Jones Lang Lasalle (Vic) Pty Ltd v Korlevski
[2012] VSCA 305
•14 December 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0142
| JONES LANG LASALLE (VIC) PTY LTD | Appellant |
| v | |
| MIHO (MICHAEL) KORLEVSKI | First Respondent |
| and | |
| LEA GROUP NORTH (VIC) PTY LTD | Second Respondent |
S APCI 2011 0143
| JONES LANG LASALLE (VIC) PTY LTD | Appellant |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Respondent |
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| JUDGES | WARREN CJ, NEAVE JA and FERGUSON AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 24 October 2012 |
| DATE OF JUDGMENT | 14 December 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 305 |
| JUDGMENTS APPEALED FROM | Korlevski v Lea Group North (Vic) Pty Ltd & Ors [2011] VCC 1168 (Judge Hogan); VWA v Jones Lang Lasalle (Vic) Pty Ltd & Ors [2011] VCC 1169 (Judge Hogan) |
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NEGLIGENCE − Occupier’s liability − Duty of care − First respondent injured when slipped when cleaning wet stairs − Whether trial judge erred in finding that stairs were not adequately slip resistant − Causation conceded at trial − Whether appellant entitled to make new argument on causation on appeal − Appeal dismissed.
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| APPEARANCES: | COUNSEL | SOLICITORS |
| For Jones Lang Lasalle (Vic) Pty Ltd | Mr R H Gillies QC with Mr R W Dyer | Marque Lawyers |
| For Miho (Michael) Korlevski | Mr P A Jewell S.C. with Mr M J Ruddle | Slater & Gordon Lawyers |
| For Lea Group North (Vic) Pty Ltd | Mr M F Wheelahan S.C. with Mr S E Gladman | Thomsons Lawyers |
| For Victorian WorkCover Authority | Mr S A O’Meara S.C. with Ms S Manova | Wisewould Mahony |
WARREN CJ:
I have had the benefit of reading in draft form the reasons for judgment of Neave JA. I agree with her Honour, for reasons that she gives, that the appeal should be dismissed.
I would add that this is a clear case of the appellant attempting to run a new case on appeal. It should not be permitted to do so.
As the High Court held in University of Wollongong v Metwally (No 2),[1] it is only in exceptional cases that a new argument can be raised for the first time on appeal:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.[2]
[1](1985) 60 ALR 6.
[2]Ibid 71.
A new argument will not be permitted if the fact that the argument was not raised below would prejudice the other party’s ability to respond to it. That is, it will not permitted if the other party may have been able to rebut the argument at trial by conducting its case differently or calling additional evidence:
It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial.[3]
[3]Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 [51] (Gleeson CJ, McHugh and Gummow JJ). See also Multicon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631, 645.
Even if the other party is not disadvantaged by the fact that the new argument was not raised at trial, for example, if the argument raises a pure question of law that the other party could not have avoided by conducting its case differently, the party seeking to raise the new argument is not entitled to do so as of right:
A party does not have a right to insist that a new point be decided on appeal simply because all of the facts have been established beyond controversy or
the point is one of construction or of law, even constitutional law. This is because it remains a question of whether the appellate court ‘may find it expedient and in the interests of justice to entertain the point’.[4]
[4]Multicon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631, 645, cited with approval in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 [51] (Gleeson CJ, McHugh and Gummow JJ). See also Lucke v Cleary [2011] SASCFC 118 [47] (Stanley J, Gray and David JJ agreeing).
To determine whether the argument sought to be raised is new, the appellate court must look at how the parties actually conducted their cases at trial:
[A] point may be a new point even though it is within the pleadings or particulars. The pleadings and particulars are frequently decisive in determining whether a party is seeking to raise a new point on appeal. But they are not conclusive. To determine whether a party is raising a new point on appeal, it is ‘necessary to look to the actual conduct of the proceedings’.[5]
[5]Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 [52] (Gleeson CJ, McHugh and Gummow JJ) (footnote omitted).
The trial judgment is ‘usually the best indication of what matters were in issue at the trial’.[6]
[6]Ibid [50] (Gleeson CJ, McHugh and Gummow JJ).
The appellant’s principal argument on appeal was that there was no causation because the worker’s method of cleaning the stairs was so dangerous that the accident was inevitable even if the stairs had excellent traction. For reasons explained by Neave JA, this was not the way in which the appellant put its case at trial. Had the case been put in this way at trial, it could have been met by additional evidence. The appellant should not be permitted to frame its case in an entirely new fashion on appeal.
The appeal should be dismissed.
NEAVE JA:
The appellant, Jones Lang Lasalle (Vic) Pty Ltd (‘JLL’), appeals against orders made by a County Court judge in two related proceedings. In the primary proceeding, the judge awarded Mr Miho (Michael) Korlevski (the first respondent)
damages of $491,172 against JLL, the manager of the Barkly Square Shopping Centre in Brunswick (‘shopping centre’), and against Mr Korlevski’s employer, Lea Group North (Vic) Pty Ltd (‘Lea Group’) (the second respondent) for injury caused by their negligence.[7] Her Honour held that responsibility for payment of the damages was to be divided equally between JLL and Lea Group.
[7]Mr Korlevski also claimed damages from ISPT Pty Ltd (‘ISPT’), as the owner of the premises, and Gough Bay Pty Ltd (‘Gough Bay’), which had contracted with the owner of the premises to provide cleaning services. At the time of judgment, Mr Korlevski had settled his claims against both ISPT and Gough Bay, although Gough Bay remained a third party to the proceeding, having been joined by JLL. Neither ISPT nor Gough Bay were parties to the appeal.
In the second proceeding, the judge made an order under s 138 of the Accident Compensation Act 1985 requiring JLL to indemnify the Victorian WorkCover Authority (‘VWA’) in the sum of $173,978.15.
Background
Mr Korlevski suffered a serious injury when he slipped on wet stairs whilst working as a cleaner at the shopping centre. He had begun working there in about May 2004, and was injured on 12 July 2004. At that time, he was 54 years old and had worked for many years as a cleaner after immigrating to Australia in 1969.
