Slater v Thompson [2003] NSWCA 220

New South Wales Court of Appeal

CITATION : Slater v Thompson [2003] NSWCA 220 HEARING DATE(S) : 04/08/2003 JUDGMENT DATE : 4 August 2003

JUDGMENT OF : Sheller JA at 28, 30; Beazley JA at 29; Foster AJA at 1 DECISION : Refer para. 32.

CATCHWORDS : Appellant injured when she fell to the ground from steps which were fixed to the side of a cotton module builder machine. Melissa Slater - Appellant PARTIES : Janice A Thompson - First Respondent, Douglas Thompson - Second Respondent QBE Insusrance (Aust) Ltd - Third Respondent FILE NUMBER(S) : CA CA 40384/02 COUNSEL : Mr P J Doherty - Appellant Mr G. Petty SC / H. Halligan - Respondents Garret Walmsley Madgwick - Appellant SOLICITORS : Sparke Helmore - First & Second Respondents PriceWaterhouse Coopers Legal - Third Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 3811/99 FILE NUMBER(S) : LOWER COURT Puckeridge DCJ JUDICIAL OFFICER :

- 8 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40384/02 SHELLER JA BEAZLEY JA FOSTER AJA

MONDAY, 4 AUGUST 2003 Melissa SLATER v Janice THOMPSON & ANOR Judgment 1 FOSTER AJA: This is an appeal from a decision of a District Court Judge, given on 9 April 2002, by which the action of the present appellant, Mrs Slater, against the present respondents, Mr and Mrs Thompson, was dismissed with costs. 2 The appellant, on 20 May 1996, was injured when she fell to the ground from steps which were fixed to the side of a machine, known as a cotton module builder, which was used by the respondents in their cotton farming enterprise in the area of Boggabri, New South Wales. 3 The appellant was then eighteen years of age and of limited education. She had been employed by the respondents since 16 April 1996 to operate the machine, which was one of a number of such machines used in the cotton harvest that was then taking place on the respondents' property. She was employed as a casual worker in this situation. 4 There are a number of photographs of the machine which were placed in evidence before the learned trial judge and appear in the appeal book in these proceedings. In these circumstances a short description of the machine will suffice. 5 It was designed to pack harvested cotton into suitable modules, by the use of hydraulic pressure. The operator of the machine sat at controls on an operating platform which was about three metres above ground level. Access to this platform was by means of a metal stairway which, as I have said, was fixed to the side of the machine. 6 There were six metal steps, each with a tread depth of eighteen millimetres from the back of the tread to the point at which the forward edge of the tread curved downwards, this curvature being part of the design of the steps. 7 The steps were made of steel, the expert evidence in the case and the photographs indicating that they were close to vertical, with each step being almost vertically one under the other. Each step was embossed with a chequer-plate design, which was intended to assist in slip resistance. 8 There were issues which were explored at considerable length in the case before his Honour and have been explored before this court, as to whether the steps had been rendered slippery by the presence of oil on their surface. Irrespective of the presence of oil, in my opinion, they quite clearly presented a slipping hazard if care was not taken in their ascent and descent by persons using them. 9 The steps, as so designed, had only one handrail. This was situated on the left from the point of view of the person facing towards the machine and ascending the steps. The absence of a second handrail meant that there was, relevantly, non-compliance with the relevant Australian Standard. Moreover, the rail that was provided also failed to comply with that standard, being too high from the plane of the steps. 10 At the edge of the platform on the left hand side from the point of view of a person looking outwards from the top of the steps there was a guard rail with a vertical component, a metal pipe apparently, coming down to a position closely adjacent to the commencement of the steps. 11 Leaving aside completely the issue as to whether there was oil on the steps, the steps in themselves presented an awkward situation for anyone on the platform about to descend them. The accepted safe method of descent, of course, required that a person seeking to descend would go down the steps backwards facing into the machine and using the guard rail on the left as a necessary handhold. Such a person could, also, perhaps as a matter of greater precaution, use the style of the steps, on the right, as an additional handhold. 12 The conformation of the hand railing and the associated guard railings at the top of the steps would have produced some difficulty for a person seeking to step backwards onto the top step, as the initial movement in descent of these stairs. This point is made in the expert evidence in the case. It is also, in my view, a matter of common sense. The difference in heights and in the conformation of the guard rail and the handrail would in themselves present an awkward situation and one requiring evaluation on the part of somebody about to use them. 13 The guard rail and the handrail, of course, could provide, in themselves, some handhold from the point of view of a person about to descend backwards, but a necessary decision would have to be made as to how these would be utilised and in circumstances of some haste or lack of experience in dealing with these matters, this could present a significant problem. 14 In fact, the appellant did not choose to go backwards onto the first step. She moved onto it whilst she was facing forward. The mode which she adopted in leaving the platform and in coming to the first step is not easy to determine on the evidence. A deal of evidence was given by her in chief and also in cross-examination by the other parties. The evidence is somewhat confused but it is apparent that she, in the situation in which she found herself, determined that it was better to proceed by looking forward and stepping forward than taking a backward step, as the first move in her descent. 