Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Garzo v Liverpool / Campbelltown Christian School. [2012] NSWCA 151
• Hearing dates: 7 March 2012
• Decision date: 25 May 2012
• Before: Basten JA at 1; Meagher JA at 21; Tobias AJA at 30

Decision

Appeal dismissed with 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: TORTS- Negligence - Appellant slipped and fell on painted strip of pedestrian crossing within school grounds - Whether primary judge erred in concluding that the respondents were not negligent - Whether the respondents reasonably ought to have known that the crossing was unduly slippery on the date of the appellant's fall; TORTS - Negligence - Duty of care - Whether respondents breached their respective duties of care in failing to repaint the surface of the pedestrian crossing using a paint which was capable of producing slip resistant results when tested in wet conditions - Whether the legal duty requires precise conformity to a specific standard of slip resistance; TORTS- Negligence - ss 5B and 5C Civil Liability Act 2002 - Whether the respondents failed to take reasonable precautions - Whether the risk of harm to a person slipping on the wet surface of the crossing was foreseeable and not insignificant - Whether primary judge was too narrow in the description of the risk of harm that he adopted - Whether it can be established that professional testing should have been undertaken shortly before the accident and, if done, would have demonstrated that the condition of the crossing was such that a reasonable person should have taken steps to decrease its slipperiness; TORTS - Negligence - Causation - s 5D Civil Liability Act 2002 - Whether the negligence was a necessary condition to the occurrence of the appellant's injury
• Legislation Cited: Civil Liability Act 2002 (NSW)
• Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420; Amaca Pty Ltd v Booth [2011] HCA 53; 86 ALJR 172; Amaca Pty Limited v Ellis [2010] HCA 5; (2010) 240 CLR 111; Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241; Garzo v Liverpool/Campbelltown Christian School Limited & Anor [2011] NSWSC 292; Harmer v Hare [2011] NSWCA 229; (2011) 59 MVR 1; Harris v Woolworths Ltd [2010] NSWCA 312; March v Stramare [1991] HCA 12; (1991) 171 CLR 506; Strong v Woolworths Ltd [2012] HCA 5; 86 ALJR 267; Zanner v Zanner [2010] NSWCA 343
• Category: Principal judgment
• Parties: Antoinette Paula GARZO (appellant); LIVERPOOL/ CAMPBELLTOWN CHRISTIAN SCHOOL (first respondent); T & J TURNER BUILDING SERVICES PTY LTD (second respondent)
• Representation: Counsel: S Norton SC/ M M Fraser (appellant); J E Sexton SC/ H Chiu (first respondent); G N Watson SC/ R G Gambi (second respondent); Solicitors: Brydens Law Office (appellant); Lee and Lyons Lawyers (first respondent); Gadens Lawyers (second respondent)
• File Number(s): 2009/297310

Decision under appeal

• Citation: Garzo v Liverpool/Campbelltown Christian School Limited & Anor [2011] NSWSC 292
• Date of Decision: 2011-04-15 00:00:00
• Before: Garling J
• File Number(s): 2009/297310

Judgment

1 BASTEN JA: In circumstances fully described by Tobias AJA, the appellant, Antoinette Garzo, fell and suffered injuries whilst crossing a road within the grounds of the respondent school. Her uncontested evidence was that she slipped when approaching the kerb, having successfully navigated the pedestrian crossing to that point.

2 The crossing was a typical 'zebra' crossing, with broad white painted and unpainted bitumen. The crossing had been repainted in July 2007, some five months before the appellant's fall, on 27 November 2007.

3 The case in negligence turned on three factual propositions, namely:

(1) the Handbook published by Standards Australia, current in 2007, recommended that the slip resistance for a pedestrian crossing should be class "W", rated "low", with a British Pendulum Number (BPN) reading of between 45 and 54;

(2) the paint used by the School on the pedestrian crossing, when new, had a BPN reading of 40, and

(3) the School, and the second respondent, its maintenance contractor, should have known of the recommended standard and should have obtained a paint having a minimum slip resistance within the recommended range; this the respondents failed to do and were therefore in breach of their duty of care to the appellant.

4 There was no evidence as to whether paints used for floors or surfaces which might be walked upon carried a BPN reading or a coefficient of friction. It may be doubted whether paints do carry such indicators because the slip resistance depends upon a number of factors and will not be the same for one paint in all applications.

5 It was assumed that a paint which was designed for painting lines on the ground was inappropriate for painting broad strips on a pedestrian crossing. In one sense it no doubt was inappropriate because a broad strip could not be achieved by using the can in a line-marking machine, for which the can was specially designed. However, that did not mean that the paint itself was unsuited for such a use.

6 The focus on the qualities of the paint was, in any event, only one part of the picture. The action of painting the crossing required that reasonable care be taken for the safety of pedestrians likely to use the crossing. That duty no doubt encompassed some thousands of people who used the crossing after it was painted and before the 27 November incident. If the paint were unduly slippery, the School breached its duty of care to each of those persons. However, as none suffered harm as a result of the breach, there was no occasion on which the tort of negligence arose.

7 Section 5B of the Civil Liability Act 2002 (NSW) requires identification of a risk of harm, against which a person has failed to take precautions. Given its context, the risk must be that which materialised in the case of the injured person seeking to claim in negligence. That is because s 5B is dealing with a breach of a duty of care, being the duty of care owed by the defendant to the injured plaintiff. The relevant risk in the present case was the risk which materialised when the appellant slipped and fell. The harm suffered by the appellant, if it arose from the condition of the crossing at all, arose from the condition of the crossing as at the date of her fall. To establish a breach of duty, she needed to establish that the crossing was unduly slippery on that date.

8 Further, she needed to establish that the respondents knew, or ought to have known, that the crossing was in that condition on that date. That she sought to achieve by demonstrating:

(1) the respondents ought reasonably to have known that the paint used for the crossing was unduly slippery when applied;

(2) they ought reasonably to have known that it remained unduly slippery on 27 November 2007, and

(3) there were unburdensome precautions they could have taken to avoid the crossing being unduly slippery.

9 Apart from the expert evidence, there were three pieces of evidence which addressed the state of the crossing on 27 November. First, there was the evidence of the appellant that she slipped despite wearing shoes which were not prone to slip, walking at a steady pace and keeping a good look out. Secondly, her husband returned to the crossing the following day and tested the paint where she slipped, describing it as "like glass". Thirdly, three members of the school staff, being the occupational health and safety officer, Ms Allchin, Mr Ben Wilkie (the School's gardener) and the maintenance officer, Mr Trevor Turner, inspected the crossing on 3 December 2007, by hosing it to make it wet and then walking over the area in an attempt to determine if the paint were more slippery than the asphalt. They considered it "slightly more slippery" but certainly not like glass.

10 The trial judge did not find that the lay evidence assisted in determining whether or not the slip resistance of the painted strips of the crossing were "of recommended standard", noting that the evidence reflected "subjective and non-expert opinions": at [194].

11 This analysis involved an unstated premise, namely that the respondents did not exercise reasonable care if they failed to achieve the "recommended standard" for slip resistance. However, that is to elevate the guidance given in the Handbook into a necessary element of the duty of care, which will be breached if, objectively tested, the guidance is not followed. The assumption was erroneous; while the Handbook gave helpful guidance to those responsible for maintaining in proper condition floors and outdoor areas used by the public, it did not create a standard, nor did it fix the content of the legal duty of care. The legal duty does not require precise conformity to a specific standard (let alone mere guidance), to be judged by a mechanical assessment of slip resistance with respect to each small area.

12 The lay evidence must be put to one side because there was no challenge by the respondents to the trial judge's rejection of it and, as a result, the inconsistencies were not resolved. Nevertheless, three considerations supporting a similar conclusion were relied upon.

13 First, the Handbook adopted a classification system which involved five classes of slip resistance. The three limited bands each involve a range of 9 BPN. (The highest and lowest bands were not confined at the outer extremities.) However, the expert evidence acknowledged that a variation of 4 BPN would not be significant to the ordinary pedestrian. It is difficult to see why one surface is unreasonably slippery whereas another is not, if the difference in slipperiness is not readily perceptible to the pedestrian crossing each surface.

14 Secondly, as the trial judge noted, the class below that prescribed for pedestrian crossings, namely class "X", was deemed adequate for hotel foyers and office buildings (when wet) and for shopping centre food courts. It was also deemed adequate for ensuites in hospitals and aged care facilities and many other public areas. No evidence suggested why such a classification was deemed adequate in some circumstances, but not in others.

15 Thirdly, on the assumption that the reasonableness of the respondents' conduct was to be judged by the slip resistance assessed by the experts, the evidence did not establish that it was significantly below the guidance in the Handbook. A "preliminary report", dated 12 March 2008, recorded testing undertaken by Mr Paul Stevenson of Kinetic Engineers Pty Ltd. His testing was undertaken some three months and two weeks after the incident, a period which covered the Christmas holidays, during which use of the roadway and crossing might have been lower than at other times. He took five readings at five sites, producing an average wet test result of 50 BPN. He stated at par 3.1.4 that "the areas tested that were more highly worn obtained slightly higher results (52 BPN) with the worst results obtained being 45 BPN on the best quality paint". In order to obtain an indication as to the rate of degradation, he painted a small section of the crossing and, having allowed the paint to dry, conducted a wet test, obtaining a BPN of 40: par 3.1.8. He expressed the opinion that "the slip resistance may improve rapidly over a few days of wear and use with the surface abrasion from pedestrians crossing the road": par 3.1.9.

16 It may be assumed that the paint on which the appellant slipped was in an area of "the best quality paint" and it may further be assumed that there had been some further deterioration of the paint between the date of the accident and the date of testing. Nevertheless, it seems likely that the reading at the date of the appellant's accident would have been approximately 43 BPN. The evidence did not support a finding that it was significantly below that reading.

17 One way of assessing the circumstances is to ask what the School should reasonably have done if, shortly before the accident, it had received a complaint that the crossing was dangerously slippery after rain. It could have taken a number of courses. One course would have been to examine the crossing by wetting the surface and having the staff test it, no doubt with different kinds of footwear. (This was the source of the lay evidence on both sides of the record.) A second course would have been to have the crossing professionally tested, as did occur after the accident. A third course would have been to repaint the crossing with sand in the paint, or with a more slip resistant compound, as was later considered.

18 If the testing options were sufficient, a second question would arise, namely what steps should have been taken based on the results. If the first course were sufficient to constitute a reasonable response to an identified risk, it is likely that no further steps would have been taken. If the officers of the School identified no cause for concern after the accident, it is unlikely they would have done so before. In any event, the case was not run on the basis that such a result would have failed to satisfy the test of taking of reasonable precautions in s 5B(1)(c).

19 The case was run on the basis that the third course should have been taken. However, pedestrian crossings are a common feature of built environments. In the absence of a sound basis for thinking the crossing was at that time unduly slippery, a reasonable person would have been justified in doing nothing. Thus, the appellant can only succeed if she established that professional testing should have been undertaken shortly before the accident and, if done, would have demonstrated that the condition of the crossing was such that a reasonable person should have taken steps to decrease its slipperiness. Such a case should have failed for two reasons. First, there was no event or circumstance which indicated a need for testing. Secondly, it was not shown that testing would have revealed a need for resurfacing. Mr Stephenson's testing tended to demonstrate the contrary. Unfortunately, his test with new paint covered the very place where the appellant slipped, but the evidence did not establish a basis for finding that that spot had been in a markedly different condition from the places tested on the "better quality" paint. Even the testing with fresh paint, and assuming that the place of the slip enjoyed limited wear, did not establish a risk which, without the benefit of hindsight, required action from the reasonable occupier. In my view, to have a small patch of paint work marginally more slippery than the guidance provided in the Handbook, given the other considerations noted above, did not demonstrate a breach of duty on the part of the respondents.

20 It follows that there was no error demonstrated in the conclusions reached by the trial judge and the appeal must be dismissed. The appellant must pay the respondents' costs.

21 MEAGHER JA: I agree with Tobias AJA that the first respondent and second respondent were negligent, and in breach of their respective duties of care as occupier and maintenance contractor, in failing to repaint the surface of the pedestrian crossing in July 2007 using a paint which complied with the recommendation in Table 3 of HB 197:1999 - An Introductory Guide to the Slip Resistance of Pedestrian Surface Materials. Such a paint would have had a BPN of at least 45. An explanation of that measurement is given by Tobias AJA at [67]. However, the evidence indicated that by November 2007, when the appellant slipped and injured herself, the condition of the painted surface had weathered and worn to the point where either it complied with that recommendation or any non-compliance with that recommendation was insignificant and did not contribute to the appellant's fall. For that reason the appellant's claim must fail. The respondents' earlier breach of duty did not cause or contribute to her slip and fall.

22 My reasons for this conclusion may be stated shortly. As the primary judge notes, the provisions of ss 5B and 5C of the Civil Liability Act 2002 are directed to questions of breach of duty: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [13]; Harmer v Hare [2011] NSWCA 229; (2011) 59 MVR 1 at [194]. Those sections assume an allegation of breach of duty resulting from negligence which is or can be formulated in terms of a failure to take precautions against a risk of harm. The question which s 5B requires be answered favourably to the plaintiff is whether in the face of a risk of harm which was foreseeable and not insignificant, a reasonable person in the defendant's position would have taken those precautions having regard to, among other relevant things, the considerations in s 5B(2). To address the questions and considerations in s 5B, it is necessary to formulate a plaintiff's claim in a way which takes account of the precautions which it is alleged should have been taken and identifies the risk or risks of harm which the plaintiff alleges eventuated and to which those precautions should have been directed.

