Shoalhaven City Council v Pender - [2013] NSWCA 210

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Shoalhaven City Council v Pender [2013] NSWCA 210
Hearing dates: 28 March 2013
Decision date: 10 July 2013
Before: McColl JA [1]
Barrett JA [98]
Ward JA [99]
Decision:
1. Appeal allowed.
2. Verdict and judgment of Balla DCJ and order 2 of the orders made on 30 March 2012 and entered on 2 April 2012 be set aside.
3. In lieu thereof order that there be verdict in favour of the appellant.
4. Order that the Respondent pay the Appellant's costs of the appeal and the proceedings in the District Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
TORTS - negligence - occupier's liability - slip and fall on ferry ramp - whether conclusion as to how plaintiff fell available either from direct evidence or by inference - whether circumstances raised a more probable inference in favour of plaintiff's case

TORTS - negligence - Civil Liability Act 2002, s 5B and s 5C - breach of duty of care - identification of risk of harm - whether risk of slipping on dry concrete surface of boat ramp "not insignificant" - whether evidence of unreasonable failure to take precautions against risk of harm

TORTS - negligence - Civil Liability Act 2002, s 5D - causation - necessary condition of harm - whether absence of adequate cleaning system cause of injury

TORTS - contributory negligence
DAMAGES - apportionment of responsibility as between employer and occupier for purposes of s 151Z(2)(c) Workers Compensation Act 1987 - assessment of damages for future economic loss and future paid domestic assistance
Legislation Cited: Civil Liability Act 2002
Civil Liability Act 2003 (Qld)
Workers Compensation Act 1987
Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452
Arabi v Glad Cleaning Service Pty Ltd [2010] NSWCA 208
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Dulhunty v J B Young Ltd (1975) 50 ALJR 150
Flounders v Millar [2007] NSWCA 238
Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151
Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367
Hoffmann v Boland [2013] NSWCA 158
Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470
Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239
Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132
Jackson v Lithgow City Council [2008] NSWCA 312
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kocis v SE Dickens Pty Ltd [1998] 3 VR 408
Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1
Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd as trustee for the G & M Geldard Family Trust [2012] QCA 315; [2013] 1 Qd R 315
Metropolitan Gas Co v City of Melbourne [1924] HCA 46; (1924) 35 CLR 186
Miller v Galderisi [2009] NSWCA 353
Miller v Miller [2011] HCA 9; (2011) 242 CLR 446
Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
Neill v NSW Fresh Food and Ice Pty Ltd [1963] HCA 4; (1963) 108 CLR 362
Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Progressive Recycling Pty Ltd v Eversham [2003] NSWCA 268; (2003) 40 MVR 141
Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; (2009) 77 NSWLR 360
Roche Mining Pty Ltd v Graeme Wayne Jeffs [2011] NSWCA 184
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Shaw v Thomas [2010] NSWCA 169
Shirt v Wyong Shire Council [1978] 1 NSWLR 631
State of Victoria v Bryar and Anor (1970) 44 ALJR 174
Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182
Tame v State of New South Wales [2002] HCA 35; (2002) 211 CLR 317
Thornton v Sweeney [2011] NSWCA 244; (2011) 59 MVR155
Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wilkinson v Law Courts Ltd [2001] NSWCA 196
Woolworths Ltd v Strong [2010] NSWCA 282
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
Youkhana v Di Veroli [2010] NSWCA 322
Texts Cited: D Ipp, P Cane, D Sheldon, I Macintosh, Review of the Law of Negligence, Sep 2002, The Commonwealth of Australia
Category: Principal judgment
Parties: Shoalhaven City Council (Appellant)
Clint Alexander Pender (Respondent)
Representation: Counsel:
J Sexton SC with N Polin (Appellant)
S Norton SC with P Macarounas (Respondent)
Solicitors:
DLA Piper Australia (Appellant)
Brydens (Respondent)

File Number(s): CA 12/180280
Decision under appeal

Jurisdiction:

9101

Citation:

Clint Alexander Pender v Shoalhaven City Council

Date of Decision:

2012-03-28 00:00:00

Before:

Balla DCJ

File Number(s):

DC 10/101142

Judgment

McCOLL JA: This is an appeal by Shoalhaven City Council against a verdict and judgment in the sum of $370,242 awarded to the respondent, Clint Pender. The background to the proceedings and detail of the evidence is set out in the judgment of Ward JA. I agree with Ward JA's conclusions as to s 151Z(2)(c) of the Workers Compensation Act 1987 and as to damages. I agree with the orders her Honour proposes for the following reasons.

The critical issues on appeal were whether the primary judge erred first, in finding that the respondent had established how he came to fall, secondly, in finding that the respondent had established that the appellant had breached its duty of care, thirdly, in failing to identify, with the requisite degree of precision, the risk of harm for the purposes of s 5B of the Civil Liability Act 2002 (the "Liability Act") and finally, in concluding that any breach of duty on the appellant's part had caused the respondent's injury. In my view the appellant has made good each of those complaints.

In my view the circumstances did not raise a more probable inference in favour of the respondent's case nor, indeed, give rise to conflicting inferences of equal degrees of probability. The respondent failed to establish why he slipped, let alone that he slipped on an unreasonably slippery surface in respect of which a reasonable person in the appellant's position ought to have taken precautions. Finally, in any event, the respondent failed to establish that any omission on the appellant's part caused his injury.

Legislative framework

The case was governed by the negligence provisions of the Liability Act. Section 5B of that Act provides:

"5B General principles

(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.

Sections 5D deals with causation and relevantly provides:

"(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation'), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."

Pursuant to s 5E, in proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

The proper starting point for the inquiries as to duty, breach and causation the case posed was the relevant provisions of the Liability Act: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 (at [11], [15], [27], [41]) ("Adeels Palace"). The primary judgment made passing reference to s 5B of the Liability Act but no reference to either s 5D or s 5E. In Adeels Palace (at [39]), the Court observed that absence of consideration at trial of the matters prescribed by s 5B of the Liability Act "may [be] reason enough to conclude that the question of breach of duty was not determined properly". Like concern may be raised where there is a failure to refer to other relevant provisions of the Liability Act.

The evidence

The Comerong Ferry Service operates between Comerong Island and the mainland near Nowra across the confluence of the Crookhaven and Shoalhaven rivers. At the relevant time, it was operated by O'Connor Ferry Service Pty Ltd ("O'Connor"), the respondent's employer. The ferry had a vehicle capacity for six cars. The respondent was injured when he fell on the ramp on the Nowra (mainland) side at which the ferry docked. Counsel for the appellant informed the Court without contradiction by counsel for the respondent that the ferry made ten trips a day, so that it would have docked at the Nowra side on five occasions.

The respondent's evidence-in-chief concerning the circumstances of his accident was brief. He described the area of the ramp where he fell as being "a little bit dusty, maybe dirty but it was dry". He said there was no algae or slime there. He said he fell in the course of undertaking an activity he described as "getting my clearances and my marks set up so that I ... would not ground the ferry ... or [damage] the main ramp". In order to undertake that exercise he squatted on the ramp to look underneath it at the bottom of the ferry and the top of the ramp. He stood up, twisted on his feet, slipped then fell over. He was asked whether he had read the report of his expert, Dr Adams, and confirmed that its contents were accurate as to what he told him.

In cross-examination, the respondent said that he made sure the ramp was dry before he walked down there. He also said there "might have been" algae "a bit further down". When pressed, he moved from that tentative position to stating "it was dried algae where I was standing ... [which] was dry enough that it looked dusty ... because it looked like it was concrete." When asked as to how he knew he was standing on dry algae, he said:

"Well it has to be dry algae because where I was standing was dry ...[I] didn't know it was algae at the time ... [I] must have been standing on dry algae because it's the only way I could have slipped."

When asked again as to whether the ramp where he slipped was wet, he agreed that it looked like it was a concrete ramp and that there was "no algae or mud or the like" that he could see directly.

Dr Adams said he had visited the scene of the accident on two occasions, on at least one of which the respondent accompanied him. The respondent told him that the section of the ramp on which he was standing immediately prior to his accident was "quite dry at the time but quite smooth".

On the basis of the information he received from the respondent and his inspection of the ramp, Dr Adams opined, in essence, that the respondent had fallen because as he stood up from his inspection, he "failed to compensate for the steepness of the slope [which] allowed/resulted in the slipping of his foot".

Dr Adams concluded that it was "of little value to try and measure the coefficient of friction available on the surface where [the respondent] slipped" because, in his view, there were other factors with more relevance to his fall on a sloping surface than its frictional properties. He also said the respondent's slip was not "of the nature that requires measurement of slip resistance - that is, a slip that occurs as a forward pace is being made [because] I took the incident to be one that was a function of the other dynamics that I discussed in my report and not a function of a slick that was a result of a [sic] inadequate slip resistance on the surface per se."

Dr Adams' report dealt with modifications he suggested the appellant could have made to the surface of the ramp to incorporate cleating or gridding to deal with the risk he identified from the respondent working on the steep ramp, but this case was not pressed by the respondent's counsel at trial, nor sought to be resurrected on appeal.

In cross-examination, Dr Adams said that he understood the respondent's feet were on dry concrete at the time that he slipped, and that the respondent had been "quite clear" that there was "no history of him being on contaminants". He said that references in incident reports which had been drawn to his attention to the need to pressure hose algae and the like off the surface were not applicable in terms of the history the respondent gave him about where he was standing. He said, in substance, that he did not consider it necessary to do slip testing because he was dealing with a dry concrete surface.

In re-examination, Dr Adams said that if the respondent had been on "a more highly super resistant surface ... that slip may not have progressed ... to an outright fall", but that it would be speculative to say by how much it would have improved the likelihood.

The appellant called Mr Ahama, another ferry driver employed by O'Connor, to deal with the respondent's alternative, but ultimately rejected, case concerning modifying the ferry: see Ward JA (at [100]). He said that there was no need to go onto the ramp to inspect where the ferry was in relation to the shore because there were marks on the ramp which indicated where the ferry should be stopped.

In the course of his cross-examination Mr Ahama was shown a photograph from Dr Adams' report which, it appeared to be common ground, depicted the spot on the ramp where the respondent fell. He agreed that that was a "pretty dangerous spot ... whether ... wet or dry" and, too, with the proposition that "smooth concrete ... whether it's wet or dry, is slippery". He also agreed that he knew "even though it didn't look too bad, that when dry, it was slippery." He did not, however, agree that it was a constant problem with the ramps that they were "slippery and need to be water-blasted", but, rather, agreed that "every couple of months ... they [were] dirty and slippery" and that a defect notice was then lodged. He said that the water blasting removed "mainly the slime that grows on the concrete ... right down the bottom where it's always wet".

In closing submissions at trial, the respondent's counsel (who did not appear on appeal) submitted, somewhat remarkably, that the respondent's evidence that the ramp where he fell was dry and clean was wrong and was given the lie by a defect form which said the ramp "must be cleaned, it's slippery". That submission appeared to be based on a "Ferry Defect Report/Work Request" dated 9 April 2007 which bore the respondent's signature, albeit that it appeared to have been completed in more than one hand. Under "Description" the following appeared:

"Both ramps/approaches. Need cleaning (driver slipped + injured - 9-4-07)."

