Balassone v Victorian YMCA Community Programming Pty Ltd; Victorian WorkCover Authority v Nillumbik Shire Council
[2015] VCC 766
•18 June 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-11-00550
(Contribution proceedings under Section 24 of the Wrongs Act 1958)
| MICHELLE BALASSONE | Plaintiff |
| v | |
| VICTORIAN YMCA COMMUNITY PROGRAMMING PTY LTD (ACN 092 818 445) | First Defendant |
| and | |
| NILLUMBIK SHIRE COUNCIL | Second Defendant |
HEARD TOGETHER WITH
Case No. CI-10-05394
(Indemnity proceedings under Section 138 of the Accident Compensation Act 1985)
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| NILLUMBIK SHIRE COUNCIL | Defendant |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27, 28 and 29 May 2015 | |
DATE OF JUDGMENT: | 18 June 2015 | |
CASE MAY BE CITED AS: | Balassone v Victorian YMCA Community Programming Pty Ltd & Anor; Victorian WorkCover Authority v Nillumbik Shire Council | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 766 | |
REASONS FOR JUDGMENT
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Subject: NEGLIGENCE
Catchwords: Applicant employed as a swimming teacher by a YMCA – applicant fell and injured in workplace – foot became wedged between pool handrail and wall – work area subsequently modified to reduce risk of similar falls – YMCA alleged to have breached duty it owed as an employer and an occupier – Council alleged to have breached duty it owed as occupier – judgment in sum of $240,810.00 together with costs entered against each defendant – defendants brought contribution proceedings against each other – in recovery proceedings, trial judge ordered YMCA to indemnify Council in respect of applicant’s claim, under s138 of the Accident Compensation Act 1985 (Vic) – YMCA appealed – matter remitted to County Court.
NEGLIGENCE – contribution proceedings – YMCA and Council both conceded breach of respective duty of care – whether negligence of respective parties was a cause of applicant’s injury, loss and damage – Council argued more weight should be attributed to breach of duty by YMCA as duty owed by employer more onerous – causal potency of conduct of each defendant was the real issue to be determined – Papadopoulos v MC Labour Hire Services Pty Ltd & Anor (No 4) [2009] VSC 193 per Beach J applied – Council responsible for structural component of pool as occupier – YMCA responsible for cleaning and maintaining pool – Council could not and did not seek to delegate duty to YMCA – Court satisfied that applicant’s injury not caused by failure of YMCA to clean and maintain walkway – state of premises contributed to applicant’s injury, loss and damage – degree of overlap between duty owed by employer and occupier – both Council and YMCA failed to identify handrail and absence of a barrier as reasonably foreseeable risk of injury – YMCA had concurrent responsibility to identify foreseeable risk of injury posed by handrail – YMCA failed to provide a safe place to work – both defendants fell short of expected standard in the same or similar way.
NEGLIGENCE – recovery proceedings – whether the Victorian WorkCover Authority can be indemnified for injury under s138 of the Accident Compensation Act 1985 (Vic) – causation – whether Council’s negligence was a necessary condition of the occurrence of the harm and caused the applicant’s injury, loss and damage – “but for” test required in factual causation satisfied – Court satisfied that element of causation met – Court satisfied elements of s138 of the Accident Compensation Act 1985 (Vic) met.
Legislation Cited: Accident Compensation Act 1985, s138; Wrongs Act 1958 (Vic), Part IV, s24(2), s51.
Cases Cited:Balassone v Victorian YMCA Community Programming Pty Ltd and Anor and VWA v Nillumbik Shire Council and Anor (Unreported, County Court of Victoria, Judge Murphy, 30 October 2013); YMCA v Nillumbik [2014] VSCA 197; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; Papadopoulos v MC Labour Hire Services Pty Ltd & Anor (No 4) [2009] VSC 193; Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16; Laresu Pty Ltd v Clark [2010] NSWCA 180; Powney v Kerang and District Health [2014] VSCA 221; Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; Strong v Woolworths Ltd t/a Big W (2012) 246 CLR 182; Wallace v Kam (2013) 250 CLR 375; Amaca Pty Ltd v Booth (2011) 246 CLR 36; Browne v Dunn (1893) 6 R 67; Chapman v Cole (2006) 15 VR 150; Chong & Neale v CC Containers Pty Ltd & Ors [2015] VSCA 137.
Judgment: Contribution proceedings: Under s24 of the Wrongs Act 1958 (Vic), both defendants found equally responsible for Ms Balassone’s damage and each ordered to contribute fifty per cent for the judgment entered in her favour.
Recovery proceedings: Council ordered to indemnify the Victorian WorkCover Authority – “Factor X” declared to be fifty per cent.
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APPEARANCES: | Counsel | Solicitors |
| Case No. CI-11-00550 | ||
| For the First Defendant | Mr R J Stanley QC with Mr R Kumar | Hall & Wilcox |
| For the Second Defendant | Mr C J Blanden QC with Ms J Frederico | Minter Ellison |
| Case No. CI-10-05394 | ||
| For the Plaintiff | Mr J P Gorton QC with Ms M Norton | Russell Kennedy |
| For the Defendant | Mr C J Blanden QC with Ms J Frederico | Minter Ellison |
Table of Contents
Background.......................................................................................................................................... 1
Case No. CI-11-00550 – Contribution proceedings.......................................................................... 1
Case No. CI-10-05394 – Indemnity proceedings.............................................................................. 2
Court of Appeal Orders....................................................................................................................... 2
The proceedings before me................................................................................................................ 3
The hearing........................................................................................................................................... 3
The issues............................................................................................................................................. 3
Summary of findings........................................................................................................................... 5
The Contribution Proceedings........................................................................................................... 7
Legal Principles................................................................................................................................ 7
The issues........................................................................................................................................ 8
The indemnity Proceedings................................................................................................................ 9
Legal Principles................................................................................................................................ 9
The issues...................................................................................................................................... 11
The evidence relevant to both proceedings................................................................................... 12
Ms Balassone’s evidence.............................................................................................................. 23
Ms Quinn’s evidence...................................................................................................................... 38
Observations about the evidence of Ms Balassone and Ms Quinn.............................................. 40
Circumstances in which Ms Balassone was injured...................................................................... 41
Was Ms Balassone walking backwards and did not realise where she was in
relation to the steps?............................................................................................................ 45
Was there slime or algae on the decking at the point of Ms Balassone’s last step
before she fell that caused or contributed to her slip?........................................................ 45
Was there water on the decking at the point of Ms Balassone’s last step before
she fell into the pool, which caused or contributed to her slip?........................................... 46
Did Ms Balassone simply misjudge her position in relation to the steps resulting
in a misstep over the edge of the pool – either an over-step or a slide off the tiling
framing the pool’s edge?...................................................................................................... 46
Conclusion...................................................................................................................................... 47
The YMCA’s negligence.................................................................................................................... 47
The Council’s negligence.................................................................................................................. 48
Analysis – Contribution Proceedings.............................................................................................. 50
What is the negligence of each defendant?.................................................................................. 50
Is the Council’s delegation of day-to-day running of the facility relevant?.................................... 50
In what proportions should the defendants share in the responsibility for Ms Balassone’s
damage?........................................................................................................................................ 51
Orders proposed................................................................................................................................ 54
The indemnity proceedings under Section 138 of the Act............................................................ 54
Causation....................................................................................................................................... 54
Factor X.......................................................................................................................................... 55
Factor A.......................................................................................................................................... 56
Factor C.......................................................................................................................................... 56
Conclusion...................................................................................................................................... 56
Orders.................................................................................................................................................. 56
Consequential Orders.................................................................................................................. 57-59
HER HONOUR:
Background
Case No. CI-11-00550 – Contribution proceedings
1 On 23 April 2005, the plaintiff, Michelle Balassone, was working as a swimming teacher, employed by the first defendant (“the YMCA”) at a swimming pool on premises owned by the second defendant (“the Council”). Ms Balassone was supervising a young student who was swimming towards the end of the pool where a set of steps met the walkway decking beside the pool. A handrail was attached to the steps inside the pool approximately 5 centimetres from the swimming pool wall. Ms Balassone was not watching where she was walking and as she approached the steps, she fell into the pool. She landed with her right foot wedged between the handrail frame and the pool wall. She was face down in the water, at risk of drowning, as her foot was trapped. As she struggled to free herself, she injured her right knee. After the incident, modifications were made to the area around the steps and handrail. A barrier was installed to prevent (or reduce the risk of) persons falling into the pool in the area where Ms Balassone had fallen.
2 Ms Balassone brought common law proceedings in negligence against the YMCA and the Council. The particulars of negligence against the YMCA alleged a breach of the duty it owed both as employer and as occupier. The particulars of negligence against the Council alleged breach of the duty owed as occupier.
3 The trial was listed before another judge of this Court and determined by a jury of six. The jury found each defendant liable in negligence, and assessed Ms Balassone’s total damages at $250,000.00.[1] The liability question asked of the jury concerning the breaches alleged against the YMCA did not distinguish between the duty owed as employer and as occupier. That is because apparently at trial, the plaintiff confined her case against the YMCA to alleged breach of duty of care owed as employer.[2] Thus the question asked and answered by the jury was:
[1]Balassone v Victorian YMCA Community Programming Pty Ltd and Anor and VWA v Nillumbik Shire Council and Anor (Unreported, County Court of Victoria, Judge Murphy, 30 October 2013)
[2]See YMCA v Nillumbik [2014] VSCA 197 at paragraph [4]
“Question 1: Was there any negligence by [the YMCA] which was a cause of Ms Balassone’s injury, loss and damage?
[Answer]: Yes.”
4 Although both defendants pleaded contributory negligence, that issue was not left for the jury’s consideration.
5 Judgment was entered against each defendant in accordance with the jury’s verdict (after necessary deductions), in the sum of $240,810.00, together with costs.
6 The defendants brought contribution proceedings against each other. The jury was not asked to apportion blame as between the defendants.
