MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] - [2012] WASCA 110

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: M R & R C SMITH PTY LTD T/AS ULTRA TUNE (OSBORNE PARK) -v- WYATT [No 2] [2012] WASCA 110

CORAM: PULLIN JA
NEWNES JA
MURPHY JA

HEARD: 8 FEBRUARY 2012

DELIVERED : 21 MAY 2012

FILE NO/S: CACV 132 of 2010

BETWEEN: M R & R C SMITH PTY LTD T/AS ULTRA TUNE (OSBORNE PARK)
Appellant
AND
ROBERT BRUCE WYATT
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WAGER DCJ
Citation  :WYATT -v- M R & R C SMITH PTY LTD [2010] WADC 178
File No  :CIV 562 of 2006

Catchwords:

Tort - Personal injury - After falling down a stair at work - Whether a breach of duty of care - Whether stairs were built in compliance with statutory provisions - Whether the stairs were dangerous

Damages - General damages - Whether the court may refer to comparable cases

Legislation:

Building Regulations 1989 (WA)
Civil Liability Act 2002 (WA), s 6, s 10A
Interpretation Act 1984 (WA), s 27
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 433, s 433A
Occupational Safety and Health Act 1984 (WA), s 19
Occupiers' Liability Act 1985 (WA), s 4, s 5

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant: Ms B A Mangan
Respondent: Dr A S Morrison & Mr B L Nugawela

Solicitors:

Appellant: Tottle Partners
Respondent: Macdonald Rudder (Northbridge)

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

Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570
Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424
Anyco Pty Ltd v Kleeman [2008] WASCA 30
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Bale v Mills [2011] NSWCA 226; (2011) 282 ALR 336
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301
Benchmark Certification Pty Ltd v Standards Australia International Ltd [2004] FCA 1489; (2004) 212 ALR 464
Byrne v Gray [1956] VLR 520
Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd [2012] FCA 21
Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
Divjakoski v Boral Window Systems [2011] WASCA 134
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Doyle v Phillips (1997) 8 BPR 15,523
Express Newspapers Plc v News (UK) Ltd [1990] 1 WLR 1320
Faulkner v Keffalinos (1971) 45 ALJR 80
Fitzpatrick v Job [2007] WASCA 63
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Francis v Lewis [2003] NSWCA 152
Grimes v Grimes [2010] WADC 137
Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18
Hanna‑Pauley v AMP Shopping Centres Pty Ltd [2007] WASCA 174
Hill v Richards [2011] NSWCA 291
Howells v Murray River North Pty Ltd [2004] WASCA 276
James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Koehler v Cerebos (Aust) Ltd [2005] HCA 15; (2005) 222 CLR 44
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Lanza v Codemo [2001] NSWSC 845
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
Lowes v Amaca Pty Ltd [2011] WASC 287
Maiward v Doyle [1983] WAR 210
Martinez v OCS Services Pty Ltd [2009] WADC 42
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486
Naiken v City of Gosnells [2005] WADC 177
Nairn v The Board of Management of Warren District Hospital [2006] WADC 97
Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
North Sydney Council v Plater [2002] NSWCA 225
Ocean Road Motel Pty Ltd v Pacific Acceptance Corporation Ltd [1963] HCA 22; (1963) 109 CLR 276
O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225
O'Connor v Hansen Wilckens Hornibrook Constructions Ltd (1968) 42 ALJR 239
Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118
Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330
Scope Machinery Pty Ltd v Ross [2009] WASCA 100
Snelgar v Westralia Airports Corporation Pty Ltd [2003] WADC 151
Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517
Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491
The Trustees Executors & Agency Co Ltd v Gleeson [1969] HCA 53; (1959) 102 CLR 334
Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
Wheare v Geroheev Pty Ltd [2005] WADC 67
Wilkinson v Law Courts Ltd [2001] NSWCA 196
Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460
Wright v British Railways Board (1983) 2 AC 773
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

PULLIN JA: The appellant appeals against the judgment of Wager DCJ who awarded judgment for personal injuries to the respondent in the sum of $1,142,353.50. The respondent slipped on a step which the respondent had used many times before and which had been used regularly on countless occasions every working day for many years without incident. He injured his knees and suffers back pain. He sued the appellant and the owners of the building. This brief incident resulted in a three‑week trial, generating over 1,900 pages of transcript and a 346 paragraph set of reasons for judgment against the appellant. The claim against the owners of the building was dismissed.

Summary

The trial judge held that the stairs were noncompliant with the Building Code of Australia 1988, compliance with which was required by Building Regulations, and noncompliant with an Australian Standard. The trial judge concluded that this created a 'danger', about which the appellant ought to have known, that the appellant was negligent and that the negligence caused the respondent's injuries.
The trial judge erred in concluding that the stairs were noncompliant with the Building Code. The Australian Standard had no application. The appellant was not negligent for the reasons which follow. The appeal should be upheld.

The respondent's employment with the appellant and the evidence of the accident

The respondent was an employee of the appellant. He started work in June 2003 as a manager and mechanic at the appellant's premises. The premises consisted of a reception area, an office, a lunch room and a workshop where vehicles were repaired and serviced. On the morning of 17 September 2003, when the respondent was opening up the premises at 7.30 am, he walked from the office to the workshop.
Outside the office was a landing which was 340 mm above the floor of the workshop. There was a single step down onto the workshop floor, so that from the landing a person would take one step down onto the step and then take a second step down to the workshop floor. The respondent's evidence about the accident was as follows:
From the back office or from the front area after you've opened - opened the front door to get into the workshop you need to walk onto that platform so you can go and open the roller doors. From the platform you step down onto a single stair which is only a brick wide.
All right. So did you step down from the platform?‑‑‑Yes, I did.
What happened then?‑‑‑As I stepped down my - my heel caught the edge of the stair because it was too narrow. As a consequence I stumbled forward and in the process of trying to save myself from hitting the hoist or other things that were around at the time, I pushed myself backwards and my legs folded under me because I was obviously unsteady at that time. My legs were under me, so my backside hit the ground with my feet behind me and my head went back and hit the concrete floor (ts 26).
There were no eyewitnesses to the fall. The trial judge said that she accepted that the fall occurred on the date and in the manner described by the respondent in his evidence [17].

The history of the building and its occupation and management

The part of the building consisting of the workshop was constructed in about 1970. In 1975, the second defendant in the District Court action, Roklen Investments Pty Ltd, acquired title to the property. Mr L Mijat, the director of Roklen, said that it then consisted of a printing workshop (ts 1264). Roklen arranged for a 'complete rebuilding' (ts 1264) of the centre. The office, the lunch room and the stairway were added in 'approximately August/September 1991' [53] although a building licence was not issued until 13 February 1992. This redevelopment work was 'done' (ts 1265) by an architect, Meyer Shircore, who also handled the project management (ts 1265). The office, lunch room and lower service area was then leased to one of the appellant's predecessors in title. On 15 April 1998 (ts 1036) the appellant purchased the franchise of the business and took a lease of the premises. (In [247] of the trial judge's reasons, the date of the franchise agreement is incorrectly stated as being 15 April 2001).

No complaint about the step before the respondent was employed

Mr L Mijat gave evidence that no complaint had ever been received by the second defendant about the step until after the respondent's accident (ts 1270).
Mr Smith was the sole director of the appellant company (ts 1032). His wife worked in the office part‑time (ts 1146 ‑ 1148). Both Mr and Mrs Smith gave evidence. The trial judge recorded at [87] the evidence of both Mr and Mrs Smith that before the respondent was employed, no‑one had slipped on, or complained about the step in the five years that the appellant had run the Osborne Park workshop. The step was regularly and often used. Mr Smith estimated that he and the respondent probably used the step 50 times per day and Mrs Smith estimated the use to be about 100 times a day. Mechanics also frequently used the steps.

No‑one had fallen from the step before the respondent's accident

The trial judge found that no‑one had fallen on the step for 10 years [149].

The respondent considered that the step was unsafe and had complained

The respondent gave evidence that he complained to Mr Ashley Mijat, one of the owners of the building, about the step. However, the trial judge said in the reasons:
I consider that [the respondent] is a poor historian who is inaccurate in his recollection of dates and who embellishes evidence of conversations and actions that support his claim [129].
The trial judge found that there was no evidence from which she could be satisfied on the balance of probabilities that the second defendant was aware of any concern in relation to the step before the respondent fell on 17 September 2003 [130]. The trial judge dismissed the claim against the second defendant and there was no appeal against that decision.
When he was first employed, the respondent was 'very much into the safety side of the [appellant's] business and requested signs indicating dangers within the workplace that Mrs Smith bought immediately' [83]. The respondent complained about the safety of the step soon after he commenced employment. Both Mr and Mrs Smith agreed that the respondent did complain.
The respondent testified that it was in the 'very first week' of his employment that he told the Smiths that the step was 'not safe'. Mrs Smith recalled that the respondent complained about the safety of the step soon after he commenced employment. His complaint, according to Mrs Smith, was that the step was not 'wide enough' (ts 1155). The trial judge recited evidence of Mrs Smith who recalled that the respondent had mentioned that he had had a few slips on the step before the date of his fall but that she had not witnessed this [90]. Mr Smith also recalled that the respondent complained about the safety of the step but could not remember the date [84].
The respondent gave evidence that he also complained that a handrail was needed (ts 383). However, the trial judge made no such finding. The reasons only referred to the respondent's evidence of complaint about the width of the step [85]. In view of the trial judge's poor view of the respondent's credibility, it may therefore be assumed that, because the trial judge did not refer to this evidence and made no finding based on it, the respondent's evidence of a complaint about the lack of a handrail was not accepted.

Neither the appellant's director nor others considered the step to be dangerous

The trial judge found that Mr Smith did not consider the step to be 'dangerous' [88]. Her Honour also found that, after the respondent complained, Mr Smith carried out his own risk assessment and determined that the bricks of the single step were sound, taking into account that nobody had ever fallen on the step. As a result, Mr Smith considered that the lengthening of the step was not required [89].
Mrs Ellis (nee Preece), who worked for some years as a receptionist at the Ultra Tune business, had used the step on occasions too numerous to count. She never had any concern about the step and never heard any complaint about it from other workmen (ts 1227).
Mr Ivan Sturgess, who worked for the franchisee company and who used the step when helping franchisees to set up their businesses, did not perceive any danger associated with it (ts 989, 990). He wore a shoe which was the same as the respondent's shoe size (ts 340, 1007).

The respondent's statement of claim

The respondent's statement of claim pleaded a common law cause of action based on a breach of the appellant's duty of care as an employer and breaches of statutory duty, namely a breach of s 19(1) of the Occupational Safety and Health Act 1984 (WA) and a breach of s 5 of the Occupiers Liability Act 1985 (WA). The trial judge recorded the fact that the appellant accepted that it owed a non‑delegable duty of care (at common law), and a statutory duty under the OS & H Act and the OLA [141].

