Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy

[2015] NSWCA 253

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253

Hearing dates:

30 July 2015

Decision date:

27 August 2015

Before:

McColl JA at [1];
Basten JA at [2];
Leeming JA at [17]

Decision:

In each appeal (2015/17304 and 2015/15036):

 

1. Appeal allowed.

 

2. Set aside the judgments and orders made on 2 and 19 December 2014 save for order 7 (which was that the defendants bear their own costs of the cross-claims), and in lieu thereof, dismiss the proceedings.

 

3. Order that Mr Hennessy pay the appellant’s costs of the appeal, and the appellant’s costs of the proceedings at first instance, save for the costs of its cross-claim.

4. Grant Mr Hennessy a certificate under the Suitors’ Fund Act 1951 (NSW).

Catchwords:

TORTS – negligence – slip and fall by employee while stepping up into gatehouse at work – claims against employer and occupier – primary judge found step up into gatehouse to be “higher than normal” – occupier subsequently installed intermediate step – employee’s evidence regarded by primary judge as unreliable – no precise findings as to height of step up into gatehouse – no precise findings as to mechanism of accident – whether proper basis for findings of breach of duty and causation – findings of breach set aside – appeals by employer and occupier allowed

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D
Suitors’ Fund Act 1951 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Workers Compensation Act 1987 (NSW), s 151Z

Cases Cited:

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Cherry v Jaymardo Pty Ltd [1998] NSWCA 57
Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839
Elphick v Westfield Shopping Centre Management Company Pty Ltd [2011] NSWCA 356
Hackshaw v Shaw (1984) 155 CLR 614
Hennessy v Patrick Stevedores Operations [2014] NSWSC 1716
Jackson v McDonald’s Australia Ltd [2014] NSWCA 162
Kuru v State of New South Wales [2008] HCA 26; 236 CLR 1
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330
Stannus v Graham (1994) Aust Torts Rep 81-293
Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182
Thornton v Sweeney [2011] NSWCA 244; 59 MVR 155
Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422
Wallace v Kam [2013] HCA 19; 250 CLR 375
Warth v Lafsky [2014] NSWCA 94; Aust Torts Rep 82-166
Wilkinson v Law Courts Ltd [2001] NSWCA 196
Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277

Category:

Principal judgment

Parties:

2015/17304:
Patrick Stevedores Operations (No 2) Pty Ltd (Appellant)
Shane William Hennessy (First Respondent)
FBIS International Protective Services (Aust) Pty Ltd (Second Respondent)

  2015/15036:
FBIS International Protective Services (Aust) Pty Ltd (Appellant)
Shane William Hennessy (First Respondent)
Patrick Stevedores Operations (No 2) Pty Ltd (Second Respondent)

Representation:

Counsel:
TGR Parker SC, D Talintyre (Patrick Stevedores Operations (No 2) Pty Ltd)
P Stockley (FBIS International Protective Services (Aust) Pty Ltd)
R Sheldon SC, P Khandhar (Shane William Hennessy)

  Solicitors:
Piper Alderman (Patrick Stevedores Operations (No 2) Pty Ltd)
Goldbergs Lawyers (FBIS International Protective Services (Aust) Pty Ltd)
Brydens Lawyers (Shane William Hennessy)

File Number(s):

2015/17304; 2015/15036

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2014] NSWSC 1716

Date of Decision:

02 December 2014

Before:

S Campbell J

File Number(s):

2009/335823

Judgment

1. McCOLL JA: I agree with Leeming JA’s reasons and the orders his Honour proposes.

2. BASTEN JA: Leeming JA has concluded that the injured worker (the respondent) failed to establish negligence on the part of the defendants, being the present appellants. It follows that the judgment in his favour must be set aside. I agree with the reasoning of Leeming JA leading to that conclusion and with the orders he proposes. I would add the further considerations which, in my view, support that conclusion.

3. The appellant in the first matter, Patrick Stevedores Operations (No 2) Pty Ltd, was the occupier of the premises on which the accident occurred. The appellant in the second matter, FBIS International Protective Services (Aust) Pty Ltd, was the plaintiff’s employer. It is not in doubt that each owed the plaintiff a duty of care with respect to the conditions in which he worked. It is also not in doubt that the plaintiff suffered significant injuries when, on entering a demountable building in wet weather, he slipped and fell. It is convenient to consider first the alleged breach of duty on the part of Patrick Stevedores, which is governed by s 5B of the Civil Liability Act 2002 (NSW).

4. For that purpose it is necessary to identify the risk of harm which materialised. That exercise must be undertaken with some degree of precision as the next step is to identify what precautions a reasonable person would have taken to protect the plaintiff against the identified risk. The trial judge (Stephen Campbell J) accepted that the two risk factors were the wet weather and the step up into the demountable cabin, which was higher than “normal”. The precautions proposed with respect to those risks involved the placing of an awning over the door and the construction of an intermediate step to reduce the extent to which a person entering the cabin was required to raise himself or herself in one stride.

5. Apart from the kind of awning which was constructed shortly after the accident, there was no specification of the kind of awning required. Depending upon the direction of winds and rain, it is quite unlikely that the awning would prevent the step from becoming wet if the door were regularly opened and shut. In any event, the wetness of the footwear of a person entering the hut would not be affected. Accepting that a reasonable person would have appreciated the risk of a person entering the hut in wet weather slipping on the door sill, there is no reason to suppose that he or she would have considered the awning in question a useful precaution. Indeed, so much was conceded by counsel for the plaintiff in the course of the appeal.

6. The next question concerned the precaution which should be taken against a higher than normal step. The trial judge was unable to establish with any greater level of precision how high the door sill was above the ground at the time of the accident. As explained by Leeming JA, that degree of uncertainty was inevitable given the state of the evidence.

7. There is, however, a potential source of deception in describing the step up as “higher than normal” in circumstances where neither the height nor the standard are known. It is potentially misleading because it suggests the risk was of the unexpected. But that was not so: the plaintiff had stepped in and out of the cabin on numerous occasions before the accident. There was no evidence that he tripped over an unexpectedly high door sill.

8. The last point draws attention to the need to identify the mechanism of the fall. The trial judge, in a carefully constructed judgment, was alert to this factor. He identified it early in his reasons in the following terms at [21].

“There are issues about the mechanism of his fall. First it is effectively put, that what the plaintiff says about his foot sliding sideways on the door-sill does not make sense. Secondly, his description of the construction of the door-sill is different from that depicted in Exhibit F and is unlikely to be accurate, even allowing for the effluxion of time between the accident and the photos being taken. Mr Hennessy described a flat piece of metal folding over the threshold and down the face of the door-sill, rather than the ridged sill and doorjamb shown in Exhibit F. Thirdly, Ms Picone who was not present at the time of the fall, but who arrived at the hut soon after says she saw a skid mark on the linoleum floor. This is said to be inconsistent with the plaintiff's account, and calls into question the case that he slipped on smooth metal contaminated by muddy water.”

9. The trial judge rejected the third factor, namely the skid mark on the floor, as it had not been mentioned by Ms Picone until it came out in cross-examination: at [52]. The judge’s conclusions as to the mechanism were expressed in the following terms:

“[54]   In the circumstances as I have found them to be, it seems to me that the exposed entry to the gatehouse was very likely to be wet in the weather conditions then prevailing. The door-sill is constructed of relatively smooth metal. It is highly likely to be wet either by people coming and going; simply by the action of the plaintiff opening the door outwards; or the soles of his boots may have been wet due to the conditions in which he conducted his mobile patrol.

