Black v The State of Western Australia - [2022] WADC 92

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   BLACK -v- THE STATE OF WESTERN AUSTRALIA [2022] WADC 92
CORAM:   SHARP DCJ
HEARD:   19-22 & 26-29 APRIL 2022
DELIVERED          :   7 NOVEMBER 2022
FILE NO/S:   CIV 3665 of 2017
BETWEEN:   DANNY FRANCIS BLACK
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Torts - Negligence - Defendant involved in accident - Duty of care - Duty to warn - Obvious risk - Liability of owner - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA)
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA)
Occupiers' Liability Act 1985 (WA)

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff	:	Mr T H Offer
Defendant	:	Ms H M Cormann

Solicitors:

Plaintiff	:	Vertannes Georgiou
Defendant	:	Moray & Agnew

Case(s) referred to in decision(s):

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217
Gregory Spencer Ward trading as Ward's Stock Transport v Watson [2021] WASCA 44
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
J-Corp Pty Ltd v Thompson [2019] WASCA 173
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Nikolich v Webb [2020] WASCA 169
Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330
Sakoua v Williams [2005] NSWCA 405; (2005) 64 NSWLR 588
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wyong Shire Council v Shirt (1980) 146 CLR 40

SHARP DCJ:

Factual background

The defendant, through its Department of Transport, is the owner and occupier of the Woodman Point boat ramps at Jervoise Bay Cove in Coogee (Woodman Point boat ramps).
In the morning of 25 February 2015 at his home in Maddington, the plaintiff attached his trailer and boat to the back of his motor vehicle and drove to the Woodman Point boat ramps. His purpose was to launch his boat and go fishing in the ocean around Garden Island.
The Woodman Point boat ramps at that time comprised in total eight boat ramps, four on the eastern side of Woodman Point and four on the western side. Each ramp includes what the parties refer to as a 'finger jetty'. The four eastern ramps are considerably newer than the four western ramps. The four eastern ramps include handrails in certain areas, together with warning signs painted on the concrete. The older, western, ramps do not have any handrails or warning signs.
The plaintiff's evidence was that, upon arrival at the Woodman Point boat ramps, he observed that all four of the eastern ramps were being utilised and so he elected to use one of the ramps in the western section.
This is a photograph of two of the western ramps, taken in June 2015. The ramp on the left side is the ramp which the plaintiff chose to use on 15 February 2015. This photograph is at page 9 of exhibit 10.

Below is a closer photograph of that ramp, taken by the plaintiff a few weeks before the trial. It is part of exhibit 1 and is photograph A3. The parties agree that the layout of the ramp has not changed in any significant way since 25 February 2015. From the perspective of the camera, that is looking down towards the water, the ramp itself is on the right of the photograph with the plaintiff's vehicle parked on it. What the parties refer to as the 'concrete apron', is the strip of concrete which can be seen running parallel to and on the left side of the ramp. What the parties refer to as the 'concrete abutment' runs beside and to the left of the concrete apron on the photograph. The start of the relevant 'finger jetty' can be seen at the top left‑hand side of the photograph. I will use the same terminology in these reasons.

The plaintiff gave evidence that he reversed his trailer and boat down his selected ramp to the point where the back wheels of the trailer were level with the water line. He got out of his vehicle, walked down the side of his vehicle along the concrete apron beside the ramp to the trailer and took a line from the bow rail of his boat. He then walked back up the concrete apron to a point where he could step up onto the concrete abutment. He moved along the top of the concrete abutment and along the adjoining finger jetty, where he secured the line from his boat to a post on the finger jetty to prevent the boat from floating away after launching. Having done so, he turned around and started to retrace his steps, with the intention of unhitching the safety chain from the boat to allow the boat to slide off the trailer and into the water. The plaintiff walked back along the finger jetty and then along the concrete abutment to the point near to or where he had just previously stepped up from the concrete apron, where he stepped back down onto the concrete apron. As he stepped down, his right foot slipped from under him, and he fell heavily onto the ramp.

Findings of fact

I do not understand any of the facts set out above to be contested by either of the parties. I accept the plaintiff's evidence in regard to those facts and I make those findings of fact.

The plaintiff's injuries

The plaintiff claims that as a result of his accident he sustained a significant injury to his lumbar spine, together with bruising and abrasions.
The plaintiff attended the Armadale Hospital Emergency Department at 9.48 am on 25 February 2015. Hospital records (exhibit 6) note that the plaintiff underwent a spinal CT scan which demonstrated an isolated anterosuperior L1 vertebrae fracture with 25% loss of anterior vertebrae body height, and left L4/5 broad‑based foraminal disc protrusion with mild left L4/5 foraminal narrowing, but no significant nerve root compression.
The plaintiff was then transferred to Royal Perth Hospital under the care of a consultant, Dr Peter Woodland, where his fracture was managed conservatively. He spent three nights in Royal Perth Hospital before he was discharged.
Dr Yee-Shing Kan, the plaintiff's then and current general practitioner, reports (exhibit 3) that by August 2015, it was noted by Royal Perth Hospital's Outpatient Clinic that the plaintiff no longer had any midline back tenderness throughout his thoracic, lumbar or sacral spine. There was also no paravertebral tenderness. Dr Kan's report goes on to note that the hospital further considered that the plaintiff has an 'excellent' range of forward flexion, and lateral flexion on both sides.
X‑rays in August 2015 showed the plaintiff's L1 wedge fracture to have healed in a satisfactory position. Based on examination and serial X‑rays, including X‑rays in August 2015, neither Royal Perth Hospital nor Dr Kan saw any reason for further imaging or further specialist involvement.

The plaintiff's case

The plaintiff is suing the defendant as the owner of the Woodman Point boat ramps who he says owed him a duty of care at common law and under statute as occupiers. The plaintiff says that the defendant breached those duties and caused him injury.
The plaintiff alleges either negligence or breach of statutory duty or both on the part of the defendant. The statutory duty is alleged to arise from s 5(1) of the Occupiers' Liability Act 1985 (WA) (OL Act). The plaintiff says, however, that there is no relevant distinction between the duties owed at common law and those flowing from the operation of the OL Act and confined his case at trial to the negligence claim.
The plaintiff alleges that the defendant, in respect of the western ramps:
(a)failed or neglected or both to construct a handrail or guardrail on the sides of the concrete abutment;
(b)constructed the concrete apron with an angle of cross slope which exceeded three degrees or carried out maintenance or repairs to the concrete apron which resulted in an angle of cross slope which exceeded three degrees;
(c)designed and constructed the concrete apron with a smooth finish;
(d)failed to have non-slip grooves moulded into the surface of the concrete apron;
(e)failed to install non-slip matting or other like devices on the surface of the concrete apron;
(f)failed to have a waffle pattern moulded into the concrete surface of the concrete apron;
(g)failed or neglected or both to erect warning signs at the start of the concrete abutment to warn users of the boat ramp that there was an unusual risk of slipping by reason of the design and construction of the boat ramp and the slipperiness of the concrete apron;
(h)failed to provide signs that members of the public walking onto the concrete abutment should not step down onto the concrete apron or walk on it;
(i)failed to replace the 'previously installed' kerbs on the boat ramp, which would have limited the extent of the plaintiff's slip and prevented his subsequent fall; and
(j)failed to carry out any or any adequate risk assessment to identify potential risks which could cause injury to users of the boat ramp, including, amongst other things, the risk of slipping and as a consequence failed to identify and remedy the deficiencies referred to.
The plaintiff acknowledges that boat ramps by their nature tend to be slippery and he does not challenge the presence of a risk of slipping and sustaining injury. What the plaintiff considers to be the area of contention between the parties is what a reasonable person would have done in response to a recognisable risk and the adequacy of the defendant's response to that risk.
The plaintiff contends that cost was not a consideration for the defendant, given that the cost does not appear to have prevented the Department of Transport implementing improvements at the newer, eastern, facilities at Woodman Point.
The plaintiff says that the western Woodman Point boat ramps are not fit for purpose in terms of their safety. While the plaintiff concedes that those facilities likely adhere to the relevant Australian Standards, the plaintiff says that the Australian Standards are minimum standards and they do not alleviate the need for the defendant to analyse the risk and to take steps that an ordinary person would deem reasonable in all of the circumstances.
The plaintiff, in response to the defendant's assertion that the facilities are regularly inspected, suggests that the appropriate steps would have been to undertake a long‑term risk assessment to make sure that the facilities were in a safe and proper state and for the defendant to continue to monitor ongoing developments in terms of safety.
The plaintiff raises a further issue, namely the presence of a cross slope to the concrete apron. The plaintiff accepts that of course boat ramps slope down towards the water. However, the plaintiff says, it appears that at some stage, either during construction or following repairs over the years, a cross slope running parallel to the shore has been introduced to this boat ramp. The result is that the concrete apron does not run horizontally but in fact has a slope of about five degrees, which the plaintiff submits is not insubstantial.
In terms of damages, in the years leading up to the accident, the plaintiff says that he was earning in the vicinity of $90,000 per year. However, since 2017, the plaintiff has been unemployed and, the plaintiff says, unemployable because of his injuries.
The plaintiff says that in addition to his physical injuries he also is suffering from mental health issues as a result of the accident.

