Willett v United Concrete Pty Limited - [2009] NSWSC 957

No judgment structure available for this case.

Reported Decision:
190 IR 28

New South Wales

Supreme Court

CITATION: Willett v United Concrete Pty Limited and Anor [2009] NSWSC 957

HEARING DATE(S): 17 August 2009, 18 August 2009, 19 August 2009, 20 August 2009, 25 August 2009

JUDGMENT DATE :
22 September 2009

JUDGMENT OF: Schmidt J

CATCHWORDS: TORTS - negligence - proof of negligence - workplace accident - onus of proof - what was the nature of duties owed - how injury occurred not established - existence of hazard not established - no foreseeable risk - claim dismissed - cross claims dismissed - EVIDENCE - concurrent evidence - challenge to expert evidence - risk of slipping - collision between expert and other evidence considered

LEGISLATION CITED: Civil Liability Act 2002
Civil Procedure Act 2005
Law Reform (Miscellaneous Provisions) Act 1946
Occupational Health and Safety Act 2000
Uniform Civil Procedure Rules
Workers Compensation Act 1987

CATEGORY: Principal judgment

CASES CITED: Barboso v Di Meglio [1999] NSWCA 307
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Conceicao v Visypak Operations Pty Ltd [2008] NSWCA 307
DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306
Penrith Rugby League Club Ltd trading as Cardiff Panthers v Elliot [2009] NSWCA 247
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) 172 IR 453
Rasic v Cruz [2000] NSWCA 66
Rhoden v Wingate [2002] NSWCA 165
S v State of New South Wales [2009] NSWCA 164
Spedding v Nobles [2007] NSWCA 29; (2007) 69 NSWLR 100
Sydneywide Distributors v Red Bull Australia Pty Limited [2002] FCAFC 157; (2002) 55 IPR 354
Thompson v Woolworths (QLD) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234
TNT Australia Pty Limited V Christie & 2 Ors; Crown Equipment Pty Limited v Christie & 2 Ors; Manpower Services (Aust) Pty Limited v Christie & 2 Ors [2003] NSWCA 47
Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818
Wilkinson v BP Australia Pty Ltd [2008] QSC 171
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

PARTIES: Plaintiff - David Willett
First Defendant - United Concrete Pty Limited
Second Defendant - PF Transport Pty Limited

FILE NUMBER(S): SC 20223/07

COUNSEL: Plaintiff - Dr AS Morrison SC with Mr WJ Nicholson of counsel
First Defendant - Mr RA Cavanagh of counsel
Second Defendant - Mr D Kelly of counsel

SOLICITORS: Plaintiff - Marshall & Gibson Lawyers
First Defendant - Gillis Delaney Lawyers
Second Defendant - Moray & Agnew

- 62 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SCHMIDT J

Tuesday, 22 September 2009

020223/07 DAVID WILLETT v UNITED CONCRETE PTY LIMITED & ANOR

JUDGMENT

1 HER HONOUR: By an amended statement of claim filed in February 2008 the plaintiff, Mr David Willett, claimed damages for injuries suffered in 2004 during a workplace accident which occurred while he was working as a truck driver for the second defendant, PF Transport Pty Limited ('PF Transport'), delivering a load of sand at the premises of the first defendant, United Concrete Pty Limited ('United Concrete'). Mr Willett has received payments under the Workers Compensation Act 1987 in respect of the injuries which he suffered that day. In these proceedings, both defendants deny liability for what occurred and in the alternative, allege contributory negligence by the plaintiff. Defences under s 5G, s 5F and s 5S of the Civil Liability Act 2002 were also raised by the first defendant, as was s 151Z(2)(c) of the Workers Compensation Act.

2 By a cross claim filed in August 2007, United Concrete claimed contribution and/or indemnity from PF Transport, pursuant to s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946, alleging negligence on the part of PF Transport. The cross claim was defended and by a second cross claim, filed in March 2008, PF Transport also claimed contribution and/or indemnity from United Concrete pursuant to s 5(1) of the Law Reform (Miscellaneous Provisions) Act, alleging negligence on its part. It also claimed an indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act. This cross claim was also defended and in the alternative, contributory negligence by PF Transport was claimed.

3 There was no issue between the parties that the defendants each owed Mr Willett a duty of care, when he was performing his work at the United Concrete site, although they differed as to the nature of those duties and whether they had been breached. What was also not agreed was whether there was a foreseeable risk of harm at the United Concrete yard where Mr Willett claimed he fell while performing work associated with the delivery of a load of sand, namely the risk of slipping. Whether Mr Willett’s injuries resulted from that risk materialising, was also in issue.

The onus falling on Mr Willett

4 It was the case put for Mr Willett that the question of whether or not the risk existed, would be determined in the way discussed by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47:

"13. A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone [1951] UKHL 2; (1951) AC 850, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.

14. In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

5 While the case put for Mr Willett was not expressly directed to the regime established by the Civil Liability Act, its requirements may not be overlooked in determining whether the onus which fell on Mr Willett has been met on the evidence. That onus requires Mr Willett to show that a foreseeable risk of harm existed and that his injuries resulted from that risk materialising, s 5E of the Civil Liability Act, providing:

"5E Onus of proof

6 In considering questions of onus, note should also be taken of what was recently said in Penrith Rugby League Club Ltd trading as Cardiff Panthers v Elliot [2009] NSWCA 247, where Sackville AJ observed in relation to the provisions of the Civil Liability Act that:

, Annotated Civil Liability Act 2002 (NSW)

Civil Liability Act

negligent in failing to take precautions against a risk of harm

7 It follows that in considering the matters in contest between the parties, s 5B and s 5C of the Civil Liability Act must be born in mind. They provide:

"5B General principles

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

(b) the risk was not insignificant, and

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

(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.

5C Other principles

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

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

What was the nature of the duties owed to Mr Willett?

8 Mr Willett performed his work under the direction and control of his employer, PF Transport and while at its premises, under the control of United Concrete, the occupier of the premises. Their duties towards Mr Willett were not identical.

PF Transport

9 The duty owed to an employee has often been discussed, the Court of Appeal observing, for example in Pollard v Baulderstone HornibrookEngineering Pty Ltd [2008] NSWCA 99; (2008) 172 IR 453:

Burnie Port Authority v General Jones Pty Ltd

New South Wales v Lepore

Kondis

Czatyrko v Edith Cowan University

English v Rogers

“73 …This passage emphasises that it is for the employer to devise reasonably appropriate measures to eliminate the risk. If such measures are not taken and the risk comes home in consequence of the breach, then liability will generally ensue.” (emphasis added)

37 In deciding whether an employer has discharged its obligation to establish, maintain and enforce a safe system of work, the Court must take into account the power of the employer to prescribe, warn, command and enforce obedience to its commands: McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 (at 313).

TNT

10 In S v State of New South Wales [2009] NSWCA 164, the employer's duty was described in this way:

Czatyrko v Edith Cowan University

“An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in the workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work” (at [12], citations omitted)."

11 As to an employee’s inadvertence and negligence, what the High Court held in McLean v Tedman & Brambles Holdings Ltd [1984] HCA 60; (1984) 155 CLR 306 must also be born in mind:

"7. There are several points which need to be made about this course of reasoning. Although running across the road was a means of doing the work which the appellant and other employees chose or preferred, it was nevertheless a system of work of which, as the primary judge found and the Full Court did not deny, Brambles was aware or ought to have been aware. And it was fraught with some degree of risk of injury to employees in some circumstances, especially when an employee was crossing Albany Creek Road when it was dark, as the appellant was doing on this occasion. The fact that the traffic was very light no doubt lessened the risk of injury, though it may have induced an employee to take less care for his own safety. However, there is simply no basis for saying that the risk of injury was fanciful (see Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 CLR 40, at p 47) or for brushing it aside because it was insignificant. It was a foreseeable and significant risk inherent in the way in which the garbage was collected in Albany Creek Road arising from the possibility of negligence on the part of motorists and negligence or inadvertence on the part of an employee.

8. In such a situation it is not an acceptable answer to assert that an employer has no control over an employee's negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law defence (Wheare v. Clarke [1937] HCA 7; (1937) 56 CLR 715, at p 723; Henwood v. Municipal Tramways Trust (S.A.) [1938] HCA 35; (1938) 60 CLR 438, at p 444). The employer is not exempt from the application of this standard vis-a-vis his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system. The employer's obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk.

See also Da Costa v. Cockburn Salvage and Trading Pty. Ltd. [1970] HCA 43; (1970) 124 CLR 192, at p 218; Turner v. The State of South Australia (1982) 56 ALJR 839, at p 842.