23 One way in which the appellant put her case at trial was that the respondents were negligent in failing to ensure that the crossing was surfaced with a non-slip paint or other material. The construction of the pedestrian crossing by painting a strip of the internal roadway within the School grounds, invited pedestrians to cross the roadway at that point. A risk which had to be addressed in relation to the installation and maintenance of the crossing was whether a person might slip on the painted or asphalt surface of the crossing when wet. It was argued that the respondents should have used a paint or other material, when repainting the surface of the crossing in July 2007, which complied with the recommendation in Table 3 of HB197:1999.

24 The relevant "risk of harm" for the purposes of the application of s 5B, taking into account the precaution which the appellant alleged should have been taken in July 2007 in relation to the repainting of the crossing, was sufficiently described as being that of a person slipping on the surface of the crossing when wet and thereby suffering injury.

25 The primary judge defined that risk of harm more narrowly and in a way which focused (by use of the words "in its then condition") on the condition of the pedestrian crossing at the time of the appellant's fall in November 2007: at [66]. In doing so, the primary judge excluded from the precautions which might have been taken against that risk, the precaution of using in July 2007 a paint which complied with the recommendation in Table 3. A consequence of the trial judge defining the risk of harm in this way was that he did not address one formulation of the appellant's case. Had he done so, his answers to the questions required to be addressed by s 5B(1)(a) and (b) are likely to have been different and favourable to the appellant in respect of that way in which her case was put.

26 I agree with Tobias AJA that the risk of harm to a person slipping on the wet surface of the crossing was foreseeable and not insignificant. Each of those matters, addressed to this broader formulation of the risk of harm, was conceded by the respondents in oral argument. The primary judge, addressing the more narrowly defined risk of harm, held that it was not foreseeable and that it could not be described as "not insignificant": at [98] and [115]. Each of those conclusions followed from the more narrow description of the risk that he adopted. For example, at [110] and [111] the primary judge addressed the question posed by s 5B(1)(a) by reference to what was known or ought to have been known by the respondents concerning the condition of the crossing in November 2007. In doing so he observed that there was "no obvious defect in the crossing in November 2007 at the time of Mrs Garzo's fall" and that there had been no "unusual external events, storms, road repairs, spillages of oil in the area of the crossing or the like, which meant that one might expect the crossing to be particularly dangerous".

27 I also agree with Tobias AJA that there was a failure to take reasonable precautions when repainting the surface of the crossing in July 2007. Those precautions, as the experts retained by the parties jointly agreed, included using a paint which was "capable of producing slip resistance results when tested in wet conditions" which meant that the "risk of slipping when wet" as measured by the AS/NZS 4586 wet pendulum test was "Low". The Rocol Easyline Paint used by Mr Turner of the second respondent in July 2007 did not when applied have that characteristic. Mr Stephenson's evidence was that when first applied (albeit to a surface which had already been painted once) the Rocol Easyline Paint had a BPN of about 40 whereas Table 3 of HB:197, on which the experts relied, required that it have a minimum BPN of 45.

28 However, as Tobias AJA's reasons show, by the time of the appellant's injury the surface of the crossing had weathered and worn to the point where either it complied with the recommendation in Table 3 or, if it did not comply, it did not do so in respects which were causally significant. The evidence suggested that in November 2007 the BPN of the paint in the slip location was likely to have been between 40 and 45. If the BPN was 45 the consequences of the earlier breach of duty had been resolved and played no part in the occurrence of the appellant's injury. The position was the same as it would have been if the respondents had acted to ensure that the surface complied with the recommendation. If the BPN was less than 45, it was so by a factor which according to the evidence of Mr Stephenson would have made no real difference to the contribution which the painted surface made to the risk of slipping for a person walking normally. It follows that the respondents' breach of duty in July 2007 was not a necessary condition of the occurrence of the appellant's injury in November 2007.

29 The appeal should be dismissed with costs.

30 TOBIAS AJA: On the evening of 27 November 2007 Mrs Antoinette Garzo, the appellant, together with her husband and children, attended a concert at the William Carey Christian School at Prestons (the School). The School is owned and/or operated by the Liverpool/ Campbelltown Christian School Limited, the first respondent. The appellant's children were students at the School.

31 After the concert the appellant commenced to walk back to the family's motor vehicle which was parked in a parking area within the School grounds. In order to access the parking area she was required to cross an internal road upon which was a marked pedestrian crossing (the crossing). The crossing had five rectangular sections which were painted white so as to give it a zebra-like effect similar to pedestrian crossings generally. When the appellant reached the last of those painted sections and before stepping onto the kerb, one of her feet slipped backwards and she fell forwards to the ground sustaining severe injuries to her face, teeth and right elbow.

32 The appellant commenced proceedings against the first respondent as the operator of the School and against the second respondent, T & J Turner Building Services Pty Ltd, which was the maintenance contractor for the School, alleging that their negligence caused her to slip and fall and suffer her injuries. It was not in issue that the appellant slipped and fell as she alleged; and it was conceded that each of the respondents owed to the appellant a duty of care. The issue which arose was whether there was a breach of that duty and, if so, whether that breach was a relevant cause of the appellant's fall.

33 On 15 April 2011 the primary judge, Garling J, determined that the appellant's claim failed on all grounds: Garzo v Liverpool/Campbelltown Christian School Limited & Anor [2011] NSWSC 292. However, in the event that there was a successful appeal, his Honour assessed the appellant's damages in the sum of $759,060. With respect to a cross-claim as between the respondents for contribution, his Honour determined the responsibility of the first respondent at thirty-five per cent and the second respondent at sixty-five per cent. There is no issue between the parties either with respect to the quantum of damages or his Honour's assessment of contribution as between the respondents in the event that both are held liable. The appeal was therefore confined to the issue of liability.

The Background Facts

34 The following factual findings of the primary judge were not in dispute on the appeal.

(a) The school and its relevant employees.

35 At the time of the appellant's accident there were about 1400 students at the School. Its main entrance was from Bumbera Street along an internal asphalt road through the School grounds. On either side of the main entrance were asphalt-surfaced carparks. The internal roadway and the carparks were subject to extensive use, particularly by parents dropping off or picking up students.

36 The School had an occupational health and safety committee of which Ms Leanne Allchin was the administrative assistant or representative. She appears to have had the day-to-day responsibility for health and safety issues at the School. In that capacity she was responsible for investigating any accidents which occurred within the school grounds and for that purpose she kept a register recording such accidents. The register dated from about 2002. However, the only accidents recorded were those in which a person sustained an injury or about which someone had made a complaint.

37 Mr Daniel Brooking was a security guard employed by the School and was so employed at the time of the appellant's accident. He was also responsible for occupational health and safety issues.

38 Mr Trevor Turner was the principal of the second respondent. His company was employed by the School as a general maintenance contractor and at the time of trial had been so engaged for approximately 14 or 15 years. He was a licensed tradesman, being a carpenter/joiner.

39 The crossing lay across an internal roadway which led from the northern carpark near to the main entrance to the staff carpark. It provided the most convenient route for people walking from within the School grounds, and particularly from the main front office to the northern carpark. Needless to say, the road and crossing were open to the elements. It was clear from the evidence that during the school week the areas in question were very busy with students, staff, parents and visitors using them throughout the day.

(b) The crossing

40 The crossing was created in mid-2005 at a time when the northern carpark was re-constructed and upgraded. The roadway across which the crossing was marked was kerbed and guttered with a reasonably smooth asphalt covering. It was of sufficient width for two lanes of traffic, one in each direction.

41 The crossing consisted of five horizontal white painted rectangular strips bordered by two vertical lines along the extremities of each strip. The length of the crossing from kerb to kerb was 5.8 metres and its width was 1.9 metres. The width of each painted strip was 450 mm interspersed with asphalt with a width of 550 mm. As his Honour found at [16] of his reasons, the crossing was in all respects entirely unremarkable and of a kind that was commonly seen throughout Sydney. Its dimensions were typical of pedestrian crossings in urban areas.

42 The crossing was marked by Mr Turner. He had had no particular experience with marking pedestrian crossings. However, he had had a great deal of experience in linemarking concrete-surfaced netball and basketball courts as well as asphalt-surfaced carparks within the School's grounds. For this purpose, Mr Turner used a proprietary paint product called Rocol Easyline Paint which he obtained from the maintenance store shed at the School and which, when necessary, he purchased in bulk from a retail hardware company with which the School had an account.

43 At [18] of his reasons the primary judge made the following finding with respect to that paint:

"The paint had been in use for many years at the school, since at least 1992, not only for pedestrian crossings, but also for line and directional markings on roadways, markings delineating carparks and linemarkings for netball and basketball courts in the school."

The above finding is correct except with respect to its reference to pedestrian crossings. Although according to Ms Allchin (at Black 198-199) there were two such crossings within the school grounds as at November 2007, there was no evidence that Mr Turner or anyone else had had anything to do with marking those crossings other than that the subject of the present proceedings. Nor was anything known about that other crossing and, in particular, whether (assuming it existed) it had been marked with Rocol Easyline Paint. In fact during oral argument on the appeal, senior counsel for the second respondent obtained instructions that there was no second pedestrian crossing (Appeal Tscpt 75(45)).

44 The method employed by Mr Turner with respect to painting the crossing was as follows. He first placed the can of paint into an applicator machine provided by Rocol and then painted lines which represented the boundaries of each of the proposed horizontal white strips. Once he had done this he then disengaged the can from the applicator and, by hand, sprayed the strips between the lines which he had marked out for each. He did this both in 2005 when the crossing was first created and repeated the process in July 2007. On that occasion, Mr Turner accepted that although he attempted to achieve an even surface when he used the paint by hand, he could not guarantee that he had done so. In particular, as observed by the primary judge at [22], Mr Turner agreed that when he was repainting the crossing in 2007, the paint he had applied in 2005 had worn unevenly. As he did not remove all of the paint that had been initially applied, it was entirely possible that the paint applied by him in 2007 would not have resulted in a precisely even surface.

(c) The accident

45 As already noted, on the evening of 27 November 2007 the appellant attended with her husband and four children a recital concert at the School. During the course of the recital which lasted about two hours there had been some drizzling rain. However it was not raining at the time the appellant negotiated the crossing. His Honour found, and it was not in contest, that at that time although the crossing was slightly wet or damp from previous light drizzle, there was no free or loose water lying upon it.

46 The appellant entered the crossing from the School or southern end and proceeded towards the northern or carpark end of the crossing. She had almost reached the point where she would need to step up onto the kerb. She was walking carefully and at a normal pace and was keeping a good lookout. She was wearing wedged shoes that had a flat leather sole with a rise in the heel of about two to three centimetres. She was not carrying anything. As she approached the gutter, she stepped forward with her right foot with her weight on the toe of her left foot, when that foot slipped backwards up a slight gradient where the northern edge of the painted asphalt sloped down towards the gutter. She lost her balance and fell forward to the ground. She asserted that at that point the crossing was very slippery.

47 I interpolate at this point a reference to the evidence of Mr Neil Adams, an expert ergonomics consultant who gave evidence on behalf of the appellant, as to the mechanics of a pedestrian slipping. He said (at Blue 53):

"Slips occur when the frictional force that acts between the relevant part of a pedestrian's shoe sole/heel or bare foot and the pedestrian surface on which they are walking is insufficient to either effectively overcome the usually very brief period of horizontal movement of the foot (or micro-slip) that occurs during the heel-strike phase of walking, or to counteract the horizontal force involved in accelerating the body forwards at toe-off. Obviously, for slipping to be avoided, the available friction must exceed the maximum horizontal forces (or peak frictional demand) of the foot. As heel-strike is the gait phase when the demand for frictional contact with the pedestrian surface is usually greatest, and is also most frequently the moment when a different surface or a contaminated section of the same surface is encountered, slips occur most commonly at heel strike. However, slips can and do occur at toe-off. In either case, if the slip is sufficiently rapid and continues for a sufficient distance and/or time, a loss of balance and fall is a likely outcome."

48 Both Mr Adams and the expert called on behalf of the second respondent, Mr Warwick Keirnan, agreed that the appellant experienced a slip at toe-off, in that the front section of her left foot would most probably have slipped backwards and up the slight gradient at that point on the crossing.

(d) The paint and its areas of use

49 The evidence included an information sheet provided by the supplier and/or manufacturer of Rocol Easyline Ultimate Paint (the Technical Data Sheet). It is appropriate to set out the relevant parts of that document.

"ROCOL

TECHNICAL DATA

Rocol Easyline Ultimate Paint

Permanent linemarking system - General Marking

Description

Rocol Easyline Paint is formulated with a high concentration of pigment and resins to provide a high capacity, durable, semi-gloss finish. Rocol Easyline Aerosol Paint is used in conjunction with a 4 wheel applicator for linemaking in both interior and exterior applications.