7 After various applications and rulings, the trial judge ordered that the YMCA’s notice of contribution be dismissed.
Case No. CI-10-05394 – Indemnity proceedings
8 In the recovery proceedings, the trial judge ordered, under s138 of the Accident Compensation Act 1985 (“the Act”), that the YMCA indemnify the Council against judgment.
Court of Appeal Orders
9 The YMCA appealed the Orders made by the trial judge, and the Council cross-appealed. The appeals were upheld and the contribution and associated recovery proceedings were remitted to this Court for “hearing and determination by a different judge … upon the evidence at the trial”.[3]
[3]YMCA v Nillumbik (supra)
The proceedings before me
10 The hearing commenced on 27 May 2015 and continued on 28 and 29 May 2015. Mr R J Stanley QC appeared with Mr R Kumar on behalf of the YMCA. Mr C J Blanden QC appeared with Ms J Frederico on behalf of the Council. Mr J P Gorton QC appeared with Ms M Norton on behalf of the Victorian WorkCover Authority (“the VWA”).
The hearing
11 In accordance with the Court of Appeal’s Orders, the evidence consisted of the evidence adduced at the trial, although, by consent, much of that evidence was not placed before me.[4] A copy of the transcript of the relevant viva voce evidence was produced and I watched portions of the DVDs of the original recordings made at trial of two critical witnesses: Ms Balassone and Ms Quinn.
[4]Although invited to adduce any further evidence with leave, no party sought to adduce additional evidence
12 Copies of the relevant exhibits tendered at the trial were included in Joint Court Books, and for ease of reference were identified by the same designations in the proceedings before me.
13 At the conclusion of the evidence, the parties each tendered written submissions, which they augmented by oral argument.
The issues
14 In the contribution proceedings, the critical issue was the identification of the negligence of the respective parties that was a cause of Ms Balassone’s injury, loss and damage. Central to the determination of the critical issue was in what circumstances Ms Balassone landed in the pool with her foot wedged in the frame of the handrail.
15 The YMCA and the Council each conceded that they breached their respective duty of care to the plaintiff, so far as the handrail was concerned. They both conceded that the risk of falling into the pool and landing, wedged between the pool wall and the handrail frame, was reasonably foreseeable and ought to have been identified and addressed, as it was after this incident. The Council conceded this risk was inherent in the pool’s structure, the responsibility for which it could not delegate to the YMCA.
16 The YMCA contended:
(i) There was insufficient evidence to explain why or how Ms Balassone ended up wedged between the pool wall and the handrail, other than to say she fell (possibly a misstep) in circumstances where Ms Balassone was not looking where she was walking. Accordingly, on the balance of probabilities, no failure to properly clean or maintain the walkway decking could be implicated in the incident.
(ii) Since both the YMCA and the Council fell short of the standard of care in exactly the same way, they should share equally in the blame for Ms Balassone’s damage.
17 On the other hand, the Council contended:
(i) The most probable inference to be drawn on the evidence is that because Ms Balassone fell into the pool, “she must have slipped [on the walkway] for a reason – she can’t simply have slipped for no reason”.[5] The most logical explanation for the slip is that there must have been some slippery substance on the surface, most likely slime or algae in this area, which caused or contributed to the slip;[6]
[5]Transcript of proceedings before me (“TT”) 158, Mr Blanden QC. I have used “TT” to distinguish between the transcript of proceedings before the jury, which is referred to as “T”
[6]TT158
(ii) The responsibility for cleaning the pool and its surrounds rested solely with the YMCA under the terms of its contract with the Council;
(iii) The YMCA, as Ms Balassone’s employer, was bound to provide a safe place and safe system of work, but failed in this duty. Hence the YMCA should bear most of blame in Ms Balassone’s injury, loss and damage.
18 The parties eschewed any suggestion that in the proceedings before me, they were bound by the manner in which the proceedings were run before the jury. They all agreed that I must determine the matter for myself on the evidence before me, consistent with the jury’s verdict, but unrestrained by the way counsel put the case before the jury. Accordingly, in the proceedings before me, the issue arose whether the YMCA failed in its duty to Ms Balassone, as occupier, despite this not being a matter left for the jury’s consideration.
19 In the recovery proceedings, the parties agreed that “Factor X” in the formula contained in s138 of the Act should reflect the apportionment made in the contribution proceedings. The remaining factors in the formula would be agreed.
20 The only issue in the recovery proceedings concerns causation: The Council argued that the VWA could not establish the element of causation as required by s51 of the Wrongs Act 1958.
21 On the other hand, the VWA submitted that “but for” the Council’s failure to identify the hazard posed by the handrail (and its failure to respond to the risk), Ms Balassone’s injury would not have occurred. This failure was a cause of her injury, loss and damage and, accordingly, the element of causation is satisfied no matter which test of causation applied.
Summary of findings
22 In the contribution proceedings, for reasons that follow, on the evidence before me, I am not satisfied on the balance of probabilities that Ms Balassone’s fall was caused by any substance on the walkaway or by any failure on the part of the YMCA to clean and maintain the walkway. I am satisfied on the balance of probabilities that, as they conceded, both the YMCA and the Council failed to identify the structure of the handrail and the absence of a barrier in this area as a reasonably foreseeable risk of injury to persons (including Ms Balassone) on the premises. It is the state of the premises that contributed to Ms Balassone’s injury, loss and damage.
23 As occupier, the Council was responsible for this structural component, a duty it could not (and did not seek to) delegate to the YMCA.
24 Concurrent with its duty as occupier, as Ms Balassone’s employer, the YMCA had a non-delegable duty to provide her with a safe place of work. Inherent in my determination that the YMCA failed to provide a safe place of work is that this circumstance arose solely because of the state of the premises. It is unnecessary to determine specifically whether this failure also constituted a breach of the duty the YMCA owed to Ms Balassone as occupier. In this regard, I agree with both Mr Blanden and Mr Stanley that there is a degree of overlap between the duty owed as employer to provide a safe place of work and the duty owed as occupier to take such care as, in all the circumstances of the case, was reasonable to see that Ms Balassone was not injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
25 I agree with Mr Stanley that both defendants fell short of the standard of conduct expected of them in the same (or similar) way. Accordingly, I consider it just and equitable, having regard to the extent of their respective responsibility for Ms Balassone’s damage, that they each contribute 50% (fifty per cent) for that damage.
26 In the recovery proceedings, for reasons that follow “Factor X” should be 50% (fifty per cent).
27 I am satisfied that the element of causation has been met and that, accordingly, the Council should indemnify the VWA in accordance with s138 of the Act.
The Contribution Proceedings
Legal Principles
28 The applicable legal principles are not in dispute. The contribution proceeding brought by each party was in accordance with Part IV of the Wrongs Act 1958.
29 Section 24(2) requires that the amount of the contribution recoverable from any person be just and equitable having regard to the extent of that person’s responsibility for the damage.
30 As Mr Blanden notes:
“The High Court provided guidance in Podrebersek:
‘The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. the degree of departure from the standard of [care of the]
areasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.’[7]”[8]
[7]Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494 (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ)
[8]Council submissions, Exhibit Council1, paragraph 2. See also YMCA1, paragraph 38
31 And, as Mr Stanley points out:
“In Papadopoulos v MC Labour Hire Services Pty Ltd [& Anor (No 4)],[9] Beach J stated at [76]:
‘The two principal factors are the degree to which each has departed from the standard of conduct required of them and the relative causal potency of each [d]efendant’s acts.’”[10]
[9][2009] VSC 193
[10]YMCA submissions, Exhibit YMCA1, paragraph 3
32 If one party has successfully delegated (in whole or in part to another) a particular duty of care owed to a plaintiff, then the first person’s duty may be discharged by reason of and to the extent of that delegation. In this regard, Mr Blanden submits:
“Delegation
3.The second defendant delegated its duty of care to the First Defendant in the management and control of the premises, save for structural matters over which it retained control but was reliant upon the First Defendant to advise it about same.
4.There is no doubt also that this occupier’s duty of care is ‘delegable’, in the sense that it may be discharged in whole or in part by the occupier’s exercise of reasonable skill and care in engaging someone else to take steps to keep the property safe either generally or in particular respects. Discharge of the duty in this way requires reasonable skill and care in the selection of the other person, in arranging the terms of engagement of that person, and in confirming that the person does take appropriate steps. If it is reasonable for an occupier to seek to discharge or partly discharge the occupier’s duty in this way, and the occupier does exercise reasonable … [skill] and care in all these respects, then if a person coming on to the property is injured due to the failure of the other person engaged to exercise reasonable skill and care to keep the property safe, the occupier may escape liability.[11].[12]
5.The Second Defendant contends that although it retained responsibility for the structures of the leisure centre, the delegation of the control and management of the leisure centre means that its culpability for the Plaintiff’s injury should be assessed at a significantly less percentage than that of the Second Defendant.”[13]
[11]Bellevista [scil Bevillesta] Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 at [53]
[12]Laresu Pty Ltd v Clark [2010] NSWCA 180 at [69]
[13]Exhibit Council 1
The issues
33 It is not in controversy that under the contractual arrangements between the YMCA and the Council, the Council delegated responsibility of the day-to-day running of the premises, including cleaning, to the YMCA. Even so, the Council maintained responsibility and control for other matters of safety, including safety audits. As mentioned earlier, however, matters pertaining to structure, in particular the handrail, were not the subject of delegation.
34 In accordance with the authorities referred to above, it is only if the matters the subject of delegation are implicated in Ms Balassone’s damage that they are to be taken into account when assessing the relative blameworthiness of each of the parties.[14] In other words, there must be a causal nexus between the breach of the duty delegated and the harm done.
[14]Podrebersek v Australian Iron & Steel Pty Ltd (supra); Papadopoulos v MC Labour Hire Services Pty Ltd (supra)
35 Critical to this issue is the determination of the parties’ respective breaches of the duty of care each owed to Ms Balassone. This requires an examination of the circumstances in which she ended up face down in the pool with her right foot wedged between the handrail frame and the pool wall. If a cause of this was a failure to clean and/or maintain the walkway surface free from slime, algae or other slippery substances, then delegation of the duty to the YMCA is a factor to be counted in the Council’s favour when assessing the contribution that each party should make to the damage.
