Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Indigo Mist Pty Limited v Palmer [2012] NSWCA 239
• Hearing dates: 11 May 2012
• Decision date: 09 August 2012
• Before: Beazley JA at [1]; Macfarlan JA at [5]; Hoeben JA at [10]

Decision

(1)The appeal by Indigo Mist Pty Ltd and Robert Geammal is dismissed.

(2)The cross-appeal by Paul Kelly Design Pty Ltd is dismissed.

(3)Indigo Mist Pty Ltd, Robert Geammal and Paul Kelly Design Pty Ltd are to pay Ms Palmer's costs of this appeal.

[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: Tort - negligence - patron slipping on internal stairs in hotel - liability of occupiers and architect - foreseeability of risk by occupiers and architect - whether breach of duty - Civil Liability Act 2002 - what response was required by occupiers and architect to foreseeable risk of injury - causation - notice of contention - whether respondent entitled to rely on notice of contention - apportionment of liability between occupiers and architect - contributory negligence.
• Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5D, 5O
• Cases Cited: Arabi v Glad Cleaning Service Pty Ltd [2010] NSWCA 208; Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479 at 488; Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16; Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241; Dobler v Kenneth Halverson and Ors; Dobler v Kurt Halverson (by his tutor) [2007] NSWCA 335; 70 NSWLR 151; Florida Hotels Pty Ltd v Mayo [1965] HCA 26; 113 CLR 588; Hamilton v Nuroof (WA) Pty Ltd (1956) HCA 42; 96 CLR 18; Joslyn v Berryman & Anor [2003] HCA 34; 214 CLR 552; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361; Laresu Pty Ltd v Clark [2010] NSWCA 180; Mobbs v Kain [2009] NSWCA 301; Neill v NSW Fresh Foods and Ice Pty Ltd (1963) HCA 4; 108 CLR 362; Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330; Roche Mining Pty Ltd v Graeme Wayne Jeffs [2011] NSWCA 184; Shoeys Pty Ltd v Allan (1991) Aust Torts Reports 81-104; State of Victoria v Bryar and Anor (1970) 44 ALJR 174; Strong v Woolworths Ltd t/as Big W [2012] HCA 5; 86 ALJR 267; Tabet v Gett [2010] HCA 12; 240 CLR 537; Varga v Galea [2011] NSWCA 76; Voli v Inglewood Shire Council [1963] HCA 15; 110 CLR 74; Water Board v Moustakas [1988] HCA 12; 180 CLR 491; Wilkinson v Law Courts Ltd [2001] NSWCA 196; Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598
• Category: Principal judgment
• Parties: Indigo Mist Pty Limited - First Appellant/Second Cross Respondent; Robert Geammal - Second Appellant/Third Cross Respondent; Abi Palmer - First Respondent/First Cross Respondent; Paul Kelly Design Pty Ltd - Second Respondent/Cross Appellant
• Representation: Counsel: Mr P Blacket SC/Mr J Sleight - First and Second Appellants; Mr RW Seton SC/Mr M Maxwell - First Respondent/First Cross Respondent; Mr RA Cavanagh SC/Mr M Gollan - Second Respondent/Cross-Appellant; Solicitors: Moray & Agnew - First and Second Appellants; Adams & Co Lawyers Pty Ltd - First Respondent/First Cross Respondent; Riley Gray-Spencer Lawyers - Second Respondent/Cross-Appellant
• File Number(s): 2009/334063

Decision under appeal

• Date of Decision: 2011-03-24 00:00:00
• Before: Elkaim SC DCJ
• File Number(s): 2009/334063 (formerly 1030/2009)

Judgment

1 BEAZLEY JA: I have had the advantage of reading in draft the reasons of Hoeben JA and the additional remarks of Macfarlan JA. I agree with the orders proposed by Hoeben JA and with his Honour's reasons as to the liability of the second respondent and the apportionment as between the appellant and the second respondent.