The defence

The defendant accepts that, as the owner of the Woodman Point boat ramps, it owes a duty of care to the users of the Woodman Point boat ramps to prevent foreseeable risks of harm to those users. The defendant further accepts that the nature of the risk, namely a person slipping and falling, is also not in issue: ts 430.
The defendant says that it was reasonably foreseeable that the plaintiff could suffer injury when using the Woodman Point boat ramps and that it is obliged to take reasonable steps to protect members of the public. However, the defendant denies that it was negligent and says that it took all reasonable steps to discharge its duty of care. The defendant says that therefore the question becomes 'What are those reasonable steps?': ts 432.
The defendant says that the steps which it took to discharge its duty included the design and construction of the Woodman Point boat ramps in accordance with relevant Australian Standards and Guidelines, the engagement of a maintenance contractor and regular blast down and cleaning of the Woodman Point boat ramps, including one such blast and clean one month prior to the plaintiff's accident.
The defendant says that if however it is found that it was negligent, then any injury sustained by the plaintiff was caused by his own negligence and that he failed to avoid an 'obvious risk' and take care for his own safety. The defendant says that the plaintiff adopted unsafe practices when using the Woodman Point boat ramps.
In terms of damages, the defendant says that the plaintiff's spinal fracture sustained on 25 February 2015 was conservatively managed, had healed and was no longer symptomatic by August 2015, at which time the defendant says that the plaintiff was capable of resuming his normal activities. The defendant says that the plaintiff does not suffer any ongoing injury, disability or incapacity as a result of his accident at the Woodman Point boat ramps.
The defendant considers that the issues for determination are as follows:
1.What is the scope and content of the duty owed by the defendant to the plaintiff?
2.What is the relevant risk of harm for the purposes of s 5B of the Civil Liability Act 2002 (WA) (CL Act) and was the risk of harm foreseeable and not insignificant?
3.Did the defendant breach its duty by reason of any of the following:
(a)failure to install handrails or guardrails on the concrete abutment;
(b)failure to construct or maintain the concrete apron with non‑slip grooves or waffle pattern, or to install a non‑slip mat;
(c)constructing the concrete apron with a 'smooth finish';
(d)constructing or maintaining the concrete apron at a cross slope when the height level between the concrete abutment and the concrete apron was more than 300 mm;
(e)failure to install warning signs to warn of an alleged 'unusual' slip risk, or to warn not to step down from the concrete abutment onto the concrete apron, or to walk on the apron;
(f)failure to complete a risk assessment to identify potential risks of injury to users;
(g)failure to construct kerbs next to the concrete apron.
4.If the defendant did breach its duty, did this cause the plaintiff to suffer injury, loss or damage?
5.If so, what is the injury, loss or damage suffered and caused by the defendant's negligence?
6.Was the plaintiff guilty of failing to take reasonable care for his own safety and, if so, to what extent and in what respects did the plaintiff so fail?
7.If the defendant was negligent and the negligence was the cause of the plaintiff's injury, loss and damage, what is the quantum of the loss recoverable by the plaintiff?

Statutory scheme

Section 5B of the CL Act provides:
5BGeneral principles
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
Section 5C and s 5D deal with causation and provide:
5CGeneral principles
(1)A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements -
(a)that the fault was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the tortfeasor'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 a fault 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)
(a)whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and
(b)whether and why the harm should be left to lie where it fell.
(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 tortfeasor had not been at fault -
(a)subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and
(b)evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.
(4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor.
5DOnus of proof
In determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
Part 1A div 4 of the CL Act is headed 'Recreational activities'. It includes at s 5E a definition of 'obvious risk' by reference to s 5F, which in turn provides that, for the purposes of div 4:

(1)… an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2)Obvious risks include risks that are patent or a matter of common knowledge.
(3)A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4)A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

Part 1A div 6 of the CL Act, is headed 'Division 6 - Assumption of risk' Section 5M, s 5N and s 5O are contained in that part and relevantly provide:
5MTerm used: obvious risk
In this Division -
obvious risk has the meaning given by section 5E.
5NInjured person presumed to be aware of obvious risk
(1)In determining liability for damages for harm caused by the fault of a person, the person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.
(2)For the purpose of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
5ONo duty to warn of obvious risk
(1)A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.
(Sections 5O(2) and 5O(3) do not apply).

Section 5K of the CL Act deals with contributory negligence and provides as follows:
5KStandard of contributory negligence
(1)The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2)For that purpose -
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time.
Section 5W of the CL Act deals with the responsibilities of a public authority and provides as follows:
5WPrinciples concerning resources, responsibilities etc. of public body or officer
The following principles apply in determining whether a public body or officer has a duty of care or has breached a duty of care in proceedings in relation to a claim to which this Part applies -
(a)the functions required to be exercised by the public body or officer are limited by the financial and other resources that are reasonably available to the public body or officer for the purpose of exercising those functions;
(b)the general allocation of those resources by the public body or officer is not open to challenge;
(c)the functions required to be exercised by the public body or officer are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate);
(d)the public body or officer may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.
Section 4(1) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) (Contribution Act) provides as follows:
4Contributory negligence, court may reduce plaintiff's damages
(1)Whenever in any claim for damages founded on an allegation of negligence the court is satisfied that the defendant was guilty of an act of negligence conducing to the happening of the event which caused the damage then notwithstanding that the plaintiff had the last opportunity of avoiding or could by the exercise of reasonable care, have avoided the consequences of the defendant's act or might otherwise be held guilty of contributory negligence, the defendant shall not for that reason be entitled to judgment, but the court shall reduce the damages which would be recoverable by the plaintiff if the happening of the event which caused the damage had been solely due to the negligence of the defendant to such extent as the court thinks just in accordance with the degree of negligence attributable to the plaintiff.

The trial

The trial took place between 19 and 22 April and between 26 and 29 April 2022 for a duration of eight days.
At the trial, the plaintiff gave evidence and adduced evidence from two lay witnesses, Dr Yee-Shing (Cathy) Kan and Mr Kevin Ling. Expert evidence was adduced from Professor Timothy Robert Ackland, Dr Steven Chew, Professor Bryant Alan Rigby Stokes, Dr Steven Joseph Overmeire and Dr Jonathan Laugharne. The defendant adduced evidence from three lay witnesses, Mr Herman Reginald de Mello, Mr Aishwarya Anand Gunther Vay Patel and Mr Larry Brett Adams and two expert witnesses, Mr Luke Anthony Campbell and Mr George Chu Wei Wong.

The plaintiff's evidence

The plaintiff before the accident

The plaintiff was born on 9 April 1970 and at the time of the trial he was 52 years of age. He grew up in Rockingham. He says he struggled at school and left during Year 10. He took a series of short‑term jobs, predominantly involving the provision of his physical labour.
He has lived in the same rented property in Maddington for over 25 years. He lives there alone with his dog. He has never been married and he has no children. He has two brothers, a sister and a half‑sister.
When he was 20 or 21 years of age, the plaintiff started working as a roof carpenter, firstly as someone's employee and then later in his own business. Apart from the occasional diversion into air conditioning installation and pergola construction during quiet periods in the building and construction industry, the plaintiff continued to work as a roof carpenter up until the date of the accident, 25 February 2015. It was a job he enjoyed, 'there wasn't a dull moment, you know': ts 30.
He said he had to learn how to read a plan properly, how to perform the mathematical equations required to effectively cut the roof out and to learn how to deal with people. He said it took some time to do that and that it was mentally challenging.
He described himself as being very fit physically before the accident. In the course of his work as a roof carpenter, there was (ts 34):
[a]ll the different movements and exercise you'd have to do, all this different stretching, lifting in all different positions, because you're so there wasn't a muscle in your body that you didn't use, you know? Because then, you know, I'm walking on 25 degree pitch rooves, you know, with your feet that far apart, and balancing on two bits of wood that were 35 mil wide, you know? Or you're swinging a piece of baton around in the air, and a power saw on the other one, you know? So and you got five, six metre drop to the ground. So yeah, you became very good at balance and, you know? And you never fell. You never tripped.
Over time, he considers that he developed and maintained a good reputation in the building industry and his business grew. However, there came a downturn in the building industry, and he took on alternative work, including as previously mentioned installing air conditioners and some carpentry work. He managed financially, although he incurred traffic and other fines which necessitated borrowing money from his sister to pay them.
Eventually, when the building construction industry picked up again, the plaintiff's business returned, and he said he had as much work as he wanted. He said that he 'was in a position where [he] could do what [he] wanted when [he] wanted': ts 46. However, during the period leading up to 2015 he had become somewhat disillusioned with the industry. He said that builders were paying lower prices 'and there was nothing you could do about it': ts 48.
It is apparent that the plaintiff's understanding of his reporting obligations to the Australian Taxation Office (ATO) is at best rudimentary. In his words (ts 49):
[A]s far as the taxation and all that goes, the builder paid all that and then at the end of the year or the following year, you'd go in and collect the money cos you'd get a big tax cheque and we used to put that - or I used to put that money back into buying new tools or a ‑ or a motorbike or a boat or a - was a bit of a savings plan for me but there was - there were some - some years you - you'd race in and get ‑ do that tax return, you know, because it was - you needed the money but then once I figured out how to build rooves and how to do them properly and - and - and - and quickly and - I didn't need the money, you know, so I let it sit there and I thought I can come and get that one day and when - you know, when it builds up when I ‑ you know, I let it sit there, it's for a deposit for a house.
He confirmed that he knew that he had an obligation to pay income tax, but he stated that he did not know that he was required to submit tax returns every year. His approach appeared to be that he only submitted a return when he needed a tax refund.
At some point in time, he became aware that the ATO was expecting income tax returns from him for the years to 30 June 2013, 2014 and 2015 respectively. With the help of a tax accountant, Mr Ling of Visionary Accounting, those returns were prepared and submitted to the ATO.
Mr Ling gave evidence at the trial and I will refer to that shortly.
For each of those years, the plaintiff's taxable income was shown to be $102,451, $84,379 and $78,798 respectively.
The plaintiff then received a tax assessment from the ATO requiring payment of around $90,000, including interest and penalties. He was somewhat taken aback by this because he was expecting a tax refund of around $70,000.
He was unable to pay this money and as a result he was bankrupted in about 2017.
The plaintiff also gave evidence about his medical history prior to the accident. He said that prior to the accident he had never suffered any workplace accidents: ts 57. He had a minor motor vehicle accident at some time prior to this accident, between 2 - 10 years before (ts 57 ‑ ts 58). That accident resulted in a neck injury for which he received compensation for time off work. He suffers from indigestion and at some point in the past he had sinus problems. Other than those, he said there were no other issues that prevented him from working or caused him any long‑term issues: ts 59.
Recreationally, he liked riding his motorbike in the bush, going scuba diving and taking his boat out fishing.
The plaintiff's evidence about his circumstances prior to his accident is uncontroversial and uncontested. I accept all of that evidence.