United Concrete

12 As to United Concrete, for Mr Willett it was argued that it had obligations to provide safe premises, both at common law and under the Occupational Health and Safety Act 2000 and the Regulations made under that Act, which were relevant here to be considered, even though no breach of statutory duty was alleged. The common law duty was submitted to be ‘informed’ by these statutory obligations, even though the duty falling on United Concrete was already of a high order, even without the influence of the Occupational Health and Safety Act. A similar approach would be taken in relation to these obligations, as was taken in relation to liquor licensing laws, in respect of which it was said, for instance, in Spedding v Nobles [2007] NSWCA 29; (2007) 69 NSWLR 100:

Drakulic

Liquor Act

125 Conduct on licensed premises

...

(b) permit intoxication, or any indecent, violent or quarrelsome conduct on his or her licensed premises."

13 For United Concrete it was argued that given that no breach of statutory duty was alleged against it, the provisions of the Occupational Health and Safety Act and the Regulations were not relevant to a consideration of the duties which it owed Mr Willett.

14 It seems to me that the approach which must be born in mind is that discussed by the High Court in Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 at [12], albeit there a discussion in the context of an employer’s obligations in relation to safety:

15 United Concrete’s duties to Mr Willett were undoubtedly akin to those discussed by the High Court in Thompson v Woolworths (QLD) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234, Woolworths there having devised a system which the appellant was bound to observe, while delivering bread to its premises:

16 There, the appellant was at Woolworths’ premises to deliver bread, described at [3] as ‘a mutual commercial purpose’. While performing that work, the appellant had to conform to certain systems and procedures established by Woolworths. In this case, it was the two defendants who had a mutual commercial purpose. Mr Willett was performing his work at United Concrete as an employee of PF Transport, in order to further that purpose. It was he who was obliged to perform his work, in accordance with procedures which United Concrete had established, when he was at its premises. Clearly, United Concrete was obliged to have PF Transport employees such as Mr Willett in contemplation, as people who might be put at risk by its choice of facilities and procedures, when loads of sand were delivered to its yard.

17 Unlike Thompson, however, here Mr Willett complains that the defendants failed to warn him of, or protect him from, a risk of which he was not aware, namely the risk of slipping on sand and/or aggregate lying on the ground of the yard. Both defendants deny that there was such a risk; that there was any need to give Mr Willett any warning about the sand and aggregate; or that Mr Willett was injured by the materialisation of that risk, as he complained.

18 In this case, also to be considered is the expectation discussed by the High Court in Thompson, that a person will exercise reasonable care for his or her own safety. At [35] to [37], it was observed:

"[35] When a person is required to take reasonable care to avoid a risk of harm to another, the weight to be given to an expectation that the other will exercise reasonable care for his or her own safety is a matter of factual judgment. It may depend upon the circumstances of the case. To take a commonplace example, in ordinary circumstances a motorist in a city street, approaching a pedestrian crossing, will reasonably assume that the pedestrians assembled on the footpath will observe the lights which control the crossing. Most people drive as though it may be expected that other road users will be reasonably careful. At the same time, it is often judged reasonable to expect a motorist to allow for the possibility that some other road users will be inattentive or even negligent.

[36] The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response. There are, for instance, no risk-free dwelling houses. The community's standards of reasonable behaviour do not require householders to eliminate all risks from their premises, or to place a notice at the front door warning entrants of all the dangers that await them if they fail to take care for their own safety. This is not a case about warnings. Even so, it may be noted that a conclusion, in a given case, that a warning is either necessary or sufficient, itself involves an assumption that those to whom the warning is addressed will take notice of it and will exercise care. The whole idea of warnings is that those who receive them will act carefully. There would be no purpose in issuing warnings unless it were reasonable to expect that people will modify their behaviour in response to warnings.

How did Mr Willett come to injure his back?

19 There was no issue between the parties that Mr Willett suffered a serious back injury in July 2004 while at the premises of United Concrete. His current condition is the result of his injury, later complications arising from surgery, the effects of an addiction to drugs prescribed to manage ongoing pain, as well as other drug use and other serious health issues, as well as another serious injury sustained in a motor vehicle accident. While there is no question that Mr Willett suffers serious, ongoing ill health, how the injury which he suffered in 2004 was sustained, and whether it was as the result of the defendants’ failures, were in issue.

20 In considering whether the onus which fell on Mr Willett was met on the evidence, it is convenient to begin with a consideration of his evidence about what happened to him, there being no witnesses to the accident and no expert evidence called in relation to the mechanics of the fall.

21 Mr Willett commenced employment with PF Transport on 5 July 2004. He was an experienced and qualified diesel mechanic and truck driver, who had applied for the driving position which had been advertised some weeks before. He was the successful applicant. On 5 July, he was allocated a truck, pulling a tipper and dog trailer and given his first job. He then drove to a quarry at Maroota, where he collected a load of coarse sand and drove to the United Concrete site at Wetherill Park. There he was shown where to empty his load. He was experienced in this work and was given no instructions by either defendant as to how he should do it and given no warning as to any risks posed by the state of the yard.

22 After the load was emptied, Mr Willett straightened the truck and trailer. It was common ground that the yard where the accident occurred was constructed of concrete, which had been worn by use. There was sand and aggregate lying on the ground. There was an issue between the parties as to whether or not what was lying on the ground, made the surface slippery.

23 Mr Willett got out of the truck and walked to the rear of the tipper, in order to brush sand out of the airlines of the tipper and the drawbar, which connected the tipper and dog trailer. That sand had fallen from the tipper when the load was dumped. Mr Willett needed to brush this sand off, in order to ensure that sand would not fall from the truck onto the roadway after he left the site. He understood that he was liable to be fined, if he dropped sand onto the road. He used a small broom to brush the sand off the right rear side of the tipper and the draw bar, which joined on to the trailer. It was when he stepped over the draw bar to get to the left hand side, that the accident occurred.

24 Mr Willett has given a number of conflicting accounts of how he came to injure himself when he stepped over the draw bar. In a worker's compensation claim form, which he signed on 15 July 2004, he described ‘what happened’ as:

25 In a statement of 16 December 2004, again made in relation to his worker’s compensation claim, he gave a different account, explaining what happened in this way:

26 In a statement made on 9 April 2007, for these proceedings, Mr Willet gave another account, explaining what had occurred:

"17. After I emptied the load from the tipper, I got out of the truck and walked to the back of the tipper. I did this in order to brush sand from the airlines of the tipper and the drawbar. As I emptied the tipper sand fell across the airlines and the drawbar. As I had driven tipper trucks previously I knew the airlines and the drawbar needed to be swept clean so that sand would not fall from the truck on to the roadway after I left the delivery site.

18. I commenced the task of brushing the sand from the airlines and the drawbar by standing on the driver's side of the drawbar facing the back of the tipper. After brushing the sand from the airlines and the drawbar, whilst standing on the driver's side facing the back of the tipper, I then stepped over the drawbar in order to go to the other side of the truck with the intention of brushing the sand from the airlines on the other side of the truck.

27 In his oral evidence in these proceedings, Mr Willett gave quite a different account of what had occurred. He explained in his evidence in chief, that :

"A. … I walked down the right hand side of the vehicle to where the ring feeder is which holds the trailer on to the truck and the airlines are, and started to sweep off the sand and I noticed there was quite a fair amount of sand on the left hand side so I went to step over the draw bar to get on to the left hand side of the vehicle and as I did I lost my footing and fell straight back on to the draw bar.

Q. When you stepped over the draw bar could you see whether you were stepping on to anything or not?
A. No.

28 In cross-examination, when his attention was drawn to how his earlier statements differed from the account he had given in his evidence in chief, especially that made in April 2007, Mr Willett explained that what he had said in April 2007 was not correct. He insisted that when he fell, his right leg was still on the ground. The cross examination continued:

"Q. Just going back a bit then, you agreed with me I think that whilst you are stepping over, you have your left foot in the air and your right foot on the ground, is that right?
A. Yeah.

Q. At some stage your left foot comes in contact with the ground on the other side of the draw bar, is that right?
A. My left foot, yeah.

Q. And then you said before that you lost your footing?
A. Yeah.

Q. Well, did you lose your footing when you had both left and right feet on the ground, is that what happened?
A. As soon as my left foot hit the ground, right, I lost my footing, I fell backwards.

Q. Does that mean you still had your right foot on the ground when you lost your footing?
A. How can I mean, I've fallen backwards.

Q. I'm just asking you, Mr Willett. If you are not able to remember, say you are not able to remember, if you would. But are you able to remember when you lost your footing whether you had both feet on the ground, or only one?
A. The only way I can answer it is when my left foot touched the ground, I lost my footing and fell backwards.

Q. When you think about it, would it be likely that you still had your right foot on the ground when you lost your footing?
A. Maybe for a split second, maybe. It's very hard to say.

CAVANAGH

Q. For a split second do you think you might have actually lifted up your right foot before you started to lose your footing?
A. No, I don't think so.

Q. Were you holding on to the draw bar as you attempted to climb over it?
A. No.

Q. If on your evidence the draw bar is higher than shown in the photograph I showed you, just have a look at the photograph again would you please Mr Willett?
A. Yeah.

29 Mr Willett denied that he held onto anything, as he stepped over the draw bar. He had not seen what was on the ground, on the other side of the draw bar, before he stepped over and slipped. He could not see what was on the ground on the other side of the draw bar, mudflaps obstructed his vision. He was, however, certain that he had not simply overbalanced, as he lifted his leg to mid-thigh height, without holding onto anything, as he stepped across the draw bar.

30 When again taken to his earlier statements, Mr Willett agreed that the account he had given at the trial differed, and insisted that ‘as I placed my left foot upon the ground it went from under me and I went back’. He insisted that he did not lift his right foot off the ground, ‘[i]t come off the ground, it come off the ground when I fell backwards’. He reiterated that he was ‘pretty positive’ that he did not raise his right leg, although it was his intention to lift it over the draw bar, after he placed his left leg on the ground. He said that he remembered what had happened, and:

"Q. Are you sure you didn't just lose your balance as you had one foot in the air and one foot on the ground?
A. I'm positive, because I would have fallen forward if I had my leg off the ground and my left leg off the ground already, I would have fallen over the draw bar, not backwards.

Q. You didn't fall to the ground, did you?
A. No, no. I fell onto the draw bar.

Q. So whatever happened to you was just something that was sufficient for you to lose your balance and come into contact with the draw bar, is that right?
A. I lost my footing.

Q. I'm sorry, that's my fault, I didn't mean to be suggesting otherwise caused you to lose your footing and as a result of losing your footing you say you lost your balance and came in contact with the draw bar, is that right?
A. Yeah. When I placed my left foot on the ground, I lost my footing and fell backwards.

Q. Any loss of footing wasn't sufficient to cause you to fall to the ground?
A. No, because I hit the A frame of the draw bar.

Q. Were you holding onto it before you lost your footing?
A. No.

Q. Did you grab a hold of it as you lost your footing?
A. No, I just fell, it happened so quick.

Q. You must have grabbed a hold of it when you started to lose your footing, Mr Willett, didn't you?
A. No, it is only about a tubing, about that round (witness indicated.)

Q. What did you do with your hands when you were losing your footing?
A. They just went back like that. (Witness indicated.)

Q. Then did you try and regain your balance by putting your hand on the draw bar?

A. No, no. I put my arm around towards my back and I rolled to my left and I got off the draw bar.

Q. Back to the position you'd been in before you attempted to walk across it?
A. No, because I was laying across the draw bar.

Q. Did you end up on the other side of the draw bar or the side you had been in, in the first place?
A. I fell back on the right hand frame.

Q. What I'm getting at is, remember you were on one side of the draw bar, you were attempting to stand over it, step over it?
A. Yeah.

Q. After you'd lost your footing?
A. Yes.

Q. Did you end up on the other side of the draw bar or the side you were initially?
A. I ended up on the other side.

Q. The other side, okay. Now, you drove away from the site, didn't you, after this incident?
A. Yeah.

Q. You didn't tell anyone about anything that occurred?
A. No, just thought I fell, never thought nothing of it.

Q. And then you continued working that day?
A. Yeah.

Q. And then did you subsequently realise that you were experiencing some pain in your back?
A. Yeah and my left leg was getting worse and worse.

Q. And you went to see your general practitioner?
A. No.

31 As to the mechanics of the fall, it was later submitted for Mr Willett in re-examination that it was obvious that the fall occurred after a transfer of weight onto the left foot, although how far through the process his foot had slipped, was a matter of some uncertainty. Consistently, Mr Willett had always said his foot slipped and that:

32 It was also finally submitted for Mr Willett that what had to be established on the evidence, was that the surface was slippery, not the amount of slippery material which was actually underfoot when he slipped.

33 The upshot of all of the evidence was that Mr Willett’s first account of his fall, given in 2004, some days after the accident, was that he fell when he went to ‘hop’ over the draw bar and that when he fell, he hit his left leg. There was no mention of hitting his back. The second version, given not long afterwards, made no mention of attempting to cross the draw bar when he slipped, injuring his back. Mr Willett’s third account, given in April 2007, had him facing the rear of the tipper, then stepping over the draw bar, with his left leg on the ground and his right left being lifted, when his left leg slipped and he hit the draw bar as he fell backwards. When called upon in cross-examination to explain how it was that he came to fall, Mr Willett said that his April 2007 account was wrong.

34 Mr Willett then explained that when he stepped across the draw bar, he momentarily had both feet on the ground, one on either side of the draw bar, having lifted his left leg across the draw bar and put his left foot to the ground, whereupon his left foot slipped immediately, causing his right leg to come off the ground, he not as yet having lifted it. This caused him to fall backwards, hitting his back on the draw bar, with him ending up lying across the draw bar, on the right side of the 'A' frame. He grabbed the draw bar behind him only after he hit it, not before. He insisted that he did not fall to the ground, but ended up on the other side of the draw bar, that is on the left side of the draw bar.

35 This final account was attacked by the first defendant as being entirely implausible, denying both logic and commonsense. That submission was met with the argument that Mr Willett must have been facing the back of the truck, when he swung his left leg over the draw bar, slipped and fell, even though Mr Willett has never himself given an account that he had swung his left leg over the draw bar, while standing, facing the rear of the truck. Nevertheless, it was argued that his evidence proved that there was a hazard on the ground where his foot slipped and that an inference would readily be drawn that the hazard was causative of the injury (relying on the approach of Gaudron J in Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408). Accepting that this is the view which her Honour took, which, it would seem to me is open to some debate, in this case, of course, there was an issue between the parties as to whether the sand and aggregate on the ground was a hazard at all. I will return to deal with that issue below, but note at this stage, that for reasons which will become clear, I am unable to accept the submission that in this case, such an approach is available.

36 In his evidence at the hearing, Mr Willett described his action as stepping over the draw bar, although at one point he said he jumped. In various earlier accounts he has said that he had stepped, hopped, or jumped over the draw bar. He has never described what he did as swinging his left leg over the draw bar while standing facing the back of the tipper, as was submitted must have been his action. That action seems quite a different one to that which Mr Willett has ever described.

37 That it is unlikely that Mr Willett was facing the rear of the tipper when he fell, follows from his evidence at the hearing. He explained that he had to brush sand off the back of the tipper and off the drawbar, which ran from the back of the tipper, forming an 'A' frame when it joined onto the trailer. To do so, Mr Willett must have turned towards the draw bar, in order to sweep along its length with the brush, as he described in his evidence, with the sand all falling on the right hand side of the truck, not on the left where he then stepped. Mr Willett noticed sand on the left hand side of the tipper, which he had to brush off and so he stepped across the draw bar and fell. This description makes it unlikely that Mr Willett was then facing the rear of the tipper. It would appear from his evidence at the hearing that he was facing the drawbar when he stepped across it. If Mr Willett crossed the draw bar using a stepping motion, first lifting his left leg across the draw bar and placing his left foot onto the ground on the other side, before lifting his right leg up and over the draw bar, then the draw bar would have been between his legs when he fell, unless he had lifted his right leg before he fell.

38 Mr Willett could plainly have fallen backwards and hit his back on the draw bar as he fell, if his April 2007 account of how he fell after he lifted his right leg to lift it over the draw bar was correct. Then he would have had his left foot on the ground and his right leg in the air, before he fell backwards, with the draw bar behind him, when he fell onto it. In his April 2007 account, however, he said that when he stepped over the draw bar, he was facing the rear of the truck. From that position, it is difficult to see how he could have 'stepped' across the draw bar. Standing in that position, he would have had to swing his left leg over the draw bar, forwards, or backwards. If forwards, it is difficult to see that he could have fallen backwards at all. If he swung his leg backwards it is difficult to see how he could have ended up as he described at the hearing, lying with this back across the draw bar.