2 I also agree that no basis was made out for disturbing the trial judge's finding that the first respondent was not contributorily negligent.

3 I agree with Macfarlan JA's reasons in relation to the appellant's liability. For my part, I do not consider that a sign prohibiting the carrying of drinks whilst using the stairs would have been a reasonable response to the risk of injury in this case. Notwithstanding the statutory obligations on licensees of premises where alcohol is served, I am not satisfied that patrons of licensed premises would necessarily read or comply with signs prohibiting drinks being taken onto the stairs. The placement of personnel at the top and bottom of the staircase to ensure that drinks were not taken onto the stairs might be effective but there was no evidence it would be, or that it would be an economically feasible response to the risk.

4 As Macfarlan JA has explained, the risk in this case arose from the nature of the material used in the construction of the stairs, compounded by the lighting underneath the stairs. I agree for the reasons given by Macfarlan JA that the first respondent's injuries were causally related to the appellant's negligence.

5 MACFARLAN JA: I agree with the orders proposed by Hoeben JA and with his Honour's reasons concerning the liability of the second respondent, Paul Kelly Design Pty Ltd ("PKD"), apportionment and contributory negligence. My reasons for agreeing that the appeal by Indigo Mist Pty Ltd and Robert Geammal (referred to as the "occupiers") should be dismissed are as follows.

6 As Heydon JA pointed out in Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [32], "[s]tairs are inherently, but obviously, dangerous". The potential for serious accidents was particularly high in relation to the stairs with which this case is concerned because their surface comprised smooth glass tiles and they were likely to be used at night by patrons who had been consuming alcohol and, on occasions, were carrying drinks. The expert evidence (see [34] below) that such a surface is ordinarily slippery when wet reflected commonsense and common knowledge, as did the expert evidence (see [40] below) that the presence of liquid on such a surface would have been almost impossible to detect at night as the stairs were lit from below.

7 A reasonable person in the position of the occupiers would have taken action to minimise the obvious risk of a hotel patron slipping on liquid spilt on the stairs and suffering serious injury. A reasonable occupier could have responded to this risk by ensuring that the stairs were not slippery when wet using one of the methods identified in Dr Emerson's expert evidence (see [35] below), such as covering the stairs with carpet or ensuring that the glass tiles were treated so that they achieved appropriate frictional qualities. A reasonable occupier would have been entitled to take, and act upon, expert advice as to these matters, thereby effectively delegating performance of its duty to the expert (see Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 at [53]; Laresu Pty Ltd v Clark [2010] NSWCA 180 at [61] - [62]). There was however no evidence that the occupiers in the present case did so. They may have assumed that PKD, the architectural firm which designed the hotel's refurbishment, had satisfied itself of the safety of the stairs. However, on the evidence, PKD had not done so, and had not been requested to do so by the occupiers.

8 Another possible response of a reasonable occupier may have been to utilise signs and hotel staff supervision to prohibit patrons from carrying drinks between floors. However, to adequately reduce the risk of injury, the enforcement of the prohibition would have had to have occurred at a high level, possibly rendering this alternative impracticable and uneconomic. This would have left the reasonable occupier with no option but to render the stairs safer in the manner to which I have referred in [7] above. The failure of the occupiers in the present case to adopt either of these alternatives constituted negligence on their part.

9 I consider that the probabilities are that if either of the alternative responses had been adopted, Ms Palmer would not have slipped on the stairs, or at least not have suffered the serious injuries that she did. Accordingly Ms Palmer's injuries were causally related to the occupiers' negligence.

10 HOEBEN JA:

Nature of appeal

On 30 May 2008 the first respondent (Ms Palmer) fell down some stairs at the Oxford Hotel in Oxford Street, Darlinghurst. Ms Palmer alleged that she fell after slipping on liquid on the stairs within those premises. She suffered injuries as a result of the fall.