[55]   I think it a matter either for judicial notice, or at least within the common experience of an ordinary member of a jury, that wet, smooth metal is likely to be slippery. In circumstances where Mr Hennessy was required to reach up with his foot to a height greater than that normally provided by steps, even if they may vary somewhat, it seems probable that he would place his foot on the door-sill to propel himself forward into the gatehouse. Especially as there was nothing, such as a rail, to hold to assist with the entry by steadying oneself during that moment of disadvantage when the following foot leaves the ground to complete the step into the gatehouse. At that moment of disadvantage there is nothing inherently unlikely about the idea that the right foot providing the only point of contact between him and the stable structure could move under the ordinary biomechanical forces exerted by a walking person; at least this is so where the metal door-sill was wet and slippery. I find this is what probably happened.”

10. This is a possible explanation of what happened, but it is by no means self-evidently correct. First, it suggests a degree of effort required to step up into the cabin. Ms Picone’s evidence (she being someone who also worked in the cabin) was that the step was “higher than normal, but it wasn’t hard to get into it”, a passage cited by the trial judge at [45]. Ms Picone’s height was 161cm; the plaintiff’s height was 193cm. He gave evidence, which the trial judge set out in full and apparently accepted, that he had “no difficulty just stepping into the gatehouse”: at [46].

11. No doubt height is not the only factor to be taken into account in considering the “ordinary biomechanical forces exerted by a walking person”: however, the judge had no assistance (nor does this Court) in understanding the mechanism of the fall.

12. In cross-examination, the plaintiff gave the following evidence (Tcpt p 52):

“Q. You lifted your right foot up and put in onto or across the threshold?

A. Yes, I stepped up on to the middle step.

Q. And when you put your foot up, put your weight on that foot it slipped back down again and you fell forward to your side?

A. It went sideways and I fell, yes.

Q. You fell forward?

A. Yes.

Q. So your foot slipped back?

A. No. I slipped sideways, sort of that way.

HIS HONOUR: Indicating from right to left.

[COUNSEL]

Q. Are you quite sure your foot didn’t go backwards?

A. Pretty sure.

Q. But you did fall into the room?

A. Yes.

Q. And as soon as you had fallen you realised you had done something to hurt your back?

A. Oh yeah, yes.”

13. The plaintiff also gave evidence that he “just went to step up normally”: Tcpt, p 54.

14. The relevance of this material is that it renders entirely speculative any attempt to assess the role of the step up in the mechanism of the fall. The trial judge sought to rely upon “common experience” and there is, inevitably, no precise line to be drawn between legitimate reliance on common experience and speculation. However, it is by no means clear what caused the plaintiff, who had stepped onto the door sill, to slip sideways.

15. If it were necessary to establish the mechanism of the fall on the balance of probabilities, on the material available to the judge, given his understandable rejection of much of the plaintiff’s evidence, the finding was not supportable on the evidence. However, for present purposes that exercise is not essential. All that is necessary is to ask to what extent a reasonable person viewing the condition of the demountable cabin prior to the injury ought reasonably to have anticipated that there was a risk of injury caused by the height of the step up to the door sill, so as to address the precautions which might need to be taken to minimise the risk. Establishing the mechanism of the accident is necessary to identify the scope of the inquiry, but reliance on the mechanism of the accident in identifying reasonable precautions introduces an element of hindsight into that assessment. It is only after that assessment has been undertaken that it becomes necessary to ask whether the identifiable risk materialised, as at least a contributing cause of the accident. The plaintiff’s difficulty is that he failed at the first stage: that is, the evidence did not establish on the balance of probabilities that a reasonable person in the position of either appellant would have identified the height of the step as a risk factor which required the construction of an intermediate step.

16. For these reasons, and for those given by Leeming JA, the plaintiff failed to establish breach of duty on the part of either appellant.

17. LEEMING JA: Mr Shane Hennessy fell while at work late in the evening of 21 March 2005. He was employed by a company now known as FBIS International Protective Security Services (Aust) Pty Ltd (FBIS), which had contracted to provide security services to various companies associated with Patrick Corporation Ltd, including Patrick Stevedores Operations (No 2) Pty Ltd (Patrick Stevedores) which occupied a large site at Port Botany in Sydney. There was and is no issue that he fell when stepping into a demountable hut and suffered some injury that evening.

18. More than four years later, Mr Hennessy commenced proceedings in the Common Law Division of this court, alleging that he was entitled to damages for breach of duties owed by FBIS as his employer, and Patrick Stevedores as an occupier. His case at trial was that the step from the ground up into the hut was too high, such that both FBIS and Patrick Stevedores were in breach of their respective duties of care.

19. Following a trial lasting six days, he obtained large judgments against both defendants: Hennessy v Patrick Stevedores Operations [2014] NSWSC 1716. Statutory contribution was apportioned 40% to FBIS and 60% to Patrick Stevedores, and Mr Hennessy was found not to have been contributorily negligent. The calculation of damages against each defendant was different, as was the nature of each company’s liability. The liability of Patrick Stevedores as an occupier was governed by the Civil Liability Act 2002 (NSW) and was affected by s 151Z of the Workers Compensation Act 1987 (NSW). The liability of FBIS as his employer was governed primarily by the Workers Compensation Act. However, FBIS did not challenge the primary judge’s determination of damages, and senior counsel for Patrick Stevedores, which had, confirmed that those grounds of its appeal relating to damages were not pressed. Accordingly, it suffices merely to note that Mr Hennessy obtained judgments of many hundreds of thousands of dollars against each defendant. Each has appealed as of right. The live issues in each appeal were breach, causation and apportionment of statutory contribution. In addition, Mr Hennessy relied on a notice of contention in each appeal, one aspect of which was pressed, to which reference will be made below.

20. A fellow employee witnessed Mr Hennessy’s fall, his supervisor saw him shortly afterwards, and a variety of documents describing the incident were brought into existence at that time, including an incident and accident report and a workers’ compensation claim. These referred merely to his “stepping up into” the demountable hut which was being used as a gatehouse. There were no photographs or other documents recording the height of the step up into the gatehouse as it had been when the accident occurred. By the time litigation was commenced, the demountable hut had been moved. Also, subsequent to Mr Hennessy’s fall, the entrance to the hut had been modified by the addition of an intermediate step which, as I explain below, played a significant part in the primary judge’s reasoning.

21. The only evidence as to the height of the step up into the demountable hut was testimonial, and conflicting. The plaintiff security guard gave evidence about its height, but his evidence was not accepted. The employee who witnessed his fall was not called. The plaintiff called no other evidence as to the height of the step. Both the employer and the occupier called evidence, which also conflicted. The occupier’s witness said that the step was no higher than a normal step; the employer’s witness said it was “higher than normal”.

22. The primary judge made careful findings as to the conflicting evidence, to which no challenge was made on appeal. The primary judge regarded the evidence of the plaintiff and the occupier’s witness as unreliable. His Honour ultimately concluded that the step up was “higher than normal”, at the same time making it clear that the evidence before him did not permit any greater level of precision: at [48].