The respondent tendered this copy of the defect report in the course of Dr Adams' evidence. The appellant tendered another version at the end of its case which did not include the words in parentheses. There was no evidence as to who was the author of the parenthetical statement or when it was written on the document. Relevantly, neither version included any statement that the ramp was "slippery".

The only other contemporaneous document in evidence was one the respondent said he had completed. It was headed "Register of Injuries - Nowra Ferry" and was also dated 9 April 2007. The entry recorded the injury as having been suffered on the "Nowra side approach north side of Ramp". Under the heading "Cause of Injury", the respondent wrote "slipped and fell hard onto concrete". There was no reference to the condition of the ramp.

The Register of Injuries recorded that another ferry driver, Mr Wallace, had slipped on 11 and 14 January 2007 while "chaining ferry to chain hook at bank ramp". The Register did not reveal where on the ramp he slipped or why. Counsel for the respondent on appeal said Mr Wallace's fall was on the other side of the ramp to where the respondent fell.

A defect report dated 19 January 2007 made only one complaint about a ramp, namely that "concrete ramp badly broken, exposed cut off bolts (house side)". It is not clear whether this referred to the ramp on the Nowra side. It made no complaint that the ramp was slippery. There was a space on the defect report for the insertion of a signature and date against the heading "Defect cleared". No signature appeared on that form in that space.

The respondent's counsel at trial relied on the incidents concerning Mr Wallace to submit that it should be inferred that they would have led to a request for the council to water blast the ramp. He also contended that it could be inferred from what had befallen the respondent that that request "went un-actioned".

Two defect notices dated 15 April 2005 and 27 February 2006 were also tendered, each of which recorded, in substance, that the ramps needed high pressure blasting because they were slippery. Neither defect notice was apparently linked to any accident caused by the ramp's condition.

Clause 1(c) of the Specification to the Contract for the Management and Operation of the Comerong Island Ferry (the "Specification"), being that which governed the relationship between the appellant and the respondent's employer, provided that the appellant would conduct maintenance reviews of the ferry at one month intervals and "effect major replacements". Clause 1(g) required the Contractor, at its own expense, to undertake the routine maintenance of the ferry and associated equipment in accordance with a maintenance schedule which was Attachment 1 to the Specification. Checking "ferry approach ramps" was listed in Attachment 1 as among the matters to which the Contractor was to attend on a monthly basis. Clause 1(h) provided that the Contractor would "promptly notify Council of any defect ... on associated equipment including ... ramps".

Two documents on the Roads and Traffic Authority's letterhead relating to quarterly inspections of the "Cormorant" Ferry were tendered. The "Cormorant" appears to have been the name of the ferry which plied the Comerong Ferry service. They were prepared in September and December 2005 respectively. The only entries which appear to have some relevance were identical in each report, namely:

"The approach ramp on the mainland side is in poor condition at the low water mark. As mentioned in the previous report ... CONCLUSION ... Approach ramps, this ramp needs to be repaired as damage can occur to the hull if the vessel is brought into the approach too far."

This entry appears to relate to the cracked surface of the ramp which was evident from photographs in evidence.

The respondent's case was pleaded on the basis that the ramp was dangerous because of a "build up of wet and slippery ... algae, mud and other debris" on which he slipped. As will be apparent this pleading is difficult to understand in the light of his evidence in chief, which was consistent with his instructions to Dr Adams, that the area where he slipped was dry. It is not surprising, however, that in the light of those instructions Dr Adams' theory of the respondent's accident focussed on the nature of the slope on which the respondent was injured, and not on the coefficient of friction of the surface on which he slipped.

As I have said, the respondent's counsel ultimately did not press Dr Adams' theory as to why the respondent slipped, or the precautions he suggested should have been adopted to minimise the risk he opined the ramp's slope posed. Rather, he advanced a case which depended on Mr Ahama's evidence, the defect report to which I have referred and the proposition that, based on its response to a subpoena, the appellant had not complied with its obligation either to conduct periodic inspections and/or to respond to all defect notices.

The primary judgment

The primary judge referred (at [15]) to the respondent's evidence that "the concrete in the area where he fell was dry and smooth". She next recorded (at [16]) Dr Adams' opinion that it was the respondent's failure as he stood up "to compensate for the steepness of the slope [which] allowed/resulted in the slipping of his foot which in turn precipitated his fall". She concluded that Dr Adams' evidence was overwhelmed by Mr Ahama's, recounting, in substance, his evidence as set out above (at [19]).

Her Honour concluded (at [18] - [19]) that she was satisfied that the respondent's evidence as to how he fell and Mr Ahama's evidence established that the respondent fell because the ramp was slippery, that the Council was notified of its condition every couple of months and did not always respond to fix the defect. Her Honour referred to the complaint in the 19 January 2007 defect report (see [24] above) about the exposed cut off bolts on the ramp and said that defect had not been actioned. Next her Honour inferred (at [22]) that the Council received notice of the incidents concerning Mr Wallace. Her Honour then referred to the defect report apparently completed on the day the respondent fell. On the basis apparently of this review of the forms, her Honour found (at [24]) that the appellant "knew that the ramp regularly became slippery and needed cleaning" and that "[t]his is a condition which develops over time."

The primary judge said (at [25]) that the evidence as to whether the appellant or the RTA had a system for regularly inspecting the ramp was unclear. The appellant's counsel had apparently conceded that the appellant conducted three-monthly maintenance reviews but, in response to a subpoena requiring production of documents relating to such reviews between 1 January 2005 and 31 December 2008, only four documents were produced. This concession appears to have related to the RTA documents to which I have referred (above at [28]), albeit that only two were tendered.

The primary judge then said:

"26 The state of the ramp on the day of [the respondent's] fall evidences that the ramp was not being cleaned by the [appellant] in a timely manner."

After referring to the fact that the ramp was adjacent to the workplace and to Mr Ahama's evidence that he would walk onto the ramp when bored or to have a look at something that had been washed up, her Honour said she was satisfied:

"28 ... that [the respondent] has shown that the risk was foreseeable (that is it is a risk of which the [appellant] knew or ought to have known), the risk was not insignificant and that a reasonable person in the [appellant's] position would have instituted a pro-active maintenance system to keep the ramp clean (section 5B(1) ... Liability Act ...). There is no evidence that the [appellant] did have such a system.

29 The way of fixing the problem was simple. It was also inexpensive. The [appellant] from time to time had in the past used a pressure cleaner to clean down the ramp. It was probable that a person would slip if the ramp was not kept clean (section 5B(2) ... Liability Act ...)."

In dealing with the respondent's alternative ferry modification case (see [18]) above, the primary judge concluded (at [30.2]) that the respondent had not demonstrated that it was reasonably foreseeable to the appellant that he would check underneath the ferry for clearance.

The primary judge rejected a submission in relation to contributory negligence that if the ramp was slippery, the respondent ought to have been aware of its condition because he had been a ferry operator for, apparently, at least nine years (albeit until 4-5 days previously, at a different location) on the basis that:

"32 ... It was clear from his evidence and the contemporaneous complaints he made that he was uncertain as to why he had slipped."

In dealing with O'Connor's notional liability under s 151Z(2)(c) of the Workers Compensation Act, the primary judge found (at [37]) that it was "likely the evidence would establish, if O'Connor ... was a party ... that it knew that the ramp regularly became slippery and also knew that the Council did not always respond to a defect notice in a timely manner. There was no suggestion that O'Connor took any steps in response to this situation. For example it could have warned and directed its employees not to walk down the ramp."

The primary judge made adverse findings about the respondent's credibility in relation to damages issues, but not insofar as liability was concerned.

Submissions

In essence, the appellant's case was that the respondent had not known why he had fallen, had speculated that he must have slipped on dry algae, that this was contrary to the evidence he led from Dr Adams, his expert witness, that his fall was due to the mechanics of him standing up on the slope of the ramp independent of its slipperiness and that any evidence as to the slipperiness of the ramp was neither specific in time or place and, properly understood, did not identify slipperiness associated with dry algae. Secondly, the appellant asserted that even if it was incorrect in the above respects, the respondent had failed to identify a system of inspection and cleaning it ought to have maintained to discharge its obligation to respond as would a reasonable person in its position, in the circumstances, to the foreseeable risk. Finally, the appellant submitted the respondent had failed to identify any causal nexus between any purported failure to take reasonable precautions within the meaning of s 5B and his fall.

The appellant submitted that for the purpose of s 5B(1)(a) of the Liability Act, it was necessary that the primary judge identify and clearly articulate the risk of harm of which it knew or ought to have known and in respect of which she concluded it was reasonably required to take precautions. It contended the primary judge failed to make a specific finding in this respect but, rather, made only the general finding (at [28]) that "the risk was foreseeable", one it contended her Honour arguably contradicted (at [30.2]) when she found that the respondent had not established that "it was reasonably foreseeable by the appellant that [he] would decide to check under the ferry for clearances". The failure to identify the risk of harm led to the further complaint that the primary judge had not assessed that issue in terms of its significance: s 5B(1)(b).

The appellant argued that the weaknesses in the respondent's case flowed from the fact that he had pleaded a case that he fell on a wet slippery surface which had not come up to proof. The "dry algae" theory of the case emerged in the course of his cross-examination and was not supported by any "system" evidence. Further, the respondent's case was contradicted by his expert's evidence which was to the effect that there was no need to measure the slip resistance of the ramp concrete because the concrete of which the ramp was constructed was, itself, reasonably slip resistant.

Although the appellant accepted that one witness (ironically one it had called) Mr Ahama, said in cross-examination that the ramp surface was slippery whether wet or dry, it argued that evidence did not establish the surface was unreasonably slippery because concepts of slipperiness are idiosyncratic in relative terms. This was borne out, it argued, by the fact that despite Mr Ahama's evidence, he did not say he had ever slipped on the ramp, why it was slippery or how slippery it was, let alone that an employee taking reasonable care for his or her safety could not do his or her job insofar as it entailed accessing the ramp. In such circumstances, it contended, it was not open to the primary judge to conclude that Mr Ahama's evidence overwhelmed Dr Adams' evidence.

The respondent submitted that the primary judge's finding that the ramp was slippery and that that condition contributed to his fall was open on his evidence, that of Mr Ahama, the defect report completed on the day of the accident, the Register of Injuries, and the pre-accident defect reports. He accepted that slip tests were not relevant to Dr Adams' analysis which highlighted the problem from an ergonomic point of view of the slope of the ramp. The submissions repeated Dr Adams' theory of the respondent's fall. That was not, as I understand the submissions, an attempt to resurrect the case based on his opinion which, as I have said, counsel for the respondent at trial abandoned. There was no notice of contention seeking to uphold the primary judgment on the basis of Dr Adams' opinions, although the submissions did contend that both the slope of the ramp and its lack of slip resistance contributed to his fall.

