New South Wales Supreme Court CITATION : Ronald Charles Hamilton v Blue Circle Southern Cement Ltd [2006] NSWSC 147 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 07/03/2005 - 09/03/2005, 29/08/2005 - 31/08/2005 JUDGMENT DATE : 17 March 2006 JUDGMENT OF : Howie J at 1 DECISION : Judgment for the defendant. CATCHWORDS : Personal injury claim - Industrial accident - slip case - no matter of principle. LEGISLATION CITED : Civil Liability Act 2002 - ss 5F(1), 5G Supreme Court Rules - Schedule K CASES CITED : Kingshott v Goodyear Tyre and Rubber (No. 2) (1987) NSWLR 707 PARTIES : Ronald Charles Hamilton v Blue Circle Southern Cement Ltd FILE NUMBER(S) : SC 20192/2003 COUNSEL : D. Campbell with A. Capelin - Plaintiff M.T. McCulloch with N. Sharp - Defendant SOLICITORS : Stacks/Goudkamp - Plaintiff Griffin Hilditch Lawyers - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HOWIE J FRIDAY 17 MARCH 2006 20192/2003 RONALD CHARLES HAMILTON v BLUE CIRCLE SOUTHERN CEMENT LTD JUDGMENT 1 HIS HONOUR: This is a claim for damages arising from injuries suffered by the plaintiff during the course of his employment. The only issue before the Court is the liability of the defendant as it is agreed that, if the plaintiff has made out his case, the amount of damages, subject to discount by reason of contributory negligence, should be $587,500. 2 On 31 July 2001 Hymix Australia Pty Limited employed the plaintiff as a truck driver. At 2.30 am that day the plaintiff attended the premises owned and operated by the defendant in order to pickup a load of dry cement. The plaintiff's version of the facts is as follows. He parked his truck on a weighbridge in a bay at the cement works, alighted from it and loaded cement into the truck. He then proceeded to walk back along the weighbridge beside his truck intending to obtain a weight ticket. It was as he walked along the kerb of the weighbridge that he says he slipped and fell, thereby suffering injuries, loss and damage. 3 The statement of claim asserts that the plaintiff's injuries, loss and damage were caused by the negligence and breach of duty of the defendant. The particulars of negligence are as follows: (a) failing to ensure that the area where the plaintiff was required to walk was kept clean; (b) failing to take steps to eliminate the combination of cement dust and moisture resulting in an icy slippery surface; (c) failing to provide a dedicated safe walkway between the truck loading area and the weighbridge ticket machine; (d) failing to cover the surface of the area with appropriate non-slip material; (e) failing to warn the plaintiff of the slippery nature of the surface; (f) failing to have any or any adequate persons on duty to ensure that the walking area was kept free of ice and accumulated cement dust and moisture; (g) devising a system requiring truck drivers such as the plaintiff to walk across a dangerous or potentially dangerous area in order to obtain a weighbridge ticket; (h) allowing the surface of the area where the plaintiff was required to walk to become smooth and slippery; (i) failing to provide a safe means of access; (j) failing to ensure the premises were safe and without risks to health; (k) failing to provide adequate lighting; (l) failing to provide a rail on or near the walkway used by the plaintiff. 4 The plaintiff asserts that as a result of the fall he suffered a head injury, an injury to his cervical spine, lower back injury, shock and sequelae and a number of continuing disabilities. These damages are particularised in the plaintiff's statement of particulars, along with particulars of continuing disability, out of pocket expenses, claims for economic loss and a claim for assistance. 5 The defendant takes issue with the plaintiff's version of the facts and denies that it breached any duty of care it owed to the plaintiff. In particular, the defendant asserts that the plaintiff did not fall in the manner that he suggests. The defendant submits that it is more probable that the plaintiff simply over-stepped and missed his footing on the edge of a kerb, thereby tripping and slipping. The defendant submits that, even if the plaintiff fell in the manner he suggested, the fall was not the result of the defendant's negligence. In particular, the defendant submits that there is no evidence that there was ice or gravelly particles or both on the walkway, or that the area where the plaintiff fell was inadequately lit. The defendant submits that, even if there were ice or gravelly particles or both on the walkway, or the area where the plaintiff fell was inadequately lit, the plaintiff has failed to prove that reasonably practicable measures were available to eliminate these risks or that the failure to implement such measures caused the plaintiff's injuries. The defendant submits further that any risk which did exist was an obvious risk, with the result that the defendant is presumed to have been aware of that risk unless he proves the contrary, pursuant to s 5G of the Civil Liability Act 2002. The plaintiff's evidence 6 The plaintiff gave evidence that he had been employed as a semi trailer truck driver with Hymix since 1987. Around the time of the accident, he was working six days a week, usually in twelve hour shifts. He said that during each shift he would do approximately two to three runs from the Hymix depot at Kulnura to Berrima and various other places to load metal or fly ash. His roster at the time had him starting each shift at midnight from Kulnura, and arriving at Berrima by about 2.30am. He said that he had driven this trip on hundreds of occasions. 7 On the defendant's premises there were three bays into which a truck could be driven in order to obtain the cement powder. Each bay consisted of a weighbridge under a hopper in which the cement powder was stored. Around each of the weighbridges was a raised walkway area made up of a cement kerb holding a metal plate. On each side of the weighbridge was a set of metal stairs rising from the walkway to a platform above the truck from which the hopper could be operated. The distance from the bottom of the stairs to the end of the walkway was 4.64 metres. At the end of the walkway was a curved cement nose slightly lower than the end of the metal plate. At this point the kerb is 290mm above the level of the roadway. To the left of the building housing the hoppers and weighbridges was an office from which the weighbridge ticket was obtained. A driver would step off the walkway and cross on the roadway in front of the truck parked in the weighbridge to reach the office. 8 The plaintiff gave evidence about the manner in which he would drive into the Berrima cement plant and load cement into his truck. He described how he would reverse onto the weighbridge, get out of his truck and walk up the stairs and across to a landing. From there he would walk across the top of his tanker and undo the hatch. He would then dial up the amount of cement he needed, and it would take about five minutes for the tanker to be loaded with cement. He would then close the hatch on his tanker, walk back down the stairs and proceed to pickup a weighbridge docket. This docket would record the gross weight of the tanker, the net weight or tare weight having already been recorded as the tanker entered the gate. He would then drive away with the docket. 