New South Wales Court of Appeal CITATION: BALPAR PTY LTD v HAMROL [2007] NSWCA 189 HEARING DATE(S): 25/07/2007 JUDGMENT DATE: 25 July 2007 JUDGMENT OF: Giles JA at 16; McColl JA at 17; Handley AJA at 1 DECISION: Appeal dismissed with costs CATCHWORDS: NEGLIGENCE - Occupier's Liability - no question of principle. PARTIES: A: Balpar Pty Limited t/as The Carrington Hotel Katoomba R: Peter Edward Hamrol FILE NUMBER(S): CA 40451/2006 COUNSEL: A: J. Sleight and C. Mulvey R: L.T. Grey SOLICITORS: A: Boyd-Boland Law R: McClellands LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 4872/2004 LOWER COURT JUDICIAL OFFICER: Quirk DCJ LOWER COURT DATE OF DECISION: 23/06/2006 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40451/06 GILES JA McCOLL JA HANDLEY AJA WEDNESDAY 25 JULY 2007 BALPAR PTY LIMITED Trading as THE CARRINGTON HOTEL, KATOOMBA v PETER EDWARD HAMROL Judgment 1 HANDLEY AJA: This is an appeal by the defendant from the judgment of her Honour Quirk DCJ delivered on 23 June 2006. Her Honour's judgment is clear and well-reasoned after being reserved overnight at the conclusion of counsels' addresses. 2 It was an occupier's liability case and the appeal is confined to the question of liability. 3 The plaintiff was engaged as an owner driver of a truck in the delivery of goods to the Carrington Hotel at Katoomba. He had to push a loaded trolley weighing some twenty-five kilos with cartons weighing about 135 kilos up a ramp to a cellar door at the hotel. 4 The ramp, which was described by the Judge as makeshift, had been constructed by the appellant's cellarman from a CHEP pallet propped up on a mound of earth against the cellar door, to which he later screwed a sheet of plywood. The ramp was exposed to the weather and would become wet if it rained. It was about two metres long and had a slope of five and a half degrees from the horizontal. 5 The principal issue on liability at the trial was the existence of a breach of the occupier's duty of care to entrants such as the plaintiff. 6 On the day in question the plaintiff had completed seven deliveries to the cellar without mishap. When he emerged from the cellar door at a walking pace after the seventh delivery to return to his truck for the next load, he slipped at the top of the ramp and fell heavily on his buttocks. 7 He was wearing hiking boots with rubber soles and the judge found that they were not in bad condition. The plywood had not been painted or treated with an abrasive coating. It had been raining for about twenty-four hours immediately before the accident. There was lay evidence from Mr Linstid, the appellant's cellarman, and from the plaintiff's son, which the judge accepted, that the ramp became slippery when wet. The plywood cover had been in place for about ten months before the accident. 8 There was expert evidence from Dr Olsen, who was qualified for the plaintiff, and Dr Cooke, who was qualified for the defendant. Dr Olsen said in his report that timber which had been wet for twenty-four hours or more had a tendency to develop a surface slime and once the timber was saturated, further rain would create a film on its surface. He concluded that after twenty-four hours of rain, the ramp would be slippery for a person wearing the footwear worn by the plaintiff. 9 Dr Cooke's report did not challenge these opinions. He conceded in cross-examination that plywood exposed to wet weather for some time could develop a slimy surface and become slippery. He also conceded that the condition of the surface could vary from spot to spot because traffic could remove parts of the slime. He further conceded that dirt tracked onto the ramp from the car park could contribute to its slipperiness. 10 The Judge found that the plaintiff had not failed to take reasonable care for his own safety and that the defendant was in breach of its duty of care in failing to provide access to the cellar which was reasonably safe for persons such as the plaintiff. 11 The principal challenges to this judgment on the part of the appellant were directed to the undisputed evidence that this was the first fall that had occurred since the ramp had been covered with the plywood and there had been considerable use of the ramp in the meantime. Indeed, as I have said, the plaintiff negotiated it successfully that day seven times before his accident and three times afterwards. This evidence, although undisputed, cannot in itself be decisive, particularly in view of the evidence that it had been raining for twenty-four hours before the accident, and the absence of any evidence as to the conditions on earlier occasions when the ramp was used without incident. 12 A further challenge taken by Mr Sleight to the judgment was based on what was asserted to be the judge's error in admitting parts of Dr Olsen's report. It was submitted that the passages objected to consisted of unsubstantiated assertions which were inadmissible. Her Honour concluded that the statements were not unsubstantiated assertions but were supported by reasoning in the report. With respect, there is no substance in this objection. 13 It was also submitted that there was no evidence that the ramp appeared to be slippery to the naked eye and no one gave evidence that it had a slippery appearance. Again, in my judgment, there is no substance in this submission. The plaintiff said he slipped and his evidence was accepted by the judge. There was in addition evidence from both Mr Linstid and the plaintiff's son that the ramp could become slippery, and this was amply supported by expert evidence. 14 Her Honour's judgment was therefore supported by lay and expert evidence which she was entitled to accept. Although she did not see and hear Dr Olsen in the witness box, she did hear from the witness box the evidence of the plaintiff, his son and Mr Linstid, and she was entitled to make the findings that she did. They necessarily depended in part upon her assessment of the credibility of the witnesses. Likewise, she refused to accept parts of Dr Cooke's evidence, but he had been cross-examined and the findings were well open to her Honour. 15 The appellant has not brought this case within any of the exceptions to the Abalos principle and in these circumstances I would propose that the appeal be dismissed with costs. 16 GILES JA: I agree. 17 MCCOLL JA: I also agree. 18 GILES JA: They will therefore be the orders of the court. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.