The respondent submitted that he was not required to establish that he was aware at the time he slipped and fell exactly why he slipped. He contended, however, that he did not fall over simply as a result of the mechanics of his upwards movement.

Consideration

In order for the respondent to succeed against the appellant, he had to adduce evidence supporting a positive inference implying negligence on its part, an inference which arose as an affirmative conclusion from the evidence and one which was established to the reasonable satisfaction of a judicial mind. The evidence had to rise above the level of conjecture, could not be based on possibilities but had to be established as a matter of probability, and had to do more than give rise to conflicting inferences of equal degrees of probability: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 (at 5); Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 (at 359 - 360) per Dixon, Fullagar and Kitto JJ; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (at 304 - 305) per Dixon CJ, (at 310) per Menzies J, (at 318 - 319) per Windeyer J; Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155 (at 161 - 2) per Stephen J, (at 168) per Mason J; Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452 (at [45] - [46]) per Gleeson CJ, Gummow, Kirby and Hayne JJ.

The respondent did not contend at trial, or on appeal, that the appellant owed him any duty of care higher than that of an ordinary occupier of land. That duty required the appellant to take reasonable care to avoid a foreseeable risk of injury to the respondent arising from the physical state of its land on the assumption that he used reasonable care for his safety: Australian Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (at 488) per Mason, Wilson, Deane and Dawson JJ; Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330 (at [45]) per Gummow J. The basis of the appellant's duty, as an occupier in relation to the physical state or condition of the ramp, was its control over, and its knowledge (actual or constructive), of the state of the ramp: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 (at [18]) per Gleeson CJ.

The appellant's obligation was one of reasonable care; an occupier is not an insurer of entrants: Kocis v SE Dickens Pty Ltd [1998] 3 VR 408 (at 429) per Hayne J. What constitutes the exercise of reasonable care depends on the circumstances of each case: Wilkinson v Law Courts Ltd [2001] NSWCA 196 (at [32]) per Heydon J (Meagher JA and Rolfe AJA agreeing).

The questions whether there was a duty of care and, if so, whether it was breached, have to be determined prospectively: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (at [126] ff) per Hayne J; applied in Adeels Palace (at [31]). To focus exclusively upon the particular way in which the accident that has happened came about must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty: Vairy v Wyong Shire Council (at [124]) per Hayne J; approved in New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 (at [58]) per Gummow and Hayne JJ.

Breach of duty

Acceptance that the appellant owed the respondent a duty of care did not answer the questions whether that duty was breached or whether any breach caused the respondent's injury: Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd as trustee for the G & M Geldard Family Trust [2012] QCA 315; [2013] 1 Qd R 315 (at [20]) per Fraser JA (White JA and Mullins J agreeing).

Further, "[a] person does not breach his or her duty of care merely because there are steps that he or she could have taken to avert the risk that actually materialised": Thornton v Sweeney [2011] NSWCA 244 (at [131]) per Sackville AJA (Campbell JA and Tobias AJA agreeing); see also s 5C(b), Liability Act.

"[T]he inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be 'nothing'": Vairyv Wyong Shire Council (at 124]

This proposition was emphasised in Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 (at [38]) by McHugh J:

"A defendant is not negligent merely because it fails to take an alternative course of conduct that would have eliminated the risk of damage. The plaintiff must show that the defendant was not acting reasonably in failing to take that course. If inaction is a course reasonably open to the defendant, the plaintiff fails to prove negligence even if there were alternatives open to the defendant that would have eliminated the risk."

Despite its appearance in that part of the Liability Act headed "Duty of care", section 5B engages with the issue of breach of duty of care.

Thus, s 5B(1) sets out three preconditions that must co-exist before liability in negligence arises, while s 5B(2) provides a non-exhaustive list of factors the court is required to take into account in deciding whether the third of those preconditions exists: Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; (2009) 77 NSWLR 360 (at [173]) per Campbell JA (McColl JA agreeing); see also (at [443]) per Sackville AJA.

The effect of s 5B(1), accordingly, was that the appellant was not negligent in failing to take precautions against a risk of harm unless the risk was one of which it knew or ought to have known, the risk was not insignificant, and in the circumstances, a reasonable person in the appellant's position would have taken those precautions.

Section 5B(1)(c) invokes the notion of foreseeability as it is relevant to breach of duty of care. Reasonable foreseeability of the class of injury the plaintiff suffered is also an essential condition of the existence of the duty to take care for the benefit of another. However the nature of the foreseeability inquiry differs depending upon the stage at which it is being considered.

In Shirt v Wyong Shire Council [1978] 1 NSWLR 631 (at 639 - 640) Glass JA said that "[t]he inquiry to be made in relation to duty or no duty [of care] relates to the foreseeability of harm resulting to the plaintiff from the conduct of the defendant, considered quite generally", whereas "[t]he conduct relevant to the breach inquiry is the foreseeability of harm resulting from the acts or omissions of the defendant, or its servants, proved to have occurred." Thus, the foreseeability inquiry at the duty and breach stages raises different issues which progressively decline from the general to the particular: Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 (at 295) ("San Sebastian") per Glass JA; see also Vairy v Wyong Shire Council (at [70] - [73]) per Gummow J.

Glass JA explained in San Sebastian (at 295 - 296) how the different issues are analysed as follows:

"The proximity upon which a Donoghue type duty rests depends upon proof that the defendant and plaintiff are so placed in relation to each other that it is reasonably foreseeable as a possibility that careless conduct of any kind on the part of the former may result in damage of some kind to the person or property of the latter: Chapman v Hearse (1961) 106 CLR 112, at 120, 121. The breach question requires proof that it was reasonably foreseeable as a possibility that the kind of carelessness charged against the defendant might cause damage of some kind to the plaintiff's person or property: Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd; The Wagon Mound (No 2) [1967] AC 617, at 642, 643, Wyong Shire Council v Shirt (1980) 54 ALJR 283, at 285, 286 ... Of course, it must additionally be proved that a means of obviating that possibility was available and would have been adopted by a reasonable defendant, ibid. The remoteness test is only passed if the plaintiff proves that the kind of damage suffered by him was foreseeable as a possible outcome of the kind of carelessness charged against the defendant: Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, at 390." (Emphasis in original)

Despite the demise of proximity as an informing principle on the question whether a duty of care is owed (Miller v Miller [2011] HCA 9; (2011) 242 CLR 446 (at [59]) per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) reasonable foreseeability of harm of the kind suffered remains a necessary, although not sufficient, condition of the existence of a legal duty of care: Tame v State of New South Wales [2002] HCA 35; (2002) 211 CLR 317 (at [12]) per Gleeson CJ; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 (at [9]) per Gleeson CJ. Glass JA's explanation of the declining continuum of particularity of the foreseeability inquiry remains germane.

At common law, the plaintiff did not have to establish the precise and particular character of the injury or that the precise sequence of events leading to the injury was foreseeable; it was sufficient if the kind or type of injury was foreseeable: Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 (at [64]) per Gummow J. Nothing in the Act dictates any different approach when considering the requirement of s 5B(1)(b) that the risk be "not insignificant": Shaw v Thomas [2010] NSWCA 169 (at [43]) per Macfarlan JA (with whom Beazley and Tobias JJA agreed).

Nevertheless, as Basten JA emphasised in Hoffmann v Boland [2013] NSWCA 158 (at [3]) "[t]he focus of [s 5B] is upon the 'risk of harm' and the 'precautions' which might be taken against such a risk."

Thus the breach inquiry required the primary judge to identify accurately the actual risk of injury the appellant faced as it was only through the correct identification of the risk that her Honour could determine what a reasonable response to that risk would be: Roads and Traffic Authority of New South Wales v Dederer (at [18], [59]) per Gummow J. As Gummow and Hayne JJ explained in Graham Barclay Oysters Pty Ltd v Ryan (at [192]), the inquiry as to breach "involves identifying, with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk". In so saying, their Honours referred with approval to Isaacs A-CJ's observation in Metropolitan Gas Co v City of Melbourne [1924] HCA 46; (1924) 35 CLR 186 (at 194), that "[n]o conclusion of negligence can be arrived at until, first, the mind conceives affirmatively what should have been done".

In Shaw v Thomas (at [44]) Macfarlan JA concluded that the requirement in s 5B(1)(b) that the risk of harm be "not insignificant" imposed a more demanding standard than the "not far-fetched or fanciful" test set at common law in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 but, in his view, "not by very much." In Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd (at [26]), Fraser JA also observed of s 9(1)(b) of the Civil Liability Act 2003 (Qld) (the equivalent provision to s 5B(1)(b) of the Liability Act) that its language "produce[d] some slight increase in the necessary degree of probability" but that "[t]he difference is a subtle one" and "[t]he increase in the necessary degree of probability is not quantifiable and it might be so minor as to make no difference to the result in most cases."

Identifying the risk of harm

The influence of Gummow J's statement in Roads and Traffic Authority of New South Wales v Dederer concerning the need to identify the relevant risk of harm accurately for the purposes of s 5B is apparent in recent decisions.

Shaw v Thomas concerned, relevantly, the question whether the occupiers of a home had breached their duty of care to a 10 year old visitor who suffered serious head injuries when he fell whilst descending from the top level of a bunk bed. The parties were at issue as to how the risk of harm should be characterised for the purpose of s 5B. Macfarlan JA held (at [45]) that the risk was sufficiently defined as one of the plaintiff "falling and injuring himself whilst descending from the top bunk of the bed", a risk his Honour regarded as "not insignificant [because] [t]here is always some risk of injury when children climb up to and down from elevated surfaces."

Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 ("Garzo") concerned the question whether occupiers of a school had breached their duty of care to the appellant who slipped and fell on the painted strip of a pedestrian crossing within school grounds. At the time she fell, the crossing was slightly wet or damp as a result of drizzling rain which had fallen earlier that evening. The primary judge identified the relevant risk of harm as "[t]he risk of a person, such as the [plaintiff], when using the particular pedestrian crossing by walking normally, in its then condition, slipping on the painted surface and suffering personal injury": Garzo (at [119]). On appeal the appellant complained that his Honour's definition of the relevant risk was too narrow.

Basten JA (at [7]) was of the view that, given its context in s 5B, "the risk [of harm] must be that which materialised [when the appellant slipped and fell] in the case of the injured person seeking to claim in negligence". In his Honour's view, as "[t]he harm suffered by the appellant, if it arose from the condition of the crossing at all, arose from the condition of the crossing as at the date of her fall", "[t]o establish a breach of duty, she needed to establish that the crossing was unduly slippery on that date." Further (at [8]) she "needed to establish that the respondents knew, or ought to have known, that the crossing was in that condition on that date."

Meagher JA (at [22]) was of the view that for the purposes of s 5B, "it is necessary to formulate a plaintiff's claim in a way which takes account of the precautions which it is alleged should have been taken and identifies the risk or risks of harm which the plaintiff alleges eventuated and to which those precautions should have been directed." His Honour (at [24]) identified the relevant risk of harm as "taking into account the precaution which the appellant alleged should have been taken ... in relation to the repainting of the crossing, sufficiently described as being that of a person slipping on the surface of the crossing when wet and thereby suffering injury."