The experts called at trial

At trial, three experts were called. They were Mr Brand, a former architect, and Ms Miller, an ergonomist, both called by the respondent and Mr Airey, an engineer called by the second defendant. The appellant did not call any expert. Mr Brand gave evidence about whether the building work, when carried out in 1991, had to be constructed in accordance with the statutory provisions applying at that time or those applying when the building licence was issued. He gathered evidence and material about the date of construction of the original building (in about 1970), about the building works (in 1991) and about the building licence in relation to those works. He then identified and construed the Building Code and an Australian Standard which he said applied. Mr Airey referred to a version of the Building Code of Australia which he thought to be relevant to the construction of the building and construed it and the Australian Standard.
Whether the Building Code of Australia or the Australian Standard applied to the construction of the building by statute was a matter for the court to decide as a matter of law. Construing the provisions of the relevant Building Code of Australia and Australian Standard was also a matter for the court to decide as a matter of law. The opinions of witnesses about the correct construction of domestic statutes do not bind a court.
Ms Miller gave evidence about the 'bio‑mechanics' involved in descending stairs based on 'anthropometric studies', that is, the study and analysis of the size of human beings. As to this evidence, the trial judge said:
I accept Ms Miller's expertise and experience as an ergonomist and a physiotherapist and I accept that the studies upon which her findings are based are sound.
Factually however the conclusion that she reaches is self evident, that is, a taller man with a bigger foot takes up more room on a stair and has a longer stride. I accept her expert opinion however her evidence on descending of stairs carries very little weight.
The trial judge added:
More relevantly, Ms Miller notes that had she been asked as an ergonomist to look at the situation and had she known that a report of a hazard in respect of the stair had been made, then she would have looked at the problem very closely leading to the recommendations that she ultimately made [77] ‑ [79].
Counsel for the respondent said in oral submissions at the appeal that the trial judge's reference to 'recommendations' was a reference to what was to be found at ts 499 and 500. At ts 499, counsel for the second defendant was cross‑examining Ms Miller and at ts 500, Ms Miller said:
If I was an ergonomist who had been called in to have a look at that situation, if you've got a report of a hazard or if you've got somebody whose [sic] already had an incident and actually fallen or - or has tripped on the steps, I would be looking at the steps very, very carefully and saying, 'Hey, hang on, I don't think this is - complies or - you know, it does comply or doesn't comply'. But if you've got something like this where people have actually reported problems then I think, as an ergonomist, I would be - be looking at it very, very closely.
The trial judge said in relation to Mr Brand and Mr Airey:
Mr Brand similarly would have advised that the stair tread was too narrow and that a handrail was required. Mr Airey, the architectural expert called by the first defendant, acknowledges that under the relevant BCA and AS the stair did not comply although his report and evidence was directed at a different BCA. I prefer the evidence of Mr Brand who considered the correct BCA and AS and I accept that had expert evidence been obtained prior to September 2003, the stair would have been deemed unsafe [79].
The reference to the 'different BCA' and the 'correct' BCA was a reference to the question of whether the construction of the building was governed by the Building Code as it existed when work was carried out or when the building licence was issued. There have been amendments to the Building Code (and the Australian Standard) since the building was constructed. However, no suggestion was made by either party that there was some significant, relevant difference between other versions of the Building Code or Australian Standard and the versions which the trial judge accepted were applicable. No reference was made to such other versions. These reasons proceed on the basis that the Building Code and the Australian Standard referred to by the trial judge are those relevant to whether the building was compliant with the law when constructed.

The trial judge's findings about the step dimensions and the provisions of the Building Code

The Building Code and Australian Standard both specify requirements in relation to the dimensions of different parts of a stair. These requirements will be discussed more fully below. At this stage it suffices to explain that the different dimensions relevant to this case are:

(a)    tread/going

the width of a step, that is, the part on which the foot is placed;

(b)    riser/rise

the height of an individual step; and

(c)    quantity

the relationship between the tread/going and the riser/rise.

The trial judge found that:
(a)the width of the tread of the single step was 241 mm. The two risers on either side of the step were 170 mm in height. The stair was 2,200 mm wide from the wall to a 'hob' on the other side [55] ‑ [56];
(b)the Building Code 'relevant' to the stair's construction was the 1988 Code (Building Code) [57];
(c)the Building Code required a stair riser to be more than 115 mm and less than 180 mm in height if the stair were a 'public stair' [57];
(d)the Building Code required the tread or 'going' to be greater than 240 mm if it were a 'private stair', but greater than 280 mm if the stair were a 'public stair' [58];
(e)the stair was a private stair [65]; and
(f)pursuant to the Building Code, a handrail had to be provided if the stair was 2 m or more in width [70].

In relation to the last of these findings, it should be noted that the trial judge has omitted an important stipulation. The Building Code requires that a handrail be provided on a stair which is 2 m or more in width 'where necessary to assist and provide stability to persons using … a stairway'. This requirement will be discussed in more detail below.

The trial judge's finding concerning the Australian Standard 1657 ‑ 1985

The trial judge held that the Australian Standard 1657‑1985 (Australian Standard) was the 'relevant' standard [57]. The trial judge also stated that she accepted Mr Brand's calculation based on the Australian Standard that in order to comply with the Australian Standard the tread would have to have been increased by 23 mm [69].

Summary of trial judge's reasons for finding the appellant liable

In summary, the trial judge concluded:
(a)The appellant had a duty of care imposed by statute under the Occupational Safety and Health Act and at common law to ensure that its system of work and the workplace was safe by taking reasonably practicable measures to minimise the foreseeable risk of injury [141].
(b)The appellant had a statutory duty under the Occupiers' Liability Act to exercise reasonable care to avoid risk of physical injury to the respondent by reason of any danger due to the state of the premises or to anything done or omitted to be done on the premises [141].
(c)The tread and riser measurement complied with the Building Code [68].
(d)However, the 'product of the riser and tread' did not comply with the Australian Standard [68].
(e)Clause D2.17(ii) of the Building Code applied and required a handrail along each side of the stairway because the width of the stair was 2.2 m [70].
(f)The appellant's director, Mr Smith, did not consider that the stair was dangerous [88] but was alerted (by the appellant's complaint) to the fact that the 'stair may have been too short' [145].
(g)Mr Smith was not familiar with the building codes [88].
(h)The appellant failed to obtain expert advice [145], [148], [150].
(i)If the appellant had sought advice then advice would have been given, 'consistent with the evidence of Mr Brand and Ms Miller', that the 'stair did present a danger', 'that a handrail was required' [145] and that the step was 23 mm 'too short' or 'too narrow' because it did not comply with the Australian Standard [69].
(j)The appellant breached its duty to provide a safe system of work because it failed to obtain expert advice once the complaint was raised and therefore failed to obtain advice that a handrail was required and that, given the ratio of tread width to riser height, the stair needed widening [150].
(k)Consideration had to be given to the magnitude of the risk, the degree of probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities that the appellant may have had [147]. The expense of installing a handrail and of the 'stair extension' was minimal [149].
(l)As to causation, a 'causal connection between the [appellant's] failure to ensure that the stair was widened and that a handrail was provided and the injury sustained by [the appellant] is proven' [155].

Observations about the basis of the trial judge's finding of negligence

Stairs, even properly constructed stairs, inherently pose some degree of danger: see Hanna‑Pauley v AMP Shopping Centres Pty Ltd [2007] WASCA 174 [29].
However, the case was not fought on the basis that the stair was constructed in accordance with statutory building requirements and that as an entirely compliant stair, the foreseeable risk of injury which had to be guarded against was injury caused by the ordinary risk that stairs present. It is clear that the trial judge did not find negligence because of the general risk of injury involved in the use of stairs. The case was fought on the basis that there were deficiencies with the stair which made it dangerous, over and above the ordinary risk involved in using stairs. There were various deficiencies alleged, one of which was that the step was slippery. That allegation was dismissed and is not pursued on appeal.
The case, as finally determined by the trial judge, was that there were deficiencies in the construction of the stair. Two deficiencies were found to exist. They were that the tread was 'too short' as determined by reference to the Australian Standard and that it did not have a handrail as required by the Building Code.
The trial judge reasoned that because there was noncompliance with the Building Code and the Australian Standard, the step constituted a 'danger'. Further, because it would have been cheap to rectify the deficiencies and because the appellant ought to have known about the danger, then the appellant breached its duty to provide a safe system of work [149] ‑ [150].

The trial judge's finding on damages

The trial judge assessed general damages at $170,000. In the course of the assessment of damages, the trial judge applied a discount of 15% to a notional continued and uninterrupted loss of the rate of $1,000 per week in income until the age of 65. The trial judge also allowed, in the course of assessing damages, three hours per day for past gratuitous services and four and a half hours per day for future gratuitous services.

Grounds of appeal

The eight grounds of appeal read:
(a)The trial judge erred in fact in finding that the stair was a danger.
(b)The trial judge erred in law in finding that the appellant breached its duty to provide a safe system of work because it failed to obtain expert advice once the complaint was raised.
(c)The trial judge erred in fact in finding that expert opinion would have indicated there was a probability that a fall may have occurred because of the 'shortcomings' of the stair.
(d)The trial judge erred in fact in finding that the causal connection between the appellant's failure to ensure that the stair was widened and that a handrail was provided and the injury sustained by the respondent was proven.
(e)The trial judge erred in law in accepting the opinion expressed by Ms Jenni Miller, an ergonomist.
(f)The trial judge erred in law in assessing the respondent's general damages to be $170,000 on the basis that the amount was excessive and outside the range of legitimate discretion.
(g)The trial judge erred in law in applying a discount of only 15% to a notional, continued and uninterrupted loss of the rate of $1,000 per week to the age of 65.
(h)The trial judge erred in law and in fact in allowing three hours per day for past gratuitous services and four and a half hours a day for future gratuitous services when there was no evidence of any need for services at all, or this amount of services, caused by the appellant's negligence.

Nature of the appeal

This is an appeal by way of rehearing. The form of rehearing shapes the requirements and limitations of the appeal: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23]. The relevant 'requirements' are that the appellate court is obliged to conduct a real rehearing. It is not confined to reconsideration of the record in order to correct errors, although that will be encompassed in an appeal: CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 [16]. Having conducted a rehearing, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance': CSR [16].
If the reasoning of the trial judge rests on inferences drawn from facts undisputed or found by the trial judge (CSR [20]) and not challenged on appeal, but which can equally be redetermined by the appellate court, then although 'respect and weight' is given to the conclusion of the trial judge, if the appellate court reaches a conclusion contrary to that of the trial judge, it must give effect to its own conclusion and substitute it for the conclusion reached by the trial judge: CSR [22]. In those circumstances the conclusion of the appeal court establishes that the inference drawn by the trial judge was an error.
If the reasoning of the trial judge depends on an erroneous view of the law then the appeal court must apply the law even if the parties also had an erroneous view of the law and conducted the case on that wrong basis. However, the parties must be given the opportunity to make submissions if the appeal court has a view of the law different from the view the parties had: Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466, 473.
In this case, none of the relevant primary facts about how the accident happened, the history of the building and its occupation, or the findings about the dimensions of the step and risers are called into question by the grounds.
However, because the trial judge reasoned that the step was a danger because of noncompliance with the Building Code and the Australian Standard, they will have to be construed by the court and correctly applied. Before considering these instruments, it is necessary to refer to the statutory and common law causes of action brought by the respondent.