11 The first appellant was the occupier of the hotel and the second appellant was the licensee and manager. For ease of reference, I will collectively refer to them as "the occupiers".

12 The second respondent and cross appellant (Paul Kelly Design Pty Ltd) was a firm of architects which designed certain parts of the hotel, including the stairs, for a refurbishment which took place in about 2006. For ease of reference I will refer to the company as "PKD".

13 Ms Palmer brought proceedings in negligence against the occupiers, the owner of the hotel and PKD. Those proceedings were heard over seven days, between 7 and 15 March 2011 before Elkaim DCJ. His Honour handed down judgment in favour of Ms Palmer in the amount of $113,321.90 on 24 March 2011. His Honour apportioned liability equally between the occupiers and PKD. His Honour found in favour of the owner.

14 The occupiers and PKD have appealed from that decision in relation to liability only. Ms Palmer has filed a Notice of Contention seeking to support his Honour's judgment against the occupier on a basis different to that found by his Honour. No challenge has been made to the judgment in favour of the owner. It was common ground that the proceedings were governed by the Civil Liability Act 2002 (NSW) (CLA).

The findings in the District Court

15 Ms Palmer was born in New Zealand in May 1979. She was aged 29 at the time of the fall. At the time she was working as a hairdresser and makeup artist. She had been living in Melbourne since March 2001.

16 A substantial attack on the credit of Ms Palmer was made during the trial. His Honour rejected that attack and found that Ms Palmer was a witness of truth. This finding by his Honour was not challenged on appeal.

17 On the day of the accident which was a Friday, Ms Palmer worked in Melbourne. In the evening she boarded a flight to Sydney and arrived at about 6.40pm. She went to a hotel in Goulburn Street in the Sydney CBD where she checked in. At about 8pm she was joined by a friend, Mr Hall, and they had dinner at a nearby restaurant. They spent about two hours over dinner, during which they shared a bottle of shiraz. Ms Palmer estimated that she had approximately two glasses of wine, but also drank water.

18 After dinner, Ms Palmer and Mr Hall walked for about an hour through local streets until they came to the Oxford Hotel. Mr Hall had been there on four or five previous occasions. Mr Hall said that he went to the Oxford Hotel because two of his friends worked there as managers - Toby and Will Osman.

19 The Oxford Hotel has four levels. The basement has a nightclub and there is a public bar on the ground floor. The Supper Club is on the first floor and the Polo Lounge is on the second floor. One entrance to the hotel allows access to the ground floor and the basement only. In order to gain access to the first floor and the second floor, it is necessary to use another entrance. Access to the first floor was gained by two sets of stairs with a landing in between, as was access from the first floor to the second floor.

20 There are toilets located on the second floor. Those toilets serviced patrons using the first floor and the second floor. The stairs linking the floors were made of glass blocks, sitting on a steel frame, surrounded by cement render. They were lit from below and there was some dim lighting in the ceiling.

21 As indicated, the hotel underwent a substantial refurbishment during 2006. PKD was the architect in charge of the refurbishment. Ms Williams was the employee of PKD who was directly involved in the design of these stairs and made the recommendation that they be constructed of glass blocks. Obeco Pty Ltd was the company which supplied the glass blocks and installed them.

22 Ms Palmer and Mr Hall climbed the various flights of stairs to the Polo Lounge. It was Mr Hall's recollection that they remained in the Polo Lounge for 45 minutes to an hour. He said that there were not many people in the lounge. Apart from staff, he did not see people entering or leaving the lounge. He did not observe anyone in the lounge carrying out cleaning duties. Mr Hall did not see anyone standing at the door of the lounge.

23 Ms Palmer ordered a glass of shiraz, but did not find it to her liking. After two sips she put it aside and had no more alcohol to drink. It was her recollection that she and Mr Hall were in the Polo Lounge for about 45 minutes. They were sitting against the far wall, between the balcony doors, facing the exit. She estimated there were about 40 patrons in the lounge at the time. While she was there, Ms Palmer did not notice anyone entering or leaving the lounge, except for staff. The only time she saw people leaving the lounge was when she and Mr Hall arrived.