Tobias AJA (at [123]) was of the opinion that the risk of harm was sufficiently articulated "as that of a person slipping on the painted surface of the crossing and thereby suffering an injury".

As is apparent all formulations of the risk of harm in Garzo focused on the condition or particular nature of the surface (the painted strip of the pedestrian crossing) on which the appellant had slipped.

Causation

The effect of s 5D(1) is that "the 'but for' test [of causation] is now to be ... a necessary test of causation in all but the undefined group of exceptional cases contemplated by s 5D(2)": Adeels Palace (at [45], [55]); Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 (at [18]) per French CJ, Gummow, Crennan and Bell JJ. The s 5D(1)(a) element of factual causation requires proof that the defendant's negligence was a necessary condition of the occurrence of the particular harm, that is to say, a condition that must be present for the occurrence of the harm: Strong v Woolworths Ltd (at [20]) per French CJ, Gummow, Crennan and Bell JJ; (at [44]) per Heydon J.

Unlike the issues of duty of care and breach, "... [t]he inquiry into the causes of an accident is wholly retrospective [and] ... seeks to identify what happened and why": Vairy v Wyong Shire Council (at 124]) per Hayne J. The causation inquiry "asks whether 'but for' the breach the injury would have occurred": Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8 (at [28]) per Basten JA (Davies J agreeing). It focuses on the particular conduct or omission which is found to constitute the defendant's breach of duty: Kocis v SE Dickens Pty Ltd (at 419) per Phillips JA (Ormiston JA generally agreeing).

A plaintiff may discharge the onus of proof of causation imposed by s 5E by relying upon the inferences open on the facts of the case: Woolworths Ltd v Strong [2010] NSWCA 282 (at [60]) per Campbell JA (Handley AJA and Harrison J agreeing); Flounders v Millar [2007] NSWCA 238 (at [30] - [35] per Ipp JA (Handley AJA agreeing).

However, in order for the issue of causation to be established by inference, it is necessary that "according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence": Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470 (at 480 - 481) per Williams, Webb and Taylor JJ. A court is entitled to draw inferences from "slim circumstantial facts that exist so long as that goes beyond speculation": Progressive Recycling Pty Ltd v Eversham [2003] NSWCA 268; (2003) 40 MVR 141 (at [7]) per Young CJ in Eq (with whom Ipp JA and Davies AJA agreed). The inference must be available and be considered to be more probable than other possibilities: Jackson v Lithgow City Council [2008] NSWCA 312 (at [12]) per Allsop P (Basten JA and Grove J agreeing).

The effect of s 5D(1) and s 5E is that the respondent had to prove that if there had been a proper system of water blasting the ramp, that system would have removed whatever caused the slipperiness in the area where he fell prior to his accident: Dulhunty v J B Young Ltd (1975) 50 ALJR 150 (at [151]) per Jacobs J; Strong v Woolworths Ltd (at [4]); Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 (at [37]) per Basten JA (Handley JA and Hunt AJA agreeing).

Conclusion

The primary judge's reasons did not address the issues with the precision the authorities require, but, rather, at a high level of generality. Further, her Honour appears to have approached their determination retrospectively (and, to some extent circularly), reasoning from the fact that the respondent slipped, to there being a risk of slipperiness of no identified nature, to the appellant having breached its duty because it had not removed the risk.

In the first instance the issue of liability can be resolved at a purely factual level. In my view the respondent did not establish as a matter of probability that he fell because the ramp was slippery, let alone that it was unreasonably so. His evidence that there "ha[d] to be dried algae" where he slipped because, in effect, that was the only reason he could have fallen was plainly conjectural. It was clearly inconsistent with his evidence that he bent down in an area of the ramp which to his observation was dry, perhaps dusty, looked like it was concrete and where there was no evidence of algae or mud. His assumption that dried algae was present was retrospective reasoning based on his surmise that its presence was the only way that he could have slipped. It was at odds with Dr Adams' evidence who said the respondent identified no contaminants where he fell and, on the basis of what the respondent told him as to the facts (which was consistent with the respondent's evidence other than his statement about dried algae) that the slip resistance of the ramp made no relevant causal contribution to his fall.

Mr Ahama's evidence could not, in my view, overwhelm Dr Adams' evidence. It could be given little, if any weight, certainly insofar as dry surfaces were concerned: see Youkhana v Di Veroli [2010] NSWCA 322 (at [37] - [38]) per Hodgson JA (Tobias and Campbell JJA agreeing). It was pitched at a high level of generality. Mr Ahama did not witness the respondent's fall. His lay opinion was not related with any specificity to the respondent's description of the condition of the ramp where he fell. His evidence did not descend to any detail as to why the ramp might be slippery or dangerous, particularly when dry. As I later explain, his evidence that the dry smooth concrete is slippery would not, in my view, accord with common experience and was contradicted by Dr Adams' evidence (see [16] above). Further, it was apparent that his evidence concerning the necessity to water blast the ramp periodically was directed to the removal of "slime" where the ramp was "always wet". That did not describe the dry area where the respondent fell. His evidence was also internally inconsistent because he said, and the primary judge accepted, that the ramp only required water blasting periodically (as might be expected in the ordinary course of events).

In contrast, Dr Adams received an account of the circumstances of the accident which accorded with the respondent's evidence. He inspected the ramp. He formed the opinion that the risk of harm it posed was its slope and not "inadequate slip resistance".

The respondent's case that he slipped on a slippery surface on the ramp should have failed in limine.

However, even if the respondent's evidence may have supported a conclusion that he fell because he slipped on dry algae, that would not, without more, sustain the primary judge's conclusion that the appellant had breached its duty of care.

If the primary judge accepted the respondent's evidence in this respect, she then had to identify the risk of harm for the purposes of s 5B(1). That required her Honour, as I have said, to identify accurately the risk of harm of which the appellant knew, or ought to have known.

The primary judge identified the risk of harm merely as a slippery ramp. A formulation pitched at that level of generality failed, in my view, accurately to identify the risk of harm the respondent faced. It also distracted the primary judge from determining the significance of the risk and what a reasonable response to that risk was.

As is apparent from the previous discussion, in a case such as the present, identifying the risk of harm for s 5B purposes required focus on the nature of the surface on which the respondent slipped. Having regard to the respondent's evidence as to his observations of the surface of the ramp (and giving him the benefit of his surmise concerning the presence of dry algae), the risk of harm was, in my view, that of slipping and falling on dry algae on the ramp.

Had her Honour identified the risk of harm in the terms I propose, she would have realised that, save as to the respondent's allegation of his fall on dry algae, there was no evidence that there was a risk of slipping on the dry part of the ramp, even if dry algae was present.

In some cases, it can be inferred as a matter of common sense and common knowledge, that particular surfaces will ordinarily be slippery, particularly when wet: see Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239 (at [6]) per Macfarlan JA (Beazley JA agreeing); see also Neill v NSW Fresh Food & Ice Pty Ltd [1963] HCA 4; (1963) 108 CLR 362 (at 368) per Taylor and Owen JJ. The same cannot be said about dry surfaces.

This was not a case where common experience enabled the primary judge to infer that the respondent's injury arose from the appellant's negligence: cf Jones v Dunkel (at 305) per Dixon CJ. It was not a shopping centre case where the presence of a greasy substance on a floor in an area adjacent to a food court but in respect of which there was no system for periodic inspection and cleaning, there being thereby admitted breach, enabled a conclusion on the probabilities as to when the greasy substance was dropped on the floor: cf Strong v Woolworths Ltd.

Mr Ahama's lay opinions that the area where the respondent fell was "a pretty dangerous spot" even if dry and that "smooth concrete ... whether it's wet or dry, is slippery" do not accord with common knowledge or experience, let alone common sense. More importantly, they were inconsistent with Dr Adams' opinion that the slip resistance of the ramp was not a factor in the respondent's fall (see [14] and [16] above).

However, even if Mr Ahama's lay opinions were accepted, they could not resolve the issue of whether the dry ramp posed a risk which needed to be addressed by precautions. The risk posed by the dry ramp was, in my view, a matter which required evidence as to the nature of the risk posed and the steps the appellant ought reasonably have taken to obviate it: see Arabi v Glad Cleaning Service Pty Ltd [2010] NSWCA 208 (at [40] - [41]) per Sackville AJA (Hodgson JA and Harrison J agreeing).

Further, the evidence did not, in my view, establish that the appellant was aware that there was a foreseeable risk of persons slipping on the dry ramp. There was no evidence that anyone had slipped on the ramp's dry surface prior to the respondent's fall. The evidence relating to Mr Wallace's falls did not afford any evidence as to why he slipped.

There was no explanation as to the nature of dry algae, why, if it was present, it was imperceptible to view and why apparently imperceptible dry algae might be slippery. It was by no means apparent on the evidence, in my view, that the appellant knew, or ought to have known, that a dry surface of the ramp which to all intents and purposes appeared to be merely concrete posed a foreseeable risk of harm.

The primary judge accepted (at [24]) that the condition of the ramp becoming slippery was one that developed over time. As I have said, this was not a case where the presence of a slippery surface bespoke negligence. Her Honour did not, however, address the question whether the respondent had established that it was unreasonable for the appellant not to have cleaned the ramp prior to the time he slipped. There was no evidence as to the time period which might be involved in the dry area of the ramp developing a degree of slipperiness which required cleaning. The mere fact that he slipped did not, as her Honour appears to have assumed, answer that question: see generally the discussion in the plurality's reasons in Strong v Woolworths Ltd.

The primary judge found (at [28]) that there was no evidence the appellant had a "pro-active maintenance system to keep the ramp clean." It is not entirely clear what her Honour meant by that statement. If she meant one which required regular ramp cleaning, whatever its condition, that was not, in my view, a precaution required by s 5B(1)(c). Slipperiness on a ramp adjacent to a river would not be an unexpected occurrence but it could hardly be suggested (and it was not) that the appellant was required to water blast the ramp every day. The finding also failed to take into account the system the appellant had in place concerning inspection as apparent from clause 1(g) of the Specification requiring O'Connor to inspect the ramps monthly and notify the appellant of any defects. There was no evidence that that was not a reasonable precaution in the circumstances.

Nor did the primary judge explicitly address the significance of the risk in terms of the evidence. There was no evidence members of the public used the ramp. The primary judge appears to have accepted that it was not part of the respondent's duties to check for clearances as she concluded the appellant could not reasonably have foreseen that he would do so. She appears only to have concluded that the ramp would be accessed by bored employees such as Mr Ahama idly checking out debris which had drifted onto the ramp. If one attributes Mr Ahama's opinion about the ramp to others in his position the primary judge would, in my view, have been entitled to form the view that the risk of harm to such people taking reasonable care for their own safety was insignificant.