9 The plaintiff gave evidence about the manner in which he sustained his injury on the 31 July 2001. He said that he had completed filling the tanker with cement, descended the stairs and proceeded to walk beside his vehicle along the elevated walkway beside his truck parked on the weighbridge. He said that, I slipped on the top of the kerb on the flat surface and I went over and I hit my back on the kerb and hit my head. Then I got myself together and there was no one around there. He said that next he went to the weighbridge office to get his docket, walked back to his tanker and climbed into the cabin. 10 The plaintiff marked one of the photos with a cross to indicate where he slipped. Those markings indicate that the plaintiff slipped on a point approximately two thirds of the distance between the end of the metal plate and the concrete nose of the walkway. The distance from the edge of the chequer plate to the edge of the concrete nose is 400mm, and the available walking area is approximately 760mm wide. 11 The plaintiff said that, when he slipped, the lower part of his body, that is below his waist, finished up past the raised walkway and on the roadway at the level of the truck tyres. 12 The plaintiff said the walkway was shiny and glazy. There was some cement dust on the walkway, which the plaintiff said was not unusual. The traction of his work boots on the walkway was not very good, and it was slippery underfoot. However, he said that he did not notice the slipperiness on the walkway when first walking along it and before ascending the stairs. 13 The plaintiff also said that when he was reversing his vehicle into the bay he noticed that while turning the wheel of the car "it was just sliding across, very hard to grip". He said that it was like this very occasionally at the plant during winter. 14 In relation to the lighting in the area, he said that once he had turned the lights off in his vehicle, the only artificial lighting was at the top of the stairs. There were also lights on in the other bays but they were not nearby, and there was one hanging on the wall near the office. He described the light in the area of the walkway as "very poor". He also said the weather on the nights was "very cold and misty". It was accepted that there were no other vehicles at the silo during the entire time that the plaintiff was at the site. 15 In cross-examination the plaintiff said he was not entirely sure which foot it was that slipped. He did not accept the proposition that at the time he slipped he had taken a step off the kerb and it was the foot remaining on the elevated walkway that slipped. He accepted that at the time he slipped his back foot must have been on metal checker plate, based on the size of his foot and the length of his stride. However, later in cross-examination he expressed some uncertainty about this concession. 16 The plaintiff described his fall in the following way: "When I landed, I landed on my back on the kerb. So when I slipped I hit my back presumably on the ground." He said that by back he meant his lower back, and by kerb he meant the nose part of the elevated walkway. He agreed that the sensation he felt was one of his "feet going forward and up and falling back without any support". He said his head fell back and he got whiplash. The plaintiff strongly denied that he slipped because only part of his foot landed on the edge of the kerb and the other part was hanging over the kerb. He said, "No way I overstepped that kerb". 17 The plaintiff also denied that he commenced turning to the left and towards the weighbridge ticket office while stepping onto the kerb. He said he had to walk around his vehicle first. However, he had already given evidence in chief that his vehicle was not positioned such that it prevented him from turning immediately to his left when he reached the end of the elevated walkway. He accepted that he would want to take the most direct route to the weighbridge ticket office, however, he said, "I just stepped off the kerb and go two or three paces and wander around". 18 Mr McCulloch SC, counsel for the defendant, asked the plaintiff if he understood the difference between "slipping and tripping" and he said he did. He said, "You would slip with the bottom sole of your feet. Tripping, you would be hitting your toe on something and tripping that way". He accepted that this would have been his understanding of those terms in 2001 at the time he made a claim for employee's compensation arising out of this incident. 19 He was shown the employee's compensation claim form signed by him on 1 August 2001, the next day following the incident. In a box under the heading "What happened" the plaintiff wrote "Tripped & slipped on corner of weighbridge on the way to get docket". He accepted that there was an inconsistency between the account of the fall he wrote in that form and the evidence he had given. Still he maintained that he slipped rather than tripped. When it was put to him that this account was true, the plaintiff answered, "That's what I must have thought had happened. I was concussed and that…..". However, the plaintiff accepted that, at the time he wrote that account, he believed it to be true and had read what he had written on the form before he signed it. 20 The plaintiff was cross-examined on some treatment he had received from the company doctor, Dr Ransom on 31 July 2001. He denied that he ever told Dr Ransom that he "tripped and slipped on the edge of the gutter". He said that, if that's what Dr Ransom had written down in his records, he must have misunderstood. Dr Ransom's notes were tendered and contain the following: "Tripped and slipped on edge of gutter – fell backwards hitting back and back of head". Dr Ransom was not called but it was not suggested that he might have received his account from somewhere other than what he was told by the plaintiff. 21 However, in a NSW Compensation Medical Certificate filled in by Dr Ransom he had written alongside the printed words on the form "Cause of injury as stated to me by this worker" the words "Slipped – landed heavily on back". 22 The plaintiff was also cross-examined on an interview he had on 27 August 2001 with a physiotherapist, Mr Priestly. He denied that he told Mr Priestly that he tripped and fell on the kerb while walking around the back of his truck. A copy of a report prepared by Mr Priestly was tendered and in the part of the report under the heading "History of injury" is written: "Mr Hamilton reported that the injury occurred when he tripped and fell on a kerb when he was walking around the back of his truck. Mr Hamilton reported that the kerb struck him across his lower back, resulting an immediate and severe pain to his lumbar spine." When it was put to the plaintiff that he had given Mr Priestly this account the plaintiff answered, "He's got that wrong too, I'm afraid. I know what I done". There was no suggestion that Mr Hamilton might have received this account other than from the plaintiff. 