Areas of application

- Carparks

- Playgrounds

- Factories

- Warehouses

Features

- Durable traffic grade paint

- Touch dry in 10 minutes

- High opacity linemarking paint

- Reusable applicator system for 50 and 75mm lines

- Available in White, Yellow, Red, Green, Blue, Orange, Black & Grey"

50 The document then set out "Directions for use". Relevantly, it directed that after being shaken vigorously, the can of paint be inverted and fitted into a "Rocol Easyline Applicator". Under the heading "Technical data" the following was, relevantly, stated:

"Coverage ......... Approximately 75 - 110 m of 50 mm wide line."

51 At [225] the primary judge stated, correctly, that the Technical Data Sheet was "the most accurate description of the nature and qualities of" the paint used by Mr Turner.

52 The following is apparent from the contents of the Technical Data Sheet and from Mr Turner's evidence. First, the paint produces a semi-gloss finish. Secondly, there is no reference under the heading "Areas of application" to pedestrian crossings. Thirdly, the paint is referred to as a "linemarking paint" for lines with a width of 50 or 75 mm. Fourthly, Mr Turner had only ever used the paint for the purpose of linemarking, until he decided to spray paint the five sections of the crossing which he had marked out to be surface painted. He had never used the paint for that purpose before he did so in 2005 and again in July 2007.

53 There was therefore nothing in the Technical Data Sheet which described the areas of application of the paint in a manner which would permit the inference that it could be applied to a pedestrian crossing in the manner undertaken by Mr Turner, other than so much of any such crossing as involved the marking out of a line of a width of not more than 75 mm.

54 However, in a report of Mr Paul Stephenson of Kinetic Engineers Pty Limited dated 12 March 2008 which was tendered on behalf of the appellant and which became Exhibit D, there is on the fourth page a photograph of the front and rear of the spray can of the paint. On the photograph of the front of the can above the word "Easyline", one can detect eight parallel black lines. At paragraph 2.1.7 of his report Mr Stephenson stated:

"Further, we note on the front of the product there is a graphical representation of a pedestrian crossing."

Although it appears that there was a can of the paint available at the hearing, it was not tendered in evidence.

55 This notwithstanding at [180(c)] of his reasons, the primary judge stated that he was satisfied that the Rocol Easyline Paint can had on it a diagram which represented a pedestrian crossing, thereby suggesting that it was appropriate for use in painting such crossings. We were not referred to any evidence of either of the two experts who gave oral evidence in this matter that would have supported any such finding. Upon the assumption, therefore, that his Honour was referring to the eight parallel black lines on the photograph of the front of the spray can to which I have referred, I do not, with respect, consider any inference can be drawn from those lines (which can only just be seen from the photograph) that they represented a zebra pedestrian crossing as normally understood. Although Mr Stephenson was not called to give oral evidence so that there was no direct contradiction of paragraph 2.1.7 of his report, he was in no better position than we are in to draw inferences from the pictorial lines on the spray can. If anything, the pictorial lines on the can relied on by Mr Stephenson emphasised the linemarking application of the paint rather than the use for some other purpose.

56 If the paint was appropriate for use in the manner in which Mr Turner used it on the crossing, one would have expected some reference in the Technical Data Sheet to its use for that purpose under the heading "Areas of Application". In my opinion, that document makes it plain that the paint was only for linemarking using the Rocol Easyline Applicator for that purpose.

The lay evidence as to the slipperiness of the crossing

57 On the day following the accident both the appellant and her husband returned to the crossing and examined the area where she had fallen. She noticed that the area where she slipped had brighter and fresher looking paint than the rest of the paint on the crossing. The paint in this area had not yet sunken into the asphalt and still formed a smooth surface above it. She maintained that it was very slippery and certainly more slippery than the paint on the rest of the crossing.

58 The appellant's husband also said that on returning to the scene of the accident he noticed an area that was brighter and which appeared to be newer than the rest of the paint used on the crossing. He said that he tested it with his own feet and found that it was very slippery. The bright area was even more slippery than the other painted areas of the crossing and seemed to be so, because it was flat over the asphalt rather than sunken into the asphalt as were those other painted areas. The primary judge gave little weight to this evidence although he did not disbelieve the appellant's husband's observations. At [186] of his reasons he determined that the husband's inspection was only a brief superficial examination, by a person who was not an expert on the issue of the extent of slipperiness, or an expert on the cause of the relevant part of the crossing being slippery.

59 In accordance with its then practice, the School prepared an accident report with entries dated 30 November 2007 and 3 December 2007. On 3 December 2007 the School's occupational health and safety officer, Ms Allchin, in the company of, amongst others, Mr Turner, proceeded to the crossing where she hosed it, and then she and Mr Turner walked over the area in an attempt to determine if the painted portion of the crossing was more slippery than the asphalt roadway. The relevant entry in the report recorded that it was considered that the painted surface may be slightly more slippery, but definitely not like glass as had been alleged by the appellant's husband.

60 In her oral evidence Ms Allchin stated that when she had said in her report that it was considered that the painted area may be slightly more slippery, she was referring to the whole of the painted sections of the crossing as she was unaware of precisely where the appellant fell. In cross-examination she accepted that she had noticed that different parts of the crossing had different "slipperiness" and that the painted sections had not worn evenly.

61 Mr Turner also gave evidence that on 3 December 2007 he performed some tests in respect of the crossing. He hosed it and then scuffed his feet over the painted areas noting that they might be more slippery than the asphalt areas. Relevantly, he said it was more slippery than if it was dry. I would agree with the comment of the primary judge (at [194]) to the effect that little turns upon these subjective observations of non-experts particularly because, I would add, that at that time none of those present were aware precisely of the location on the painted surface of the crossing where the appellant slipped.

62 However, Mr Turner did observe that the painted areas close to the kerbs on either end of the crossing appeared more "fresh" than other painted areas which, essentially, he attributed to the fact that they were less worn. More particularly, as vehicle traffic tended to wear the paint more quickly than pedestrian traffic and as vehicles tended to traverse the crossing away from the kerbs, it was not surprising that the painted areas closest to the kerbs appeared to be less worn than other painted parts of the crossing.

63 Mr Turner's evidence was supported by the report of Mr Keirnan who inspected the site in August 2009. The evidence of Mr Turner and the finding of the primary judge was that no paint had been applied to the crossing since July 2007, over two years before Mr Keirnan's inspection of the crossing. The photograph at page 8 of his report revealed two areas of brighter paint located at the edges of the southernmost painted strip. However, the appellant slipped on the northernmost painted strip, relevantly on its north-western corner where the paint in the photograph appears "fresher" or "brighter". However, as his Honour found, and it is not in contest, Mr Stephenson applied paint to that location (over an area 150mm square) in March 2008. It might be noted that the north-eastern corner (being the opposite side of the painted strip upon which the appellant slipped), did not reveal a brighter painted area although the photograph in question was taken some twenty-one months after the appellant's accident.

The slip-resistant standards for pedestrian crossings

64 At [180(e)] of his reasons, the primary judge found that there was no Australian Standard which prescribed what type or quality of paint was suitable for use on a pedestrian crossing. Equally, there was no such standard which suggested that Rocol Easyline Paint was of a type or quality either appropriate or inappropriate for use on such a crossing. There is nothing surprising about those findings. One would not expect an Australian Standard to refer to a particular product.

65 Nevertheless AS/NZS 4586:1999, Slip Resistance Classification of New Pedestrian Surface Materials was an interim publication of Standards Australia that was to be withdrawn when that agency published a more comprehensive Slip Resistance Handbook. HB 197:1999 (HB 197) was a publication of Standards Australia entitled "An Introductory Guide to the Slip Resistance of Pedestrian Surface Materials". Under the heading "BACKGROUND" it stated that the guide established a basis for specifying pedestrian surface materials for various locations. Its introductory text said this with respect to AS/NZS 4586:

"AS/NZS 4586 establishes a new philosophy. The Standard rejects the concept of a universal minimum slip resistance threshold value that is both practical and safe. In equating safety with a coefficient of friction, one has to consider all the relevant variables, as well as whether the result has been unduly influenced by the method of slip resistance measurement. The slip potential is a function of footwear, activities, gait, contamination, environment and other factors. Thus the wet Pendulum test results are now classified in terms of the 'contribution of the floor surface to the risk of slipping when wet'. While this is considered to be a significant improvement, it is only a partial advance. To move further forward, one needs to embrace the rationale of Table 1.

Table 1 both acknowledges the pedestrian contribution to the risk of slipping and also the nature of the anticipated activity and the probability of a range of contamination conditions. It intrinsically recognises that there is a significant difference between the type of flooring that would be safe, for example, in a large commercial kitchen and that in a domestic kitchen. In Table 1, the reference to what might provide a safe coefficient of friction has been deliberately expressed as 'Possibly 0.35 to 0.46 when tested wet according to AS/NZS 3661.1', reflecting the old acceptance criterion of 0.4. However, where slippery contaminants are more likely, for example a commercial kitchen, a safe coefficient of friction might be 0.60 or above. ..."

66 Table 1 to HB 197 was as follows:

TABLE 1

HOW DOES ONE EQUATE NON-SLIP WITH A COEFFICIENT OF FRICTION?

Equivalent slip resistance terminology				Coefficient of friction range
Absolutely not slippery	Unquestionably safe	Safe for widest range of abnormal stride and pace	Slip highly improbable	Coarse bitumen
				This will depend on the test method used as well as the anticipated exposure and traffic requirements
Noticeably less slippery	Adequately safe	Safe for rapid stride and pace	Non-slip at very rapid pace
Detectably less slippery	Acceptably safe	Safe for hurried stride and pace and minimal attention	Non-slip at rapid pace
Non-slip	Safe	Safe for normal stride and pace and moderate attention	Non-slip at involuntary pace	Possibly 0.35 to 0.46 when tested wet according to AS/NZS 3661.1
Detectably slippery	Marginally safe	Safe for normal stride, pace and attention	Non-slip with reasonable care	This will depend on the test method used as well as the anticipated exposure and traffic requirements
Noticeably slippery	Marginally unsafe	Safe for reduced stride and cautious pace	Non-slip with caution
Extremely slippery	Unquestionably unsafe	Safe for short stride and extreme care	Slip highly probable without extreme caution
				Wet ice

[emphasis added]

NOTE: Adapted from ASTM D21.06 questionnaire reprinted in Ergonomics, 19B5, 28(7), 1062.

Table 1 references AS/NZS 3661.1, partly since its in situ test methods are still in force. However, the safe range of coefficient of friction for a different slip resistance test method could be higher or lower, depending on the test methodology. As Table 2 shows, the choice of rubber slider also influences the classification. Such tests only provide an assessment of slip resistance, and need not be reported in terms of coefficients of friction. Indeed some of the logic in adopting British Pendulum Numbers was to prevent the inappropriate evaluation of coefficient of friction results derived using other test methods.

67 There then followed Table 2 which adopted the concept known as British Pendulum Numbers (BPN) and which was intended to prevent what was referred to as the "inappropriate evaluation of coefficient of friction results derived using other test methods". In this respect BPN measures the slip resistance of a surface using the wet pendulum test although another slightly different measure of that slip resistance is to determine the coefficient of friction. Table 2 provided as follows:

TABLE 2

CLASSIFICATION OF PEDESTRIAN SURFACE MATERIALS ACCORDING TO THE AS/NZS 4586 WET PENDULUM TEST

Class	Pendulum means (BPN) *		Contribution of the floor surface to the risk of slipping when wet
	Four S rubber	TRRL rubber
V	>54	>44	Very low
W	45-54	40-44	Low
X	35-44	--	Moderate
Y	25-34	--	High
Z	<25	--	Very high

* While either of these test methods may be used, the test report must specify which method was used.

NOTE: It is expected that these surfaces will be more slip resistive when dry.

68 The tests conducted by the experts in the present case used the Four S rubber methodology.

69 The document tendered in evidence as HB 197 was not complete as it also included a Table 3 which relevantly provided as follows:

TABLE 3

PEDESTRIAN FLOORING SELECTION GUIDE - MINIMUM PENDULUM OR RAMP RECOMMENDATIONS FOR SPECIFIC LOCATIONS

Location	Pendulum
External colonnade, walkways and pedestrian crossings	w

Accordingly, HB 197 recommended that a pedestrian crossing should have a minimum BPN of 45 or greater so that the contribution of its surface to the risk of slipping when wet would be low.

70 In his report Exhibit D, Mr Stephenson at par 4.1.1 said this:

"There are no mandatory requirements for slip resistance at pedestrian crossings. However, Table 3 of HB 197... gives a guidance for surface classification of a pedestrian crossing as W. As previously stated in s 3.1.3 herein a W classification has a slip resistance of greater than 45 BPN: see Table 2 of HB 197:1999."

It is apparent, therefore, that both in 2005 and 2007 there was available a recommended guideline issued by Standards Australia to the effect that the slip resistance of a pedestrian crossing should be no less than 45 BPN. If the BPN was more than 45 then the contribution of the crossing surface to the risk of slipping when wet was stated to be "low" whereas if it was less than 45 but greater than 35, its contribution to that risk was stated to be "moderate".

The expert evidence

(a) Mr Stephenson

71 Mr Stephenson's report was tendered on behalf of the appellant, but he was not called to give oral evidence. He attended the site of the appellant's accident on 6 March 2008, a little over four months after it occurred and some seven to eight months after the last occasion upon which the crossing was painted, being July 2007.