36 It is unnecessary to restate the well-established principles regarding the non-delegable duty owed by employers to their employees, or the duty of care owed by occupiers, since they are not in dispute.
The indemnity Proceedings
Legal Principles
37 Section 138 of the Act provides:
“(1)Where an injury … for which compensation has been paid, or is or may be payable, by the Authority, a self-insurer or an employer was caused under circumstances creating a liability in a third party to pay damages … in respect of the injury …, the Authority, self-insurer or employer is entitled to be indemnified by the third party in accordance with this section.
(2)In determining for the purposes of subsection (1) whether an injury or death was caused under circumstances creating a liability in a third party to pay damages or that would have created such a liability if the injury or death had been caused in Victoria in respect of the injury or death, Divisions 8A and 9 of Part IV must not be taken into account.
(3)The amount which a third party is required to pay as indemnity under subsection (1) is the lesser of—
(a)the amount of compensation paid or payable under this Act in respect of the injury …; and
(b)the amount calculated, were it not for the provisions of this Act, …, in accordance with the formula—
where—
X is the extent, expressed as a percentage, whereby the third party’s act, default or negligence caused or contributed to the injury …;
A is the amount of damages (disregarding the extent, if any, whereby any other person’s act, default or negligence caused or contributed to the injury …) for pecuniary loss and non pecuniary loss which the third party is or would have been liable to pay in respect of the injury …;
B …
C is the amount paid by the third party in respect of the injury … to the worker … under any settlement of, or judgment in, an action by the worker or dependants of the worker against the third party.”
38 The parties agree that the element of causation referred to in s138(1) is to be determined in accordance with s51 and s52 of the Wrongs Act 1958, which provide:
“51 General principles
(1)A determination that negligence caused particular harm comprises the following elements—
(a)that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2)In determining in an appropriate case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3)If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances.
(4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
52 Burden of proof
In determining liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.”
The issues
39 Mr Blanden submits that the “but for” test applies (factual causation) and that because either one of the defendants could have caused the damage, it cannot be said on the balance of probabilities which one actually did. In this regard, Mr Blanden referred to Powney v Kerang and District Health:[15]
[15][2014] VSCA 221
“[70]The High Court examined the cognate provisions of the New South Wales legislation, ss 5D and 5E of the Civil Liability Act 2002 (NSW), in Adeels Palace Pty Ltd v Moubarak,[16] Strong v Woolworths Ltd[17] and Wallace v Kam.[18]
[71]It has been emphasised that the primary causation provisions of the Civil Liability Act2002 (NSW) (and therefore of the Victorian Act) require two separate inquiries:
(a)Causation: that the breach was a ‘necessary condition’ of the harm (the statutory ‘but for’ test), described as factual causation;[19] and
(b)Scope of liability: whether the defendant should be held responsible for the harm suffered by the plaintiff.[20]
[72]Section 51(2) — the provision the subject of the appeal — is intended to enable a court to find causation is made out in certain cases where the plaintiff cannot satisfy the first test (that of factual causation).
[16]Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 (‘Adeels Palace’)
[17]Strong v Woolworths Ltd (2012) 246 CLR 182 (‘Strong’)
[18]Wallace v Kam (2013) 250 CLR 375 (‘Wallace’)
[19]Civil Liability Act 2002 (NSW) s 5D(1)(a); Wrongs Act 1958 s 51(1)(a)
[20]Civil Liability Act 2002 (NSW) s 5D(1)(b); Wrongs Act 1958 s 51(1)(b)
Factual causation
[73]In Wallace, the High Court said of the factual causation test:
‘The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a ‘but for’ test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.’[21]
[21](2013) 250 CLR 375, 383 [16]. See also Strong (2012) 246 CLR 182, 190 [17]; Adeels Palace (2009) 239 CLR 420, 440 [45]
[74]The Court also said of the distinction between questions of factual causation and scope of liability:
‘The distinction now drawn by s 5D(1) between factual causation and scope of liability should not be obscured by judicial glosses. A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (among other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.’[22]
[75]We should also mention here that in Strong, the High Court considered the application of the factual causation test in circumstances where more than one set of conditions was necessary for the occurrence of the harm. The majority explained that:
‘Under the statute, factual causation requires proof that the defendant’s negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant’s negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(a). In such a case, the defendant’s conduct may be described as contributing to the occurrence of the harm.’”[23]
[22]Ibid 383 [14]. See also Adeels Palace (2009) 239 CLR 420, 440 [42]; Strong (2012) 246 CLR 182, 191 [19]
[23](2012) 246 CLR 182, 191-192 [20] (citations omitted). See also Amaca Pty Ltd v Booth (2011) 246 CLR 36
40 Mr Gorton submits that Mr Blanden’s construction of s51 raises the threshold to establish causation well beyond what is required. Mr Gorton submits that the VWA need only prove on the balance of probabilities that the Council’s negligence was a cause of the harm, not the only cause of such harm. The VWA is not required to eliminate all other causes.
The evidence relevant to both proceedings
41 I adopt the summary of evidence of the trial before the jury provided to the Court of Appeal, which was provided to me in edited form:
“B. Summary of facts:
B.1 Introduction:
8.The Council is the owner and occupier of the Centre. Following a tender process, it engaged the YMCA to manage and operate the Centre pursuant to the terms of the Contract, which was executed by the parties on 14 September 2001. At that time, the YMCA had been operating the Centre for five years under an earlier similar contract.[24]
[24]Reasons, [28]. Transcript of proceedings before jury (T) 339/14–20
9.The YMCA employed Ms Balassone as a swimming teacher at the Centre. On 23 April 2005, in the course of her employment at the Centre, Ms Balassone injured her right knee when she fell from the pool deck and trapped her right foot between a stairwell handrail and the edge of the pool.
10.About three months later, an additional guard railing was installed at the site of Ms Balassone’s accident. The guard railing blocked direct access to the handrail and stairwell from the part of the pool deck along which Ms Balassone had been walking before the accident.
B.2 Ms Balassone’s accident on 23 April 2005:
11.There was a conflict in the evidence as to how Ms Balassone fell from the pool deck.
12. Ms Balassone gave evidence that:
(a) she was walking along the pool deck about 25 to 30 centimetres from the edge of the pool observing a young girl swimming when she slipped and fell face down into the water, and her right foot became entrapped by the handrail;[25]
[25]T 128/14–23; T 132/19–T 133/5
(b) as she walked along the pool deck, she was at all times aware of her location, and was conscious of the end of the pool and the railings;[26]
[26]T 127/26–T 128/1
(c) she had previously expressed concerns to YMCA personnel about the presence of water and black or green ‘slime’ on different areas of the pool deck, but she had never expressed those concerns in writing;[27]
[27]T 134/16–24; T 174/9–13
(d) on the day of the accident, there was ‘a lot of water on the pool deck’, but she was not aware of any discolouration in the area where she slipped;[28]
[28]T 138/25–6; T 139/31–T 140/2; T 141/27–30
(e) she was walking ‘very slowly’, and could not explain how she could slip and fall forward when walking at that pace;[29] and
[29]T 217/29–30
(f) she was watching the young girl swimming, and so was not watching precisely where she was going along the pool deck.[30]
[30]T 214/29; T 215/14–23, 26–7
13. Richard Lightfoot, consulting engineer, gave evidence that:
(a) on 1 September 2011, he attended the Centre and conducted a series of tests on different parts of the wetted surface of the pool deck using a Stanley pendulum;[31]
[31]See T 292
(b) he found that the surface had a ‘moderate to high’ notional contribution to the risk of a slip and that algal-stained areas of the surface had a ‘high to very high’ notional contribution to the risk of a slip;[32]
[32]T 302/7–24
(c) the ‘change in slip resistance of the surface from moderate to high and high to very high in the case of algal material present meant that cleaning of the surface was imperative’;[33]
[33]T 302/16–19
(d) pooling of water on the surface would increase the risk of a slip;[34]
[34]T 302/28–T 303/15
(e) if a person were moving very slowly, there would be ‘far less’ risk of a slip;[35]
[35]T 312/2–3
(f) a risk assessment should have identified the possibility of a slip on the surface as a hazard;[36]
[36]T 295/31–296/1
(g) the handrail constituted a tripping hazard if a person lost his or her balance while approaching it along the surface of the pool deck, and that hazard should have been identified;[37] and
[37]T 297/19–22; T 299/7–11
(h) the installation of a guard railing at the site of Ms Balassone’s accident blocked direct access to the handrail, and thus went ‘a long way’ to preventing that type of accident from occurring again.[38]
[38]T 302/3–6, 19–24
14.In her Workcover claim form, Ms Balassone had written a dash in response to a question that asked ‘what happened that caused or contributed to your injury/condition’, and had not referred to a slippery pool deck.[39]
[39]AB C36 (tab 31); T 200/3–12
15.A YMCA significant incident notification form dated 26 April 2005 relevantly summarised the accident as follows: ‘Walking along pool deck and lost perception of the edge of the pool and slipped down between the hand rail and pool wall catching her foot.’[40]
[40]AB C39 (tab 33)
16. Susan Lees gave evidence that:
(a) at the time of the accident, she was employed by the YMCA as the assistant manager and operations director at the Centre;
(b) she had completed the significant incident notification form based on reports that she had received from staff about the accident;[41]
[41]T 474/9–12
(c) she had never been told that Ms Balassone’s fall was caused by her slipping on the surface of the pool deck;[42] and
[42]T 501/25–9
(d) at the time of the accident:
(i)the pool deck was cleaned by high pressure hosing every night; and
(ii)there was a process in place for cleaning the pool deck with sodium hypochlorite, which removed any algae build up.[43]
[43]T 475/31–T 476/16; T 483/5–13
17.The employer claim form dated 26 April 2005 summarised the accident as follows: ‘Walked too far along 25 [metre] pool whilst assessing a child’s swimming ability. Fell head first [and] twisted knee.’ The form also stated that Ms Balassone ‘[f]ell because [she was] watching client intently.’[44]
[44]AB C41–2 (tab 34)
18. Karen Quinn gave evidence that:
(a) at the time of the accident, she was employed by the YMCA as the administration director at the Centre;
(b) she had completed the employer claim form based on information in the incident report as well as from staff and any persons who witnessed the accident, which possibly included Ms Balassone;[45] and
[45]T 506/30–507/6
(c) about three weeks after the accident, Ms Balassone told her that on the day of the accident:
(i) she was walking backwards along the pool deck;
(ii) she lost track of her position in relation to the stairwell;
(iii)when she stepped back her foot went down between the edge of the pool and the handrail; and
(iv)as she fell, she twisted around to protect her head from the edge of the pool deck.[46]
[46]T 507/26–T 508/17
19. Linda Freake gave evidence that:
(a) she had been employed by the YMCA as the manager of the Centre since about 1997 or 1998;[47]
[47]T 337/20–1
(b) her role is to oversee directly the management and operations of the Centre;[48]
[48]T 336/7–9
(c) she had worked at the Centre from March 1991 when it was operated by the then Shire of Eltham, and she commenced employment with the YMCA at the Centre in November 1996;[49]
[49]T 337/9–14; T 377/22–3
(d) the pool deck was resurfaced with ‘Regupol’ flooring in early 2000, after the YMCA expressed concerns to the Council about the slipperiness of the previous ceramic tile flooring;[50] and
[50]T 341/17–T 342/20
(e) after the resurfacing, there were ‘virtually … no concerns whatsoever’ with the slipperiness of the surface.[51]
[51]T 342/21–4
20. Elizabeth Tesone gave evidence that:
(a) she was currently the YMCA’s aquatic development manager; and
(b) ‘Regupol’ flooring was one of the highest quality non-slip surfaces used in aquatic facilities around the State.[52]
[52]T 566/12–16; T 572/8–9
B.3 The Contract:
21.The Council and the YMCA executed the Contract under a formal instrument of agreement dated 14 September 2001.[53]
[53]AB C224 (tab 43)
22.The Contract was evidenced by numerous documents, including the Conditions of Tendering, the Specification and the General Conditions of Contract.[54]
[54]See cl 1.1 and the Annexure at AB C150, 196 (tab 37). The Conditions of Tendering and the Specification are reproduced at AB C73–146 (tab 36). The General Conditions of Contract are reproduced at AB C147–99 (tab 37).