24 Mr Hall did not observe any persons carrying drinks between the first and second floor on that night. On previous occasions he had observed patrons doing so. On occasion he had carried drinks between the two floors. On one previous occasion he thought there might have been a staff member preventing that conduct, but otherwise not. Mr Hall did not observe any signs prohibiting the taking of drinks between the floors and said that if there had been such a sign, he would not have done it.

25 After about 45 minutes, or perhaps an hour, Ms Palmer and Mr Hall commenced to leave the hotel. As she was descending from the Polo Lounge to the Supper Club level she slipped. Her evidence was:

"Q. What happened when you got to the top of the landing?

A. We descended the stairs.

Q. How did you do that?

A. Just one foot after the other down the steps.

Q. And where were you in relation to Adam?

A. Adam was beside me on my left and I was beside him.

Q. He was on your left?

A. Yes.

Q. Was he just on the same level or behind you?

A. No just directly beside me. We walked down the steps and -

Q. Was there anyone else around you?

A. There were people behind us and people coming up.

Q. So what happened?

A. We descended the stairs and got roughly to the third step and just as my foot was about to touch the step, I noticed a liquid and reached out for the -

Q. Where was the liquid?

A. On the stair.

Q. And are you able to indicate how big the liquid was by reference to some dimensions?

A. Roughly an A4 sized piece of paper.

Q. And where was the liquid?

A. Just pooled on the stair, just sitting there.

Q. And when did you first notice it?

A. Literally seconds before my foot touched the step. So it was moments before my foot was landing.

Q. Are you able to indicate by reference to the position of your foot to the liquid when you first observed it; were you six inches away how many centimetres away?

A. Centimetres, millimetres, just literally just as my foot was about to touch the step I looked at the step and noticed the liquid and reached out for the handrail but never made it." (Black AB 73H-74D)

26 The stairway between the second floor and the first floor descends to a landing and then reverses direction with more stairs to the Supper Club. Ms Palmer fell on the first set of stairs leading from the Polo Lounge to the landing. Ms Palmer said she momentarily lost consciousness and awoke to find people standing around looking at her. She was assisted to a taxi by Mr Hall and left with him. She suffered injuries to her right arm and shoulder. His Honour rejected the suggestion that Ms Palmer was intoxicated and this was not challenged in the appeal.

27 His Honour assessed Mr Hall as "a very good witness". He had extensive experience in the hospitality industry generally and in running hotels. His observations of the stairs were:

"... and obviously they're pretty difficult steps, I mean I don't know if you've seen the steps before but they're pretty harsh ..." (Black AB 207H)

"Q. I'm asking you about your opinion that you thought the stairs were a bit harsh and painful?

A. Yes.

HIS HONOUR: Have you slipped on those stairs?

A. Yes. I remember the first time I went to that place, I actually slipped on those stairs myself. It was something that I - I very memorably recall because I actually kind of ... (Objection)". (Black AB 217D-G)

"Q. The question is, you didn't know at that stage there was water on the stairs did you?

A. No.

Q. No. Why do you keep on adding, "I didn't think you needed water"? Why do you add that?

A. Well, I just - as I said, those stairs have always been something that - I've always been - it struck me from day one.

Q. So you feel the need to come to this Court to express your opinion that it struck you from day one that the stairs are dangerous?

A. I thought I was answering the question when you said, "What did you think it was when it first happened?" I thought it was instantly the stairs.

Q. Sir, did you come to this Court feeling the need to express your opinion that you thought the stairs had always been dangerous?

A. Yeah." (Black AB 221P-W)

His Honour did not regard those observations of Mr Hall as authoritative.

