Doyle (WA) Pty Ltd v ING Real Estate Joondalup BV
[2014] WASCA 215
•19 NOVEMBER 2014
DOYLE (WA) PTY LTD -v- ING REAL ESTATE JOONDALUP BV [2014] WASCA 215
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 215 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:142/2013 | 1 SEPTEMBER 2014 | |
| Coram: | BUSS JA MURPHY JA MAZZA JA | 19/11/14 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DOYLE (WA) PTY LTD ING REAL ESTATE JOONDALUP BV |
Catchwords: | Appeal against dismissal of claim for indemnity under s 93 of the Workers Compensation and Injury Management Act 1981 (WA) Employer seeking indemnity or contribution from owner of shopping centre where employee tripped and fell Whether the judge erred in finding that the potential for danger was clear to pedestrians Whether the judge erred in weighing the elements of s 5(4) of the Occupiers Liability Act 1985 (WA) Significance of subsequent alterations Turns on own facts |
Legislation: | Civil Liability Act 2002 (WA), s 5B, s 5F Occupiers Liability Act 1985 (WA), s 5 Workers Compensation and Injury Management Act 1981 (WA), s 93 |
Case References: | Fullin v WR & EM Kennedy Nominees Pty Ltd t/as Franbridge Distributors [2013] NSWDC 70 Jones v Darkan Hotel [2014] WASCA 133 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DOYLE (WA) PTY LTD -v- ING REAL ESTATE JOONDALUP BV [2014] WASCA 215 CORAM : BUSS JA
- MURPHY JA
MAZZA JA
- Appellant
AND
ING REAL ESTATE JOONDALUP BV
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WAGER DCJ
Citation : DOYLE (WA) PTY LTD -v- ING REAL ESTATE JOONDALUP BV [2013] WADC 181
File No : CIV 3127 of 2012
Catchwords:
Appeal against dismissal of claim for indemnity under s 93 of the Workers Compensation and Injury Management Act 1981 (WA) - Employer seeking indemnity or contribution from owner of shopping centre where employee tripped and fell - Whether the judge erred in finding that the potential for danger was clear to pedestrians - Whether the judge erred in weighing the elements of s 5(4) of the Occupiers Liability Act 1985 (WA) - Significance of subsequent alterations - Turns on own facts
Legislation:
Civil Liability Act 2002 (WA), s 5B, s 5F
Occupiers Liability Act 1985 (WA), s 5
Workers Compensation and Injury Management Act 1981 (WA), s 93
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr D Clyne
Respondent : Mr J R Criddle
Solicitors:
Appellant : WHL Legal Pty Ltd
Respondent : SRB Legal
Case(s) referred to in judgment(s):
Fullin v WR & EM Kennedy Nominees Pty Ltd t/as Franbridge Distributors [2013] NSWDC 70
Jones v Darkan Hotel [2014] WASCA 133
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
1 BUSS JA: I agree with Murphy JA.
MURPHY JA:
Introduction
2 This is an appeal against a decision of Wager DCJ. Her Honour dismissed a claim by the appellant to obtain an indemnity from the respondent pursuant to s 93 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act).
3 The appellant sought to recover the sum of $53,000 (approximately) from the respondent in respect of the appellant's liability to an employee of the appellant for worker's compensation arising from an injury suffered by the employee at work.
4 Section 93 of the Act provided, relevantly:
(1) Where the injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof but neither the employer nor any person for whose negligence the employer is legally responsible was negligent -
…
(b) the employer is entitled to be indemnified by the person whose negligence caused the injury to the worker (in this section called the defendant) to the full extent of the employer’s liability to pay compensation under this Act, whether or not the defendant has discharged his liability to pay damages to the worker by judgment or by settlement or otherwise.
(2) If there were -
…
(b) negligence by the worker which caused or contributed to the worker’s injury, the extent of the indemnity of the employer by the defendant is reduced by the proportion that the worker’s negligence bears to 100%.
…
5 The appellant's employee tripped and fell when she walked across a service yard at a shopping centre owned by the respondent on the way to the toilet. She tripped on a metal bracket that had been set in concrete, into the service yard. The metal bracket was used to secure large metal gates which closed to keep the shopping centre secure after business hours. The gates were open at the time of the accident, which was at about 11.00 am on 21 November 2009.