23.In addition, the formal instrument of agreement stated that the Contract was evidenced by:
(a)the YMCA’s tender for the Contract dated 30 April 2001;[55] and
[55]AB C200–11 (tab 38) (extracted in part only)
(b)a letter of offer from the Council to the YMCA dated 14 September 2001.[56]
[56]AB C223 (tab 42)
B.4Delegation of the Council’s duty and the apportionment of responsibility between the Council and the YMCA:
24. The Specification provided, among other things, that:
(a) the YMCA’s responsibilities included:
(i) managing, operating and maintaining the Centre;
(ii)ensuring that the Centre was safe and secure at all times;
(iii)regularly reporting to the Council; and
(iv)maintaining, cleaning and carrying out minor repairs to the Centre;[57]
[57]Paragraph 3 of the Specification: AB C84–5 (tab 36)
(b) the Council’s responsibilities included maintaining and repairing the structural components of the Centre;[58]
[58]Paragraph 3.1 of the Specification: AB C86 (tab 36)
(c) a full description of the parties’ maintenance responsibilities was contained in Appendix 2;[59]
[59]Paragraph 3.1 of the Specification: AB C86 (tab 36)
(d) the Contract included a profit-sharing arrangement;[60]
[60]Paragraph 4.1 of the Specification: AB C84–5 (tab 36)
(e) the YMCA could not make any alterations or additions to the Centre without the prior written consent of the Supervisor, and any approved alterations or additions had to be carried out in accordance with plans and specifications and by tradespersons that were approved by the Supervisor;[61]
[61]Paragraph 4.14 of the Specification: AB C90 (tab 36)
(f) the YMCA had to implement an agreed ‘Performance Measurement System’ incorporating health and safety standards, and report on compliance with the system every six months;[62]
[62]Paragraph 6.4 of the Specification: AB C96 (tab 36)
(g) if the Supervisor decided to undertake an audit of the Centre, the YMCA had to make available at the Centre all documents, records and personnel that were reasonably required for the audit to be undertaken;[63] and
[63]Paragraph 6.5 of the Specification: AB C96 (tab 36)
(h) the YMCA had to submit to the Supervisor regular, timely and detailed monthly, half-yearly and annual reports, including maintenance summaries, first aid and incident summaries, and reporting of occupational health and safety issues and corrections undertaken as a result of occupational health and safety inspections and risk assessments;[64]
[64]See generally para 13 of the Specification: AB C104–7 (tab 36)
(i) the YMCA had to submit to the Council an annual program of maintenance works including a timeframe for completion with the Annual Business Plan;[65] and
[65]Paragraph 14.1 of the Specification: AB C107 (tab 36)
(j) audits of the Council’s assets at the Centre were to be undertaken jointly by the YMCA and the Supervisor upon commencement of the Contract and then at 24-month intervals.[66]
[66]Paragraph 14.3 of the Specification: AB C108 (tab 36)
25.The General Conditions of Contract provided, among other things, that:
(a) the Contract did not operate to create a partnership between the parties;[67]
[67]Clause 1.4.1: AB C155 (tab 37)
(b) the Supervisor could require the YMCA to provide him with a written report on any aspect of the YMCA’s performance of its obligations under the Contract;[68]
[68]Clause 2.4: AB C159 (tab 37)
(c) the YMCA had:
(i)at all times to identify and take all necessary precautions for the health and safety of its employees and sub-contractors, staff of the Council and members of the public, who might be affected by the performance of its obligations under the contract;[69]
[69]Clause 8.1: AB C180 (tab 37)
(ii)to inform itself and comply with all occupational health and safety policies, procedures and measures implemented or adopted by the Council[70]; and
[70]Clause 8.1: AB C180 (tab 37)
(iii)to comply immediately with any directions by the Supervisor relating to occupational health and safety;[71]
[71]Clause 8.1: AB C180 (tab 37)
(d) the YMCA had to implement an occupational health and safety management system, which had to be submitted to the Supervisor for approval annually and amended as directed by him;[72]
[72]Clauses 8.3: AB C181 (tab 37)
(e) the YMCA had to provide evidence of its ongoing implementation of the occupational health and management system when requested to do so by the Supervisor;[73]
[73]Clauses 8.4: AB C182 (tab 37)
(f) each month, the YMCA had to provide to the Supervisor the occupational health and safety information specified in sub-cll 8.4.1 to 8.4.4;[74]
[74]Clause 8.4: AB C182 (tab 37)
(g) the YMCA had to provide reports on occupational health and safety inspections, audits or assessments undertaken during the term of the Contract when requested to do so by the Supervisor;[75] and
[75]Clause 8.4: AB C182 (tab 37)
(h) the YMCA had to notify the Council promptly of any accident or injury that occurred during the performance of its obligations under the Contract, and within three days of any such incident the YMCA had to provide the Council with a detailed report.[76]
[76]Clause 8.5: AB C182–3 (tab 37)
26. Ms Freake gave evidence that:
(a) the Council outsourced to the YMCA the running and management of the Centre;[77]
[77]T 377/16–19
(b) the YMCA ran over 100 facilities of a similar nature statewide and was one of the pre-eminent providers of management and operational services in relation to such facilities;[78]
[78]T387/28 –T388/2
(c) the YMCA operated the Centre on a day-to-day basis using exclusively YMCA personnel;[79]
[79]T 388/22–T 389/2
(d) the YMCA had control of the operational aspects of the facility on a day to day basis;[80]
[80]T388/19-21
(e) YMCA personnel were responsible for opening and closing the facility, ticketing, swimming lessons, pool safety and cleaning and maintenance, including cleaning the floors;[81]
[81]T388/22-T389/6
(f) the YMCA was responsible for maintenance and cleaning, and the Council was responsible for structural changes;[82]
[82]T 340/11–15; T 389/4–5
(g) the Council was responsible for structural matters at the Centre and would generally attend to such matters in consultation with the YMCA;[83]
[83]T 389/12–14
(h) if the YMCA identified a problem at the Centre, it would report that problem to the Council;[84]
[84]T 389/20–1
(i) the YMCA had never suggested to the Council that there was a difficulty or a problem with the rail or that it should be modified by installing the guard railing;[85]
[85]T 395/6–10
(j) the Council was responsible for the installation of the guard railing at the site of Ms Balassone’s accident, and it did so at its own expense;[86]
[86]T 340/16–23
(k) the guard railing was installed by the Council after Worksafe notified the YMCA that a modification was required and the YMCA forwarded that notification to the Council;[87]
[87]T 395/11–20
(l) the pool deck was resurfaced with ‘Regupol’ flooring in early 2000 at the Council’s expense, after the YMCA expressed concerns to the Council about the slipperiness of the previous ceramic tile flooring;[88]
[88]T 341/17–T 342/20
(m) at that time, the YMCA was directly engaged in the process of identifying the most appropriate flooring and recommended to the Council a couple of options, including the ‘Regupol’ flooring that was actually installed;[89]
[89]T 390/24–T 391/19
(n) the Council replaced the roof over a basketball court at the Centre at its own expense, after the YMCA reported to the Council that the previous roof was leaking;[90]
[90]T 389/22–30
(o) in addition to internal audits of the Centre conducted by the YMCA, on a ‘regular basis’ from 2001, the Council conducted its own occupational health and safety inspections of the Centre using an inspection checklist that it produced;[91]
[91]T 355/25–T 356/5; T 361/24–5
(p) during the Council’s inspections, YMCA personnel were ‘on site to answer any questions, open up any access areas an[d] the like’;[92]
[92]T 356/14–17
(q) further audits of the Centre were conducted by the Council’s insurer ‘certainly once, probably twice’;[93]
[93]T 356/18–T 357/2
(r) the Council and the YMCA met monthly at the Centre for formal contract meetings, and it was not uncommon for the YMCA’s representatives to walk around the Centre with the Council’s representatives;[94]
[94]T 362/25–T 363/2
(s) among other things, occupational health and safety issues and maintenance issues were discussed at the monthly contract meetings;[95]
[95]T 363/12–14; T 392/8–9
(t) in addition to the monthly formal contract meetings, the YMCA’s relationship with the Council was such that the YMCA would inform the Council as soon as it identified an issue relating to a structural matter at the Centre, and the Council would then respond straight away;[96]
[96]T 392/13–25
(u) she was required to send a monthly report to the Council that documented numerous Contract issues, including occupational health and safety issues;[97]
[97]T 363/6–12
(v) there was a profit share arrangement between the Council and the YMCA;[98]
[98]T 399/3–7
(w) the YMCA and the Council generally spoke of their association as a ‘partnership’, and that is how she regarded their association;[99] and
[99]T 398/10–15
(x) while the YMCA was responsible for the day-to-day management of the Centre, it worked ‘incredibly closely’ with the Council.[100]
[100]T 399/8–14
27. Ms Lees gave evidence that:
(a) the YMCA operated the Centre on a day-to-day basis using YMCA personnel;[101]
[101]T 482/20–3
(b) the Centre was fully staffed by YMCA personnel who did everything that was required in the course of the day and who had the obligation of continued maintenance and cleaning on a day-to-day basis;[102]
[102]T482/23-29
(c) the Council conducted occupational health and safety inspections of the Centre using its own checklists;[103]
[103]T 479/15–17; T 479/25–T 480/3