Finally, in my view, the appellant's submission that the respondent failed to establish that any breach of duty on its part caused his injury should be accepted. The respondent was required to prove on the balance of probabilities that the appellant's negligence was a necessary condition of his harm. The appellant's alleged negligence was a failure to have a regular system of water blasting the ramp to prevent it being slippery. Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred: Strong v Woolworths Ltd (at [32]). The mere presence (had it been established) of a dry slippery surface on the ramp was not sufficient to establish causation: Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 (at 371) per Dixon CJ. For the reasons I have given in respect of the lack of evidence concerning the ramp developing a degree of slipperiness requiring cleaning, the evidence did not support the conclusion that, had the appellant had a system of regularly water blasting the ramp it would not have been slippery on the day he fell: see Garzo (at [170]). This was not a case where the probabilities assist in reaching that conclusion: Strong v Woolworths Ltd (at [34]).

BARRETT JA: For the reasons stated by McColl JA and Ward JA, this appeal should be allowed, there should be verdict and judgment for the defendant (with costs) and the respondent should pay the appellant's costs of the appeal.

WARD JA: This is an appeal by Shoalhaven City Council (the owner and occupier of a concrete ferry ramp near Nowra) from the finding by Balla DCJ in the District Court that it is liable in negligence to the respondent (Mr Pender) by having failed to have in place a pro-active maintenance system to clean the ramp.

Mr Pender, a ferry master employed by the company contracted by the Council to operate the Comerong Island ferry service, slipped on the ramp in April 2007 when he got off the ferry onto the mainland ramp, while docking the ferry, in order to check the ferry clearances, and injured himself. He was successful in his claim that his fall was caused by the Council's failure to maintain the ramp, in the sense of keeping it clean of dry algae. He was unsuccessful in the alternative way that the claim was brought, namely that the Council had failed to modify the ferry so that it would not have been necessary for him to have had access to the ramp as he had done when the accident occurred. There is no appeal from the findings in relation to that alternative limb of Mr Pender's claim.

The Council contends that the primary judge erred in finding that there was liability on its part but also contends that, if it is liable in negligence, her Honour erred in the calculation of damages.

The nub of the Council's appeal is the alleged error in her Honour's finding that, on the balance of probabilities, Mr Pender fell on the ramp because it was slippery. The Council also complains of a failure to give reasons in relation to the identification of the pro-active system that it is said should have been taken to address the risk of harm and as to the causal connection between the failure to have such a system in place and the accident suffered by Mr Pender.

Background

The accident occurred at about 7.30am on 9 April 2007, only a few days after Mr Pender had commenced work as a ferry master on the Comerong Island ferry service. Mr Pender had worked as a ferry master on other ferry services for some years before that. The Comerong Island ferry service is a cable-operated vehicular ferry service between Comerong Island and the mainland near Nowra. The ramp where the accident occurred was on the mainland side. According to Dr Adams, the expert ergonomist called to give evidence by Mr Pender, the ramp had a gradient of 12 degrees. It is not disputed that part of the ramp is covered by water at high tide and that algae or slime has a tendency to grow on that part of the ramp that is covered from time to time by tidal water.

As noted, the Council owns the ferry and is the occupier of the concrete ramp. It had entered into a contract with Mr Pender's employer (O'Connor Ferry Services) for the management and operation by that company of the Comerong Island ferry service. There are roughly five return crossings per day.

On the day of the accident, Mr Pender had docked the ferry at the mainland ramp. He was wearing almost brand new shoes with soles in good condition. His evidence was that he walked around the front of the ferry onto the ramp and walked down the ramp to check that there was sufficient clearance under the ferry at low tide. He squatted to do so, then stood up straight and twisted his feet. He said that that his right foot "slipped straight out from underneath [him]. It took out [his] left leg and spun [him] at the hip, and [he] landed on top of the ... right shoulder" (Black 25.47-26.15).

Mr Pender's pleading alleged that the ramp was slippery and dangerous due to a build-up of algae, mud and other debris; that accumulation was said to be wet and slippery. There was no reference in the pleading to the presence of dry algae as a cause of the ramp being slippery or of the fall.

Mr Sexton SC, appearing for the Council, notes that Mr Pender made no reference, in giving the above description of the accident, to the cleanliness of the ramp. Asked in chief to describe the area of the ramp where he fell, Mr Pender said that there was no algae or slime (Black 18.35) and that it was a bit dusty, maybe dirty, but it was dry (Black 18.1).

In cross-examination, Mr Pender at first said, again, that there was no algae where he fell, though there was algae further down the ramp, (Black 64.8). He later contradicted this by saying that there was algae where he fell but that it was dry algae, whereas further down the ramp towards the water it was still wet (Black 64.31).

Mr Pender said that as he walked down the ramp it was easy to see the algae on the ramp (Black 65.10) and that he was standing in dry algae when he fell (Black 65.20). Still later, Mr Pender said that he did not see the dry algae where he had slipped but that it must have been there because that was the only way he could have fallen (Black 66.4). He then said that he did not walk over anything; that he had walked toward the algae but stopped well before the build up of crustacean dirt; and that when he turned around his foot slipped (Black 67.1).

There was evidence of other accidents on the ramp. Another employee of the ferry operator (Mr Wallace) was recorded on the ferry operator's Register of Injuries as having slipped twice on the ramp, on 11 and 14 January 2007 respectively (Blue 89M-R). It is not clear whether this was at the same location as Mr Pender's fall; nor is it clear whether Mr Wallace had slipped on dry or wet algae, or indeed anything else, on the ramp.

There was also in evidence a defect report that had been completed on 19 January 2007, which included the complaint that the concrete ramp was badly broken with exposed cut off bolts on the house side (Blue 170). Her Honour noted that this defect "was not actioned" ([21]). Nevertheless, it is accepted that the surface of the concrete where Mr Pender fell was not in a broken or cracked condition. The relevance of this defect report must thus be limited to what the Council had done (or not done) in response to other unrelated complaints.

On 9 April 2007, the day of the accident, a ferry defect report was completed by Mr Pender (presumably shortly after the accident) noting that "both ramps/approaches need cleaning" (Blue 96-L). The entry in the register of injuries completed on the day of the accident as to the cause of injury was "slipped and fell hard onto concrete" (Blue 97Q).

Another employee of the ferry operator (Mr Tutai Aber Ahama), who had worked on the Comerong ferry route for approximately nine years, was called to give evidence by the Council. Mr Aber Ahama said that he walked down the ramp from time to time and that no one had ever told him not to use the ramp (Black 163.50-164.01). Mr Aber Ahama's (lay) opinion was that the ramp was dangerous regardless of whether it was wet or dry (Black 165.39) (my emphasis) and that it was slippery (Black 165.46; Black 166.10).

Mr Aber Ahama later said that he had noticed that the ramp became "dirty and/or slippery" every couple of months (Black 171.37); that he had made complaints in the form of defect notices about this (Black 169.35-47, Black 170.11); and that those defect notices did not always result in the ramp being cleaned (Black 170.35-46, Black 171.48-172.11, Black 172.13-24). He could not remember the last time the ramp had been cleaned (Black 167.23) but had seen cleaning done occasionally over the 9 years he worked on the ferry crossing (Black 171.21).

After a short period off work following his accident, Mr Pender returned to light duties. His employment was terminated on 19 June 2007. Mr Pender's evidence was that after the accident he was not able to carry out the same duties as he had done before the accident (such as refilling the fuel tank - Black 28.50, and opening and closing the gates and moving the chain - Black 29.4). He did not work from June 2007, when his employment was terminated by the ferry operator, until the end of that year.

Mr Pender had surgery to his right clavicle on 13 September 2007. A second orthopaedic surgeon, to whom Mr Pender was referred after the surgery (Dr Stening), found evidence of a persistent problem in the shoulder joint and diagnosed a degree of degenerative change secondary to the original injury and persistent subluxation.

After his surgery, Mr Pender had some employment: first, as a courier and then for a pizza company. He said he ceased work as a courier because he found that work too heavy; he also found some of the work for the pizza company too heavy and he left that employment when his hours were reduced. In October 2009, Mr Pender commenced 'light' work with a kebab company, working two 9-hour shifts a week. He was in that employment at the time of the hearing. He claimed non-economic loss, past and future economic loss, past and future out-of-pocket expenses, and past and future domestic assistance.

Expert evidence

Expert evidence was called by Mr Pender from an ergonomist, Dr Adams, as to the circumstances of the fall. Dr Adams identified the steepness of the slope as the main factor contributing to the fall and did not suggest that the slipperiness or slip resistance of the ramp itself, whether or not covered with dry algae, was a necessary condition of the fall.

Dr Adams concluded (as explained at Black 152.34 -153.5) that the combination of movements by Mr Pender, in twisting and standing whilst concentrating on a task ahead, had led Mr Pender to overlook the slope on which he was standing and that, as he stood up, Mr Pender had failed to compensate for that slope with his feet.

Dr Adams noted that the relevant Australian Design Standards recommend cleating or gridding of a work surface if it exceeded 7 degrees (as this ramp did) and stated "with confidence" that changing posture and position quickly when a person was starting from an awkward posture and standing on a slope with a gradient steeper than that "has a distinct probability of resulting in that person suffering a slip or an unbalanced misstep" (Blue 425.W - 426.C). In essence, Dr Adams' evidence supported a conclusion that the accident was caused by the mechanics involved in the way Mr Pender had stood up (after crouching down to check the ferry clearances) and had nothing to do with the slipperiness or otherwise of the ramp.

No slip tests were conducted on the ramp. Dr Adams' view (at Blue 425) was that:

It is of little value to try and measure the coefficient of friction available on the surface when Mr Pender slipped. Not only is the absence of any effective cleating or gridding a more important factor on so steep a slope then the friction or properties of the material but other factors also come into play on a sloping surface that have more relevance than the frictional properties of the surface would have if the surface had been perfectly flat.

In the witness box, Dr Adams said that Mr Pender's slip was not of the nature that required any measurement of the slip resistance of the ramp (Black 148.48; Black 149.1). He considered the incident to be one that was a function of the other dynamics discussed in his report "and not a function of a [slip] that was a result of an inadequate slip resistance on the surface per se".

At Black 149.38-42, Dr Adams accepted that, in this particular situation and in relation to the dynamics of this particular fall, it did not matter what the slip resistance of the surface was. He then qualified that by saying "[w]ell, I wouldn't say it wouldn't have made it [any difference] if it had been inherently slippery. That would have increased the likelihood of that kind of fall. But it didn't matter to my evaluation of the dynamics of the fall". (Black 149.47). At Black 151.27, Dr Adams said the problem was not in the ramp itself; rather, it was in the fact that Mr Pender was on a steep slope and performing a task requiring a couple of movements.

Dr Adams confirmed that Mr Pender's instructions to him had been that his feet had been on dry concrete when he slipped (Black 148.14) and said that Mr Pender had been quite clear that "[t]here was no history of him being on contaminants" (Black 148.16). At Black 153.49, Dr Adams said that Mr Pender recalled it being not slippery.

At Black 154.3, Dr Adams suggested that "had he [Mr Pender] been on a more highly slip resistant surface, one that gave firmer grip beneath his feet, that slip may not have progressed as it did to an outright fall" but could only say that it would have improved the likelihood that the slip would proceed to a fall. He agreed that it would be speculative to suggest by how much that likelihood would be increased.

It is submitted by Mr Sexton that a combination of the evidence of Mr Pender and Dr Adams should have led to the conclusion that it was the mechanics of Mr Pender's actual movement on the ramp (and not the state of the ramp itself or anything the Council had or had not done) that had caused the fall.

Ms Norton SC, appearing for Mr Pender, accepted that Dr Adams had not regarded slip tests as relevant to his analysis. Ms Norton described that analysis as highlighting the problem, from an ergonomic point of view, caused by the steepness of the ramp. She placed weight on the fact that Dr Adams had accepted that slipperiness of the ramp made it more dangerous (Blue 425F-426C). During the course of the hearing below, reliance by Mr Pender on the case theory advanced by Dr Adams was abandoned.

Findings of the primary judge

The primary judge was satisfied, from the description given by Mr Pender as to how he fell and from the evidence of Mr Aber Ahama, that, on the balance of probabilities, Mr Pender fell on the ramp "because it was slippery" ([18]).

Her Honour had noted (at [15]) Mr Pender's evidence that the concrete in the area where he fell was dry and smooth and (at [16]) Dr Adams' explanation for the fall as being that Mr Pender had failed to compensate for the steepness of the slope when he moved from the crouched posture in order to stand up straight (this failure being due, according to Dr Adams, to "the confounding effects of ... misperceptions" induced the "disorienting effect of the combination of visual, vestibular and kinaesthetic determinants"). Nevertheless, her Honour concluded that Dr Adams' evidence was "overwhelmed" ([17]) by the evidence of Mr Aber Ahama (to which I have referred above).

Her Honour then noted that the ferry operator's contract with the Council obliged it to report to the Council any accident that had or might result in time lost, and inferred from this that the Council had received notice of the earlier injuries on the ramp ([22]).

Her Honour was satisfied that the Council was notified every couple of months that the ramp was dirty and slippery. Her Honour also noted (at [19]) the evidence that the Council did not always respond to fix defects the subject of such reports.

Having regard to Mr Aber Ahama's evidence, and to the defect reports and the ferry operator's Register of Injuries, her Honour was satisfied that the Council knew that the ramp regularly became slippery and needed cleaning; and that this was "a condition which develops over time" ([24]).

At [25], her Honour noted that it was unclear whether the Council had a system for the regular inspection of the ramp, or whether the Roads and Traffic Authority regularly inspected the ramp on its behalf (there being inspection reports from the RTA in evidence). Her Honour also noted a concession made on behalf of the Council that there were documents suggesting that, before Mr Pender's fall, the Council conducted three-monthly maintenance reviews (although the Council had only produced four documents in answer to a subpoena calling for maintenance reviews over the period from 1 January 2005 to 31 December 2008).

Her Honour found at [26] that "[t]he state of the ramp on the day of Mr Pender's fall evidences that the ramp was not being cleaned by the Council in a timely manner".

Her Honour found (at [28] that:

...the risk was foreseeable (that is, it is a risk of which the Council knew or ought to have known), the risk was not insignificant and that a reasonable person in the Council's position would have instituted a pro-active maintenance system to keep the ramp clean ...

and noted that there was no evidence that the Council had such a system. Her Honour was presumably there referring either to the risk that Mr Pender would slip if the ramp was not the subject of a proactive maintenance system or the risk that he would slip if the ramp was not kept clean.

At [29], her Honour noted that there was a simple and inexpensive way of fixing the problem; that the Council had from time to time in the past used a pressure cleaner to clean down the ramp; and that it was probable that a person would slip if the ramp was not kept clean.

Her Honour did not accept that the use of longer landing flaps attached to the ferry would have reduced any risk of injury in the circumstances of the fall ([30.2]; hence the dismissal of the alternative basis on which the claim was put.

Her Honour rejected the claim of contributory negligence on the part of Mr Pender on the basis that the Council had not shown that Mr Pender was or ought to have been aware that the ramp in that area was slippery ([33]). In so doing, her Honour rejected the Council's submission that, if the ramp was slippery and Mr Aber Ahama was aware that it was slippery, then on the balance of probabilities Mr Pender should also have been aware that it was slippery. This was on the basis that Mr Pender was a ferry operator of around the same level of experience as Mr Aber Ahama. Her Honour noted at [32] that Mr Pender had only recently started work at the Comerong Island ferry location and said that it was clear from his evidence, and the contemporaneous complaints that he made, that Mr Pender was uncertain as to why he had slipped.

As to the operation of s 151Z of the Workers Compensation Act, her Honour noted that it was common ground that a deduction should be made from any award of damages to reflect the liability of Mr Pender's employer ([34]). Her Honour accepted that the ferry operator company became aware, through its employees, that the ramp regularly became slippery over time ([35]). Her Honour also noted that it was common ground that it was not the duty of the employer under its contract with the Council to maintain the ramp ([36]).

At [37], her Honour made reference to the non-delegable duty of care owed to an employee by its employer. Her Honour was satisfied that, had the ferry operator been a party to the proceedings, the evidence would establish that it knew the ramp regularly became slippery and that the Council did not always respond to defect notices in a timely manner. Her Honour noted that the ferry operator could have taken steps in response to that situation, such as warning and directing its employees not to walk down the ramp. Her Honour assessed the liability of the employer at 25% ([38]).

As to the damages claimed by Mr Pender, her Honour accepted that he had sustained a significant injury to his right shoulder which required operative treatment and had an ongoing disability in that shoulder ([54]). Her Honour was not satisfied that the disability was as severe as Mr Pender had described it ([54]), preferring the opinions of the treating specialists (Dr Walsh and Dr Stening) to those of the doctors qualified as experts ([55]). Her Honour referred in this regard to the unreliability of Mr Pender's oral evidence. Her Honour did not accept the diagnosis by Dr Clark of a significant psychiatric condition, noting that this depended on Mr Pender having the level of symptoms recorded by Dr Clark and not being persuaded that this was a true reflection of Mr Pender's actual symptoms and disabilities ([56]). Non-economic loss was assessed at 30%. This was not the subject of challenge. Past out of pocket expenses were agreed. Her Honour allowed $5,000 for future out of pocket expenses. This allowance was also not the subject of challenge.

As to past economic loss, the primary judge was not satisfied that Mr Pender was totally disabled from work in the periods when he had not worked ([62]) and was not persuaded that he had fully exercised his earning capacity during the periods that he had worked, noting that Mr Pender had refused to work extra hours because he believed he would be "lowering" himself ([63]).

Her Honour noted at [64], but did not resolve, an issue as to Mr Pender's actual earnings at the time of the accident. He was earning $680 net per week according to the Council; $800 per week according to Mr Pender. The resolution of this issue was apparently complicated by Mr Pender's resignation in March 2007 and re-employment in April 2007. Her Honour accepted that there were some limitations on Mr Pender's earning capacity flowing from his disabilities and allowed half of the amount claimed for past economic loss inclusive of superannuation ($77,000). There is no challenge to this finding.

As to future economic loss, her Honour was satisfied that Mr Pender would have continued to work as a ferry master had the accident not occurred ([68]); did not regard his current earnings as a reliable measure of his residual earning capacity ([70]); and found that there was some impairment in his earning capacity due to the limitation imposed by pain and discomfort if he needed regularly to use his right arm ([71]). Her Honour accepted that it was likely that there were jobs for which Mr Pender was fit, that would pay around the same or a little less than that of a ferry master, but that it was probable that there would be periods during which Mr Pender would have difficulty finding suitable work because of the restrictions on his earning capacity ([74]). The Council did not cavil with the last finding.

Mr Pender had claimed the sum of $436,407 for future economic loss, calculated on the basis of an impairment in earning capacity of $600 net per week over a 33 year period with a 15% deduction for vicissitudes. Her Honour did not consider it possible to assess Mr Pender's future economic loss on any mathematical basis. Her Honour allowed $200,000 inclusive of superannuation ([76]).

Her Honour found Mr Pender's claim for domestic assistance very difficult to assess. Her Honour noted that Mr Pender might have difficulty with very heavy tasks and might have restrictions in working above shoulder height for lengthy periods with his right arm ([78]) but did not accept that he had needed assistance for many of the tasks that he said he could no longer perform, having regard to the evidence of Mr Pender's flatmate as to his laziness and disinclination to assist in household chores.

In the present case, Mr Aber Ahama's evidence as to the slipperiness of the ramp was in similarly general terms. Weighed against the expert evidence, the suggestion that Mr Aber Ahama's evidence overwhelmed that of Dr Adams cannot in my view be sustained.

Grounds 7-9 are in my view made out.

As to Ground 12, the difficulty is that there is no finding as to what would have been a timely manner for the cleaning of the ramp, in the sense that there is no evidence as to how long it took for dry algae (assuming that is what Mr Pender slipped on) to build up so as to become slippery and pose a reasonably foreseeable risk of harm. Only if that were known could one determine how regularly the ramp needed to be cleaned. Moreover, the finding assumes that the state of the ramp was in fact slippery, due to algae, at the time of the fall. There was no evidence to support the conclusion that it was.

Such a finding suffers from the difficulties highlighted above as to what was the state of the ramp. Ground 12 is therefore also made out.

Grounds 10-11 - breach of duty of care

It was not disputed that the Council, as occupier of the land on which Mr Pender slipped, owed him a duty to take reasonable care to prevent injury to him on the assumption he was using reasonable care for his own safety. Mr Sexton notes that, in this context, in Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (at 488) it was said that what is reasonable turns on the circumstances of entry upon the land. Here, the circumstance of entry onto the land was that Mr Pender was operating the ferry and going onto the ramp in the course of his employment.

What a reasonable person in the Council's position would have done in response to the risk that someone in Mr Pender's position might slip and injure himself or herself on the ramp must be considered prospectively (Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [31]). The manner in which the injury was in fact sustained is not relevant to that question (Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 at [96] - [97]). Furthermore, the fact that there were steps that could have taken to avert the risk that actually materialised does not establish breach of a duty of care (Thornton v Sweeney [2011] NSWCA 244; (2011) 59 MVR155 at [131]).

Mr Sexton accepts that the evidence was that generally when the ramp was found to be dirty "and/or" slippery a works order would be generated by Mr Pender's employer and that the Council would usually, though not always, then clean the ramp with a high-pressure hose. That said, the defects reports in evidence were not restricted to cleaning requests and the defects report on the day of the accident referred to "both" ramps, not simply the mainland ramp. As Mr Sexton submits, there was no evidence as to what kind of system was required in order to meet the risk of harm, in the circumstances where this was a tidal ramp, not open to the public and used only by employees, that was exposed to the tides. He contends, and I agree, that there needed to be evidence as to the regularity of cleaning necessary to be carried out in order for the ramp not to be slippery before any finding of breach of the duty of care could be made.