6 The appellant sought indemnity from the respondent on the basis that the respondent had a legal liability to the employee as the occupier of the shopping centre. The appellant contended that the respondent was liable to the employee in negligence and, or alternatively, under s 5 of the Occupiers' Liability Act 1985 (WA) (Occupiers' Act). The respondent denied that it had any liability and said that if it were liable, any indemnity should be reduced in accordance with s 93(2) of the Act on account of, amongst other things, the employee's negligence.
7 The primary judge dismissed the appellant's claim. She accordingly was not required to deal with any reduction on account of the employee's contributory negligence, but her Honour did find that in not looking at the ground between the corner of her work and the location of the trip and fall, the employee had failed to keep a proper look out.
8 For the reasons which follow, the appeal should be dismissed.
The trial and the issues
9 The appellant called the employee and the respondent called the assistant/retail manager of the shopping centre to give evidence. Photographs and plans of the site were tendered.
10 At trial, the appellant did not press a number of aspects of its pleading, including claims to the effect that the respondent was negligent in failing to restrict access to the service yard and in failing to cover the metal bracket when not in use [37].
11 The judge described the essential, ultimate, factual issues of the case as being whether the respondent failed to discharge its duty of care by:
(a) failing to re-paint the metal bracket so that it was brighter and fresher; and
(b) by failing to write points of warning in vivid paint on the concrete near the metal bracket [38].
The judge's findings
Background findings
12 The judge found, in effect, that:
(a) the building of the service yard had been completed in 2008 [30];
(b) the metal bracket had a solid painted border, in yellow, of approximately 6 cms in width on all sides and that the painted area of the metal bracket was approximately 37 cm2 [26];
(c) the metal bracket and a surrounding border had been painted in 2008 [30];
(d) the metal bracket contained within the border was approximately 25 cm2 [26];
(e) some paint had chipped off the metal bracket but the painted yellow 6 cmborder remained almost intact [26];
(f) as a result, there was a contrast between the grey concrete surface of the service yard and the painted yellow solid border and the metal bracket in the middle that had exposed metal showing [26];
(g) the colour yellow was not an iridescent yellow but the yellow border clearly contrasted with the grey concrete around it [26];
(h) the paint colour was consistent with the colour used on public footpaths to indicate service hatches or to indicate the edges of public stairs [26];
(i) the metal bracket was painted yellow because the builders recognised the metal bracket was a trip hazard and painted it in order to alert others to the hazard [30];
(j) the metal bracket and the surrounding yellow area were clear to pedestrians accessing the service yard in daylight hours in November 2009 [30];
(k) the use of yellow paint indicated the need for caution [30];
(l) the employee's trip on the metal bracket had been the only one recorded at the shopping centre although a number of people of different categories used the service area on a daily basis [38(a)];
(m) the employee failed to look down at the ground in front of her and failed to look ahead from the time she started from the corner of the barber shop until she tripped over the metal bracket [31]; and
(n) had she looked to the ground ahead she would have seen the yellow painted area of the metal bracket and its surrounds because of the clear distinction between the yellow paint and the grey concrete [31].
13 All of the above findings of fact are unchallenged in this appeal, save for the finding referred to in (j) of the preceding paragraph.
The grounds of appeal
14 The appellant's grounds of appeal were to the following effect:
1. The judge erred in law and in fact in finding that the metal bracket was clear to pedestrians when that was contrary to the evidence.
2. The judge erred in law in weighing the considerations set out in s 5(4) of the Occupiers' Act and should have found that:
(a) an injury that could very likely result from a trip could be serious and disabling and demanded a high standard of care;
(b) the surrounding area of smooth concrete would have lulled someone unaware of the metal bracket into believing that the service yard was free of hazards, especially in the event of inadvertence of attention; and
(c) the burden of the respondent of repainting the metal bracket and/or increasing the size of the risk warning, was easily discharged and so the burden of going further was also insignificant.
3. The judge erred in law and in fact in finding that further painting would not have avoided the risk of harm when the available evidence was to the contrary.
4. The judge erred in law and in fact in finding that the metal bracket was an 'obvious risk' in terms of s 5F of the Civil Liability Act 2002 (WA) (CLA) when:
(a) it was the protruding metal bracket which was the risk;
(b) the risk posed by the metal bracket required a risk warning;
(c) the faded yellow paint was the respondent's attempt at a risk warning;
(d) the risk warning was inadequate for an isolated hazard of comparatively small size, in an area frequented by workers who could foreseeably succumb to inadvertence or inattention.