28 No evidence was called by the occupiers. The following concession was made by counsel for the occupiers at trial:

"MAXWELL: Your Honour, there may be a concession in this respect but the Indigo Mist, which I think is the first defendant, has - is in receivership. The receiver - that doesn't cause a problem in terms of continuation of proceedings but subpoenas have been issued to endeavour to obtain documents which are consistent with cleaning records and the like. My learned friends may be prepared to concede that there are no such records. If not, it may be advisable in any event to tender the documents, including the subpoena from bundles 6 and 7.

HIS HONOUR: If there is a concession you don't need the documents. Do you make that concession or not?

SLEIGHT: Your Honour, yes, (1) we concede we are in receivership, (2) we concede no such documents have been produced and (3), we'd say we don't make a case out that we have a time required inspection of these, like every 30 minutes or anything like that. Those are the concessions. We won't be running a case that we inspect every 30 minutes.

HIS HONOUR: Okay." (Black AB 318P-Y)

29 I take that concession to be that there was no system in place at the hotel whereby inspections of the stairs or other locations were regularly made.

30 PKD did call evidence. Ms Williams had the qualifications of an architect, but had not yet been registered. She began working for PKD in February 2006. PKD specialised in designs for the hospitality industry. This was her first project for the company. It was also the first time that she had been involved in the design of hotel premises. Ms Williams worked as part of a team which was supervised by Mr Paul Kelly.

31 The project involved a complete refurbishment of the four floors, beginning with the basement through to the Polo Lounge on the top floor. It was a project costing approximately $4.3 million. The glass stairs idea came from Mr Kelly. Ms Williams was involved in preparing the drawings and specifications for the work that had to be done in that part of the hotel. She said that the Supper Club was designed as a "live venue" where music might be played. The Polo Lounge was a "cocktail lounge, VIP". The purposes of the various floors were made known to her in discussions with representatives of the hotel, in particular Mr Gavin, Mr Wynne and Toby and Will Osman.

32 The evidence of Ms Williams was:

"Q. Now you designed the staircase, correct?

A. I did.

...

Q. Were you involved in the choice of materials?

A. I was.

Q. For the construction of the stairs?

A. I was." (Black AB 331I, W-Y)

"Q. What was the reason why you had a strip along the front in your original design?

A. Two part. To provide a contrasting to the edge to see the beginning of the tread and two, anti-slip.

...

Q. How did you deal with those two considerations?

A. Basically made the front leading more to the edge, wider so it provided both contrast and slip resistance.

Q. What about the bricks themselves?

A. They were sandblasted.

Q. What was the purpose of that?

A. Primarily for contrasting, to show the beginning and to show the tread, contrasting edge, sorry - sorry to define the contrast between the mortar at the front and the brick itself.

Q. So this is the purpose that's come from Mr Dix is it?

A. Yes the sandblasting.

Q. The purpose of the sandblasting was to provide a contrast?

A. Contrast.

...

Q. So the purpose of sandblasting was to provide a contrast with the mortar?

A. Yes to identify the leading edge of the nosing of the tread." (Black AB 334G - 335E)

"Q. Well, you see, you said in answer to his Honour's question, you agreed with the proposition, your design contemplated - the Supper Club - did not contemplate the Supper Club and the Polo Lounge being used by the same people at the same time didn't you?

A. I did.

Q. But if I suggest to you, just assume that in 2.7 they have aggregated the number of people in level 1 and level 2, that suggests or contemplates the use of level 1 and level 2 by the same population doesn't it?

A. No, I don't agree with that." (Black AB 372J-M)

"Q. But you have been to venues where people have taken drinks from one level to another?

A. Yes I have.

Q. You've also been to venues where people have spilt drinks haven't you?

A. Indeed.

Q. You've been to venues where people are affected by alcohol?

A. Yes.

Q. You've been to venues, licensed venues, where the lighting is subdued?

A. Yes.

...

Q. I just suggest to you that people will move between floors with drinks in their hands unless you take precautions to stop them doing so?