39 Mr Willett’s evidence at the hearing was, however, that his April 2007 account was wrong and that when he stepped across, he fell backwards onto the draw bar, immediately when he put his left foot to the ground, before he lifted his right leg off the ground at all. This scenario had the draw bar between his legs when he fell. From that position, it is difficult to see how he could have hit his lower back on the draw bar, as was his evidence. The draw bar was between his legs as he fell, when his right foot came off the ground. From that position he could not have hit his back on the draw bar at all. It was not behind him. He could certainly have hit his left leg, as he fell backwards, as was his first account, given immediately after the accident, but that was not his description of what occurred at the hearing. From the position which he then described, he would have fallen to the ground, which he insisted he did not do.

40 While Mr Willett has given a number of different accounts of what happened in 2004, this was not a case where Mr Willett claimed to have any difficulty in remembering what had occurred, when he gave his evidence. To the contrary, it was argued that his evidence was credible and would be accepted. Mr Willett insisted that he had a clear recollection of what had happened and that his earlier accounts were wrong. He insisted that he stepped across the draw bar, in what was later, accurately it seemed to me, described for United Concrete, as a ‘hurdling motion’, stepping across the draw bar at mid-thigh height, while not hanging on to the bar. It was not Mr Willett’s evidence that he swung his leg over the draw bar, while standing facing the rear of the tipper.

41 Even if Mr Willett had been standing facing the rear of the tipper and had swung his left leg over the draw bar, from such a standing position, it is difficult to see that he could have fallen and hit his back as he described in his oral evidence. If he swung his leg backwards, he would then have fallen backwards from a position where he was straddling the bar, with both feet on the ground, his left foot slipping immediately that he transferred his weight to his left foot, causing his right foot to come off the ground. From that position, how could he have ended up in the position which he described, namely lying with his back across the draw bar, on the right hand side of the 'A' frame, with his legs on the left hand side? That was not explored in cross-examination, no doubt because it was not a scenario which came from Mr Willett. As I have said, if he had swung his leg forward, which has never been suggested, he is unlikely to have fallen backwards at all.

42 The difficulty with Mr Willett’s evidence was that it made unlikely that he fell backwards to strike his back on the draw bar as he described. That, undoubtedly, explained the submission eventually put, that he had crossed the draw bar in quite a different way.

43 For Mr Willett it was also submitted to be relevant that he had given entirely consistent accounts as to how he fell, to the various medical practitioners who he has seen over the years. The notes of the various medical practitioners mention stepping, hopping or jumping across the draw bar, loosing his footing, slipping, hitting the draw bar and striking his lower back and left leg. Understandably, none of them contain an account of the kind which Mr Willett gave at the hearing as to the mechanics of the fall. The medical practitioners were not concerned to ascertain how he fell and whether the injury to his back could have been caused by such a fall. None of these accounts, however, nor his evidence at the hearing, suggest that he fell while swinging his left leg over the bar, while standing facing the rear of the truck. Nor did the amended statement of claim allege that this is what occurred.

44 The amended statement of claim alleges that:

"14. After sweeping the driver's side lines and the driver's side of the drawbar with a brush, the plaintiff raised his left leg and raised it over the drawbar placing his left foot on the passenger side of the drawbar, standing with both feet on the ground on each side of the drawbar, and then raised his right leg to cross the drawbar in order to stand with both feet on the passenger side of the drawbar and commence the process of sweeping the sand from the passenger side lines and drawbar.

45 These allegations largely accorded with Mr Willett’s 2007 statement, an account which he said in his evidence at the hearing was inaccurate in various ways. On that evidence, it may not be concluded that these allegations were made out.

46 Mr Willett’s account at the hearing of how he came to fall, made hitting his back on the draw bar as he fell across it quite unlikely. There were, undoubtedly, other ways in which Mr Willett could have come to lose his footing, so that he fell and injured his back. One obvious way in which that might have occurred, was by Mr Willett overbalancing, while he stepped, hopped or jumped across the draw bar, while not holding onto it. Hopping and jumping across the bar made the possibility of overbalancing even more likely, than while stepping across. He, however, denied any overbalancing.

47 It was not a part of the case pressed that the defendants had been negligent in allowing Mr Willett to step over the draw bar at all. This was not a case where casual, careless inadvertence which a system of work should guard against, was in question, as was the case in Conceicao v Visypak Operations Pty Ltd [2008] NSWCA 307. Nor was this a case like that considered in Wilkinson v BP Australia Pty Ltd [2008] QSC 171, where a known, obvious slipping hazard was overlooked by a driver whose evidence was that it had simply slipped his mind. Here, both the existence of the claimed slipping hazard and that the injury was the result of the manifestation of that risk, were in issue.

48 Ordinary human experience shows that even an activity which may ordinarily be undertaken safely can lead to injury, even serious injury, as the result of factors for which no one else may properly be held accountable in negligence. Undoubtedly the duty which falls on an employer, in particular, is a high one, as the High Court discussed in McLean v Tedman. What was discussed in TNT Australia Pty Limited v Christie & 2 Ors; Crown Equipment Pty Limited v Christie & 2 Ors; Manpower Services (Aust) Pty Limited v Christie & 2 Ors [2003] NSWCA 47; (2003) 65 NSWLR 1, must as also be born in mind. There it was observed:

Rae v The Broken Hill Pty Co Ltd

Crimmins v Stevedoring Industry Finance Committee

The duty is, of course, not absolute; it is the duty of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury.

New South Wales v Lepore

49 In the context of United Concrete, as Fitzgerald JA observed, in Rasic v Cruz [2000] NSWCA 66 at [42]:

50 While Mr Willett denied that what happened to him in 2004 was that he lost his footing because he just overbalanced when he stepped across the draw bar, insisting that he had slipped on something on the ground, the onus imposed by the Civil Liability Act, requires that the evidence establish, on the balance of probabilities, that Mr Willett fell in circumstances where the injuries to his back were caused, or contributed to, by the defendants’ negligence.

51 While Mr Willett’s 2007 account of the accident and what was alleged in the amended statement of claim were consistent with a fall which could have resulted in Mr Willett hitting his lower back on the draw bar as he fell backwards, when his left foot slipped as he stepped across the draw bar, while raising his right leg, Mr Willett’s insistence in cross examination that this account was inaccurate and the explanations which he then gave as to how he fell, made striking his back on the draw bar as he fell backwards, when his left foot slipped on something on the ground, quite unlikely. It follows that the onus which fell upon Mr Willett to make out the case which he advanced, was, in this respect, not met.

Concurrent evidence

52 The parties led evidence from various experts. When the hearing commenced, it became apparent that sufficient attention had not been paid to ensuring that the expert evidence could be received concurrently at the hearing, as the Court’s Practice Direction - Practice Note SC CL 5 - Supreme Court Common Law Division – General Case Management List requires. Finally, only two of the experts, Mr Underwood and Mr Nicholson, whose evidence went to the question of whether there was a risk of slipping at the yard, were required for cross-examination.

53 Unless relieved from the obligations imposed by the Practice Direction, parties must take the steps necessary to ensure that the evidence of such competing experts can be received concurrently. The Practice Direction is intended to assist the Court to meet the obligations imposed by s 65 of the Civil Procedure Act 2005, which requires that the Court seek to give effect to the overriding purpose there specified, namely ‘the just, quick and cheap resolution of the real issues in the proceedings’.

54 While it is possible to deal with problems such as those which arose in this case, when they present themselves at a hearing, parties’ legal representatives may not ignore that the Practice Direction requires that expert evidence be given concurrently. That requires that the steps necessary to ensure that the evidence can be so given, are taken before the hearing.

55 That requires not only that the legal representatives familiarise themselves with the processes involved, both prior to and at the hearing, but that experts who are engaged to give evidence, also ensure that they participate properly in the necessary preparatory processes. While this obviously requires experts to spend more time prior to a hearing, identifying what is truly disagreed between them, with a resulting increase in costs for the parties at that stage, this is counterbalanced by the resulting reduction of hearing time and costs and importantly, improving outcomes for parties by ensuring that the experts have a common understanding, before the hearing, as to what they agree and disagree, so that the hearing may be directed to ensuring that the trial judge gains a real understanding of what is in issue between the experts and why. That process has the additional benefit of assisting parties to reach settlements before a hearing, or at least by reducing what is in issue between them.

56 In this case, the parties had sought to be relieved of the obligation to call expert evidence concurrently, but had instead been directed to have the experts produce statements identifying what they disagreed upon. When the hearing commenced, there were still problems with those statements being prepared and the evidence being given concurrently. Necessary steps had not been taken to agree on an agenda for the concurrent evidence, nor had steps been taken to ensure that could occur.