23. The primary judge nevertheless found that both employer and occupier had breached their duties of care, which breach caused the plaintiff to slip and fall and injure himself. His Honour did so in a way which was carefully attuned to the applicable legislation. Even so, both employer and occupier challenged the findings of breach and causation in light of the limited findings of primary fact.

24. For the reasons which follow, I have concluded that neither employer nor occupier breached the duties of care owed by them in failing to take precautions against the risk posed by a step from the ground into the demountable hut which was “higher than normal”. That conclusion rests essentially on the unchallenged rejection of the plaintiff’s pleaded and testimonial case as to the height of the step, leaving behind insufficient evidence, whether lay or expert, to support a finding that it was reasonable for measures to be taken to address the risk posed by the step up from the ground into the hut.

The findings as to Mr Hennessy’s fall

25. The primary judge observed, correctly, at the outset of his reasons:

“There is no issue about the occurrence of Mr Hennessy’s accident. There is an issue about how and why it happened, although it must be said this issue was just as much about the reliability of Mr Hennessy’s recollection as it is about substantive issues.”

26. Patrick Stevedores owned a demountable hut which was used as a gatehouse at an entrance to its Port Botany site in March 2005. The hut was movable. It could be, and was, lifted by crane and relocated from time to time in light of ongoing construction on the site. The base of the hut was rectangular and comprised of metal beams. Its walls were made of metal. On the narrower side of the hut was a door which opened outward and to the left (of a person entering the hut). The internal floor of the hut was linoleum, but the doorway had a metal edge into which the door fitted when it was shut. In 2005, the hut had been located next to some pavers, from which a person would step through the doorway as he or she entered the hut. (That is to say, there was no intermediate step between the pavers on the ground outside and the elevated floor of the hut.)

26. There is a deal of imprecision in the description in the previous paragraph, which reflects the quality of the evidence adduced at trial. Photographs of the hut, taken four years later after it had been moved to a different location, were Exhibit F at the trial. At the time those photographs were taken, a wooden step had been installed in front of the doorway, and a metal awning had been installed above the step. It was common ground that the step and the awning were installed after Mr Hennessy’s accident.

27. No precise measurements of the hut, or the width and height of the doorway, were in evidence. Most critically, there was a live issue as to the height of the step up into the hut.

28. The primary judge made the following findings as to Mr Hennessy’s fall (at [11] and [19]-[20]).

“The accident happened at 10:40 pm. 21st March was a rainy night. The rainwater puddled in depressions and in some areas there was mud or grime from construction, or demolition, work underway, which would stick to the plaintiff's work boots. His duties on this evening consisted of conducting mobile patrols in a ute, returning to the gatehouse at the end of each patrol. He had completed a patrol just before the accident. He walked from his parked ute to the gatehouse in the rain. The defendants tacitly accept that he was not hurrying. But it is likely, as they submit, he was ‘not dawdling either’. … The plaintiff says that the pavers immediately below the doorway had subsided and on this night water had puddled in the place where a person stands prior to entering the hut.

...

Having reached the entry door to the gatehouse, the plaintiff was below the threshold, standing in the puddle in the depression and opening the door. He stepped up onto the door-sill with his right foot and as he was in the process of lifting his left foot to carry it through his right foot slipped under him and he fell heavily onto the gatehouse floor.

He says that he fell because his foot slipped on the smooth metal door-sill which, like his boot, was wet, and perhaps muddy, from the rainy weather. The area ‘was soaked’ from the rain and may have been muddy.”

30. Stepping from one surface to another at a different level can be dangerous, although most able-bodied people do so every day as they climb stairways, board buses, and enter their homes and other buildings. Stepping up (and stepping down) is an inevitable component of able-bodied people’s lifestyles. Mr Hennessy and other FBIS employees had stepped into the demountable hut on many occasions in the months during which it had been located where it was (the primary judge accepted evidence that the hut had been moved “several” months prior to March 2005; like other aspects of this trial, there was a lack of precision here too). Neither FBIS as employer nor Patrick Stevedores as occupier was obliged to provide a step free environment. As this Court said in Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [32]:

“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.”

31. Wilkinson was a case, unlike the present, where the physical nature of the steps was known, and was the subject of expert evidence, including as to Australian Standards governing the minimum and maximum height and depth of stairs. It was also a case where the claim was that the step was too shallow, (140 mm, less than a minimum rise height of 150 mm according to AS1657: see at [12]) which issue as will be seen also arises peripherally in the present appeals.

32. Further, the mere fact of a fall on wet steps is not sufficient to establish that an occupier has been negligent: Cherry v Jaymardo Pty Ltd [1998] NSWCA 57 (a case pre-dating the Civil Liability Act); Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 at [91]. As Barrett JA said in the latter case at [92], it does not follow from the fact that a floor is wet that there is some precaution which a reasonable person in the position of an occupier would take.

33. Hence the importance, in that appeal and in the present appeals, of s 5B(1)(c) of the Civil Liability Act, and, at an earlier stage in the analysis, of identifying the height of the step and the mechanism of Mr Hennessy’s fall.

The conflicting evidence as to the height of the step up into the hut

34. The statement of claim alleged that the gatehouse was “approximately 600 mm above ground level”. Approximately 600 mm is 24 inches. No evidence was adduced supporting that allegation.

35. In a statement made in 2010, Mr Hennessy said:

“The door to enter the gatehouse was at the short end and there were no steps leading up to the door. You would have to open the door, which opened outwards, and step up approximately 1 ½ feet across the metal doorframe and onto the demountable floor. Immediately below the entrance the ground had become depressed making the distance somewhat greater.”

36. Notwithstanding the heights given in the statement of claim and in his statement, Mr Hennessy was invited in his evidence in chief to agree that the step up was approximately 14 or 15 inches in total. He did so. The primary judge did not accept his evidence. Instead, the primary judge formed the view that Mr Hennessy’s recollection was unreliable, although not dishonest, and that where his evidence conflicted with the evidence of other witnesses who seemed reliable, contemporaneous documents, or the probabilities suggested by the circumstances, he would not rely on it: at [40].

37. The recollection of the only two other witnesses called was very different from that of Mr Hennessy. His FBIS supervisor, Ms Picone, who was 161 cm tall, said that it was “higher than normal, but it wasn’t hard to get into [the hut]”. Patrick Stevedores’ Operations Manager at the time, Mr Taylor, said he was familiar with the hut and had entered it some 40 - 50 times before Mr Hennessy’s accident (the evidence did not, as I read it, establish whether all or only some of those occasions had been where the hut was located at the time of the accident). Mr Taylor was a relatively tall man. In the witness statement responding to that of Mr Hennessy which had referred to a height of 1 ½ feet, he said:

“I am about 185 cm. I do not recall specifically how high the step up into the demountable was at the time but my recollection is that it was no more than a normal step. I do not remember it being a significant step up from the ground to get into the structure. I disagree that it was 1.5 feet off the ground – it was much lower than that.”

The qualified findings of the primary judge

38. The primary judge made careful and qualified findings on this issue which were not substantially challenged, at [44] and [48]:

“I am not satisfied that the evidence is such as to permit me to make an accurate finding about the height of the door-sill above the ground, even allowing for the consideration that there may have been a depression in the pavers below. As I have recounted above, Mr Taylor did not accept that the height was as great as estimated by Mr Hennessy. Properly understood his evidence may allow for a conclusion that the height was greater than ‘normal’, especially if one considers what he said, such as it is, about adjustability, and about the ‘lowness’ of the side awning. It is probable that the door-sill as at 21st March 2005 was higher than depicted in Exhibit F. But there is no evidence of the height in Exhibit F and it is impossible to draw an inference about it. As a step has been fitted in Exhibit F, I infer that Patrick Stevedores considered one was necessary in the location depicted in Exhibit F.