When he first began working at the shopping centre, he was given instructions by his supervisor from the Lea Group as to the location of the cleaners’ room and equipment, and the nature of his duties, but not instructed about how to carry them out.
On the day he was injured, Mr Korlevski was cleaning the stairwell leading from the ground floor of the shopping centre to the management offices on the first floor. There were three flights of painted concrete stairs with a concrete landing at the head of each flight of stairs.
Following his normal cleaning routine, Mr Korlevski mopped one step at a time and then dried each step in turn with a damp mop. Unfortunately, he slipped on a wet step, which he thought was probably the third or fourth step from the bottom, and landed awkwardly on his right ankle. Since there is no appeal against the quantum of damages awarded, it is not necessary to describe the nature of his serious injury.
Issues and evidence
Evidence for Mr Korlevski
Mr Korlevski’s Further Amended Statement of Claim pleaded, among other things, that JLL was negligent by failing to ensure the steps were safe, failing to properly inspect the stairwell so as to identify potential slipping hazards, and by (among other things):
(i)failing to take reasonable care for the safety of the Plaintiff in the circumstances;
(j)failing to carry out any or any adequate risk assessment relating to cleaning of the steps;
(k)failing to perform any or any adequate slip resistant assessment for wet conditions of the steps;
(l)failing to provide any or any adequate slip resistant material on the surface of the steps;
(m)failing to apply slip resistant steps on the surface of the steps;
(n)failing to apply a substance over the surface of the steps to create a rougher profile for the surface of the steps;
…
(q) failing to take regular and timely;
(i) inspection;
(ii) maintenance;
(iii) repair
of the steps
…
(y)the [Third] Defendant knew or ought to have known that the steps was likely to be a risk of the worker’s health and safety and failed to examine and assess the risks with respect to:
·the tasks to be performed by persons, including the worker, at the premises;
·analysing the requirements of carrying out the duties and the work safely and without risk to injury;
·taking appropriate precautions to ensure that appropriate warnings were given, assistance was provided and risks were minimised or eliminated.[8]
[8]Further Amended Statement of Claim, 18 March 2011 [17].
At the trial, which commenced before a jury, the central point of dispute between Mr Korlevski and JLL was whether the stairs had an adequately slip resistant surface at the time when Mr Korlevski fell.
In his evidence, Mr Korlevski said that he usually started work at around 7 am and after performing some other tasks, he cleaned the stairs with a mop. He did this by walking backwards down the stairs from the first floor to the ground floor and mopping each step at a time with a mixture of water and detergent. When he arrived at the bottom of the stairs, he rinsed and dried the mop by squeezing it between the rollers in the bucket, and then removed moisture from the steps one at a time by repeating the process of walking down the stairs backwards and mopping them as he went.
Mr Korlevski said that he regularly met Tom McAuliffe, the Operations Manager for JLL, on the ground floor when Mr McAuliffe arrived at work and warned him to be careful because the stairs were wet. He had repeatedly complained to Mr McAuliffe that the steps were slippery when wet and that ‘something needed to be done’.[9] Nothing was done to address the problem.
[9]Mr McAullife had died before the matter came to trial.
On the day he was injured, he was dry mopping the stairs and slipped. He gave evidence as follows:
What caused you to slip? --- The wet steps.
Can you recall which foot of yours slipped? --- Right foot, yeah.
When that happened what happened to your right foot? --- It was painful and - - -
But when you slipped - - -? --- OK, sorry.
What happened to your right foot? What happened to it? --- As I'm coming down doing my job, my right foot - like, reaching the next step down the right foot, I tried to step on the next flight of steps. My ankle twist and - - -
Did it twist outwards? You're using your hand. Did it twist - - -? --- Like, I stepping on the steps and my - slipped and my ankle sort of lost control. I couldn’t grab it and slided down on - hitted the steps - next steps and I hit the concrete, you know, with my foot. And I tried to grab the rail and I - like, I throw the mop and I tried to grab the rail. Was so painful and I - - -
Did you grab the rail? --- I tried to grab it. Yeah, next to me was the rail.
Did you actually fall down or not? --- I - just the fall, yeah, on the steps. I tried to support myself on the rail, but my (indistinct) sort of (indistinct) me, or my weight, and I sort of land on the actual stairs…
Mr Korlevski said that he had never been instructed how to clean the steps or spoken to about dangers in doing so and how to avoid them. He said that he was wearing rubber soled boots in good condition when he slipped. This was not contested on appeal.
In cross-examination by counsel for Lea Group, Mr Korlevski was asked why he had not dried the stairs from the bottom up, walking forwards. He explained that:
In my knowledge, experience - very danger. Imagine me working - like up one foot where I can - to do the upwards, as we know, going - dirty them again. You know what I mean? Like stepping in there, and that mean I’m not achieving any good result. Coming down, this mean nobody will walk on that clean floor. By the time I finish, that’s mean other part be dry and - and clean.
He said that it would be impossible to avoid dirtying the steps if he walked up them while they were wet. In re-examination, he said that he had never been told to dry the steps by walking forwards with the mop or seen it done that way.
In cross-examination by counsel for JLL, it was put to Mr Korlevski that he had identified the stairs from a photograph taken in 2010, which depicted grey stairs and that JLL would produce records to show they had not been painted grey until 2008. It was also put to him that JLL would call a painter John Carboni, who would say that he had repainted the stairs with a green paint containing grit, shortly before Mr Korlevski’s accident. Mr Korlevski, who had not been back to the shopping centre after he ceased work because of the injury, maintained that the stairs had grey paint on them in 2004 and said ‘I never witness the stairs being painted since I work in there’.