23 The plaintiff denied that the accident occurred as he attempted to step down from the kerb. He was taken to a statement he made on 27 September 2001 for the purposes of these proceedings. The statement was made with the assistance of an investigator from Hymix's worker's compensation insurance company. The statement, signed by the plaintiff, contains the following: "When I attempted to step down from the kerb I slipped and fell to the ground, which was a concreted area." The plaintiff denied that this account was inconsistent with his evidence and maintained that the statement should be read as indicating that he was approaching the kerb and getting ready to step down when he slipped. Other evidence called by the plaintiff 24 As indicated above, the plaintiff tendered a site plan of Berrima works and some photos of the site, focusing on the weighbridge area and the area in which the plaintiff fell. 25 The plaintiff tendered six first aid room register of injury reports relating to the defendant. None of the reports indicate that the injured person slipped or that cement on the ground made it slippery. One of those documents points to the prudence of painting a yellow line on the edge of the kerb. 26 The plaintiff tendered a certified extract together with meteorological records taken from Moss Vale automatic weather station. The records indicate that the air temperature at the Moss Vale weather station fell to 0.9 degrees Centigrade at 2.00am and 0.1 degrees Centigrade at 3.00am. Thereafter temperatures were subzero until 8.00am. The records indicate a very small amount of rain in the area. 27 The plaintiff also called evidence from another driver employed at the time of the incident that gives rise to the plaintiff's claim. Mr Daily gave evidence that there was often cement dust on the ground at the defendant's premises. He noticed that the walkway could be dry or wet but that it varied from time to time depending upon the particular night. He stated that the area was "unstable" in cold conditions and that he had experienced his feet slipping on the surface and very nearly fell over. He also experienced that the driveway appeared slippery so that his truck tyres would lose traction. However, it is clear from documentary evidence that Mr Daily was not working on the night that the plaintiff fell over. The plaintiff's expert 28 The plaintiff called Mr Dohrmann as an expert witness in matters to do with trips, slips and falls. He holds a Bachelor of Engineering Mechanical with additional post-graduate qualifications in ergonomics. He said that in the course of his study he had experience in the use of light meters. Since completing those studies, he has put into practice the skills he learnt in reading light levels both as a teacher at university level, as a consultant and as an expert witness. In relation to his knowledge of the effect of temperature on water and the generation of ice, he said he had taken an elective subject on meteorology at undergraduate level and maintained a continuing interest in the subject matter. He accepted, however, that he did not have the type of qualifications that meteorologists usually have, and that the bulk of his professional practice since 1981 has been as an ergonomist and industrial public safety consultant. 29 A significant portion of Mr Dohrmann's report dated 13 September 2004 was "cut and pasted" from the report of another expert, Mr Beale, without any acknowledgement of the use made of this material by Mr Dohrmann. Mr Beale's report was prepared in August 2001. This part of Mr Dohrmann's report was concerned with radiant heat transfer. Mr Beale had degrees in Science (Chemistry) and Chemical Engineering and had studied radiant heat transfer as part of his studies for the latter degree. Mr Dohrmann had no degree in science but had undertaken an elective course in meteorology. 30 When asked initially whether those particular paragraphs were based upon his training, experience and study, Mr Dohrmann said, "Yes, they are just [a] simple enunciation of the principles of physics as they apply in particular to radiant heat transfer which is typically how you interpret and explain the temperature which bodies attain in the open." He did not volunteer that those paragraphs were not his own work. It became apparent that these paragraphs were copied from Mr Beale's report during a voir dire examination by the defendant's counsel. 31 Mr Dohrmann had come by Mr Beale's report when briefed with it in another case. He copied word for word the greater part of five paragraphs from Mr Beale's report, simply replacing particulars relating to Mr Beale's case with particulars relevant to the plaintiff's case. Mr Dohrmann accepted that he would have simply dictated from Mr Beal's report when preparing that part of his report. 32 When asked about the absence of any attribution in relation to this material in his report, Mr Dohrmann stated, "I don't consider it necessary. I didn't and I do not now consider that type of material would require me to make that type of reference". He said that he knew Mr Beale moderately and that: "I thought the way he expressed these general principles of physics was, elegant, succinct, and appropriate. I took the words. I reused them. I may be in error for not giving the man a reasonable thank you for taking his words but I have taken no opinion from him." 33 Mr Dohrmann was cross-examined as to his compliance with the Expert Witness Code of Conduct found in Schedule K of the Supreme Court Rules and in particular paragraph 5(e) that provided: A report by an expert witness must (in the body of the report or in an annexure) specify: (e) any literature or other material utilised in support of the opinions…. He did not agree that he had failed to comply with that provision. He stated: "………..the meaning of what [Mr Beale] is conveying appears in many places and textbooks. He has expressed it elegantly and well. I will accept being called lazy for using his words, but I am not saying anything new and not taking any original from his work in my opinion." 34 When asked by me to explain how it was that his use of Mr Beale's report did not fall within 5(e) of the Code, Mr Dohrmann stated, "I have interpreted Mr Beale's words as being – put it this way, no more than an expression of the obvious physics to those of us that work in that area and that's all, that they weren't novel, they weren't the results of his study and that's all". 35 Mr Dohrmann accepted that the Beale report dealt with a metal plate surface, whereas he was dealing with a concrete surface, and that those two materials lose their radiant heat at different rates. However, he did not believe that this affected the reliability of his report, saying that the passages he lifted from the Beale report were merely statements of "abiding physics" and did not depend on the type of surface in question. 36 I was unimpressed by Mr Dohrmann's use of Mr Beale's report without attribution or his attitude to what he had done during the course of his cross-examination on the issue. It seems to me to be a clear breach of paragraph 5(e) of the Code yet Mr Dohrmann seemed to believe there was nothing wrong in what had done, except that he might be considered as lazy. It was in my opinion unprofessional conduct and raises doubts in my mind about the confidence to be placed upon his report and findings generally. In any event, as I will indicate later, I believe that the defendant's expert, Dr Cooke, was generally more careful in his attempts to measure the relevant factors such as lighting and slip resistance of the walkway and in the expression of his opinions. I was also more impressed by him under cross-examination. Mr Dohrmann's findings 37 It is noted in the report that its scope is to comment on the circumstances of the plaintiff's slipping and on issues of liability. The report includes a number of photos of the relevant area of the defendant's premises taken in 2004, findings on relevant applicable standards relating to slip resistance of pedestrian surfaces and to lighting. Mr Dohrmann concludes that in relation to slip resistance the applicable standard is AS/NZS 4663 of 2002 which requires a dynamic coefficient of friction of no less than 0.4 for both wet and dry surfaces. 