...

I accept the required step to enter the gatehouse was ‘higher than normal’. The phrase ‘stepping up’ appearing in the incident report and the claim forms is highly suggestive of extra reach, if I may put it that way, being required. Keeping the provisions of s 5C Civil Liability Act 2002 (NSW) at the front of my mind, the evidence from Ms Picone that Patrick Stevedores installed a step within a [few] days supports the inference that the necessary step up was greater than normal. But the evidence falls short of satisfying me about the precise height. The finding I have made about Mr Hennessy’s reliability leads me to reject the estimate in his evidentiary statement prepared for the purpose of the case.”

39. FBIS pointed to a difficulty with part of that reasoning. There were no contemporaneous documents describing the height of the hut. The incident and accident report and the workers’ compensation claim form referred to Mr Hennessy “stepping up into the gatehouse”, but that language says nothing as to how high the floor of the gatehouse was above the ground outside. An intrinsic feature of two surfaces being at different heights is that a person must step up or down when moving from one to the other; as FBIS put it, “any height at all would involve a ‘stepping up’”. However, the evidence of Ms Picone referred to above supported the finding in the qualified terms in which it was made.

40. The subsequent analysis of the mechanism of the fall, breach of duty, and causation proceeded on the basis that the step was “higher than normal” in the sense found by the primary judge. Consistently with the carefully qualified findings reproduced above, when dealing with causation, the primary judge observed (at [116]):

“In dealing with the absence of a step as a cause of Mr Hennessy’s harm, I am conscious that I have been unable to determine with precision the height of the necessary step-up. The degree of overstepping called for, is of course, relevant to questions of causation. I have also borne in mind that over the several months that this gatehouse was in use, during which there was likely to have been some rain, but there was no evidence of this, no other person, on the evidence, seems to have lost his footing and fallen as Mr Hennessy did.”

41. It should be noted that Mr Hennessy did not maintain that some more precise finding of fact should have been made.

The limitations of the findings by the primary judge

42. It is convenient immediately to identify some of the limitations in the primary judge’s findings as to the height of the step up into the demountable hut.

43. First, there was no evidence or finding as to what was a “normal” height of a step. There was no evidence, for example, of any Australian Standards as to steps, or specifications in the Building Code of Australia. Nor was it submitted that the court should have taken judicial notice of such standards.

44. Secondly, it is obvious, as Patrick Stevedores submitted, that there must be a range of “normal” heights of steps. “Normal” steps are not all the same height. There was no evidence of what that range was.

45. Thirdly, there was no finding as to the extent to which the step up from the pavers into the demountable hut was higher than normal. Was it slightly higher than normal, significantly higher than normal, or indeed inordinately higher than normal? All that was found by the primary judge, given the limited evidence before him, was that the step was “higher than normal”, although his rejection of the plaintiff’s evidence would rule out the third possible reading.

46. Finally, not only was the finding unaccompanied by any quantitative description of the height of the step, there was also no qualitative finding as to the experience of a person stepping up into the hut. It would be different if, say, the primary judge had found that not only was the step up higher than normal, but also that all persons entering the hut would have had to extend their leading leg significantly more than usual, such that many would find it difficult to enter the hut. Such a finding would go far to addressing the element of liability posed by s 5B(1)(c). But no such finding was made. Nor would such a finding have been open on the evidence, once Mr Hennessy’s recollection was found to be unreliable.

47. The limited finding that the step was “higher than normal” in what is otherwise an evidentiary vacuum produces two difficulties. The first is in establishing that reasonable precautions should have been taken by the defendants to address the risk of falling. The second is in establishing that Mr Hennessy’s fall was caused by the failure to take precautions. Those difficulties operate differently, and are addressed separately below.

Was there a breach of duty owed to Mr Hennessy?

(a) Applicable legal principles

48. The case advanced against Patrick Stevedores was one of failing to take precautions against the risk of slipping and falling when stepping up into the hut. Accordingly, the issue of breach of duty by Patrick Stevedores was governed by s 5B of the Civil Liability Act. That section provides:

“(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.”

49. “Negligent” in this context means failure to exercise reasonable care and skill: s 5. It was not disputed that the risk of someone slipping, falling and injuring himself or herself while stepping up into the hut was both foreseeable and not insignificant. Even so, s 5B(1)(c) means that a plaintiff must fail in an action for negligence based on a failure to take precautions unless the plaintiff discharges the onus of showing that a reasonable person in the defendant’s position would have taken the precautions. The fact that s 5B(1)(c) is a necessary element of a plaintiff’s success in litigation to which it applies is plain on the face of the section, and was confirmed by the High Court in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [34].

50. As McColl JA observed in Jackson v McDonald’s Australia Ltd at [11], the requirement in s 5B(1)(c) reflects the formulation of principle by Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 663 that the measure of the discharge of Patrick Stevedores’ duty is what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk. That formulation was approved in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488.

51. The essential issue posed by s 5B(1)(c) as to what a reasonable person would have done in response to the risk must be considered prospectively: Adeels Palace Pty Ltd v Moubarak at [31] and [40]. The court’s determination of these questions is subject to the limitations imposed by s 5C of the Civil Liability Act, including in paragraph (c) that

“the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”

52. The fact that there were measures which could have been taken to avert (or, for that matter, diminish) the risk that actually materialised does not establish breach: Thornton v Sweeney [2011] NSWCA 244; 59 MVR 155 at [131].

53. Finally, the scope of an occupier’s duty is delimited by the expectation that users will exercise reasonable care for their own safety: see Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [159] and Jackson v McDonald’s Australia Ltd at [8]. As Gummow J observed in Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 at [45], the expectation that a potential plaintiff will exercise reasonable care in a case such as the present goes not merely to the assessment of breach, but is a “specific element contained, as a matter of law, in the scope of the ... duty of care”.

54. The liability of FBIS as employer was different in nature from that of Patrick Stevedores. In Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 at [12], the High Court said:

“An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work” (footnotes omitted).

55. However, as will be seen below, the convenient course is that taken by the primary judge, dealing first with the liability of Patrick Stevedores, and then turning to FBIS.

(b) The reasoning of the primary judge on breach by Patrick Stevedores

56. The primary judge addressed s 5B directly. His Honour identified the risk as that of slipping on the metal door-sill when it was slippery because it was wet from rainwater (at [84]). His Honour found that the risk of slipping, arising out of “what I will call the awkward height of the step” and “the propensity of smooth metal to become slippery when wet”, was foreseeable within the meaning of s 5B(1)(a) and not insignificant within the meaning of s 5B(1)(b) (at [87]-[88]). Both those factors were dealt with concisely, and no challenge was made to them. (I return below to the appellants’ submissions arising from the uncertainty as to precisely how Mr Hennessy fell when dealing with causation.)

