on inspection in 2004 at a particular point in time, the risk would have been revealed to the second defendant. In those circumstances, the plaintiff's claim and the cross-action against the second defendant fails for want of proof of causation. As between the plaintiff and the second defendant, it is agreed that should the Court accept this submission, each party should pay its own costs. The plaintiff should have a verdict against the first defendant." 78 The reference to DIB was a reference to DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210, where it was concluded that while the occupier of that site was liable, the employer was not, because a reasonable inspection of the occupier's premises, would not have disclosed to the employer the risk of injury arising from a cover over an inspection pit, which was covered in gravel. 79 For its part, United Concrete did not accept this submission. Both defendants argued that on the evidence, Mr Willett had not established the risk alleged.

Mr Nicholson's first report 80 Mr Nicholson's first report, made after his 2007 visit, when he had no access to the yard and could not see where the accident occurred, considered the effect of sand and aggregate on the yard, which he assessed had a 5 degree slope down towards a drain. That assessment rested on Mr Willett's 2007 affidavit. 81 After Mr Nicholson referred to obligations imposed by the Occupational Health and Safety Act, he expressed the view that there were measures available which would have eliminated or controlled the risk of injury from the hazards posed by loose aggregate and sand and the sloping concrete in the yard. The basis for the opinion that there was such a hazard, was not revealed. Clearly, it rested on neither an inspection of the site, nor any testing. 82 The report then turned to consider reasonable precautions which the two defendants could have taken to deal with this hazard, which in Mr Nicholson's opinion included employing a yard man with suitable cleaning implements to clean the yard after delivery, and/or operation of a loader, or a sweeping machine to be used at 'regular intervals'; and ensuring that truck drivers wore suitable footwear, warning drivers of the hazard and avoiding the hazard, by cleaning trucks elsewhere. It is convenient to observe immediately that the evidence showed that in 2004, United Concrete cleaned the yard several times a day by use of a loader; that the yard was swept by a sweeping attachment placed on a loader several times a week and that those accessing the yard were required to wear work boots. 83 It should also be noted that the 'suitable' footwear described by Mr Nicholson actually accorded with his earlier notation that Mr Willett was wearing safety boots of the kind which he described, which were in 'good condition'.

Mr Underwood's report 84 Mr Underwood's report was given in May 2009, after an inspection at the yard. His opinion was that the unloading procedures Mr Willett had undertaken were safe, and that the possible measures Mr Nicholson had suggested in his first report were unnecessary and impracticable. 85 Amongst other things, Mr Underwood's report assumed that: The production process involved United Concrete receiving supplies of loose graded sand and blue metal aggreggate for the manufacture of concrete, delivered to its premises by tip trucks with dog trailers.

The stocks of graded sand and blue metal aggregate were bulk stored by United Concrete in ground bins (the area where deliveries not immediately required to be placed in the storage hopper feeding the batch plant raw materials in-feed conveyor system were dumped), and in feed hoppers.

a front end loader transferred the material from the ground bins to the feed hopper as required. The loader effectively scraped the ground in front of the bins so that it was largely clean and free of material, however, there was generally some minor spillage from the bucket over the conveyed load path between the ground bins and the storage hoppers from whence it was used by United Concrete in its manufacture of batches of concrete for despatch and delivery to customers. 86 These assumptions accorded with the evidence given by Mr Thiedeke, United Concrete's general manager in 2004. Mr Underwood described the operation of the yard as:

"18 Bulk deliveries of sand and aggregate (blue metal or gravel) are made to the Wetherill park site by tipping vehicles (generally a combination comprised of a tray bodied rigid vehicle towing a dog trailer). The allocated tipping point is usually controlled by the front end loader driver. If there is a sufficient space in the feed hopper, the truck/dog combination vehicle will be backed up to the appropriate feed hopper bin and the contents of the dog trailer tipped into it. The truck will then move to the ground bin area, where in the process of reversing the combination vehicle towards the relevant ground bin, the driver will deliberatively jack-knife the dog trailer (the trailer can be pushed so that it is nearly parallel to the main tipper vehicle) in order to have it clear of the tipping zone. The contents of the main vehicle tray are then tipped on to the stock pile in the ground bin. 19 As a direct consequence of being in the path of the tipped load, the draw bar of the dog trailer and the umbilical service hoses and cabling for the dog trailer are coated with tipped material. Unless this is cleaned off, this residual material could end up on the street outside the premises, thereby creating an environmental nuisance. In order to avoid this, on completion of unloading the driver alights from the vehicle, takes a small hand brush and sweeps the sand or aggregate off the drawbar, cabling and hoses and any other surfaces of the vehicle on which it has been deposited.