38 Mr Dohrmann's opinion was follows: I consider that the Plaintiff was placed at risk of injury by the Defendant in the circumstances described. The basis of the reasoning process leading to that concluded opinion consists in the likelihood that the area where [the plaintiff] slipped was either icy, or if not, that there were cement dust and loose pebbles on the concrete surface (as Illustrated) which together would create a dangerous slippery surface situation. Hard, small pebbles on concrete are usually dangerously slippery. The opinion is also based upon light levels assumed, which allow a conclusion that the area where he stepped was insufficiently lit to enable him safely detect what lay ahead. 39 The report also contains a number of measures that in his opinion could have been undertaken by the defendant to prevent exposing the plaintiff to risk. These include erecting a canopy above the walkway, the use of non-slip material on the walkway and the provision of a handrail. The defendant's expert 40 Dr Cooke was the only witness called by the defendant. He is an architect and has a law degree but gives expert opinion in slip accidents. Unlike the position when Mr Dohrmann attended the site, Dr Cooke reported that there was little free cement in the area but the tops of the kerbs were "encrusted with solidified cement dust." 41 Dr Cooke took a number of reading of the surface of the kerb in the place where the plaintiff is alleged to have slipped to obtain a reading of the dynamic co-efficient of friction under both wet and dry conditions. He concluded in his report that: At the point where the plaintiff alleges he slipped (on the top of the kerb), the surface when wet with water, frost or melted frost is "acceptably safe", "safe for hurried stride and pace and minimal attention" and "non-slip at rapid pace". Later he wrote: In my view [the plaintiff] was not at risk of slipping on the kerb if he placed his foot correctly on it, unless it was coated with a solid sheet of ice. The issues raised How the plaintiff fell 42 A critical matter of course is how the plaintiff came to fall on the night he was injured. The plaintiff's case is based primarily on the fact that he slipped on the walkway surface, which was probably covered with ice, and fell backwards landing on the road surface with his lower back striking the walkway. The defendant argues that the plaintiff cannot be accepted in that account even on the balance of probabilities because of the inconsistencies in his accounts of the circumstances surrounding the fall and because of the mechanism of the fall. 43 This is not a case that depends upon an assessment of the plaintiff as a witness to any significant degree. I neither formed a favourable or unfavourable view of him except that I was not persuaded of his explanation for the apparent inconsistencies in his accounts and this itself raised doubts about his general credibility. He is adamant that he did not overstep the kerb, and he might by now believe that it is true regardless of what actually happened. I can understand why it is important to him that he gives that version, but I can also understand how he might have convinced himself that this is what happened. The accident occurred quickly, he would have been startled by it and in pain after it. Seeking to revisit the memory of an incident on a number of occasions over time may distort the memory. 44 The difficulty for the plaintiff is that he has to convince me that his account in the witness box is probably both honest and accurate. One can forgive some inaccuracies or inconsistencies in the detail. One has to be cautious about being too critical of an account where the defendant's counsel wanted to explore exactly where the plaintiff's feet were at the precise time of the fall. Nor does it seem to me that the Court can place very great weight on arguments based upon the mechanism of the fall, for example where the plaintiff should have landed had he tripped as opposed to slipped, because there must be variables that might give an unexpected result. 45 But there are inconsistencies in his version given shortly after the event that trouble me sufficiently to reject his account in the witness box. It is not the position that there is one possible inconsistency that might be overlooked as insignificant because of the circumstances in which the account was given, for example because it might be a result of a mistake by the person who recorded it. I also take into consideration that I have not seen the persons who record the inconsistent accounts. I do not reach the view I have on the basis that the recorded account should be preferred over the plaintiff's sworn testimony for any particular reason, such as the nature or profession of the person making the recording. 46 The first inconsistency occurs in a record of Dr Ransom, who was treating the plaintiff immediately after the accident. He wrote in his notes that the plaintiff "tripped and slipped on the edge of gutter – fell backwards hitting back and back of head". The plaintiff's denies ever saying that to the doctor. The doctor was not called before me and I accept that on a medical certificate the doctor wrote, "slipped - landed heavily on back". But it seems to me to be remarkable that Dr Ransom would mistakenly note "tripped and slipped" which is the same as the plaintiff wrote on the compensation claim form the next day. There is no reference in Dr Ransom's notes that the plaintiff was suffering from concussion. Further there is the similarity with the account in the claim form that it occurred at the edge, or corner, of what structure he was on at the time. 47 The whole account taken by the doctor is inconsistent with the plaintiff's version before the Court. The plaintiff does not accept that he slipped on the edge of anything just as he does not accept that he literally slipped on the corner of the weighbridge. His version is that he slipped on the surface of the platform as he was approaching the corner of it before stepping down to the weighbridge. 48 I do not accept that there is a reasonable possibility that the doctor so misunderstood what the plaintiff told him that he would record a version in his notes that is generally consistent with what the plaintiff wrote later in his compensation claim form. What the doctor wrote on the medical certificate was clearly an abbreviated version and it is obvious that it was the slip part of the incident, rather than the trip, that caused him to fall heavily. 