A. I would suggest that would happen, if the same offering was on both floors. I would travel between two floors because they had the same offering and no level of control." (Black AB 373 M-Y).

"Q. You are saying you designed that staircase on the presumption that no one would carry drinks up and down it?

A. I did.

HIS HONOUR: Q. What about people going to the toilet carrying a drink?

A. I would not think anyone would take a drink to a public toilet."

(Black AB 379Q-T)

"Q. If you had contemplated people taking drinks up and down the stairs what if any difference to your design of the stairs would you have made?

A. Nil.

Q. Do you think people taking drinks up the stairs would present a hazard by spilling those drinks to other patrons?

A. As I said, I didn't think about them travelling with them at all." (Black AB 380L-O)

"Q. Would you think they would present [a risk] to other patrons by spilling drinks?

A. I think that would also fall - that would fall under a management of the hotel, operating management--

Q. I'm not asking you who it would fall under, if you had contemplated people taking drinks up and down the stairs, would you have considered they could present a hazard to other patrons by spilling drinks?

A. Yes. There is a - yes." (Black AB 381E-H)

33 Three experts provided evidence in the proceedings. Dr Emerson, a chartered professional engineer, prepared a report dated 15 December 2008 on behalf of Ms Palmer. Dr Emerson died before trial and was not cross-examined. Dr Cooke, a consultant architect, prepared two reports on behalf of Ms Palmer, dated 21 September 2010 and 21 October 2010. Dr Cooke also gave oral evidence and was cross-examined. Mr Beckett, consulting engineer, prepared a report dated 17 September 2009, on behalf of the occupiers. Mr Beckett was not required for cross-examination.

34 Dr Emerson applied the test methods prescribed in the 1993 and 1999 Australian Standard to the glass tiles. The average reading obtained by him was a co-efficient of friction of .29 with a minimum reading of .22. Under the Australian Standard, the minimum requirement for a wet surface was a co-efficient of friction of .4. Dr Emerson commented that when wet the glass tiles were well below that standard. Dr Emerson concluded:

"Smooth surfaced square smooth glass tiled or square smooth glass tiled tiles are by their very nature, slippery, as the co-efficient of friction for the surface only meets minimum standards of safety when dry. When such an untextured surface is contaminated with liquid or contaminated with a slippery substance, the step surface becomes unstable for persons wearing standard footwear." (Blue AB 507AP)

35 Because Dr Emerson concluded that such a surface was dangerously slippery when wet, he suggested the following responses:

"Provide adequate cleaning and drying.

Provide adequate anti-slip matting to soak up excess contaminant.

Apply correct inspection and cleaning procedures in a timely manner.

Provide appropriate and timely response for urgent cleaning of slippery substances, such as a pool of liquid contamination.

The use of anti-slip textured material such as carpet or ceramic tiling impregnated with an abrasive surface with obviously better frictional qualities when contaminated or wet, such as carborundum or similar additives to improve the frictional qualities.

Use of anti-slip coarse honed square smooth glass tiles.

Acid etch the steps.

Carpet the steps.

Adequate supervision for steps in walkway area by a responsible mobile cleaner, such a person would stand by and warn all persons in the immediate area of the hazard and proceed to clean up the contamination.

Provide urgently appropriate non-slip matting placed over the spill until it is cleaned up and properly dried.

Provide appropriate signage, warning of the hazards of a slippery step.

Cordon of the area until the area is dry with plastic tape erected on suitable stands.

Correct maintenance procedures involving a managed program of regular inspections cleaning/drying of the steps particularly in conditions of likely contamination.

Implement correct management and risk assessment procedures." (Blue AB 511N-512M)

36 Mr Beckett in his report applied the same method of testing to obtain the co-efficient of friction of the tiles. His results were almost identical to those of Dr Emerson, although slightly higher, i.e. an average co-efficient of friction of .31. Mr Beckett agreed that this result represented "a high contribution to the risk of slipping when wet" (Blue AB 223I).