The plaintiff's accident

On the day of the accident, 25 February 2015, the plaintiff, in the company of his dog, 'were going to go squidding' from his boat in an area of the ocean somewhere behind Garden Island: ts 60. He had owned this boat for about a year. He took it down to the Woodman Point boat ramps where he had launched it previously. There was no‑one with him other than his dog.
At the trial he identified 20 photographs of the Woodman Point boat ramps and of a boat ramp at Point Walter which he had taken during the month before the trial, which became collectively exhibit 1. He confirmed that photographs marked A1 to A15 inclusive were taken at the Woodman Point boat ramps and photographs marked A16 to A20 inclusive are of the boat ramps at Point Walter.
He agreed that there are two sets of boat ramps at the Woodman Point boat ramps, the eastern ramps and the western ramps. He elected to use one of the ramps at the western end, simply because he tries to 'stay away from people and use ones that are free': ts 61. He got there between about 6.00 am and 7.30 am: ts 62.
He could not recall whether he had ever used this particular ramp before.
He reversed his car, with the trailer and boat attached, down the ramp to the point where the back wheels of the trailer reached the edge of the water. He said that ordinarily there would have been a 'wheel guide' but the guide on this ramp was missing: ts 66. He said that he positioned the car and trailer that way so 'me boots stay dry. It's the perfect distance': ts 67. He repeated later, '[m]y main concern was keeping me boots dry I mean cos a $160 pair of boots, you don't get them wet': ts 69. He said his boots were near new steel capped work boots with rubber soles.
He put on the handbrake, left the car in gear, got out of the car and walked down the concrete apron to his trailer. He took the rope that was tied to the bow rail of the boat, walked back up the concrete apron and stepped up onto the concrete abutment. He then walked along the concrete abutment and onto the finger jetty. He hooked the rope over a post, and then started his return to the trailer with the intention of unhooking the boat, which would then roll off the trailer and into the water.
He walked back along the finger jetty and onto the concrete abutment. He then stepped down from the concrete abutment onto the concrete apron, or walkway as he called it ('I call it a walkway as it's what we walk on, you know': ts 68).
When asked how far along the concrete abutment he was before he stepped down, he said 'About where that yellow is': ts 68. By 'that yellow', he was making reference to exhibit 1 photograph A3, reproduced earlier in these reasons. He was asked 'So where the yellow starts?' He replied 'Yeah. That's about where I felt comfortable, you know? It's kind of like a normal step you'd have at work, you know?': ts 68. He thought the step-down distance 'was only around 400 [mm]. About the same sort of run as what's on me trestles at work, you know? It's something I was used to doing': ts 68.
The plaintiff slipped and fell onto the boat ramp.
As I will mention later, Professor Ackland says that the plaintiff told him that he stepped down approximately 53 cm onto the concrete apron. Later, the plaintiff told him it was approximately 31 cm. Apart from the plaintiff's evidence about the step‑down distance, I will accept what the plaintiff says about the events on the day of the accident, and I make those findings of fact.

The plaintiff's injuries and his condition following the accident

The plaintiff said that after he fell he started to experience hazy vision: ts 72. He described the pain as the worst he had ever experienced: ts 71. He screamed out in pain and some people from the other ramps came over to assist. He got up, put his dog in the car and drove himself home. He then called a friend who drove him to Armadale Hospital: ts 72.
At Armadale Hospital, he had a series of investigations including CT scans. He was given some pain relief and then taken by ambulance to Royal Perth Hospital. He was there until 28 February 2015 and continued treatment as an outpatient for a number of weeks afterwards. Since then, he has been under the care of his general practitioner, Dr Kan, and he has also seen a number of specialists.
He says he is still in great pain, has difficulty sleeping and he takes oxycodone 'to get going for the day': ts 78 - ts 79. He has a strap above his bed which he uses to get in and out of bed. He tries to keep active, but he has had to hire someone to mow his lawn. He finds it difficult to wash his dog and to sit for lengthy periods.
He said that since his accident his roof carpentry business 'just slowly went downhill'. Over the course of the following year, he 'watched it just dwindle away till it just - it just ruined my name, you know': ts 86.
He tried to do other work, including making cray pots and building patios. It kept him busy, but it was not remunerative. He also attempted to build a wood chopping business but that also proved difficult and came to nothing.
He said that he had to sell most of his furniture, his tools, his work trailer, his boat and his diving gear. He also had to sell his car to pay his butcher's bill of some $4,000. He had his power cut off when he failed to pay power bills and had to connect an extension cord to his neighbour's property to keep his fridge running. He said he owes the power company $5,000.
He heats his home with wood fires which he sometimes uses to cook on.
He explained that he and his friends or his brothers would go out to get wood and that he has a permit to do so. He says his contribution to the process is limited to providing his chainsaw sharpener.
When asked whether he does any wood chopping himself, he said no. He explained that the size of the wood is such that he would 'just chuck it in the trailer just as it is': ts 84.
He confirmed that he does some wood splitting with a tomahawk. He says that he gets sore afterwards as a result.
In terms of his pain level, he says that it is getting worse and he is concerned about how it will affect him as he gets older.
He remains on pain medication, which he is aware is addictive.
He had consulted a psychiatrist, Dr Laugharne, for the purposes of the trial, but he is sceptical of any form of counselling. He does, however, believe that what he has been through has had an impact in terms of his mental health. He sees Dr Kan every week for his prescriptions.
The plaintiff was shown some surveillance video taken of him between 18 and 24 September 2021: exhibit 2. He accepts he is the person in the video. He agreed that he could not be seen using a walking stick in the video. He confirmed that he does not always use a walking stick because he believes that it makes him appear 'weak': ts 106.
It was pointed out to him that in the video he appeared to be getting in and out of his car without difficulty. He explained that he has good and bad days and sometimes he wears a back brace which helps him to move around.
He summarised his situation prior to the accident and now in this way (ts 118):
I was having the time of me life. I was confident. I didn't doubt my abilities any more cos I'd achieved something that a lot of people can't achieve without schooling. And, you know, I was up there with the best of them, you know? There wasn't too many roof carpenters in Perth that had 16 to 20 blokes, you know, at one point. You know, it was -you know, that's unheard of. It's very rare. I don't know. I mean, I was proud of my achievement. I was - I was - I had financial security. Me life was secure. I could do anything I wanted whenever I wanted. I never had to be anywhere at a certain time or do anything at a certain time. I had that freedom. I was in charge. Now I've lost control of all that.
The defendant has raised issues of credibility in respect of the plaintiff's evidence as to his physical and mental health condition following the accident. It is unnecessary for me to draw any conclusions as to the plaintiff's evidence in that regard.

Witnesses called by the plaintiff

Dr Yee-Shing Kan

Dr Kan is the plaintiff's general practitioner. She has rooms in the Spencer Road Family Practice in Huntingdale: ts 214. She provided a written report dated 5 July 2017, which is exhibit 3, and gave oral evidence at the trial.
She has been the plaintiff's general practitioner since about 2011. She now sees the plaintiff weekly in relation to his back injury: ts 215 and ts 216.
She said that her written report was prepared from a review of her patient records in respect of the plaintiff. Those records were tendered and are exhibit 6. She confirmed that she had no independent memory of any of the consultations and all of her evidence, written and oral, was given in reliance on those records.
Her evidence was that, prior to the accident on 25 February 2015, the plaintiff had never presented with any lumbar back pain or symptoms: exhibit 3, par 2. Her report contains the opinion that the plaintiff had suffered a compression fracture of the L1 lumbar spine, caused by the accident.
She confirmed that the plaintiff was admitted to the spinal unit at Royal Perth Hospital under Dr Woodland, was fitted with a Jewett back brace and given analgesia. She said that the plaintiff found the back brace to be very uncomfortable and did not use it consistently as recommended by the specialist: exhibit 3, par 4.
Dr Kan's records refer to a further consultation on 22 June 2015 when she completed an insurance form. In that form, a copy of which is included in her records, she noted that the plaintiff's back pain was 'better than before' and his condition was 'improving': exhibit 6, pages 531 - 534.
Dr Kan confirmed in her oral testimony that when she saw the plaintiff on 22 June 2015, she did not conduct any examination of him: ts 234.
She said that, by August 2015 the plaintiff's fracture had healed in a satisfactory position and there was no complication noted. The hospital had referred the plaintiff to physiotherapy but she said that the plaintiff did not attend any physiotherapy sessions. She also noted that the hospital reported that the plaintiff had an excellent range of forward and lateral flexion on both sides.
In her report (exhibit 3, par 5), Dr Kan refers to an examination by her of the plaintiff on 16 June 2017. She notes that there is a 'mild decrease in flexion and extension of [the plaintiff's] lumbar spine, otherwise the rest of the examination is normal'. She states that the plaintiff's lower back pain has been stable for many months and there is no referred pain or other symptoms. She has prescribed oxycodone (OxyNorm), a schedule 8 drug, when required for his pain.