49 The second inconsistent statement is made by the plaintiff himself at time when he was aware of the significance of giving an accurate account of the incident. This was in the compensation claim form filled out and signed by him on the day after he saw Dr Ransom. The account of the accident was "tripped & slipped on corner of weighbridge on the way to get docket". The plaintiff accepts that this account is inconsistent with the version given by him in the witness box. He is adamant that he did not trip. 50 But the significance is not only in the use of the word "trip" but also that the fall occurred at the "corner of the weighbridge". There was some question about his use of the word "weighbridge" during cross-examination of him by counsel for the defendant. But it is clear to me that he was intending to convey that the trip and slip occurred at the edge of the walkway as will become apparent by other accounts he gave. His explanation for the inconsistency was "that's what I must have thought had happened". He stated that he was concussed but that was an unresponsive remark that on one view should have been struck out. I can give it little weight. 51 But even if there was the possibility that he was concussed at the time he filled in this form, about two days after the accident, I have difficulty understanding how that condition would be liable to distort his recollection of the event by leading him to believe that he tripped on the edge of the walkway before he fell, when this did not occur. The plaintiff accepts that at the time he wrote that statement he believed it to be true. 52 What Dr Ransom recorded in his notes and what the plaintiff wrote in the claim form was also consistent with what Mr Priestly, a physiotherapist, recorded of the incident. He wrote that the plaintiff "tripped and fell on a kerb when he was walking around the back of his truck". This is a version again remarkably similar to that given by the plaintiff in his claim form and that recorded by Dr Ransom, not so much in the words used but in the picture being painted. The plaintiff fell not on the flat surface of the platform before reaching the corner, but on the corner as he was stepping off. What the plaintiff was conveying on each occasion, according to the record, was that the tripping caused the fall and it was on the corner or edge of where he was. Again I have not heard from Mr Priestly and I have to take into account the possibility of mistake on his part, but I also have to use my common sense. 53 Then there is the account in the statement taken by the investigator which was "when I attempted to step down from the kerb I slipped and fell to the ground". The plaintiff ultimately suggested that this account was not inconsistent with his version in evidence because he meant that he was about to reach the corner to step down. I accept that the plaintiff may have limitations in expressing himself caused by his lack of education and I accept that he may not have seen the apparent inconsistency when he read the statement. However, he was not inarticulate in giving evidence and he was certainly aware of some subtleties of language such as the difference between a slip and a trip. There is a significant difference in common parlance between attempting to do something and approaching the place where you are going to do it. No use of the word "attempt" as it is generally understood can accommodate the plaintiff's account that he was not in the course of actually stepping down when he slipped. The plaintiff himself accepted in evidence that he was not attempting to step down from the kerb when he slipped. 54 Again the version in the statement is consistent with the earlier accounts of the fall occurring on the corner or edge of the walkway as he was in the course of stepping off it. There was a reference to a further account that was given to a Mr Field by the plaintiff. It was put to him that he told Mr Field that he "slipped off the end of the weighbridge". This led to the questioning about what might be meant by the use of the word "weighbridge". The plaintiff accepted that he might have said that, although he could not remember. This is not a very significant matter but again it is consistent with the other statements indicating a slipping off where he was at the time of the fall. 55 The accounts to which I have referred are in my view plainly inconsistent with the version given in evidence and I cannot accept any other possibility than that there has been a change in the plaintiff's account of the fall, for whatever reason, from it occurring as he tripped when stepping down from the walkway to it occurring before he reached the corner and on the flat surface of the walkway. 56 I have indicated the difficulty in placing much weight on the mechanics of the fall. However, if it were impossible for the plaintiff to have tripped on the corner as he was in the act of stepping down from the walkway, I might have to reconsider the weight to be attributed to these inconsistencies. But counsel for the plaintiff questioned Dr Cooke about this matter and, although the doctor conceded that, if he tripped on the corner, it might be expected that the plaintiff would land on his knees by falling forward, he was not prepared to deny the possibility that he would fall backwards in over-stepping the end of the kerb. 57 Dr Cooke's opinion from his inspection of the site and being aware that the plaintiff was asserting that he had slipped at a point back from the corner was: Although it is not possible to draw any conclusion about causation on the basis of statistical probability alone, on the basis of the account of the mechanism of the plaintiff's fall and my inspection of the kerb surface my opinion is that the plaintiff lost his footing because he did not place his front foot correctly on the kerb nosing, resulting in an overstep with his foot "slipping" forward off the nosing because of insufficient support for the foot, not because the kerb surface provides inadequate friction. As I understand the situation, Dr Cooke was not aware at the time of making that assessment that the plaintiff had been recorded as having stated that he fell after tripping at the edge of the kerb. 58 There was nothing in Mr Dohrmann's report to suggest that this opinion was wrong, even in the section where he was asked to comment on the findings made by Dr Cooke. The only comment he made was that, if the fall occurred in this way, the risk of such a fall would have been contributed to by "the likely insufficiency of the artificial light level at the end of the raised section at that time". 59 I had some doubts about how the plaintiff could have been in the position he found himself after the fall if he had slipped at a point before getting to the corner and fallen backwards. It seemed to me that the plaintiff had landed too far off the walkway to be consistent with that scenario. However, this alone would not have been a matter that would have led me to reject the account given in the witness box and it has little weight because of the difficulty of knowing what forces were acting on the plaintiff's body at the time he fell. But it sits more comfortably in my mind with a trip and slip off the edge of the walkway than it does with a slip at the position nominated by the plaintiff. 