(d) during those inspections, she would walk around the Centre with the assessor and answer his or her questions;[104]
[104]T 479/21–4
(e) the YMCA held monthly meetings with the Council at which a range of issues was discussed, including occupational health and safety issues;[105]
[105]T 480/8–13
(f) the Council was always represented at the monthly meetings;[106]
[106]T 486/31–T 487/3
(g) the Council had an ‘independent interest’ in occupational health and safety issues at the Centre;[107]
[107]T 487/4–6
(h) after Ms Balassone’s accident, Worksafe recommended to the YMCA that the guard railing be installed and the YMCA then passed on that recommendation to the Council;[108] and
[108]T 481/12–16
(i) the Council installed the guard railing because it had responsibility for structural items at the Centre.[109]
[109]T 480/27–9; T 481/3–6
28. Darren Bennett gave evidence that:
(a) at the time of the accident, he was employed by the Council as the coordinator of leisure services;[110]
[110]T 546/2–8
(b) he had attended the monthly contract meetings;[111]
[111]T 544/18–19
(c) the purpose of those meetings was to ensure that the YMCA was complying with its obligations under the Contract and to provide the YMCA with an opportunity to advise the Council of any structural items that had to be addressed;[112]
[112]T 544/22–6
(d) the Council and the YMCA had a ‘commercial arrangement’ in relation to the operation and management of the Centre, and the Council expected the YMCA to comply with all the terms of the Contract;[113]
[113]T 545/9–16
(e) the Council audited and inspected the Centre for the purpose of ensuring that the YMCA was complying with its obligations under the Contract;[114] and
[114]T 545/23–5
(f) the YMCA was responsible for the occupational health and safety requirements at the Centre, and the Council’s role was to ensure that the YMCA complied with its obligations under the Contract.[115]
[115]T 554/18–22
29. The documents tendered in evidence included:
(a) correspondence relating to a safety audit of the Centre conducted by the Royal Life Saving Society of Australia at the instigation of the Council’s insurer;[116]
(b) a letter from the Council to the YMCA dated 15 September 2003 referring to an occupational health and safety inspection conducted by the Council on 22 August 2003;[117]
(c) an inspection checklist prepared by Paul Bennett and dated 19 January 2005;[118]
(d) minutes of monthly meetings held between the Council and the YMCA at the Centre on 6 May 2003, 30 November 2004, 25 January 2005, 2 March 2005 and 27 April 2005.[119] The minutes recorded that Paul Bennett attended four of those meetings;
(e) documents published by the Council in which its relationship with the YMCA was described as a ‘partnership’;[120] and
(f) the letter from the YMCA to the Council dated 28 February 2005 described at [44] above.”
[116]AB C359–64 (tabs 65–7)
[117]AB C38 (tab 32)
[118]AB C354–7 (tab 63)
[119]AB C1–10 (tab 29)
[120]AB C11–34 (tab 30)
42 As mentioned earlier, in addition to reading the selected evidence of the proceedings before the jury, in the presence of the parties I watched portions of the recorded evidence given by Ms Balassone and Ms Quinn.[121] I found this to be a helpful exercise, as the transcript does not breathe life into the words uttered or provide context of nuance and demeanour.
[121]The DVD recordings of the proceedings before the jury were tendered as exhibit JGM1
Ms Balassone’s evidence
43 In her evidence-in-chief, Ms Balassone described the pool, and photographs of it were tendered. She stated that the pool had five lanes, and generally, there was one teacher to each lane. There would usually be at least two lifeguards on duty, as well as a duty manager, who moved around the facility.[122]
[122]T126
44 On the day of the incident, 23 April 2005, a Saturday morning, Ms Balassone was assessing a young student:
“The student that I was assessing was in the second lane of the pool …
… there were four – I think there were four students down one end of the pool. The teacher had asked if I could assess this particular little girl. She took her to the 10 metre mark of the pool and stood there and it was from that point where the little girl was swimming back to the shallow end of the pool that I was assessing her.
… She was an Octopus level, which was the very beginner’s level, and the teacher had asked if she was suitable to move up to the next level. And we were looking at (1) her ability to be able to maintain herself in that depth at the 10 metre mark, and then being able to swim with a freestyle stroke towards the shallow end of the pool. We were looking for some balance in the water, some elongation of the stroke so that they weren’t doing a very pulled in sort of stroke but they were actually trying to move their arm forward in a long distance. And just being able to manage that distance, essentially.”[123]
[123]T126-T127
45 Ms Balassone claimed that as she was walking down the side of the pool:
“I was conscious of the end of the pool, yes, and the railings, yes. I’d spent a lot … of time in that pool.”[124]
[124]T127
46 Ms Balassone stated that she walked along the side of the pool about 25 to 30 centimetres from the tiles on the edge of the pool.[125]
[125]T128
47 By reference to photograph 2A, Ms Balassone described the incident:
“I was walking towards that shallow end of the pool, that pool step area of the pool. And I was observing the stroke of the child in the second lane, and I slipped. And I fell face down into the water. In the process of falling, somehow my foot became entrapped by that rail. The next thing I knew, I was under water face down. I tried to raise my head up to recover myself out of the water, I was unable to do so. I realised that my foot was trapped. I tried to dislodge my foot, I couldn’t, and I tried to get my head back up again and I couldn’t and I started to panic and then two fathers got into the pool. One raised my head up above the water, the other father dislodged my foot from the rail and then they both assisted me out of the water. … I felt the first pain with my right knee when I put my foot down to get back up the stairs with the parents. I felt a pain shoot right through my knee.”[126]
[126]T132-T133
48 Asked to indicate “the general area” where she fell into the pool, the transcript records:
Mr HORE-LACY:
Q:“Sorry, I asked you a question before you and said it was before the pink part there in Photograph 2A?---
A:Where I fell?
Q:Yes?---
A:Yes, I believe I fell – sorry, I believe I slipped in around about that general vicinity.”[127]
[127]T133
49 But the DVD shows Ms Balassone pausing during her answer in that passage:
Mr HORE LACY:
Q:“Sorry, I asked you a question before you and said it was before the pink part there in Photograph 2A?---
A:Where I fell?
Q:Yes?---
A:Yes, I believe I fell [pause]– sorry, I believe I slipped in around about that general vicinity.”
(Emphasis added)
50 The trial judge asked Ms Balassone to mark the photograph where she thought she might have fallen and where she ended up in the water. She asked for clarification:[128]
[128]T133-T134
Q: “So where I slipped and where I entered the water?”---
HIS HONOUR:
Q: “Yes?---
A:Okay. I – yeah, I’m not absolutely certain of where I slipped and then - - -.”
51 Ms Balassone then described a history of complaints she had made about slipping events, and observations she had made of slime or algae from time to time:
A:“The pooling of water on the pool deck made it particularly hazardous for young children, they move very, very quickly and I had observed a number of them slip over in the pooling of the water and then I had also observed some black and green – I can only call it slime in different areas of the pool deck which also I had observed particularly – particularly children would slip over and you could sometimes see the skid mark[129] through that area.”
MR HORE-LACY:
Q:“Have you experienced any problems yourself with slipping?---
A:From time to time, yes, I had lost my footing but I’d never actually fallen over so I’d been able to correct myself, correct my position.”[130]
[129]I later refer to the absence of any skid marks as a circumstance to be taken into account when deciding whether to draw the inference that Ms Balassone slipped on a substance on the decking, and the location of that substance.
[130]T134
52 Ms Balassone described the response to her complaints about slipping hazards:
Mr HORE-LACY:
Q:“Now, did anything happen that you observed as a result of your complaints?---
A:On occasion, not always. A junior staff member would be sent out with a hardwired brush or scrubbing brush and they would give the area a bit of a scrub or they would push the water away and they would use some pool water to then rinse, particularly the slimy areas off, and that would generally end up in the pool.
Q:Did you ever see any chemicals applied to the areas that were affected?---
A:Not while I was working, no.
Q:Did the scrubbing and the hosing off do anything to alleviate the problem from your observations?---In the short-term it would for a few days and then it would be back again.”[131]
[131]T135
53 Ms Balassone stated that at the time of the incident, she was wearing runners.[132]
[132]T135
54 Asked to describe “the nature of the pool deck” on the day of the incident, Ms Balassone testified:
A:“That there was a lot of water on the pool deck. It was something that you - it was just always there. You were aware that it was slippery, you were aware that it was holding a lot of water, you were aware that there were slime spots and you just took extra care whenever you walked around.”
MR HORE-LACY:
Q:“How were you aware that there was – we’re talking about 23 April. How were you aware that there were slime spots?---
A:Because they were always there.