20 The delivery truck then drives away leaving the loader driver to remove any spilled or leaked material by using the front end loader bucket as a grader pushing the pile to neaten up the pick face. The front end loader driver then resumes transferring material from the stock pile to the feed hoppers." 87 This, too, accorded with the evidence at the hearing. Mr Underwood said:

"21 I have inspected a number of concrete batch plants, asphalt plants and quarries over the past 20 years. The operations at the Wetherill Park are typical of its kind, the housekeeping and plant operations being equivalent to best practice for the industry." 88 Mr Underwood's assessment of the slope of the yard was that it was 3 degrees, not the 5 degrees which Mr Nicholson had estimated it to be, which he observed had caused Mr Nicholson to form 'an exaggerated view of the slipping hazard potential posed by the pavement in front of' the storage bins. 89 Mr Underwood's view was that rolling aggregate was unlikely to have been a possible mechanism for Mr Willett to have lost his footing, given the irregular facetted shape of the stone, which resists rolling. He described the concrete surface in front of the bins as slightly rough and skid resistant from the constant scraping of the front end loader bucket, it was not worn smooth as assumed by Mr Nicholson. In his opinion, coarse sand was a high friction material and that aggregate of irregular shape, made the surface more skid resistant. Mr Underwood said:

"I was able to test the 'feel' of the pavement underfoot at the alleged injury location by attempting to skid and twist the sole of my safety boot across the surface I report that it resisted slippage." 90 Mr Underwood observed the effectiveness of the front end loader cleaning the yard, reporting 'little residual material left on the pavement'. His understanding was that grading was done frequently during front end loader operations. He accepted that sweeping machines would also have been used. This also accorded with the evidence of Mr Thiedeke as to the operations conducted in 2004. 91 Mr Underwood noted that there was a strong possibility that Mr Willett had fallen on material under the draw bar, which he had himself tipped or brushed there. At the hearing it was Mr Willett's evidence, supported by Mr Nicholson, that this was not what had occurred. 92 In Mr Underwood's experience, the conditions at the yard were the same or very similar to conditions existing at the quarry or other sites visited by experienced tipper vehicle delivery truck drivers like Mr Willett. In his opinion, there was no special hazard at this yard. In his view, the footwear which Mr Willett was wearing had to be considered and that the precautions which Mr Nicholson favoured, particularly moving the cleaning operation elsewhere, would move any problem, not eliminate it. 93 In Mr Underwood's opinion, the slip hazard of the pavement in front of the bins was low, substantially lower than assessed by Mr Nicholson. He identified the differences in their opinions as resting on their assessment of the degree of the slope and the friction properties of the pavement surfaces and of the coarse sand and aggregate lying on the ground, as well as their views of the standard of housekeeping of the yard, which Mr Underwood regarded as rendering the yard safe and Mr Nicholson did not. 94 Mr Underwood's experience was that the work systems and work environment were typical of those elsewhere in industry and that there was no additional hazard present at the United Concrete yard. In his view, there was no foreseeable significant risk of someone slipping in this yard, notwithstanding that this was what Mr Willett claimed had occurred. No warnings of the potential risk of slipping was warranted. If there was any hazard, it was apparent to a person of Mr Willett's occupation and experience.

Mr Nicholson's second report 95 In his second report, after an inspection of the yard undertaken on 2 June 2009, again in Mr Willett's company, Mr Nicholson confirmed the conclusions which he had reached in his first report. The evidence later showed that United Concrete then no longer operated the yard, but Mr Thiedeke confirmed in his evidence that the yard was configured in a similar way in 2004, although there was then at least one different raw material used there. 96 On this occasion, Mr Willett identified where the accident had occurred and Mr Nicholson inspected it. Again, Mr Nicholson did not measure the slope, but said that he 'expected' that it was up to 5 degrees, running as it did into an unformed drain. He accepted however, Mr Underwood's measurement that the slope was 3 degrees, but still expressed the view that such a:

"... slope on a worn concrete surface would never the less be a factor in a slip accident at the point of slippage that cannot be overlooked in considering the coefficient of friction between the rubber soles of safety boots and a concrete surface." 97 Despite expressing this view, Mr Nicholson conducted no test to establish what such a coefficient of friction might have been, for reasons which were not entirely clear. On his evidence at the hearing, he had with him a safety boot when he inspected the yard and could have undertaken such testing, but he ran out of time. 98 Mr Nicholson's opinion was that sand on a concrete surface was a contaminant which prevented intimate contact of a rubber sole or heel with the concrete surface of the yard. He noted worn pieces of aggregate in the surface of the concrete, which in his opinion would also have reduced the coefficient of friction between the rubber soles of safety boots and the concrete surface. His view was that sand and aggregate particles could roll or be unstable. The result was that any coefficient of friction would be variable, according to distribution of sand and the wear of the concrete surface and any worn aggregate exposed in that surface. In his opinion, the coefficient of friction of the underlying worn concrete surface of the yard was likely to be 'well below' a safe level of 0.45 degrees. The contamination of the concrete by sand, was likely to reduce this further. 99 There was no basis provided for the opinion expressed. While Mr Nicholson noted that Pendulum or Tortus tests were not usually used to evaluate the coefficient of friction between rubber and a concrete surface contaminated by sand, he did not, however, refer to any test undertaken to establish any coefficient of friction of the concrete surface of the yard, to test his theory. 100 Mr Nicholson expressed the opinion that if the yard had been cleaned on a regular basis, using a mechanical sweeper or even a broom 'then the effect from cleaning off the dog trailer drawbar would not have presented the contaminated concrete surface he was faced with'. In his view, cleaning by the bucket of the loader was not adequate. Sweeping prior to delivery in the morning, or after deliveries were completed, the day before, would have reduced the risk of slipping, as would cleaning the trucks elsewhere on site.