She confirmed that she does not consider that the plaintiff could ever 'return to his usual work': exhibit 3, par 8. She says that he is able to perform only light duties with no heavy lifting or bending.
Dr Kan is of the view that the plaintiff would not benefit from any further imaging, radiobiology, or specialist review. She says that what would benefit the plaintiff the most is exercise: exhibit 3, par 7.
She added to her report, by way of 'Additional Information' (exhibit 3, par 10), that the plaintiff's scan carried out on the day of his accident showed L4/5 broad‑based foraminal disc protrusion with mild left L4/5 foraminal narrowing, but no significant nerve root compression. She says that it is 'hard to tell whether this finding/injury is from the injury or pre‑existing because there is no previous films to compare': exhibit 3, par 10.
Dr Kan's treatment of the plaintiff has consisted largely of pain relief by prescribing oxycodone. That has been the case since the accident: ts 215.
She has also provided certificates to Centrelink to the effect that the plaintiff is not fit for work.
She currently sees the plaintiff once a week. Since her report of 5 July 2017, she has seen no marked change in his presentation to her and does not anticipate any change in the future.
She confirmed that she is always the general practitioner in her practice who sees the plaintiff.
Dr Kan said that up until the COVID pandemic, she would see the plaintiff in person. However, over the last two years she said she has been seeing the plaintiff by Telehealth, which excludes the opportunity for any physical examination and would mean that each consultation would be shorter. She confirmed that she had not seen the plaintiff in person for a number of months, the last time to deal with sinus and dental issues.
She had prescribed and currently prescribes oxycodone for the plaintiff once a week. He is authorised to use one to three OxyNorm 10 mg tablets per day. She first prescribed the plaintiff oxycodone for his back injury on 2 March 2015.
She had previously prescribed oxycodone to the plaintiff in 2012, for a previous injury. He had been taken to Fremantle Hospital for a stingray sting and she saw him upon his discharge from hospital.
Dr Kan was taken to and questioned about various references in her notes to where the plaintiff mentioned to her that he was 'chopping wood', that his 'shoulders also getting sore from chopping wood', 'casting a fishing rod', 'cutting a tree down'. She was unable to elaborate on that, other than to say that if her notes made those references then that is what the plaintiff would have told her.
Dr Kan's notes also refer to the plaintiff 'going to stop doing the firewood business so won't need to chop wood anymore'. Again, she was asked why she wrote that and she said that if that was in her notes then that is what he had told her.
She conceded under cross-examination that over seven years since March 2015, she had been prescribing to him oxycodone but had only physically examined the plaintiff once, on 16 June 2017.
It was put to her that for the entirety of the time that she prescribed oxycodone for the plaintiff it was based on him telling her, 'I'm in pain. I'm - I'm in pain. I need more medication'. She said 'Probably right, yeah': ts 241.
She did remember referring the plaintiff to a pain medicine specialist in 2020. However, the plaintiff did not attend the specialist, despite reminders from her.
Because, as I have said, Dr Kan's evidence was based entirely on her written records and she did not have any independent memory of any of the events in question, her evidence was somewhat disjointed and she appeared to me to be content to agree with whatever either counsel put to her. Accordingly, I did not find most of Dr Kan's evidence to be helpful, but I accept her evidence in respect of the plaintiff's condition immediately following his accident and her treatment of the plaintiff.

Mr Kevin Ling

Mr Ling gave oral evidence at the trial. He is a senior tax accountant and he holds a Master of Professional Accounting.
He had been asked in 2017 to prepare tax returns for the plaintiff showing both income and expenditure. He considered that the plaintiff's income tax affairs were not in good order at that point and he was only able to work, in terms of the plaintiff's income, on what had been provided by the ATO.
Based on that information and details of expenditure provided to him by the plaintiff's bookkeeper, he prepared tax returns for the years to 30 June 2013, 2014, 2015 and 2016 respectively: exhibit 4.
For the year to 30 June 2013, the plaintiff's income is shown as $102,451. For the year to 30 June 2014, the plaintiff's income is shown as $84,379. For the year to 30 June 2015, the plaintiff's income is shown as $78,798 and for the year to 30 June 2016, $28,277.
Mr Ling said that he advised the plaintiff by letter dated 11 July 2017 that he had a substantial tax debt, including rate fees and fines: exhibit 5.
I accept Mr Ling's evidence in its entirety.

Professor Timothy Robert Ackland

The plaintiff called Professor Ackland to give expert evidence. Professor Ackland is engaged by a business named HFRC, which stands for Health, Function, Rehabilitation and Care. He is the principal ergonomist for that organisation. He holds a PhD in biomechanics from the University of Western Australia.
He explained that biomechanics is the study of how forces act on the human body both internally derived through the muscles or externally derived from the environment causing the human body to move. He described biomechanics as the interaction between the human body and the physical world: ts 290.
He met with the plaintiff at the site of his accident on 5 August 2020 and he provided a written report dated 31 August 2020 (exhibit 7). Professor Ackland confirmed that he did not in fact receive any written instructions to produce his report and conceded that it was unclear what he was being asked to opine on and what underlying information, facts or assumptions should form the basis of his report. Professor Ackland agreed that this was in his experience unusual when being asked to provide independent expert evidence: ts 299.
In his report (exhibit 7, page 3) Professor Ackland accepts the opinion of Dr Chew that the plaintiff stepped down approximately 53 cm in height from the concrete abutment down onto the concrete apron. Later in his report, however, (exhibit 7, page 8) he says that the plaintiff stepped down 31 cm onto the concrete apron. He accepts in any event the opinion of Dr Chew that the place where the plaintiff stepped down from would be at or close to the tidal water line where there would have been 'slimy materials … present thereon'.
Professor Ackland considers that the relevant Australian Standards applicable at the time of the plaintiff's accident were:
•AS3962-2001 Guidelines for the design of marinas;
•AS4997-2005 Guidelines for the design of maritime structures; and
•AS1657-2013 Fixed platforms, walkways, stairways and ladders - Design, construction and installation.
Professor Ackland considers that AS1657-2013 mandates the installation of guardrails on all sides and ends of a walkway where the walking surface is more than 300 mm above an adjacent area. He notes that guardrails are not required if the slope of the walkway perpendicular to the direction of travel (cross slope) does not exceed three degrees. Professor Ackland notes that in this case, the cross slope of the concrete apron does exceed three degrees.
In his report, Professor Ackland concludes that guardrails should have been fixed to the concrete abutment.
I have some difficulty with this conclusion. The 'walkway' in the context of AS1657‑2013 must be a reference to the concrete abutment, not the concrete apron. The concrete apron is not higher than an adjacent area, it is the concrete abutment which is at a higher level. It therefore seems to me that the guardrail exemption must apply, because there has been no evidence to suggest that the concrete abutment has any cross slope.
Professor Ackland considers that the design and construction of the Woodman Point boat ramps 'appears to meet specifications in AS3962‑2001 and AS4997‑2005' but he suggests that these represent minimum standards that must be met.
Professor Ackland notes that there is 'a universal agreement that boat ramps are slippery and dangerous': exhibit 7, page 9. In his view, this particular boat ramp at Woodman Point should either be closed or only opened during periods of high demand and it should have signage to remind users of the danger of stepping down onto the concrete apron from the concrete abutment. He considers that guardrails along both sides of the concrete abutment may prevent users stepping down onto the concrete apron from a height and that the cross slope on the concrete apron should be removed.
In his oral evidence, he explained the process of stepping down from one level to another and illustrated his explanation by reference to the ground reaction force, the horizontal and the vertical and pointed to the diagram at image 1 in his report: exhibit 7, page 6.
He considered the cross slope of the concrete apron which he estimated was around five degrees, whereas the down slope was about six degrees. Professor Ackland considers those slopes to be very significant, particularly after adding in the other factors which reduce the available friction, such as contaminants on the surface such as water, algae or oil.
He said that two classes of controls could be taken to limit the risk of slipping, that is, administrative controls and engineering controls. Administrative controls include avoidance or substitution to limit exposure. Engineering controls are mechanisms through which some physical change is made to the environment in order to control a risk.
With regard to administrative controls, Professor Ackland suggested signage as an example. With regard to engineering controls, Professor Ackland suggested kerbing, handrails, the fitting of non-slip tiles and the removal of the cross slope to make the concrete apron horizontal. He pointed out that whether a person actually falls from a slip will depend on how well they can recover from that slip. The factors involved are the speed at which the foot slips, and also the distance that the foot slips. Engineering controls could minimise either of those things, thus giving the person more chance to recover from that slip before they fall over.
In cross-examination, Professor Ackland accepted that, prior to this case, he had only been involved in assessing the risk or safety measures attached to a maritime structure like a boat ramp on one other occasion. That had involved looking at ramps and ladders on a vessel, not in a boat ramp setting attached to land. He also accepted that he had no previous experience with assessing the maintenance or repairs to structures like a boat ramp facility. He said it is not his area of expertise.
He confirmed that when he visited the Woodman Point boat ramps in August 2020, he was accompanied by the plaintiff. He said he was relying on the plaintiff for details about such matters as the approximate point where he stepped down on the day he launched his boat, where the water levels were and whether it was wet or dry.
He was asked about his suggested engineering controls, such as having guardrails installed to prevent users stepping down onto the concrete apron from a height and also about retrofitting kerbs. He was also asked what consideration he had given to the possible risks that could be introduced by some of these steps that he had recommended.
He readily agreed that with every risk control strategy that one implements there is the possibility of introducing some other risk. However, he believed that on balance, the engineering controls that he had recommended in his report would have improved the situation for the plaintiff in terms of him not slipping and falling. He agreed however that he made his recommendations on the basis that he was regarding the concrete apron as a walkway and he conceded that it was in fact not strictly necessary for users to step down onto the concrete apron from the concrete abutment to gain access to their vehicle or to gain access to the jetty. He agreed that ramp users could walk around to where the concrete apron is at the same level as the ramp and the concrete abutment, '[b]ut being human, we - we take the easy course': ts 303.
Professor Ackland, quite properly, made a number of concessions during his evidence, in particular regarding the absence of written instructions and his lack of experience in dealing with maritime structures such as boat ramps. I also note that his visit to the Woodman Point boat ramps took place in August, a different time of year to the time of the accident. I accept Professor Ackland's evidence, which is largely consistent with the evidence of Dr Chew, on that basis.