The common law

In Divjakoski v Boral Window Systems [2011] WASCA 134 Newnes JA (Buss & Murphy JJA agreeing) stated the common law principles. They are uncontroversial. The duty of an employer to his employee is to take reasonable care to avoid exposing the employee to unnecessary risks of injury. In deciding whether there has been a breach of that duty, the first question is whether a reasonable person in the employer's position would have foreseen that its conduct or workplace exposed the employee, or a class of persons including the employee, to a risk of injury. A risk which is not far‑fetched or fanciful is real and therefore foreseeable. The test of foreseeability is 'undemanding': see Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 [104] (Kirby J). In almost every case in which a plaintiff suffers damage, it is foreseeable that if reasonable care is not taken, harm may follow. If a person is injured, the conclusion that harm was foreseeable is 'well nigh' inevitable. Dixon CJ said in argument in Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112, 115, that he could not understand why any event which does happen is not foreseeable by a person of sufficient imagination and intelligence: see Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 [100].
It is unquestionably foreseeable that if a person falls down steps he or she may be injured, but the more important question in this case was whether the appellant exposed the respondent to an unnecessary risk of injury. Furthermore, not every foreseeable risk of injury requires some response to overcome it. In Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631, Gleeson CJ and Hayne J considered that an uneven surface in a driveway, the type of unevenness that would be found in a large number of suburban houses, did constitute a hazard. They dealt with the issue of negligence on the basis that although the uneven surface was a 'hazard', meaning that there was a risk of foreseeable injury, it was a risk which did not require any action on the part of the occupier as a reasonable response [15], [97]. Callinan and Heydon JJ considered that it was an 'overstatement' to regard the unevenness as a 'danger' at all [116]. However, Callinan and Heydon JJ also held, in effect in the alternative, that the occupier did not act unreasonably by taking no measures to guard against the slight risk that the unevenness presented. Kirby J was in dissent.

The Occupiers Liability Act (OLA)

Section 4(1) provides that s 5 to s 7 shall have effect in place of the rules of the common law for the purpose of determining 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'. The care which an occupier of premises is required, by reason of the occupation or control of the premises, to show towards the person entering on the premises in respect of 'dangers' which are due to the state of the premises and for which the occupier is by law responsible, shall be such care as in all the circumstances of a case, is reasonable to see that that person will not suffer injury or damage by reason of any such danger (s 5(1) OLA).
Section 5(4) states that 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 list of matters which are similar to those which would have to be taken into account at common law when considering what a defendant should reasonably do in response to a foreseeable risk of injury.
The main significance of the OLA is that the common law rules which set different standards of care depending upon the classification of the entrant as an invitee or licensee no longer apply. Even if the OLA had not been passed, the same effect was brought about by the High Court in Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, 487 ‑ 488, holding that the old common law rules no longer applied.
The care which has to be shown is in respect of 'danger'. The word 'danger' is not defined in the OLA, but in its ordinary meaning it means exposure to harm, ie injury.

Occupational Safety and Health Act (OS & H Act)

The objects of the OS & H Act are, inter alia, to promote and secure the safety and health of persons at work and to protect persons at work against hazards. Section 19(1) states that an employer shall 'so far as is practicable' provide and maintain a working environment in which the employees of the employer are not exposed to 'hazards'. Noncompliance with s 19(1) gives rise to liability for prosecution, but it also supports a claim for damages by an employee for breach of the employer's duty imposed by s 19(1): see, for example, Koehler v Cerebos(Aust) Ltd [2005] HCA 15; (2005) 222 CLR 44; Anyco Pty Ltd v Kleeman [2008] WASCA 30; Howells v Murray River North Pty Ltd [2004] WASCA 276.
A duty only arises if there is a 'hazard'. An employer must take action to avoid the presence of hazards, if it is practicable to do so. The word 'hazard' is defined to mean anything that may result in injury or harm to the health of a person. The duty on employers in s 19(1) of the Act is to provide and maintain workplaces such that 'so far as is practicable' the employees are not exposed to hazards. The word 'practicable' is defined to mean 'reasonably practicable' having regard to the severity of any potential injury or harm to health that may be involved and the degree of 'risk' of it occurring, and the state of knowledge about the injury or harm; the risk; the means of removing or mitigating the risk; and the availability, suitability and cost of the means of removing or mitigating the risk. 'Risk' in relation to any injury or harm is defined to mean 'the probability of that injury or harm occurring'.
In determining whether s 19(1) has been breached, considerations have to be taken into account which are similar to those which are taken into account in determining, in a common law action, what response is required from an employer to a risk of injury of which it knew or ought to have known. The duty imposed by the OS & H Act was given detailed consideration by the Court of Appeal in Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117. As Murphy JA explained in that case, the duty imposed on an employer is not an absolute duty: see [30] ‑ [36].

The call for submissions about the correct construction of the Building Code and the Australian Standard

The day before the appeal, an associate of this court sent an email to the parties on the instruction of the presiding judge, asking for counsel to be ready to make detailed submissions about the correct construction of the Building Code and the Australian Standard. This request was made because neither party in their written submissions had carried out that exercise.
Counsel for the respondent in a written note made brief submissions about the correct construction and application of the Building Code and the Australian Standard. As to the Australian Standard, the note merely referred to the trial judge's statement that the Australian Standard was 'relevant'.
Counsel for the appellant made no submissions at all. The court pointed out to counsel for the appellant that the appellant's written submissions appeared to accept that the Australian Standard applied. It was put to counsel for the appellant that in effect this did not appear to be correct. Counsel for the appellant declined to make submissions about the proper construction of the Building Code, the Australian Standard or the Building Regulations. Counsel for the appellant did not seek leave to make any further submissions on the point. The lack of any submissions from the appellant about the proper construction of the Building Regulations, the Building Code and the Australian Standard was surprising to say the least, given that the trial judge found that the stair was a danger because of its noncompliance with the Building Code and the Australian Standard and given that the first ground of appeal challenged the finding that the stair was a danger.
During the appeal hearing another point arose about the application of s 10A of the Civil Liability Act 2002 (WA) concerning the assessment of general damages and leave was given to the parties to file written submissions after the completion of the oral hearing about that point. When the appellant filed these submissions, they were found to contain additional submissions concerning the point about which counsel for the appellant had declined at the hearing to make any submissions, namely the point about the proper construction and application of the Building Code, the Australian Standard and the Building Regulations. They also contained submissions about another topic, namely the application of the OS & H Act and the OLA. No leave was sought or granted to make these additional submissions.
The High Court has said in clear terms, that parties are not free to file supplementary written submissions after the completion of a hearing without the leave of the court. The most recent statement on the topic is from the New South Wales Court of Appeal in Bale v Mills [2011] NSWCA 226; (2011) 282 ALR 336 where the court said in joint reasons:
It is useful, however, to remind the parties (and through the publication of these reasons the profession and public generally) of the correct position that has been stated, over and over again, by the courts. The High Court, intermediate courts of appeal and other courts have deprecated in strong terms the filing of material after an appeal without, or outside, any leave given: Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 258; 34 ALR 449 at 458 ; [1981] HCA 20; Re application by the Chief Commissioner of Police (Vic) (2005) 214 ALR 422; 79 ALJR 881; [2005] HCA 18 at [19]-[23] and [53]-[54]; Dwyer v Commonwealth (1995) 31 ATR 48; Kirwan v Cresvale Far East Ltd (In liq) (2002) 44 ACSR 21; [2002] NSWCA 395 at [340]; Chapman v Caska [2005] NSWCA 113 at [19]; Willis v Health Communications Network Ltd (2007) 167 IR 425; [2007] NSWCA 313 at [35]; Singh v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 59 at [62]-[73]; Jackson v Conway [2000] FCA 1530; R v Theophanous (2003) 141 A Crim R 216; [2003] VSCA 99 at [14] and R v Zhan Yu Zhong (2003) 139 A Crim R 220 ; [2003] VSCA 56 at [2]-[4].
Notwithstanding these clear statements the practice still occurs. That the practice still occurs notwithstanding the regular statements of the courts that it should not is no reason not to continue to state clearly to the profession and the public the correct position [57] ‑ [58].
It has only to be added that if the constant reminders continue to be ignored, there may be cost orders made against lawyers responsible for the filing of such submissions without the leave of the court and an order may be made that there should be no charge to the client for making such unauthorised submissions.

Objection by the respondent

During the appellant's submissions, counsel for the respondent objected to the court considering the questions about whether the stair had to comply with the Australian Standard quantity calculation, or whether the stairs breached the Building Code due to lack of handrails (ts 72 ‑ 76). The respondent contended that the questions did not arise because there was no ground of appeal or submission challenging the trial judge's finding that the stair was noncompliant by having no handrails and by not complying with the quantity calculation in the Australian Standard. The court said it would rule on the objection in its reasons and hear submissions on the questions. Counsel for the respondent said that if the question of compliance was considered, then it raised 'the question of prejudice'. His submission and the interchange with the court appears in the appeal transcript between pages 72 and 76. During the course of those submissions, counsel for the respondent referred to the trial judge's finding that the stair was compliant with the Building Code 'in respect of tread' and that it was only compliant if it was a private stairway, not if it was a public stairway. He submitted that there was a 'real contest' about whether the stair was private or public, because this was a workshop with occasional public access, and noted that the trial judge found against the respondent on that issue. Counsel for the respondent said that the respondent 'considered putting on a cross‑appeal on that very point' and did not do so because there was no appeal directed to the 'finding of non‑compliance'. It was again pointed out by the court that the question of whether the Building Code or the Australian Standard applied to the facts as found was a conclusion of law and that the court was not bound by the views of experts or the parties about the meaning of those documents. Counsel for the respondent was told that if he thought there was another point to be covered to protect the respondent, then the respondent would need to consider that.
Counsel's reference to consideration being given to a cross‑appeal was presumably consideration given to a notice of contention in terms that the trial judge's judgment should be supported on the basis that the stairs were public stairs because, counsel for the respondent contended, there was evidence that there was 'occasional public access'. The respondent did not then seek leave to file a notice of contention and did not seek to argue that the judge's finding that the stair was a private stair was in error. The respondent, having been given the opportunity to consider whether it wished to file a notice of contention, did not avail itself of that opportunity, and therefore did not suffer any prejudice in that respect. No other prejudice was alleged.
The finding by the trial judge that the stair was a 'danger', was based on a conclusion that there was noncompliance with the Australian Standard and the Building Code. Whether the stairs constituted a 'danger' was the subject of a ground of appeal. Thus, to understand whether the stair was a danger or not, it was necessary to consider the proper construction of the Australian Standard and the Building Code. The respondent's objection should be dismissed.