57. His Honour’s reasoning at [89]-[96] in relation to s 5B(1)(c), to which the non-exhaustive but mandatory relevant considerations in s 5B(2) applied, was much lengthier. However, in light of what follows, it is appropriate to reproduce it in full:

“[89] I turn then to the question whether a reasonable person in Patrick Stevedores position would have taken any of the precautions proposed by Mr Hennessy. In determining this, I am required to consider the factors identified in s 5B(2) ‘amongst other relevant things’. The reasonable person is not required to respond positively to every risk which is both foreseeable and not insignificant by taking any available precaution. Here, the history of the usage of the gatehouse demonstrated that the probability that someone would slip in wet weather and hurt himself or herself was not great. In fact, it was low. The entry was used very many times a day by FBIS guards entering and leaving going about their duties, by cleaners coming and going, and at least from time to time by Mr Taylor and perhaps other Patrick Stevedores’ staff having legitimate business with FBIS. This factor favours a reasonable person in Patrick Stevedores’ position deciding to not take the precautions.

[90] Falls are commonly known to be the source of significant if not serious personal injury. If a person falls heavily and unexpectedly some significant injury may be said to be on the cards. This factor favours taking available precautions. The burden of placing an awning over the entry, and installing a step were not great and so much is shown by subsequent events. Indeed, the burden was slight. Likewise I think I can infer that the burden of putting up a grab rail beside the entry instead of installing the step would have been slight. I am not satisfied that the risk was such that a reasonable person in Patrick Stevedores’ position would regard it as necessary to install both a step and a grab rail or that both were reasonably necessary to obviate the risk.

[91] In referring to the steps that were subsequently taken, I am not engaging in hindsight reasoning, nor am I overlooking s 5C(c) of the Act which provides that the subsequent taking of alleviating action ‘does not of itself give rise to or effect liability in respect of the risk’. However, the subsequent taking of simple steps may be evidence of the availability of relatively inexpensive measures capable of obviating the risk which is a factor relevant to the question posed by s 5B. It does not of itself prove the plaintiff’s case, but it may help. I certainly do not regard the taking of subsequent steps as any statement against interest constituting an admission.

[92] All lawful enterprise may be said to have social utility. However in the present case that is not a factor outweighing the considerations which inform the answer to the s 5B(1)(c) question. The court would not wish to make a finding of negligence that jeopardised jobs, for instance, but that is not this case. There is nothing in the social utility of Patrick Stevedores operations which tells against a finding of negligence otherwise arising on the evidence.

[93] ‘Other relevant things’ include the burden of taking precautions to avoid similar risks of harm for which Patrick Stevedores may be responsible and I was referred to Vairy v Wyong Shire Council (2005) 223 CLR 422 at 460, 462 and 468 in that regard. Although the site was a large one, there was no more than that in the evidence from which I could form any conclusion about the possible scale of necessary remedial action. This is not a case like Vairy where a shire council had imposed upon it ‘responsibility’ for long miles of coast and hundreds of other facilities of public resort. In my judgment there is no great burden in imposing upon the occupier of private as opposed to public, places, and of built, as opposed to open, spaces the obligation to take reasonable steps to keep them in repair.

[94] Other relevant factors include the consideration that an occupier is generally entitled to expect entrants to exercise reasonable care for their own safety particularly where risks of harm are obvious or apparent. On the other hand, appreciation of risk may be obscured by repetition of performance of the task: Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at pp 177 - 8. Here one may be aware that the step up is higher than normal or even awkward, but repetition of the performance of such a simple task may create a level of familiarity where the need to exercise particular care is overlooked.

[95] Finally, the consideration that the gatehouse was a workplace provided by Patrick Stevedores to FBIS for use by its employees in performing the security services agreement. Given the high standards expected by Patrick Stevedores of FBIS in relation to occupational health and safety, it well behoved it to consider the appropriateness of the premises it provided for use as a workplace. By saying this I am not suggesting that any more stringent duty arises in the case of Patrick Stevedores. Its duty is, and only is, one to exercise reasonable care.

[96] Taking all of these admittedly competing, and sometimes conflicting factors together, I am satisfied that a reasonable person in the position of Patrick Stevedores would have, at the time it allocated gatehouse 113B to FBIS taken the precaution of installing a step below and an awning over the entrance. I am satisfied that the plaintiff has demonstrated on the balance of probabilities that Patrick Stevedores was negligent.”

58. When dealing with causation, the primary judge summarised his conclusions as to breach as follows (at [110]):

“I have decided that Patrick Stevedores’ negligence consisted of its failure to inspect the demountable hut for the purpose of determining its suitability as a place of work for FBIS staff at the time that it allocated the hut to FBIS for its use. According to Ms Picone this happened several months before Mr Hennessy’s accident. Exercise of reasonable care in such an inspection would have disclosed the greater than normal height of the necessary step up from the ground to the gatehouse and a reasonable person in the position of Patrick Stevedores would have determined that an intermediate step was a reasonable precaution to guard against the risk of injury of persons stepping up and slipping on door-sill when it was wet. That was a simple step and could readily have been done in short order before the allocation of the hut just as it was done after the accident and within a few days.”

(c) The appellants’ challenges to the findings of breach

59. Patrick Stevedores and FBIS challenged the findings on breach. Patrick Stevedores submitted that given the terms of the contractual relationship between it and FBIS, there could be no obligation for it to inspect the demountable hut. It submitted that that conclusion was reinforced by the consideration that if there were, it would be necessary for it to inspect all areas of the (large) site over which FBIS’ employees might travel. I return to this below. FBIS’ submission was more general (understandably, because of the different duty it owed to its employees). It submitted that there was no evidence to suggest that the height of the demountable hut gave rise to any risk which, if FBIS had asked Patrick Stevedores to address it, would have caused Patrick Stevedores to do anything, in light of “his Honour’s uncertain finding as to the height of the step”.

60. In oral addresses, greater weight was given to the uncertainty of the factual finding. Senior counsel for Patrick Stevedores submitted that “our point is that it wasn’t open to his Honour simply in that evidentiary vacuum to say, well, I think that a reasonable person looking at that step would have concluded that there’s a risk associated with it” (Transcript, 30 July 2015, p 26). The submissions as to the evidentiary vacuum not permitting the primary judge to come to the conclusions he arrived at were echoed by FBIS (Transcript, 30 July 2015, p 38). The references to the “evidentiary vacuum” were to what had been found decisive (albeit on the issue of causation) in this Court’s decision in Jackson v McDonald’s Australia Ltd at [32] and [122].

61. The convenient and efficient course is to address the consequences of his Honour’s limited findings as to height upon s 5B(1)(c), and then return to the other submissions advanced on appeal.

(d) The reasoning of the primary judge discloses error

62. The reasoning of the primary judge on s 5B(1)(c) is, not inappropriately, nuanced. It discloses an appreciation that the matters upon which the ultimate statutory issue turns may not, and ordinarily will not, all point in the same direction. And it is squarely directed to the matters to which s 5B(1)(c) requires attention to be directed. However, I have concluded that it discloses error.

63. The primary judge relied, twice, on the fact that a step was fitted to the hut shortly after Mr Hennessy’s fall. Those findings are contained in the passages in [44] and [48] reproduced at [38] above. His Honour repeated the point in [90]-[91] and in summarising the position in [110]. As his Honour with respect correctly appreciated, the subsequent taking of action by Patrick Stevedores cannot of itself “give rise to or affect liability in respect of the risk”: Civil Liability Act s 5C(c). But, putting what occurred after the event to one side, what was there to establish that it was reasonable for Patrick Stevedores to install a step (and an awning) in respect of the “higher than normal step”?