72 At paragraph 3.1.3 of his report Mr Stephenson noted that he had carried out tests upon the painted section of the crossing in five different locations and directions in accordance with the methodology required by AS/NZS 4663:2004. The wet test results he obtained averaged a BPN of 50 which represented, he stated, a contribution of the floor surface to the risk of slipping when wet as "low". However, at paragraph 3.1.4 Mr Stephenson noted that the areas tested that were more highly worn obtained slightly higher results (52 BPN) with the worst results obtained being 45 BPN on the "best quality paint". I interpolate that I would infer that Mr Stephenson was referring to the brightest or least worn area/s of paint. He further observed that these figures raised the question of degradation of the painted surface and the differences of slip resistance of that surface over time. In particular, it raised the question of what the slip resistance of the painted surface would have been when the appellant's accident occurred, compared to the slip resistance of the surface when tested some four months later.

73 In order to answer this question Mr Stephenson obtained from Mr Turner a can of Rocol Easyline Paint, which he then applied to a small section (150mm x 150mm) of the crossing which coincided with the location where the appellant had said she had slipped. The Technical Data Sheet stated that on application the paint would be touch dry in ten minutes and suitable for light traffic in 40 minutes. Mr Stephenson left the surface for two hours and then conducted a wet test obtaining a BPN of 40, which would fall in the middle of the range of Class X referred to in Table 2 of HB 197.

74 Having obtained that result, Mr Stephenson then stated:

3.1.9 The writer believes the slip resistance may improve rapidly over a few days of wear and use with the surface abrasion from pedestrians crossing the road.

3.1.10 However, it is also clear from the series of test results that the better the condition of the painted surface, the slipperier the surface in the wet. [emphasis added].

75 After referring to the requirements of Table 3, at paragraph 4.1.2 Mr Stephenson noted that it was generally recognised that surfaces with a BPN of between 34 and 44 were slip resistant surfaces in the wet. This comment was based upon Table 1 extracted at [66] above. Mr Stephenson's conclusions were as follows:

"5.1.1 At the time of our testing the contribution of the painted surface under study to the risk of slipping when wet is 'low' and is in line with the recommended slip resistance for pedestrian surfaces.

5.1.2 The 'Easyline' product when newly applied provides a surface which can be classified as a non-slip surface that is not up to the recommended slip resistance for a pedestrian crossing.

5.1.3 At the time of the incident under study the painted surface would have been non-slip for normal stride and pace with moderate attention. However, it may or may not have been above the recommended slip resistance of 45BPN for a pedestrian crossing.

5.1.4 It should be noted that the wet slip resistance difference of a surface of 43BPN and a surface of 47BPN is insignificant to a pedestrian." [emphasis added]

76 At paragraph 6 of his report, Mr Stephenson made certain recommendations of which the following are relevant:

"6.1.1 We believe the 'Easyline' product, once dry can be described as a non-slip surface finish for normal stride and pace. However, until the surface wears, the slip resistance of the surface would be below the recommended slip resistance for a pedestrian crossing. ...

6.1.2 ... However, with the 'Easyline' product tested, the painted surface slip resistance improves with degradation. ..." [emphasis added]

(b) Messrs Adams and Keirnan

77 Mr Adams and Mr Keirnan each produced a report which was tendered in evidence but which assumed, wrongly, that the area of the painted section of the crossing where the appellant fell was, at the time of their respective inspections, in the same condition as it was at the time of the accident. This was not so, as that section of the painted crossing had been re-painted by Mr Stephenson in March 2008. Accordingly, their individual reports in so far as they were based on that false assumption, were of little assistance.

78 Mr Adams carried out a number of tests in accordance with AS/NZS 4663:2004 on 29 January 2009. He did so at five locations, of which two were in the area re-painted by Mr Stephenson and, for that reason, became irrelevant. Of the other three locations, the five measurements in location 1 varied from 56 BPN to 58 BPN with an average of 57; the second ranged from 56 BPN to 59 BPN with an average of 56; and the third ranged from 57 BPN to 61 BPN with an average of 60. These individual averages produced an overall average of 58 BPN.

79 It is to be noted than when Mr Stephenson carried out his tests in March 2008, some eleven months prior to those of Mr Adams, he achieved an (presumably) overall average BPN of 50. Obviously, the painted areas of the crossing had degraded further over the intervening period due to wear and tear and other factors. Mr Keirnan did not carry out any tests.

80 Messrs Adams and Keirnan produced a joint expert report in September 2010. It proceeded on the assumption that the small area of the crossing upon which the appellant said she had slipped had been painted shortly before November 2007. That assumption was incorrect because Mr Stephenson had repainted that small area as part of his testing process undertaken in March 2008. Therefore a deal of that report thus became irrelevant. However, they both gave concurrent evidence, in the course of which they were questioned by both his Honour and counsel upon the assumption that Mr Stephenson's re-painting of the relevant area had not occurred. On the basis of that assumption, each was then asked whether they adhered to the views expressed in their joint expert report. Of some significance is paragraph 4.i).a of the joint report to which each of the experts adhered in their concurrent evidence: I shall set it out in full:

"4.i).a It was agreed that at the material time the subject pedestrian crossing should have met the recommendation provided in Table 3 of HB 197:1999 - An Introductory Guide to the Slip resistance of Pedestrian Surface Materials, viz: that all component surfaces of that crossing should have been capable of producing slip-resistance results when tested in wet conditions in accordance with AS NZS 4663.2004-Slip resistance measurement of existing pedestrian surfaces that would result in those surfaces being categorised as "W" (ie. they should have produced a minimum BPN of 45);"

81 At paragraph 4.i).m of the joint report the experts agreed that in normal pedestrian walking, a peak friction demand expressed as a coefficient of friction will generally not exceed 0.35 which is equivalent to a BPN of 34. On the day on which Mr Adams performed his slip resistance testing (29 January 2009), the friction results he obtained indicated that there was at that time some margin for safety in terms of slip resistance for normal walking. They further agreed at paragraph 4.i).l that the recommendations in HB 197 incorporated a safety factor to allow for the fact that a proportion of pedestrians will wear footwear that is less slip resistant than the test materials that are specified in the Australian Standards.

82 Both experts also agreed that if a painted strip had different wearing characteristics one would expect some differential in slip resistance. As Mr Adams noted, his test results demonstrated that fairly obvious fact.

83 As to pedestrian crossings generally, Mr Adams stated (at Black 310 P-R) that he had examined a number of them and that some of the painted sections had excellent slip resistant properties which would not pose any increased risk of slipping, whereas others had paint that was not slip resistant so that the risk of slipping was substantial. Mr Keirnan agreed, stating that every crossing would be different. No doubt this is also stating the obvious. Whether the painted sections of any particular pedestrian crossing met the recommended guideline set out in Table 3 to HB 197 would depend upon the slip resistant quality of the paint selected. As will become apparent, that is the critical issue in the present case with respect to breach.

84 Thus, Mr Adams acknowledged (at Black 311 U-W) that there would be differences in the level of performance across a crossing due to variation in the manner that the paint was applied or variation in wear so, for example, there might be a small localised area of greater slip resistance that while small, would enable a slip to occur. This observation makes sense if one substitutes the word "lesser" for the word "greater".

85 At this point it is appropriate to refer to the Issue ix in the joint report and the responses of each of the experts to it:

"Issue ix) Would it have been reasonable for the occupiers/maintenance staff to have identified the area and have it repaired prior to the plaintiff's fall particularly bearing in mind that the area was part of a marked pedestrian crossing designated to encourage pedestrian usage at that point and that the crossing would signify to most users a point at which it would be safe to pass?

4.ix).a Mr Keirnan. No. the area of interest was about 0.2% of the painted area of the crossing, and there was (at the time when measurements were performed) adequate slip resistance for normal walking.

4.ix).b Mr Adams. If the area of interest was caused by uneven wear (which I believe is unlikely), then no. However, if (as I believe is much more likely) it was caused by the application of additional less slip-resistant paint, then yes, the occupiers/maintenance staff should have identified the need for any paint applied to the crossing to be adequately slip resistant, including when wet, and that the designated crossing would be potentially hazardous unless it was adequately slip resistant throughout."

86 The second part of Mr Adams' answer is irrelevant in so far as no additional less slip resistant paint was applied to the location where the appellant fell after July 2007. However, the statement is relevant as to whether there was a breach of the respondents' duty of care when the crossing was painted in July 2007 notwithstanding that it is in response to an issue which raises the wrong legal question.

87 The issue was raised in the conclave evidence in the following exchange (at Black 318-319):

"HIS HONOUR: Assume it was painted in 2007 and nothing else happened to it and thereafter it was used as a pedestrian crossing. If someone is, in the weeks leading up to November 2007, what would the occupiers or maintenance people have seen? Would there have been something there, in your view, which would have drawn attention to the state of the pedestrian crossing?

WITNESS ADAMS: Yes. I-

HIS HONOUR: What is it?

WITNESS ADAMS: The nature of the paint that was used and its performance in wet conditions when it was new, I think, should have been recognised by--

HIS HONOUR: But this is four months after it is new. I am talking about in the two weeks before November 2007 or a couple of weeks before.

WITNESS ADAMS: Yes.

HIS HONOUR: Was there anything about it at that stage that you think would have drawn itself to their attention?

WITNESS ADAMS: Well, it is difficult to say. I think when the crossing is new certainly, and that possibility would diminish as the surface wore over time. So the further away you get out from the time of painting the less likely it would be that somebody at the school would identify that this was a surface that should be modified.

HIS HONOUR: All right. Thank you, Mr Keirnan.

WITNESS KIERNAN: Yes, well, when I went to the site and looked at the crossing I think you could safely say it was unremarkable. Very typical. And I wouldn't expect any reasonable person to have expected a problem with that crossing."

88 His Honour accepted this evidence at [74]-[76] and [92(d)] of his reasons. There was nothing to alert either of the respondents that immediately prior to the appellant's accident there was any particular part of the painted sections of the crossing which required attention on the basis that that section would be unreasonably slippery. However, as will become apparent, the primary judge's focus on the visible condition of the painted sections of the crossing was too narrow and resulted in him asking himself the wrong question. In my respectful opinion, the issue to be determined was whether the respondents breached their duty of care by failing to take reasonable steps to ascertain whether Rocol Easyline Paint was sufficiently slip resistant for use on a pedestrian crossing in the manner in which it was applied by Mr Turner in July 2007.

89 Before turning to that issue and the manner in which it was dealt with by the primary judge, I need to say something further about the expert evidence with respect to the test results. As Mr Adams noted in the conclave, there were three sets of data. The first was the test conducted by Mr Stephenson on the freshly painted section of the crossing where he obtained a BPN of 40. Although Mr Adams made some criticism of Mr Stephenson's test results and considered that the surface was insufficiently dry to conduct the test, his Honour rejected that criticism so that a starting point of BPN 40 for freshly applied Rocol Easyline Paint can be adopted. On that basis, it would be reasonable to infer that two hours after the crossing was painted by Mr Turner in July 2007, the average BPN across those painted sections of the crossing would be 40, which would place it in classification X. It would therefore not comply with the recommendation for a pedestrian crossing contained in Table 3 to HB 197.

90 The second set of data was that of Mr Stephenson obtained in March 2008 where he achieved an average BPN of 50, but which varied between worn (52 BPN) and non-worn (45 BPN) areas of the painted sections of the crossing. The third set of data was that obtained by Mr Adams on 29 January 2009 where he obtained an average over the painted areas of the crossing of 58 BPN.

91 Each of the experts initially agreed that it would be very difficult to estimate the average BPN at the time of the appellant's accident from the tests conducted by Mr Adams on 29 January 2009. However, Mr Adams considered that the extra data provided by Mr Stephenson's testing enabled the making of a reasonable assessment that at the time of the appellant's accident the average BPN of the painted sections of the crossing would be less than 45 BPN. How much less was impossible to say, although if one accepts Mr Stephenson's new paint result of 40 BPN, then one could infer that the average BPN over the whole of the painted sections of the crossing would be somewhere between 40 and 45. Either way, it would be less than the recommended minimum standard of 45 BPN.

92 In conclave Mr Adams' evidence was as follows (at Black 314 E-H):

"... So that range of results indicates a range of slip resistance that is significant in different locations on the crossing and the lowest of those if following the line of reasoning that suggests the pedestrian crossing would have been increasing in slip resistance over that four months between when Mr Stephenson's measurements were made and when the incident occurred, suggests that parts of the crossing at least produced, would have produced BPN's below 45 at the time of the incident"

93 Mr Keirnan was cross-examined in the conclave on behalf of the appellant and accepted that when Mr Stephenson conducted his tests some seven to eight months after the paint had been applied (in July 2007), at the places where it had worn the least, it was at the very bottom of the recommended standard of BPN 45. The following exchange then occurred (at Black 321-322):

"NORTON: So, if the paint was applied in July and it is tested by Mr Stephenson in March, and he gets in the place where the paint has broken down the least, a finding of 45 BPN, do you agree that at the time that paint was put on the crossing before it had broken down at all and been anywhere, the BPN would have been less than 45?

WITNESS KIERNAN: Well, it could be, yes

NORTON: Well, it could or would?

WITNESS KIERNAN: Well, it is all a question about knowing about this wear and the rate of wear. Mr Stephenson was there seven months after the painting.

NORTON: So would you expect there to have been no wear at all there in seven months?

WITNESS KIERNAN: Some wear.