Mr Mark Dohrmann, an engineer who had practised as an independent workplace safety advisor for approximately 35 years, was called as an expert witness for Mr Korlevski. Mr Dohrmann had initially visited the premises on 11 February 2010 and used a ‘Stanley Pendulum’ test to determine slip resistance on an area painted with grey paint adjacent to the stairs. In his evidence in chief, he said that test showed that the grey paint made a ‘high to very high’ notional contribution to the risk of slipping. He also said that the grooves in the concrete which started about 50 millimetres back from the nose of the step would not have made much difference to the slip resistance of the stairs.
It was put to him in cross-examination by counsel for JLL that evidence would be led showing that two months before Mr Korlevski slipped, the stairs had been painted with Berger Jet Dry paint. He was asked whether ‘if the painter gives evidence that he did that job, you wouldn’t expect there to be any noticeable wear within a couple of months’ and he agreed that this was the case. He said that ‘it may well have been’ acceptable to paint the steps with Berger Jet Dry paint, but he was reluctant to express a clear view about the effectiveness of the paint without testing.
In re-examination, Mr Dohrmann was asked whether, in light of the fact that Mr Korlevski was wearing appropriate footwear, he could say anything about the properties of the paint on the stairs at the time the slip occurred. He responded that ‘those facts, if true, increase the likelihood that the surface where the slip began, was not sufficiently slip resistant; that it was unsafe at that point’.
Mr Korlevski’s counsel[10] then made an application for the jury to be discharged, on the basis that the conduct of the trial had prejudiced Mr Korlevski because his legal advisers had not been made aware of evidence that the stairs had been painted over with grey paint in 2008, or of documents bearing on the question whether the paint applied to the stairs in 2004, a few months before Mr Korlevski began working at the shopping centre, was adequately slip resistant. It was argued that the plaintiff had been ambushed because he was unaware of these matters when the expert report of Mr Dohrmann had been obtained in 2010.
[10]JLL sought a view of the stairs to permit the jury to determine the qualities of the paint, which was refused by her Honour.
The judge accepted that submission, discharged the jury and decided to continue hearing the matter without a jury. She adjourned the case part heard to enable Mr Dohrmann to revisit the premises and provide a new report and made orders for further discovery against JLL.
Dohrmann visited the premises on 30 March, 1 April and 7 April 2011. He was accompanied by an experienced painter, Mr Edmund Perkins, on his third visit. By that time, it was common ground that when Mr Korlevski slipped, the surface of the stairway was covered with green paint, which had been applied by John Carboni and his employee, Bruce Knowles, in April 2004. The only areas where the original green paint was not covered by grey gloss paint were a small foyer area outside a female toilet and a narrow strip at the threshold of a door at the top landing of the stairwell.
On 30 March 2011, Mr Dohrmann examined the threshold area. He gave evidence that a small part of that area was ‘relatively grit free’ in comparison with some other parts of the threshold. On his second visit, he conducted a Stanley Pendulum test of the foyer area of the ladies’ toilet, which had been painted by Mr Carboni in April 2004 with the same green paint that was applied to the stairwell and unlike the stairs, had not been painted over in 2008. Mr Dohrmann’s evidence was that there was a well‑distributed pattern of grit in the foyer area, and that the surface showed adequate slip-resistance when wet. His conclusion was that the risk of slipping if the foyer area was wet was very low.
He also said he had looked at information on a Dulux website about the properties of the Jet Dry Paint. However, Mr Dohrmann was not able to conclude that the steps had been painted or prepared to the same condition as the toilet foyer. He explained that the slip-resistance of the green gritted paint could vary from place to place depending on numerous factors, including the quality of the surface preparation, the quantity and distribution of the grit, and the evenness and frequency with which the grit was added into the paint.
On 7 April 2011, Mr Dohrmann attended the shopping centre again, with Mr Perkins. He gave evidence that:
it was made very clear to us from the outset that we were not allowed to scrape, remove or in any way interfere with the painted surface…while we were there. We were allowed to look essentially, make observations and any measurements that didn’t involve the removal of any sample.
Based on his observations, Mr Dohrmann concluded that a single coat of green gritted paint had been applied to the stairwell, which was later covered with one or two coats of grey gritless paint. By ‘observing’ and ‘feeling’, he was able to say that there was ‘little grit evident in any of the paint at and around the nose of [the third] step’. There was a little more grit on the fourth step, but it was dispersed irregularly and on the fifth step, the grit was also sparse.
He said that although paint wears away over time on the nose of the steps, he had also noticed a lack of grit away from the worn noses of the stairwell, where people do not normally walk.
From his observations, he concluded that:
the fact that there has been only a single coat of Jet Dry applied and established by observing the exposed wear areas, mainly the nosings, looking at the layers which had been exposed, and from the brushstrokes evidenced from the dispersal of residual grit - the relevance of the brushstrokes is essentially that if everything is done according to specification and requirement, each stroke of the brush spreads grit about. And particularly if
you do two coats, the idea is that the - a well stirred, well dispersed quantity of grit will spread grit reasonably uniformly through the surface concerned.
Mr Dohrmann’s evidence was that if a second coat of grit paint had been applied, there would have been a better, more dispersed slip resistant outcome.
In cross-examination, he was asked if ‘walking backwards down a set of stairs is a hazardous operation’. He responded:
Well, it can be, yes. Walking down a set of steps front or back ways has risks associated with it. I would expect that a person walking backwards is probably exposed to more risk than one coming frontwards but all things being equal I wouldn't add anything to that.
Counsel for JLL put it to Mr Dohrmann that it was likely that the green paint would have been ‘in pretty much pristine condition’ at the time Mr Korlevski had his accident. Mr Dohrmann conceded that the wear on the noses of the steps could have occurred after Mr Korlevski was injured, but said that away from the noses there were smooth areas, which seemed to indicate a lack of grit. He conceded that drawing conclusions about the characteristics of the green paint on the stairs when they had been painted over by grey paint was ‘not without its difficulties’, but repeated his evidence that there was a lack of grit on areas where there was little traffic, such as the sides of the stairs.