15 The judge set out s 5 of the Occupiers' Act at [34] of her reasons:
Duty of care of occupier
(1) Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
(2) …
(3) …
(4) Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to -
(a) the gravity and likelihood of the probable injury;
(b) the circumstances of the entry onto the premises;
(c) the nature of the premises;
(d) the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;
(e) the age of the person entering the premises;
(f) the ability of the person entering the premises to appreciate the danger; and
(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
General 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);
(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.
17 The judge found, relevantly, in relation to the Occupiers' Act that:
(a) the metal bracket presented a low probability of injury and any trip and fall would be onto a hard, but flat, surface and catastrophic injuries would be unlikely to occur [38(a)];
(b) the area was clearly a service yard in a shopping centre, and an area painted yellow in the middle of a flat concrete surface would indicate to a person entering the premises that the yellow area had been painted for some reason, in this case because the raised metal bracket required pedestrians to lift their feet higher over the metal bracket [38(f)]; and
(c) it would cost very little for the respondent to repaint the metal bracket or to write words of warning on the concrete in the area near the metal bracket, however:
(i) there was no evidence that either option would have alerted a pedestrian to the raised metal bracket to any greater extent than they were already alerted by the bracket being painted yellow (albeit chipped) and being surrounded by a block border of yellow paint;
(ii) no evidence was led as to where the words should be painted, what the words should be or what side of the square the words should be painted on; and
(iii) there was no evidence led from which an inference could be drawn that painted words would be any more effective at bringing attention to the raised metal bracket than painting the metal bracket yellow and having it surrounded by yellow paint [38(g)].
(a) the respondent knew, or ought to have known, of the metal bracket and '[h]ad it not been painted yellow or had the yellow not indicated a clear warning' then the respondent should have made it clear [47(a)];
(b) for the reasons outlined earlier, the risk was significant, but catastrophic injury was unlikely to result [47(b)];
(c) (i) the probability that harm would occur if further paint was not applied was very low;
(ii) further painting of the metal bracket would not impact on the likely seriousness of the harm;
(iii) although there was very little burden in further painting the metal bracket, that further painting would not have been a useful precaution to avoid the risk of harm;
(iv) the metal bracket was necessary to lock the gates at night and the gates once opened in the day time needed to remain open in order for the shopping centre to function [47(c)].
20 The judge also found, next, that the painted metal bracket was 'obvious to a reasonable person in the position of' the employee [49]. (Her Honour referred in this regard to s 5F of the CLA - that point is discussed later under ground 4 below.)
21 Her Honour said she did not need to determine the issue of contributory negligence, but she did find that in not looking at the ground between the corner of her workplace and the location of the trip and the fall, the employee had failed to keep a proper look out [51].
Disposition
22 In Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 551, the court said:
[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.
23 In Jones v Darkan Hotel [2014] WASCA 133, the court referred to the above observations in Warren and continued [31]:
Nevertheless, the onus which lies on an appellant who appeals against findings of fact goes beyond merely showing that an alternative finding was available on the facts. An appeal is not a new trial on the evidence, constrained only by the unassailable factual findings: error must be demonstrated: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 [30]. As the Full Court of the Federal Court said in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359:
'The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made (369).'
See also Williams v The Minister Aboriginal Land Rights Act 1983 [2000] NSWCA 255; (2000) Aust Torts Reports 81-578 [60]; Leeder v The State of Western Australia [2008] WASCA 192.
Ground 1
24 The appellant contends that the judge erred in law and in fact in finding that 'the metal bracket was clear to pedestrians' when that finding was contrary to the evidence. This submission was, ultimately, put on three bases. First, the appellant relied on the fact that the employee had not seen it prior to tripping over it [12]. Secondly, it was submitted that the photographs gave a false representation of the obviousness of the metal bracket. Thirdly, the appellant submitted that the judge's finding was contrary to the evidence of the manager. The appellant referred in this regard to ts 27 where counsel for the appellant put a number of hypothetical questions to the manager:
So the more paint that was removed from the bracket and its surrounding concrete apron, the duller that paint become - became, I'm sorry, the less visible the bracket would be. Would you agree with that? … Yes.
Now if this bracket didn't have any yellow paint on - on it at all, it would be hard to pick it up colour-wise from the surrounding concrete apron, wouldn't it? - Yes, if it had no paint. Yes.
And if you didn't see it, that is, if you didn't notice it before you came across this bracket and you somehow tripped on it, you could injure yourself? … Yes.
And if you tripped on this walking across a concrete apron, depending on how you fell, you could injure yourself quite badly, couldn't you? Yes.