NORTON: And any wear at all, if you have a BPN of 45, would mean that prior to that wear the level was less than a BPN of 45?

WITNESS KIERNAN: Yes, that's right."

...

"NORTON: Whichever one we are dealing with, 45 is the bottom level for crossings; and if it has been seven months since the paint was applied and it got a score of 45, then it is inevitable it would have been less than 45 when the paint was freshly applied?

WITNESS KIERNAN: Yes, that's right."

94 At Black 324 Mr Keirnan was asked whether from a visual point of view he noticed any material difference in the wear of the crossing surface apart from the north-west corner on the northernmost painted surface where the appellant fell, to which he responded:

"Yes, there was, and particularly at both ends of the crossing."

This is consistent with the evidence of Mr Turner referred to at [62] above.

95 As observed above, Mr Adams' view was that with the assistance of the extra test results obtained by Mr Stephenson, it would be reasonable to infer that at the time of the accident the average BPN of the painted sections of the crossing would have been something less than 45: see also at Black 326W. Mr Keirnan considered notwithstanding the extra data, that it would be very difficult to estimate the wear component at the point where the appellant slipped between November 2007 and March 2008. It would appear that his Honour accepted the evidence of Mr Keirnan on this issue, for at [216(d)] of his reasons he found that it was not possible to precisely quantify the extent to which the surface of the crossing would have been less slip resistant at the time of the appellant's fall when compared with either of the occasions when measurements were made (8 March 2008 and 29 January 2009).

96 I agree that it would not be possible to precisely quantify the difference to which his Honour referred. It was submitted on behalf of the appellant that it was sufficient that given Mr Stephenson's test results and, in particular, that he obtained results of 45 BPN "on the best quality paint", that the average BPN across the painted sections of the crossing in November 2007 would have been less than 45 BPN although how much less would be problematic. However, once the average BPN fell below 45 then the crossing fell within classification X rather than the recommended classification W.

97 Essentially Mr Keirnan's response based on Table 1 of HB 197 and ultimately accepted by the primary judge at [249], was that it did not matter if the average BPN was less than 45 at the time of the appellant's accident as long as it was greater than a coefficient of friction of 0.35 (which translates into a BPN of 34) when tested wet in accordance with AS/NZS 3661.1. Mr Keirnan's point was that the difference between that coefficient of friction and a BPN of 45 or greater was due to the addition of a margin of safety to take account of other factors which might cause an otherwise non-slip area to become slippery due to a reduction in the level of available friction (taking account of the slip resistance of the painted surface) so as to increase the overall risk of slipping. In this context he exemplified the presence of contaminants on either the shoe sole or surface, such as dust, water or vegetable matter; aspects of the gait of the individual such as speed or rapid change of direction as well as differences in friction or characterisations within the same surface: see [216(d)] of his Honour's reasons. It had not been suggested that there was any problem with the soles of the appellant's shoes or the nature of the shoes she was wearing, or that there was any change in her gait or speed or direction of travel. As there was no evidence that any of those factors were a contributory cause of the appellant slipping, according to Mr Keirnan if followed that the painted surface upon which the appellant fell was not slippery or, perhaps more accurately, not unreasonably slippery even if the BPN of that section of the crossing was less than 45, provided it was greater than 34. His Honour accepted this evidence on the issue of breach and it becomes particularly relevant to the issue of causation which is dealt with below.

98 One final matter before leaving the expert evidence. At [171] of his reasons, the primary judge noted that neither of the reports of Mr Adams nor Mr Keirnan made any comment about the appropriateness or inappropriateness of Rocol Easyline Paint for the purpose for which it was applied by Mr Turner. Importantly, his Honour noted, none of those reports expressed any opinion that the paint was an inappropriate one for use on the crossing. Nor did the joint report of the experts make any such suggestion. Furthermore, each agreed that they knew of no Australian Standard which related directly to the question of whether Rocol Easyline Paint or any other linemarking paint used on roads was appropriate for painting within the boundaries of the zebra sections of a pedestrian crossing.

99 In their joint report, his Honour noted at [172], the experts dealt with an Australian Standard which related to slip resistance but not a standard which proscribed one or more types of components of paints for pedestrian crossings. On the other hand his Honour (at [173]) accepted that both experts agreed that there was in existence a variety of different types of paint which would have different slip resistant qualities when applied to surfaces and that it was possible to procure additives to increase those qualities if mixed with the paint prior to application.

100 What his Honour said at [171] was clearly correct but, with respect, beside the point. What the point is I will seek to demonstrate. On their evidence in conclave (at Black 328) senior counsel for the appellant asked Mr Keirnan whether he agreed with Mr Adams that there were paints available that would have the same slip resistance as asphalt. When asked whether he said that, Mr Adams stated that he had said that there were paints that had excellent slip resistant properties "or words to that effect". He said that asphalt is variable in its slip resistance, as are paints. Essentially Mr Keirnan agreed with those comments. When asked whether there were paints which to his knowledge were available which were developed for use specifically for pedestrian crossings, Mr Keirnan noted that there were thermo-plastic ones which were usually restricted to hot application. But when referred to a Berger jet dry type with additives which were used on cement surfaces domestically, he stated he was not familiar with the chemical details of paints.

101 In my opinion, it would be reasonable to infer from the evidence and his Honour's acceptance of it, that there were paints available which had, or could be made to have, a greater slip resistance when first applied than Rocol Easyline Paint which, as I have indicated, was apparently developed solely for the purpose of linemarking. The primary judge as much as said so at [173] of his reasons.

102 There then followed the following exchange (at Black 329):

NORTON: But do you agree that it is relevant if you have asphalt, which has a very good slip resistance, and paint, such as this one, and if we accept its slip resistance was below 45 BPN in areas, that can contribute to a fall.

WITNESS KIERNAN: No. Look, I think, again, the results that we have before us, it is not reasonable to extrapolate down to a slippery surface. It is not a slippery surface.

NORTON: I wasn't asking you to look at the results you have got here. I was just asking you as a general proposition. Do you agree that if you have asphalt with good slip resistance.

WITNESS KIERNAN: Yes.

NORTON: And you have paint which has a slip resistance of less than 45 BPN, that could contribute to a fall.

WITNESS KIERNAN: No.

NORTON: And why not?

WITNESS KIERNAN: Well, as we have been saying, it is - the slip - the normal walking friction demand is lower than what you see in table 1 on page 11 of Kinetic Engineering report. The reason for that, of course, is that we normally have factors of safety, so the specification there, or the guideline here, is - allows for that.

NORTON: So you say the guideline is in excess of what is required?

WITNESS KIERNAN: Yes, that's right.

NORTON: But it is still the guideline agreed.

WITNESS KIERNAN: Yes.

NORTON: Mr Adams, do you wish to say anything about those questions of guidelines?

WITNESS ADAMS: Yes. Well, I think it is a surface that has a level of performance below a guideline, should be made more slip resistant so that it complies with the guideline, because whether or not the level of slip resistance that a person actually experiences is more or less than point 35, a slip is less likely the higher the level of friction available on the surface. So, if it meets the guideline, inherently there is a low risk of somebody slipping, regardless of their footwear, than if it doesn't meet the guideline.

NORTON: And you gave some evidence about there being paints with excellence slip resistance. Are they difficult to obtain?

WITNESS ADAMS: No." [Emphasis added]

103 The difficulty with that part of Mr Keirnan's evidence that I have emphasised and which the primary judge preferred to that of Mr Adams, is that it is inconsistent with his agreement at paragraph 4.i)a of the experts' joint report, affirmed in conclave and recorded at [80] above, that all component surfaces of the crossing should have produced a minimum BPN of 45. Although it may have achieved this standard by March 2008 when tested by Mr Stephenson, it failed to do so when applied in July 2007 and the evidence did not demonstrate that it had done so as at 27 November 2007.

The primary judge's factual findings with respect to the expert evidence

(a) The quality of Rocol Easyline Paint

104 The primary judge summarised his findings with respect to Rocol Easyline Paint at [180] of his reasons in the following terms:

"(a) It was a proprietary product marketed as suitable for, and was extensively used in the school for, linemarking on roadways;

(b) It was one of a number of proprietary paints, of a variety of differing slip resistance qualities, which were available for use in painting pedestrian crossings;

(c) The Easyline paint can had on it a diagram which represented a pedestrian crossing, thereby suggesting that it was appropriate for use in painting pedestrian crossings;

(d) The Technical Data Sheet issued by the manufacturer suggested that it was appropriate for use in carparks, for linemarking and on surfaces over which traffic would pass. This suggestion would include linemarking for the purposes of a pedestrian crossing;

(e) There are no Australian Standards which prescribed what type or quality of paint was suitable for use on a pedestrian crossing. There are no Australian Standards which suggest that paint of this type or quality was inappropriate for use on pedestrian crossings;

(f) None of the experts who looked at the paint and the pedestrian crossing, including the two who provided a joint expert report and who were called to give evidence, expressed a view that the paint was inappropriate for use on a pedestrian crossing."

105 At [181] his Honour thus concluded that there was no evidence which suggested that the paint was unsuitable or inappropriate as a paint to be used for pedestrian crossings.

106 With respect to the primary judge's findings at [180] I would comment as follows:

As to (a) - this is true and emphasises the fact that the paint was for linemarking only;

As to (b) - there was no evidence that the paint was "available for use in painting pedestrian crossings" if by this finding his Honour intended to convey that its slip resistant qualities were appropriate for that purpose in that they met the standard recommended in HB 197;

As to (c) - I have expressed my disagreement with this finding, based as it is on Mr Stephenson's evidence, at [25] and [26] above;

As to (d) - I have no difficulty with this finding. The paint was no doubt appropriate for linemarking a pedestrian crossing by defining its boundaries. But there was nothing in the Technical Data Sheet from which it could be inferred that it was appropriate for the use to which it was put by Mr Turner in filling in the sections of the crossing between the boundary lines;

As to (e) - This finding is correct as far as it goes but is really beside the point. It fails, with respect, to acknowledge Tables 2 and 3 of HB 197 which both experts considered should be complied with;

As to (f) - This finding cannot be sustained given first, the reliance of both experts on the application of Tables 2 and 3 of HB 197 and, secondly, their evidence that paints with greater slip resistant qualities, with or without additives, were commercially available to meet the standard recommended by HB 197.

107 For the foregoing reasons, I do not believe that the primary judge's finding at [181] can be sustained.

(b) The primary judge's findings with respect to the slip resistance test results

108 I have already referred at [72] and [78] above to the test results obtained by Mr Stephenson and Mr Adams respectively, and the evidence of Messrs Adams and Keirnan with respect thereto.

109 At [214] of his reasons the primary judge recorded the matters agreed to by Messrs Adams and Keirnan in their joint expert report and to which they both adhered in their oral evidence in conclave. Relevantly, those matters were as follows:

(a) The crossing should have met the recommendation provided in Table 3 of HB 197, namely, that the tests on the painted surface of the crossing should have produced a BPN no lower than 45;

(b) The test results of Mr Adams taken on the areas of paint on 29 January 2009 produced an average BPN of 58;

(c) The testing method used meant that, when the readings were taken, there was free water on the surface of the crossing;

(d) The test results obtained by Mr Adams [average BPN of 58] indicated that, when the painted surfaces of the pedestrian crossing were wet, they would properly be categorised as likely to make a very low contribution to the risk of slipping. It would be unlikely that a person could experience a slip on that surface, even in wet conditions, unless they were wearing shoes with particularly slippery soles (which the appellant was not).

(e) As the lowest test result obtained by Mr Stephenson in March 2008 was a BPN of 45 and as the average BPN result achieved by him was 50, it followed that as at March 2008 and January 2009 the painted sections of the crossing satisfied the recommendation contained in HB 197; namely, that the contribution of those surfaces to the risk of slipping when wet was low;

(f) In normal pedestrian walking, peak friction demand, expressed as a coefficient of friction, will generally not exceed 0.35 which converts to a BPN of little less than 35. Accordingly, even where a surface has a BPN of a value of about 40, it will be capable of providing adequate slip resistance (in the wet) for normal pedestrian walking;

(g) The recommendation as to the appropriate BPN level in HB 197 contains a safety factor to allow for the fact that the footwear of pedestrians will be less slip resistant than the test materials [or for the possibility of contaminants or changes in gait, speed or direction of the pedestrian as well or differential frictional characteristics within the same surface].

None of these findings were challenged by the appellant.

110 At [216] of his reasons, his Honour referred to what he considered to be the further agreement which emerged from the conclave evidence of the experts. Relevantly, those findings can be summarised thus:

(a) Although Mr Stephenson as at March 2008 obtained an average reading of the painted surface of the crossing of 50 BPN, it was not possible to precisely quantify the extent to which that surface would have been less slip resistant at the time of the appellant's fall when compared with the occasions when the measurements were made;

(b) Based on Table 1 to HB 197, a BPN of between 35 and 45 would constitute a surface which was non-slip, safe, or else safe for normal stride and pace with moderate attention;

(c) There are a number of well-recognised and accepted causes of a pedestrian slipping other than the slip resistance of the relevant surface being considered: see [109(g)] above. No one or other of those factors is known to be more prevalent than any other factor in causing a fall as each depended upon the individual circumstances of the case.