The statement identifying disagreements 101 This was a relatively unhelpful document, but it did reveal that Mr Nicholson had conducted a test of coefficient of friction not referred to in his reports, namely a test undertaken using a slider block and spring balance. Mr Nicholson here explained that in his experience, this provided a good correlation of results with a Tortus tester used in dry conditions, in the absence of contaminants. He said that the 'spot check' which he had conducted showed variable friction of between 0.3 and 0.45, which 'would not be a good surface to be on once friction was limiting and sliding was taking place'. Mr Underwood's view was that this experimental determination of coefficient was not valid. He explained that it could not accurately replicate conditions at the time Mr Willett slipped, but did not comment further, given his understanding, that the point of the exercise was to clarify existing disagreements. 102 Mr Nicholson and Mr Underwood also disagreed as to whether sand on concrete could increase an effective coefficient of friction. Mr Nicholson drew analogies with sand on a concrete road and rubber tyres. In his view, sand would reduce the coefficient of friction.

The further evidence given at the hearing 103 When called, Mr Nicholson gave further evidence about the slider block test, which he had conducted, explaining that it was a test which a high school student could undertake. It involved dragging the block along a clean part of the concrete surface of the yard, as well as along a contaminated part, and measuring the friction. A measurement of 0.45 was safe, 0.5 very safe and below 0.4 presented an extreme chance that a slip could occur. Mr Nicholson's test had shown measurement ranging between 0.3 and 0.45. He explained that variable slipperiness presented a dangerous surface because you could not know what the coefficient of the next step would be. 104 Mr Nicholson was asked:

"Q. If there is a variation in the degree of slipperiness, that is at some points the coefficient of friction is higher and at some points lower, does that add to the hazard that someone might face if you simply had the same degree of slipperiness across the service? A. Yes, variable slipperiness makes for a dangerous surface, because you don't know where the next step whether it is going to be a high coefficient of friction or the lower one that might not have been experienced before. Q. And is that exactly what you get when you have got bits of sand and bits of aggregate scattered around on a concrete surface? A. Particularly sand. Aggregate would not be as bad in the case of footwear on a concrete surface, but certainly the sand is a contaminant and it would reduce the effective coefficient of friction with footwear."

105 He went on to explain as to the slipperiness of sand and aggregate together, that: "Well, it would depend upon the percentage sand to aggregate greatly, and likewise the thickness of the sand and aggregate on the concrete surface. So if you have a limited amount of sand and aggregate on the surface then the sand is the most likely to cause slippage. Aggregate as we know it has sharp edges, but if you had - there are other aggregates that are round, and that would really cause a problem if the aggregate was round, but it is not in this case. So aggregate is a factor, but it wouldn't necessarily stop slippage that happened on the sand in the vicinity of the aggregate." 106 In cross examination, Mr Nicholson explained:

"Q. It's the thin film of sand that you say would most likely cause a slip, is that right, rather than a thick film of sand? A. That's correct.

Q. If that film of sand was mixed with aggregate, as I understand you said before, then the problem is not the aggregate because the aggregate may add to the friction levels, it's the film of sand which causes the problem. Is that right? A. It's the film of sand which is the most likely to reach a point of limiting friction and cause skidding, even with the sand flat on the ground or the sand rolling because you have got rubber boots, a rubber surface in contact with the uneven particles of sand.

Q. We can take from that, can't we, that a bit of aggregate mixed in with that film of sand would help matters rather than cause the hazard to be increased; is that right? A. It would if it was uniform, but it's certainly not uniform in my observations in the area. There was aggregate in some areas and there was sand in other areas where this accident took place.

Q. We're talking about the area where the plaintiff stood, that is, he put his foot down and he says he lost his footing. You are unable to say, I take it, what the condition of the aggregate was in that particular area? A. I have no photograph of the conditions at the time.