25 As a preliminary observation, the judge's finding was, relevantly, that 'although some of the paint had been chipped off [the metal bracket], the metal bracket and the surrounding yellow area were clear to pedestrians accessing the service yard in daylight hours in November 2009' [30].
26 As to the first matter relied on by the appellant, the fact that the employee did not herself see the metal bracket before she tripped is not inconsistent with the judge's findings. The judge also found, and there is no challenge to this finding of fact, that the employee had 'failed to look down at the ground in front of her and failed to look ahead' [31].
27 As to the second matter relied on by the appellant, there were a number of photographs taken from various angles and positions. Her Honour recognised this and plainly took it into account when she observed:
Counsel for the plaintiff submits that, consistent with photograph exhibit 1.4, it is difficult to see the metal bracket from a position at the front corner. I accept it is difficult to tell from the photograph how visible the yellow area is from the front corner of the service yard, however Ms Douglas walked forward from this point in the direction of the bracket. The photographs are consistent with the yellow surround being clearer when closer to the metal bracket and the bracket being much clearer from the camera angles closer to the bracket than from camera angles indicative of being located further back at the barbershop front corner [29].
28 When all the relevant photographs are considered, and bearing in mind the obvious correctness of the preceding observation by her Honour, it cannot be said that her Honour's finding was contrary to the evidence.
29 As to the third matter, the hypothetical state of affairs the subject of the cross-examination referred to earlier does not provide any evidence that the judge's finding of fact was incorrect. The finding was, and it was open on the evidence, that the metal bracket had been painted yellow and some paint had chipped off, but there was, in any event, a yellow painted border around the whole bracket.
30 Ground 1 should be dismissed.
31 Counsel for the appellant in effect accepted that if ground 1 of the appeal did not succeed then the appeal as a whole would not succeed (appeal ts 9). Nevertheless, for completeness, the other grounds are addressed below.
Ground 2
32 The appellant contended, first, that '[c]ase law has indicated that in any matter involving a fall onto hard surface involves a likely seriousness of harm [sic] (Fullin v WR & EM Kennedy Nominees Pty Ltd t/as Franbridge Distributors [2013] NSWDC 70)'. In this regard, it was submitted that the judge erred in failing to consider the prospect of injury less than 'catastrophic' injury.
33 These submissions do not demonstrate error. The judge's findings at [38(a)] (and [47(b)] which refers back to her Honour's earlier finding) are to the effect that whilst there was a probability of injury, it was a 'low probability' and that moreover, catastrophic injury would not be likely to occur. Properly construed, her Honour's reasons indicate that she accepted that there was a real risk of serious injury, but in addition, she was observing that 'catastrophic' injury would be an unlikely occurrence resulting from a trip over the bracket.
34 Further the probability of injury was not a legal question governed by case law, and the reference to Fullin is misconceived. In any event, in Fullin the plaintiff had fallen from a landing. The case provides no conceivable analogy, even on the facts.
35 Next, the appellant alleged that the judge failed to consider the evidence of the manager (ts 27) 'which indicates that much of the paint on the metal bracket had deteriorated'. There is no merit in this. First, the judge found as a fact that 'some of the paint had been chipped off the metal bracket' [30]. The judge plainly did take into account that paint on the metal bracket had deteriorated. Secondly, her Honour found, and the findings are unchallenged, that the '6 cm solid border remain[ed] almost intact' and that as a result, there was 'a contrast between the grey concrete surface of the service yard, the painted yellow solid border and the metal bracket in the middle that has exposed metal showing' [26].
36 The appellant also contended that the judge failed, in effect, to have regard to the fact that the respondent had taken steps to repaint the metal bracket and increase the size of the painted yellow area around the metal bracket subsequent to the accident. It was said that this demonstrated that the burden on the respondent of taking further steps to paint the area was easily discharged, and that the respondent recognised the need to make the metal bracket more visible.
37 Subsequent painting did not constitute an admission of liability, but only went to show what could have been done prior to the accident: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 [96]; M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 [176]. Moreover, the judge did have regard to the fact that it would 'cost very little' to repaint the metal bracket [38(g)] and that there was 'very little burden in further painting' [47(c)(iii)]. The judge accordingly plainly did take into account the fact that further repainting could easily have been undertaken by the respondent.
38 Ground 2 should be dismissed.
Ground 3
39 Ground 3 alleges that the judge erred in law and in fact in finding that further painting would not have avoided the risk of harm when the available evidence was to the contrary. The appellant referred to the evidence of the manager at ts 23, 29 and 30. At ts 23, the relevant evidence was:
And had you wanted to at the time, it would have been possible for the - for the owner to have put up signs saying 'do not use this service yard to go through to the toilets'. That could easily have been done, could it not? - - -Yes, but we can't stop people - okay, yeah.
Just asking the question whether it could have been done or not. Is the answer, yes, it could have been done?- - - We could have done it.
40 At ts 29 there was the following exchange:
And you've seen those signs on council footpaths that you read as you walk along that say things like, 'Beware cyclists', or for cyclists, 'Beware pedestrians', painted on the footpath. Have you seen those sorts of signs? - - - Yes.
…
[I]t's a useful way of - of jogging your memory, isn't it, to - that brings you - that snaps you back to attention. You might be thinking about something else but it brings to your mind that there may be cyclists or there may be pedestrians using the footpath with you? - - - Yes.
41 At ts 30 there was the following exchange:
And again, someone walking towards the metal bracket, just as someone is walking down the footpath and sees a sign in front of them on the pavement that says 'beware' or 'warning' or 'hazard', whatever they're thinking at the time, they now have something else to remind them of what's coming up, don't they? - - - Yes.
So that if they didn't spot the bracket because the paint had worn off and it was hard to pick it up from the surrounding apron, the concrete apron, this sign or something like that would be an additional measure that would say 'hey, pay attention. Keep your eyes open. Watch out for what's ahead', wouldn't it? Yes.
42 The first of those passages of evidence goes merely to the ability to erect a sign, and does not demonstrate that further painting would have avoided the risk of harm. The second passage is directed to signs which warn of hazards caused by bustle and movement within a confined area (pedestrians being warned to be aware of cyclists on a footpath and cyclists being warned to look out for pedestrians). The witness's acceptance of the hypothesis put in cross-examination did not involve an admission by the respondent to the effect that a painted warning in a service yard concerning the existence of a metal bracket would be a more effective warning than painting the bracket and painting a yellow border around the bracket. In any event, much would depend upon the details and size of the painted warning and the location on which the words were painted. Her Honour said that there was no evidence as to such matters and that finding is not challenged [38(g)]. The evidence does not indicate, as ground 3 alleges, that further painting would have avoided the risk of harm. As to the third passage of evidence, the relevant premise in the question was that pedestrians 'didn't spot the bracket because the paint had worn off and it was hard to pick it up from the surrounding apron'. However, her Honour found, in effect, that the premise of the question, insofar as it assumed that the bracket and its yellow surrounds were not visible, was false.
43 Moreover, the question of whether further painting would have avoided the risk is irrelevant if her Honour's finding that the painting of the metal bracket (albeit with some paint chipped off over time) and painting a yellow border around it constituted a reasonable response to the risk - to which grounds 1 and 2 of the appeal are directed and which, for the reasons given earlier, have no merit.
44 Ground 3 should be dismissed.
Ground 4
45 This ground alleges that the judge erred in finding as a fact that the metal bracket was an 'obvious risk'. The finding was that the painted bracket was, in the circumstances, 'obvious to a reasonable person in the position of [the employee]' [49].
46 That conclusion is, in substance, a restatement of the earlier finding that the metal bracket and the surrounding area painted yellow were clear to pedestrians accessing the service yard in daylight hours in November 2009 [30]. If the finding at [30] of her reasons cannot be successfully challenged, then this finding is not open to challenge. However, even if the finding at [49] were open to challenge, it would not affect the judge's ultimate conclusion. That is because the finding appears toward the end of her Honour's reasons, following the ultimate conclusory finding that by failing to further paint the metal bracket on the surrounding area, the respondent was not in breach of the duty it owed the employee.
47 In oral submissions at the hearing of the appeal, counsel for the appellant mentioned another point not raised in the grounds of appeal. That was that her Honour's reference in this context to s 5F of the CLA was erroneous in that s 5F of the CLA operates within div 4 of the CLA concerning recreational activities.
48 Whilst her Honour does appear to have been in error in that regard, the point does not assist the appellant for two reasons. First, there was no application to amend the grounds of appeal. Secondly, as noted above, the finding that the risk was 'obvious' is, in substance, a re-statement of the earlier finding that the metal bracket and the surrounding area painted yellow were clear to pedestrians accessing the service yard in daylight hours in November 2009 [30]. Accordingly, any legal error made by her Honour is irrelevant to the disposition of the appeal.
49 There is no merit in ground 4.
Conclusion
50 The appeal should be dismissed.
51 MAZZA JA: I agree with Murphy JA.
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