In other words there needed to be evidence as to how regularly a "pro-active" maintenance system of the kind for which Mr Pender contended should have operated. It is submitted by Mr Sexton that no breach of duty was established in the absence of evidence to establish with some degree of particularity that the Council's practice in relation to cleaning of the ramp (assuming that be on a "needs" basis) departed from standard practice, and as to what reasonable alternatives, if any, could have been put in place to eliminate or minimise the risk (referring to Neill v NSW Fresh Food and Ice Pty Ltd [1963] HCA 4; (1962) 108 CLR 363). I agree.

Ms Norton points to the evidence that, from time to time, the Council cleaned the ramp and that there were (or was an expectation in the maintenance reports that there would be) three-monthly maintenance reviews. It was submitted that this evidence showed the requirements of a reasonable cleaning and maintenance system, i.e., on a three-monthly basis. Ms Norton referred to Strong v Woolworths Ltd at [14] in this regard.

As already noted, however, there was no evidence as to how it would ordinarily take for algae to regenerate after cleaning of the ramp nor as to how quickly it would dry between the high and low watermark. While there was evidence of the existence of a system for a maintenance review of the ferry and wharves, it is by no means clear that this extended to observation as to the cleanliness of the ramps. There was certainly no evidence as to what a standard cleaning system would be for a ramp in this tidal location.

There were in evidence two Roads and Traffic Authority maintenance reports as well as the monthly maintenance checklist that formed part of the Council's contract with the ferry operator company. The RTA reports refer mainly to matters relating to the vessel. So, for example, the report of 22 September 2005 report dealt with inspection of a particular vessel (the Cormorant) as well as "associated shore equipment". Associated shore equipment included the approach ramps, of which it was said "[t]he approach ramp on the mainland side is in poor condition at the low water mark. As mentioned in the previous report". It is conceded that this entry was unlikely to refer to cleaning of the ramp. That report noted that the vessel's next quarterly inspection was to be on 15 December 2005. It is clear from the report that the primary focus was on the vessel and that the repair to the approach ramp was as to the damage that could occur to the hull if the vessel was brought into the approach too far. The 15 December 2005 inspection of the Cormorant made a similar observation as to the approach ramp on the mainland side and noted the next quarterly inspection at 16 March 2006.

As to the ferry defect reports/work requests directed to the Council, there was a facsimile transmission of 15 April 2005 in which the Council was advised that "[c]oncrete ramp western end of ferry, very slippery, need water blasting"; a report dated 27 February 2006 from Mr Wallace (the ferry master who later slipped on the ramp twice in January 2007), stating, amongst other matters, that "Concrete ramps need high power blasting (very slippery)"; and a report of 19 January 2007 noting "[c]oncrete ramp badly broken, exposed cut off bolts (house side). On one of the copies of the February 2006 report there is the annotation "Done", against the reference to cleaning, though it is not clear when that annotation was made) (Blue 16). .

On 9 April 2007, the day of the accident, Mr Pender completed a report stating "[b]oth ramps/Approches [sic] need cleaning", against which there is no annotation recording that this was done) (Blue 18). On another copy of that same report (Blue 96), there was an annotation in different handwriting recording in parentheses that "driver slipped + injured - 9-4-07". After the accident, on 2 May 2007, Mr Wallace completed a report stating "Large cracks on concrete ramp. Stepped in one while dark this morning. Injured knee + back", against which there is the annotation "Done" and the comment "[I]ts been done" (Blue 19).

The "Specification to Contract" for the Comerong Island Ferry management and operation, referred to in the Deed dated 11 January 2007 between the Council and Mr Pender's employer, included provision (at 1(c)) for the Council to conduct maintenance reviews of the ferry at monthly intervals "on a designated service day". That provision referred to the Council effecting major replacements "being items of repairs" exceeding a stated amount without cost to the Comerong Island ferry operator. The pro forma Contractor maintenance schedule included a "monthly maintenance checklist". It seems that this form may have been intended to be completed by the contractor, assuming this form is to be used in the same fashion as the daily form, although clause 1(c) might suggest otherwise. The schedule included a section relating to Associated Shore Equipment which included a check in relation to: gates, hinges and locking devices; ferry approach ramps; guide posts and chains; flood winch, ropes and cables; and other specified items. It is not clear that this envisaged a program for inspection of the ramps to ensure their cleanliness. As Mr Sexton notes, there was nothing to show what was considered to be a reasonable response to the risk that there might be algae or slime on the surface of the ramp.

Entries from the ferry owner's Register of Injuries recorded that as at 11 January and 14 January 2007 Mr Wallace was injured, the cause of the injury being described as "Bending to hook chain + slipped"; and that on 9 April 2007, Mr Pender "slipped and fell hard onto concrete".

Ms Norton submits that it is obvious that, had the ramp been cleaned more often, then on the balance of probabilities Mr Pender would not have slipped. However, as made clear in Strong v Woolworths Ltd, at [32], in such a case what must be considered is the likelihood that the injury would have been avoided had a particular system been in place.

The finding that the problem could have been fixed with a water blaster does not address whether this particular accident would, on the probabilities, have been avoided. There was no evidence as to the system that should have been in place and hence no way of determining whether, had the system been complied with, the ramp would have been clean as at the time of the accident. By way of contrast, in Strong v Woolworths Ltd there was evidence of a system requiring cleaning of the area within a specific timeframe.

Mr Sexton submits that without evidence, and findings, as to the regularity of cleaning required to prevent algae growing on the ramp, and hence to address the risk of someone slipping on the "dry algae", it could not be established that Mr Pender's injury was as a direct result of breach of a duty of care by the Council. I agree.

Ms Norton submits that there was in effect a finding in this regard, insofar as she submitted that her Honour had accepted that there was a framework for a system of inspection every three months. However, there was not an express finding to that effect. The RTA records do not establish that there was a three monthly system of inspection of cleanliness of the ramp; rather, they are focussed, perhaps not surprisingly, on the vessels and on the physical attributes of the ramps.

Her Honour did not make clear what she regarded as a "timely manner" when finding at [26] that the ramp was not being cleaned by the Council in a "timely manner". Mr Pender's evidence as to the state of the ramp on the day was contradictory and Mr Aber Ahama gave no evidence as to the state of the ramp on the day of the accident itself, just general observations that the ramp was slippery. The defect notice issued in January 2007 did not refer to the location on the ramp at which Mr Pender fell. As Mr Sexton points out, Mr Aber Ahama's evidence was that the ramp became "dirty and/or slippery" every couple of months. Any notification to the Council may have been as to one or other or both of those states.

In Garzo, at [170], Tobias AJA said:

... it was necessary to consider first, what the position would have been had the respondents not been negligent in the relevant respect and, secondly, whether in that event the slip would have been prevented or not occurred. That was the position under the common law: Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at 248, 249, 256; March v Stramare [1991] HCA 12; (1991) 171 CLR 506 at 514; Amaca Pty Ltd v Booth [2011] HCA 53; 86 ALJR 172 at [47]; and remains the position under ss 5D and 5E of the CL Act: Harris v Woolworths Ltd [2010] NSWCA 312 at [34].

Even if there had been a quarterly system in place for inspection of the cleanliness of the ramp, one would need to know how regularly dry algae growth occurred in order to assess whether on the day of the accident the ramp was likely to have been slippery due to such growth and hence whether but for the failure to have such a system in place the accident would not have occurred. If there was an inspection in January, for example, as Ms Norton suggested might have been the case following the accidents reported on the ramp at that time, it is still not known whether the ramp would have been likely to have been covered with dry algae (and slippery) at the time of the accident.

I do not consider that it has been established that failure to implement a system of periodic inspection and cleaning of the ramp (on, say, a three monthly basis) was a necessary condition of Mr Pender's fall. The highest the evidence goes, in my opinion, is that every couple of months or so an area on the ramp (probably between the low and high watermark) became dirty and/or slippery and that, from time to time, the ramp or part of the ramp would be cleaned by water blasting.

Ms Norton submits that the most rational inference is that Mr Pender slipped on something that was slippery and would not have been slippery if had been cleaned. Such a broad inference is not warranted in my opinion.

Grounds 11-12 have in my opinion been made good.

Ground 13 - contributory negligence

Complaint is made as to her Honour's finding that there was no contributory negligence in circumstances where the findings of negligence were based upon the evidence of Mr Aber Ahama that the ramp was slippery. It is submitted that her Honour erred in assuming that Mr Aber Ahama and Mr Pender did not have roughly the same level of experience and that this is an error that meets the House v R test ([1936] HCA 40; (1936) 55 CLR 499).

It is accepted by the Council that Mr Pender had only worked on this particular ramp for a matter of days. However, reliance is placed on the fact that Mr Pender had a similar level of experience as a ferry master to that of Mr Aber Ahama, having worked for the ferry operator, albeit using different wharves, since 2001 (Black 14.10). Mr Sexton submits that there was nothing about this particular concrete tidal ramp that would have made it different in any way to any of the other ramps that Mr Pender may have used in any other areas; and that there was no basis for finding that the level of knowledge of Mr Aber Ahama, in terms of the state of the ramp, would have been in any way different from that of Mr Pender.

Mr Sexton submits that if Mr Aber Ahama's level of knowledge was sufficient to found liability in the Council, then it should also have been enough to found significant contributory negligence in Mr Pender. The difficulty with this submission is that, without knowledge of the particular ramp/tidal conditions at the other places where Mr Pender had worked as a ferry master, it is not impossible to conclude that Mr Pender's level of knowledge was equivalent to that of Mr Aber Ahama.

Ms Norton submits that it is clear from Mr Pender's evidence that he was not aware until after he fell that the surface of the ramp was slippery and that, as Mr Pender's evidence was that he was moving carefully on the ramp, her Honour was correct in finding there had been no contributory negligence. There was no evidence that other ramps had or suffered a similar problem to this one, although one might expect all tidal ramps to be prone to slime/algae. It was noted by Ms Norton that it was not put to Mr Pender that he knew from previous experience that, even if dry, ramps would be slippery.

I am not persuaded that her Honour erred on the finding of no contributory negligence, when there was no evidence as to the similarities or dissimilarities between this ramp and others on which Mr Pender had worked. This ground of appeal is therefore not made out.

Ground 14 - s 151Z Workers Compensation Act

Mr Pender's employer, not the Council, operated the ferry service. Its employees were in a position to inspect the ramp several times a day. The public was not permitted to use the ramp and therefore the ferry company employees were the only persons who used the ramp. The ferry company employees were the persons involved in the submission of "defect" notices in relation to the state of the ramp (Black 171.25). In those circumstances, it was submitted for the Council that a 25% liability finding for the employer was manifestly unreasonable. Mr Sexton submits that the employer's negligence should have been assessed equally with that of the Council at 50% or slightly higher than that of the Council at 60% and that the difference between 25% and 50-60% bespeaks appellable error. (Reference was made to Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132 at [102-110] in this regard.)

Mr Sexton also referred to Leighton Contractors v Fox [2009] HCA 35; (2009) 240 CLR 1, where it was said that the fact that someone is contractually obliged to comply with occupational health and safety regulations does not necessarily inform the scope of the duty of care owed and does not impose on that person a duty akin to that of an employer.