The statutory provisions relevant to the construction of the stairs

The Building Regulations 1989

The Local Government (Miscellaneous Provisions) Act 1960 (WA), ss 433, 433A authorised the making of building regulations. Regulations were made, being the Building Regulations 1989 (WA). These applied when the building was constructed. At that time, reg 5(1) stated that 'subject to these regulations, the Building Code applies to and in relation to any building that can be classified according to use under pt A3 of that Code'. The parties accepted that the Building Code applied to the building in which the stair was located. Regulation 5(2) provided that any alteration, addition, restoration or repair to a building should conform with the regulations. Regulation 3(2) stated that in the regulations, the expression 'the Building Code' meant the Building Code of Australia 1988 published by or on behalf of the Australian Uniform Building Regulations Coordinating Council, as amended from time to time.

The Building Code

The preface to the Building Code discloses that:
(a)it is a document produced and maintained by the Australian Uniform Building Regulations Coordinating Council on behalf of the Commonwealth, States and Territory governments, under the direction of the Local Government Ministers' Conference;
(b)it provides a uniform set of technical requirements and standards for the design and construction of buildings and other structures throughout Australia, for adoption by State and Territory legislators;
(c)the basic objective of the Building Code is to ensure that 'acceptable standards of structural sufficiency, fire safety, health and amenity are maintained for the benefit of the community';
(d)the Coordinating Council comprises representatives of all of the States and Territories and the Commonwealth; and
(e)there is an Executive Committee consisting of principal building control officers from the State and Territory governments, representatives from the Australian Council of Local Government Associations and from the Commonwealth Department of Industry, Technology and Commerce. Advisers representing the Australian Assembly of Fire Authorities and the private sector building industry, also attended Executive Committee meetings. Numerous other private sector bodies, including the Housing Industry Association, the Institute of Engineers, CSIRO and various State chapters of the Royal Australian Institute of Architects were represented on various technical committees.
The Building Code therefore, reflects the combined wisdom of a great many experts, representatives of statutory authorities and private organisations concerning building construction methods which will provide for the amenity and safe use of the buildings. The observations in this paragraph become relevant in considering whether, if the Australian Standard had no relevant statutory application, it had some evidentiary value (to be discussed below).
Section D of the Building Code deals with 'access and egress'. Section D2.13 deals with 'treads and risers'. Section D2.13(a) reads:
A stairway must be suitable to provide safe passage in relation to the nature, volume and frequency of likely usage.
Section D2.13(b) then provides that 'a stairway in any building … satisfies (a)' if it satisfies certain listed requirements. One of them was that the 'going' and 'riser' dimensions be in accordance with table D2.13. In the case of private stairs, the riser height must be between 190 mm and 115 mm and the tread (or 'going' as it is called) for private stairs must be between 355 mm and 240 mm.
Table D2.13 also contained a 'quantity' calculation, to be carried out pursuant to a formula, which set limits within which the product or result of this calculation should fall. The quantity calculation is a method of setting a relationship between the tread and the riser. The formula was 2R+G (that is, twice the riser measurement plus the going/tread measurement) and the table called for the result of the calculation to fall between 700 to 550 for private stairs.
Section D2.17 dealt with handrails. Section D2.17(a) read:
Except in a class 7 or 8 building … suitable handrails must be provided where necessary to assist and provide stability to persons using a ramp or stairway.
The trial judge found that the premises were a class 6 ([60]) building and therefore s D2.17 applied.
Section D2.17(b)(ii) states, relevantly, that handrails satisfy (a) if they are 'located along each side if the total width of the stairway or ramp is 2 metres or more'.
Another section, s D2.18, stated that 'non required stairways' and 'handrails' must comply with the Australian Standard in a Class 7 or Class 8 building or 'part of a building'. The latter phrase in context must mean part of a Class 7 or 8 building. Whatever 'non-required stairway' means, this provision did not apply because the building was a Class 6 building.
The Building Code did not contain any definition of stair or stairway. There may be a question about whether the single step could be described as a stair but the case has been fought at all times on the basis that a single step is a stair. These reasons proceed on the basis that a single step does constitute a stair within the meaning of the Building Code. If that is incorrect and a single step is not a stair, then the reasoning of the trial judge that there was noncompliance would collapse for that reason.

The Australian Standard - did it apply by statute and if not, did it have any evidentiary value?

The trial judge said the Australian Standard was 'relevant' but did not explain why this was so. Standards Australia or its predecessors have existed since 1922. See the history set out in Benchmark Certification Pty Ltd v Standards Australia International Ltd [2004] FCA 1489; (2004) 212 ALR 464 [16] ‑ [19]. Standards published by Standards Australia have no legal application unless adopted and applied by statute or by contract.
However, even if there is no statutory or contractual application of an Australian Standard, it may still be relevant in evidence if it is accepted as representing a consensus of professional opinion and practical experience about sensible, safe precautions. In that way, an Australian Standard can assist the court in determining whether some aspect in the construction of a building constitutes a danger which must be guarded against by the exercise of reasonable care: see Fitzpatrick v Job [2007] WASCA 63 [94]. Failure to follow a standard does not, without more, establish negligence: O'Connor v Hansen Wilckens Hornibrook Constructions Ltd (1968) 42 ALJR 239, 242; Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 [110]; Scope Machinery Pty Ltd v Ross [2009] WASCA 100 [43]. It is for the court to adjudicate upon what is the appropriate standard of care: Lanza v Codemo [2001] NSWSC 845 [169]; Francis v Lewis [2003] NSWCA 152 [43]. Even compliance or noncompliance with statutory construction requirements will not be determinative of the issue about whether reasonable care has been taken (Jones v Bartlett [23]).
The Building Code adopted, by reference, some provisions of the Australian Standard. Some of the provisions in the Australian Standard related to 'stairways'. In particular, the dimensions of the 'going' and 'riser' and the relationship between them provided in the Australian Standard, differed from those stipulated in the Building Code. The provisions in the Australian Standard had no statutory application for two reasons:
(a)first, the Australian Standard by its terms, did not apply to the stair in question, because the definition of 'stairway' in cl 1.4.16 of the Australian Standard defined 'stairway' as having 'not less than three risers'. The stairway in this case had only one tread and consequently only two risers.
(b)secondly, there was a provision in the Building Code (s A1.4) which stated that the Building Code 'overrules in any difference arising' between the Australian Standard and the Building Code.
Not only did it have no statutory application, the Australian Standard had no evidentiary application for two reasons. First, the Building Code reflected the consensus of professional opinion and practical experience about the sensible, safe construction of stairs. By its terms, the Building Code prevailed where there was any difference between it and the Australian Standard. Secondly, the evidence of two of the experts that the Australian Standard should apply was misconceived. Mr Brand's evidence was, in effect, that it applied because he construed the Building Code as applying the Australian Standard. On the facts in this case he was wrong. Ms Miller gave advice on the basis that the stairs were noncompliant when they were not. Mr Airey correctly observed that the Australian Standard did not apply because of the definition of 'stairway' (ts 430, 438, 1493, 1506).
However, because the trial judge relied on noncompliance with the Australian Standard in order to find that the tread on the stairway was 'too short' and therefore a 'danger', it is necessary to briefly refer to a provision in the Australian Standard so that her Honour's reasons can be understood.
The Australian Standard cl 4.3.2(d) read:
The product of the rise and the going in millimetres, shall be not less than 45,000 nor more than 48,000
If this applied (and the trial judge found it did) then the stair did not comply because 241 x 170 = 40970.

The stair riser and tread complied with the Building Code

These reasons mentioned earlier that the trial judge found, at [65], that the stair was a private stair and that finding has not been challenged by either party. That finding was correct, for the following reasons. Table D2.13, which refers to riser and going dimensions, states:
Note: Private stairs are -
(a)stairs in a Class 1 or 10 building;
(b)stairs in a sole-occupancy unit in a Class 2 building or Class 4 part; and
(c)in any building, stairs which are not part of required exit and to which the public do not normally have access. (original emphasis)
The paragraphs are not accretive. Paragraphs (a) and (b) refer to different classes of buildings. The trial judge correctly found at [59] and [60] that the building in question was a Class 6 building. Therefore, neither par (a) or (b) applied. The word 'and' after par (b), and the opening words in (c), 'in any building', indicate that par (c) is to be read as describing a separate category of stairs which are private stairs.
There is no suggestion that the stairs were a 'required exit', that is, an exit required by the Building Code. The trial judge considered whether the public would normally have access to the stairs and made a finding at [63] that customers would conduct their business in the reception area, but 'would not enter the workshop nor use the stair'. That finding was not challenged. The trial judge's finding that the stair was a private stair was therefore correct.
The height of each of the two risers was 170 mm, so each fell within the range for the 'riser' and 'going' for a private stair set out in the table D2.13 of the Building Code. The single tread or 'going' was 241 mm in length and so it fell within the range set out in table D2.13. The 'quantity' calculation based on the formula 2R + G produced a figure of 581 (2 x 170 + 241), so the stairs also fell within the range for the 'quantity' (700 ‑ 550) set out in table D2.13. There was no contention that the other provisions of s D2.13(b) had not been satisfied. The stairway when built was therefore entirely compliant with table D2.13 in relation to the dimensions of the tread, risers and the quantity calculation. The Australian Standard did not apply. If it had applied, the tread and riser dimensions were complied with, but the relationship between the tread and riser, (the quantity calculation), did not.

Was the handrail 'necessary'?

Written submissions filed by the appellant appeared to leave open the inference that the appellant accepted that handrails were necessary. However, during oral submissions in the appeal, when questioned about whether that inference should be drawn, counsel for the appellant made it clear that it was 'certainly not conceded that a handrail was at any stage necessary to assist and provide stability to persons' (ts 77).
The stairs did not have handrails. The trial judge found handrails were 'required' by D2.17(ii) [sic D2.17(b)(ii)]. This was an error. D2.17(b)(ii) did not 'require' a handrail. D2.17(b) merely provided that if the stairs had a handrail and satisfied the other conditions in D2.17(b), then the handrail 'satisfied' D2.17(a). Thus the lack of handrails did not, per se, amount to noncompliance with the Building Code. If there were no handrails then it still had to be determined whether handrails were 'necessary' (see D2.17(a) set out above).
There are many reasons why a handrail might be necessary. In a retirement village or a hospital, it might be 'necessary' to provide handrails on certain stairs. If there were something about a set of stairs which made them dangerous, for example, if they were exposed to the weather and consequently slippery, then a handrail may be 'necessary'.
The stairway here was not generally being used by elderly, disabled or infirm persons. An attempt was made by the respondent to prove that the step was slippery (which might have made handrails 'necessary') but the trial judge rejected that allegation [72] and there is no contention raised that such rejection was an error.
In consequence, there was nothing about this stair, which was otherwise entirely compliant with the statutory requirements, which made it necessary to provide handrails.