64. If the step were significantly higher than mandated by Australian Standards, or if there were evidence of an increased risk of instability on the part of a person ascending it, or if a number of people had slipped, or nearly slipped, while stepping into the hut prior to March 2005, one might conclude that a reasonable occupier in the position of Patrick Stevedores would have installed an intermediate step. However, if the step were within the range mandated by Australian Standards, or if it were at the margins, or if there were evidence that its height did not appreciably increase the risk of a fall, then it is difficult to conclude that a reasonable occupier would have done so. Those considerations illustrate the fact that what matters, for the purposes of s 5B(1)(c), is not the mere presence of a step up into the demountable hut, but whether the particular characteristics of the “higher than normal” step up into the hut in March 2005 gave rise to a foreseeable risk of harm which was not insignificant and against which a reasonable person in Patrick Stevedores’ position would take precautions.

65. Further, the question what a reasonable person would do is not resolved merely by reference to the installation of an intermediate step. There are two reasons for this. The first is that a reasonable occupier might take other measures (for example, installing a non-slip mat; I return to this when dealing with causation). The second is that it is possible that installing an additional step might itself create the possibility of harm from a different risk. Indeed, there was a basis in the evidence to find that this was the case.

66. In short, his Honour relied on the fact that a step and an awning were installed subsequently, in order to confirm that doing so was relatively inexpensive and capable of obviating the risk. The fact that installing a step and an awning could be done quickly and cheaply was not controversial. However, it did not follow that a reasonable person would have taken those precautions, for example if doing so would be to introduce different hazards, or if it could reasonably be perceived not to significantly reduce an identified risk. Section 5C(c) prevents such reasoning.

67. There is a related matter which is confirmatory of this error. The primary judge was able to reach a conclusion that a reasonable person in the position of Patrick Stevedores would not have regarded it as necessary to install both an intermediate step and a grab rail (at [90]), while at the same time reaching a conclusion that a reasonable person would have regarded it as necessary to install a step and an awning (at [96]). There was no expert evidence at all as to the precautions which could be taken, or their relative efficacy. Still less was there any evidence as to whether two precautions might work synergistically to reduce a risk. The only way in which the evidence as to the efficacy of an intermediate step and an awning differed from the evidence as to the efficacy of a step and a grab rail was the fact that Patrick Stevedores put in place a step and an awning after Mr Hennessy’s fall. The fact that the primary judge was able to make distinct findings as to a step and an awning, as opposed to a step and a grab rail, leads me to conclude that in fact inappropriate reliance was placed on what Patrick Stevedores did after the accident, contrary to s 5C(c), despite his Honour adverting to the provision in terms.

68. The second error may be seen in the slide from the step up being “higher than normal” to “even awkward”. There was no basis in the evidence to conclude that the step up from the pavers into the hut was “awkward”.

69. To the contrary, Ms Picone had found it awkward when an intermediate step was put in place after Mr Hennessy’s fall (her evidence to that effect was correctly, with respect, recorded at [45]). Ms Picone gave evidence as follows:

“Q. Once [the new step was put in] what was the gradient like to walk in?

A. It just seemed too shallow. It was a high step like into the demountable. It was higher than normal, but it wasn’t hard to get into it, but once they placed the additional step it just seemed to be too shallow.

...

Q. Before [the new step was put in] I think you have described the situation as being that the step into the gatehouse was higher than for a standard step?

A. Yes, slightly higher.

Q. And once the new step was put in ... [w]hat was the rise? What did the rise then become across the two steps?

A. It was just awkward. It wasn’t quite a step. It was awkward. That’s the only way I can describe it.

Q. Was the rise less than a regular step?

A. Yes.

Q. So instead of going one step which was greater than a normal step?

A. Yes.

Q. You now had two steps that were less than a usual step?

A. Yes.”

70. However, the primary judge twice described the original step up from the pavers into the hut as “awkward”. In dealing with foreseeability, his Honour referred to “what I will call the awkward height of the step” (at [87]). In dealing with whether a reasonable person would have taken precautions, his Honour framed the analysis by saying “one may be aware that the step up is higher than normal or even awkward” (at [94]).

71. Those statements were diametrically opposed to the evidence of Mr Taylor and, more importantly (given his Honour’s acceptance of her evidence), Ms Picone. Indeed, as FBIS submitted, not only did Ms Picone consider the intermediate step to be awkward, she gave evidence that she had not recommended it after Mr Hennessy’s accident (“No, I didn’t recommend a step. ... I remember when they put it in that it wasn’t one of the things that I had brought up”). Once Mr Hennessy’s recollection was put to one side as unreliable, there was no foundation in the evidence for a conclusion that the original step was awkward.

72. The error may simply have been derived from the primary judge misremembering Ms Picone’s evidence. Alternatively, his Honour may merely have used the same language as Ms Picone. In either case, however, the effect was to elevate a “higher than normal” step which Ms Picone did not consider made it hard to get into the hut, into an “awkward” step up with, possibly, an elevated risk of injury. There was no foundation in the evidence for taking that course.

73. That may seem a small point. I should explain why I regard it as material. The issue posed by statute is whether a reasonable person would take the precautions which the plaintiff alleges the defendant failed to take. What matters most is not whether the step up was relatively high or low. What matters most is whether a reasonable person would or would not find it awkward, so as to necessitate precautions being taken.

74. The foregoing may also suggest that his Honour failed to have regard to the consideration that installing an intermediate step might not be reasonable, if it would result in steps being unusually shallow. It is to be recalled that on any view of the matter, there was only a limited choice in precautions which could reasonably be taken. Installing an intermediate step necessarily would reduce the height of each step up. A step which is too shallow can itself give rise to a risk of a fall – indeed, that was the plaintiff’s claim in Wilkinson v Law Courts Ltd.

75. The third error appears in his Honour’s reliance on the high standards expected by Patrick Stevedores of FBIS in relation to occupational health and safety, such that “it well behoved it to consider the appropriateness of the premises it provided for use as a workplace”. I cannot regard this as contributing to a conclusion that a reasonable occupier would have installed an intermediate step. Neither Patrick Stevedores nor any other occupier could come under a lesser duty as occupier if it required less exacting standards from its contractors. But that is no more and no less than the reasoning relied on by the primary judge, expressed negatively, in the second sentence of [95] reproduced above. It is possible, in light of the last sentence of [95], that his Honour placed no reliance on this reasoning, despite its appearing immediately before his conclusion on this issue.

(e) There was no breach of duty by Patrick Stevedores

76. The position, then, was as follows. The primary judge identified a series of considerations, some favouring taking the precaution of installing an intermediate step, some tending against taking that precaution. Those tending against installing an intermediate step were numerous. They were that the risk was obvious, that a reasonable person need not respond to every risk, that here the risk was low, that the step had been used many times a day, by a range of people (including FBIS employees, cleaners, and Mr Taylor) and that there had (on the primary judge’s findings) never been a slip on it prior to Mr Hennessy’s accident.

77. To that list may be added the evidence of Ms Picone: entry into the hut became awkward when the intermediate step was installed, in that what had been a higher than normal step up became two shallow steps which she found to be awkward.