111 At [217] of his reasons his Honour noted that there was disagreement between the experts as to the proper interpretation to be given to the results of the test performed by Mr Stephenson on the area of the crossing that he had newly painted, as well as upon the extent of the slipperiness of the crossing at the time of the appellant's fall. Mr Stephenson obtained a BPN of 40 which Mr Adams criticised. As I have indicated that criticism was rejected by his Honour. Accordingly, at [227] the primary judge accepted the opinions of Mr Keirnan and Mr Stephenson that one would expect, from the time the test was undertaken, that as the newly painted surface was subjected to wear, weathering and other environmental impacts, there would be an increase in its slip resistance. There was no dispute between the experts that, as a general proposition, as paint on a surface such as a pedestrian crossing is subjected to those impacts, one would expect the surface slip resistance to increase.

112 The primary judge then turned to the disagreement of the experts as to the state of the crossing as at November 2007. Essentially, Mr Adams expressed the view that given that the individual readings taken by Mr Stephenson ranged from a BPN of 45 to 52 in March 2008 and those of Mr Adams ranged from a BPN of 56 to 61 in January 2009, having regard to the test by Mr Stephenson of the freshly painted surface at a BPN of 40, it was reasonable to form a view that in November 2007 some painted parts of the crossing would have returned a BPN of less than 45 and, therefore, would be below the suggested recommended level contained in HB 197.

113 At [340] of his reasons his Honour summarised Mr Keirnan's evidence with respect to the area of disagreement between himself and Mr Adams:

(a) Mr Stephenson's test of the freshly painted surface identified a BPN of 40 as being the likely reading in July 2007 (when Mr Turner last painted the crossing), thus supporting a confident prediction that within a short time, by reason of processes of wear and weathering, the average BPN of the crossing would have increased, particularly within the first six months;

(b) When one compared Mr Adams' average BPN with his individual readings, and even accepting that some of the individual numbers fell below a BPN of 45, none of them approached the bottom of the range of 34 to 45, which was the identified friction demand of a pedestrian walking in a typical manner as per Table 1 to HB 197;

(c) The reason why there is a differential between the recommended minimum BPN of 45 and the typical pedestrian demand of BPN 35 was that, as there was no recommended standard, a safety margin is provided in HB 197 to take account of variables, including weather and footwear, and the condition of the surface existing on any given day with any given pedestrian. Accordingly, Mr Keirnan was firmly of the view that no part of the painted surface including that part where the appellant slipped, made any contribution to her fall.

114 The primary judge resolved the disagreement between the experts in favour of Mr Keirnan. He accepted the latter's interpretation of Mr Stephenson's test results on the freshly painted surface as being correct so that the BPN of 40 obtained by him could reasonably be expected to have increased within the short term and, certainly, by the end of November 2007. However, it would be indulging in speculation to attempt to calculate a precise value for the BPN at that time. Accordingly, it was not possible to infer that between July and November 2007 the BPN at the location where the appellant fell had increased from 40 to 45 or greater. One simply did know one way or the other.

115 Nevertheless at [247] his Honour concluded that on the day of the fall the painted strips on the crossing were not likely to be below the recommended BPN range of 45 or greater. However, it is apparent that this finding was based upon the overall average slip resistance of the painted sections of the crossing. Thus at [248] his Honour observed:

"I note that in this analysis I have approached the assessment of the BPN values on the surface of the crossing by looking at the average BPN, accepting that in individual areas there may be readings marginally above or marginally below that average. Since there was no correlation between the evidence of where Mrs Garzo walked and then fell, with the areas where individual readings had been taken, it is simply not possible to take an individual value and impute it as having any causal link to Mrs Garzo's fall. As well, since individual readings occur for quite a small area of the painted strips, ie, the part immediately after the pendulum swing, it is unsafe to assume that a single result ought to be extrapolated so as to represent the state of the whole of the crossing."

This expression of opinion by his Honour is relevant to the issue of causation.

116 Finally, at [249] his Honour again emphasised that even if the average BPN of the crossing as at November 2007 was likely to be less than 45, the extent to which it was below that figure could not be determined. In any event that unknown did not contradict Mr Keirnan's view that there remained an entirely adequate margin of safety before the crossing became slippery at a BPN of 35 for a pedestrian walking normally, which the appellant said she was.

The issue of breach of duty

The statutory test

117 The primary judge approached the issue of breach by considering the various elements referred to in s 5B of the Civil Liability Act 2002 (the CL Act). Although his Honour also referred to s 5C, no submissions were directed to that provision on the appeal.

118 Section 5B is in the following terms:

5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

Was the risk of harm foreseeable: s 5B(1)(a)

(a) The primary judge's findings as to the identification of the relevant risk of harm

119 At [65] of his reasons the primary judge noted that the appellant had submitted that the risk of harm was "... the risk of a person, such as the [appellant] slipping on the painted surface and suffering personal injury ...". At [66] he noted that that description of the risk assumed that the crossing was in the state it was in at the time of the appellant's fall. He considered that it would be more correctly expressed as follows:

"The risk of a person, such as the [appellant], when using the particular pedestrian crossing by walking normally, in its then condition, slipping on the painted surface and suffering personal injury."

(b) The parties' submissions on the identification of the risk.

120 In her written submissions on the appeal, the appellant contended that his Honour's definition of the relevant risk was too narrow. She submitted that it was the risk of someone who was taking reasonable care for their own safety, making allowance for inadvertence, slipping on the painted surface of the crossing and suffering person injury.

121 During the course of oral argument the appellant amended the description of the relevant risk to the following:

"The risk of someone who is taking reasonable care for their own safety, making allowance for inadvertence, slipping on a surface painted with paint that is not up to the recommended slip resistance for a pedestrian crossing."

122 The first respondent countered by defining the risk as follows:

"The risk is that of slipping on a surface which was unreasonably slippery."

123 In my opinion the risk can be identified as that of a person slipping on the painted surface of the crossing and thereby suffering an injury. I do not think that the risk needs to be articulated in any greater detail than that.

(c) The primary judge's findings on foreseeability

124 The next question was whether the relevant risk of harm was foreseeable in that it was one of which the respondents ought to have known. In this respect it was common ground that the present was a case of constructive rather than actual knowledge.

125 In determining this question the primary judge referred to various aspects of the evidence including, relevantly, the evidence of Mr Keirnan to the effect that he would not expect any reasonable person to have anticipated a problem at the crossing; the fact that there was no record of any accident occurring on the crossing where any person had been injured; and there being extensive use by Mr Turner of Rocol Easyline Paint upon various parts of the School premises. At [92] his Honour then made the following findings:

"(a) The pedestrian crossing was of a typical kind regularly seen throughout the metropolitan area of Sydney, and had no unusual features;

(b) There was nothing visible on the pedestrian crossing that suggested it may have be particularly slippery;

(c) There was nothing visually obvious to a reasonable person walking normally across the pedestrian crossing that it would be potentially hazardous, in the sense that they might slip and fall;

(d) There was nothing about the pedestrian crossing which would have alerted either the school staff or the maintenance contractor to the existence of a potential hazard;

(e) There were no reported accidents on the crossing or on other areas of the school grounds where Easyline Paint had been used; and.

(f) Neither the school staff who gave evidence, nor Mr Turner, the principal of the maintenance contractor, had any difficulty when using the crossing in all forms of weather."

126 At [93] his Honour acknowledged that the fact that the crossing had been used extensively without any report of anyone falling and injuring themselves was not determinative of whether the respondents ought to have known of the risk of harm, although it was one factor to which regard was to be had. However, he considered (at [94]) that that factor was of particular significance in the present case given that the number of people using the crossing each day was "quite high". Further, the crossing was exposed to the full range of weather conditions, which meant that it was likely a pedestrian would use it during rain storms and whilst there was free water upon its surface: yet, there was no record of anyone having slipped and sustained injuries in such conditions.

127 The primary judge's conclusion on the issue of foreseeability was encapsulated in the following paragraphs of his reasons:

"[96] Thus, whether the paint on the crossing was newly applied or else had worn down, and whether the conditions were wet or dry, no one had slipped on the crossing and injured themselves.

[97] Senior counsel for the plaintiff did not identify any specific factors which pre-existed Mrs Garzo's fall, from which an inference could be drawn that the defendants ought to have known of the risk of harm.

[98] I have concluded that, within the terms of s 5B(1)(a), the risk of harm identified in this case was not a risk of which the school or the maintenance contractor ought to have known. Accordingly, the risk was not foreseeable and neither the school nor the maintenance contractor can be negligent."

(d) The parties' submissions on the issue of foreseeability

128 The appellant submitted that the factors relied upon by the primary judge to determine the issue of foreseeability in favour of the respondents were generally irrelevant. In particular, the visual appearance of the crossing was not relevant for the purposes of ascertaining whether the respondents ought to have foreseen the relevant risk of harm. It was submitted that the respondents, having created the crossing, chose to do so without taking any steps to ascertain if the paint Mr Turner used was suitable for the purpose and, in particular, whether it complied with any relevant standard which was in the public domain. What the crossing looked like after it was painted was irrelevant to the issue of what it was reasonable to do before it was painted, whether in 2005 or 2007.

129 The appellant then submitted that the paint used by Mr Turner was, according to the Technical Data Sheet, used for linemarking of roads, carparks, netball and basketball courts. Such markings were in the form of relatively narrow lines. The use of the paint for the specific purposes to which reference is made in the Technical Data Sheet would not convey to a reasonable person in the position of either respondent that the paint was suitable to be used to infill the white sections of a pedestrian crossing and particularly where, according to the Technical Data Sheet, it was intended only to be used in the Rocol Easyline Applicator. Commonsense would suggest that some enquiry as to what paint was suitable should have been made before the crossing was painted.

130 The appellant made particular reference to the first respondent's occupational health and safety committee of which Ms Allchin was, apparently, a member. In cross-examination she indicated that she was unaware of that committee giving any thought to the applicable standard of paint to be used on the crossing. It was submitted that a relevant question to which s 5B(1)(a) gives rise, was whether the committee ought reasonably to have foreseen that if an unsuitable paint was used on the surface of the crossing, a pedestrian might slip and injure themselves, perhaps seriously.

131 With respect to the second respondent, Mr Turner said in his evidence that he was unaware as at July 2007 as to whether there was any applicable Australian standard for paint intended to be used on pedestrian crossings. Indeed there was no such standard except to the extent to which HB 197 provided a standard with respect to the recommended slip resistance of a pedestrian crossing. It was submitted that it behoved Mr Turner to make inquiries to ascertain whether Rocol Easyline Paint, when applied, met those standards, or whether there was some other paint which would.

132 In its written submissions, the first respondent submitted that slip resistance was a relative concept. The question must be whether the appellant had established that Rocol Easyline Paint used by Mr Turner on the crossing did not meet accepted standards, particularly when as at July 2007 there had been no evidence of other slipping incidents which had caused injury. It was submitted that the appellant was required to establish, first, that the painted surface was unreasonably slippery in that it did not in fact have adequate slip resistance in accordance with accepted standards or usual practice; secondly, that the respondents knew or ought to have known of such defect; and, thirdly, that some reasonable preventative step would have led to a different result in terms of the appellant not slipping. The last of these propositions involved the issue of causation. The others do not, at least directly, address the issue posed by s 5B(1)(a).

133 However, it was submitted that not only was Rocol Easyline Paint suitable for the purpose for which it was used by Mr Turner, but also there was no basis upon which it could be asserted that the respondents were required to take any steps to ascertain if that paint was in fact suitable. Reliance was placed upon the findings of the primary judge at [180(f)] that none of the experts who looked at the paint and the crossing, including the two who gave evidence, expressed a view that the paint was inappropriate for use on a pedestrian crossing.

134 In its written submissions, the second respondent submitted there was nothing in the submissions of the appellant identifying any facts or circumstances capable of contradicting the primary judge's findings on the issue of foreseeability. Relevantly, there was no evidence that the respondents had access to tests which suggested the crossing could be slippery, particularly as the experts were agreed that there was nothing about the crossing which would have made a risk of injury "visually obvious". Accordingly, the primary judge was entitled to accept the expert evidence that the crossing was "unremarkable" and "typical". Further, his Honour was entitled to have regard to the evidence that the School had no record of any accident on the crossing or on other areas of the School on which Rocol Easyline Paint had been used.

(e) The relevant risk of harm was foreseeable

135 As I have noted, the primary judge's conclusion that the risk of harm (as he had defined it at [66] of his reasons) was not foreseeable within the meaning of s 5B(1)(a) was based on his findings at [92] of those reasons which I have recorded at [125] above. However, in my respectful opinion, those findings did not engage with what I would regard as the critical issue of what the respondents ought to have known, as distinct from what they in fact knew.

136 Thus, in my opinion there were a number of factors which were either known to or ought to have been known by the respondents which should have led them to the conclusion that the relevant risk of harm was foreseeable. Those factors were as follows:

(i) Other than for its use on the crossing, Rocol Easyline Paint had only ever been used by the respondents as a linemarking paint to mark lines in parking areas, basketball courts and netball courts;

(ii) There was no suggestion by the respondents that the paint had ever been used to their knowledge on a pedestrian crossing to create the necessary zebra effect;

(iii) The Technical Data Sheet for the paint of which the respondents ought to have had knowledge, if they did not have actual knowledge, would have informed them that:

• The paint was for use only for linemarking;
• It provided a semi-gloss finish;
• The identified areas of application did not include pedestrian crossings;
• It provided lines of a width of between 50mm and 75mm only;
• It was described as "linemarking paint";
• It was to be used by fitting a can of paint into a Rocol Easyline Applicator.