Q. Just focusing on that thin film of sand then, are you suggesting that the conditions most likely to cause someone to lose their footing would be just the presence of a thin film of sand? A. That's correct." 107 Mr Nicholson agreed that he could have measured the inherent slipperiness of the concrete, without the contaminant present, using an Australian Standard recognised test, but that he had not done so. He also explained that the slider block test which he had conducted, had only been undertaken in the context of a film of sand which he found, trying to replicate the conditions he understood were present when Mr Willett fell. He had not undertaken testing of the effect of the presence of aggregate. That could not be done, because of the size of the slider block and the size of the aggregate. He claimed however, that the surface of the slider block had in the past given similar readings to a safety boot. There was no supporting evidence for that contention and when challenged, Mr Nicholson explained that they were different, because there was a different amount of rubber on the ground and there was no pattern on the slider, but explained that the hardness of the rubber chosen was similar to that of a safety boot. 108 Mr Nicholson also agreed that the idea of the Australian Standard was to establish the coefficient of friction between the sole of a shoe and the surface of the ground, so that in order to get a meaningful measure, it was important to undertake a measurement in the context of the footwear being worn. Mr Nicholson explained that he had a sample safety boot with him, but time had prevented him from conducting any tests with the boot. He also agreed that the motion of stepping across the draw bar, was a different motion to walking, with weight being applied in a different way than in a walking motion 109 As to his experience of cleaning yards, Mr Nicholson explained that it had been in industries where yards and areas had to be kept clean of contaminants. He explained that in his observation, between 2007 and 2009, the concrete of the yard had deteriorated, having been affected by water and that although the evenness of the surface in 2004 was not known, it had probably deteriorated since then. He was not, however, of the view that the fall was caused by any break up of concrete. 110 Mr Underwood explained in his evidence that in his experience, the finer the material, the more it would blow around and the slipperier it would be and the more spherical in shape, the more slippery it was. In his view, in some instances sand reduced friction, but in others it increased friction. Coarse sand would not be expected to blow around, but the action of vehicles operating across it, especially skid steer vehicles, would make it finer. The finer the material, the more slippery it was likely to be. 111 In Mr Underwood's experience, the operation of plants such as this had not changed much since 2004, but he was not sure if the practices of the two operators were the same. In an operation such as this, he would not expect an excessive accumulation of fine sand, because coarse sand was regularly being tipped on top of it. 112 Mr Underwood observed from the photos in evidence, that those which he had taken, showed that the site was then cleaner than when Mr Nicholson inspected it later. Mr Underwood explained that fine sand in the yard could make a slipping hazard, but that would depend on the substrate of the concrete. On his testing of the yard in 2009, with less sand present than was shown in Mr Nicholson's photos, he experienced no slipping hazard. He did not believe himself to be in a position to express an opinion as to whether there would have been a hazard, if there had been even more sand present in 2004.

What the experts came to agree about 113 From the cross examination it became apparent that the two experts agreed that the work involved in brushing sand off the truck, undertaken by Mr Willett in the yard, could have been undertaken elsewhere on the site, such as near the exit, where there was no sand and aggregate on the ground. 114 The experts also agreed that what was on the concrete floor of the yard, when removed by a front end loader, did not achieve a broom finish and that what remained could be removed by use of a sweeping machine. That could have been done after each truck left the yard. 115 The experts also agreed that sand on a concrete floor such as this yard, could potentially pose a slipping hazard and that such a risk was more likely to arise from a fine layer of sand lying on concrete. Coarse sand was less slippery. More sand, and the presence of irregular aggregate, mixed with the sand, was likely to make the surface less slippery. 116 It was also agreed that the coarse sand delivered to this site, would be ground finer over time, by the trucks which drove across the yard and as the result of the use of the front-end loader. The experts also agreed that a variable surface was more slippery than a uniform one, to walk across. They also agreed that whether there was any risk of slipping, also depended on the footwear being worn.

Mr Thiedeke's evidence 117 Mr Thiedeke's evidence was that in 2004, the United Concrete yard was cleaned by front end loader several times a day and that there was a sweeper attachment used on the loader to clean the yard, two or three times a week, but not after every truck delivery. This would appear to have met Mr Nicholson's original view, expressed in his first report, that there should have been a loader and a mechanical sweeper used to clean the yard in 2004, depending of course on what Mr Nicholson meant by cleaning at 'regular intervals'. That was not clear on his evidence. 118 It was Mr Thiedike's view, based on his experience of the yard while at United Concrete for some 6 years, that there was no slipping hazard in the yard and that it was unnecessary for the work involved in brushing trucks off before they left the yard, to have been otherwise arranged, in order to ensure safety. Nevertheless, he agreed in cross examination that either of the precautions proposed by Mr Nicholson, which in his view would have addressed any slipping hazard, would have been possible to implement, although Mr Thiedeke did not agree that they were required. The first, use of a sweeper, was in fact in use several times a week. The second, brushing the sand off away from the yard, near the exit, in Mr Thiedeke's view would have been possible, albeit not desirable, given the environmental obligations falling on United Concrete to ensure that sand did not escape from the site. 119 On the evidence of Mr Thiedeke, United Concrete employed some 15 employees and they and others like Mr Willett, who came to the site for various reasons, all had to walk on the yard while working there. Up to 12 loads of material a day were delivered to the yard. All those who worked at this site were required to wear work boots and they all did so, apart from one employee, the office manager, a lady who wore closed in shoes. To Mr Thiedeke's knowledge, there had been no other accidents, injuries or complaints about slipperiness in the yard during the time he was employed there, some 6 years before and after Mr Willett's injury. 120 Mr Thiedeke explained that safety at the site was his responsibility. He had undertaken courses in safety and was a member of the site safety committee, although his knowledge of the nature of the obligations imposed by the Occupational Health and Safety Act was plainly imperfect. He explained that the risk assessments undertaken in relation to the yard were only informal. To his knowledge, no external experts had been engaged to assess any risk of slipping there. Mr Thiedeke however himself walked across the yard several times each day and he had never found it slippery. His view, based on his own experience and the fact that the only problem which had ever arisen was that involving Mr Willett, was that there was no risk of slipping in the yard. 121 Mr Thiedeke explained that the yard was kept clean in the way in which he described, in order to ensure that United Concrete met its environmental obligations, which required it to ensure that no material escaped from the yard. He did not regard what was done in that respect as being directed to ensuring safety. In his view, there was no safety risk.

Was the existence of the hazard established? 122 Of itself, the fact that the work of brushing sand off the back of a truck could have been performed in some way other than it was, is not a basis upon which the plaintiff can make out his case. (See s 5C(b) of the Civil Liability Act). What must be shown is that there was a safety risk or hazard; that it was one which was known, or ought to have been known; that it was not insignificant and that a reasonable person would have taken precautions against that risk. 123 Before dealing further with the evidence, it is convenient to observe that in Penrith Rugby League Club, reference was made to what was observed by Fitzgerald JA in Rasic v Cruz at [43]:

"An infinite variety of circumstances produce a foreseeable risk of injury which could often be eliminated or reduced. The current tendency to consider only individual circumstances which produce injury and the means by which those circumstances could have been changed and the injury avoided is redefining the foundation of the law of negligence by impermissibly expanding the content of the duty of care from a duty to take reasonable care to a duty to avoid any risk by all reasonably affordable means. Such an approach pays insufficient regard to the degree of the risk of injury from the particular circumstance which caused injury and to the time, effort and cost of avoiding the risk of injury from all circumstances which might have caused injury and the financial capacity of a defendant to undertake such a task. A situation immune from criticism by an imaginative forensic engineer cannot be achieved by the removal of isolated risks but necessitates the removal of all sources of risk."