78. Against this, the primary judge considered that the step up from the pavers to the hut was “awkward”, a finding not available to his Honour, and failed to consider the evidence that an intermediate step might produce a step up which the only witness whose recollection was accepted as reliable found to be “awkward”. In making such a finding, his Honour appears to have reasoned in a way which is contrary to s 5C(c). Those errors vitiate the s 5B(1)(c) finding that Mr Hennessy had demonstrated that a reasonable person would have installed a step below and an awning over the entrance of the hut.

79. This Court can, and therefore should, go further, so as to avoid the need for a retrial, in conformity with Uniform Civil Procedure Rules 2005 (NSW), r 51.53(1). The question posed by s 5B(1)(c) is a question of drawing inferences from a limited number of facts, and the onus rests with Mr Hennessy. The matters identified above demonstrate that the plaintiff had failed to establish that a reasonable person would have taken any further precautions. Many considerations (some identified by the primary judge, others identified above) told against such a conclusion. All that is left are the facts that all steps present risks, and that it would have been relatively straightforward to implement the precautions which Patrick Stevedores did in fact implement after Mr Hennessy’s fall. That is not sufficient to satisfy s 5B(1)(c).

80. It must be recalled that “[p]ersons 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 Rep 81-293 at 61,566 (Handley JA, with whom Meagher JA agreed). Mr Hennessy had to adduce evidence to show to the civil standard that the additional risk posed by the step from the ground up into the demountable hut, considered prospectively, would have prompted a person in the position of Patrick Stevedores to take some precaution. The failure to adduce evidence determining more precisely the height of the step up or its other characteristics meant that there was a failure to adduce evidence which could sustain a finding as to the extent of the additional risk. That of itself is sufficient to sustain the conclusion that s 5B(1)(c) was not satisfied.

81. Another way of expressing my conclusion is as follows. The reasoning of the primary judge supporting a finding under s 5B(1)(c) is found at [89]-[90]. The matters identified at [90] and [91] – that steps present risks, and that Patrick Stevedores in fact took precautions after Mr Hennessy’s fall – are not sufficient themselves to sustain a finding under s 5B(1)(c). Nor could the considerations identified in [92] and [93]. Paragraph [94] points in two directions, but to the extent that its closing sentence turns on the step up being “awkward”, as opposed to “higher than normal”, it is not sustained by the evidence. It is not clear whether [95] contributed to the s 5B(1)(c) finding, especially having regard to its last sentence, but, once again, it was incapable of doing so. The upshot is that the reasoning process has miscarried, because the very limited findings of primary fact cannot support the s 5B(1)(c) conclusion.

82. For those reasons, the evidence adduced at trial was insufficient to satisfy s 5B(1)(c), a necessary element of Patrick Stevedores’ liability. I have also had the advantage of reading the judgment of Basten JA, with which I agree.

(e) Other submissions made by Patrick Stevedores

83. Subject to the notice of contention, that is sufficient to resolve the appeal by Patrick Stevedores. However, I should address certain other submissions advanced by it, although I shall do so briefly, and without fully summarising their detail, because they are not dispositive.

84. Patrick Stevedores maintained that it was under no obligation to inspect the hut to be used by employees of its independent contractor, in circumstances where it was not directly instructing those employees nor was there coordination between them and its own employees, and there was nothing especially hazardous about the hut. This was said to be outside the scope of Patrick Stevedores’ duty, principally by reason of the onerous contractual burdens placed upon FBIS to maintain high standards of safety for all persons on the site. I do not accept the submission. It is sufficient to observe that Patrick Stevedores owned the hut, and was responsible for moving it around the site, and, ultimately, determining how high above the ground it would be placed; this is quite different from the “cages” supplied by Westfield but moved around by its contractors in Elphick v Westfield Shopping Centre Management Company Pty Ltd [2011] NSWCA 356, on which reliance was placed. I would not accept that an occupier could not be liable in the present circumstances.

85. Patrick Stevedores also submitted that because the question whether there was an obligation to take precautions had to be determined prospectively, before the accident happened, there could be no duty here, in relation to Patrick Stevedores’ large site, because “[t]he demountable would have been only one of a large number of places at the Terminal visited by FBIS’ employees in the course of their work”. It was said that an obligation to inspect all of those places would be very onerous and, so it might be thought, unreasonable. I disagree. The relevant risk presented by the hut depended upon its height above the ground. That was something that changed from time to time, depending upon its location. It was Patrick Stevedores which determined when and where the hut was moved, and how high off the ground it was when it was moved. There was evidence that it was a large operation to move the demountable hut around the site (a crane was used). As FBIS submitted, there is nothing onerous in Patrick Stevedores inspecting the hut after each move to make sure that it was not too high above the ground.

(f) There was no breach of duty by FBIS

86. The primary judge addressed the issue of breach of duty by FBIS concisely, at [97]-[98]. His Honour found that FBIS “has been personally negligent for very similar reasons to those expressed in respect of Patrick Stevedores”. His Honour found that it “ought to have undertaken a relevant inspection, audit if you like, of the gatehouse once allocated by Patrick Stevedores”, and it “ought to have appreciated the risk and considered the relatively simple steps available to obviate it”. Although FBIS had no right to carry out alterations or modifications, it was obliged to request Patrick Stevedores to install a step and awning.

87. That reasoning cannot stand. The finding of primary fact was merely that the step up was “higher than normal”. There was no finding that it was significantly higher than normal. To the extent that the primary judge considered that persons stepping up into the demountable hut found doing so awkward, the evidence did not sustain such a finding. The conclusion by the primary judge that FBIS ought to have appreciated the risk presented by the step up into the demountable hut cannot be derived merely from the fact that it was “higher than normal”.

88. Accordingly, assuming favourably to Mr Hennessy that FBIS should have conducted an inspection of the demountable hut, and accepting that the duty imposed upon FBIS as employer was stricter than that imposed upon Patrick Stevedores, the evidence did not sustain a finding that the inspection would have disclosed a risk which would have given rise to an obligation to take any steps. Mr Hennessy did not seek to sustain a finding of breach of duty by FBIS in any way other than that identified by the primary judge.

89. It follows that, subject to the notice of contention, FBIS’ appeal must also be allowed.

Notices of contention

90. In each appeal, Mr Hennessy sought to sustain the judgments in his favour by a notice of contention. The paragraph that was pressed submitted that the primary judge should have found that each appellant was negligent in failing to provide a handrail or handrails from the floor of the hut to the ground. Plainly enough, a handrail would have provided Mr Hennessy with a second contact with a stable object. However, there is no basis in the evidence for concluding that a reasonable person would have installed a handrail. Indeed, the reasoning above makes it plain that this is a case where the plaintiff had failed to establish that a reasonable person would have taken any precaution to address the risk presented by the step into the hut.

91. In Stannus v Graham (a case of a step which moved slightly leading to the plaintiff slipping on it, which could have been detected upon a close inspection), this Court rejected a submission that the occupier was negligent in failing to detect the movement of the step. Handley JA, with whom Meagher JA agreed, proceeded to reason that because there was no negligence in failing to observe and remedy any defect in the step, it could not, in the circumstances of the case, have been negligent for the defendant and her caretaker to fail to install a handrail. The same reasoning applies here.

Causation

92. The foregoing is sufficient to dispose of each appeal. However, a deal of the submissions of both appellants was directed to causation.