Dr Steven Chew

The plaintiff called Dr Chew to give expert evidence. Dr Chew is a Chartered Professional Engineer and a Certified Professional Ergonomist. He holds a degree in engineering with first class honours from the University of Canterbury. He also holds a doctorate in mechanical engineering from that same institution. He has extensive qualifications in the area of risk and safety management.
Dr Chew provided a preliminary report dated 31 July 2015 (exhibit 9) as to the adequacy of certain safety measures at the Woodman Point boat ramps. He had attended the Woodman Point boat ramps in the company of the plaintiff on 1 June 2015.
During that inspection, Dr Chew found that the concrete apron had what he described as a north-south downgrade (that is, looking down the concrete apron towards the water) of approximately six degrees and an east-west downgrade (that is, looking across the concrete apron towards the edge of the boat ramp) of approximately five degrees. He concluded that the point where the plaintiff stepped down onto the concrete apron 'would be at or close to the tidal water line, with slimy materials (most probably dried algae) present thereon': exhibit 9. On that basis, he believed that the area where the plaintiff slipped represented a 'high slip' risk. He suggested risk control measures for mitigating the 'high slip' risk, which included installing railings and displaying a slip warning sign.
I should note at this point that Dr Chew's evidence on where the plaintiff slipped is contrary to the evidence of the plaintiff. The plaintiff told the court that he had in fact avoided stepping down onto the concrete apron at or close to the water line because he wanted to keep his new boots dry.
I should also note that Dr Chew's report was prepared following an examination of the site in June 2015, a significantly different time of the year to February 2015 when the accident occurred.
Dr Chew then conducted a further site inspection on 25 January 2021, including an examination of the eastern ramps. He prepared a final report dated 6 May 2021 (exhibit 10) containing his professional opinion as a mechanical engineer. He noted various changes which had taken place at the eastern ramps between his first visit in 2015 and this visit in 2021.
He agreed with Professor Ackland as to which Australian Standards apply to maritime structures. He drew a distinction between the standards applicable to the actual design requirement of a particular jetty (that is, its dimensions and materials) and the standards relevant to assessing the risk associated with the use of the particular jetty.
In cross-examination, Dr Chew accepted that he had not been involved in the design, development and construction of infrastructure. In particular he had no involvement in a maritime facility like a boat ramp. Until this case, he had not been involved in the review, inspection or reporting on the safety features of marine infrastructure. He agreed that in particular he had no expertise in or specific knowledge of the regular maintenance requirements or upkeep of marine infrastructure: ts 322.
Dr Chew also agreed that when he goes through the process of assessing if a level of risk is acceptable or not, he considers a broad range of factors. Those factors include the environment in which the facility is operating. He explained that whether or not it is in a workplace, whether it is a public place and what activities are carried out at that particular place would all affect whether a risk is acceptable or unacceptable.
He was aware and accepted that when the concrete apron where the accident occurred was originally constructed, the poured concrete had been rubbed over with a brush or broom to cause what is called a 'broomed finish'. He also accepted that that is a control measure in place to mitigate the risk of a slip. He conceded that if the concrete areas are subjected to blasting and pressure cleaning to get rid of algae, that would also constitute a control measure to mitigate the risk of slipping. In addition, he agreed that regular inspections to assess, review and report on hazards, is another control measure to mitigate the risk of slipping.
He had also understood that when the ramp was constructed there was intended to be included some 'jarrah kerbing': ts 309.
He said that if a boat ramp is accessed by hundreds of people each year for the purpose of launching boats without any reported incidents of slipping and falling, then he would consider that the level of risk is at a more acceptable level. He concluded that the ramp in question presents a moderate level of safety risk as opposed to a high level of safety risk: ts 333.
However, he qualified this by saying that the presence or otherwise of reported incidents of someone falling does not determine whether a risk is acceptable or not: ts 334.
Dr Chew was asked about a comment he made in his second report to the effect that the sloping concrete apron surface when wet and in the presence of slimy marine growth is unlikely to be able to prevent a person who steps on it from above from slipping. He explained this to mean that in this circumstance that it is more likely than not you will slip. He went on to further clarify this by saying '[i]t is highly unlikely that you - you do not slip': ts 334. However, if the apron surface is dry, the risk of slipping is reduced.
As I have already mentioned, the plaintiff's evidence on the condition of the concrete apron where he stepped down onto it was that the concrete apron was dry at that point and he chose that point deliberately to avoid wetting his boots.
Dr Chew did not consider that the introduction of guardrails would create an additional hazard.
He did consider that the introduction of non-slip matting or a precast structure of fibreglass webbing, of which exhibit 8 is an example, was a sensible idea for slip prevention because he had seen it in other locations. However, he agreed that the other sites where he had seen this in use were quite different to the Woodman Point boat ramps.
He also agreed that he had little understanding of how this matting or webbing might be, or indeed whether it could be, installed at the western boat ramps.
Again, subject to the concessions about his evidence which he made and the comments I have made, I accept Dr Chew's evidence.

The medical experts

The plaintiff called Professor Stokes, Dr Overmeire and Dr Laugharne to give expert medical evidence.

Professor Bryant Alan Rigby Stokes

Professor Stokes is a specialist neurosurgeon and an emeritus consultant to Royal Perth Hospital, Sir Charles Gairdner Hospital and the former Perth Children's Hospital. He has worked in the area of neurosurgery since 1964.
Professor Stokes gave evidence that he saw the plaintiff on two occasions, namely on 23 August 2017 and on 10 November 2020: ts 353. He actually said that he had seen the plaintiff on three occasions, but it is apparent that he did not see the plaintiff on 8 November 2017, which he referred to as 'a report': ts 353.

He provided three reports (dated, respectively, 23 August 2017, 8 November 2017 and 24 November 2020) and in addition provided two short supplementary notes dated, respectively, 11 December 2020 and 5 January 2022.
Professor Stokes' report dated 23 August 2017 is exhibit 13. His report dated 8 November 2017 is exhibit 14 and his report dated 24 November 2020 is exhibit 15. His note dated 11 December 2020 is exhibit 16 and his note dated 5 January 2022 is exhibit 17.
In his first report, dated 23 August 2017, Professor Stokes said he saw the plaintiff that same day and, amongst other things, concluded that in his opinion the plaintiff was unable to return to his former job as a roof carpenter. Professor Stokes reported that 'some two or three months before I saw him' the plaintiff had fractured his right forearm: exhibit 13, page 2. He said that in addition to the back brace referred to by Dr Kan, the only treatment that the plaintiff had received to date was physiotherapy, acupuncture and massage. He agreed that it was unlikely that the plaintiff actually ever wore the brace. He considered that a further MRI scan was necessary: exhibit 13, page 3.
That scan was done and provided to Professor Stokes. Professor Stokes then, in his report of 8 November 2017, following his consideration of that further scan, said that usually post‑injury stabilisation took around two years to occur and he considered that the plaintiff would not by then have stabilised. Professor Stokes said that the scan did not show any gross degenerative changes nor any evidence of major disturbance of the facet joints.
In Professor Stokes' third report, dated 24 November 2020, he said he had seen the plaintiff again on 10 November 2020. He observed that it was unusual and 'doubtful' for someone with a crush fracture to have symptoms for so long after the incident, in this case nearly six years. Professor Stokes considered that the plaintiff's condition was not due to the accident itself, but due to other lower back injuries. He considered that the area of injury following his accident was quite well healed and that it was not an inflammatory area at that time. He placed a restriction of 10 kg on the amount that the plaintiff could lift. He also recommended that the plaintiff should not engage in any prolonged bending. He expected that the plaintiff would find it difficult to return to employment at that time. He said that this was predominantly as a consequence of the pain which the plaintiff was reporting to him. Professor Stokes recommended that the plaintiff should see a pain specialist 'urgently' with a view to considering some facet joint injections around L1 to try to assist him with his pain. Professor Stokes also recommended that he undertook swimming to strengthen his back, musculature and 'also to see the psychiatrist or psychologist': exhibit 15, page 2.
In Professor Stokes' note dated 11 December 2020, he explained that when he used the word 'doubtful' in his third report, he said that he believed that there may be some underlying elements of anxiety and depression which were prolonging the recovery process. It was for this reason that he had suggested that the plaintiff should consult a psychiatrist.
Professor Stokes' second note, dated 5 January 2022, offered the view that the plaintiff was now suffering from a combination of physical and psychiatric issues. He considered that it then remained the case that the plaintiff could not return to work as a roof carpenter. Professor Stokes had reviewed the report provided by Dr Laugharne, a psychiatrist, which he considered to be 'self‑explanatory'. Professor Stokes noted Dr Laugharne's opinion that the plaintiff's anxiety state is producing an adjustment disorder and worsening his pain syndrome and Professor Stokes accepted that opinion: exhibit 17, page 2.
Professor Stokes was shown a report from Dr Larkin of Royal Perth Hospital (exhibit 6, page 539), which was prepared after the plaintiff's discharge from the hospital. Dr Larkin stated:
On examination [the plaintiff] has no midline back tenderness throughout his thoracic, lumbar or sacral spine and there was no paravertebral tenderness. He has excellent range of forward flexion and lateral flexion of both sides is normal. Dermatomes through both lower limbs are normal, as are his myotomes.
Professor Stokes understood this to mean that there was nothing wrong with the plaintiff's back when he was discharged from hospital, he had no pain, his movements were normal and there was no abnormality in either the motor or sensory system in his lower limbs. Professor Stokes said that he found this report to be 'surprising' and he remained firmly of the view that as a result of the fracture in his back, the plaintiff was unable to ever return to working as a roof carpenter.
Professor Stokes' evidence is substantially consistent with the evidence of Dr Overmeire and I accept his evidence.