Mr Edmund Perkins, the painter who attended the shopping centre to inspect the stairs with Mr Dohrmann gave evidence that he had used Jet Dry Paint and similar paints over the years, and about the techniques used to ensure even distribution of gritted paint. He said that any first coat of the paint was always patchy and that it was the second coat which gave consistent cover. In order to ensure an even distribution of the grit, it was necessary to stir the grit in the paint so that it did not settle. If this were not done, the grit would sink to the bottom of the can and would not go on to the surface. He said he had observed that the distribution of grit on the stairs was patchy and inconsistent, and there were clear patches where the paint contained no grit.
In cross-examination by counsel for JLL, he agreed that the coverage of grit under the doorway at the top of the stairs was quite good.[11] Although he agreed that it was difficult to assess the state of the stairwell six or seven years earlier, he said that there should have been consistency of grit in parts of the stairs that are not used, such as the back and rise of the stairs. He maintained his view that only one coat of green gritted paint had been applied to the stairs.[12]
[11]Although there was some lack of clarity in his evidence, he said in cross-examination that he had not inspected the foyer area in the toilet.
[12]Her Honour rejected an application to exclude the evidence of Mr Perkins on the basis that he lacked relevant expertise.
Evidence for JLL
JLL called Mr Carboni as a witness. He said that in April 2004, he had painted the stairwell and foyer area of the shopping centre with his employee, Bruce Knowles. They had used Berger Jet Dry gritted green paint. The grit was added in the paint shop. The technique for applying the paint was to paint the edges of the steps with a brush and to paint the middle of the steps with a roller. When a brush was used the grit was stirred up in the can with the brush and when the roller was used it was stirred with the roller.
In cross-examination, Mr Carboni said that the person who applied the paint had responsibility for stirring the grit in the paint. Mr Carboni was asked whether he had been asked to include grit in the paint by Mr McAuliffe and he said he could not remember. Nor had he considered whether or not the stairs might be wet during use. Although both he and Mr Knowles had been involved in applying the paint on the first night, he had only been present for a couple of hours on the second night and had left Mr Knowles to complete the bulk of the job alone. Mr Knowles was not called by JLL as a witness at the trial.
Because there was initially some dispute about when the stairs were painted green, JLL relied in evidence on a purchase order dated 2 April 2004 and a tax invoice dated 26 April 2004, relating to the painting of the ‘concrete stair surfaces of the entry stairwell to Centre management’. Neither document specified the paint to be used nor referred to the need to use slip resistant paint.
Mr Carboni agreed that it was necessary to apply two coats of the Berger Jet Dry in order to satisfy manufacturer’s specifications. He said that although he had gone back on two occasions before the trial to look at the stairs, he had never been asked to verify whether there were one or two coats on the stairs. He admitted that the grit on the stairs was ‘a bit patchy’, and that although there was grit in some areas there were other areas which were ‘very smooth’. Mr Carboni also said that there were no adhesive strips on the edge of the stairs when he painted them.
In re-examination by counsel for JLL, he said that:
as my original coat wears out and the grit wears out in areas – in the trafficked areas, as soon as you put another coating over the top of it like the gloss that’s there now, it’d make it look smooth and as if there’s no grit at all.
JLL also relied upon an expert report dated 4 April 2011 from Consulting Engineer, Mr Richard Lightfoot. Mr Lightfoot was asked to test the slip resistance of the toilet foyer area. Like Mr Dohrmann, he tested the area with a Stanley Pendulum and concluded that there was an even coating of the abrasive material across the painted area and that the risk of slipping on that area when it was wet was ‘very low’. He expressed no direct opinion about the state of the stairs. However, in his report, he said that:
The factors that still have to be consider[ed] are:
(a)If there is any foreign material on the stair that is likely to blind the abrasiveness of the sealing material,
(b)The activity that is being conducted, namely walking backwards down the stairs,
(c)The size of step and,
(d)Any other factors.
It must be appreciated that if a person was on the stairs and stepping backwards there was a considerable potential of footwear rolling on the nosing of the tread as a person steps down and as a consequence loss of balance and falling backwards could occur. Walking backwards down a set
of stairs is not recommended as this is very difficult to maintain control of balance and to identify where the foot is being placed.[13]
[13]Report prepared on behalf of Casconsult Pty Ltd: Consulting Engineers by Richard M Lightfoot, 4 April 2011, [8].
Her Honour’s reasons
Her Honour described Mr Korlevski’s case against JLL as follows:
Firstly, that in circumstances where a cleaner like himself was required to wet-mop the steps and walk backwards down them when wet, it failed to provide an adequate slip-resistant surface on the steps for when they were wet. Secondly, notwithstanding the plaintiff’s complaints to JLL’s Operations Manager, nothing was done to address the problem of the steps being slippery when wet. Thus, the plaintiff argues that JLL is in breach of its duty as an occupier pursuant to s 14B of the Wrongs Act 1958 to take reasonable care to ensure that a person such as himself would not be injured by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.[14]
[14]Korlevski v Lea Group North (Vic) Pty Ltd & Ors [2011] VSC 1168 (‘Reasons’) [9].
Having regard to the matters set out in s 14B(4) of the Wrongs Act 1958, the judge found that JLL had breached its duty of care as an occupier by not taking steps to ensure that the green gritted paint on the stairwell was ‘adequate to ensure that a person could safely walk on those steps when wet’.[15] Although Mr Korlevski was cross-examined about the risks of drying the steps with a mop while he walked downstairs, her Honour noted that JLL had not suggested that Mr Korlevski had ‘contributed to his accident by his own negligence in any way’.[16] Her Honour’s finding that JLL had breached its duty of care was based on the following matters.
[15]Ibid [76].
[16]Ibid [40].
First, the judge found Mr Korlevski to be a truthful witness, and gave considerable weight to his repeated complaints that the steps were slippery when wet. She noted that Mr Korlevski was an experienced cleaner, and it was significant that his complaints were confined to the slipperiness of the stairwell, even though he cleaned other areas, including the toilets.