• There was nothing in the Technical Data Sheet that could possibly have conveyed to the respondents that the paint was to be used other than for linemarking and/or that it was suitable for the purpose of infilling, by hand-spraying the areas of the crossing which were to be painted white to create a zebra effect.

(iv) HB 197 had been published by Standards Australia which made recommendations as to the slip resistance of pedestrian surface materials including the appropriate slip resistance for pedestrian crossings. As there was nothing in the Technical Data Sheet for Rocol Easyline Paint from which it could be inferred that it was suitable for the purpose for which Mr Turner proposed to use it, the respondents could not assume that its use for the purpose of infilling the spaces outlined by Mr Turner would have sufficient slip resistance to meet the recommended standard.

(v) Mr Turner was aware of the wearing qualities of Rocol Easyline Paint that he had applied in 2005 and the fact that it did not wear evenly over the surface that he had then painted. In particular, he had observed that the painted areas close to the kerbs on either side tended to stay fresher longer. In other words, those areas did not wear as quickly as areas which were subjected to greater vehicular and/or pedestrian traffic.

(vi) As the first respondent had a committee tasked with considering questions of occupational health and safety, it was insufficient for the first respondent to have simply left it to Mr Turner to make the judgment as to whether Rocol Easyline Paint would provide a safe (that is, non-slippery) surface in all weather conditions, for if that paint was inadequate for the purpose, they ought to have known that the risk of a pedestrian slipping and being injured was foreseeable.

137 I have referred at [122] above to the first respondent's description of the relevant risk of harm as being that of slipping on a surface which was unreasonably slippery. In oral argument, senior counsel for that respondent properly conceded that such a risk was both foreseeable and not insignificant and thus satisfied the requirements of s 5B(1)(a) and (b).

138 Senior counsel for the second respondent did not expressly attempt to dissociate himself with that concession. However, he did, as had the primary judge, deny foreseeability of the risk by reference to the fact that there had been no recorded accidents resulting in injury since the crossing was created in 2005. However, his submissions seemed to be more directed to s 5B(1)(c) than to the other elements of s 5B(1).

139 Whichever way one looks at it, and whichever description of the risk of harm proffered by the primary judge and the parties is adopted, the factors to which I have referred at [136] above lead me to the conclusion that those risks were foreseeable. It is hardly surprising that the risk of a person slipping on a painted surface of a pedestrian crossing is foreseeable when it is known or ought to be known that the paint used is no more than a linemarking paint, which may or may not have sufficient slip resistance for its safe use for a purpose which is not included in the technical information relating to it.

140 For the foregoing reasons, in my opinion the appellant has demonstrated that the relevant risk of harm was foreseeable within the meaning of s 5B(1)(a) of the CL Act.

Was the risk not insignificant: s 5B(1)(b)

(a) The primary judge's findings

141 The primary judge rejected the appellant's submission that the risk of harm was not insignificant, particularly if the crossing or a portion of it was wet or slippery. The basis of that rejection was, first, that the crossing had been used in a range of weather conditions and by a range of people of various ages without there being any record of any falls causing injuries; secondly, that pedestrian crossings are features commonly encountered in the course of daily life and persons, including the appellant, and others who would use the crossing were well used to walking over pedestrian crossings with painted strips; thirdly, even if one part of the crossing was marginally more slippery than another, there was no reason to think that a pedestrian walking at a normal pace could not or would not adjust their gait to cope with that sort of difference.

142 The primary judge referred at [102] of his reasons to paragraph 7.15 of the Ipp Report which recommended a change from the common law phrase "... not far-fetched or fanciful" to the statutory test "... not insignificant". The report states that the latter phrase was intended to indicate a risk that is of a higher probability than is indicated by the phrase "not far fetched and fanciful", but not so high as might be indicated by a phrase such as "a substantial risk". Further the report indicates that it did not intend the phrase to be a synonym for "significant". At [104] his Honour noted that he proposed to apply the proposition that the phrase "... not insignificant" was intended to refer to the probability of the occurrence of the risk.

143 At [112] his Honour considered that the probability that harm would occur was very low. The question of the probability that harm would occur if care (or to use the statutory language, precautions) were not taken is a relevant enquiry for the purpose of s 5B(1)(c) but not s 5B(1)(b). Nevertheless, his Honour then said that if harm occurred due to a pedestrian falling to the ground, the likely seriousness of the harm was, in general terms, low.

144 At [114] his Honour concluded this issue in the following terms:

"In the circumstances of a person slipping whilst walking over a pedestrian crossing, even in wet weather, I am not satisfied that the likely seriousness of the harm was high. In fact, I think it is far more likely that people would suffer minor injuries, if any at all."

Accordingly, at [115] he stated that he was not satisfied that the risk of harm was one that could be described as "not insignificant".

(b) The parties' submissions

145 The appellant submitted that in determining whether a risk is "not insignificant" two matters were relevant. The first was the probability that a fall may occur and the second was the possibility that serious harm could result from such a fall. A risk is therefore not insignificant if there is a small chance that a serious injury could result.

146 The appellant submitted that even if the probability of the risk of harm occurring was low, it did not follow that the risk was "not insignificant". Further, she submitted that there was no basis upon which his Honour could find that if a person such as the appellant slipped and fell they would only suffer minor injuries, if any.

147 The first respondent submitted in its written submissions but abandoned in oral argument, that his Honour was entitled to find that the particular risk was "not insignificant" for the purpose of s 5B(1)(b) particularly as there was no history of adults or children slipping on the crossing prior to the appellant's accident. Although Mr Brooking had seen children fall on the crossing, it was accepted that there was no evidence that those children slipped.

148 It was further submitted that the primary judge correctly emphasised the low probability that harm would be suffered because of the paint used. That involved an evaluative judgment which had not been shown to involve error.

149 The second respondent submitted that the appellant's contention that a risk is "not insignificant if there is a small chance that a serious injury could result" was not a correct statement of the law. The statutory consideration required, so it was submitted, a deal of balancing and an exercise of judgment. As his Honour engaged in that exercise and determined that the risk did not rise above insignificance, no error in the evaluative process of his Honour had been demonstrated.

The risk was not insignificant

150 Once one accepts that the relevant risk of harm was foreseeable, it is but a short step to find in a case such as the present that that risk was not insignificant. As I have indicated, according to the Ipp Report, the phrase "not insignificant" was intended to indicate a risk that is of a higher probability than is indicated by the phrase "not far-fetched and fanciful" but not so high as to be indicated by a phrase such as a "substantial" or "significant risk".

151 In the present case the risk of harm was foreseeable because the respondents utilised an inappropriate paint upon the crossing which had a slip resistance (until it became worn and weathered) less than that recommended by HB 197. The risk of slipping on the painted sections of a pedestrian crossing, particularly when the surface is wet and where the slip resistance of the painted surface may be less than the recommended minimum standard must, as a matter of commonsense, give rise to a "not insignificant" probability of that risk occurring. It may be low but it is more than far-fetched and fanciful. It may be less than significant but it is only required to be "not insignificant". In my view, the risk in the present case satisfied that test.

Was there a failure to take reasonable precautions : s 5B(1)(c)

(a) The findings of the primary judge

152 At [117] of his reasons the primary judge observed that s 5B(1)(c) required an analysis of the conduct of a reasonable person, in all the circumstances of the case, when faced with the relevant risk of harm. Any consideration of that element required attention to the provisions of s 5B(2). Relevantly for present purposes was the submission to his Honour by the appellant that the respondents should have taken the precaution of ensuring that the painted areas of the crossing had a slip resistance of at least the standard recommended in Table 3 of HB 197 and that in failing to take those precautions they were in breach of their duty of care.

153 I have already dealt in detail with his Honour's findings with respect to the evidence of the experts relating to the slip resistance of Rocol Easyline Paint. The primary judge's conclusions after considering that evidence, was summarised by him at [252] of his reasons in the following terms:

"(a) I reject the opinion of Mr Adams that at the time of [the appellant's] fall the painted strips were likely to be below a BPN of 45;

(b) I am satisfied that at the time of [the appellant's] fall, the pedestrian crossing had a slip resistance which was within the range recommended by the Guide;

(c) A fair description of the state of the painted strips on the crossing at the time of [the appellant's] fall, was a non-slip, or safe for normal stride and pace with moderate attention;

(d) I am not satisfied that, in all the circumstances, a reasonable person in the position of either of the defendants would have, or else ought to have, taken any precautions against the risk of harm by using a more slip resistant paint than the Easyline paint which was used."

154 In coming to these conclusions it is apparent that his Honour relied on his findings at [180] (see [104] above) with respect to Rocol Easyline Paint and, in particular, the findings at [180(e) and (f)] and the first sentence of [181].

(b) The parties' submissions

155 The submissions of the parties concentrated on the detail of the testing that had been carried out and were consistent with the manner in which it had been approached by the primary judge. It is unnecessary to repeat those matters as it will be necessary to refer to that detail when dealing with the issue of causation.

(c) Section 5B(1)(c) was satisfied

156 It is significant that it was essentially agreed between all three experts that whatever paint was used, it should have a slip resistance of greater than 45 BPN so as to comply with the requirements of Table 3 of HB 197. In their joint report Messrs Adams and Keirnan agreed that the crossing should have met the recommendation provided in that table and that all its component surfaces should have been capable of producing a slip resistant result, when tested in wet conditions, of a minimum BPN of 45.

157 Furthermore, the primary judge accepted Mr Stephenson's evidence that when Rocol Easyline Paint was first applied and allowed to dry it produced a BPN of 40. It logically follows, it seems to me, that that paint was not appropriate for the purpose for which Mr Turner applied it. It is insufficient, in my view, that at some indeterminate future time the paint surface may have worn to the point where its slip resistance exceeded a BPN of 45. The experts were clear that all component surfaces of the crossing should have met the recommended standard at the time of the paint's application.

158 Although there was a dispute between Mr Adams and Mr Keirnan as to whether the average BPN of the crossing would have exceeded 45 at the time of the appellant's accident, the correct question in my view, in terms of the appropriateness of the paint, was whether it met that standard at the time of its application and when the newly painted crossing it was first permitted to be used by pedestrians. Mr Stephenson's evidence at paragraph 3.1.4 of his report (see [72] above) was that the worst results obtained on the "best quality paint" was 45 BPN. This was in March 2008. Commonsense would indicate that those sections of the crossing would have tested at less than 45 BPN not only in November 2007 but more so in July 2007 when the paint was freshly applied.

159 I note the first respondent's submission that Mr Stephenson's test demonstrated that, even when saturated with water, a freshly painted surface still had a BPN of 40 so that its slip resistance was higher than the Australian standard required. This assertion could only be correct if the submission was based upon Table 1 of HB 197. At paragraph 5.1.3 of his report Mr Stephenson stated that at the time of the appellant's accident the painted surface would have been non-slip for normal stride and pace with moderate attention, although it may not have been above the recommended slip resistance of 45 BPN for pedestrian crossings. The point is, with respect, that the appropriate standard was that in Table 3, not Table 1. Reasonable care mandated that the slip resistance of the paint used on the crossing should conform with Table 3 so as to provide the margin of safety to which the experts referred. The respondents' submissions and, with respect, his Honour's ultimate findings seem to ignore that factor as being relevant to the issue of breach of the respondents' duty of care. That duty extended not only to taking reasonable care to ensure that the surface of the crossing was safe for normal stride and pace and moderate attention, but also for those persons using the crossing whose footwear may have been different to that used by the appellant; to the possibility of contaminants such as oil being upon parts of the crossing due to its use by motor vehicle traffic; and to take account of the variations in wear which inevitably would occur as a consequence of some parts of the crossing wearing more quickly than others due to vehicular and pedestrian traffic load.

160 The respondents (and the primary judge) also relied upon the statement of Mr Stephenson at paragraph 3.1.9 of his report, that he believed that

"the slip resistance may improve rapidly over a few days of wear and use with the surface abrasion from pedestrians crossing the road." [emphasis added]

Although Mr Stephenson was not called, neither Mr Adams nor Mr Keirnan were asked whether they agreed with that proposition. Each of those experts stated that the slip resistance of the crossing would increase over a period of time due to weather conditions and wear and tear, although not evenly. In my respectful opinion, it defies commonsense to suggest that the slip resistance of a freshly painted surface with a BPN of 40 would rapidly improve over a few days to a BPN of 45 or greater. In any event, Mr Stephenson did not assert that the slip resistance would so improve: only that it may.

161 The evidence established and his Honour accepted (at [180(b)]) that there were commercially available paints with differing slip resistance qualities and which were available for use in painting pedestrian crossings. It is difficult to suggest that it was asking too much of the respondents to first, inquire as to whether there was a recommended slip resistance standard for pedestrian crossings, and having obtained an affirmative answer to that inquiry, secondly, to acquire a paint that when applied, would meet at least the minimum standard so recommended. Those were the precautions which, in my opinion, it was reasonable for the respondents to take.