Q:Well, I’ll ask you this. In all the time you’re there and apart from the odd person giving a bit of a scrub that would last for a couple of days, did anything else happen to your observations to alleviate the problem?---
A:No.
Q:Did that problem ever get better?---
A:No.
Q:Now, at the time that - the day you got injured I think you said you saw sort of indications of slime spots on that day?---
A:Yes. Particularly in the high traffic areas.
Q:Are you able to say in relation to the photographs where exactly?---
A:Particularly just in front of the pool stairs, around that pool stair area on both - well, you’re particularly aware of it right in front of the pool stair entrance and around - between the - that rear entrance railing and the wall behind it. That was a particularly bad area.
Q:Can you see that - if you have a look at photograph 2, is that area indicated?---
A:Yes.”
HIS HONOUR:
Q:“Perhaps if you can try and mark where you say that with the orange texta?---
A:On picture 2?”
MR HORE-LACY:
Q:“Yes?---
A:They were the areas I was always aware of.
… . ”
MR HORE-LACY:
Q:“Did you actually notice any discolouration in the area where you slipped on that day?---
A:I wasn’t particularly aware of it on that particular day, no.”[133]
[133]T138-T140
55 Further questions were asked about the presence of slime:
MR HORE-LACY:
Q:“… Now, just that area that we speak of - the area - if you go to Photograph No. 2?---
A:Yes.
Q:The area where you indicate where you slipped - - -?---
A:Yes.
Q:- - - had you ever seen black or green slime there on other occasions?---
A:Green slime, yes.
Q:And how often?---
A:I would generally take the preschoolers over there at least once a week, and I would be aware - and we would enter the stairwell at that point, and I was aware of the slime on that side of that deck in that particular area. At least once a week when I was taking the children over there during school terms.
Q:Now, is there any other reason that you can think - possible reason that you can think of why you slipped, other than the nature of the surface that you were walking on?---
A: There was an awful lot of water on the pool deck.”[134]
[134]T141
56 Asked to explain where her foot got caught in the railing, Ms Balassone was unable to elaborate:
Mr HORE-LACY:
Q:“Where do you believe your foot was caught?---
A:It – it’s difficult to know because I was under water and wasn’t able to raise my head. But I believe my foot was further down the wall, so where the bar enters the water. It was further down there.
…
Q:How did it happen?---
A:I - I slipped, and that’s all I can tell you, I slipped. And that I went face forward into the water. And I didn’t go in on the angle that they’re proposing in that picture. We’d be talking about a different outcome. So I would say that I’ve come - that the angle of entry would have been - if you’re looking at where the person’s taken the photo from, more on that angle.
Q:If I could say this - it would have to be, otherwise your head wouldn’t have been buried on the steps. But just in relation to the - do you know when it was that your foot became - you were conscious of your foot being caught? Was that before you - was that immediately after you slipped or after you entered the water? Or what time?
---A:I - I - I have a sensation, and that’s all I can call it, that - of my foot being grabbed, if you like. So yanked. That – that’s all I can tell you.
Q:And where - - -?---
A:And - and that was as I was falling forward, that yanking sensation.”[135]
[135]T142-T143
57 Asked to identify the most recent slipping incident that Ms Balassone witnessed prior to the incident, Ms Balassone stated she thought it occurred about four months before, in December.[136]
[136]T160
58 When cross-examined by Mr Stanley, Ms Balassone accepted that the deck area had been replaced before the incident, and that the surface had been “rubberised”.[137] Ms Balassone was not aware of the system of cleaning as it was not her area of responsibility.[138]
[137]T170
[138]T172
59 Ms Balassone agreed that in her previous employment with a Commonwealth Government Agency, she was occupational health and safety manager and adviser.[139] She agreed that she had not made any written complaints to the YMCA about slips she had observed at the pool.[140]
[139]T173-T174
[140]T174
60 Taken to the WorkCover Claim Form that Ms Balassone completed regarding the incident,[141] Ms Balassone agreed that she filled in the form to the best of her ability, accurately and truthfully.[142] The form asked a number of questions, which Ms Balassone answered:
[141]Exhibit 1
[142]T196-T197
Q:“Then No.17 you were asked, ‘What were you doing just before the injury occurred?’ and you said, ‘Assessing children’s progress in the pool,’ is that correct?---
A:Yes.
Q:Then No.18 asks you, ‘What happened unexpectedly?’ and it asks you to include any equipment or process or chemical involved, et cetera. So it’s asking you, ‘What happened unexpectedly?’ What’s your answer?---
A:‘Foot slipped off pool decking. Foot became trapped between side of pool and handrail, fell face first into pool.’”[143]
[143]T198
61 The DVD then shows a tense moment and a number of pauses, which I shall indicate in the passage that immediately follows the previous extract:
MR STANLEY:
Q:“Is that correct? [pause – no response] Is that correct? [pause – no response] It is correct, isn’t it?---
A:Well, I don’t - - -
Q:It is correct, isn’t it?”
MR HORE-LACY:
Q:“Just a moment, the witness shouldn’t be - - -.”
MR STANLEY:
Q:“Can you answer the question?---
A:I can’t recall.
Q:You can’t recall - - -?---
A:Precisely that exact detail.
Q:You can’t recall just how it happened, can you?---
A:I know that I slipped.
Q:What you slipped on you don’t know, do you?---
A:No, and I’ve said that.
Q:Here you have told the authorities responsible for receiving your claim form that - not that you had slipped on the pool decking, but that you slipped off the pool decking, didn’t you?---
A:Yes.
Q:And that, I suggest to you, is exactly what happened: you slipped off the pool decking, didn’t you?---
A:My recollection is that I slipped and fell face forward into the pool, into the water. That is my recollection.
Q:What I’m suggesting to you is you slipped not on the pool decking as such, but on the tile at the very edge?---
A:Well I don’t agree with that and I haven’t said that. I haven’t said that I’ve slipped on a tile.
Q:You haven’t said you slipped on the decking either?---
A:Pool decking.
Q:You said you slipped off - - -?---
A:Pool decking.
Q:The pool decking?---
A:OK.
Q:Not on it?---
A:OK.
[Emphasis given by Mr Stanley when asking the questions to identify the inconsistency as evident in the DVD recording]
Q:…. What I suggest to you is what happened here was that you, whilst looking at the child you were assessing, in effect took one step too many and what happened then was your foot slipped on the very edge of the tile and that’s how it slipped down between the edge of the pool and the handrail. Isn’t that the case?---
A:I disagree.
Q:In what respects do you disagree?---
A:Well, I believe[144] I slipped on the pool decking, fell face forward into the pool. In the process of that at some point my foot became trapped. And, again, I’ve said that all I can recall is a sensation of a grab and I ended up face down. It was a very quick instance and I was in a lot of shock and panic, being face down underwater and not being able to recover.
Q:… Can we just turn over the page to question 21. It asks, ‘What happened that caused or contributed to your injury or condition?’ and you were asked then to include information about any objects, people or chemicals or stress factors, et cetera, that may have contributed to your injury. And all you’ve done is put a dash?---
A:That’s correct.
Q:No mention there of a slippery pool deck. No mention there of any slime, green or black, is there?---
A:No.”[145]
[144]I later find that Ms Balassone does not know why she slipped. Her belief, unsupported by objective evidence, will carry little weight given other circumstances identified later in these Reasons.
[145]T198-T200
62 Mr Stanley drew attention to other details about the incident that Ms Balassone was unable to recall, including whether she was holding a clipboard at the time she was assessing the young girl.[146] She agreed that she was walking “very, very slowly” as she watched the girl in the water.[147] The DVD shows Mr Stanley demonstrating a slow, walking pace, which Ms Balassone agreed “perhaps” matched her pace at the relevant time:
[146]T215
[147]T215
MR STANLEY:
[At about 11.27am-time-stamp on the DVD]
Q:What, I’ll give a demonstration - about this sort of pace?---
A:Perhaps. It - she was moving slowly, I was looking at her in the water.
Q:But just to be sure, to be fair – I’m walking like this?---
A:I was walking - - -
Q:- - - watching the girl, about that pace?---
A:I was walking slowly. I - I can’t - I can’t say.
Q:Well, you’ve described it as very slowly?---
A:I was walking very slowly.
…
Q:Can you explain to the jury how you could slip and fall forward, walking at that pace?---
A:No.”[148]
[148]T215
63 Ms Balassone agreed that she was not watching where she was going just before she fell into the pool:
A:“ ---I was watching the child in the water, yes.”
MR STANLEY:
Q:“And you weren’t watching precisely where you were going, were you?---
A:No, I was watching the child in the water.”[149]
[149]T217
64 The YMCA’s Incident Report Form was tendered, but Ms Balassone did not adopt the version of events contained in it.[150] I should add here that since there were no eye witnesses to the incident whose statements might otherwise have formed part of the incident report, I place no weight on it.[151]
[150]T216-T 217
[151]Exhibit 10
65 Ms Balassone was asked about the frequency of her walks along the pool edge in the period of her employment, and her familiarity with problem areas:
MR STANLEY:
Q:“Ms Balassone, you, I take it, must have walked up and down the edge of this pool over the five years or so you were working there as a teacher on many, many, many occasions?---
A:Yes.
Q:Hundreds or thousands even?---
A:I would not have said that many but I had walked that pool deck a number of times, yes.
Q:Indeed, on the day in question, you’d been working on the pool deck since you started work?---
A:Yes.
Q:What time did you start work that morning?---
A:I think it was nine a.m., I think.
Q:So you’d been about three-quarters of an hour or so on the job before the incident happened?---Yes.
A:In general, your use of that area of the pool would be to assess and/or teach students, is that so?---
Q:At different times over the four years, yes.
Q:And over the whole of that time, you’d never had any problem with the end of the pool where this accident happened on this occasion?---
A:No.”[152]
[152]T220
66 When cross-examined by Mr Blanden, Ms Balassone confirmed that there were parts of the incident about which she could not be specific:
MR BLANDEN:
Q:“Insofar as the circumstances of the accident were concerned, as I understand what you’ve said to them, you fall face first into the water and it’s in the process of falling that you feel a tug or a strain on your right leg, is that correct?---
A:A tug, yes, a sensation of a tug, a grab, something.