Disposition of the appeal

Ground 1 - did the stair present a danger?

The trial judge found that the stairs were a danger because of:
(a)noncompliance with the Australian Standard concerning the relationship between riser and tread; and
(b)noncompliance with the Building Code because of the absence of handrails.
The finding in (a) then led the trial judge to the conclusion that a response was required from the appellant, namely a lengthening of the step.
As to (a), the reasons above reveal that the stairs were entirely compliant with the Building Code in relation to the relationship between riser and tread and the Australian Standard had no application. The trial judge erred in concluding that if an expert had been retained, he or she would have advised that the tread on the step was 'too short'. An expert who properly construed the Building Code and the Australian Standard would not have given such advice.
As to (b), the trial judge did not consider at all whether a handrail was 'necessary'. If the trial judge had considered that question, she would have been obliged to conclude that there was no evidence about the condition of the stairs or the persons who used the stairs which made handrails 'necessary'.
There was nothing else about the stairs which made them a 'danger' requiring some response from the appellant. Ground 1 should be upheld.
Before moving on to ground 2 it is necessary to mention some paragraphs in the respondent's written submissions. They read:
7.1In addition, the appellant initially commenced proceedings by writ
issued out of the District Court of WA (action number 2025 of 2005) [hereafter, the 'earlier action'], seeking from Roklen Investments Pty Ltd, Ashley Mijat and Nina Blakeney [hereafter collectively referred to as 'the owners'], repayment of workers compensation payments that the appellant (as employer) had paid to the respondent (as worker) and an [sic] also sought an indemnity therefor. In the earlier action, the appellant pleaded inter alia that the 'step was a danger.. because it was too narrow' and that the owners were negligent by (inter alia) 'having the danger on the premises' [hereafter, the appellant's 'earlier pleas'].
7.2Subsequent to the earlier action and the appellant's earlier pleas, the respondent commenced action by writ issued out of the District Court of WA (action number 562 of 2006) [hereafter, the 'later action'], claiming (inter alia) that the appellant and the owners breached the duty they owed to him by failing to install a wider step or fit a handrail. In the later action, the appellant then issued contribution proceedings against the owners alleging again (inter alia) that the step was a danger.
7.3The appellant, by its earlier pleas in the earlier action, as well as in contribution proceedings in the later action, approbated on the issue that the step constituted a danger. When it wanted repayment of workers compensation payments it had made, the appellant was happy to contend that the step was a danger in these and earlier proceedings. The appellant ought not now be permitted to reprobate on the issue of the dangerous step - Express Newspapers Plc v News (UK) Ltd & Ors [1990] 1 WLR 1320, 1329E-H applied in Geneva Finance v Boys & Ors [2001] WASC 167 at [37]-[40].

The respondent's contention that the pleading in an action between the appellant and another party (the owners of the premises) could give rise to an election, admission, estoppel, forebearance, abandonment or renunciation (the respondent does not say which) cannot be sustained. As to all of these concepts, see Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570. The respondent was not a party to action number 2025 of 2005 and a pleading is not an admission, at least not an admission which a person not a party to the proceedings may rely upon. See Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 85 ‑ 86.
The appellant did not, by the separate action against the building owners and its approach in this case, approbate and reprobate: see Agricultural and Rural Finance [56] ff. The case of Express Newspapers Plc v News (UK) Ltd [1990] 1 WLR 1320 provides no support for the respondent. In that case, the claim and the counterclaim were between the same parties. The claim and the counterclaim had the same foundation, with the result that the plaintiff was not permitted to obtain judgment on the claim and then to defend the counterclaim, adopting, in effect, an argument against the argument it had advanced for the purposes of obtaining judgment on the claim.
In the contribution proceedings, the appellant was merely claiming that if the respondent's action was made out, then indemnity or contribution was sought from the owners of the premises. The appellant's pleadings in the contribution proceedings cannot be taken to be admissions preventing the appellant from defending the appellant's claim.

Ground 2 - whether the appellant was negligent in not obtaining advice

At [150] the trial judge said:
I find that the [appellant] breached its duty to provide a safe system of work because it failed to obtain expert advice once the complaint was raised and therefore failed to obtain advice that … given the ratio of tread width to riser height, the stair needed widening.
This is erroneous reasoning. If the stairs had been deficient (because of noncompliance with the Building Code or the Australian Standard), and this deficiency gave rise to a reasonably foreseeable risk of injury which the appellant was obliged to take reasonable steps to reduce, then the failure to take those steps would have constituted the negligence. It is not the failure to obtain expert advice which constitutes the negligence. Failure to take advance steps when reasonably required is relevant to the question about what a defendant 'ought to have known'. Foreseeability is judged by reference to what the employer or occupier knew, or what reasonable persons in the position of the employer/occupier ought to have known.
The trial judge therefore erred in concluding that the appellant's negligence consisted of not taking advice. Ground 2 should be upheld.

Ground 3 - whether experts would have indicated that there were 'shortcomings' with the stair

Ground 3 alleges that the trial judge erred in finding that if experts had been consulted, their opinion would have indicated there was probability that a fall may have occurred because of the 'shortcomings' of the stair. This is a complaint about [149] in the trial judge's reasons, where her Honour said:
No-one had fallen on the stair for 10 years but expert opinion would have indicated that there was a probability that a fall may have occurred because of the shortcomings of the stair.
The reference to 'shortcomings' is a reference to the deficiencies that the trial judge wrongly found existed with the stairs, that is the lack of handrails and the alleged narrowness of the step. As already mentioned above, an expert who properly construed the legislation would have concluded that the stair was compliant and would have advised that the stair offered no danger over and above the danger which all stairs offer to their users. The stair did not need 'widening', because the ratio of tread width to riser height complied with the Building Code. There was nothing about the condition of the stairs or the people who used it which made handrails necessary.
As an aside, it should also be noted that the trial judge seems to have overlooked the fact that even if the Australian Standard had applied, a stair which was noncompliant with the quantity calculation could be made compliant by increasing the height of the riser rather than increasing the length of the tread and so it did not follow automatically that the tread was 'too short'. However, that is not relevant for the reason mentioned earlier, namely that the Australian Standard did not apply to set requirements as to riser or going dimensions or quantity calculations, either pursuant to legislation or as a matter of evidence.
Ground 3 should be upheld.

Other points concerning grounds 1, 2 and 3

It only remains to mention some other points which were touched on in submissions in relation to grounds 1, 2 and 3 before moving on to the other grounds of appeal.
The respondent submitted that the mere fact that an accident had not previously happened did not mean that the stair was safe. That is true. The mere absence of previous accidents is not determinative, but it is relevant: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 [82]. In this case it is highly relevant. The stairs were compliant with the Building Code and had no other quality which made them unsafe. The lack of any previous accident corroborates the conclusion that the stairs did not constitute a danger which required some response from the appellant.
There was also a reference made by the respondent to the 'cheapness of the remedy' (respondent's submissions par 24) of widening the steps. The fact that the step could have been, and later was, made wider at little cost, and that widening the step earlier would have prevented the accident, is not a basis for finding negligence. After the respondent complained about the shortness of the step, the appellant asked the second defendant to attend to the respondent's complaint, even though the appellant thought the step was not dangerous. Work was done after the accident to lengthen the step by a brick length. The failure to take action before an accident which may have prevented an injury is not a basis for reasoning towards a finding of negligence. That kind of reasoning falls into the erroneous approach of looking at an accident in hindsight rather than determining what action a defendant was reasonably required to take before the accident happened: Kuhl v Zurich Financial Services [94], [96]; Neindorf v Junkovic [93], [96] ‑ [97]; New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 [57].
Finally, it is necessary to observe that the obviousness of a risk is relevant in determining whether any response is required in relation to that risk: Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486; Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460 [45]; Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517. The reasons set out above reveal that there was no risk requiring a response. It was obvious that there were no handrails and the width of the step was plainly observable. In Neindorf v Junkovic [15] ‑ [16], Gleeson CJ agreed with Hayne, Callinan and Heydon JJ in holding that the unevenness of the surface on which the respondent tripped was 'so ordinary and so visible, that reasonableness did not require any action on the part of the occupier'.
The long history of daily use without injury would have led any reasonable person in the position of the appellant to conclude that no action was required following a complaint from one user, who was conscious of the risk that he thought it presented to him, about the narrowness of the step. The appellant acted reasonably in examining the step. Mr Smith's conclusion was that the step was not dangerous. Although Mr Smith planned to have the step lengthened (and that happened after the accident), the appellant's failure to do so before the accident did not amount to a breach of duty.

Ground 4 - causation

This ground concerns the trial judge's conclusion at [155] which read:
The causal connection between the [appellant's] failure to ensure that the stair was widened and that a handrail was provided and the injury sustained by Mr Wyatt is proven.
It is not strictly necessary to consider causation in view of the conclusion that there was no breach of duty, but the point was argued and it should therefore be resolved.
There was nothing in the trial judge's reasons which revealed why it was 'proven' that the lack of a handrail caused the injury. The respondent did not say where he was when he descended the stair. He did not say that he was close by the edge of the stair where he would have been in close proximity to a handrail if there had been one on either side of the stair. He did not give evidence that he customarily used handrails on stairs. He was asked the question 'if there was a handrail fitted would you have used it' and he answered:
If there had been a handrail there, it probably would have prevented me falling the way I did.
Why do you say that‑‑‑Well, as - when you fall your natural instinct is to put your hands out to grab something. There was nothing there to grab, so I was grabbing at mid‑air.
In his description of how he fell down the stairs, the respondent did not say that he reached for a handrail or grabbed 'at mid‑air'. Further, the trial judge's reasons at [153] ‑ [154] amount to a finding he was not in proximity to where a handrail would have been on the right‑hand side of the step (viewed from the top). Her Honour said in those paragraphs:
The stair did not have a handrail however it abutted one wall and a possible option may have been to lean on the wall. The photograph of the stair (exhibit 10) was taken at a later stage but it is clear that equipment used in the workshop was placed against the wall at the side near the stair.
I conclude that the wall was probably not reasonably accessible because equipment was probably against it and it was unreasonable to expect Mr Wyatt to have leant on it when he descended the stair.
These paragraphs reveal that a handrail on the wall (on the right‑hand side) would not have prevented the accident. Therefore the absence of a handrail on that side did not cause the injury. The trial judge did not go on to make a finding that the respondent was in proximity to the left‑hand side of the steps as he descended; and nor did the trial judge find that the respondent reached out or would have reached out and seized a rail if there had been one and would thereby have saved himself from the fall. The trial judge merely stated that the causal connection between the injury and the lack of a handrail 'is proven'. There was nothing in the findings or evidence which supported that conclusion. Ground 4 should be upheld.