37 Mr Beckett annexed to his report a test result carried out by CSIRO in respect of a glass block. The test by the CSIRO was carried out in 2000. The report setting out the test result was issued in February 2006. Mr Beckett seems to have assumed that this test result related to blocks of glass, similar to or the same as, those used in the stairs. For reasons which I will set out, there was no basis for that assumption.

38 Dr Cooke in his September report, by reference to the 1993 Australian Standard concluded:

"The subject stair is an internal stair. If it is normally wet when in use (because of spilt drinks), it should be designed as such. If it is in a dry area as defined in AS/NZS 3661.1:1993, good practice requires water and other liquids to be "excluded from all dry areas, for instance by the appropriate design of entrance foyers" (AS/NZS 3661.1:1993 clause 2, note 2 in Appendix B) and building operators "should ensure correct maintenance procedures are carried out". (Blue AB 277N-R)

39 Dr Cooke went on to say:

"The most likely cause of a slipping accident is an unexpected encounter with a slippery surface (such as a patch of water on an otherwise dry surface with adequate slip resistance when dry and inadequate slip resistance when wet, of which the glass blocks used for the nosing surface of the subject stair is an example) ... AS/NZS 3661.2: 1994 is advice to property owners and occupiers on methods for minimising slipping hazards, such as the use of absorbent matting on entrance lobby floors and the removal of water spilt or carried onto internal floors that are slippery when wet (clause 6.4 and clause 6.7 in Appendix C). In the case of the subject stair, spillages of drinks need to be mopped up without delay because of the high slipping risk posed by the landing and tread surfaces under wet conditions.

HB 197:1999 Table 3 recommends a Class X for internal stair nosings in dry areas and a Class W surface for internal stair nosings in wet areas (for the specification of materials for new building works) (Appendix J). It is unlikely that the glass and metal surfaces will have altered significantly since installation because of wear or cleaning procedures (because the glass and metal surfaces are hard enough to resist significant wear). A Class X surface has a BPN of 35-44 (HB 197: 1999 Table 2). A Class W surface has a BPN of 45-54. The BPN, as found, is less than 35. Therefore the stair surfaces are inherently inappropriate for the use in wet conditions and, as found, does not have the factor of safety under dry conditions suggested by Table 3." (Blue AB 278C-U)

40 Like Mr Beckett, Dr Cooke found that it was very difficult to observe liquid which was present on the glass tiles.

"At the time of my inspection the stair was illuminated by daylight from a landing window and lighting under the glass blocks (Photographs numbers 6-12). I observed that water was effectively invisible on the surface of the landing ... However, on the basis of my observations under daytime lighting conditions, with artificial lighting under the glass blocks, my opinion is that the presence of liquids on the glass surfaces would have been practically impossible to detect at night." (Blue AB 283C-H)

41 In his later report of October, Dr Cooke checked the lighting on the stairs at the hotel and concluded:

"As discussed in my first report, my opinion is that the presence of liquids on the glass block surfaces is difficult to distinguish. This applies in daylight and at night." (Blue AB 478M)

42 Dr Cooke confirmed that the method of testing for slipperiness under the Australian Standard had not changed between 1993 and 2004 (Black AB 423P).

43 Dr Cooke did not resile from that evidence under cross-examination, although there is one response which requires comment. At Black AB 247Q the following exchange took place:

"If it is a dry area, then you go on to express what should happen if it's a dry area, but you don't express in your report, do you, an opinion as to whether it's a wet or dry area?

A. Well that's correct and I suppose the reason I haven't felt that was necessary is because the testing that I did shows that it doesn't comply with the recommendation in the 1999 Handbook so whether it's a dry area or not, it is still - whether it's wet or dry, the surface is inherently unsatisfactory by reference to Table 1 of the Handbook." (Black AB 247Q-T)

"Q. The testing that you undertook in respect of the slip resistance - I understood your evidence yesterday to be that you undertook it in wet conditions in accordance with your instructions, correct?