Dr Steven Joseph Overmeire

Dr Overmeire is a medical practitioner, practising predominantly in the area of occupational medicine. His practice involves management of the health of the working age population, particularly in the context of their work.
He has seen the plaintiff on two occasions, the first on 10 September 2020 and the second in February 2022 on what he referred to as a more informal level to 'reassure [the plaintiff] about the structural integrity of his spine cos I understand that was an ongoing concern for him': ts 476.
Dr Overmeire provided two reports, the first dated 17 September 2020, which is exhibit 22 and the second dated 11 February 2022, which is exhibit 24.
At the plaintiff's first consultation, on 10 September 2020, he explained to Dr Overmeire that following his consultations with Professor Stokes the plaintiff said that he had tried to see a spinal specialist at Royal Perth Hospital but ultimately saw a physiotherapist. Dr Overmeire is unclear as to how this confusion arose but he reports that the plaintiff was 'very disappointed' and had lost faith in the medical profession: exhibit 22, page 2.
Dr Overmeire noted the plaintiff's reports that he is still in pain and that he suffers from disturbed sleep. He can sit comfortably for around 45 minutes and sometimes uses a walking stick for comfort, although he says that he avoids doing so near his home because he feels 'ashamed': exhibit 22, page 3.
Dr Overmeire considers that the plaintiff has a 12% whole person impairment, a 20% impairment of the back and a 30% permanent loss of spinal function, all as a result of his injury. He considers that the plaintiff is permanently incapacitated from pursuing his pre-injury employment as a roof carpenter: exhibit 22, page 6. The plaintiff can, in Dr Overmeire's opinion, perform sedentary or semi-sedentary work in the long term, if such suitable employment can be found: exhibit 22, page 7. He considers that corrective surgery is not open to the plaintiff. In Dr Overmeire's view, he requires further pain management and exercise rehabilitation and is also likely to benefit from psychological supportive treatment: exhibit 22, page 8.
I accept Dr Overmeire's evidence, which is largely consistent with that of Professor Stokes.

Dr Jonathan Laugharne

Dr Laugharne is a medical practitioner specialising in the area of psychiatry. He has been practising as a psychiatrist since around 1996.
He saw the plaintiff on one occasion, on 23 November 2020 and he provided a written report dated 3 December 2020. He confirmed that he had diagnosed the plaintiff with a recognisable psychiatric condition, being adjustment disorder with depressed mood and anxiety according to the DSM‑5 criteria.
Dr Laugharne explained that 'DSM-5' is a standard internationally accepted way of classifying psychiatric disorders, published by the American Psychiatric Association: ts 389. He said that when looking at the diagnosis of adjustment disorder and a depressive condition, the treatments are fairly similar in terms of medication and therapeutic input: ts 390.
Dr Laugharne provided a subsequent report dated 26 November 2021 after having seen Professor Stokes' report and also a report from Mr Wong, a neurosurgeon, dated 11 January 2021. Mr Wong gave evidence at the trial and his report is part of exhibit 30.
Dr Laugharne considered that the plaintiff's psychiatric symptoms have all added to his incapacity and may add to his incapacity for alternative work. He considered that unless the plaintiff's psychiatric condition is adequately treated and improved symptomatically, then retraining for alternative employment was a 'remote prospect': ts 392.
Dr Laugharne says that he is 'reasonably confident that in this case we are dealing with a predominantly unconscious process' and he does not 'think that there is any consciously contrived presentation or evidence of malingering'. Dr Laugharne considers that the plaintiff's adjustment disorder is worsening his pain syndrome and the subsequent pain and associated disability increases his anxiety, fearfulness of re‑injury and associated low mood. He says that this 'becomes a vicious cycle, which is difficult to break'.
Dr Laugharne's reports are together exhibit 18.
Dr Laugharne's evidence was uncontradicted and I accept it in its entirety.

Witnesses called by the defendant

Mr Herman Reginald de Mello

Mr de Mello is the harbour manager for the Department of Transport's south metropolitan coastal facilities. He has held that position since 2006. The Department's south metropolitan coastal facilities include the Woodman Point boat ramps: ts 433.
Mr de Mello gave his evidence orally at the trial. He did not provide a written statement.
As the harbour manager, Mr de Mello says that his day‑to‑day responsibilities include the maintenance of public use jetties including the infrastructure which comprises the Woodman Point boat ramps. The infrastructure includes the roads, lighting and the ramps themselves. He says that the Department maintains the various facilities under its control through the engagement of a maintenance contractor. He said that the maintenance contractor in 2015 was and currently is Ventia, formerly named Broad Spectrum. Prior to 2015, the maintenance contractor was Transfield Services: ts 434.
Mr de Mello explained that the maintenance process is that the maintenance contractor develops a maintenance plan for the inspection, repair and maintenance of the relevant facility for each coming year. That plan goes forward to the Department's asset management team where it is considered and adjusted to meet with any budgetary constraints.
The maintenance plans for 2014/2015 and for 2015/2016 were tendered together as exhibit 19.
Once a maintenance plan is agreed, it is then forwarded to Mr de Mello who then oversees its implementation: ts 435 and ts 436.
Mr de Mello confirmed that he speaks to the maintenance contractors on a daily basis and he meets with them at least fortnightly: ts 438 and ts 439. Minutes of these meetings are taken and retained. The relevant minutes were tendered as exhibits 20 and 21.
He agreed that he had a 'proactive role in identifying potential risk sites before an accident happens': ts 452.
Mr de Mello told the court that, to the best of his recollection, there were no issues identified or brought to his attention by the contractors in relation to the Woodman Point boat ramps prior to 2015: ts 441. He also said that he is unaware of any previous incidents at the Woodman Point boat ramps prior to the plaintiff's accident, other than in late 2014 when 'a gentleman advised that his elderly relative had - had tripped on the - on the boat ramp …'. He said that this occurred on the eastern ramps: ts 441 - ts 442. It was following this incident that a decision was made to install handrails at the eastern boat ramps: ts 443.
The minutes disclose that handrails were installed, and subsequently reinstalled, at the eastern ramps but he confirmed that no consideration had yet been given to installing handrails at the western ramps. He believed that the reason for this was that handrails at the older (western) ramps would cause 'restrictions' for users: ts 444.
Mr de Mello did not become aware of the plaintiff's accident until around a year after the accident occurred: ts 445. Other than the incident at the eastern boat ramps and the plaintiff's accident, Mr de Mello is unaware of any other incidents occurring at the Woodman Point boat ramps: ts 447.
Mr de Mello says that according to his records the last time prior to the plaintiff's accident that the western boat ramps were pressure cleaned was in January 2015.
Mr de Mello's evidence was that the concrete abutment is in place to enable users to walk along to get onto the finger jetty and that pedestrians are not supposed to walk on the concrete apron: ts 455. He agreed, however, that there is nothing at the western boat ramps to indicate to users that they should not walk along the concrete apron: ts 456. He said that signs and warnings had been installed in the eastern ramps following the late 2014 incident, but no equivalent steps were taken at the western ramps. He said that he could have carried out the same remedial work at the western ramps but he saw no requirement to do so.
I accept Mr de Mello's evidence.

Mr Anand Patel

Mr Aishwarya Anand Gunther Vay Patel, known as Anand Patel for 'my work purpose' (ts 498), was called by the defendant and gave oral evidence at the trial.
Mr Patel has been a manager and asset manager of the Department of Transport's maritime facilities since 2019. Prior to 2019, he was 'working under manager of asset management as an asset management engineer for [the defendant]'. He was in that role for around seven years: ts 498. As an asset manager, he was responsible for some 35 facilities across the State including the facility maintenance and asset management of those facilities. He said that those facilities range from one jetty structures to 'entire full-flow harbour, and different assets in one harbour. So a full range of assets, yep': ts 498 - ts 499.
He said that as part of an asset manager's role, engineers are engaged to assess the condition of the asset, including 'wear and tear and those sorts of things': ts 509. He said that a 10‑year inspection and 10‑year asset management plan for the Woodman Point boat ramps prior to 2015 was carried out in 2013: ts 502.
The next step in the process was to further assess, prioritise and plan for the assets in a Maritime Asset Condition Criticality and Risk Assessment summary sheet 2015: exhibit 26.
The Woodman Point boat ramps, both the eastern and western ramps, were given a rating of three out of five, one or two being considered poor and unserviceable and three being regarded as 'in good physical condition but may present some risks of injury': ts 510. He said that because they were risk-focused, he and his team focused on condition one and two assets.
It was put to Mr Patel in cross‑examination that these processes would not pick up all of the potential problems. He disputed this, pointing out that annual inspections for all facilities are carried out and monthly reports provided to the team: ts 510 - ts 511. He said that inspections and reporting include inspecting 'each and every asset', identifying any issues and reporting any concerns. He said that there was a range of issues that would be looked at, and in the case of a boat ramp they would ascertain its condition, whether it requires any blasting or painting and report back to the maintenance manager for appropriate action: ts 513 - ts 515.
I accept Mr Patel's evidence.

Mr Larry Brett Adams

Mr Adams was called by the defendant and gave oral evidence at the trial. He is the manager of infrastructure for the maritime division of the Department of Transport. He has been in that role for some eight years and prior to that he was a senior project officer in the same division. Mr Adams is responsible for future planning and for upgrading assets, either by replacement at the end of the asset's design life or useful functional life or upgrades arising from new codes or standards. His responsibilities also include the safety aspects of the assets: ts 519.
Mr Adams was asked why, at the western boat ramps, there were no handrails along the concrete abutment. He said that it is 'a balancing act between making a facility functional … and also safe enough so that everyone can use it': ts 524. Mr Adams says that this particular facility has a very narrow walkway and considers that it would be 'almost impossible' to install a handrail along the concrete abutment without it interfering with people walking 'back and forth … carrying items to be put into their boats': ts 524. He says that the eastern ramps are wide enough to have handrails.
Mr Adams was asked about the lack of kerbing between the concrete apron and the ramp itself at the Woodman Point boat ramps and why the kerbing had been removed. Mr Adams' evidence was that he was unable to say whether or not kerbing had ever been installed in that position (ts 531) only that the fact that provision may have been made for the installation of kerbing was not determinative as to whether there had ever been kerbing installed.
He agreed that the concrete abutment was narrow but he repeated that in the construction of a boat ramp, it was always necessary to strike a balance between whether or not a facility is functional 'otherwise it's pointless having the facility': ts 532.
Mr Adams confirmed that the Woodman Point boat ramps are the busiest of the boat ramps in Western Australia and that between October 2010 and December 2016 there were 210,790 trailer entries to the ramps. He said that during February 2015, the month when the plaintiff's accident occurred, there were 2,502 trailer entries: ts 529.
I accept Mr Adams' evidence.