Ground 5 - the trial judge erred in accepting the opinion expressed by Ms Miller

The appellant's submissions refer to the trial judge's reasons at [79] which read:
More relevantly, Ms Miller notes that had she been asked as an ergonomist to look at the situation and had she known that a report of a hazard in respect of the stair had been made, then she would have looked at the problem very closely leading to the recommendations that she ultimately made.
Set out earlier is the only reference that counsel for the respondent made to recommendations made by Ms Miller, which was that she would have looked to see whether the stair was compliant (presumably with statutory requirements). At [76] the trial judge said:
In Ms Miller's opinion the tread was too short and a hand rail should have been installed in order to make the stair safe.
The tread was not too short and there was nothing about the stairs which made a handrail 'necessary' for the reasons given above. Ground 5 should be upheld.

Ground 6 - whether the award of general damages was manifestly excessive

The trial judge awarded general damages in the sum of $170,000.
In support of this award, the trial judge referred to the evidence that in 2003 the respondent was a 40‑year‑old motor mechanic who was physically active and enjoyed playing weekend cricket as the captain of his team. He anticipated that he would have a healthy, active life with his partner who he married in September 2003. As a result of the injuries sustained, the respondent needed six surgical procedures with the likelihood of further surgical intervention in the future. He is very restricted in his movement and needs crutches in order to move. He suffers psychological depression and has lost his independence. He is no longer able to play cricket and nor can he keep physically fit, thus restricting any activities he could engage in with his young children and with his wife. He is unable to drive for long periods and requires the assistance of a driver. The appellant contends that the award of general damages was manifestly excessive.
During the course of the appeal hearing, the court drew the parties' attention to s 10A of the Civil Liability Act 2002 which reads:
(1)In determining damages for non‑pecuniary loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings.
(2)For that purpose, the parties to the proceedings or their counsel may bring the court’s attention to awards of damages for non pecuniary loss in those earlier decisions.
This provision is a statutory overruling of Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 where the High Court said that whether or not an award of general damages is excessive is not a matter to be resolved by reference to a norm or standard, to be derived from a consideration of amounts awarded in a number of other specific cases (124 ‑ 125).
Section 10A is in pt 2 div 2 of the CLA. Section 6, which is also in pt 2, reads:
(2)This Part extends to an award of personal injury damages even if the damages are sought to be recovered in an action for breach of contract or any other action.
…
(4)This Part applies only if the personal injury arises out of an incident happening after the commencement of this Part.
Division 2 pt 2 commenced on 1 January 2003, which was before 17 September 2003 when the incident causing personal injury happened.
However, when div 2 pt 2 commenced, it did not contain s 10A. Section 10A was inserted into div 2 pt 2 by the Civil Liability Amendment Act 2003 (WA). That Act contained s 2 which read:
(1)This Act comes into operation on a day fixed by proclamation.
(2)Different days may be fixed under subsection (1) for different provisions.
That section and s 1 which contained the short title to the Amendment Act, came into operation on 30 October 2003.
By proclamation dated 28 November 2003, the rest of the Amendment Act other than s 9 and s 14 came into operation on 1 December 2003. Thus, s 10A came into operation on 1 December 2003. Having been introduced into div 2 pt 2 of the CLA, it became a section in div 2 pt 2 of that Act which, according to s 6 CLA, as indicated above, applied to personal injuries arising out of an incident happening after the commencement of pt 2. The incident the plaintiff is suing on happened after the commencement of pt 2 and therefore s 10A applies.
During the oral appeal hearing, the parties were asked to make submissions about the applicability of s 10A, but neither party had given any consideration to the point. They were given leave to make written submissions after the conclusion of the hearing. Submissions were filed by both parties. The parties both submitted that s 10A did not 'apply' because it came into 'operation' on a date after the happening of the incident which gave rise to the personal injuries. They both referred to s 27 of the Interpretation Act 1984 (WA) in support of this submission. Section 27 is of no relevance. It merely states that reference in a written law to the date of coming into operation or to the commencement of a written law shall, when different provisions of the written law come into operation on different days, be construed as a reference to the day of coming into operation of the appropriate provision of that written law. That has nothing to say about whether or not, once s 10A came into operation on 1 December 2003, it was part of div 2 pt 2 of the CLA. Nor does s 27 Interpretation Act have anything relevant to say about s 6, which 'applied' div 2 pt 2 from 1 January 2003.
There are a number of cases which deal with issues which arise in relation to amending legislation, and whether the amendments are to be read as applying from the date of the original Act or the date of the amending Act. See for example, Byrne v Gray [1956] VLR 520; The Trustees Executors & Agency Co Ltd v Gleeson [1969] HCA 53; (1959) 102 CLR 334; Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd [2012] FCA 21 and Doyle v Phillips (1997) 8 BPR 15,523. None of those cases have any direct application because they addressed points of construction based on differently worded legislation.
Ocean Road Motel Pty Ltd v Pacific Acceptance Corporation Ltd [1963] HCA 22; (1963) 109 CLR 276, 280 was a case where an amendment speaking of 'this Act' was inserted into a pre‑existing Act. The expression 'this Act' then spoke of the whole Act of which, from the time of amendment, it formed part. 'This Act' was not to be read as a reference to the amending Act. In this case the wording is different, but like the Ocean Road legislation, it has the effect of introducing an amendment into a principal Act so that the principal Act is then to be read in its terms with the amendment included.
In the explanatory memorandum accompanying the Civil Liability Amendment Act (to which no reference was made by the parties) there is a statement, in relation to cl 2 (which became the section allowing different proclamation dates for different parts of the Civil Liability Amendment Act), which reads 'the bill is not to have retrospective operation'. Insofar as this might be read as supporting the parties' submissions that s 10A does not apply in this case, because such an application would be retrospective, then such a submission cannot be accepted. What is said in an explanatory memorandum cannot contradict the clear meaning of the legislation itself. However, what was said was correct in relation to parts of the Act. Thus s 5A(3), (contained in pt 1A which was introduced into the CLA by the Civil Liability Amendment Act 2003), provided that 'this part does not apply unless the harm giving rise to the claim for damages arises out of an incident happening on or after the commencement day'. The 'commencement day' was defined in s 5A(5) to mean the day on which the Civil Liability Amendment Act 2003 s 8 came into operation, s 8 being the section which inserted pt 1A. Part 1A affected the rights and liability of parties. Parliament made sure that the rights and liabilities of parties would not be retrospectively affected. The provisions in s 5A ensured that pt 1A would not apply until the Amendment Act commenced. The presence of this section indicates that the Parliament turned its mind to application dates. The fact that there is no similar provision in relation to s 10A strengthens the conclusion that once s 10A had been inserted into the Act, it was in div 2 pt 2 of the CLA and applied from the date from which that part applied.
In any event, s 10A does not require the application of the presumption against retrospectivity because s 10A does not impinge on a person's rights or duties. It is merely a provision allowing reference to authorities which might provide guidance about the appropriate level of general damages.
The result is that comparable awards may be examined.

The appellant provided a schedule of comparative cases at the appeal hearing. The respondent was asked to provide a schedule of comparable awards in case this court should disagree with the parties' submissions that s 10A did not apply to this case, which he did.
General damages are ordinarily awarded to compensate for pain and suffering and other non‑pecuniary loss: Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491, 507. Minds may differ about the appropriate level of damages to be awarded in a particular case, but, in order to treat plaintiffs fairly, like cases must be treated alike: Faulkner v Keffalinos (1971) 45 ALJR 80, 82; James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729, 732. The age of the injured person will be relevant because if the pain and suffering or loss of amenities will be borne for a relatively short time, then the award will be less than the award for a person who has to bear the pain and suffering and loss of amenities over a longer period of time. The existence of a tariff involving a range of sums for different injuries has been recognised in England (Wright v British Railways Board (1983) 2 AC 773), but in Australia this approach was, until statutory intervention, forbidden as a result of the High Court's decision in Planet Fisheries Pty Ltd v La Rosa.
The appellant's schedule of cases referred to 11 Western Australian District Court judgments and three judgments of the Full Court of the Western Australian Supreme Court. The respondent's schedule referred to one Western Australian District Court judgment, two judgments of the New South Wales District Court, one judgment from the New South Wales Supreme Court, two judgments from a single judge of the Victoria Supreme Court and one judgment from the Northern Territory Supreme Court.
In the cases cited by the appellant, the awards of general damages ranged from $7,500 to $75,000. In the cases cited by the respondent, the general damages awards ranged from $120,000 to $225,000. The mere recital of these figures suggests that not all of the cases were comparable with this case. In fact, many of the cases cited by the parties provided little guidance. First, some cases cited were over 10 years old, one dated back more than 20 years. This diminished their utility, given the fluctuations in the value of money. Secondly, the facts of many of the cases were not, in any respect, comparable to the facts of the present case. Finally, the majority of the respondent's cases were cases decided in other jurisdictions. While cases from outside of Western Australia are relevant, attention should first be paid to recent comparable decisions in courts in this jurisdiction: Lowes v Amaca Pty Ltd [2011] WASC 287 [821]. If a party contends that awards in this State are out of step with awards in other jurisdictions, the point should be expressly raised and argued. In this case, the parties were reluctant to refer to cases at all, and the respondent did not contend that awards in this State should not provide a guide to the appropriate award of damages.
The following cases give an indication of an appropriate award of damages in the present case. They are: Grimes v Grimes [2010] WADC 137 (43‑year‑old plaintiff with severely comminuted ankle fracture and resulting serious psychiatric disability, provisional assessment of $120,000 general damages); Martinez v OCS Services Pty Ltd [2009] WADC 42 (49‑year‑old plaintiff suffered a fractured lower leg with resulting knee and psychiatric problems, awarded $75,000 general damages); Naiken v City of Gosnells [2005] WADC 177 (53‑year‑old plaintiff suffered an ankle injury resulting in some disability and psychiatric consequences, awarded $25,000 general damages); Wheare v Geroheev Pty Ltd [2005] WADC 67 (38‑year‑old plaintiff suffered injury to both knees resulting in prolonged and ongoing problems, awarded $60,000 general damages) and Snelgar v Westralia Airports Corporation Pty Ltd [2003] WADC 151 (plaintiff suffered a right knee injury, but made a good recovery, awarded $30,000 general damages).
These cases demonstrate that general damages awarded for knee injuries in this State in the last 10 years have been between $25,000 and $120,000. The $120,000 award in Grimes v Grimes was a provisional assessment because, in that case, the claim was dismissed. Without taking account of that case, the general damages awards were of amounts between $25,000 and $75,000. Naturally, the age and particular circumstances of each case varied. The highest award of $75,000 was to a plaintiff who was aged 49 at the time of the accident, and 55 at the time of the decision.
The award of damages in the present case was $170,000. An award of that amount would only be justified in circumstances where the nature of the injury and the subsequent pain and suffering was much greater. So, for example, in Nairn v The Board of Management of Warren District Hospital [2006] WADC 97, the 30‑year‑old plaintiff had a leg amputated and she was awarded $120,000 in general damages.
There is no doubt that the respondent has suffered an injury to his knee which has a significant detrimental effect on his life. However, the provisional assessment of general damages at $170,000 is manifestly excessive. As a result, the provisional assessment should be set aside. In lieu, if general damages were to be awarded, the appropriate amount would be $75,000.