60 I am not persuaded that the plaintiff fell by slipping on the flat surface of the walkway at the position he marked on the photograph. If it were necessary to do so, I would find that it is more probable than not that he tripped as he was about to step down from the walkway or in the course of doing so. 61 I am not satisfied that the trip was occasioned by any slipperiness on the edge of the kerb. There is no evidence of it and I am not prepared to infer that there was from the other evidence in the plaintiff's case. I think that it is likely that he overstepped the kerb as suggested by Dr Cooke. It was a trip before the slip. It make sense to me that this might occur with someone who was very familiar with the area but simply became too casual in leaving the walkway to go close to the front of his truck in approaching the ticket office. I do not think that yellow marking on the edge of the kerb would have made the slightest difference. 62 This finding creates some difficulties for the case mounted by the plaintiff, because much of the evidence and arguments were on the basis that he had slipped in the manner and at the position of which he gave evidence. I do not understand there to be any suggestion that he slipped because of ice on the edge of the walkway, or because he tripped on built up concrete or because he was unable to see the edge of the corner due to poor lighting conditions. In fact lighting seems to have little to do with the case even as presented by the plaintiff because I do not understand that there is any suggestion that improved lighting would have stopped the plaintiff slipping if it were the icy condition of the surface or some crumbling hardened concrete. However, I should deal with some of the other issues in case I do the plaintiff an injustice in my finding on the primary matter of how and where the plaintiff fell. Lighting 63 In relation to lighting Mr Dohrmann concluded that the applicable standard is AS 1158.1 of 1986, and that the area where the plaintiff slipped should be categorised as "C1", calling for a minimum average illuminance of 50 lux, and an absolute minimum illuminance of 10 lux. Mr Dohrmann measured illuminance of 3 lux when shaded to simulate the position of the plaintiff's truck. 64 In oral examination, Mr Dohrmann was questioned about the difference in light readings that he obtained when compared with those obtained by Dr Cooke. Dr Cooke's readings for the area were higher than Mr Dohrmann's. Dr Cooke measured illuminance of 7.5 lux on the unshaded surface, and 6.5 lux when shaded. Mr Dohrmann accepted that the method used by Dr Cooke was more accurate, and consented to having his opinions predicated on the basis that the proper light readings would have been closer to those obtained by Dr Cooke. There was also evidence that Mr Dohrmann did not wait for the appropriate length of time for the lights to warm up before taking his lux readings. 65 Further Dr Cooke had taken a reading of the light measurement in the shadow area created by the plaintiff's parked truck, by using the shadow cast by a truck, whereas Mr Dohrmann used a manila folder to simulate the truck's shadow. Mr Dohrmann accepted that Dr Cooke's reading would be more accurate. Mr Dohrmann did his readings in Bay Y whereas the plaintiff's truck was parked in Bay X. However, Mr Dohrmann thought the lighting was the same in both bays. 66 Dr Cooke went to the site twice, the second time to take further readings in light of Mr Dohrmann's report and some confusion about exactly where it was that the plaintiff fell. He carried out further light readings including accounting for any possible variation in lighting as a result of the plaintiff's shadow or the shadow cast by the parked truck. His testing appears to me to have been much more intensive than those carried out by Mr Dohrmann in order to try to determine as closely as possible what the lighting would have been at the time and in the position where the plaintiff fell. These were some of the considerations that led me to believe that Dr Cooke was more careful and, therefore, more reliable in the opinions he expressed and the findings he made than was Mr Dohrmann. I was more confident generally in accepting his opinions than I was in accepting those of Mr Dohrmann. 67 In cross-examination, Mr Dohrmann said that in relation to the issue of the necessary level of lighting he had used the Public Lighting Code, standard 1158.1 of 1986. Mr Dohrmann accepted that the standards produced by the Australian Standard's Association do not have the force of law, however, he said that there was no other applicable standard. He accepted that an issue arose as to how the area where the plaintiff alleged he slipped should be categorised, that is either as C1 or C3. While a C1 classification required a minimum lighting of 10 lux, a C3 classification required a minimum of 1 lux. A categorisation of C1 applies to focal points and areas of particular hazards, for example steps, and Mr Dohrmann believed that this described the elevated walkway. 68 Mr Dohrmann accepted that the site of the fall was not an urban road or a public thoroughfare, areas to which C1 was expressly applicable, yet he maintained his view that it was the appropriate classification. Mr Dohrmann appeared to accept that, according to the application of the standard, a C1 classification was not required on all public streets despite the facts that there were kerbs between the footpath area and the street. However, he was adamant that the place where the plaintiff slipped was better categorised as a step rather than a kerb. He accepted that the standard refers to "steps" in the plural, but considered it applicable to a single step also. 69 I do not accept Mr Dohrmann's classification of this area as being C1. This is in my opinion a kerb such as might be found on any roadway between the road surface and the footpath. I accept, however, that the kerb here was about twice the height of the kerb of a public road, but this is not a matter that was decisive to Mr Dohrmann. There was no particular danger in stepping down from the platform to the road surface if one disregards the suggestion that the walkway was slippery due to ice or for any other reason. There was no suggestion that it had any particularly heavy pedestrian traffic, especially at night, and there was nothing about what a driver, such as the plaintiff, was required to do when on his way to the office that would have made it more likely that he would miss the step unless it was illuminated to the higher standard. There was no evidence that it proved a particular hazard during night either generally or on this particular occasion. The plaintiff was familiar with the area having attended the area at night on a number of occasions. Mr Daily, the other driver did not suggest that lack of lighting caused any difficulty. 70 None of the first aid room report indicates that the lack of lighting was a particular problem. One worker injured himself by twisting an ankle when stepping off the platform at 8.30 pm in November 1999. The injury follow up report does not indicate how the accident occurred although it notes that "a small amount of cement had gone hard" and was cleaned up. It was from this accident that the suggestion arose of putting a yellow strip around the walkway. Another worker suffered relatively minor injuries when his foot caught the edge of the "concrete roadway" in May 2000. This seems to have nothing to do with the walkway or lighting. 