Mr Luke Anthony Campbell

Mr Campbell was called to give expert evidence by the defendant. He filed two written reports, dated respectively 31 July 2019 and 11 April 2022 which, together with the relevant letters of instruction, are exhibit 32.
Mr Campbell is a director and senior principal engineer of an engineering consultancy firm named Wallbridge Gilbert Aztec. He is a licensed maritime and structural engineer.
Mr Campbell gave his opinion about the relevant Australian Standards. He says that AS4997 (Guidelines for the design of maritime structures), and AS3962 (Guidelines for the design of marinas), are prepared as 'a pair of documents, they work together and they are not meant to overlap much at all': ts 566. He says that the preface to both of those Standards make this clear. He says that in the section on boat ramps within AS3962, there is no reference to handrails except as it relates to 'gangways': ts 567.
Mr Campbell points out that the version of AS4997 which was current at the time of the plaintiff's accident and the current version of the same are 'unique in that they are guidelines for the design of something and it's very unusual, there aren't many Australian Standards which are termed as guidelines': ts 567. He notes that in the preface and in the notes sections of the Standards, it is pointed out that they are not prescriptive codes and the 'burden of compliance … for these guidelines is - is less, as defined': ts 567. He says that even in and around Perth, handrails at boat ramps are unusual. While he agrees that handrails may control how people move between the concrete abutment onto the ramp section, he says that handrails can also be hazardous: ts 569 - ts 570.
Mr Campbell says that he has inspected the concrete apron where the plaintiff fell and he does not consider that it was constructed with a smooth finish. In his view, it was constructed with a 'broom finish' to provide for a degree of slip resistance: ts 571 - ts 572.
His evidence was that the handrails on the eastern boat ramps were originally installed between the ramp and the concrete apron, but the handrails were subsequently moved and installed along the edge of the concrete abutment itself. Mr Campbell's view was that they were moved because the handrails were hazardous in their original location: ts 578.

On the issue of putting kerbing between the concrete apron and the ramp itself, Mr Campbell says that 'kerbs do not always outweigh negative aspects such as a propensity to trap sediment, seagrass and algae …': ts 579.
He went on to describe boat ramps generally as 'challenging environments'. He refers to seasonal changes, prevailing winds, algae in the form of seagrass and 'live algae'. He says that algae is the biggest challenge to overcome at a boat ramp facility. He says that algae is difficult to control and that to keep a boat ramp free of algae would take monitoring and maintaining, not just every day, but multiple times in a day: ts 579.
Mr Campbell considered that fibreglass mesh installed where people walk is useful in dry conditions but is 'more problematic' when it is wet: ts 581.
I am satisfied that Mr Campbell is appropriately qualified to give evidence on industry standards, the applicability of the relevant Australian Standards and boating practices generally. He impressed me as having a good knowledge and understanding of these matters and, where opinions differ, I prefer the opinions of Mr Campbell to the opinions of Professor Ackland and Dr Chew.

Mr George Chu Wei Wong

Mr Wong was called by the defendant to give expert medical evidence. He is a specialist neurosurgeon, currently practising at Sir Charles Gairdner Hospital and in private rooms in West Perth.
Mr Wong saw the plaintiff in January 2021. He prepared a report dated 11 January 2021, a further report dated 21 February 2022 and a third report dated 1 April 2022. The reports and the corresponding instructions to produce the reports are collectively exhibit 30. Mr Wong also prepared an additional report dated 26 April 2022 which was referred to in his oral testimony but which was not tendered.
Mr Wong's evidence is that the plaintiff in 2015 had a fracture in his spine which Mr Wong says is 'healed up'. He says that 'to me the spine looks very good': ts 538. He says that the plaintiff has a very minor L4/5 disc protrusion, but he says that this does not correlate to any pain that the plaintiff might be suffering. He said that he himself had 'umpteenth disc bulges' but he does not suffer any pain. He says that he is not sure what is causing the plaintiff's pain: ts 538. He says that from a structural point of view of the spine, the plaintiff is capable of physical work. However, because the plaintiff states that he has pain, Mr Wong says that he cannot 'argue with that' and he must conclude that the plaintiff is incapable of returning to his job as a roof carpenter: ts 540 - ts 541.
I accept Mr Wong's evidence.

Issues to be determined

In my opinion, the issues to be determined are as follows:
1.Did the defendant owe the plaintiff a duty of care?
2.What was the risk of harm against which the plaintiff alleges that the defendant was negligent for failing to take precautions?
3.Was the risk of harm an obvious risk within the meaning of the CL Act to the effect that the defendant did not owe a duty to the plaintiff to warn of that risk?
4.Was that risk foreseeable and not insignificant?
5.If so, what precautions would a reasonable person have taken against that risk?
6.Did the defendant fail to take those precautions?
7.If the defendant breached its duty of care, did that breach cause the plaintiff's injuries?
8.If the defendant was liable, was the plaintiff also negligent?
9.On what basis should damages be assessed?
10.What final orders are appropriate?

Analysis

Duty of care

The proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care: Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330 (Dederer) [18]. The existence of a duty of care is to be determined according to common law principles: Department of Housing and Works v Smith[No 2] [2010] WASCA 25; (2010) 41 WAR 217 [77]. In this case, the defendant admits that it owes a duty of care to members of the public when using the Woodman Point boat ramps and that the scope of that duty is to take reasonable care to prevent foreseeable injuries to members of the public when they are launching their boats at the Woodman Point boat ramps, or otherwise utilising the Woodman Point boat ramps: ts 430.
I am satisfied as to the existence of the duty of care and with this expression of the scope of the duty of care owed, in this case, by the defendant to the plaintiff.

Identification of the risk

The next issue is to accurately identify the actual risk of injury against which the plaintiff alleges the defendant was negligent for failing to take precautions.
As Gummow J explained in Dederer [59] - [61], it is only through the correct identification of the actual risk of injury that an assessment can be made of the defendant's knowledge of the specified risk of harm, of the possibility of that risk occurring and to evaluate the reasonableness of the defendant's response, or lack of response, to that risk.
In Nikolich v Webb [2020] WASCA 169 (Nikolich) the court said at [69]:
In identifying the risk of harm:
1.The formulation of risk of harm should identify the true source of potential injury and the general causal mechanism of the injury sustained.
2.The risk must be defined taking into account the particular harm that materialised and the circumstances in which that harm occurred.
3.What is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning; for example, because:
(a)it obscures the true source of potential injury;
(b)it too narrowly focusses on the particular hazard which caused the injury; or
(c)it fails to capture part of the plaintiff's case.
(citations omitted)
In the plaintiff's reamended statement of claim dated 18 March 2022 at par 3(e), the plaintiff says that at the material time the defendant knew, or alternatively ought reasonably to have known, in respect of the western Woodman Point boat ramps, that by reason of their design and construction and exposure to the sea, in stepping off the concrete abutment onto the concrete apron, members of the public would be at risk of slipping and falling and suffering injury.
While the defendant does not expressly agree with the plaintiff's formulation of the risk of harm, the defendant, as I have said, admits that it had a duty to take reasonable precautions to prevent foreseeable injuries to members of the public when launching their boats at the Woodman Point boat ramps, or otherwise utilising the Woodman Point boat ramps. In the defendant's closing submissions dated 16 May 2022 at par 1.4(b), the defendant accepts that it owed a duty to users of the Woodman Point boat ramps to take such care as was reasonable in all of the circumstances in response to the risk of harm, being of slipping over at the Woodman Point boat ramps and sustaining injury.
The Woodman Point boat ramps were at the relevant time, and are, open to the public as a public boat ramp. That is not in dispute. It is also not in dispute that the process of using the boat ramps, clearly discernible from the unchallenged evidence of the plaintiff, is as follows. Users:
(i)reverse their vehicle and boat trailer down the ramp to the point where the wheels or back wheels of the trailer are at the water line;
(ii)exit the vehicle, walk down to the trailer, and take a line from the front or bow of the boat;
(iii)walk up the ramp with the line and then back along the concrete abutment towards the water and onto the finger jetty;
(iv)attach the line from the boat to the finger jetty;
(v)walk back along the finger jetty and concrete abutment and then down the ramp again to the boat trailer; and finally
(vi)release the boat from the trailer, allow the boat to slip into the water, board the boat and then release it from the finger jetty.
Further, it is also not disputed, and is clearly the case, that the boat ramp and the concrete apron both slope down towards the water and are exposed to sea water and growth of marine plants.
I consider that the actual risk of harm to the plaintiff against which the defendant must take reasonable care is the risk of the plaintiff slipping and injuring himself on the Woodman Point boat ramps at any stage during this process of launching his boat.