Ground 7 - whether the trial judge erred in applying a discount of 15% to a notional continued and uninterrupted loss of the rate of employment of $1,000 per week to the age of 65

The trial judge's reasons which are challenged read as follows [326] ‑ [327]:
I accept that Mr Wyatt would have worked until the age of 65 years and that the employer's superannuation contributions would have accumulated at the rate of 9% but for the injuries he has sustained. (9% x $1,000 per week x 85% (post-Jongen discount) equals $76.50 per week).
From 30 November 2010 x 2010 until the age of retirement of 65 years:
17 years x $1000 net per week by 6% multiplier   $562,900
17 years x $76.50 per week loss of superannuation
contributions by 6% multiplier   $ 43,062
Subtotal   $605,962
Less 15% discount   $ 90,894
------------
Total  $515,067
=======
The appellant's submissions contend that the respondent's claim was that but for the injuries, he would have continued in employment as a manager/mechanic until his retirement age of 65 years and suffered a loss of $800 and not $1,000 per week, as found by the trial judge.
The appellant said that this claim was pleaded in par 24 of the statement of claim. The appellant contended that taxation returns revealed that the respondent's pre‑accident earning capacity was $817 per week gross, or $689 net per week. The evidence was that the respondent was earning $800 net per week at date of the accident. He was regarded as a good manager, a responsible employee and was well regarded pre‑accident [83]. However, at the date of trial, the evidence was that an equivalent employee, in a position roughly equivalent to that of the respondent, was being paid $1,000 per week (ts 1197 ‑ 1198).
Counsel for the appellant responded in reply by stating that the evidence of $1,000 a week referred to by counsel for the respondent, was a reference to what Mr Smith was paid and that this was not based on any formal employment contract. Mrs Smith said that Mr Smith 'just gets whatever I give him': ts 1197. However, counsel for the appellant conceded that the most senior mechanic at the business was being paid $27 an hour for a 38 hour week and that was just over $1,000 as at the date of trial. That was an acceptable basis for the finding that the respondent would have been earning $1,000 per week at the date of trial.
Once that concession was made, that evidence being uncontradicted, ground 7 had to fail. The findings that the trial judge made were open. There was evidence to support the figure of $1,000 per week used by the trial judge. Although the ground referred to the 15% discount, it was eventually clear from the submissions that there was no dispute about that figure, there was only the dispute about what figure should have been used for weekly earnings. Ground 7 should be dismissed.

Ground 8 - whether the trial judge erred in allowing 3 hours per day for past gratuitous services and 4½ hours a day for future gratuitous services

The trial judge found that since 27 May 2007, the respondent's wife had assisted the respondent with domestic services and palliative care. Her evidence was that washing, ironing and cleaning the house took one to one and a half hours per week, plus extra time for doing the dishes and preparation of meals and assisting, twice on most days, in the bathroom for a total of 20 minutes. The respondent estimated past gratuitous services of four and a half hours per day. The trial judge found this was inconsistent with the wife's evidence and allowed three hours per day at a rate of $13.73 per hour or $288.35 per week. The trial judge also accepted that the respondent required the assistance of his father‑in‑law in relation to mechanical services and repair of motor vehicles. The appellant contended that some of these services were part of the ordinary incidence of family life which were replaced in the sensible post‑injury rearrangement of domestic chores: Maiward v Doyle [1983] WAR 210.
The appellant contended that nothing should be allowed for assisting in the bathroom because if handrails had been installed, this help would not have been necessary. The handrails were only not installed because they were living in the respondent's wife's parents' house.
The fact is that the respondent is clearly incapacitated, but as mentioned above, the trial judge did not allow the full amount of the claim. As to the contention by the appellant that what was done after the accident was no more than an adjustment of the chores involved in family life, counsel for the respondent referred to Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, 344. It was there explained that while domestic services can be part of the give and take of marriage, the qualification was that such services will be taken out of the area of the ordinary give and take of marriage to the extent that the injury precludes the provision of countervailing services. To that extent, the continuing gratuitous services provided by a spouse assume a different character and they are therefore compensable.

The reality is that the respondent is permanently on crutches and it is therefore obvious that he would not be able to make an ordinary contribution to family duties. In any event, even if there were some error in the allowance for gratuitous services, it was counterbalanced by the fact that the trial judge only allowed gratuitous services up to age 65. Retirement age, of course, has nothing to do with the need for ongoing gratuitous services which should have been calculated by reference to life expectancy. Thus this error in favour of the appellant means there was no miscarriage of justice.
Ground 8 should be dismissed.
NEWNES JA: I agree with Pullin JA.
MURPHY JA:

Introduction

I have had the advantage of reading, in draft, the reasons of Pullin JA. The relevant facts have been outlined by his Honour and it is not necessary to repeat them in any detail. His Honour has also summarised the judge's findings and the relevant procedural aspects of this appeal, which I adopt. I agree with his Honour's reasons that there was no relevant breach of the Building Code and that the Australian Standard had no relevant application. I agree that grounds 1 to 3, and 5, should be upheld, generally for the reasons given by Pullin JA in relation to those grounds under the sections of his Honour's reasons headed 'Disposition of the appeal' at [85] ‑ [104] and 'Ground 5' at [110] ‑ [112], subject to the reasons which follow. I also agree with Pullin JA's reasons and conclusions with respect to grounds 6, 7 and 8.
In summary, the premises in question comprised, in essence, a customer reception area and a workshop. There was an office and a store/lunch room between the customer reception area and the workshop. Behind the office and store/lunch room was a landing, which led to the workshop floor. The landing was 2.2 m wide. The workshop floor was 340 mm (approximately 13½ inches) below the landing. There was one step connecting the landing to the workshop floor. The vertical distance from the landing to the tread of the step was 170 mm (approximately 6¾ inches). The vertical distance from the tread of the step to the workshop floor was 170 mm (approximately 6¾ inches). The width of the tread of this step was 241 mm (approximately 9½ inches wide). On one side there was a wall.

The required manoeuvre, in order to descend from the landing to the workshop floor, involved lifting one foot off the landing, putting it onto the step, and then putting the other foot down onto the workshop floor. The respondent, (the employee) aged 40 at the time, failed successfully to undertake that manoeuvre on 17 September 2003. Instead of putting the ball of his foot on the step as he descended, he put his heel down and extended his leg to the point where only his heel caught the edge of the step. As a result, no part of his foot was securely placed on the surface of the step. Having, in effect, 'missed' the step with his foot in this way, he stumbled and fell.
He successfully sued the appellant (the employer) in the District Court on the basis that the employer had breached its duty to provide a safe system of work. This is an appeal by the employer. There is no notice of contention.

The 'expert' evidence

The proceedings below were, regrettably, infected by inadmissible 'expert' evidence. A former architect and a physiotherapist/ergonomist were called by the employee and an engineer was called by the second defendant (the landlord). They gave evidence on whether, as a matter of law, the Building Code and the Australian Standard applied and if so, the meaning and effect of those instruments. Those matters, to the extent relevant, raised questions of law for resolution by the judge with the assistance of legal argument by counsel. The duty of the judge was to find any relevant underlying facts, such as the physical features and age of the premises, and then to apply the law. The views of a former architect, a physiotherapist/ergonomist and an engineer, were irrelevant and inadmissible on questions of law.
That is not to say that engineers or architects, depending on the circumstances and the issues in dispute, might not give admissible evidence as to building practices, or as to designs, methods or materials used in an allegedly dangerous structure and in relation to available alternatives. However, the 'expert' evidence in this case was not of that kind.
It is to be recalled that the relevant structure in this case was a step, connecting two levels. There was no engineering or architectural feature of the step which required a 'scientific or other elaborate examination' or analysis (adopting the words of the High Court in O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225, 230). The structure (a step) was a commonplace structure in buildings; all the aspects of the structure were visible to the eye and indeed obvious. There was no concealed defect. The step was not a hidden trap. The use of the structure to ascend or descend from one level to another was a well‑known and well‑understood aspect of everyday life.
There was nothing remarkable about this step or its use which called for a 'biomechanical' analysis by an ergonomist. Nevertheless, the employee's ergonomist gave evidence, which confirmed everyday experience, that in descending steps, ordinarily the ball of the foot goes down first (plantarflexion) and not the heel: exhibit 20 par 20; ts 501; reasons [76]. (Where the heel goes down first, it is called dorsiflexion).
The judge accepted the ergonomist's evidence that 'a taller man with a bigger foot takes up more room on a stair and has a longer stride' (reasons [78]). Her Honour, correctly in my view, said that the conclusion was 'self evident' and that the expert opinion in that regard 'carries very little weight'.

Principles - employer's general law obligations

Absent statutory provision to the contrary, an employer owes a common law duty to its employees to take reasonable care for their safety: Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 [34]. The duty includes an obligation 'to take reasonable steps to provide … a safe place of work': Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, 680.
The duty is 'that of a reasonably prudent employer': Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18, 25; Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, 307 ‑ 308. The duty is not to 'safeguard a worker completely from all perils': Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 [19] per French CJ and Gummow J (although their Honours were in the minority, I would understand their observations to be consistent with the law as formulated and applied by the majority).
The duty to take reasonable care requires an employer to take reasonable care to 'avoid exposing [its employees] to unnecessary risks of injury': Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 [12]; Hamilton v Nuroof (25). The standard of care is not a low one: O'Connor v Commissioner for Government Transport (230).
Reasonable foreseeability of a risk is to be determined objectively: Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330 [70].
On the question of breach of duty, in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47 ‑ 48, Mason J referred to the way in which a tribunal of fact might determine a reasonable response to a foreseeable risk. His Honour said (48):
The existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.
In Roads and Traffic Authority (NSW) v Dederer at [69] Gummow J (with whom Heydon J agreed), observed:
What Shirt requires is a contextual and balanced assessment of the reasonable response to a foreseeable risk. Ultimately, the criterion is reasonableness, not some more stringent requirement of prevention.
See also in this regard the observations of Gleeson CJ and Kirby J in Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486 [2].
The obviousness of the risk and the remoteness of the likelihood that others will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response to a foreseeable risk. In some circumstances, reasonableness may require no response to a foreseeable risk. See Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 [35] ‑ [36] per Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ. Their Honours also said [37]:
The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration.
In the context of an employer's duty of care, the employer must take into account the possibility of thoughtlessness, inadvertence or carelessness by its employees, particularly in the case of repetitive work: Czatyrko v Edith Cowan University [12]; Kuhl v Zurich Financial Services [87]. In Kuhl at [87] the majority referred to:
the words of Windeyer J, of 'some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection' which may be, and in this case - a case involving the operation of heavy, awkward, noisy machinery - are, 'excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man' (Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37).