Q:A sensation, what, that your foot was caught somehow or your foot wasn’t moving?---
A:Yes.
Q:And are you able to indicate to the members of the jury whether you were in the water when that sensation occurred or not?---
A:No. It happened at some point when I fell and I recognised that my foot was stuck and not able to be moved once I was in the water.
…
Q:Now, if your foot was closer down towards the water [than as depicted in photograph 11] when it became caught, that would suggest wouldn’t it that you were either just about to enter the water in a sort of pancake fashion, or entering the water in that
fashion?---A:I think so.
Q:So the relevance of the rail and your getting caught in the rail comes after your fall, in a sense?---
A:Yes.
Q:Just so we’re sort of clear of the sequence, you have a fall, however it occurs?---
A:Yes.
Q:You have a fall and it’s, as it were, at the last part of that fall just before you hit the water that your foot becomes caught in the rail? As far as you’re aware?---
A:Well, I know that my foot was caught in the rail. I don’t know where it was caught and I don’t know at what point it was caught. I just know it was caught.
Q:Right?---
A:And I can’t tell you how, where it happened.
Q:Right?---
A:Or when it happened.
…
Q:And in the sense of you feeling a tug or a restraint on your foot, you agree that you’ve already fallen when that happens and it happens somewhere between you heading towards the water and going into the water?---
A:I believe that’s - I - as I said, it was a very quick fall and I can’t be absolutely certain of every single detail of where my foot got caught, at what point it got caught in the fall. I can’t say. I just know that I fell, I was face first down and my foot was caught.”[153]
[153]T223-T225
67 Ms Balassone then confirmed that immediately prior to her fall, as she walked slowly along the decking, her body turned partly in the direction of the student, her concentration was focused on the girl. She was unable to specify whether her steps were of equal length and whether she favoured her right or left foot as she approached the steps.[154]
[154]T223-T227
68 Mr Blanden then took Ms Balassone to her sworn Answers to Interrogatories:[155]
[155]Exhibit 3
MR BLANDEN:
Q:“So have you got question 11?---
A:Yes, I have.
Q:And it asks you this: ‘(a) shortly (b) immediately before the incident did you look to see whether or not it was safe to walk on the pool deck where the incident occurred?’ And if we turn to your answer to that question we’ll see that you’ve said, ‘(a) shortly before the incident did you look to see whether or not it was safe to walk on the pool deck?’ You’ve answered, ‘Yes’?---
A:That’s correct.
Q:And in response to ‘(b) immediately before the incident did you look to see whether or not it was safe to walk on the pool deck where the incident occurred?’ you’ve answered, ‘No’?---
A:That’s correct.
Q:Then question 12 asks you this: ‘If yes to any part of the preceding interrogatory, did you observe the edge of the pool deck immediately prior to the accident?’ Do you see that?---
A:Yes.
Q:And your answer - if you can go to that - is: ‘Yes, I was aware of the edge of the pool deck immediately prior to the incident from my peripheral vision.’?---
Conclusion
90 I am unable to say what caused Ms Balassone’s initial slip or fall that triggered her inevitable landing in the pool.
The YMCA’s negligence
91 I have referred to and accept the concession made by the YMCA that its negligence was constituted by its failure to identify the hazard posed by the handrail and consequently, its failure to respond to that risk. This failure resulted in an unsafe place of work. Shortly after the incident, it installed a temporary barrier until a more permanent solution could be established by the Council.
Are any other particulars of the breach of duty owed as employer established?
92 I shall deal with the particulars of negligence against the YMCA alleged in Ms Balassone’s Amended Statement of Claim:[176]
[176]Paragraph 11
“(a) Failing to provide a safe system of work.
(b)Failing to provide a safe place in which to work.
(c)Failing to provide safe plant and equipment.
(d)Failing to take reasonable care for the safety of the Plaintiff in all the circumstances.
(e)Failing to inspect the premises and ascertain the safety of the premises.
(f)Failing to identify the risk of injury posed by the premises to the Plaintiff.
(g)Failing to notice that the surface of the pool deck was slippery and posed a slipping hazard.
(h)Allowing or requiring the Plaintiff to work from the pool deck when it knew or ought to have known that there was a risk of slipping.
(i)Failing to identify the risk of the Plaintiff trapping her foot in the hand rail if she slipped from the pool deck.
(j)Failing to provide a safety rail to prevent the Plaintiff from slipping over the edge of the pool deck and trapping her foot in the hand rail.
[There is no (k)]
(l)Failing to warn the Plaintiff of the risk of trapping her foot in the hand rail if she slipped over the edge of the pool deck.
(m)Failing to heed warnings given by the Plaintiff of the dangerous nature of the pool deck.
(n)Failing to heed information given by the Plaintiff concerning prior incidents of slipping on the pool deck.”
93 Dealing with particulars (b), (d), (f), (i) and (j), which concern the failure to identify the risk posed by the hazard of the handrail and the failure to address it, for reasons previously explained, these particulars are established.
94 Dealing with (c), this is not relevant. There is no suggestion on the evidence that any plant or equipment is implicated in Ms Balassone’s fall.
95 Turning to particulars (a), (e), (g) and (h), all of which concern the system of work, including cleaning and maintenance, because I am unable to say what triggered Ms Balassone’s fall into the pool, any alleged breach of duty constituted by a failure to maintain the pool surrounds free from algae, slime or water cannot be causally related to Ms Balassone’s damage.
96 Particular (l), concerns a failure to warn. There was no evidence that the YMCA failed to warn Ms Balassone of the danger referred to. I can safely infer however that, because the YMCA did not appreciate the danger, it failed to warn Ms Balassone of it. However, Ms Balassone did not testify that she would have acted any differently had she been appropriately warned.
97 Regarding particulars (m) and (n), I am not satisfied that at the point where Ms Balassone lost her footing, the decking was dangerous or tainted by any slippery substance. This particular is not established.
The Council’s negligence
98 I have referred to and accept the concession made by the Council that its negligence was constituted by its failure to identify the hazard posed by the handrail and consequently, its failure to respond to that risk. This failure resulted in an unsafe premises intended to be accessed by members of the public and employees of the YMCA. Shortly after the incident, it installed a permanent barrier to reduce the risk of a like episode.
Are any other particulars of the breach of duty owed as occupier established?
99 I shall deal with the particulars of negligence against the Council alleged in Ms Balassone’s Amended Statement of Claim:[177]
[177]Paragraph 14
“(a) Failing to take reasonable care for the safety of the Plaintiff in all the circumstances.
(b)Failing to inspect the premises and ascertain the safety of the premises.
(c)Failing to identify the risk of injury posed by the premises to the Plaintiff.
(d)Failing to notice that the surface of the pool deck was slippery and posed a slipping hazard.
(e)Allowing or requiring the Plaintiff to work from the pool deck when it knew or ought to have known that there was a risk of slipping.
(f)Failing to identify the risk of the Plaintiff trapping her foot in the hand rail if she slipped from the pool deck.
(g)Failing to provide a safety rail to prevent the Plaintiff from slipping over the edge of the pool deck and trapping her foot in the hand rail.
(h)Failing to warn the Plaintiff of the risk of trapping her foot in the hand rail if she slipped over the edge of the pool deck.
(i)Failing to heed warnings given by the Plaintiff of the dangerous nature of the pool deck.
(j)Failing to heed information given by the Plaintiff concerning prior incidents of slipping on the pool deck.”
100 Dealing first with particulars (a), (c), (f) and (g) which concern the failure to identify the risk posed by the hazard of the handrail and the failure to address it, for reasons previously explained, these particulars are established.
101 Turning to particular (b), the uncontested evidence was that the Council regularly inspected the premises and moreover, it maintained a healthy interest in the safety of the premises. The particular is not established.
102 Regarding particulars (d) and (e), I am not satisfied that the surface of the pool deck was dangerous in the area where Ms Balassone lost her footing or that any slippery substance was either present there or was implicated in her fall.
103 Regarding particular (h), there was no evidence that the Council failed to warn Ms Balassone of the danger referred to. I can safely infer however that, because the Council did not appreciate the danger, it failed to warn Ms Balassone, or persons likely to access the pool, of it. However, Ms Balassone did not testify that she would have acted any differently had she been appropriately warned.
104 Finally, regarding particulars (i) and (j), I am not satisfied that at the point where Ms Balassone lost her footing, the decking was dangerous or its slip resistance impoverished by any slippery substance. This particular is not established.
Analysis – Contribution Proceedings
What is the negligence of each defendant?
105 I have found that both defendants breached the duty of care owed to Ms Balassone in a similar manner. Both failed to identify the foreseeable risk of injury that the structure of the handrail posed and consequently, both failed to respond to the risk.
Is the Council’s delegation of day-to-day running of the facility relevant?
106 There is no dispute that, at least in part, the Council delegated some of its responsibility for running and maintaining the facility to the YMCA.[178] But the Council also maintained concurrent obligations regarding the maintenance and safety of the premises.[179] However, as it has not been established that any failure to maintain the decking free from algae, slime or other slippery substances is implicated in Ms Balassone’s fall, it cannot count in the apportionment of blame for Ms Balassone’s damage.
[178]See summary of evidence above under heading “B.4 Delegation of the Council’s duty and the apportionment of responsibility between the Council and the YMCA”
[179]See particularly exhibit 9
107 The parties agree that the Council did not delegate responsibility for the structure of the handrail.[180]
[180]This concession was made before the Court of Appeal, and reiterated before me. See for example Council submissions, exhibit Council 1, paragraph 10.
In what proportions should the defendants share in the responsibility for Ms Balassone’s damage?