93. Let it be assumed, contrary to the foregoing, that Patrick Stevedores and FBIS breached an obligation to take reasonable care by failing to install, or cause to be installed, an intermediate step. It was not suggested that this was an “exceptional case” to which s 5D(2) of the Civil Liability Act applied. Accordingly, Mr Hennessy was required to prove on the balance of probabilities that Patrick Stevedores’ negligence was a necessary condition of the occurrence of the harm he suffered. Against FBIS, Mr Hennessy was required to show that its breach of duty caused his fall in the sense indicated in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506. In its application to the facts of this appeal, questions of causation are materially identical for both appellants.

94. The primary judge made the following findings at [54]-[56] as to the mechanism of Mr Hennessy’s fall:

“In the circumstances as I have found them to be, it seems to me that the exposed entry to the gatehouse was very likely to be wet in the weather conditions then prevailing. The door-sill is constructed of relatively smooth metal. It is highly likely to be wet either by people coming and going; simply by the action of the plaintiff opening the door outwards; or the soles of his boots may have been wet due to the conditions in which he conducted his mobile patrol.

I think it a matter either for judicial notice, or at least within the common experience of an ordinary member of a jury, that wet, smooth metal is likely to be slippery. In circumstances where Mr Hennessy was required to reach up with his foot to a height greater than that normally provided by steps, even if they may vary somewhat, it seems probable that he would place his foot on the door-sill to propel himself forward into the gatehouse. Especially as there was nothing, such as a rail, to hold to assist with the entry by steadying oneself during that moment of disadvantage when the following foot leaves the ground to complete the step into the gatehouse. At that moment of disadvantage there is nothing inherently unlikely about the idea that the right foot providing the only point of contact between him and the stable structure could move under the ordinary biomechanical forces exerted by a walking person; at least this is so where the metal door-sill was wet and slippery. I find this is what probably happened.

If the mechanism of Mr Hennessy’s fall is as I have described it in the preceding paragraph, and as by all accounts he was a tall, heavy young man (so much is borne out from what I saw in the witness box) he probably fell very heavily to the floor, suffering some injury.”

95. Unlike duty and breach, the inquiry as to causation is “wholly retrospective [and] ... seeks to identify what happened and why”: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [124]; Warth v Lafsky [2014] NSWCA 94; 2014 Aust Torts Rep 82-166 at [61]. Putting to one side s 5D(1)(b) (which was not relied upon), causation is wholly factual and turns on the plaintiff’s proof on the balance of probabilities that the failure to take the precaution was a necessary condition of the occurrence of harm: Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; 250 CLR 375 at [14].

96. Proof of the requisite causal link between those omissions and an occurrence required consideration of the probable course of events had the omissions not occurred: Strong v Woolworths Ltd at [32]. It was accordingly necessary for Mr Hennessy to prove that had an intermediate step been installed, then it is likely that he would not have slipped and fallen on the evening of 21 March 2005.

97. There were essentially two submissions advanced in relation to causation. Both appellants submitted that the relative factual vacuum as to the height of the step up into the demountable hut and the vagueness in the mechanism of how Mr Hennessy fell reduced the primary judge to impermissible speculation as to whether the presence of an intermediate step would have avoided the fall. It was put orally thus:

“If he fell because only a small part of his foot was on the step, would [an intermediate step] have made a difference. That’s of particular significance when your Honours come to consider the notice of contention, because our friends are of course now saying not just that there should have been a step but there should have been a grab rail as well, and these sort of matters. Again, it gives rise to causation questions which aren’t illuminated by the evidence as, indeed, our counter suggestion of a mat or some procedure for mopping the floor, perhaps including the sill. We simply say that his Honour, with respect, has been led into impermissible speculation and that the finding that had an inspection been carried out, it would have resulted in something which would have avoided the accident just isn’t justified on the material before his Honour.”

98. Patrick Stevedores (whose submissions on causation FBIS adopted) pointed to a wider difficulty. On the assumption that breach was made out, it said that there were a range of measures which a reasonable person could have taken to address the risk, such as installing an awning, or a grab rail, or, most particularly, a non-slip mat inside the demountable hut. It submitted that where there are a range of measures a defendant could reasonably take to address a risk, a plaintiff is required to demonstrate that each response would have avoided the accident to prove causation.

99. As it was put in writing:

“Most fundamentally, his Honour did not address at all the possibility (which was put to him in argument) of simply putting down a non-slip mat on the floor of the demountable hut during wet conditions. On the face of it, this would have been the most direct and obvious solution to any perceived problem from water and mud being tracked into the hut; there seems to be no reason why any relevant duty could not have been discharged simply by advising FBIS to obtain and put down such a mat, when conditions required it.”

100. I have considered, in accordance with Kuru v State of New South Wales [2008] HCA 26; 236 CLR 1 at [12], whether the grounds relating to causation should be resolved, although they cannot affect the outcome of the appeals. As I see it, there are considerable difficulties in doing so.

101. In relation to the first submission (that the findings of factual causation amounted to impermissible speculation), this can only be assessed if quite detailed assumptions are made as to the nature of the risk presented by the demountable hut’s height off the ground, which are on the view I have taken not available from the evidence.

102. I am able to conclude that there was error in accordance with the second submission advanced above, because it was necessary in order to determine factual causation either to determine that the only reasonable response by an occupier was to take the precautions identified by his Honour, or if not, then it was necessary to address what would have occurred had other reasonable precautions been taken. The primary judge did not do this. However, once again, it does not follow that this Court could resolve the error. There are cases where an appellate court can detect error without being satisfied that a contrary finding is appropriate: see Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277 at [17]. To take the example at the forefront of Patrick Stevedores’ submissions, it is far from clear whether there was evidence supporting a finding that a non-slip mat would have been a reasonable response if, contrary to what I have concluded in relation to breach, a response was called for by the height of the step up into the demountable hut.

103. The need to make detailed findings of primary fact against which the consequences of an assumed breach (which I do not consider occurred) are to be assessed persuades me that it is inappropriate to say anything more.

Apportionment

104. Error having been shown in the findings of breach by Patrick Stevedores and FBIS, it is not appropriate to say anything about whether a basis was made out to interfere with the judge’s apportionment of liability. The fact that this was a relatively minor aspect of the written and oral submissions on appeal is reflected in the costs orders I propose below, which do not separately deal with the costs of this issue in either appeal, but preserve the position as to costs of this issue at trial ordered by the primary judge.

Orders

105. I propose the following orders, to be made in each appeal (2015/17304 and 2015/15036):

1. Appeal allowed.

2. Set aside the judgments and orders made on 2 and 19 December 2014 save for order 7 (which was that the defendants bear their own costs of the cross-claims), and in lieu thereof, dismiss the proceedings.

3. Order that Mr Hennessy pay the appellant’s costs of the appeal, and the appellant’s costs of the proceedings at first instance, save for the costs of its cross-claim.

4. Grant Mr Hennessy a certificate under the Suitors’ Fund Act 1951 (NSW).

106. The orders contained in the Appeal Books (see Orange 84W) refer to orders made on 19 February 2014. The orders drafted above proceed on the basis that that date is a typographical error. It also appears that there was a stay of execution of the judgment pending appeal. If any additional orders are warranted because I have not fully appreciated the position following the trial, or on some other proper basis, then application may be made in the usual way in accordance with the rules of court.

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Amendments

27 August 2015 - [15] - "in my view" deleted.

27 August 2015 - [15] - "on" and "the finding" inserted in first sentence.

[16] - "party" replaced with "part".

Decision last updated: 27 August 2015