57 There were belated attempts to have the various experts meet and identify what they truly agreed and disagreed. In some cases there were difficulties created by experts having relocated interstate and in one instance, an expert had died. These are obviously problems which can arise and must be managed if they do. The document finally produced in respect of Mr Nicholson and Mr Underwood, which sought to identify their differences, was however, obviously unsatisfactory, as the parties then came to submit. This was due, no doubt, in part to the time at which it was produced.

58 The final result was that Mr Nicholson and Mr Underwood did not give their evidence concurrently, although that was a possibility which remained open, until the two experts were each excused. Given the common ground which emerged from the respective cross-examination, it was not necessary to require further evidence to be given concurrently. The same result, it seemed to me, would have been achieved in a timelier, more cost effective and helpful fashion, had the Practice Direction been earlier attended to.

Challenge to the expert evidence

59 Mr Nicholson's evidence was challenged on the basis of his claimed expertise and that his reports did not satisfy what was specified by Heydon J in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85], where his Honour said:

HG v R

60 Having heard the parties, I came to the view that Mr Nicholson’s reports had to be received, even though there were some obvious difficulties with them. I indicated that I would in due course give reasons for that conclusion.

61 In the view which I came to, the difficulties complained about had to be resolved in accordance with the approach discussed in Barboso v Di Meglio [1999] NSWCA 307 at [33], namely that the fact that an expert’s reasoning process takes the form of an argument, was not a proper basis for rejecting the report, although it might prove to be the case that the reasoning process was not sound and did not support the opinions expressed, so that it would not be accepted as well founded, or be given little weight. This also accorded with the approach discussed in Sydneywide Distributors v Red Bull Australia Pty Limited [2002] FCAFC 157; (2002) 55 IPR 354, where Weinberg and Dowsett JJ observed at [87], when referring to Heydon J’s observations at [85]:

62 It also accorded with that of the Court of Appeal in Rhoden v Wingate [2002] NSWCA 165 at [86]:

63 I also had in mind what Part 31.27 and Schedule 7 of the Uniform Civil Procedure Rules provide as to the form which a report must take, and what appeared in the reports. Part 31.27 provides:

"31.27 Experts’ reports

(cf SCR Part 36, rule 13C; DCR Part 28, rule 9C; LCR Part 23, rule 1D)

(b) the facts, and assumptions of fact, on which the opinions in the report are based (a letter of instructions may be annexed),

(c) the expert’s reasons for each opinion expressed,

(d) if applicable, that a particular issue falls outside the expert’s field of expertise,

(e) any literature or other materials utilised in support of the opinions,

(f) any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out,

(g) in the case of a report that is lengthy or complex, a brief summary of the report (to be located at the beginning of the report).

(3) If an expert witness considers that his or her opinion is not a concluded opinion because of insufficient research or insufficient data or for any other reason, this must be stated when the opinion is expressed.

(4) If an expert witness changes his or her opinion on a material matter after providing an expert’s report to the party engaging him or her (or that party’s legal representative), the expert witness must forthwith provide the engaging party (or that party’s legal representative) with a supplementary report to that effect containing such of the information referred to in subrule (1) as is appropriate."

64 Clause 5 of Schedule 7 also relevantly provides:

"5 Experts’ reports

(1) An expert’s report must (in the body of the report or in an annexure to it) include the following:

(b) the facts, and assumptions of fact, on which the opinions in the report are based (a letter of instructions may be annexed),

(c) the expert’s reasons for each opinion expressed,

(d) if applicable, that a particular issue falls outside the expert’s field of expertise,

(e) any literature or other materials utilised in support of the opinions,

(f) any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out,

(g) in the case of a report that is lengthy or complex, a brief summary of the report (to be located at the beginning of the report)."

65 Mr Nicholson had given two reports, the first made after he had looked at the former United Concrete yard in 2007 from the street, at a point where he could not see the place where Mr Willett fell. There were obvious difficulties with the opinions which he expressed in that report, given what they were based upon. The second report was prepared after Mr Nicholson had inspected the yard in 2009. That report incorporated the first and it was accepted that the two reports thus had to be considered together. Mr Nicholson came to the view that the yard posed a risk of slipping; that it ought to have been cleaned in a different way than he assumed that it had been; and that the work Mr Willett was required to perform when brushing the sand off his truck, should have been done elsewhere on the site, if the risk of slipping was to be addressed.

66 While undoubtedly the two reports could have been more clearly expressed, a fair reading of them showed that in coming to his conclusions, Mr Nicholson had made various assumptions, including that what he observed as to the state of the yard in 2009, was similar to the state of the yard in 2004, when Mr Willett was injured; that the yard was then operated and cleaned in a similar way to what had been done in 2004; and that Mr Willett had come to slip and fall, as he described in his April 2007 statement. Plainly, if the assumptions made were not established at the hearing, the basis of the opinions expressed would fall away and could be given little, or even no weight in resolving the issues lying between the parties. That possibility provided no basis for rejecting the reports.

67 The reports were also criticised on other grounds, including that they did not show any scientific basis for the opinion reached that the yard was slippery, such as a test of the slipperiness of the ground, in the context of the work boots Mr Willett was wearing when he fell. There was a firmer basis for that submission, it seemed to me, but it was apparent from the joint statement which the experts had produced that there was some testing conducted by Mr Nicholson, which in my view had to be considered, given that the challenges otherwise made to Mr Nicholson’s expertise could not be accepted. He was a qualified engineer, with relevant experience working in industry, including at workplaces with similar concrete floored yards; he had sat as a member and a chairman of a safety committee and had had many years experience in investigating workplace accidents and their causes, both from the perspective of the mechanics of what had occurred and the systems of work involved.

68 A similar objection was put on a formal basis to the evidence of Mr Underwood, but it was not developed, or pressed further. I was also quite satisfied that there was no proper basis for declining to receive his evidence, for reasons which it is unnecessary to develop greatly. Mr Underwood plainly had relevant qualifications and experience to give evidence and like Mr Nicholson, in so far as his evidence was based on various assumptions, they had to be considered in the context of whether those assumptions were established on the evidence.

Did the evidence establish that there was a risk of slipping?

69 The fact that it was Mr Willett’s evidence that he fell and injured his back when his foot slipped on sand and aggregate lying on the ground, of itself was not a basis on which the onus which fell upon him, could be satisfied, even if it could have been accepted that he fell as he described in his evidence. Ipp JA observed in Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818 at [41] that 'a fall might be caused by an infinite variety of circumstances', impossible to identify in advance and that:

Doubleday v Kelly

"The actual events as they happened are not the circumstances to which consideration of foreseeability of risk of injury is applied; what is to be considered is foresight in more general terms of risk of injury ..."

70 In his 2007 statement, Mr Willett’s evidence was:

71 In his evidence at the hearing, Mr Willett said that after he fell, he noticed that:

"... there was blue metal or aggregate, the whole area. It's not actually impacted or anything, it was scattered everywhere, and sand from the bin."

72 Samples of the sand and aggregate were tendered and when shown photos taken of the yard in 2009, Mr Willett explained that by comparison to when he fell in 2004, in 2009 the yard was a lot cleaner and:

73 In cross-examination it was suggested to Mr Willett that there really wasn’t any aggregate on the ground, which caused him to fall. He insisted that there was both aggregate and sand on the ground. He agreed that this was not surprising, given the bins of sand and aggregate at the yard, but claimed that ‘its not cleaned or anything else and what is deposited on the ground stays there’. That evidence may not be accepted in the face of Mr Thiedeke's evidence as to how the yard was cleaned in 2004 and given Mr Willett’s evidence that he was at the site for only some 10 minutes in total on one day in 2004. He did not go back to the site until 2007, when he stood outside the yard with Mr Nicholson. It was not until 2009, that he again went inside the yard.

74 Mr Willett also explained that he only went to the site twice on the day that he was injured in 2004, although in some statements he said he had gone there three times. On the second occasion Mr Willett did not get out of his truck. Mr Willett explained that when he was there, he could see from what was in the bins, that fresh loads had been tipped earlier that day by other trucks. In re-examination, he explained that it was the damp material underneath the freshly tipped load, which showed that another load had been tipped. There was no suggestion, however, that whether what was on the ground was wet or dry, affected its slipperiness. The day of the accident was fine and dry.

75 As I have explained, the only evidence about how he fell came from Mr Willett. On that evidence, I have been unable to accept that Mr Willett fell and injured his back, as he claimed. For their part, the two experts assumed that the fall had occurred in the way described by Mr Willett in his 2007 affidavit, but their evidence did not deal with the mechanics of the fall. In so far as the experts’ opinions rested on Mr Willett’s 2007 account of his fall, the factual assumptions on which those opinions rested, were not established. Not much really turns on this, given what their evidence dealt with, namely the question of the slipperiness of the concrete ground of the yard, contaminated as it was by sand and aggregate. What was of greater moment was that Mr Willett’s evidence showed that an assumption made by Mr Nicholson as to what was underfoot when he fell, was not made out.

76 On the evidence as it unfolded at the hearing, can it be concluded that in 2004, it was reasonably foreseeable that there was a risk of slipping, or a slipping hazard, posed by the sand and aggregate lying on the ground at the United Concrete yard?

77 In considering that question it is relevant to note the submissions advanced for Mr Willett. It was accepted that the risk of slipping was modest and that, so far as PF Transport was concerned, that:

78 The reference to DIB was a reference to DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210, where it was concluded that while the occupier of that site was liable, the employer was not, because a reasonable inspection of the occupier’s premises, would not have disclosed to the employer the risk of injury arising from a cover over an inspection pit, which was covered in gravel.

79 For its part, United Concrete did not accept this submission. Both defendants argued that on the evidence, Mr Willett had not established the risk alleged.

Mr Nicholson’s first report

80 Mr Nicholson’s first report, made after his 2007 visit, when he had no access to the yard and could not see where the accident occurred, considered the effect of sand and aggregate on the yard, which he assessed had a 5 degree slope down towards a drain. That assessment rested on Mr Willett's 2007 affidavit.

81 After Mr Nicholson referred to obligations imposed by the Occupational Health and Safety Act, he expressed the view that there were measures available which would have eliminated or controlled the risk of injury from the hazards posed by loose aggregate and sand and the sloping concrete in the yard. The basis for the opinion that there was such a hazard, was not revealed. Clearly, it rested on neither an inspection of the site, nor any testing.

82 The report then turned to consider reasonable precautions which the two defendants could have taken to deal with this hazard, which in Mr Nicholson’s opinion included employing a yard man with suitable cleaning implements to clean the yard after delivery, and/or operation of a loader, or a sweeping machine to be used at ‘regular intervals’; and ensuring that truck drivers wore suitable footwear, warning drivers of the hazard and avoiding the hazard, by cleaning trucks elsewhere. It is convenient to observe immediately that the evidence showed that in 2004, United Concrete cleaned the yard several times a day by use of a loader; that the yard was swept by a sweeping attachment placed on a loader several times a week and that those accessing the yard were required to wear work boots.

116 It was also agreed that the coarse sand delivered to this site, would be ground finer over time, by the trucks which drove across the yard and as the result of the use of the front-end loader. The experts also agreed that a variable surface was more slippery than a uniform one, to walk across. They also agreed that whether there was any risk of slipping, also depended on the footwear being worn.

Mr Thiedeke’s evidence

117 Mr Thiedeke’s evidence was that in 2004, the United Concrete yard was cleaned by front end loader several times a day and that there was a sweeper attachment used on the loader to clean the yard, two or three times a week, but not after every truck delivery. This would appear to have met Mr Nicholson’s original view, expressed in his first report, that there should have been a loader and a mechanical sweeper used to clean the yard in 2004, depending of course on what Mr Nicholson meant by cleaning at ‘regular intervals’. That was not clear on his evidence.

118 It was Mr Thiedike’s view, based on his experience of the yard while at United Concrete for some 6 years, that there was no slipping hazard in the yard and that it was unnecessary for the work involved in brushing trucks off before they left the yard, to have been otherwise arranged, in order to ensure safety. Nevertheless, he agreed in cross examination that either of the precautions proposed by Mr Nicholson, which in his view would have addressed any slipping hazard, would have been possible to implement, although Mr Thiedeke did not agree that they were required. The first, use of a sweeper, was in fact in use several times a week. The second, brushing the sand off away from the yard, near the exit, in Mr Thiedeke's view would have been possible, albeit not desirable, given the environmental obligations falling on United Concrete to ensure that sand did not escape from the site.

119 On the evidence of Mr Thiedeke, United Concrete employed some 15 employees and they and others like Mr Willett, who came to the site for various reasons, all had to walk on the yard while working there. Up to 12 loads of material a day were delivered to the yard. All those who worked at this site were required to wear work boots and they all did so, apart from one employee, the office manager, a lady who wore closed in shoes. To Mr Thiedeke’s knowledge, there had been no other accidents, injuries or complaints about slipperiness in the yard during the time he was employed there, some 6 years before and after Mr Willett’s injury.

120 Mr Thiedeke explained that safety at the site was his responsibility. He had undertaken courses in safety and was a member of the site safety committee, although his knowledge of the nature of the obligations imposed by the Occupational Health and Safety Act was plainly imperfect. He explained that the risk assessments undertaken in relation to the yard were only informal. To his knowledge, no external experts had been engaged to assess any risk of slipping there. Mr Thiedeke however himself walked across the yard several times each day and he had never found it slippery. His view, based on his own experience and the fact that the only problem which had ever arisen was that involving Mr Willett, was that there was no risk of slipping in the yard.

121 Mr Thiedeke explained that the yard was kept clean in the way in which he described, in order to ensure that United Concrete met its environmental obligations, which required it to ensure that no material escaped from the yard. He did not regard what was done in that respect as being directed to ensuring safety. In his view, there was no safety risk.

Was the existence of the hazard established?

122 Of itself, the fact that the work of brushing sand off the back of a truck could have been performed in some way other than it was, is not a basis upon which the plaintiff can make out his case. (See s 5C(b) of the Civil Liability Act). What must be shown is that there was a safety risk or hazard; that it was one which was known, or ought to have been known; that it was not insignificant and that a reasonable person would have taken precautions against that risk.

123 Before dealing further with the evidence, it is convenient to observe that in Penrith Rugby League Club, reference was made to what was observed by Fitzgerald JA in Rasic v Cruz at [43]:

124 Given Mr Thiedeke’s evidence that the risk of slipping identified by Mr Nicholson, had never been identified as a risk and had never manifested itself at this yard, when considered together with Mr Underwood's evidence as to his experience in industry, this note of caution needs, in this case, to be kept in mind.

125 It was the plaintiff’s case that there was a duty to ensure safety in the yard imposed on United Concrete by the Occupational Health and Safety Act and the Regulations. Failing to conduct formal risk assessments and safety audits had resulted in a risk which ought to have been known, not being identified, with the result, Mr Willet's injury when the hazard posed by the sand and aggregate in the yard materialised in 2004. While no breach of statutory duty was alleged, the failure to conduct formal risk assessments and safety audits was pleaded. It followed that negligence had been established.

126 It must be observed that while such failures were pleaded, they could not of themselves establish the existence of the risk in question. That was sought to be established by the expert evidence called from Mr Nicholson.

127 The experts had each inspected the place at which the accident occurred in 2009, some five years after the accident, at a time when the site was no longer operated by United Concrete. The plaintiff’s expert Mr Nicholson had also seen the workplace in 2007, but only from the street, at a point where he could not see the place where the accident had occurred. The experts had conferred in order to identify what they disagreed about, with almost no success. In their evidence, however, their disagreements were somewhat resolved and the difficulties with the plaintiff’s case was revealed.

128 The place of the accident was at a yard with a concrete floor, sloping at 3 degrees, where trucks came to deposit loads of sand and aggregate 10 to 12 times a day. Mr Thiedeke confirmed that in 2004, the yard was configured in a similar way to that which the experts saw in 2009. In 2004 the concrete had lain on the yard for quite a number of years and was worn by the activity which took place there. There was no doubt that by 2009 it was more worn, by then having been affected by water, but nothing much seems to turn on that, because the slipping hazard was not claimed to have arisen from the presence of worn concrete.

129 There was no evidence as to how the yard was cleaned in 2009. Mr Thiedeke explained that in 2004 sand and aggregate was dumped at the yard by truck in open bins, then removed by front-end loader and taken elsewhere in the plant. Throughout the day, sand and aggregate escaped from where it was stored in the open bins and was deposited on the concrete floor of the yard. This escaped material was regularly cleaned up throughout each day by use of a front-end loader. The front-end loader could not pick up all of the sand and aggregate from the ground. Every two or three days, the concrete yard was also swept clean by use of a brush attachment on the loader.

130 It was Mr Willett’s evidence that on the day that he was injured, there was more sand and aggregate on the ground, than when he visited the site with Mr Nicholson in 2009. As was submitted for Mr Willett ‘there was clear evidence of significant quantities of sand (and some aggregate) in the vicinity’.

131 From Mr Willett’s evidence, that of Mr Thiedeke and the photographs taken by the experts, there can be no question that the sand and aggregate lying on the ground when Mr Willett was there in 2004, was obvious. While Mr Willett claims that he did not see what he slipped on until after he fell, it was apparent that nothing obstructed Mr Willett’s view of the yard, either when he entered, or when he got out of his truck. What, on his evidence, he could not see, was what was lying on the ground, on the other side of the draw bar, when he stepped across it, but after he fell, he saw both sand and aggregate underfoot.

132 It was the plaintiff’s case that Mr Willett could not have stepped onto any sand which had fallen there, when he brushed off the back of the tipper and the drawbar, given where the airlines lay at the back of the truck and on the draw bar. That was both Mr Willett’s evidence and that of Mr Nicholson. It follows that on the case advanced, this sand cannot have been what Mr Willett slipped on, it can only have been what was generally lying on the ground, after having escaped from the bins, or been brushed to the ground from another truck, or what had otherwise been spread around by the movement of trucks, loaders, people, weather and the like.

133 On Mr Nicholson’s assessment, a loader would remove some 80% of what lay on the ground. In 2004, this occurred several times a day. More was removed, when some three times a week, the sweeper attachment was used. On the evidence, when the accident occurred in 2004, the yard could not have recently been swept clean, by sweeper or loader, given Mr Willett’s evidence as to the amount of the sand and aggregate which he then saw lying there.

134 Given what they each saw at the yard in 2009, Mr Nicholson was of the view that the sand on the concrete floor presented a risk and Mr Underwood, that it did not. Mr Underwood saw even less sand and aggregate underfoot than Mr Nicholson. Neither of those opinions was based on scientific testing of the coefficient of friction between what was found lying on the concrete where the accident occurred and work boots of the kind worn by Mr Willett and others who accessed the yard. There was no question that such testing could have been done. Mr Nicholson was qualified and experienced in such testing and could have undertaken it. He even had a work boot with him, but conducted no such test. Nor did Mr Underwood. He, however, was wearing such a boot and tested whether it would skid on what he found on the ground. It did not. Mr Nicholson did not attempt such an exercise.

135 Mr Nicholson’s evidence was that a coefficient of friction of less than 0.45 presented a risk to a pedestrian walking across the yard. On the measurement which he did undertake, inadequate as that test undoubtedly was, the coefficient which he found ranged from 0.30 to 0.45. On his own assessment, if the place where Mr Willett stepped had a coefficient of 0.45, it would have been safe. That it did not have such a coefficient was not established, firstly because Mr Nicholson’s test was directed only to a fine layer of sand on the ground, that being what he understood Mr Willett had slipped on. Mr Willett’s evidence was that there was more sand underfoot in 2004 than was there in 2009. More sand would have been less slippery. Secondly, on Mr Willett’s evidence, there was both sand and aggregate underfoot when he slipped. The presence of aggregate would also have reduced the risk of slipping. Mr Nicholson conducted no tests as to the coefficient of friction presented by both sand and aggregate. Thirdly, Mr Willett was wearing a work boot. That, too, would have reduced any risk of slipping, but to what degree, is not known, because there was no testing undertaken in the context of a work boot.

136 Finally, it must be considered that the test which was conducted by Mr Nicholson was not directed to the action undertaken by Mr Willett, when he stepped across the draw bar. Mr Nicholson agreed that the action of stepping across the draw bar was different to the action of walking across the yard. The action of swinging the leg over, while standing facing the rear of the truck, no doubt would have been another action entirely, but not one put to Mr Nicholson, presumably because it only arose as a possibility in later submissions.

137 As Mr Nicholson explained, the co-efficient of friction which he found was established by rubbing a slider across the sand which he found in 2009 at a spot which he thought replicated the conditions underfoot where Mr Willett fell. Mr Nicholson acknowledged that this was a simple test, not undertaken in accordance with the Australian Standard. Mr Underwood conducted no such test, Mr Nicholson not having revealed this testing until shortly before the hearing, when the joint statement was prepared. Mr Underwood thought the test unreliable.

138 That it was an unreliable basis upon which any conclusions could rest, was confirmed by Mr Nicholson in cross-examination. What the coefficient of friction between the sand and aggregate which Mr Willett described to have been underfoot and the work boots which Mr Willett was wearing, was not established. It was not shown that the coefficient was unsafe, that is, less than the 0.45 coefficient which Mr Nicholson postulated as being safe.

139 The only test Mr Underwood undertook was a subjective test, namely trying to make his foot skid, while wearing safety boots. He could not do so, which confirmed him in his opinion that the yard was not slippery. That accorded with Mr Thiedeke’s evidence as to United Concrete’s experience of the yard and Mr Underwood’s experience in industry.

140 Plainly, the expert evidence led in this case was of more limited assistance in a resolution of this controversy than it would have been, had other available tests been undertaken.

141 The experts agreed that a fine layer of sand on concrete could be slippery and that a variable surface could also increase slipperiness, if walking across the yard. They also agreed that more sand on the ground, would have made this concrete surface less slippery, as would the presence of aggregate.

142 Commonsense accords with the expert evidence that a fine layer of sand on a concrete surface can pose a slipping hazard and that whether there is in fact a risk, depends on the footwear being worn by a person who accesses that surface, whether there is anything else underfoot and what action the person is taking on that surface.

143 There was no evidence, however, that it was a fine layer of sand which was underfoot when Mr Willett fell and no evidence that the coefficient of friction between the surface on which Mr Willett said he slipped, contaminated as it was by a substantial amount of sand and aggregate, was slippery, given the work boots which he was wearing.

144 While it follows from the evidence that in theory, there might have been a potential risk of slipping present at this site, it was most likely to exist, after this yard was swept clean of sand and aggregate, by the sweeper attachment, several times a week. That there was then a risk that a fine slippery layer of sand might develop, was theoretically a possibility. Whether it ever materialised, depended on the coarse sand delivered to this site spreading and being ground fine, by the movement of vehicles across the sand, without sufficient aggregate being also present, to obviate that slipping risk for those walking across the yard while wearing safety boots, before more coarse sand covered the fine sand so created. This scenario seems most unlikely to have ever developed, on the evidence. The expert evidence did not address itself to such a situation developing and it was not one consistent with Mr Willet’s evidence as to the state of the yard as he found it, in 2004.

145 That this condition ever existed was not established, or sought to be. That it was not the condition of the ground when Mr Willett fell, was clear on his own evidence.

146 It is in this context that Mr Thiedeke’s evidence that he did not find the yard slippery and that this was United Concrete’s experience in the six years that he had worked there, has to be considered. That evidence may not be ignored.

147 In Makita, itself a slipping case, there was evidence led from an expert as to the slipperiness of the stairs in question. While the expert concluded that the stairs were slippery, on the evidence there, the only other occasion when there had been a slip on those stairs, was one other occasion, quite a number of years beforehand. This was considered by Powell J to 'cast more than a shadow of doubt over any assertion that the stairs were slippery and that the Respondent ought to have taken steps to obviate that risk of injury to its employees arising from that fact' (at [10]). For his part, Heydon J observed that there was a collision between the expert’s evidence that the stairs were slippery and the lay evidence that there had been no problems experienced with slipperiness. At [99], Heydon J observed that resolution of that collision depended on satisfaction as to the validity of the expert’s approach.

148 Plainly, a similar collision here arose between Mr Thiedeke’s evidence and that of Mr Nicholson. Mr Underwood’s impression that there was no risk of slipping in this yard, when work boots were worn, also had to be considered. Like in Makita, the expert evidence led in this case for the plaintiff, was not convincing, for the reasons which I have explained.

149 While the argument put for Mr Willett, that a risk, even a slight one, could not be ignored until there had been catastrophic consequences such as those which befell Mr Willett, has obvious force, of itself, an injury cannot establish that the risk alleged existed, or that it caused the injury.

150 In terms of what the Civil Liability Act requires to be established, the question of whether, in the circumstances existing at the United Concrete yard in 2004, it was foreseeable that there was a risk of slipping and that the precautions in place would not prevent a slip, must be answered in the negative.