Secondly, although her Honour was unable to determine whether Mr Carboni and Mr Knowles had applied one or two coats of green gritted paint on the stairs, she was satisfied on the balance of probabilities that the coating of green paint applied in April 2004 ‘was not such as to provide adequate slip-resistance when the steps were wet’.[17] Her conclusion was based on the following evidence:
·Both Mr Dohrmann and Mr Perkins gave evidence that the grit was unevenly distributed on the steps, including away from the worn nose of the steps in areas where there was no or little foot traffic (such as the back of the steps or the rise of the stair). Accordingly, Mr Carboni’s evidence that grit could wear out, and once covered with a new coat of paint, the surface would appear as if there had been no grit underneath, was an unlikely explanation for the non-gritted areas. It was more likely that the grit was not evenly dispersed through the paint when applied by Mr Carboni.
·It was difficult to accept Mr Carboni’s description of the process that he followed when painting the stairs in 2004, since he was not asked to consider this issue until over six years later. Mr Carboni admitted that he had never used Berger Jet Dry paint on any stairs prior to painting the steps at the shopping centre.[18] Mr Carboni’s work was under scrutiny and he was ‘very anxious to give a good account of the job that he had done’. Accordingly, her Honour was not satisfied of the reliability of Mr Carboni’s evidence that the gritted paint had been carefully and evenly applied.
·Mr Carboni did not see the final finish on the steps because he left his employee, Mr Knowles, to complete the job. Her Honour said that no explanation was given by JLL for failing to call Mr Knowles and in these circumstances, it was ‘appropriate to draw an inference that the evidence of Mr Knowles would not have assisted JLL’.
·Mr Carboni gave evidence that he did not consider that the stairs might become wet in the course of their use, had never had any communication with Mr McAuliffe about whether any tests should be done to ensure they had a slip resistant surface. Her Honour found that the paint selection by Mr McAuliffe and/or Mr Carboni ‘was not made in consideration of the steps needing to be non-slippery when wet’.
[17]Ibid [76(2)].
[18]Nor was there any evidence as to whether the specifications for Berger Jet Dry non-slip paint, which were tendered by counsel for JLL part-way through his final address, was the same product used by Mr Carboni in 2004, or even that this particular paint was available at that time.
Counsel for JLL had admitted that, as the manager of the shopping centre, JLL was an occupier of the premises and owed a duty of care to persons like Mr Korlevski who was performing work at the centre.[19]
[19]Ibid [103].
The judge held that a reasonable person in JLL’s position would have foreseen the risk of injury to Mr Korlevski. In particular, since Mr Korlevski had complained to Tom McAuliffe, JLL’s representative, that the steps were slippery when wet, JLL had ‘specific knowledge that the plaintiff was the person most likely to be affected by the slipperiness of the steps when wet as he performed the wet-mopping required of him’.[20]
[20]Ibid [107].
The judge found that the risk of injury could have been ‘effectively and inexpensively’ addressed.[21] In particular, the judge accepted Mr Dohrmann’s evidence that an appropriately applied second coat of gritted paint was likely to have provided an adequate slip resistant surface on the steps and that an even cheaper alternative would have been to provide slip resistant strips on the edge of each stair, at the cost of approximately $2.00 per stair.[22]
[21]Ibid [118].
[22]Ibid [116].
Grounds of appeal
The grounds of appeal in both the primary proceeding and the VWA proceeding were the same. They are as follows:
1. The learned trial judge erred in finding that the Appellant (Third Defendant) breached its duty to the First Respondent (Plaintiff) as occupier.
2. There was no evidence upon which the learned trial judge could reasonably have found that the step (‘the step’) on which the First Respondent slipped in April 2004 (‘the date of the accident’) lacked a reasonably adequate slip resistant surface.
3.The learned trial judge erred in holding that, assuming parts of the steps lacked a reasonably adequate slip resistant surface in 2010/2011, such alleged lack of slip resistance was:
(a)present on the step as at the date of the accident;
(b) a cause of injury to the first respondent.
4.There was no evidence upon which the learned trial judge could reasonably have found that the grit on the step was not evenly dispersed as at the date of the accident.
5. There was no reasonable basis for the learned trial judge to conclude that, assuming there was a lack of evenly dispersed grit on the steps in 2010/2011:
(a)the step lacked a reasonably adequate slip resistant surface as at the date of the accident;
(b) the step was the cause of the accident.
6. The learned trial judge erred in holding that it was more probable than not that the green gritted paint when applied to the steps as at the date of the accident did not provide the same degree of slip resistance as when it was applied to the ladies’ toilet area.
7. It was not reasonably open to the learned trial judge to find that the steps lacked a reasonably adequate slip resistant surface as at the date of the accident in light of the finding that she could not be satisfied one way or the other whether one or two coats of green gritted paint had been applied to the steps.
8.It was not reasonably open to the learned trial judge to find that the paint selected for the coating of the steps as at the date of the accident was such that it did not provide a reasonably adequate slip resistant surface when the steps were wet.
9. The learned trial judge erred in holding that the Appellant breached its duty to the First Respondent on the basis that the First Respondent was required to walk backwards down flights of wet concrete steps in the absence of any evidence that the Appellant knew this fact.
10.The learned trial judge erred in finding that the appellant breached its duty to the First Respondent by failing further to reduce the risk of slipping on the step.
The causation issue: grounds of appeal 3(b) and 5 (b)
JLL’s submissions
Under s 51(1) of the Wrongs Act 1958, a determination that negligence had caused particular harm comprises two elements. These are:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
The first element requires the judge to consider whether the accident would have occurred ‘but for’ the occupier’s breach of duty.[23]
[23]Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, 440 [45].
JLL’s primary submission was that, even if it was open to the judge to conclude that JLL breached the duty of care imposed on it by s 14B of the Wrongs Act 1958, it was not open for her to find that Mr Korlevski would not have been injured but for that breach.
Senior counsel for JLL[24] submitted that the process of walking backwards down the stairs was dangerous, that walking backwards down stairs holding a mop was even more so, and that walking backwards down stairs which were wet with water containing detergent whilst holding a mop was particularly dangerous. It followed that Mr Korlevski’s injury was caused by an accident which the appellant could not have prevented. Although it was conceded at trial that a breach of duty would have been made out if JLL had not acted upon a hazard which had been brought to its attention, there was no concession on the issue of causation. Mr Korlevski had not proven that the accident was caused by JLL’s failure to ensure the steps were adequately slip resistant. Rather, his case had been conducted on the unjustified assumption that the application of gritted paint would have prevented the accident.
[24]At the hearing of the appeal, senior counsel for JLL appeared with counsel who represented JLL at the trial.
Submissions for Mr Korlevski, Lea Group and VWA
Mr Korlevski submitted that the whole case against JLL had focused on whether or not paint containing grit had been properly applied to the stairs.[25] JLL had conceded that if the stairs were hazardous because they were slippery when wet and the hazard had been brought to its attention, the case against it was made out. There was evidence, including the evidence of the appellant’s witness Mr Carboni, that if two coats of paint containing grit had been properly applied, the risk of slipping would have been significantly reduced.[26] It was not argued at the trial that nothing could have prevented Mr Korlevski from slipping because he was walking backwards on wet steps, holding a mop. If JLL had relied upon causation to defeat the claim, different evidence would have been called at the trial.
[25]He relied on Reasons [118] in support of that argument.
[26]Reasons [53].
Senior counsel for Lea Group and for VWA adopted Mr Korlevski’s submission, claiming that the appellant was seeking to run a new case on appeal. They submitted that it was not argued at trial that the accident was inevitable because this would have supported Mr Korlevski’s claim that JLL had negligently failed to carry out any system of risk assessment relating to the cleaning of the steps and to take reasonable care for the safety of Mr Korlevski.[27]
Should JLL be permitted to argue on appeal that any breach of its duty of care as an occupier did not cause Mr Korlevski’s injury?
[27]Further Amended Statement of Claim [17(y)].
During the trial there was a discussion between the judge and counsel for JLL about the relationship between its duty of care as an occupier and Lea Group’s duty of care as Mr Korlevski’s employer. The relevant passage is as follows:
HER HONOUR: … if I do find that that surface upon which Mr Korlevski slipped was not adequately slip resistant for when it was wet, and I find that that has occurred at a time subsequent to complaints being made to Tom McAuliffe, why shouldn’t that sound in liability against your client?
MR DYER: Well, Your Honour has just outlined it, if they are findings that you make that there is a hazard brought to the attention of my client, it's not acted upon, Your Honour would then go on to find that there had been a breach of duty by my client.
In her reasons, the learned trial judge noted that counsel for JLL:
conceded that if I found that there was a hazard brought to the attention of his client, which was not acted upon, I would then go on to find that there had been a breach of duty by his client.[28]
[28]Reasons [118].
Senior counsel for JLL submitted that if her Honour had treated the comment made by counsel during discussion as a concession on causation, she had erred in doing so. Moreover, in the reference to this matter in her reasons, the judge referred only to a concession on ‘breach of duty’ and not to any concession that Mr Korlevski’s injury had been caused by that breach.
Senior counsel also relied upon a short passage in junior counsel’s closing address at trial, in which he said that:
there is no evidence of causation of the fall sustained by him on 12 July 2004 to relate it as a matter of probability to any particular condition on the stairs such as poor painting, absence of grit, grease or anything. It’s a matter of guesswork.
He went on to submit that the ‘true cause’ of Mr Korlevski’s injury was the failure of Lea Group, rather than JLL, to ‘properly instruct or supervise or train its employee’.
At the trial, JLL argued that Mr Korlevski’s injury was caused by a breach of the duty of care owed to him by his employer, rather than by a breach of JLL’s duty of care as an occupier and that JLL was entitled to delegate responsibility for ensuring that Mr Korlevski was not injured to his employer. When read in context, it is apparent that the exchange between the judge and counsel related to that issue.[29] JLL’s defence in the case against it by Mr Korlevski was not that even if the stairs had been properly slip resistant, Mr Korlevski would still have fallen. I am fortified in that view by an earlier passage in his closing address in which counsel for JLL said that JLL ‘accepts it’s responsible if there is a known risk if it’s conveyed to it that there are stairs that are slippery’. At about the same time, her Honour remarked that ‘the essence of this whole case is what is the nature of the surface? Was it slippery or was it not’.
[29]Her Honour held that in the circumstances of this case, JLL was not relieved from responsibility for injury caused by the state of the premises by delegating the cleaning or the painting to others: see Reasons [105].
In a trial raising complex issues of fact, a party cannot resile from its position at the trial and run a new case on appeal.[30] Although JLL’s Defence to the Further Amended Statement of Claim formally denied that his injury was caused by its negligence,[31] the pleadings are not determinative if the parties have ‘deliberately chosen some different basis for the determination of their respective rights and liabilities.’[32] As this Court said in Findlay:
[I]t may be necessary to examine the way in which the trial was conducted, to see whether an inference can be drawn that the parties chose some issue different to that disclosed in the pleadings.[33]
[30]Chen v Chan [2008] VSCA 280, [36]; Findlay v State of Victoria [2009] VSCA 294, [163]−[169] (‘Findlay’).
[31]Paragraph 7. Paragraph 8 pleaded that the plaintiff’s injury was caused or contributed to by his own negligence, but this allegation was not pursued at the trial.
[32]Banque Commerciale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279, cited in Findlay [2009] VSCA 294.
[33]Findlay [2009] VSCA 294 [165].
In my opinion, the case which JLL argued on appeal differs substantially from its case below. Although causation was an issue as between JLL and Lea Group, the central issue which fell to be determined between JLL and Mr Korlevski was whether JLL had breached its duty as an occupier by failing to ensure that the stairs were slip resistant when covered with water and detergent. The cross-examination of the expert witnesses called by Mr Korlevski related to whether the paint on the stairs at the time of the accident contained adequate grit and had been properly applied. The expert report of Mr Lightfoot was relied upon by JLL as evidence that the green paint on the stairs was adequately slip resistant, because the green painted surface in the foyer of the women’s toilet satisfied relevant safety standards.