71 In May 2001 a worker suffered a fracture when he stepped down from the concrete platform and put his foot on "hard cement causing him to go over on his ankle". The follow up report indicates that the "root cause of the injury was a hard build up of spilled material on the weighbridge". An accident investigation states that the worker said he stepped on to some "loose hardened cement" but none could be found. However, it was noted that there was some "hardened cement" both on the weighbridge and the edges of the platforms on either side. It records that there was a lot of water around the area at the time due to wet weather, which would have caused the cement to harden. The report noted that the cement should be cleaned up immediately as it was "a hazard that has the potential to cause serious injury to anybody working in the area". The accident had nothing to do with the walkway or lighting. 72 My opinion as to the appropriateness of the classification of C1 has been reinforced by the opinions expressed by Dr Cooke. He came to the view that the junction of the walkway and the road or weighbridge did not justify lighting to the C1 category in the standard but at most the C2 category. His readings were higher than those taken by Mr Dohrmann and "were more than adequate". 73 I do not believe that the lighting had any contribution to make to the fall of the plaintiff and that is so regardless of whether he tripped at the edge of the walkway or fell in the location identified by him in his evidence. Therefore, there was no negligence by the defendant in the asserted failure to provide adequate lighting. The existence of a slippery surface 74 Much of the evidence went to the issue of whether there was ice present on the evening that contributed a foreseeable danger to the plaintiff when making his way along the walkway. Mr Dohrmann in his report concludes that there was a "likelihood that the area where [the plaintiff] slipped was either icy, or if not, that there were cement dust and loose pebbles on the concrete surface… which together create a dangerously slippery situation". The report questions the finding made by Dr Cooke on the friction levels of the elevated walkway since they assumed that there was no ice present due to the proximity of the area to the building. Mr Dohrmann says that the climatic conditions recorded at Moss Vale on the night support a conclusion that there was ice on the area where the plaintiff slipped. 75 The question of the presence of the ice raises the matter of the insertion of parts of Mr Beale's report into the report of Mr Dohrmann because those portions were concerned with the issue of the likelihood of there being ice on the walkway and this is matter about which the experts are in conflict. Dr Cooke was of the view that, because of the close proximity of the silo building, it was "unlikely that the kerb surface was affected by ice". There was some question as to the expertise of Dr Cooke to make this assessment. Mr Dohrmann disagreed and relied upon the reasoning in the paragraphs that he "borrowed" from Mr Beale's report. Mr Dohrmann also suggested that it was possible that the plaintiff stepped on ice, if it were present on the checkerboard plate, and walked it onto the concrete kerb. Dr Cooke does not agree with this possibility because ice could not have formed inside the building. 76 I am prepared to accept from general knowledge and the material placed before me as to the weather conditions on the night that it was probable that there was some ice in the area of the silos. Just where that ice was is more problematic. One of the difficulties in determining this issue is that I do not accept the plaintiff's evidence as to where he said he fell. Therefore, strictly speaking the presence of ice or slippery material on the surface of the walkway is irrelevant because I think it is more likely that he overstepped the kerb, hence the trip and slip. This finding must necessarily raise in my mind whether I should accept his evidence from which it might be inferred that there was ice on the walkway, for example his description of the appearance of the walkway. 77 However that may be, the plaintiff described the walkway as "a little bit slippery". He said that the traction on his boots that night was no different to any other night, and it was "always not very good down there". Mr Daily, another driver, indicated that it was often slippery on the walkway although it varied from night to night. As I understand his evidence, the plaintiff was aware before he reached the point where he says that he slipped that the walkway was slippery but apparently took no care to ensure that he did not slip. There is no suggestion that this was some hidden trap in the walkway as a whole but that the whole of the walkway was "a little bit slippery". It seems that the plaintiff was aware of the danger of slipping on the walkway from time to time but had not complained about it. 78 Although Mr Dohrmann suggested that the plaintiff might have slipped on dried concrete, I do not believe that he did. This is simply speculation from the fact that when Mr Dohrmann attended the site he saw some dried crumbly cement on the walkway. Dr Cooke saw none when he attended the site. It does not seem to me to be consistent with the plaintiff's evidence that was to the effect that the walkway generally was slippery on this evening. Negligence 79 There is no suggestion that the defendant did not owe the plaintiff a duty of care to provide a safe work environment in the area of the silo and, in particular, on the walkway area. Nor is it in contention that the defendant did not owe a duty of care to the plaintiff to keep the walkway in reasonable condition to avoid creating a hazard to persons using it. The plaintiff's safety was largely in the hands of the defendant. I do not understand that it would be really challenged that the defendant would not foresee the possibility of ice forming in the area of the silo. The evidence seems clear that some work had been done on the driveway area to allow for more traction for trucks presumably because of ice forming on the road surface. 80 I have more difficulty in coming to the view that the defendant should have foreseen ice on occasions forming on the walkway and creating a hazard to those who were using it at night or in the early hours of the morning. This is because there was some conflict in the evidence between the experts. There is some question about Mr Cooke's competence to make his finding that it would be unlikely because of the heat from the building but I have my concerns about adopting the opinion of Mr Dohrmann in this regard. But I am prepared for the sake of argument to assume the position that the defendant should have reasonably foreseen that ice could develop on the walkway and that it might create a hazard for the users of it. The issue that arises is what should the response have been to a reasonable person in the position of the defendant. 81 There is no evidence of any complaint being made to the defendant about the formation of ice on the walkway or that it was slippery at times and caused a danger to the drivers working at or about the silo. As I have already noted, the injuries that occurred at the site had nothing to do with slipping on the surface of the walkway from ice or otherwise. The defendant had a knowledge and foresight of the possibility of hazard from the accumulation of cement but I am not satisfied that this was the cause of the plaintiff falling. 