151 That there was a risk of slipping, given the sand and aggregate on the ground, as described by Mr Willett, was not established by the expert evidence, such as it was. Nor was it shown that the precautions taken by United Concrete, namely, of removing the bulk of the sand and aggregate off the yard several times a day by front end loader, sweeping it several times a week with a mechanical sweeping attachment and requiring those who accessed the yard to wear safety boots, would not prevent someone working in the yards from slipping. Nor was it shown that a reasonable person would have taken additional precautions. That additional precautions could have been taken, as I have noted earlier, of itself takes the matters which must be established under s 5B and 5C of the Civil Procedure Act no further.

152 In coming to a conclusion on whether a reasonable person would have taken additional precautions, account must be taken of:

(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,

153 While undoubtedly a serious injury can result from someone slipping at a workplace such as this, the probability that someone would slip in this yard, if additional precautions were not taken, must be assessed. In my view, on the evidence in this case, that probability can only be assessed as being extraordinarily low and the taking of any additional precautions in the circumstances, unnecessary.

154 That was shown by the evidence that no one other than Mr Willett ever slipped in this yard or even complained that the yard was slippery, the yard being maintained as it was, during the six years that Mr Thiedeke had worked at United Concrete. Mr Thiedeke had himself crossed the yard thousands of times, about six times a day, on up to six days per week. United Concrete employed up to 15 of its own employees, who accessed the yard, including a yardman. Up to 10-12 trucks per day accessed the yard, with drivers being required to brush off their trucks as Mr Willett had done. There was no suggestion that there had been any other problems, complaints or accidents caused by a risk of slipping which existed in this yard, either before or after Mr Willett fell, not even by the one employee who did not wear work boots, when walking across the yard, but closed in walking shoes (the office manager).

155 Mr Underwood’s experience in 2009 was similar to that described by Mr Thiedeke. He could not make his boot skid. Mr Underwood’s evidence was that the state of the yard was similar to that of other yards of that kind, in his experience. Apart from Mr Willett’s claim that he slipped and Mr Nicholson’s testing, such as it was, which suggested a risk of slipping, given the co-efficient of friction which he identified in connection with the fine layer of sand which he chose to test, the evidence simply did not point to the existence of such a risk. I have explained the difficulty with Mr Willett’s evidence. Mr Nicholson’s evidence as to the coefficient of friction which he measured, in the context where he conducted no testing of the work boots which were worn, was inadequate and cannot provide a foundation for the conclusions urged for Mr Willett.

156 It follows that the conclusion that it was established, on the balance of probabilities, that it was foreseeable in 2004 that there was a risk of slipping in this yard, or that such a risk was not insignificant, as s 5B of the Civil Procedure Act requires, and that in the reasonable circumstances, a person would have taken the precautions urged for Mr Willett, is not open.

Other failures

157 The plaintiff alleged other failures, which should be mentioned shortly. They including a failure to warn of the presence of loose sand and aggregate. In order to establish negligence, a causal connection must be established between the claimed failure and the harm complained about. On Mr Willett’s evidence and that of the photographs in evidence, there can be no question that the sand and aggregate lying on the ground of the yard was obvious. This was not a case of a slip and fall caused by some hidden danger. On Mr Nicholson's approach, it was not the aggregate which posed any risk of slipping, its presence reduced any risk posed by sand. In the circumstances, for the reasons which I have explained in relation to the risk of slipping on sand, this allegation simply cannot make out Mr Willett’s case.

158 There was an alleged failure to direct Mr Willett not to alight from the truck in the yard and to require him to brush sand off the truck elsewhere. This complaint went to the system of work which it was claimed the defendants ought to have had in place. In the absence of evidence which established the risk complained of, this allegation cannot provide a basis for Mr Willett’s claim, as I have explained.

159 There was also an alleged failure to warn that the yard had a slope of 5 degrees. The experts agreed that the slope was only 3 degrees. The evidence did not suggest that this contributed to any risk of slipping in the yard.

160 There were allegations of failure to carry out risk assessments; to identify, eliminate and control hazards posing risk; and to have a risk assessment review process in place. These allegations also each depended on the evidence establishing that there was a risk and that it would have been identified, had a formal risk assessment or review process, of the kind the plaintiff claimed ought to have been conducted, been in place. The evidence simply did not establish that such steps would have identified the claimed risk. Indeed, given that the evidence of the experts did not establish the existence of the claimed risk, it is quite clear that engaging a consultant to undertake such assessments or reviews, as was submitted by the plaintiff to have been necessary, would not have identified the alleged risk.

161 The allegation of a failure to keep the area clean of loose sand and aggregate and using a sweeping machine to sweep the area suffered from an obvious difficulty, it seemed to me. Firstly, on the evidence, it would appear impossible to keep this area entirely clear of sand and aggregate, given that they were being moved around the site by front end loaders, from where they were stored in open bins. Secondly, the yard was swept clean from time to time, as Mr Thiedeke explained, to meet United Concrete’s environmental obligations to ensure that the material did not escape from the site. This appeared to accord with what Mr Nicholson thought necessary, in his first report. Thirdly, on the expert evidence, it was a fine layer of sand which could have posed a risk of slipping at this yard. Whether that was ever a real risk, in the context of those accessing the yard, was not established, given that they were wearing work boots and there were no other reports or complaints or accidents involving slipping, apart from Mr Willett. Further, as I have observed, the presence of a fine layer of sand was more likely to develop immediately after the yard was swept clean, rather than after cleaning by loader, although even then the presence of aggregate would have tended to reduce slipperiness. That more sweeping would have addressed the risk, if it existed, was not established. To the contrary, on the evidence, more frequent sweeping might have increased such a risk materialising.

Conclusion

162 For the reasons given, I have concluded that there was no foreseeable risk of injury of the kind about which Mr Willett complained, nor did he establish that his injuries resulted from the materialisation of that risk.

163 Given the conclusions which I have reached, it is unnecessary to consider all of the other issues addressed by the parties, or to deal with the matters which were reserved, pending a decision on the matters argued.

164 It follows that the plaintiff's claim should be dismissed, as should the cross claims. The parties should confer on the orders to be made and approach, in the event that any question of costs needs to be dealt with.

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Citations

Willett v United Concrete Pty Limited [2009] NSWSC 957

Most Recent Citation

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CITATION:	Willett v United Concrete Pty Limited and Anor [2009] NSWSC 957
HEARING DATE(S):	17 August 2009, 18 August 2009, 19 August 2009, 20 August 2009, 25 August 2009
JUDGMENT DATE :	22 September 2009
JUDGMENT OF:	Schmidt J
CATCHWORDS:	TORTS - negligence - proof of negligence - workplace accident - onus of proof - what was the nature of duties owed - how injury occurred not established - existence of hazard not established - no foreseeable risk - claim dismissed - cross claims dismissed - EVIDENCE - concurrent evidence - challenge to expert evidence - risk of slipping - collision between expert and other evidence considered
LEGISLATION CITED:	Civil Liability Act 2002 Civil Procedure Act 2005 Law Reform (Miscellaneous Provisions) Act 1946 Occupational Health and Safety Act 2000 Uniform Civil Procedure Rules Workers Compensation Act 1987
CATEGORY:	Principal judgment
CASES CITED:	Barboso v Di Meglio [1999] NSWCA 307 Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 Conceicao v Visypak Operations Pty Ltd [2008] NSWCA 307 DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 Penrith Rugby League Club Ltd trading as Cardiff Panthers v Elliot [2009] NSWCA 247 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) 172 IR 453 Rasic v Cruz [2000] NSWCA 66 Rhoden v Wingate [2002] NSWCA 165 S v State of New South Wales [2009] NSWCA 164 Spedding v Nobles [2007] NSWCA 29; (2007) 69 NSWLR 100 Sydneywide Distributors v Red Bull Australia Pty Limited [2002] FCAFC 157; (2002) 55 IPR 354 Thompson v Woolworths (QLD) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 TNT Australia Pty Limited V Christie & 2 Ors; Crown Equipment Pty Limited v Christie & 2 Ors; Manpower Services (Aust) Pty Limited v Christie & 2 Ors [2003] NSWCA 47 Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818 Wilkinson v BP Australia Pty Ltd [2008] QSC 171 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
PARTIES:	Plaintiff - David Willett First Defendant - United Concrete Pty Limited Second Defendant - PF Transport Pty Limited
FILE NUMBER(S):	SC 20223/07
COUNSEL:	Plaintiff - Dr AS Morrison SC with Mr WJ Nicholson of counsel First Defendant - Mr RA Cavanagh of counsel Second Defendant - Mr D Kelly of counsel
SOLICITORS:	Plaintiff - Marshall & Gibson Lawyers First Defendant - Gillis Delaney Lawyers Second Defendant - Moray & Agnew