Obvious risk

I will now consider whether, by the operation of s 5O of the CL Act, the defendant did not have a duty to warn the plaintiff that the Woodman Point boat ramps could be slippery and that extra care should be taken.
In his statement of claim, the plaintiff pleads that the defendant:
(i)failed or neglected or both to erect warning signs at the start of the concrete abutment to warn users of the western boat ramp that there was an unusual risk of slipping by reason of the design and construction of that boat ramp and the slipperiness of the concrete apron; and
(ii)failed to provide signs that members of the public walking onto the concrete abutment should not step down onto the concrete apron or walk on it.
The defendant denies that it had any such duty to warn the plaintiff of the relevant risk because that risk constituted an 'obvious risk' and s 5O of the CL Act thus excluded any duty to warn.
The issue of an obviousness of a risk was considered by the court in Nikolich and discussed at [90] - [105]. At [91], the court said:
91.In broad terms, an 'obvious risk', as defined in s 5F of the CLA, is one which is clearly apparent or easily recognised or understood. The risk must be obvious in the sense that, in the circumstances, it would have been obvious to a reasonable person in the position of the plaintiff. Thus the test of obviousness is objective and does not turn on the subjective knowledge or beliefs of the plaintiff (although taking into account personal characteristics of the plaintiff; for example, whether he or she was a child). However, the plaintiff's actual knowledge of matters which constitute the risk of harm may be relevant in two ways. First, the way in which the knowledge was acquired may be relevant to the prospective inquiry as to whether the risk would have been obvious to a reasonable person in the position of the plaintiff. Second, it may be relevant to know the extent to which the plaintiff was actually aware of the risk, in whole or part, so far as the obvious risk inquiry is into the knowledge that a reasonable person in the plaintiff's position should be taken to have had.
(citations omitted)
As the court went on to say at [92], the inquiry must take account of the objective circumstances of the plaintiff. The nature of the conduct or hazard that caused the harm also informs the obviousness of the risk. The surrounding circumstances immediately prior to the plaintiff suffering the relevant harm must be identified as it is necessary to identify the factual scenario facing the plaintiff. However, the process of determining whether a risk that has materialised is an obvious risk should not be over-intellectualised.
The preferred approach is to recognise that the identification of an obvious risk is a matter to be undertaken prospectively and without the benefit of hindsight: Nikolich [94]. The prospective nature of the task therefore requires formulation of the risk at a reasonable level of generality as to the kind of risk involved, but the specification of the risk must nevertheless be of sufficient particularity to capture, fairly, the harm which resulted from the risk materialising on the facts of the particular case.
The obviousness of a risk is a question of fact. It will turn on the evidence of what occurred and why the risk is one that is obvious. In broad terms, an 'obvious risk' is one which is clearly apparent or easily recognised or understood.
I am satisfied that a reasonable person in the position of the plaintiff would have known that the particular boat ramp might be slippery because of the proximity of the sea water and the likelihood of the presence of algae or other similar matter. This would be particularly the case on the user's return walk down to their trailer. At this point, the user would have already walked down the concrete apron from their vehicle to the water's edge to collect the line from the front of their boat and then walked back up the concrete apron and onto the concrete abutment to tie off their boat at the finger jetty. A reasonable person in the position of the plaintiff would have known that:
(a)vehicles drive up and down the boat ramp, and possibly onto the concrete apron, with wet tyres;
(b)the concrete apron when wet is likely to be more slippery than when it is dry;
(c)there could be water and marine growth on the concrete apron;
(d)the concrete apron slopes down towards the water's edge and that any discernible cross slope on the ramp or the concrete apron would increase the likelihood of slipping;
(e)there was a cross slope which, on Professor Ackland's evidence, was five degrees, where the down slope is about six degrees and which therefore would have been apparent to a reasonable person in the position of the plaintiff, particularly when walking back down the concrete apron having already experienced the cross slope on the walk up; and
(f)the risk of slipping after stepping up or down to or from the concrete abutment would be increased or decreased depending on the height of the step up or step down.
This is all consistent with the facts and circumstances of this case. These matters are all matters of common knowledge and patently obvious to persons using boat ramps, whether on a regular basis or even for the first time. I am satisfied that the risk of slipping and falling on a boat ramp is an obvious risk within the meaning of s 5F of the CL Act. The slipperiness of a boat ramp is a hazard that a user would expect to encounter and would be expected to be on the lookout for.
It follows that it is my finding that the risk of slipping and falling was an obvious risk, and the defendant's duty of care to the plaintiff did not include a duty to warn him of that obvious risk.

Did the defendant breach its duty of care?

I now turn to the question of whether the duty of care found to exist has been breached. The issue to be considered is, even if the risk was obvious, so that there is no duty to warn, did the defendant nonetheless breach the required standard of care?
In Wyong Shire Council v Shirt (1980) 146 CLR 40 (Shirt), 47 ‑ 48, Mason J noted:
The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The question at common law is whether a reasonable person would have foreseen the risk and, if so, what a reasonable person would have done by way of response to the risk: J-Corp Pty Ltd v Thompson [2019] WASCA 173 (J-Corp) [34].
The issue of breach is now to be determined by reference to the CL Act, in particular s 5B: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 [27]; J-Corp [34].
Section 5B sets out pre-conditions for establishing a breach of duty: CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117 [77].
I have already set out in full s 5B of the CL Act, which in essence, provides that a defendant will not be liable for harm caused by their fault in failing to take precautions against a risk of harm unless three elements are found:
(a)the risk was foreseeable (that is, it is a risk of which the defendant knew or ought to have known)
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the position of the defendant would have taken those precautions.
The question is to be determined prospectively and without the benefit of hindsight knowledge as to the circumstances of the injury which occurred. It is only by looking forward from a time before the accident that due account can be taken of the matters specified by Mason J in Shirt: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [127]. The court must look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the risk to the plaintiff: New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 [57].
What is reasonable care is a question of fact to be determined in each particular case. Regard will be had (amongst other things) to the likelihood of danger, the gravity of injury and the means of avoiding it: Hamilton v Nuroof(WA) Pty Ltd (1956) 96 CLR 18, 26; Gregory Spencer Ward trading as Ward's Stock Transport v Watson [2021] WASCA 44 [104].
In regard to a breach of that duty, the 'foreseeability' of a risk is not concerned with its likelihood or probability. As Mason J stated in Shirt (47):
[F]oreseeability of the risk of injury and the likelihood of that risk occurring are two different things. I am of course referring to foreseeability in the context of breach of duty, the concept of foreseeability in connexion with the existence of the duty of care involving a more generalized enquiry.
He went on to say (48):
[A] risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable.
The essential questions are whether the defendant knew or ought to have known there was a foreseeable risk of harm to members of the public using the Woodman Point boat ramps and whether, in the circumstances, it failed to take reasonable precautions to rectify that risk.
The defendant concedes, and I find, that there was a foreseeable and not insignificant risk of a person slipping and falling on the Woodman Point boat ramps during the process of launching their boat. The defendant submits, however, and I agree, that the real issue for determination is what precautions a reasonable person in the particular circumstances of the defendant ought to have taken in response to that risk.
The duty is one of reasonable care, not whether safety could have been improved by some modification. The duty is not confined to one owed to those who are careful for their own safety, but it is relevant to take into account that plaintiffs are themselves expected to act reasonably and take care for their own safety when determining what is reasonable: Sakoua v Williams [2005] NSWCA 405 [26].
In essence, the plaintiff alleges that the defendant should have, but did not:
(a)construct a handrail or guardrail on the sides of the concrete abutment;
(b)design and construct the concrete apron to include non‑slip grooves or a waffle pattern moulded into the concrete surface;
(c)install non-slip matting or other like devices on the surface of the concrete apron;
(d)install kerbs on the boat ramp to limit the extent to which a user of the boat ramp could slip and thus prevent a subsequent fall.
I do not consider that any applicable Australian Standard requires that handrails are installed along the edge of the concrete abutment. I accept the defendant's submission that the 'walkway' in this case is the concrete abutment, not the concrete apron, and there is no evidence before me to conclude that the concrete abutment suffered from any cross slope. In any event, I have also accepted the evidence of Mr Campbell about the possible hazards of handrails, which was agreed to, at least to some extent, by Professor Ackland. The installation of handrails may have avoided the accident involving the plaintiff, but approaching the matter on a prospective rather than retrospective basis I do not consider that it is reasonable to have expected the defendant prospectively to take that step. It is clear from the evidence of Mr de Mello that the issue of handrails had come under consideration prior to the accident. However, the defendant decided that installing handrails at the western boat ramps would have created risk in that pedestrian access would be impeded because in the case of these particular boat ramps the jetties and abutments are narrow: ts 444. Mr de Mello said that handrails on the eastern or new boat ramps were installed following the report of the injury at those boat ramps in 2015, in other words retrospectively. However, the western boat ramps are narrower and Mr de Mello did not consider, prospectively, that handrails were appropriate at the western boat ramps. I find that this belief was a reasonable one.

It is also clear from the expert evidence that the concrete apron had in fact been designed to include, and did include, non‑slip grooves or brushing but that nonetheless the boat ramps would require constant pressure cleaning or hosing which was in fact carried out. Similarly, non‑slip grating retrospectively installed would on the evidence of the experts require the same maintenance, although this issue was not further explored by the plaintiff, nor was there any evidence about the cost or feasibility of carrying out that installation. I am therefore not satisfied that there is any evidence to support the submission that installation of non‑slip matting would have been a reasonable response to the risk of slipping.
In regards to the installation or replacement of kerbs, I am satisfied that there have never been any kerbs installed along the concrete apron at the western boat ramps. I am also satisfied that under the relevant Standard, there was no requirement for the installation of kerbs at boat ramps. It may be that, had kerbs been installed along the edge of the concrete apron, then the plaintiff might not have slipped as far as he did or fallen as heavily as he did or at all. However, I am not satisfied that, looking at the matter prospectively, kerbs should have been installed between the concrete apron and the ramp itself.
Again, I am satisfied that the issue of installation of kerbs had been considered by the defendant at some time in the past and a decision was made not to do so. Mr Adams considered that the only reason why kerbs would ever be installed after construction would be if there was a subsequent structural reason to do so, for example slippage of the concrete slabs comprising the boat ramp: ts 524.
In my view, the precautions identified by the plaintiff were therefore not a reasonable response to the risk of someone slipping and falling. The risk of a person slipping on the Woodman Point boat ramps was not such, from a foresight perspective, that a reasonable person in the defendant's position would have taken the precautions identified by the plaintiff. I am not persuaded that the reasonable response to the risk was to do any of the things contended for by the plaintiff.
On the other hand, I am satisfied that the steps which the defendant was taking, including regular inspections and pressure hose cleaning were collectively a reasonable response to the risk which the defendant had foreseen. Applying a foresight perspective, not hindsight, I am not satisfied that the precautions identified by the plaintiff were reasonable. The risk of a person slipping at the Woodman Point boat ramps was not such that a reasonable person in the position of the defendant, from a foresight perspective, would have taken the precautions identified by the plaintiff.
This is particularly so in the light of the number of people using the Woodman Point boat ramps over the years prior to the accident, including some 2,500 patrons during the month of the accident, without any reported accidents or injuries to any of those patrons.
Accordingly, I find that the defendant did not breach its duty of care.

Conclusion and orders

The plaintiff has not established that the injuries he sustained on 25 February 2015 arose from any breach of duty of care that the defendant owed to him.
The plaintiff's claim is dismissed.
I will hear from the parties as to the appropriate orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KG
Associate to Judge Sharp
7 NOVEMBER 2022