124 Given Mr Thiedeke's evidence that the risk of slipping identified by Mr Nicholson, had never been identified as a risk and had never manifested itself at this yard, when considered together with Mr Underwood's evidence as to his experience in industry, this note of caution needs, in this case, to be kept in mind. 125 It was the plaintiff's case that there was a duty to ensure safety in the yard imposed on United Concrete by the Occupational Health and Safety Act and the Regulations. Failing to conduct formal risk assessments and safety audits had resulted in a risk which ought to have been known, not being identified, with the result, Mr Willet's injury when the hazard posed by the sand and aggregate in the yard materialised in 2004. While no breach of statutory duty was alleged, the failure to conduct formal risk assessments and safety audits was pleaded. It followed that negligence had been established. 126 It must be observed that while such failures were pleaded, they could not of themselves establish the existence of the risk in question. That was sought to be established by the expert evidence called from Mr Nicholson. 127 The experts had each inspected the place at which the accident occurred in 2009, some five years after the accident, at a time when the site was no longer operated by United Concrete. The plaintiff's expert Mr Nicholson had also seen the workplace in 2007, but only from the street, at a point where he could not see the place where the accident had occurred. The experts had conferred in order to identify what they disagreed about, with almost no success. In their evidence, however, their disagreements were somewhat resolved and the difficulties with the plaintiff's case was revealed. 128 The place of the accident was at a yard with a concrete floor, sloping at 3 degrees, where trucks came to deposit loads of sand and aggregate 10 to 12 times a day. Mr Thiedeke confirmed that in 2004, the yard was configured in a similar way to that which the experts saw in 2009. In 2004 the concrete had lain on the yard for quite a number of years and was worn by the activity which took place there. There was no doubt that by 2009 it was more worn, by then having been affected by water, but nothing much seems to turn on that, because the slipping hazard was not claimed to have arisen from the presence of worn concrete. 129 There was no evidence as to how the yard was cleaned in 2009. Mr Thiedeke explained that in 2004 sand and aggregate was dumped at the yard by truck in open bins, then removed by front-end loader and taken elsewhere in the plant. Throughout the day, sand and aggregate escaped from where it was stored in the open bins and was deposited on the concrete floor of the yard. This escaped material was regularly cleaned up throughout each day by use of a front-end loader. The front-end loader could not pick up all of the sand and aggregate from the ground. Every two or three days, the concrete yard was also swept clean by use of a brush attachment on the loader. 130 It was Mr Willett's evidence that on the day that he was injured, there was more sand and aggregate on the ground, than when he visited the site with Mr Nicholson in 2009. As was submitted for Mr Willett 'there was clear evidence of significant quantities of sand (and some aggregate) in the vicinity'. 131 From Mr Willett's evidence, that of Mr Thiedeke and the photographs taken by the experts, there can be no question that the sand and aggregate lying on the ground when Mr Willett was there in 2004, was obvious. While Mr Willett claims that he did not see what he slipped on until after he fell, it was apparent that nothing obstructed Mr Willett's view of the yard, either when he entered, or when he got out of his truck. What, on his evidence, he could not see, was what was lying on the ground, on the other side of the draw bar, when he stepped across it, but after he fell, he saw both sand and aggregate underfoot. 132 It was the plaintiff's case that Mr Willett could not have stepped onto any sand which had fallen there, when he brushed off the back of the tipper and the drawbar, given where the airlines lay at the back of the truck and on the draw bar. That was both Mr Willett's evidence and that of Mr Nicholson. It follows that on the case advanced, this sand cannot have been what Mr Willett slipped on, it can only have been what was generally lying on the ground, after having escaped from the bins, or been brushed to the ground from another truck, or what had otherwise been spread around by the movement of trucks, loaders, people, weather and the like. 133 On Mr Nicholson's assessment, a loader would remove some 80% of what lay on the ground. In 2004, this occurred several times a day. More was removed, when some three times a week, the sweeper attachment was used. On the evidence, when the accident occurred in 2004, the yard could not have recently been swept clean, by sweeper or loader, given Mr Willett's evidence as to the amount of the sand and aggregate which he then saw lying there. 134 Given what they each saw at the yard in 2009, Mr Nicholson was of the view that the sand on the concrete floor presented a risk and Mr Underwood, that it did not. Mr Underwood saw even less sand and aggregate underfoot than Mr Nicholson. Neither of those opinions was based on scientific testing of the coefficient of friction between what was found lying on the concrete where the accident occurred and work boots of the kind worn by Mr Willett and others who accessed the yard. There was no question that such testing could have been done. Mr Nicholson was qualified and experienced in such testing and could have undertaken it. He even had a work boot with him, but conducted no such test. Nor did Mr Underwood. He, however, was wearing such a boot and tested whether it would skid on what he found on the ground. It did not. Mr Nicholson did not attempt such an exercise. 135 Mr Nicholson's evidence was that a coefficient of friction of less than 0.45 presented a risk to a pedestrian walking across the yard. On the measurement which he did undertake, inadequate as that test undoubtedly was, the coefficient which he found ranged from 0.30 to 0.45. On his own assessment, if the place where Mr Willett stepped had a coefficient of 0.45, it would have been safe. That it did not have such a coefficient was not established, firstly because Mr Nicholson's test was directed only to a fine layer of sand on the ground, that being what he understood Mr Willett had slipped on. Mr Willett's evidence was that there was more sand underfoot in 2004 than was there in 2009. More sand would have been less slippery. Secondly, on Mr Willett's evidence, there was both sand and aggregate underfoot when he slipped. The presence of aggregate would also have reduced the risk of slipping. Mr Nicholson conducted no tests as to the coefficient of friction presented by both sand and aggregate. Thirdly, Mr Willett was wearing a work boot. That, too, would have reduced any risk of slipping, but to what degree, is not known, because there was no testing undertaken in the context of a work boot. 136 Finally, it must be considered that the test which was conducted by Mr Nicholson was not directed to the action undertaken by Mr Willett, when he stepped across the draw bar. Mr Nicholson agreed that the action of stepping across the draw bar was different to the action of walking across the yard. The action of swinging the leg over, while standing facing the rear of the truck, no doubt would have been another action entirely, but not one put to Mr Nicholson, presumably because it only arose as a possibility in later submissions. 137 As Mr Nicholson explained, the co-efficient of friction which he found was established by rubbing a slider across the sand which he found in 2009 at a spot which he thought replicated the conditions underfoot where Mr Willett fell. Mr Nicholson acknowledged that this was a simple test, not undertaken in accordance with the Australian Standard. Mr Underwood conducted no such test, Mr Nicholson not having revealed this testing until shortly before the hearing, when the joint statement was prepared. Mr Underwood thought the test unreliable. 138 That it was an unreliable basis upon which any conclusions could rest, was confirmed by Mr Nicholson in cross-examination. What the coefficient of friction between the sand and aggregate which Mr Willett described to have been underfoot and the work boots which Mr Willett was wearing, was not established. It was not shown that the coefficient was unsafe, that is, less than the 0.45 coefficient which Mr Nicholson postulated as being safe. 139 The only test Mr Underwood undertook was a subjective test, namely trying to make his foot skid, while wearing safety boots. He could not do so, which confirmed him in his opinion that the yard was not slippery. That accorded with Mr Thiedeke's evidence as to United Concrete's experience of the yard and Mr Underwood's experience in industry. 140 Plainly, the expert evidence led in this case was of more limited assistance in a resolution of this controversy than it would have been, had other available tests been undertaken. 141 The experts agreed that a fine layer of sand on concrete could be slippery and that a variable surface could also increase slipperiness, if walking across the yard. They also agreed that more sand on the ground, would have made this concrete surface less slippery, as would the presence of aggregate. 142 Commonsense accords with the expert evidence that a fine layer of sand on a concrete surface can pose a slipping hazard and that whether there is in fact a risk, depends on the footwear being worn by a person who accesses that surface, whether there is anything else underfoot and what action the person is taking on that surface. 143 There was no evidence, however, that it was a fine layer of sand which was underfoot when Mr Willett fell and no evidence that the coefficient of friction between the surface on which Mr Willett said he slipped, contaminated as it was by a substantial amount of sand and aggregate, was slippery, given the work boots which he was wearing. 144 While it follows from the evidence that in theory, there might have been a potential risk of slipping present at this site, it was most likely to exist, after this yard was swept clean of sand and aggregate, by the sweeper attachment, several times a week. That there was then a risk that a fine slippery layer of sand might develop, was theoretically a possibility. Whether it ever materialised, depended on the coarse sand delivered to this site spreading and being ground fine, by the movement of vehicles across the sand, without sufficient aggregate being also present, to obviate that slipping risk for those walking across the yard while wearing safety boots, before more coarse sand covered the fine sand so created. This scenario seems most unlikely to have ever developed, on the evidence. The expert evidence did not address itself to such a situation developing and it was not one consistent with Mr Willet's evidence as to the state of the yard as he found it, in 2004. 145 That this condition ever existed was not established, or sought to be. That it was not the condition of the ground when Mr Willett fell, was clear on his own evidence. 146 It is in this context that Mr Thiedeke's evidence that he did not find the yard slippery and that this was United Concrete's experience in the six years that he had worked there, has to be considered. That evidence may not be ignored. 147 In Makita, itself a slipping case, there was evidence led from an expert as to the slipperiness of the stairs in question. While the expert concluded that the stairs were slippery, on the evidence there, the only other occasion when there had been a slip on those stairs, was one other occasion, quite a number of years beforehand. This was considered by Powell J to 'cast more than a shadow of doubt over any assertion that the stairs were slippery and that the Respondent ought to have taken steps to obviate that risk of injury to its employees arising from that fact' (at [10]). For his part, Heydon J observed that there was a collision between the expert's evidence that the stairs were slippery and the lay evidence that there had been no problems experienced with slipperiness. At [99], Heydon J observed that resolution of that collision depended on satisfaction as to the validity of the expert's approach. 148 Plainly, a similar collision here arose between Mr Thiedeke's evidence and that of Mr Nicholson. Mr Underwood's impression that there was no risk of slipping in this yard, when work boots were worn, also had to be considered. Like in Makita, the expert evidence led in this case for the plaintiff, was not convincing, for the reasons which I have explained. 149 While the argument put for Mr Willett, that a risk, even a slight one, could not be ignored until there had been catastrophic consequences such as those which befell Mr Willett, has obvious force, of itself, an injury cannot establish that the risk alleged existed, or that it caused the injury. 150 In terms of what the Civil Liability Act requires to be established, the question of whether, in the circumstances existing at the United Concrete yard in 2004, it was foreseeable that there was a risk of slipping and that the precautions in place would not prevent a slip, must be answered in the negative. 151 That there was a risk of slipping, given the sand and aggregate on the ground, as described by Mr Willett, was not established by the expert evidence, such as it was. Nor was it shown that the precautions taken by United Concrete, namely, of removing the bulk of the sand and aggregate off the yard several times a day by front end loader, sweeping it several times a week with a mechanical sweeping attachment and requiring those who accessed the yard to wear safety boots, would not prevent someone working in the yards from slipping. Nor was it shown that a reasonable person would have taken additional precautions. That additional precautions could have been taken, as I have noted earlier, of itself takes the matters which must be established under s 5B and 5C of the Civil Procedure Act no further. 152 In coming to a conclusion on whether a reasonable person would have taken additional precautions, account must be taken of:

(a) the probability that the harm would occur if care were not taken,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm. 153 While undoubtedly a serious injury can result from someone slipping at a workplace such as this, the probability that someone would slip in this yard, if additional precautions were not taken, must be assessed. In my view, on the evidence in this case, that probability can only be assessed as being extraordinarily low and the taking of any additional precautions in the circumstances, unnecessary. 154 That was shown by the evidence that no one other than Mr Willett ever slipped in this yard or even complained that the yard was slippery, the yard being maintained as it was, during the six years that Mr Thiedeke had worked at United Concrete. Mr Thiedeke had himself crossed the yard thousands of times, about six times a day, on up to six days per week. United Concrete employed up to 15 of its own employees, who accessed the yard, including a yardman. Up to 10-12 trucks per day accessed the yard, with drivers being required to brush off their trucks as Mr Willett had done. There was no suggestion that there had been any other problems, complaints or accidents caused by a risk of slipping which existed in this yard, either before or after Mr Willett fell, not even by the one employee who did not wear work boots, when walking across the yard, but closed in walking shoes (the office manager). 155 Mr Underwood's experience in 2009 was similar to that described by Mr Thiedeke. He could not make his boot skid. Mr Underwood's evidence was that the state of the yard was similar to that of other yards of that kind, in his experience. Apart from Mr Willett's claim that he slipped and Mr Nicholson's testing, such as it was, which suggested a risk of slipping, given the co-efficient of friction which he identified in connection with the fine layer of sand which he chose to test, the evidence simply did not point to the existence of such a risk. I have explained the difficulty with Mr Willett's evidence. Mr Nicholson's evidence as to the coefficient of friction which he measured, in the context where he conducted no testing of the work boots which were worn, was inadequate and cannot provide a foundation for the conclusions urged for Mr Willett. 156 It follows that the conclusion that it was established, on the balance of probabilities, that it was foreseeable in 2004 that there was a risk of slipping in this yard, or that such a risk was not insignificant, as s 5B of the Civil Procedure Act requires, and that in the reasonable circumstances, a person would have taken the precautions urged for Mr Willett, is not open.