15 There was some concern as to his Honour's findings in relation to this aspect of the case. Although his Honour does not couch this part of his judgment in the language of finding I, for my part, think it reasonable to assume that he found that the plaintiff approached the descent of these steps in the way that she had said she had done in her evidence. His Honour said at p 222 of the appeal book: "The plaintiff said that she did take hold of a railing on the side of the steps which was on her right as she went to step off the platform. That railing is depicted in photograph 2 of Exhibit A. She said she put her foot down to the next step still facing outwards and in her words 'pivoted around'. She said she put her left foot onto the first step as far as she can remember and turned around to grab a vertical rail on the platform in a position she indicated with an X marked on photograph 2. She said she didn't actually grab the rail as intended and she slipped off the ladder. The X mark is to be seen in the second photograph of Exhibit A. It clearly indicates the vertical component of the guard rail to which I have made reference." 16 On any way of looking at the facts as to the mode of descent adopted by the plaintiff, it is plain that the approach was dangerous, as it necessarily involved her in having no effective handhold whilst she was in the process of "pivoting", that is making a sharp and sudden rotating movement with her foot on the top step. She gave evidence, that was accepted by his Honour, that she always adopted this approach to descend this stairway. 17 It is clear, then, that she performed this particular movement a significantly large number of times during the course of her employment without mishap. However, this does not detract in any way from what I regard as a necessary finding, namely that it was an intrinsically dangerous manoeuvre. 18 There was a clear issue as to whether the respondents, as her employers, should have instructed her not to adopt this method of descent. 19 His Honour took the view that the respondents were required, as a result of the employer's duty of care, to take this course. He said in his judgment that there was a foreseeable risk of injury from slipping to persons using the ladder but that: "I don't consider that the non-delegable duty of the defendants extended to advising the plaintiff how to descend the steps. She, the plaintiff, knew the steps were slippery and of the need to take care. She chose a particular method of descending the steps. The plaintiff agreed there was nothing to prevent her from turning on the top of the platform and descending the steps." 20 His Honour went on to say that there had been no other incidents to alert the defendants to the particular danger of slipping on these steps and that they were entitled to assume that the machine which had been supplied to them, as built, was fit for the purpose for which it was supplied, and constructed according to the relevant Australian Standard. He went on to say: "I don't consider that the defendants failed to act reasonably in not instructing the plaintiff how to descend the ladder. As Mr Thompson said, operators come down the ladder their own way." His Honour continued: "I consider the plaintiff, being aware of the slippery nature of the steps, chose her own method of descending from the platform to the ground. The method which she chose was a method whereby slipping was a greater possibility and did in fact occur as a result of the method she chose in descending the stairs and was not caused through any breach of duty of care owed by the defendants to the plaintiff." Accordingly, he found in favour of the respondents. 21 With respect, I consider that his Honour was in error. The employer's duty of care required that the respondents, if aware that this young employee was adopting this dangerous method of descent, instructed her not to do so. I do not accept the submission that, if such an instruction had been given, it may not have been obeyed. I think the thrust of the evidence indicates that this young employee, if told to adopt a different, less dangerous method of descent would have obeyed the instruction. 22 The question of whether the respondents were aware that the appellant was adopting this method of descent raises a question as to whether this case should be returned for retrial, so that that issue can be determined. 23 I have found this question somewhat troubling, but I have come to the conclusion that it is appropriate for a decision to be made at this point of time. There is abundant evidence in the case that the plaintiff descended these steps on a number of occasions when she could have been observed by one or both of the respondents, when they were positioned in close proximity to the foot of the stairs. The opportunities to observe the appellant were, in my view, sufficiently numerous to lead reasonably to the conclusion that the respondents must have been aware of what she was doing. 24 The evidence of Mr Thompson was to the effect that he could not recall so observing the appellant. I have come to the conclusion, however, even if he has no recollection, the opportunities for the observation to have been made require this finding. In those circumstances I have come to the conclusion that negligence on the part of the respondents is established. 25 The question of contributory negligence has been raised. Again it has been submitted this is a matter that should be determined on re-hearing. 26 In my view, having regard to the age and obvious lack of education of the appellant, and to the difficult situation in which she found herself at the top of the steps, it would not reasonably be open to find her guilty of contributory negligence, in adopting her particular mode of descent particularly in circumstances where she had not been given any instructions as to the danger involved in pivoting on the top step. In my view, it is appropriate that a finding of absence of contributory negligence be now made. 27 In these circumstances I propose that orders be made to the effect that the appeal be upheld, that liability be found in the respondents in favour of the appellant and order the matter be returned to the court below for the assessment of damages. I would also propose that the respondents pay the appellant's costs of the appeal. 28 SHELLER JA: I agree. 29 BEAZLEY JA: I agree. 30 SHELLER JA: Before the court's formal orders are made I wish to say this: the blue appeal book filed on behalf of the appellant in this appeal contained a great deal of material, such as medical reports which were not relevant to the matters in issue in the appeal. In this way expense was incurred for no purpose. In the interests of saving costs, solicitors are duty bound to ensure that appeal books do not contain material irrelevant to the appeal. That has happened in this case. 31 When this was pointed out to counsel no excuse was advanced for this lapse. Accordingly, the appellant's solicitors should not have the costs of the blue appeal book. 32 The orders of the court will be: