Australia: Shearing through issues of credit, design and construction of premises and an employer's liability
Curwoods Case Note

Judgment date: 27 September 2011

Hill & Anor v Richards [2011] NSWCA 291

New South Wales Court of Appeal¹

In Brief

• The absence of prior accidents and complaints is only one factor to be taken into account in determining breach of duty.
• Even if the design and construction of premises comply with the relevant Australian Standards, an occupier of premises may be found to have breached its duty of care to a plaintiff.
• When determining an employer's liability, for the purpose of assessing the reduction to be made pursuant to s 151Z(2) of the Workers Compensation Act (the WCA), the Court must weigh the different considerations arising in each specific case.

Background

The plaintiff, Mr Mark Richards (Richards), was employed as a wool presser by MF & DA Alchin (the Alchins). The Alchins were engaged by Tony Hill and Diana Hill (the Hills), the appellants in the appeal, to provide a shearing team in a shed owned and occupied by the Hills.

The shearing shed on the Hills' premises had been constructed in 2003. When the shearing shed was built, the design and construction adhered to recommendations contained in a WorkCover Guide in relation to health and safety in the shearing industry. Mr Hill gave evidence that a co-author of the WorkCover publication, who was also either a WorkCover inspector or representative of the Australian Workers Union at the relevant time, had inspected the shed and made positive comments about its design and construction. Since the construction of the shearing shed there had been no complaints that the shearing board or the stairs were slippery.

Part of Richards' duties as a wool presser required him to ensure sheep were in a pen so that the shearers could work efficiently. The shed was designed such that there was a raised board or platform on which the shearing took place. The board was erected over a concrete floor. There were stairs at one end of the board which provided access between the board and the floor of the shearing shed. There was a handrail along one side of those stairs. There was a gate at the top of the shearing board.

Richards alleged that, on 31 October 2005, he was working at the Hills' shearing shed. Mr Hill was present at the shearing shed throughout the course of the morning working as a wool classer. Mr Michael Alchin was also present and had seen Richards walk up and down the stairs a number of times throughout the course of the morning.

Richards had been working for several hours on the morning of 31 October 2005 during which time he had traversed the stairs between the board and the floor on several occasions. Richards had been on the board when he closed the gate behind him before turning to descend the stairs. Richards alleged that he placed the ball of his right foot on a yellow line painted on the edge of the board at the top of the stairs. As he did so his right foot slipped out from beneath him causing him to fall down the stairs and injure his back.

Mr Ralph Corby, who was working in the shearing shed, had had a conversation with Richards before work was commenced on the morning of Richards' accident during which Richards said he had a sore back. The conversation was overheard by Mr Kevin Campbell. Both Mr Corby and Mr Campbell were called to give evidence about the conversation and their evidence in respect of the content of the conversation was accepted by the trial Judge.

Mr Waddell, Richards' expert, gave evidence that, despite the surface of the board being slip resistant and the design of the stairs being in accordance with the relevant Australian Standards, the Hills should have applied a non-slip strip on the edge of the board to increase the safety to people descending the board and stairs because of the build-up of contaminants (meaning sheep urine or excrement picked up in the pens) on the soles of Richards' shoes as he left the penning area.

Mr Waddell also gave evidence 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 other factors such as the speed of work in shearing sheds and the presence of contaminants on the floor.

The Hills called no expert evidence in response to the evidence of Mr Waddell even though it was apparent from one of Mr Waddell's reports that they had obtained a report from Mr David Beck upon which he commented.

Supreme Court Decision

Richards brought proceedings in the Supreme Court of New South Wales alleging the Hills were negligent.

The trial Judge, Studdert AJ, found that many aspects of Richards' evidence were both unsatisfactory and incorrect. He noted that Richards had provided Mr Waddell incorrect histories of how his injury occurred. The trial Judge also found that Richards' evidence in relation to his income prior to the accident was "both unsatisfactory and untruthful". The trial Judge also found that Richards' evidence in relation to his: drug use; requirement to use a walking stick; level of disability; and reliance upon his wife to provide him with attendant and domestic assistance, was unsatisfactory.

The Hills contended that, given Richards' credit was in issue and that there were inconsistent histories about how Richards' accident occurred, Richards' account of how he fell and sustained injury should not be accepted. Despite the unsatisfactory and untruthful evidence given by Richards, the trial Judge found that on the balance of probabilities Richards did fall as alleged.

The trial Judge determined that Richards' damages should be reduced for his own contributory negligence by 15% for failure to use the handrail. In this regard it is important to note that Richards had denied the handrail was in place. The trial Judge did not accept Richards' evidence in this regard and found the handrail was in situ at the relevant time.

The trial Judge also found that the Alchins, as Richards' employer, were in breach of their non-delegable duty of care to Richards. In apportioning liability for the purposes of s 151Z of the WCA, the trial Judge apportioned liability two-thirds to the Hills and one-third to the Alchins.

The trial Judge assessed Richards' damage at $816,190. After reductions for Richards' own contributory negligence and the Alchins' liability were taken into account, Richards was entitled to a verdict in his favour in the sum of $462,508 plus costs.

Court of Appeal

The Hills appealed the findings of the trial Judge in respect of: whether Richards had injured himself in the manner alleged; whether there had been a breach of the duty of care owed by the Hills; whether there had been contributory negligence by Richards; and the extent of any apportionment between the Hills and the Alchins for the purposes of s 151Z of the WCA. In the Court of Appeal, Giles JA delivered the unanimous judgment of the Court. Giles JA noted the trial Judge's findings in relation to Richards' credit and the unsatisfactory nature of the evidence Richards gave. He found that the trial Judge's findings "command[ed] respect" and he was not convinced that there was any reason to disturb the trial Judge's findings that Richards' accident had occurred as alleged.

Giles JA noted that the trial Judge had, quite correctly, found that compliance with the relevant Australian Standards was a consideration in determining whether there had been a breach of the Hills' duty of care. He concurred with the trial Judge that compliance with the relevant Australian Standards did not exculpate an occupier of premises of liability. Giles JA did, however, conclude that the trial Judge had adopted the incorrect test in determining whether there had been a breach of the Hills' duty of care to Richards. The trial Judge had made the determination by reference to the often-cited passage in Wyong Shire Council v Shirt ², commonly known as the "Shirt Calculus", in finding the Hills had breached their duty of care. Giles JA stated that when determining whether there has been a breach of duty of care one must consider s 5B of the Civil Liability Act (the CLA).

Giles JA found that in determining breach by reference to s 5B of the CLA, there was a risk of injury to those working in the shearing shed which was both foreseeable and not insignificant. He found that the application of a non-slip strip on the board, whilst not being required by any Australian Standard, would have reduced the risk of injury.

In respect of the apportionment of liability between the Hills and the Alchins, Giles JA noted that the trial Judge did not indicate how he had weighed up the respective liabilities of each in determining apportionment. The Hills submitted that the Alchins should have been found at least 50% responsible for Richards' injury having regard to: the non-delegable duty of care owed by the Alchins; the fact that the Alchins were familiar with the shearing shed; Mr Alchin was present in the shed at the time Richards was injured; the Alchins were in a position to control the speed at which Richards worked; and the likelihood the Hills would have applied a non-slip strip to the board if the Alchins had made such a request. Giles JA was guided by the well-established principle enunciated in Podrebersek v Australian Iron & Steel Pty Limited ³ in relation to determining apportionment where it was stated that:

Giles JA found that there had been an error on the part of the trial Judge and determined that the apportionment between the Hills and the Alchins should be assessed on a 50/50 basis. Accordingly, Richards' damages were reduced to $346,881.

Implications

The case demonstrates that even where a plaintiff's credit and evidence are found to be unsatisfactory, objective factors will be considered in determining both liability and damages. While the outcome in this case goes against the trend of appellate decisions in other cases involving falls on stairs, the decision should be treated with caution as the conditions in a shearing shed cannot be equated with stairs in a domestic or commercial situation for normal pedestrian use for which the relevant Australian Standards were designed. The case also demonstrates that compliance with relevant Australian Standards alone is not sufficient to avoid a finding that a party has breached its duty of care to an entrant on their premises.

The Court of Appeal has emphasised that when assessing the respective liabilities of parties, consideration of proportion, balance and relative emphasis is necessary. The case serves as yet another reminder that when determining whether there has been a breach of duty of care one must revert to s 5B of the CLA and not common law principles. Where a plaintiff calls an expert to give evidence, the failure of the defendant to call evidence in reply can be fraught with danger as demonstrated by this case.

Footnotes

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