Ms Norton submits that the allowance by her Honour was appropriate in circumstances where the ferry operator had regularly reported defects in the ramp and injuries occasioned by the ramp but the Council did not always take action to fix the defects. She submits that it was not the employer's right or duty to maintain the ramp; rather, that responsibility rested with the Council.

Having regard to the non-delegable nature of the employer's duty of care, and its awareness, through the various reports in evidence of the accidents on the ramp, I consider that the level of contribution by the employer should have been assessed at 50% and that her Honour erred in finding that the employer's contribution was as low as 25%. Were the primary judge's findings as to liability to remain, this ground of appeal would have been made good and a finding of 50% contributory negligence substituted in place of her Honour's finding.

Ground 15 - economic loss

The Council challenges only the findings as to future (not past) economic loss, noting that her Honour found that there were issues that impacted on the reliability of Mr Pender's evidence as to the impact of his injuries and that there was an unresolved dispute as to the level of earnings of Mr Pender at the time of the accident. It seems that the latter was complicated by Mr Pender having resigned in March after his accident and then having been re-employed in April. For this reason, the Council did not suggest that a buffer approach to the future economic loss claim was inappropriate; but it did maintain that her Honour's assessment of the buffer in this case was demonstrably excessive.

In Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343, Allsop P (as his Honour then was) noted, by reference to s 13 of the Civil Liability Act 2002 (NSW), the requirement for the court to be satisfied, before an award of damages for future economic loss can be made, that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. That must then be adjusted by reference to the percentage possibility that the events might have occurred but for the injury. Work history, available work and effects of the incapacity are relevant to be taken into account.

The Council's complaint is that her Honour did not make clear the basis on which the amount was awarded.

Mr Pender's claim was for future economic loss calculated at $600 per week on the basis of a 75% impairment of his working capacity. This was put on the basis that he had been earning around $800 net per week before the accident and that he had a residual earning capacity of about $200 net per week. If, as the Council contends, he had been earning around $600 net per week prior to the accident, then the claim for loss of earning capacity represented an even higher loss of earning capacity, in the order of 85-90%.)

Her Honour accepted that Mr Pender was not totally disabled in the period when he was not working and that he was not exercising full earning capacity in the period when he was working. On that basis, Mr Sexton submits that the residual earning capacity of Mr Pender was higher than that on which the future economic loss claim was predicated, since at the time of the hearing Mr Pender was working part-time as a delivery driver for $300 per week.

Mr Sexton also noted that there was evidence from a vocational expert who had identified a range of jobs suitable to Mr Pender at a wage of between $600 to $800 gross per week.

It was accepted that, allowing for a 15% discount for vicissitudes, her Honour's assessment of future economic loss at $200,000 amounted, on the 5% tables, to an award of around $257 per week net from the date of the trial until his retirement. It is submitted by Mr Sexton that such an assessment is not consistent with her Honour's findings that Mr Pender was not fully exercising his earning capacity and, in effect, that his then current earnings of $300 net per week were not a reliable measure of his capacity. On that basis it was submitted that the award was excessive and that an assessment in the order of $70,000-$100,000 would have allowed in excess of two years' loss of income for periods where Mr Pender may have found difficulty obtaining work.

Ms Norton emphasised that Mr Pender's work history showed that he was only likely to obtain employment that involved physical labour and that in those circumstances the disability in his arm or shoulder was likely to lead to a significant reduction in his earning capacity. Ms Norton noted that Mr Pender would be likely to be competing against able-bodied persons when applying for such employment. Ms Norton submitted that the amount allowed by way of buffer for future economic loss represented only around 25% of the then average male weekly earnings and was not inconsistent with the primary judge's other findings or the medical evidence as to the likelihood of persisting shoulder problems.

If, as the Council accepts is appropriate, the matter is to be dealt with by way of a buffer, the question is whether a buffer in the amount ordered is manifestly excessive. Her Honour accepted that Mr Pender had sustained a significant injury to his right shoulder but did not accept that the disability was as severe as Mr Pender described. Having regard to her Honour's acceptance that there were likely to be jobs for which Mr Pender is fit that would pay around the same or a little less than his wage as a ferry master, and the unreliability of Mr Pender's evidence as to his earning capacity, the award of $200,000 was in my view excessive.

Had the findings on liability been sustained, I would have concluded that an appropriate buffer was $100,000 on the basis that this would reflect roughly a 20% loss of earning capacity (based on a $680 per week wage) over Mr Pender's working life, making an allowance of 15% for vicissitudes.

Ground 16 - future domestic assistance

As to the award for future (paid) domestic assistance, her Honour found that Mr Pender was fit for normal weekly housework but that there might be limited non-recurring domestic activities for which Mr Pender would not be fit in the future (such as painting a house) and allowed a lump sum of $50,000.

Mr Sexton submits that for a life expectancy of 50 years, $50,000 on the 5% tables equates to $50 per week. Reliance is placed on Miller v Galderisi [2009] NSWCA 353 at [15] - [20] for the proposition that Mr Pender was required to establish a need for paid domestic assistance.

In Miller, this Court considered that an award that had been made for commercial assistance could not be justified in circumstances where it was made on the assumption that there was an immediate need that would continue for life for such assistance and it was clear that the respondent did not immediately require such assistance because it was being provided gratuitously by relatives. It was there accepted that circumstances might change and it was foreseeable that domestic assistance would be required from a commercial provider. However, it was not suggested that an award for such assistance be made in the absence of evidence as to the likely need for such future assistance. A number of variables were there considered, including the ability and willingness of others to provide assistance on a gratuitous basis.

Mr Sexton submits that in circumstances where there was no evidence that Mr Pender owned a house; no evidence of any intention on his part to buy a house in the future; no evidence that even if he owned a house he would be minded, or have the need, to paint it; and no evidence in relation to future domestic assistance (other than normal weekly housework activities for which he was found to be fit), there should have been no allowance for future domestic assistance.

Ms Norton submits that that there was evidence as to maintenance that Mr Pender could not do but did not point on appeal to any particular evidence of activities for which there was an immediate or likely future need for commercial assistance. Ms Norton noted, however, that Mr Pender was living in his parents' home, which might require maintenance in the future.

Given the findings made by her Honour, I am not satisfied that there was a need established for commercial assistance in respect of the limited number of non-recurring domestic activities that it was found Mr Pender might not be able to do (at [84]) and therefore I consider that the $50,000 lump sum did not reflect an established need for commercial assistance. Had the findings on liability been sustained, I would have allowed this ground of appeal and set aside the award for commercial assistance.

Conclusion

For the reasons above, I would make the following orders:

1. Appeal allowed.

2. Verdict and judgment of Balla DCJ and order 2 of the orders made on 30 March 2012 and entered on 2 April 2012 be set aside.

3. In lieu thereof order that there be verdict in favour of the appellant.

4. Order that the Respondent pay the Appellant's costs of the appeal and the proceedings in the District Court.

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Decision last updated: 10 July 2013

Medium Neutral Citation:	Shoalhaven City Council v Pender [2013] NSWCA 210
Hearing dates:	28 March 2013
Decision date:	10 July 2013
Before:	McColl JA [1] Barrett JA [98] Ward JA [99]
Decision:	1. Appeal allowed. 2. Verdict and judgment of Balla DCJ and order 2 of the orders made on 30 March 2012 and entered on 2 April 2012 be set aside. 3. In lieu thereof order that there be verdict in favour of the appellant. 4. Order that the Respondent pay the Appellant's costs of the appeal and the proceedings in the District Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - negligence - occupier's liability - slip and fall on ferry ramp - whether conclusion as to how plaintiff fell available either from direct evidence or by inference - whether circumstances raised a more probable inference in favour of plaintiff's case TORTS - negligence - Civil Liability Act 2002, s 5B and s 5C - breach of duty of care - identification of risk of harm - whether risk of slipping on dry concrete surface of boat ramp "not insignificant" - whether evidence of unreasonable failure to take precautions against risk of harm TORTS - negligence - Civil Liability Act 2002, s 5D - causation - necessary condition of harm - whether absence of adequate cleaning system cause of injury TORTS - contributory negligence DAMAGES - apportionment of responsibility as between employer and occupier for purposes of s 151Z(2)(c) Workers Compensation Act 1987 - assessment of damages for future economic loss and future paid domestic assistance
Legislation Cited:	Civil Liability Act 2002 Civil Liability Act 2003 (Qld) Workers Compensation Act 1987
Cases Cited:	Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452 Arabi v Glad Cleaning Service Pty Ltd [2010] NSWCA 208 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343 Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 Dulhunty v J B Young Ltd (1975) 50 ALJR 150 Flounders v Millar [2007] NSWCA 238 Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 Hoffmann v Boland [2013] NSWCA 158 Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470 Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239 Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132 Jackson v Lithgow City Council [2008] NSWCA 312 Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Kocis v SE Dickens Pty Ltd [1998] 3 VR 408 Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd as trustee for the G & M Geldard Family Trust [2012] QCA 315; [2013] 1 Qd R 315 Metropolitan Gas Co v City of Melbourne [1924] HCA 46; (1924) 35 CLR 186 Miller v Galderisi [2009] NSWCA 353 Miller v Miller [2011] HCA 9; (2011) 242 CLR 446 Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 Neill v NSW Fresh Food and Ice Pty Ltd [1963] HCA 4; (1963) 108 CLR 362 Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 Progressive Recycling Pty Ltd v Eversham [2003] NSWCA 268; (2003) 40 MVR 141 Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330 Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; (2009) 77 NSWLR 360 Roche Mining Pty Ltd v Graeme Wayne Jeffs [2011] NSWCA 184 Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 Shaw v Thomas [2010] NSWCA 169 Shirt v Wyong Shire Council [1978] 1 NSWLR 631 State of Victoria v Bryar and Anor (1970) 44 ALJR 174 Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 Tame v State of New South Wales [2002] HCA 35; (2002) 211 CLR 317 Thornton v Sweeney [2011] NSWCA 244; (2011) 59 MVR155 Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Wilkinson v Law Courts Ltd [2001] NSWCA 196 Woolworths Ltd v Strong [2010] NSWCA 282 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 Youkhana v Di Veroli [2010] NSWCA 322
Texts Cited:	D Ipp, P Cane, D Sheldon, I Macintosh, Review of the Law of Negligence, Sep 2002, The Commonwealth of Australia
Category:	Principal judgment
Parties:	Shoalhaven City Council (Appellant) Clint Alexander Pender (Respondent)
Representation:	Counsel: J Sexton SC with N Polin (Appellant) S Norton SC with P Macarounas (Respondent) Solicitors: DLA Piper Australia (Appellant) Brydens (Respondent)
File Number(s):	CA 12/180280
Decision under appeal	Jurisdiction: 9101 Citation: Clint Alexander Pender v Shoalhaven City Council Date of Decision: 2012-03-28 00:00:00 Before: Balla DCJ File Number(s): DC 10/101142