108 Mr Blanden submitted that as employer, the YMCA should bear the majority of blame in the responsibility for Ms Balassone’s damage. He argued that the duty owed as employer is more onerous than the duty owed as occupier and, accordingly, more weight should attach to it.[181]
[181]Council submissions, exhibit Council 1, paragraph 11
109 I agree with Mr Stanley that the real issue is not whose duty was more onerous – it is the conduct of each defendant and the causal potency of that conduct in relation to the circumstances of Ms Balassone’s damage that must be compared.[182]
[182]YMCA submissions, exhibit YMCA, paragraphs 35-36
110 In my judgment, the defendants should bear equal responsibility for Ms Balassone’s damage for the following reasons:
(1) As previously mentioned, the conduct of both defendants fell short of the standard of care to be expected of them. They both failed to appreciate the danger that the handrail posed, and each consequently failed to respond to the foreseeable risk of injury.
(2) The Council had no less experience in running this facility than the YMCA. The Council built the facility in approximately 1980 and ran it well before the YMCA ever became involved. When the Council ran the facility, it did so in its own right, employing its own staff or contractors. It had done so for approximately sixteen years.[183] Even after the YMCA’s tender to take over the running and management of the facility was accepted, the Council retained responsibility for structural matters and for some matters of safety. For approximately 25 years, the Council had either sole or joint control of the facility. For all that time, it maintained responsibility for structural matters. In those 25 years, the Council failed to appreciate the very risk that eventuated, which caused Ms Balassone’s damage. Notwithstanding the contractual relationship it had with the YMCA, the Council maintained important controls over the facility, which it exercised. In other words, it was not oblivious to the activities conducted in the facility, and it did not remove itself from its responsibility as owner and occupier. To the contrary, it took a “hands-on” approach, consistent with its contractual and legal obligations. In this regard, I repeat and adopt paragraphs [24] to [29] under the heading “B.4 Delegation of the Council’s duty and the apportionment of responsibility between the Council and the YMCA” referred to above.
[183]TT189, per Mr Stanley QC, without demur
(3) Mr Blanden submitted that the Council was no expert in running swimming pools and that it relied on the YMCA’s greater expertise in this regard. In particular, he argued that the Council relied upon the YMCA to identify risks such as this. I reject the submissions because:
(a) This does not answer the Council’s failure to appreciate the risk in the sixteen years before the YMCA was involved in running and managing the facility, during which time it had sole responsibility for the state of the premises including the handrail;
(b) Mr Blanden did not identify any direct evidence (either viva voce or documentary) to the effect that the Council “relied on the YMCA’s expertise or advice” in this regard.[184] Nor did he point to any contractual term that imposed this responsibility on the YMCA. Rather, he invited me to “assume” (and I am prepared to do so) that if the YMCA had asked the Council to remediate the danger that the handrail posed, it would likely have done so. But this does not excuse or reduce the Council’s responsibility to identify and address the risk for itself;
[184]In paragraph 11(b)(v) and footnotes 34 and 35 of exhibit Council 1, Mr Blanden effectively invites me to draw such an inference.
(c) In any event, such an assertion is inconsistent with the contractual and legal obligations that the Council retained, and more particularly, its non-delegated responsibility in relation to the structure of the handrail;
(d) The Council conducted safety audits and inspections of the facility independent of the YMCA, and to this extent, the YMCA cannot be blamed for failures arising from those audits or inspections;
(4) The YMCA had concurrent responsibility to identify the foreseeable risk of injury that the handrail posed. But the YMCA had no authority to make any permanent alterations to its structure without first obtaining the Council’s approval and consent. Only the Council could make the ultimate decision about structural alterations. The YMCA was first to act, consistent with the fact it was “on the spot” and in a position to do so. Its first response was to arrange a temporary barrier to prevent recurrence of like or similar accidents. After this, the Council installed a permanent fixture comprising an additional rail outside the pool, as depicted in the photographs included in exhibit A, and more particularly described in the evidence of Mr Lightfoot.[185]
[185]T302
111 I have examined all of the relevant circumstances identified above.[186] I have accounted for all of the conduct I consider to be relevant that constituted the negligence of each defendant. I have compared the respective degrees of culpability of each defendant and the importance of their respective acts and omissions in causing Ms Balassone’s damage. Howsoever the duty of care of each defendant arose, I consider it to be just and equitable that the amount of the contribution recoverable from each of them be equal.
[186]I have also taken account of the VWA’s submissions and the evidence referred to therein regarding the respective breaches of duty of the defendants, exhibit VWA 1
Orders proposed
112 Since both defendants are equally responsible for the damage caused to Ms Balassone, under s24 of the Wrongs Act, I propose to order that they each contribute in equal proportions to the judgment entered in her favour. I will hear counsel on the precise form of the order.
The indemnity proceedings under Section 138 of the Act
Causation
113 I have earlier set out s51 and 52 of the Wrongs Act 1958, and have referred to the relevant authorities.
114 I reject Mr Blanden’s construction of s51. His argument that if there are two equally open causes of injury, loss and damage, the burden of proving causation cannot be discharged, is contrary to the authority upon which he relied. Specifically, in Powney,[187] the Court of Appeal cited[188] the observations of the High Court in Strong:[189]
“… [T]here may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant’s negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(a). In such a case, the defendant’s conduct may be described as contributing to the occurrence of the harm.”
(my emphasis)
[187]Supra
[188]At paragraph [75] of the Judgment
[189]Supra
115 Moreover, Mr Blanden’s construction would render nugatory the provisions that entitle contribution proceedings to be brought under Part IV of the Wrongs Act. Inherent in such proceedings is the assumption that two or more tortfeasors may be responsible in unequal shares for a person’s damage. It would be nonsensical that on the one hand, the law would enable proceedings to be brought to recover contribution from a tortfeasor an amount reflecting that person’s share in the responsibility for the damage, yet on the other, foredoom the proceedings to fail because that tortfeasor’s share in the responsibility is not exclusive or more than fifty per cent. Had parliament intended such a consequence, it would have expressly stated that contribution proceedings may only succeed against a tortfeasor whose share in the responsibility for the damage is exclusive or greater than fifty per cent.
116 The relevant causation question to be posed in the circumstances of this case is whether the Council’s negligence was a necessary condition of the occurrence of the harm. To adopt Mr Blanden’s construction would require words to be read into s51:
“51(1)(a) that the negligence was
a[substitute: the only] necessary condition of the occurrence of the harm.”
I find no justification to read in or substitute words in the statute.
117 Turning to whether the element of causation is established, based on, and adopting my findings of fact in the contribution proceedings, had the Council identified and addressed the risk of injury that the handrail posed, Ms Balassone’s damage would not likely have occurred. Accordingly, the “but for” test required in factual causation is satisfied.
Factor X
118 As agreed by the parties, Factor X shall reflect the apportionment of responsibility of the Council in the contribution proceedings. Accordingly, I propose to declare Factor X as 50% (fifty per cent).
Factor A
119 The parties have agreed Factor A is $350,000.00 (three hundred and fifty thousand dollars).
Factor C
120 Factor C is to be reckoned in accordance with the apportionment finding made in the contribution proceedings in respect of the jury verdict of $250,000.00 (two hundred and fifty thousand dollars) reduced to $240,810.00 (two hundred and forty thousand eight hundred and ten dollars).
Conclusion
121 I am satisfied that the elements of s138 of the Act are met.
Orders
122 I propose to order that the Council indemnify the VWA in accordance with s138 of the Act. I shall hear the parties about the final form of the order.
Consequential orders
123 I will hear the parties on the question of costs and on any other consequential orders that may be necessary.
124 Following discussions with counsel as to the form of the orders, the following Orders and declarations were made:
Case No. CI-11-00550
(Contribution proceedings under Section 24 of the Wrongs Act 1958)
MICHELLE BALASSONE Plaintiff v VICTORIAN YMCA COMMUNITY PROGRAMMING PTY LTD
(ACN 092 818 445)First Defendant and NILLUMBIK SHIRE COUNCIL Second Defendant
ORDER
1Order that each defendant contribute in equal proportions to the judgment sum of $240,810.00 entered in Ms Balassone’s favour.
2Costs argument adjourned until 10.30am on 24 June 2015.
AND THE COURT NOTES: that an order is to be made that the Council pay the YMCA’s costs of today thrown away by reason of the adjournment.
Case No. CI-10-05394
(Indemnity proceedings under Section 138 of the Accident Compensation Act 1985)
VICTORIAN WORKCOVER AUTHORITY Plaintiff v NILLUMBIK SHIRE COUNCIL Defendant
ORDER
1Judgment entered for the plaintiff.
2The defendant pay to the plaintiff the sum of $58,513.98, being the amount of compensation paid by it to date to Ms Michelle Balassone in respect of her injury sustained on 23 April 2005, together with interest of $27,084,32.
DECLARATION
3Declare that the defendant is obliged to indemnify the plaintiff against any further payments of compensation payable and paid by it to Ms Balassone in respect of her injury sustained on 23 April 2005 up to a maximum of a further $56,283.52, being the amount calculated in accordance with s138 of the Accident Compensation Act 1985 with factor “A” declared as $350,000.00, factor “C” declared as $120,405.00 and factor “X” declared as 50 per cent.
FURTHER ORDER
4The defendant pay the plaintiff’s costs including any reserved costs and the costs of the proceeding before his Honour Judge Murphy up to and including 18 February 2011 on a party and party basis, and thereafter on an indemnity basis, to be assessed by the Costs Court in default of agreement.
5Reserve Liberty to apply.
6The Council’s Third Party claim is dismissed.
125 On 24 June 2015, following a contested costs application, the following Orders were made:
Case No. CI-11-00550
(Contribution proceedings under Section 24 of the Wrongs Act 1958)
MICHELLE BALASSONE Plaintiff v VICTORIAN YMCA COMMUNITY PROGRAMMING PTY LTD
(ACN 092 818 445)First Defendant and NILLUMBIK SHIRE COUNCIL Second Defendant ORDER
1 The defendants contribute equally to the plaintiff’s (Ms Balassone’s) party and party costs.
2 Subject to Order 3, the defendants each bear their own costs of the proceedings including the contribution proceedings.
3 The Council pay the YMCA’s costs of today (see Court Note above regarding the costs thrown away by reason of the adjournment of the costs application).
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