82 It is not without significance in this matter that there is no evidence of any complaint from any of the truck drivers visiting the site of any hazard or danger to the defendant. This is notwithstanding that apparently about 300 drivers use the area each week. The plaintiff knew that the walkway was slippery on occasions, as did Mr Daily. There is no evidence of any injury caused by ice on the walkway let alone any person falling down. I am not aware of how frequently ice might form on the walkway or the extent to which the hazard presented itself. Nor do I know how long the silo as it was at the time of the accident was in operation. I do know that since 1999 and before the plaintiff fell, there is only evidence of only three accidents that had anything to do with the walkway and none in the early hours of the morning. 83 However, clearly if the defendant should have reasonably foreseen that ice may form on the walkway, they should have foreseen that a substantial injury could be suffered by someone who slipped and fell on the walkway without the means of breaking the fall onto a hard surface. The question then that arises is whether the plaintiff has proven that there was a reasonably practicable alternative means available to the defendant to reduce the risk of injury. This was a matter that caused considerable debate before me, as the defendant strongly argued that the plaintiff had not fulfilled its onus: see Kingshott v Goodyear Tyre and Rubber (No 2) (1987) 8 NSWLR 707. 84 The only evidence in this regard for the plaintiff was led from Mr Dohrmann. His report contains the following: Measures which the Defendant could have taken to prevent exposing [the plaintiff] to risk was as follows: · By surfacing the area in a material which would be tolerant of ice, cement, dust or moisture without becoming dangerously slippery (such as a grill with roughened slip-resistant edges). · By putting a canopy over the area where truck drivers would foreseeably walk, and when there might be ice present. · By providing illumination at a level consistent with the quoted Australian Standard. · By providing a rail to enable drivers to maintain their balance in the event that the situation did become perceptibly slippery, or to seize if they began to fall. 85 It seems to me that evidence on this area was left in a fairly unsatisfactory manner. I am not much assisted by Mr Dohrmann simply making these suggestions without any real detail of what was required. The plaintiff has the onus of showing that these were practical alternative means for providing a safe place of work in light of the risk of injury that was created by ice forming on the walkway. Mr Dohrmann did not deign to descend to particularity. I doubt that he has the competence. 86 To suggest somewhat breezily that the defendant could erect a canopy to protect the area where the driver might have to walk when there is ice seems to me with respect to be lacking in any practical consideration of what might be involved in such a suggestion. I do not understand what it is to be made of, how it is to be constructed, how it might impact upon the operation of the trucks within the silo, the cost, or its effectiveness at keeping moisture out of the area. It seems to me that the plaintiff should do more than just posit such a suggestion without taking on any responsibility for proving its practicality in the real situation that the defendant faces. 87 Similarly, there is little information about the cost, convenience or effectiveness of the suggested ground covering, bearing in mind that it is not simply one bay that is to be covered. Dr Cooke seemed to accept that some sort of covering might be available to reduce the effect of ice although he was not aware of the particulars. 88 The idea of a railing strikes one as being perhaps a commonsense solution, without any need for an expert to indicate that it might eliminate a risk. But again it seems to me that the plaintiff should descent into detail to show how the rail might be constructed, where on the walkway it might be placed so as not to impede traffic around the site or to impact on the ability of the driver to alight from his vehicle. Again it is not just a solution that the plaintiff must propose but a reasonably practical one that meets the likelihood of an injury resulting from a slip on ice. 89 I am not satisfied that the defendant was negligent in not taking action to prevent the risk of injury from someone in the position of the plaintiff falling as a result of ice on the walkway. The Civil Liability Act 90 I was only referred to Division 4 of the Civil Liability Act 2002. This deals with the assumption of risk in cases where the risk would have been obvious to a reasonable person in the position of the plaintiff: s 5F(1). In effect s 5G(1) creates a presumption that a person who suffers harm was aware of the risk of harm if it was an obvious risk. In such a case the person harmed has to prove on the balance of probabilities that he was not aware of that risk. 91 The defendant faintly argued that the risk of slipping on the plaintiff's version was an obvious risk falling within the section. I do not believe that it was. The plaintiff was not aware of the presence of ice on his version. He gave no evidence of having been aware of ice on any other occasion even though he was aware that the walkway had been "a bit slippery" on other occasions. He was not really cross-examined as to his knowledge of the risk or of its obvious nature. This is because the defendant's case was that he had not slipped at all on the walkway surface but tripped when stepping down. Contributory negligence. 92 Again faintly the defendant argued that I should find that there was contributory negligence on the part of the plaintiff. Just why I should find that he was negligent was not made clear. Once the plaintiff had commenced to walk to the end of the walkway there was little he could do if he came across ice. The cross-examination of the plaintiff rather went to how he fell rather than any suggested negligence on his part. 93 If it had been necessary to do so, I would not have found there was any contributory negligence. Orders 94 There is to be judgment for the defendant. I will receive submissions as to costs. WEDNESDAY 12 APRIL 2006 1 HOWIE J: On 17 March 2006 I ordered that there was to be judgment for the Defendant in this matter. At the request of the parties I made no order as to costs pending submissions as to what order should be made. 2 On 12 April 2006 a letter was received by the Court from the solicitors for the Defendant indicating that the parties had agreed that there should be an order that the Plaintiff pay the Defendant's costs. Attached to that letter was a copy of a letter from the solicitors for the Plaintiff indicating their agreement that such an order should be made. 3 In light of the fact that the order proposed is the normal order that is that costs follow the event, I am prepared to make the order based upon the correspondence sent to the Court. 4 Therefore I order that the Plaintiff pay the costs of the Defendant. ********** 13/04/2006 - Additional paragraphs added on 12 April 2006. - Paragraph(s) 1-4 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.