In Whisprun Pty Ltd v Dixon,[34] the High Court regarded the reasons of the trial judge as ‘usually the best indication of what matters were in issue at the trial’.[35] The structure and content of her Honour’s reasons makes it clear that JLL’s case was that it had not breached its duty of care as an occupier. If JLL had argued below that it could not have done anything which could have prevented a cleaner from slipping on the stairs, Mr Korlevski’s case would have been conducted quite differently.
[34](2003) 200 ALR 447.
[35]Ibid 460 [50].
Moreover, even if causation had been argued at the trial, I consider that it was well open to her Honour to infer from the evidence that, if the stairs had been appropriately slip resistant when wet, Mr Korlevski’s injury would not have occurred.
For these reasons, grounds of appeal 3(b) and 5(b) must fail.
Breach of duty: grounds of appeal 1 − 10
JLL’s submissions
JLL submitted that it was not open to her Honour to find that JLL had breached its duty as an occupier.
Senior counsel submitted that Mr Dohrmann had inspected a strip of green paint under a door leading to a storeroom on the upper landing part of which he described in his evidence as ‘grit free’. This area was a long way from the stairs and as Mr Perkins conceded in cross‑examination, the area described by Mr Dohrmann as ‘grit free’ was about the size of a thumbnail. It was not open to her Honour to infer from that evidence that the stairs were not adequately slip resistant.
Mr Dohrmann had agreed with the appellant’s witness, Mr Lightfoot, that the green paint in the toilet foyer area, which was the same as the paint which had been applied to the stairs, comfortably satisfied the Australian and New Zealand Standard for slip resistance. In these circumstances, the conclusion that he drew about the absence of adequate grit on the stairs could not be justified. Mr Dohrmann had inspected the stairs seven years after the accident and an absence of gritted paint in some areas could not raise an inference that such grit was not present two months after the stairs had been painted by Mr Carboni. No tests of the slip resistance could be performed on the stairs, because they had been repainted and at the trial, Mr Korlevski had not relied on photographic evidence showing an absence of grit on the stairs.
Mr Carboni had testified that two coats of paint of Berger Jet Dry paint would have been applied to the stairs and Mr Dohrmann had accepted that this would have been sufficient to meet the manufacturer’s recommendations. Senior counsel for Mr Korlevski had consented to JLL exhibiting a copy of manufacturer’s information relating to the particular paint. The fact that Mr Knowles had not been called to give evidence about whether he had applied a second coat to the stairs could not raise an adverse inference against JLL as ‘no amount of paint would have saved’ Mr Korlevski from slipping as he walked backwards on the wet stairs.
In her reasons, her Honour said that she was unable to find whether one or two coats of paint had been applied to the stairs. In these circumstances, JLL submitted that it was not open to her Honour to conclude that the green paint on the stairs was not adequately slip resistant. The manufacturer’s description of Berger Jet Dry paint said that ‘Jet Dry Non Slip gives a low risk of slipping on wet or dry surfaces when tested to AS/NZ Slip Resistance Standard 4589:1999’, and did not indicate that this effect could only be achieved by adding grit to the paint, or that a double coat was required. Mr Dohrmann had not conducted any test on non‑gritted Berger Jet Dry paint to ascertain whether it provided inadequate slip resistance on a wet floor.
JLL further submitted that no adverse inference could be drawn against JLL because Mr Dohrmann was not permitted to take a scraping of the grey paint on the steps when he returned to the premises.[36] At a directions hearing on 6 April 2011, her Honour had referred to:
the understanding [between relevant counsel] that there is permission been granted by the third defendant for Mr Dohrmann and the plaintiff to attend the Barkley Square Shopping Centre either today or tomorrow to inspect and to carry out a small scraping of paint from the surface of the stairs where the plaintiff’s accident is alleged to have occurred in order to examine the underlaying areas.
[36]Reasons [54].
Counsel said that Mr Dohrmann had not been prevented from taking a small scraping, but rather from removing a ‘piece of the stairs’ for analysis. Moreover, even if such an adverse inference could have been drawn, it did not detract from the argument that no amount of grit in the paint would have prevented the accident from occurring.
Submissions for Mr Korlevski, Lea Group and VWA
These parties submitted that the combined weight of the evidence of Mr Korlevski, Mr Dohrmann and Mr Perkins, coupled with the Jones v Dunkel[37] inference arising from JLL’s failure to call Mr Knowles, left it well open to the judge to draw the inference that the stairs were slippery because they were not properly gritted, and that JLL had failed to take steps to overcome the problem when it was brought to its attention.
[37](1959) 101 CLR 298.
Should the finding that JLL breached its duty of care be set aside?
Her Honour accepted Mr Korlevski’s evidence that he had repeatedly claimed about the slipperiness of the stairs. JLL’s concession at the trial that if Mr Korlevski had previously complained of the hazard, the breach of duty was established, is probably sufficient to dispose of these grounds of appeal. But in any case, her Honour’s reasons for concluding, on the balance of probabilities, that JLL breached its duty of care as an occupier were persuasive. Her conclusion was neither ‘inconsistent with facts incontrovertibly established by the evidence’, ‘glaringly improbable’ or ‘contrary to compelling inferences’.[38]
[38]Devries v Australian National Railways Commission (1993) 177 CLR 472, as cited in Fox v Percy [2003] 214 CLR 118, 139 (McHugh J).
The appellant’s grounds of appeal seek to attack her Honour’s conclusion by challenging findings which led to her ultimate conclusion. This Court is not required to conduct a new trial by re-examining each finding made by the trial judge, and reaching an independent conclusion on each piece of contested evidence.[39] But in the reasons which follow, I make some brief remarks relating to individual grounds of appeal.
[39]Compare the useful discussion of the role of an appellate court reviewing findings of fact in Nexus Adhesives Pty Ltd v RLA Polymers Pty Ltd [2012] FCAFC 135 [6]−[9]; see also State Trustees Ltd v Bedford [2012] VSCA 274.
In effect, grounds 2 to 5 and 8 claim that there was no evidentiary basis on which her Honour could have found that, at the date of the accident, the stairs lacked an adequately slip resistant surface. That argument should be rejected. First, I turn to the expert evidence.
Although the passage of time and the repainting of the stairs had made it more difficult to ascertain the state of the paint when Mr Korlevski slipped, both Mr Dohrmann and Mr Perkins’ evidence was based on viewing and feeling the stairs. Both experts testified that the inadequate dispersal of grit in the non‑trafficked areas on the steps was evidence that there must also have been a lack of grit in trafficked areas at the time that Mr Korlevski suffered his injury. The fact that Mr Korlevski did not rely on photographs showing the uneven dispersal of grit in the areas painted with grey paint was of no significance, given that Mr Dohrmann’s opinion was based on his inspection of the stairs.
By contrast, JLL’s expert, Mr Lightfoot did not examine the stairs. He agreed with Mr Dohrmann’s evidence that the surface in the toilet foyer was adequately slip resistant and assumed that the state of the paint on the stairs was in a similar state. The appellant’s case was, in effect, that the judge was required to find that there was no difference between the slip resistance of the paint on the stairs and its slip resistance in the toilet foyer. But her Honour was not required to reach that conclusion in light of Mr Dohrmann and Mr Perkins’ evidence.
Mr Dohrmann said that the preferred method of testing for the depth and numbers of coats of paint would be to take a sample. In her reasons, the judge did not draw any adverse inference from the fact that JLL did not permit Mr Dohrmann to take a paint scraping, although I consider that it would be have been open to her to do so. Since JLL did not permit the taking of a sample which would have clarified whether the stairs had been painted with one or two coats of paint, JLL should not now be permitted to argue that there was a deficiency in his evidence.
In the appeal, JLL relied on Mr Carboni’s evidence that he had applied the Berger Jet Dry paint properly. But the judge gave persuasive reasons for taking a sceptical view of that evidence. As her Honour commented, Mr Carboni’s evidence was affected by hindsight and his desire to be seen as having done a good job.
Neither the purchase order nor the invoice specified that two coats of paint be applied or referred to the need for the stairs to be slip resistant. In cross‑examination, Mr Carboni conceded he could not recall whether he had considered the question of slip resistance or taken account of the fact that the stairs might be used when wet. In addition, the fact that Mr Knowles, who had been left to finish the job at the shopping centre, was not called to give evidence about whether and how he had applied the second coat to the stairs was correctly regarded by her Honour as raising an adverse inference against JLL.
The second reason for rejecting JLL’s argument is that her Honour decided the case on the basis of the combined weight of all the evidence, as she was bound to do.[40] In Transport Industries Ltd v Longmuir,[41] Tadgell JA said that:
to assess the evidence in a case like this by reference to various individually‑pleaded particulars, as though running through items on a check list, is apt to mislead. The evidence is to be evaluated as a whole in order fairly to consider whether the party bearing the onus of proof has established what is ultimately sought to be proved. The object of the exercise of evaluation is to discover whether the evidence paints a picture reflecting real life, rather than to place a tick or a cross against paragraph after paragraph of torpid pleading. A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole.[42]
[40]See, eg, Major Engineering Pty Ltd v Timelink Pacific Pty Ltd [2009] VSCA 83; Chapman v Cole (2006) 15 VR 150 and British American tobacco Australasia Ltd v Taleb (No 1) [2012] FCA 1065. This rule is also applied in the criminal context: see, eg, Chamberlain v The Queen (No 2) (1984) 153 CLR 521; Shepherd v The Queen (1990) 170 CLR 573.
[41][1997] 1 VR 125.
[42]Ibid 141 (Winneke P).
JLL’s submissions assume that the expert evidence was determinative of the question whether it breached its duty of care to Mr Korlevski as an occupier. For the reasons already given, I have concluded that it was open to her Honour, on the basis of that evidence, to find that JLL had breached its duty. But even if the expert evidence standing alone was insufficient on the balance of probabilities to prove Mr Korlevski’s case, her Honour found that Mr Korlevski was a truthful witness. She was entitled to give considerable weight to his evidence that the stairs were slippery when wet, and that he had complained to Mr McAuliffe about the state of the stairs almost every day. She was also entitled to take account of the fact that he had reported the injury when it occurred and in the VWA claim form completed about six weeks after the accident, he reported that he had slipped on the stairs.
Contrary to ground 9, the absence of evidence about whether JLL knew that Mr Korlevski dried the stairs one by one while walking down them backwards does not negate the judge’s finding of breach of duty, in circumstances where it is not disputed that Mr Korlevski complained to Mr McAuliffe that the stairs were slippery when wet. Although the floor of the foyer in the ladies’ toilet had been tested and found non-slippery, Mr Korlevski’s evidence left it open to her Honour to infer that there were differences between the application of paint in the toilet area and on the stairs which resulted in the stairs being inadequately slip resistant and causing Mr Korlevski’s accident.
Finally, I note that ground 7 alleged that there was a conflict between her Honour’s finding that the steps lacked a reasonably adequate slip resistant surface, and her finding that she could not be satisfied one way or the other whether one or two coats of green gritted paint had been applied to the steps. That ground assumes that Mr Korlevski could not have succeeded in the absence of a finding that only one coat of paint had been applied to the steps. But that is not the case. In addition to Mr Korlevski’s evidence that the stairs were slippery, her Honour was entitled to give weight to Mr Dohrmann and Mr Perkins’ evidence that, regardless of whether there were one or two coats of paint on the stairs, the distribution of grit on them was uneven. She could also take account of Mr Perkins evidence that it was not simply the addition of grit to the paint, but also the manner in which the paint was applied, which determined its slip resistance.
For these reasons, the appeal in the primary proceeding is dismissed. It follows that the appeal in the second proceeding also fails.
FERGUSON AJA:
I agree with Neave JA.
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