Other failures 157 The plaintiff alleged other failures, which should be mentioned shortly. They including a failure to warn of the presence of loose sand and aggregate. In order to establish negligence, a causal connection must be established between the claimed failure and the harm complained about. On Mr Willett's evidence and that of the photographs in evidence, there can be no question that the sand and aggregate lying on the ground of the yard was obvious. This was not a case of a slip and fall caused by some hidden danger. On Mr Nicholson's approach, it was not the aggregate which posed any risk of slipping, its presence reduced any risk posed by sand. In the circumstances, for the reasons which I have explained in relation to the risk of slipping on sand, this allegation simply cannot make out Mr Willett's case. 158 There was an alleged failure to direct Mr Willett not to alight from the truck in the yard and to require him to brush sand off the truck elsewhere. This complaint went to the system of work which it was claimed the defendants ought to have had in place. In the absence of evidence which established the risk complained of, this allegation cannot provide a basis for Mr Willett's claim, as I have explained. 159 There was also an alleged failure to warn that the yard had a slope of 5 degrees. The experts agreed that the slope was only 3 degrees. The evidence did not suggest that this contributed to any risk of slipping in the yard. 160 There were allegations of failure to carry out risk assessments; to identify, eliminate and control hazards posing risk; and to have a risk assessment review process in place. These allegations also each depended on the evidence establishing that there was a risk and that it would have been identified, had a formal risk assessment or review process, of the kind the plaintiff claimed ought to have been conducted, been in place. The evidence simply did not establish that such steps would have identified the claimed risk. Indeed, given that the evidence of the experts did not establish the existence of the claimed risk, it is quite clear that engaging a consultant to undertake such assessments or reviews, as was submitted by the plaintiff to have been necessary, would not have identified the alleged risk. 161 The allegation of a failure to keep the area clean of loose sand and aggregate and using a sweeping machine to sweep the area suffered from an obvious difficulty, it seemed to me. Firstly, on the evidence, it would appear impossible to keep this area entirely clear of sand and aggregate, given that they were being moved around the site by front end loaders, from where they were stored in open bins. Secondly, the yard was swept clean from time to time, as Mr Thiedeke explained, to meet United Concrete's environmental obligations to ensure that the material did not escape from the site. This appeared to accord with what Mr Nicholson thought necessary, in his first report. Thirdly, on the expert evidence, it was a fine layer of sand which could have posed a risk of slipping at this yard. Whether that was ever a real risk, in the context of those accessing the yard, was not established, given that they were wearing work boots and there were no other reports or complaints or accidents involving slipping, apart from Mr Willett. Further, as I have observed, the presence of a fine layer of sand was more likely to develop immediately after the yard was swept clean, rather than after cleaning by loader, although even then the presence of aggregate would have tended to reduce slipperiness. That more sweeping would have addressed the risk, if it existed, was not established. To the contrary, on the evidence, more frequent sweeping might have increased such a risk materialising.

Conclusion 162 For the reasons given, I have concluded that there was no foreseeable risk of injury of the kind about which Mr Willett complained, nor did he establish that his injuries resulted from the materialisation of that risk. 163 Given the conclusions which I have reached, it is unnecessary to consider all of the other issues addressed by the parties, or to deal with the matters which were reserved, pending a decision on the matters argued. 164 It follows that the plaintiff's claim should be dismissed, as should the cross claims. The parties should confer on the orders to be made and approach, in the event that any question of costs needs to be dealt with.

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.