162 In terms of s 5B(2), the probability that harm would occur if reasonable care were not taken in selecting a paint that, when applied, met the recommended slip resistant standard would, in my opinion, be at least moderate. The likely seriousness of the harm if it came to fruition would be high. A person perhaps hurrying across the crossing who without warning slipped, could easily fall heavily and, in particular, break an arm or a wrist. The burden of taking precautions to avoid the risk of harm by selecting an appropriate paint would be minimal. The social utility of the activity that created the risk of harm, namely, using an inappropriate paint, was nil.

163 The simple fact is that the respondents utilised a paint in respect of which, according to its Technical Data Sheet, its use in July 2007 other than for linemarking of roadways and the like, inferentially indicated that it was inappropriate for the purpose for which it was applied by Mr Turner. Whether by the end of November 2007 the paint had degraded to the point where its slip resistance met the recommended standard of 45 BPN or greater, is not relevant to the present issue although it is highly relevant to the issue of causation. This is because by that time the effect of any breach of duty which originated in July 2007 may have become neutralised or spent as a consequence of any such degradation so that it was no longer a material contributing factor to the appellant slipping.

164 In my opinion, the conclusion is inescapable that the respondents failed to take the basic precaution in July 2007 (as well as in 2005) of ascertaining whether the Rocol Easyline Paint was sufficiently slip resistant to be appropriate for painting or repainting the crossing in circumstances where they knew that the painted surfaces would not wear uniformly. Accordingly, s 5B(1)(c) was satisfied in that a reasonable person in the position of the respondents would have taken the precautions to which I have referred.

165 It follows from the foregoing that in my opinion the respondents breached their duty of care to those who would use the crossing including the appellant.

The issue of causation

(a) The findings of the primary judge

166 The primary judge correctly noted at [254] of his reasons that s 5D of the CL Act prescribed the test for causation. That section is relevantly in the following terms:

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).

...

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

167 On the hearing of the appeal it was not contended that if factual causation was established it was other than appropriate for the scope of the respondents' liability to extend to the harm sustained by the appellant. Accordingly, the issue before the primary judge and on the appeal is whether the respondents' breach was a necessary condition of the occurrence of the appellant's injuries.

168 At [261] of his reasons, his Honour referred to the expert evidence as to the underlying reason why a person might slip and fall and the factors which can, in combination or perhaps separately, cause such a fall. However, at [262], he in effect found that there were no such factors in the present case in that the appellant was not running or hurrying as she traversed the crossing but had walked in an ordinary manner. The soles of her shoes were not particularly slippery. In fact at [216(f)], His Honour found that they were unlikely to have contributed significantly to the risk of her slipping and, notwithstanding some inconsistencies and/or conflict in the evidence of Messrs Adams and Keirnan on this issue, this finding was not challenged. He also found that although the crossing was wet from light drizzle, there was no free surface water, and finally, that there was nothing out of the ordinary about the painted strips which would have alerted the appellant to the state of their slip resistance.

169 At [264] his Honour stated that where there are multiple possible causes, not all of which are negligent, a plaintiff must demonstrate that it is more probable than not that, but for the negligence of the defendant, the accident and injury would not have occurred: Amaca Pty Limited v Ellis [2010] HCA 5; (2010) 240 CLR 111 at [10]-[13]; Zanner v Zanner [2010] NSWCA 343 at [2], [11] per Allsop P (Young JA agreeing). At [265] he concluded that factual causation had not been proved as s 5D(1)(a) required.

(b) The statutory test

170 Section 5D(1)(a) required proof that "but for" the respondents' negligence the appellant would not have slipped and fallen suffering the injuries that she did: Strong v Woolworths Ltd [2012] HCA 5; 86 ALJR 267 at [18], [44]. In order to address that question it was necessary to consider first, what the position would have been had the respondents not been negligent in the relevant respect and, secondly, whether in that event the slip would have been prevented or not occurred. That was the position under the common law: Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at 248, 249, 256; March v Stramare [1991] HCA 12; (1991) 171 CLR 506 at 514; Amaca Pty Ltd v Booth [2011] HCA 53; 86 ALJR 172 at [47]; and remains the position under ss 5D and 5E of the CL Act: Harris v Woolworths Ltd [2010] NSWCA 312 at [34].

171 In Strong at [20] French CJ, Gummow, Crennan and Bell JJ said:

"Under the statute, factual causation requires proof that the defendant's negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant's negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(a). In such a case, the defendant's conduct may be described as contributing to the occurrence of the harm."

172 Their Honours then proceeded to discuss the meaning and relevance of the expression "material contribution" and in so doing referred to the following paragraph in the judgment of Allsop P in Zanner at [11]:

"[T]he notion of cause at common law can incorporate 'materially contributed to' in a way which would satisfy the 'but for' test. Some factors which are only contributing factors can give a positive 'but for' answer."

(c) The appellant's submissions

173 The appellant's case was that the respondents should have taken reasonable precautions when installing the crossing in 2005 or when repainting it in July 2007 and that the taking of such precautions would have resulted in the application of a paint to the asphalt road surface which complied with the recommendation in Table 3 of HB 197. Such a paint would have produced a surface which when first painted had a BPN over all painted surfaces of the crossing of at least 45.

174 At [261] the primary judge noted the expert evidence as to the factors which could cause a person to slip and fall or contribute to that occurring but which were not related to the slip resistance of the surface being walked upon. The appellant in substance submitted that as there was no evidence to suggest that any of those factors were present when and where the appellant slipped on the crossing, the only contributing factor present being the fact that the BNP of the crossing at the point of her fall was less than 45. Accordingly, factual causation was established.

(d) Causation not established

175 When addressing what the position would have been had the respondents not been negligent, in my opinion it is necessary as the appellant contended, to address the likely condition of the surface in the area where the appellant slipped, rather than as an average over the whole of the painted surfaces of the crossing. That is because absent negligence, the respondents would have applied a paint in July 2007 so as to produce a painted surface which at that time satisfied a minimum BPN of 45 as recommended by HB 197. Thereafter, the surface would have worn unevenly, depending upon pedestrian and traffic usage and environmental conditions. To address what would have happened absent negligence, one must consider the likely condition of the surface in the area where the appellant slipped as at 27 November 2007 and then compare that condition as it then was with what it was likely to have been at that time had it had a BPN of 45 or greater when painted in 2005 or repainted in 2007. The primary judge did not engage in this exercise when dealing with the issue of causation, although he referred to the problem of determining individual values at the point of the appellant's fall at [248] which though relevant to the issue of causation, was then being addressed on the issue of breach.

176 As his Honour there acknowledged, the evidence did not address what the BPN was likely to have been over the different parts of the painted surfaces of the crossing in November 2007 at the time of the appellant's accident. The evidence of Mr Keirnan was that the process of wear and weathering would result in the average BPN of the crossing increasing, particularly in the first six months after being painted. The primary judge accepted that evidence at [240(a)] and [244]. It enabled the conclusion to be drawn that if a particular surface area had a BPN of 45 when painted in July 2007, its BPN as at November 2007 would have exceeded 45.

177 Mr Stephenson's experiment carried out in March 2008 indicated that a freshly painted surface using Rocol Easyline Paint (by applying it to a surface which had already been painted twice) would have had a BPN of 40. His evidence was that at that time of his inspection the crossing had an average BPN of 50, and a BPN of 45 in the areas which were least worn. That evidence provided a basis for maintaining that the BPN of the area where the appellant slipped was likely to have been between about 40 and 45.

178 This analysis must be considered in the context of Mr Stephenson's evidence (referred to at [75] above) that the wet slip resistance difference between a BPN of 43 and 47 is "insignificant to a pedestrian". I take this to mean that there is no real difference between the contribution which such surfaces would make to the risk of slipping to a person walking normally.

179 The respondents' breach in July 2007 therefore resulted in a surface in the relevant area which in November 2007 had a slightly lower BPN than it would have had if it had complied with the recommendation in HB 197. The "factual causation" question could then be formulated as whether the appellant had established on the balance of probabilities that she would not have sustained her injuries if the surface in that area had had a BPN of between about 45 and 50 rather than one between about 40 and 45. To answer this question, it is necessary to consider what the BPN measures. The evidence was that it measures the contribution of the relevant surface when wet to the risk of slipping. A surface with a BPN of between 34 and 44 is described as making a "moderate", as distinct from a "low", contribution to the risk of slipping when wet and to be "safe for normal stride and pace and moderate attention". That description is based upon the position being that in normal pedestrian walking on a wet surface the peak friction demand generally does not exceed a BPN of 34.

180 Addressing the appellant's case by reference to Mr Stephenson's analysis, she slipped on a painted surface which had a BPN of between about 40 and 45. The primary judge found (at [262(a)]) that she had been walking in an ordinary way and that finding was not contested. To that consideration must be added two further factors. First, the appellant experienced a "slip at toe off" which meant that she was stepping forward with her right foot, with her weight on the toe of her left foot when that foot slipped backwards and up the slight gradient of the area she identified as being where she slipped. The fact of that gradient would have increased the effective BPN in that area above 40. The evidence did not explore the extent of that increase. Secondly, his Honour found (at [262(c)]) that the crossing was wet from a light drizzle but that there was no free water on its surface. The BPN tests measure the contribution of a surface area to the risk of slipping assuming "free water" on that surface area: see [214(c)]. To the extent that there was less water than that on the crossing surface, the effective BPN was likely to be slightly higher than that produced by the test. Each of these considerations suggested that the BPN of the painted surface where the appellant slipped was above 40 but probably less than 45.

181 The issue which then arises is whether the appellant has demonstrated that at the time of her accident the difference between a BPN of between 45 and 50 at the location where she slipped (which would have satisfied the minimum requirements of HB 197 when repainted in July 2007) and the actual BPN at that location, materially contributed to her fall.

182 The appellant accepted that at the time of her accident the BPN at the slip location was likely to be between 40 and 45. The first respondent adopted those figures but submitted that if the BPN was 40 (based on Mr Stephenson's evidence) when the paint was reapplied in July 2007, some four months later it may have been 43 or 44 as compared to the recommended 45. If a complying paint had been used in July 2007 with a BPN of 45, then four months later, given that the location where the appellant slipped would have been less worn and, therefore, less degraded than more trafficked sections of the crossing, the BPN at that location may have been, say, 47. On Mr Stephenson's evidence that differential would be insignificant: see [178] above. In the foregoing circumstances it cannot be said that the difference referred to was such that but for the respondents' breach, the appellant would not have slipped.

183 In any event there is, of course, an element of speculation in the above analysis. As the primary judge observed at [248] of his reasons, there was no correlation between the evidence as to where the appellant fell and the individual readings taken by Messrs Stephenson and Adams other than in respect of the measurement taken by Mr Stephenson of the area which he repainted in March 2008. It was the appellant's case that that was where she slipped and, by reference to Mr Stephenson's and Mr Adams' measurements showing changes due to wear, Mr Adams was prepared to express an opinion as to the average BPN: see at [91] above. It remains correct to observe that there is an element of uncertainty and speculation as to what in November 2007 was the minimum BPN in the area where the appellant said she slipped.

184 I thus agree with his Honour's comment that it was not possible to take an individual value and impute it as having any causal link to the appellant's fall. Extrapolation can be misleading. Furthermore, as the first respondent submitted people lose their footing even on the most slip resistant surfaces. The fact of the appellant's fall, without more, does not establish that it was caused (in the relevant sense) by the painted surfaces of the crossing being unreasonably slippery. Other explanations are equally available.

185 As the primary judge observed at [267], the evidence did not identify what other factors may have contributed to the slip and fall. There was no evidence about the presence or absence of any possible contaminants on either the soles of the appellant's shoes or the surface of the crossing. The experts agreed that her shoes "may have made a contribution to the overall risk of slipping" although they later considered that this was unlikely. The evidence did not, however, indicate whether that footwear was more or less slip resistant than the test material specified or assumed by the BPN measurements. The experts agreed that "significant differential in the slip-resistant properties of adjacent surfaces" could contribute to a slip. Again, the evidence did not establish whether there was such a significant differential in the location where the appellant fell.

186 Furthermore, as the primary judge observed at [266], if there were no other factors which operated to reduce the level of available friction provided by the painted surface, that level exceeded a BPN of 34 which made it a non-slip and safe surface for normal stride and pace and moderate attention to which the appellant, according to her evidence, conformed. There was no evidence to suggest that the slip resistance at the point of the painted section of the crossing where the appellant fell had a BPN of less than 35.

187 Thus the evidence indicated that there must have been other factors or conditions present which contributed to the appellant's fall because the painted surface most probably exceeded a BPN of 40 and thus provided sufficient friction for the appellant to walk safely at a normal stride and pace. In the absence of the identification of those other factors or conditions, it is not possible to do more than speculate as to whether the fact that the appellant may have been walking on a part of the painted surface with a slightly higher BPN would more likely than not have prevented her slip and fall. The area on which she fell was a pedestrian crossing on a roadway in school grounds. The realistic possibilities included some contaminant or other substance on the surface of the crossing or the sole of the appellant's left shoe which made a contribution to her slipping and which would have continued to do so with the same result even if the painted surface had a slightly higher BPN.

188 For the foregoing reasons, I conclude that the evidence does not establish that the breach of duty found caused the appellant to slip and sustain her injuries.

Conclusion

189 In my opinion the appellant has succeeded in establishing breach of duty but has failed on the issue of causation. I would therefore propose that the appeal be dismissed with costs.

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Decision last updated: 29 May 2012