The employee's use of the step

The employee commenced work with the employer in June 2003. After his first week at work, he told the employer that the step was 'inappropriate' and 'too small'. He said that he had 'already slipped off a couple of times' (reasons [85]; ts 29). The employee did not give direct evidence about the two occasions of slipping in his first week which were the subject of this communication with his employer, save insofar as one may have been the incident which he described as having occurred in July 2003, referred to below.
The employee said that in July 2003, he had 'slipped off' the step (ts 28). No evidence was given by the employee as to how, and in what circumstances, this slip had occurred, other than to say that he was in the company of a colleague who 'grabbed hold' of the employee when he slipped.
The employer (by Mrs Smith), accepted that the employee had mentioned that he 'had had a few slips on the stair' before the accident the subject of the claim (reasons [90]). Mrs Smith acknowledged that after the step was widened, she could see why the employee had had a problem with it (reasons [93]).
In relation to the accident the subject of the claim, the employee descended the step by putting his 'heel down and the ball of [his] foot and toes never connected with the step' (ts 356). He accepted that his work boots would not have impeded his ability to put the ball of his foot on the step (ts 357 ‑ 358). However, he disagreed with the proposition (accepted by his expert ergonomist) that ordinarily in descending steps, the ball of the foot goes down first and then the heel. The following exchange in cross‑examination occurred in this regard:
[COUNSEL]: If it please your Honour. Mr Wyatt, before lunch I put a proposition to you that when walking downstairs, that is, downstairs, that you would go ball first, not heel first and you disagreed with me---Yes.
I want to put to you that when walking downstairs, you put the ball of your foot first on the leading part, that is, the - the leading edge of the tread. So the practice is to put the ball of your foot down on the leading part of the tread. It's closest to the drop‑off, if you want to put it that way. Do you agree with me---No, I don't.
And do you agree with me that you put the ball of your foot on the leading part of the tread, as I have described, so that if you have for any reason to stop descending, you can immediately stop and put your heel down on the tread behind your foot - behind the ball of your foot. That's the reason. Do you accept that‑‑‑No, I wouldn't accept that.

The question of the exercise of reasonable care and causation

At the outset, it is to be noted that there was no finding that the step was slippery at the time; also there was nothing in the visual appearance of the step which made it a danger (reasons [73] ‑ [74]). The step in question was inside the premises. It was not an external step, exposed to the elements. It was a single step. It was not a flight of stairs. The judge did not find visibility to have been a problem.
In Wilkinson v Law Courts Ltd [2001] NSWCA 196, Heydon JA (Meagher JA & Rolfe AJA agreeing) said:
Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances. Among the essential circumstances is the following fact: 'persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety': Stannus v Graham (1994) Aust Torts Reports 81‑297 at 61,566 per Handley JA [32]. (emphasis added)
I will assume, for present purposes, that a single step of the kind between the landing and the workshop floor was inherently dangerous, and constituted a foreseeable risk of injury. The question remains whether a reasonable response to this 'everyday' risk called for the step to be widened or for handrails to be put in. The factors which point against the construction of a handrail or the widening of the step as being a reasonable response to the everyday risk involved in the use of the step, are as follows. None, on its own, is determinative, but collectively they provide, to my mind, a firm indication that there was no want of reasonable care for the safety of the employee.
First, whilst accepting that the risk of injury was real, it was nevertheless remote, as evidenced by the fact that for years, persons working in the premises had used the step to descend to the workshop floor without incident or injury. Those persons included the male principal of the employer, whose shoe size of 10½ (ts 1052) was larger than that of the employee, whose shoe size was 10. Secondly, the magnitude of the risk viewed prospectively, was not great. It is significant, in assessing the magnitude of risk, to note that only one step was involved. It was not a flight of stairs spanning a deep or lengthy descent or ascent from which serious injury could readily arise. Thirdly, the step complied with the Building Code in relation to the width of the tread and the requirement for handrails. Compliance with the Building Code may provide a guide to, but cannot dictate, the standard of reasonable care required in the circumstances: Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 [110] per McHugh J; Lanza v Codemo [2001] NSWSC 845 [169]; Francis v Lewis [2003] NSWCA 152 [43]. Fourthly, the use of the step, to ascend or descend from one level to another, was a well‑known and well‑understood aspect of everyday life. Both that fact, and the fact that there were no injuries from the use of the step prior to the employee's accident in September 2003, suggest that it was reasonable to expect that staff using the step would take reasonable care for their own safety.
On the other hand, senior counsel for the employee placed particular reliance on four factors which he said would support the judge's finding of breach. The first was that the employee had slipped and made complaints about the step prior to the accident; the second was that the employee wore bulky steel‑capped boots; the third was that the employer was obliged to take into account the prospect of carelessness or inattention by the employee; and the fourth was that the costs of lengthening the step or putting in a handrail were small, as evidenced by the subsequent addition to the step of a brick course at a cost of $176.
As to the employee's first point, not a great deal can, in my view, be extracted from the events prior to the accident to support a finding of a failure by the employer to use reasonable care. What the employee told the employer was that in his view the step was 'inappropriate' because it was 'too small'. He had formed that view because the tread of the step did not accommodate the full length of his foot (ts 28). The fact that the tread of the step was not as long as the length of his foot does not, in itself, indicate that the step constituted a danger or could not be used safely. It is commonplace, as Wheeler JA observed in Hanna‑Pauley v AMP Shopping Centres Pty Ltd [2007] WASCA 174 [31] (Le Miere AJA agreeing) that 'in many flights of stairs in many buildings, the width of the tread is considerably less than the length of the average human foot'. Also, the principal of the employer, with a larger shoe size, had successfully used the step for many years. Further, whilst the employee had made complaints about slips prior to the accident the subject of the claim, he only gave direct evidence of one occasion of a slip, in July 2003. Even in respect of that occasion, he did not give evidence about exactly how that had occurred. If it were assumed that he descended the step on previous occasions as he did on the occasion the subject of the accident, by putting his heel down first, that does not 'point to any deficiency' in the step - adopting the language of Giles JA (Handley JA agreeing) in North Sydney Council v Plater [2002] NSWCA 225 [43]. Indeed, a descent 'heel first' is not the ordinary manner of descent when using a stair or step.
In relation to his second point, the employee's senior counsel emphasised that the employee wore bulky steel‑capped boots. The employee was not required by the employer to wear boots (ts 1088), and, as indicated earlier in these reasons, the employee accepted that his work boots would not have impeded his ability to put the ball of his foot down first on the step. This point does not seem to me to add much force to the contention that the employer was negligent.
In relation to the employee's third point, the contention that the employer ought to take into account carelessness or inadvertence by the employee is to be accepted in principle, but has no significant application on the facts of this case. This was not a case in which the employee was undertaking the operation of any awkward machinery. It did not involve repetitive activity, or any activity requiring a high degree of circumspection or attention. At the time that he fell, the employee was engaged in a relatively simple exercise, which was to move from the landing to the workshop floor in order to open some roller doors at the end of the workshop. There is no suggestion that he was diverted or distracted on account of some other employment activity which absorbed his attention at the time that he commenced his descent to the workshop floor. He was not carrying equipment or anything else at the time, and there was no finding that he was required, as part of his general duties, to carry loads up and down the step.
As to the fourth point relied on by the employee's senior counsel, the mere fact that a change was undertaken after the accident does not support a conclusion of breach of duty. The change does not constitute an admission of liability; it only goes to show what could have been done before the accident: Kuhl [94], [96]. Arguably, more relevantly is Mrs Smith's retrospective acknowledgement that, after the step was extended, she could see why the employee had had a problem with the step. Even in relation to that, on the issue of breach, the relevant inquiry looks 'forward to identify what a reasonable person would have done, not backward to what would have avoided the injury': New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 [57] (original emphasis). Also, the question is not whether the step could have been made safer, but whether the employer breached its duty to take reasonable care for the safety of the employee by leaving the step as it was. Whilst the cost of putting in a handrail or widening the tread would have been relatively small, it is of significance that the step already complied with the Building Code in relation to matters of that kind. In this regard, I do not accept that the case of Hill v Richards [2011] NSWCA 291, upon which the employee relies, provides any useful analogy by way of assistance to the employee. In that case, although the stairs in the shearing shed in question complied with a WorkCover health and safety guide and with certain Australian standards, there were particular risk factors which called for the installation of a 'non‑slip' strip at the top of the stairs and on the edge of the nosings of the steps. Those factors included that the surface was 'just at the requisite coefficient of friction'; that the work in the shed 'took place at speed'; and that it was likely that there would be contaminants, in the form of sheep urine or excrement, which would be picked up on the soles of the shoes of the workers. See Hill v Richards [34] ‑ [43], [47] ‑ [52].
Accordingly, I am not persuaded that these points displace the combined effect of the considerations to which I have referred in [171] above.
Although the standard of care is not a low one, the employee had not established, in my view, that the employer failed to exercise reasonable care to provide a safe place of work or failed to exercise reasonable care to avoid exposing the employee to unnecessary risks of injury. The judge, in my opinion, erred in finding a breach by the employer of the employer's general law duty of care. It was not suggested in this appeal by the employee that if the judge had erred in finding a breach of the general duty of care owed by the employer, the employee could, nevertheless, support a finding of liability by reference to a claim under the Occupiers' Liability Act 1985 (WA) or under the Occupational Safety and Health Act 1984 (WA).
That leaves for consideration ground 4, in relation to causation.
The employee gave evidence to the effect that he would have grabbed a handrail if it was there (ts 32). The employee's submissions on the question of causation in this appeal had, as their focus, the issue of the handrail. Had I concluded that the proper inference was that the employer had been negligent in not putting a handrail on the step, I would not have disturbed the judge's finding that the breach in failing to provide a handrail was causative of the employee's injury. Given the employee's mode of descent 'heel first', and his previous slips, it seems likely that had a handrail been in place, he would have gripped it, or been nearby ready to grip it, at any time he used the step, to stabilise himself in making his descent.
Insofar as the judge found that the step was 23 mm 'too short' or 'too narrow' (reasons [69]), in my view, the judge could not have been satisfied that that the extra length (of less than one inch) would have prevented or minimised the injury which occurred. The employee's evidence was that after the extension of the step following the accident, the 'stairs [sic] were still not correct as - they were better, far better. You didn't stumble off them easily but they were still not correct. There was no edging there to stop you so it was still a bit skatey' (ts 34). Although, after the step was widened, the employee found that he would not stumble 'easily', in relation to the incident in September 2003, even if the first 23 mm of his heel had landed on the step, the bulk of his foot would still have remained unsupported as he moved forward and down. In these circumstances, it is difficult to see that it is more probable than not that the stumble would have been avoided or its severity lessened. The judge gave no reason for finding causation with respect to the failure to have the steps made wider before the accident. In my view, there is no basis, on the evidence, for inferring that an extra 23 mm would have made any difference to, or would have prevented, the employee's stumble in September 2003. The employee did not establish, in this regard, that the injury would have been prevented or minimised.

(a) tread/going	the width of a step, that is, the part on which the foot is placed;
(b) riser/rise	the height of an individual step; and
(c) quantity	the relationship between the tread/going and the riser/rise.