Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hill & Anor v Richards [2011] NSWCA 291 Hearing dates: 25 August 2011 Decision date: 27 September 2011 Before: Giles JA at [1], Campbell JA at [64], Handley AJA at [65] Decision: 1. Appeal allowed in part. 2. Set aside the verdict and judgment for the plaintiff for $462,508 and in lieu thereof verdict and judgment for the plaintiff for $346,881. 3. No order as to costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: NEGLIGENCE - member of shearing team - back injury in course of shearing operations - whether injury because slipped on stairs in shearing shed - trial judge's affirmative finding upheld - whether owner of shearing shed breached duty of care in failing to have non-slip strip on stairs -owners of shed had followed WorkCover guide - stairs complied with relevant standards - but evidence of particular risk factors - failure to address through principles in Civil Liability Act - but exercise of reasonable care required non-slip strip. APPORTIONMENT - employer also breached duty of care - whether trial judge's apportionment for purposes of s 151Z Workers Compensation Act appealably erroneous - apportionment varied. Legislation Cited: Workers Compensation Act 1987 Cases Cited: Davis v Wagga Wagga City Council [2004] NSWCA 34; (2004) 4 DDCR 358; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366; Mastronardi v State of New South Wales [2009] NSWCA 270; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; Rhesa Shipping Co SA v Edmunds (1985) 1 WLR 948; Sheridan v Borgmeyer [2006] NSWCA 201; Wilson v Nilepac Pty Ltd [2011] NSWCA 63; Wyong Shire Council v Shirt (1980) 146 CLR 40; Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85; (2009) 53 MVR 187. Category: Principal judgment Parties: Tony Hill - First Appellant Diana Hill - Second Appellant Mark Justin Richards - First Respondent Representation: I Roberts SC & G Parker - Appellants K Rewell SC & R Harrington - Respondent Pogson Cronin, Lavington - Appellants Stacks, Taree - Respondent File Number(s): CA 2009/296837 Decision under appeal Citation: Richards v Hill & Hill [2010] NSWSC 949 Date of Decision: 2010-09-24 00:00:00 Before: Studdert AJ File Number(s): SC 20648/09 Judgment 1GILES JA : The appellants owned a property near Cootamundra on which they conducted mixed farming, including running eight thousand Merino sheep. In 2003 they constructed a shearing shed, with six stands, which was used bi-annually in shearing their sheep and on other occasions in shearing neighbours' sheep. The same shearing contractor, a partnership of Mr Michael Alchin and his wife, was always used by the appellants. Mr Alchin's team, and that of his uncle and father before him, had done the shearing at the property for many years. 2In October 2005 the respondent was a member of the team as a wool presser. He had been a member of the team for about two years. His duties extended to general shed duties when he was not pressing, including moving sheep into the pens from which each shearer took his sheep for shearing. 3The respondent claimed that on 31 October 2005 he injured his back in the course of his duties in the shed as a member of the shearing team. The shed had a raised board or platform on which the shearing took place, approximately 810 mm above the level of the concrete floor. Stairs at one end of the shearing board, angled at about 45 degrees from its long axis and with a handrail on the side distant from the stands, provided access to and from the floor of the shed. The respondent said that he was injured when his right foot slipped out from under him at the top of the stairs as he was in the process of descending. He said that he fell onto his bottom on the floor below, just missing the steps and with his right leg "in a chicken wing position". 4Whether the respondent had injured himself in this manner was disputed. So also were whether, if he had been injured in this manner, there had been breach by the appellants of the duty of care they owed as occupiers to the respondent; whether there had been contributory negligence by the respondent; and the extent of any apportionment of responsibility for the injury to the respondent's employer, the Alchins, for the purposes of s 151Z of the Workers Compensation Act 1987 in arriving at the respondent's damages. 5The trial judge, Studdert AJ, found that the respondent had suffered injury in the slip and fall on the stairs. His Honour found that the appellants had been in breach of their duty of care, and that the respondent had been contributorily negligent whereby his damages should be reduced by 15 per cent. He apportioned responsibility for the injury two thirds: one third between the appellants and the Alchins. The respondent obtained a verdict and judgment for $462,508. 6The issues on appeal were injury, breach of duty of care and apportionment of responsibility. Injury 7A shearer who wanted more sheep in his pen called out "sheepo", and the respondent's duties included responding to a call. The pens were behind the shearing board, separated from it by a partition with gates through which a shearer would take a sheep from the pen and after shearing it push it down a chute into an area below the pens. In responding to a call the respondent went up the stairs from the floor of the shed and through another gate immediately opposite them, did the penning up, and then returned through the gate and down the stairs. 8Work in the shearing shed began at 7.30 am, with two smoko breaks and a lunch break. The respondent said that he was injured during the first work period. He had penned up on that morning on two prior occasions. On a third occasion, at about 9.00 am, he answered a call of "sheepo" and, on returning through the gate, stepped down to the slightly lower level of the shearing board and turned and closed the gate. He turned anti-clockwise and stepped forward with his left foot, and then put his right foot forward to "slow myself down a bit before I descend the shallow stairs". The ball of his right foot stepped on the yellow line painted at the edge of the board at the top of the stairs with his toes just overhanging. His right foot slipped out from beneath him and he fell as earlier described. 9The respondent said that when he hit the floor "it sort of bounced me back up to me haunches and I stood straight back up". He said that he thought he had pulled a muscle and tried to carry on, and went back to the wool press, but his back was troubling him and "seized up". Just before the 9.30 am smoko he spoke to Mr Alchin and said he could not carry on. After a short delay, Mr Alchin drove him into Temora for medical attention. 10The trial judge made significant findings contrary to the respondent's reliability and credibility, and said that he regarded him "as a most unsatisfactory witness and as having been untruthful" (at [64]) in respects he identified. His Honour accepted the evidence of Mr Ralph Corby that when the respondent arrived at the shed that morning he said that his back was playing up, and of Mr Kevin Campbell that he heard the respondent tell Mr Corby that he had a sore back. He accepted the further evidence of Mr Corby that later in the morning after Mr Corby and the respondent both penned up sheep in response to a shearer's call the respondent said, when he had returned down the stairs and Mr Corby was descending them, that he had hurt his back. 11His Honour nonetheless was "persuaded on the balance of probabilities that the plaintiff did fall when he was endeavouring to descend the stairs from the shearing board" (at [70]). His Honour's reasoning may be summarised as follows - * Although he had accepted the evidence of Messrs Corby and Campbell, that did not exclude that the respondent had subsequently fallen as he had said. * The respondent had seen Dr Geri in Temora shortly after 12.40 pm, and Dr Geri's notes recorded a history, "slipped down on the board whilst working". His Honour said - "65. ... For the purposes of advancing a claim for workers' compensation benefits it mattered not from the plaintiff's point of view how he hurt his back, as long as it was a work related event. It is unlikely in the extreme that when he first visited the doctor's surgery, so soon after leaving work, that the plaintiff would have been thinking ahead to a possible common law claim for damages in which it would be to his advantage to fabricate a fall." * Dr Geri had stated the history in materially the same terms in a WorkCover medical certificate on the same day, "whilst working he slipped downstairs of the board". * Subsequent investigation showed pre-existing pathology in the respondent's lumbar spine. * Although the respondent's back was not pain free on the morning of 31 October 2005 - " ... I think it probable that something happened at work in the course of the morning which rendered him incapable of continuing. A fall such as the plaintiff described seems to be a likely explanation for the onset of acute low back pain and disability, particularly having regard to the pre-existing pathology in the plaintiff's lumbar spine." (at [69]) 12There were some other matters in the parties' submissions as recorded by his Honour to which he did not specifically refer in the paragraphs explaining his conclusion. They are within the matters referred to later in these reasons. 13It is arguable that his Honour's finding was not truly credibility based, in that he found the respondent a most unsatisfactory witness and acted only upon objective indicators that the fall had occurred as the respondent said it had occurred. Alternatively, the finding could be said to have been credibility based in that his Honour ultimately accepted the respondent's evidence as to the circumstances of his fall notwithstanding that he otherwise found the respondent a most unsatisfactory witness. I incline to the former view, but in any event will act upon it as the view more favourable to the appellants. As a result while other appellate constraints (and advantages) as discussed in Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85; (2009) 53 MVR 187 at [3] and cases there mentioned remain, the appellants do not face in full what might be called the Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 constraint of having to show glaring improbability or incontrovertible evidence to the contrary of the trial judge's finding. 14Nonetheless, for the reasons which follow I am not persuaded that the trial judge's finding should be displaced. 15The trial judge's findings adverse to the respondent's reliability and credibility should be noted. They were, in short, that in denying that there was a handrail beside the steps to the shearing board the respondent was untruthful; that in saying that the surface of the shearing board had been varnished he had been untruthful; that in saying that the surface of the shearing board was very shiny he was "at best to be considered unreliable" (at [50]); that in saying that the surface of the shearing board was slippery and was roughened up by shearers with emery paper he was "at best incorrect" (at [51]); that the respondent's evidence that he had to run to keep up with his duties in the shed was not the fact; and by implication, that his denial of the evidence of Messrs Corby and Campbell concerning complaint of a sore back was not to be accepted. As to matters going to damages, his Honour said that the respondent's evidence as to his income prior to October 2005 "was both unsatisfactory and untruthful and I can only conclude that it was given in an endeavour to inflate the damages claim which the plaintiff was presenting ... " (at [37]); that his evidence denying drug use and about use of a walking stick was "unsatisfactory" (at [39]-[40]); and that his evidence concerning assistance in shaving was "evasive and unconvincing" (at [43]). 16His Honour's views in these respects, which the respondent did not seek to challenge on appeal, are a significant consideration against acceptance of the respondent's evidence of falling as he said he did, although it is trite that it is open to the fact-finder (judge or jury) to reject the evidence of a witness in part and accept it in part. 17Other considerations on which the appellants relied were as follows; I add some comment upon each derived broadly from the respondent's submissions. 18First, at the beginning of the day the respondent had complained of a sore back, and later he had said to Mr Corby that he had hurt his back. However, the appellants accepted on appeal that the respondent's duties as wool presser and otherwise were not light work and that the sore back had not prevented him from working; it was not their case that he suffered no injury in the shed, and they accepted that he did something to his back and in fact became quite severely disabled. The evidence of telling Mr Corby that he had hurt his back was not more specific, nor related in time to when he went off work just before 9.30 am. It remained open that there may have been a fall later in the morning which caused injury. 19Secondly, Mr Alchin gave the evidence summarised by the trial judge (at [23]) - "That morning Mr Alchin said he heard a call of 'sheepo', that he looked around and that he saw the plaintiff going up the stairs to pen up. Later he said he saw him walking down the stairs and he said that he did so 'just normally'. Then when he walked past Mr Alchin said that he had twisted his back." 20The trial judge did not make a specific finding as to this evidence, but in his review of the parties' submissions recorded the submission on behalf of the respondent that it was improbable that Mr Alchin would have signed the employee's compensation claim form completed by the appellant, in which the accident was described as "slip down stairs", or the employer's report of injury form in which the accident was described as "slipped on stairs - back injury", if he knew the documents to be untrue; and his Honour said that although Mr Alchin gave evidence to the effect that in signing he accepted the respondent's account of events "it was inherently improbable that it [sic] would have done so if he had believed the plaintiff did not slip or fall" (at [61]). The forms were dated 2 November 2005. I infer that his Honour considered that Mr Alchin's signature of the forms meant that the evidence abovementioned was consistent with the respondent having fallen as he said he did, at the least in that Mr Alchin must have accepted that the respondent could have fallen at a later time. 21Thirdly, there was no evidence of anyone else in the shed seeing the fall. There were five shearers and two roustabouts, Mr Alchin who was supervising and assisting and the first appellant who was doing the wool classing, and Messrs Corby and Campbell who were station hands. However, the shearers and others in the shed were likely to have been occupied, it was accepted that it was not a quiet place, and subject to the next matter it is not improbable that a fall as described by the respondent went unnoticed. 22Fourthly, the histories recorded by two doctors called in the respondent's case included that he was helped up after the fall. Mr Alan Nichols, who examined the respondent in May 2007 for the purposes of a medico-legal report, recorded that "[h]e required help to get up", and Dr Frank Breslin, who examined the respondent in July 2008 for a medico-legal report, recorded that "[h]e needed help to get up". The respondent said in evidence that he gave no such history. The appellants submitted that what the doctors recorded could only have come from the respondent, and that if he was helped up someone else in the shed must have seen the fall but was not called to give evidence. They submitted that the respondent had given evidence of bouncing back up in order to explain (inferentially, falsely) why there was no eye-witness evidence. 23This last had not been directly put to the respondent; he was asked whether he appreciated that if someone helped him to stand up "that would be important", and he answered, "No". The discrepant history is a material consideration not only for credibility, but also for a possible inference against the respondent's case from the absence of evidence from someone who may have helped him up. However, the correctness of recorded histories in medical reports much later on may be open to question (see Davis v Wagga Wagga City Council [2004] NSWCA 34; (2004) 4 DDCR 358 at [35]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]; Mastronardi v State of New South Wales [2009] NSWCA 270 at [87]); others in the shed were equally available for the appellants to call to give evidence; and the submission of false evidence by the respondent to explain an absence of eye-witness evidence may attribute too much forensic understanding to the respondent. 24Fifthly, the appellants submitted that the "mechanics of the fall" were implausible. They submitted to the effect that the respondent would not, in the brief commencement of going down the stairs after he had closed the gate, gain such forward motion that it was necessary to check himself, with his right foot then slipping and the forward motion taking him down the stairs without hitting them as he fell. No expert evidence spoke against this, and it is not self-evidently improbable. More to the point, the suggested lack of forward motion was put to Mr Waddell, an engineer and ergonomist called in the respondent's case, who explained how "you can get quite a bit of momentum built up in that short distance and it is difficult to slow it down if you don't have enough friction". 25Considerations on which the respondent relied, similarly with comments upon each, were as follows. 26First, the respondent consistently said at the time to the effect that he had slipped and fallen down the stairs. Apart from Dr Geri's notes and WorkCover medical certificate and the employee's compensation claim form, when Mr Alchin took the respondent into Temora they went to an address where his de facto partner, Ms Melissa Manwaring, was visiting, because the medical centre was not yet open. Ms Manwaring later took the respondent to Dr Geri. She gave evidence that the respondent said "I slipped at work" and "I slipped off a step and hit my back on the step", and her evidence in this respect was not challenged. There is not complete consistency with the respondent's evidence so far as he told Ms Manwaring that he hit his back on the step, but there is consistency of a slip and fall in relation to the stairs. 27I have referred to the trial judge's reason for seeing significance in the history recorded by Dr Geri, to the effect that it was unlikely that the respondent would have had the foresight to fabricate a false account of the circumstances of his injury. The appellants submitted that there was no evidence of the respondent's knowledge of what was required for the purposes of advancing a claim for worker's compensation benefits, and that in any event an imperfect knowledge could cause a dishonest person to fabricate an account of a fall; they adverted to the findings of the respondent's untruthfulness. However, although the trial judge did not refer to it in this connection, what the respondent said to Ms Manwaring has particular significance. Mr Alchin had dropped the respondent off and driven away, and so far as appears there was no one else present at the time the respondent told Ms Manwaring what had happened. What the respondent said in an account to his partner, within hours of the event, is entitled to considerable weight. While contrivance extending to a false account to his partner cannot be excluded, it does not seem likely. 28Secondly, at least on appeal it was accepted that the respondent had suffered an injury to his back on the morning of 31 October 2005. The sore back of which he complained to Messrs Corby and Campbell did not prevent him from working early in the morning, and later in the morning he was unable to work: as the trial judge reasoned, "something happened at work in the course of the morning which rendered him incapable of continuing" (at [69]). In essence, the appellants contended that the injury might have occurred otherwise than by a slip and fall down the stairs as claimed by the respondent. However, there was no suggestion in the appellants' case of some other way in which the respondent might have suffered his injury. That is not to place a burden of proof on the appellants. The appellants did not have to suggest or prove some other occasion of injury during the morning ( Rhesa Shipping Co SA v Edmunds (1985) 1 WLR 948 esp at 951 per Lord Brandon), and it was open to the trial judge to conclude that the respondent had not discharged his burden of proof (ibid at 955-6), but in determining whether on the probabilities the respondent was injured in the manner he described other possible occasions of injury should be considered. Perhaps the respondent's duties gave rise to other occasions, for example abrupt movement when penning up sheep, but no such occasion was put to him. 29Not all of the matters in the preceding paragraphs were expressly taken into account by the trial judge in coming to his conclusion. When there are considerations for and against, each to be assessed for its own weight, the decision is evaluative, and notwithstanding what I have said concerning the Fox v Percy constraint the trial judge's conclusion commands respect, and this Court must be persuaded that it was wrong: see Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 at [18]-[22]. 30In my opinion his Honour's essential reasoning holds good, particularly having regard to the evidence of Ms Manwaring, and on the probabilities the respondent was injured in the manner he described. The respondent undoubtedly suffered an injury, and he gave a closely contemporaneous account of slipping on the stairs and falling including to Ms Manwaring. The trial judge's finding was open to his Honour and I am not persuaded that it was incorrect. 31I should deal with a particular submission by the appellants, that the trial judge had erred in placing on them an obligation to exclude that the injury had occurred by a slip and fall down the stairs as claimed by the respondent. The submission was founded upon an observation by his Honour in connection with the evidence of Messrs Corby and Campbell, and perhaps Mr Alchin, which should be seen in context - "62 Notwithstanding Mr Rewell's submissions to the contrary I do not conclude that the evidence given by Mr Campbell and Mr Corby ought not to be accepted. I think each of these witnesses was both honest and truthful and I do accept their evidence that when the plaintiff arrived at the shearing shed on 31 October 2005 he made a complaint about his back. The making of this complaint does not however exclude the possibility of a subsequent fall having occurred. 63 It seems to me after much reflection on this issue that the evidence introduced by the defendants does not eliminate the possibility of the plaintiff having fallen as claimed . It must have been Mr Alchin's conclusion that nothing that he had seen excluded such a possibility. Otherwise he would not have completed Exhibit D, the Employers' Report of Injury Form, in the way in which he did. I do not reject Mr Corby's evidence that he went to the pen area with the plaintiff that morning, but a fall could have occurred on a later trip to the pen area. The plaintiff claims the fall happened after his third visit that morning." (italics added) 32The appellants complained of the italicised passage. They submitted that it was not for them to eliminate the possibility, but for the respondent to establish the probability. 33I do not think that the trial judge reversed the burden of proof. The italicised passage was an observation on the significance to be attributed to the evidence in question, conveying that it was not such that if it was accepted, it followed that the respondent could not have slipped and fallen as he claimed. There was no error in that observation, and his Honour applied the burden of proof correctly in finding himself "persuaded on the balance of probabilities that the plaintiff did fall when he was endeavouring to descend the stairs from the shearing board" (at [70]). Breach of duty of care 34It was not disputed that the appellants as occupiers were under a duty to provide to those working in the shearing shed a reasonably safe place of work, including a reasonably safe means of access between the floor of the shed and the shearing board. The trial judge found that there had been breach of the duty of care in that a non-slip strip should have been placed at the top of the stairs where there was the yellow line at the edge of the shearing board. 35When the shearing shed was constructed in 2003 the appellants sought to follow the recommendations in a WorkCover publication "Health and Safety at Work - Shearing Guide 2002" ("the Guide"). The Guide relevantly referred to clearly identifying the edge of the shearing board visually with paint or tape or installing a guardrail and having steps with a "slip-resistant surface". The parties accepted that the part of the shearing board at the top of the stairs should be regarded as a step. 36Australian/New Zealand Standard AS/NZS 4663:2004 "Slip resistance measurements of existing pedestrian surfaces", which had been introduced in 2002 and updated in 2004, defined "slip resistive" as a pedestrian surface "where the available friction is sufficient to enable a person to traverse that surface without an unreasonable risk of slipping". The shearing board at the top of the stairs complied with AS 4663 as slip resistive. The stairs also complied with AS 1657-1992 "Fixed platforms, walkways, stairways and ladders in design, construction and installation". 37When the shed was at practical completion a co-author of the Guide, Mr Terry O'Connor, who was also a WorkCover inspector or representative of the Australian Workers Union (the evidence was unclear), was invited to inspect it, and he commented that the construction was outstanding. There was no more detailed evidence of his inspection, and in particular of the attention he paid to the stairs. Since the construction of the shearing shed there had been no complaint that the shearing board or the stairs were slippery. 38The appellants' reliance on these matters was met by the respondent's reliance on the evidence of Mr Waddell. Mr Waddell's qualifications were not questioned. 39In Mr Waddell's opinion, there were particular risk factors which called for a non-slip strip at the top of the stairs and on the edge of the nosings of the steps. Non-slip strips at those locations was a measure which was well known as at 2003 and a subject-matter in the 1996 Building code of Australia ("the BCA"). The BCA recommended that stair treads have a non-slip finish or an adequate non-slip strip near the edge of the nosings. 40The factors were that the surface of the shearing board was just at the requisite coefficient of friction; that work in the shed took place at speed; that the respondent (and I take it he meant anyone in his position) had to move from one place to another at regular intervals; and that it was likely that there would be contaminants (meaning sheep urine or excrement picked up in the pens) on the soles of the respondent's shoes as he left the penning area. Mr Waddell said that each of those factors "increases the risk of a slip so for each factor the importance of having a non-slip strip increases". He said that the coefficients of friction in the standards were designed for normal pedestrian conditions, and that the conditions in the shearing shed were not normal because of the factors. 41According to Mr Waddell, and it was not disputed, a non-slip strip at the top of the stairs would have brought a much greater coefficient of friction whereby there was "a very, very low possibility of slipping". He agreed that a non-slip strip would be more prone to have foreign material adhere to it, and so would be more difficult to clean. 42The appellants called no expert evidence in response to the evidence of Mr Waddell. It was apparent from one of Mr Waddell's reports that they had obtained a report of Mr David Beck, upon which he commented. Mr Beck was not called. 43The trial judge correctly said that compliance with the standards was a relevant consideration "but such compliance does not necessarily satisfy the duty of care owed" (at [89]). His Honour came to his conclusion - "89 It is here relevant to address the issue posed by Mason J in the much cited passage in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47: '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.' 90 The reasonable person is to be put in the position of the defendants as the occupiers of the shearing shed with a full appreciation as to the nature of the shearing activities and the activities associated with them. The evidence establishes that the shearing operation was not only a busy time for the shearers themselves but for other persons working in the shearing shed. Associated activity included regular use of the stairs in order to gain access to the area behind the board. Response to a call of "Sheepo" required a worker to enter the area behind the board to move sheep into the catching pens. The evidence was that the regular procedure was that sheep were emptied out before entering the shearing shed building. Nevertheless, as Mr Hill acknowledged, some sheep failed to empty out completely and he agreed that it was inevitable that when a large number of sheep were in the shed for the purpose of shearing there would be excrement and urine which dropped onto the timbers (T239). It seems to me that there was a foreseeable risk that those entering the pen area would leave that area with contaminant on their footwear, and would carry that contaminant onto the board and the stairs. 91 I conclude that it was reasonably foreseeable having regard to the nature of the activities being conducted in the course of the shearing operation that a worker might slip at or near the edge of the shearing board, after moving sheep into the catching pens behind it. I am persuaded by the evidence of Mr Waddell and by Mr Rewell's submissions that the exercise of reasonable care in the circumstances called for the provision of a non slip strip on the edge of the board immediately above the stairs which would have been a relatively inexpensive measure and an effective one to eliminate the risk of slipping. In so concluding I accept the uncontradicted evidence Mr Waddell gave as to the effect that the placement of the non slip strip there would have had. 92 Mr Hill agreed that the placement of such a strip would have been safer than having merely a yellow line. Whilst Mr Hill thought that the cleaning of the non-slip strip would be a disadvantage he did acknowledge that he did not know if it would be more difficult to clean. It does not seem to me that any extra cleaning effort associated with the placement of a non slip strip would have imposed an unreasonable demand upon the defendants, particularly in view of the very limited area in which the placement of the non slip strip was rendered desirable. For the reasons stated I find that negligence has been proved." 44There is a difficulty in the trial judge's reasons, although not one on which the appellants relied. The proceedings were governed by the Civil Liability Act 2002 ("the Act"). Determining whether there had been breach of the duty of care required attention to the general principles in s 5B of the Act and, to the extent they arose, the other principles in s 5C. And the passage cited by his Honour from Wyong Shire Council v Shirt (1980) 146 CLR 40 was not the complete exposition by Mason J, but only its commencement referring to foresight of risk of injury; Mason J went on to describe the important task of determining what a reasonable man would do by way of response to the risk and the matters for consideration in doing so. 45Counsel on appeal, who had been counsel at trial, accepted responsibility for failing to address breach of the duty of care through the Act in their submissions to the trial judge. They regarded the general principles as broadly equivalent to the common law approach as expounded by Mason J in Wyong Shire Council v Shirt , and the appellants did not submit that his Honour's conclusion was undermined by failure to attend to the Act in this respect. 46The appellants submitted that, whether on a determination of what the reasonable man would do as spoken of in Wyong Shire Council v Shirt or through regard to the principles in the Act, the trial judge's finding that the exercise of reasonable care required that they put a non-slip strip at the top of the stairs imposed too high a duty on them. In their submission, they were obliged to provide a means of access to and egress from the shearing board which was reasonably safe, and they had done so by constructing the shearing shed in accordance with the Guide; to which they added the inspection by Mr O'Connor and the absence of any complaint, in particular from Mr Alchin. They said that while a non-slip strip would have made the stairs safer, that did not mean that there had been failure to provide stairs which were reasonably safe. 47The appellants did not have to make the stairs as safe as they could possibly be made, but had to take reasonable care under the circumstances. Hindsight should be avoided as a determinant of whether they took reasonable care. As the respondent submitted, however, the Guide was not definitive. A general heading recommended that "the designer/builder should seek the views of experienced yard workers". Steps were one of the areas for "risk assessment", for which "[e]xample control measures" included a slip-resistant surface, but the risk assessments were part of the topic of hazard identification. Under that heading it was said - "Look at how the worker gets access to the shed, particular [sic] if it is a 'raised' shed. Once in the shed, look at aspects of lay out and design for potential for harm as workers move from and to their work-stations, particularly, shearers moving to and on, the board." 48On the evidence of Mr Waddell, although it was not specifically related to the Guide, there were the particular factors going to risk of injury in use of the stairs beyond the guidance provided by the Guide, whereby the reasonable response to the risk of injury called for non-slip strips on the steps including at the edge of the shearing board at the top of the stairs. Mr Waddell said that the coefficients of friction in the standards were for normal pedestrian conditions on horizontal surfaces, and that the factors "all contribute to some abnormality in that regard". 49It was put to Mr Waddell that "one sees stairs like this without any non-slip strips at the landing in numerous commercial and industrial applications". He answered, "One shouldn't", and that he had not seen many "and when I do I remark that there should be some treatment there because there should". Too much reliance should not be placed on this evidence, since it is imprecise as to the circumstances in which (by inference) non-slip strips were generally found and Mr Waddell's experience with commercial and industrial sites (and with shearing sheds) was not exposed. But Mr Waddell's evidence was replete with reference to the common practice of having non-slip strips on stairs, and the evidence in question is an indication of what was mostly seen in locations akin to the shearing shed with its likelihood of contamination of footwear by urine and excrement, and of what would reasonably be done. 50Having regard to s 5B of the Act, the risk of injury to those working in the shearing shed was foreseeable. It was not insignificant, and while there had not been any previous falls the prospect of a slip and fall was real given the pace of work and the likelihood of contaminated footwear. Even a fall of about 810 mm onto the concrete floor could cause serious injury, and the remedy of a non-slip strip was easy and cheap. A non-slip strip at the top of the stairs, as distinct from the edge of the shearing board elsewhere, would not catch fleeces and impede the shearing operations. Ascribing social utility to sheep-shearing, or to the respondent's duties in the shearing shed, was but touched on in submissions and need not be explored (cf Wilson v Nilepac Pty Ltd [2011] NSWCA 63 at [128]-[130], [171]); shearing has obvious economic desirability, but not such as to reduce simple precautions the reasonable person would take to guard against injury from slipping on stairs in a shearing shed. 51No evidence was led by the appellants to counter that of Mr Waddell. He had prepared his reports on instructions that there was no handrail for the stairs, but it was not suggested that the presence of a handrail (as was in due course found by the trial judge) made any difference to his opinion concerning the particular risk factors. 52The appellants rather faintly submitted that the factor of the speed at which work took place was not made out because the trial judge found that the respondent's complaint that he had to run to keep up with his duties could not be accepted, but there is no doubt that work had to be carried out at some speed. The trial judge accepted Mr Waddell's evidence. In my opinion, no error has been shown in his Honour's acceptance of Mr Waddell's evidence and his conclusion that, despite the attention given by the appellants to compliance with the Guide, the exercise of reasonable care required the non-slip strip. 53It may be noted that in Sheridan v Borgmeyer [2006] NSWCA 201 it was held that the occupiers of a shearing shed were in breach of their duty of care owed to a shearer in failing to have a guard rail at the edge of the shearing board, notwithstanding evidence that it was not common to have a guard rail. An applicable standard required a guard rail. The Guide does not: it says that one should "consider risk of falls from" the shearing board, and installation of a guard rail is suggested as an alternative to identifying the edge of the board with paint or tape. Here also the Guide was not definitive. Apportionment 54The respondent's employer, the Alchins, were in breach of their non-delegable duty of care owed to the respondent. For the purposes of s 151Z of the Workers Compensation Act there had to be determined a notional just and equitable contribution by the Alchins having regard to the extent of their responsibility for the injury to the respondent. In the operation of s 151Z, a lesser apportionment to the Alchins was in the respondent's interests and a greater apportionment was in the appellants' interests. 55The trial judge set out the competing submissions. The respondent said that the Alchins were not in a position to install a non-slip strip and thus safeguard him against the risk that materialised. The appellants said that they had provided a slip-resistant shearing board in accordance with the Guide, and that the Alchins should have been alert to any potential slip hazard and were in a position to control the speed at which the respondent was required to work and the number of persons provided to assist him. Other than by the apportionment to which he came, the trial judge did not indicate how he weighed up these matters. 56It is well established, see Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529, that - " A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed." 57The appellants submitted that the Alchins should have been found at least 50 per cent responsible for the respondent's injury, having regard to breach by the Alchins of their non-delegable duty of care requiring them to be alert to any potential slip hazard, and when - (a) the Alchins were familiar with the shearing shed from shearing operations on a number of occasions; (b) Mr Alchin was present in the shed; (c) the Alchins controlled the speed at which an employee in the position of the respondent was required to work; and (d) it could not reasonably be doubted that the appellants would have installed a non-slip strip if asked. 58The appellants contrasted the Alchins' default with their compliance with the Guide and receipt of a favourable opinion from Mr O'Connor, and pointed to the absence of any complaint as to the stairs including from Mr Alchin. 59The respondent submitted that no error had been shown in the trial judge's apportionment. He said that the trial judge was aware of the Alchins' non-delegable duty of care, that the Alchins had had nothing to do with the design and construction of the shearing shed, and that there was little that they could do "to alter the shearing board" when they came to shear. He said that a fast pace of work is inherent in shearing operations, as the appellants must have known, and that the appellants were not absentee occupiers; indeed, the first appellant did the wool classing. 60Although the appellants had constructed the shearing shed, the risk of injury was as obvious to Mr Alchin as it was to the appellants. It should be accepted that a non-slip strip would have been placed at the top of the stairs (and on the steps) if he had asked for it; it was a simple matter, and there was no reason for the appellants to refuse. I find it very difficult to distinguish between the responsibility of the appellants and the responsibility of the Alchins; so much so that, particularly where his Honour did not clearly explain the basis upon which he came to it, I consider that the trial judge's apportionment was erroneous and there should have been a 50:50 apportionment. The difference is quite significant, and it is not tinkering with the trial judge's apportionment to substitute that apportionment. 61The appellants said, and the respondent did not contest, that in this event the respondent's damages should be reduced to $346,881. Orders 62The appellants have not succeeded on liability, but have succeeded in obtaining a not insignificant reduction in the respondent's damages. In the circumstances I consider that a just disposition of costs is that there be no order as to costs, whereby the appellants and the respondent each bear their own costs. 63I propose the following orders - 1. Appeal allowed in part. 2. Set aside the verdict and judgment for the plaintiff for $462,508 and in lieu thereof verdict and judgment for the plaintiff for $346,881. 3. No order as to costs. 64CAMPBELL JA : I agree with Giles JA. 65HANDLEY AJA : I agree with Giles JA. ********** 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. Decision last updated: 27 September 2011