A. Yes. The instructions were the surface was wet, it wouldn't have been possible to do it under dry conditions satisfactorily in any case and I didn't see any need to do it, so I tested it under wet conditions.

Q. And I understood your evidence yesterday to say that you hadn't undertaken the tests in the dry conditions, correct?

A. No, I formed the view that the surface would be slip resistant when dry and in any case it was alleged to be wet." (Black AB 272W-273E)

"Q. It doesn't tell you anything about the slip resistance of the floor as a whole when one takes into consideration the grout, the spacing between the bricks and any nosing, correct?

A. Well, I've discussed that, the grout surface is recessed, a pedestrian's shoe wouldn't make contact with that. I've also discussed the fact that the actual nosing is a metal strip which can't be tested, so I have dealt with all that. To me, my opinion was that the surface that was being contacted by the pedestrian's shoe was the glass block or if it's right on the nosing, then the metal strip on the nosing itself, plus some of the glass block as well." (Black 274F-J)

44 I do not read the evidence of Dr Cooke at Black AB 273D as being inconsistent with anything in his report or in his evidence. As I read his response he was saying no more than that there would have been greater slip resistance when dry, but not that the surface would have been satisfactory for use in this location in these premises.

45 By reference to the opinions of the experts, his Honour found:

"87I accept the results of the testing of the three experts to the effect that the stairs made a "high contribution to slipping when wet". Simply put, when wet, the stairs were dangerous." (Red AB 60E)

46 It was on the basis of those findings that his Honour dealt with the issue of liability. In relation to the owner and occupiers his Honour said:

"108The hotel relied on the decision of the NSW Court of Appeal in Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16. In this case an occupier of a shopping centre was able to delegate its duty in respect of a slipping hazard to a contracted cleaner. The occupier and the cleaner would have been concerned with essentially the same operational matter, namely keeping the premises clean. The difference here is that the designer was concerned with the original creation of the stairs, whereas the occupier and licensee were involved in the ongoing running of the business.

109If there was negligence on the part of the fourth defendant, it was not negligence that dictated the management of the premises on a daily basis. On the other hand, the duty of the owner could only have been in respect of the provision of safe premises, a duty which in my view, it delegated as far as the stairs were concerned, to the fourth defendant, a well known designer of hospitality premises. It follows that the owner (the third defendant) will necessarily escape liability to the plaintiff because it had completely delegated its duty of care to the fourth defendant." (Red AB 63D-K).

47 In relation to PKD, his Honour concluded that the particular of negligence which was relevant was par 11(e) of the Further Amended Statement of Claim which was in the following terms:

"(e)Failing to provide steps which were fit for the circumstances in which they were likely to be used."

The further particulars of negligence ((b) and (c) Red AB 15W-Y) raised the same issue but were expressed in positive terms.

48 His Honour set out his conclusions in relation to PKD as follows:

"113As I have said, the allegation against the fourth defendant is one of negligent design, in particular that the design should have taken into account the circumstances in which the steps were to be used. Thus, the use of glass steps in a hotel where patrons are likely to take drinks up and down the steps and the drinks are likely to be spilt, requires a consideration of the type of steps that are suitable for such circumstances." (Red AB 63T-V)

49 His Honour accepted that the duty of care owed by PKD was qualified by its contractual obligations. Nevertheless, he concluded that the contract with the owner did not have any practical effect on the duty owed by PKD to third parties. His Honour rejected the proposition that its duty was limited by Ms Williams' evidence that it was not contemplated that patrons might take drinks between the floors. This was particularly so because the toilets on the second floor serviced both floors.

50 Applying s 5B CLA, his Honour took as his start point that the risk of a patron slipping on the stairs because a step had been made slippery by the spilling of a drink was obviously foreseeable and was not insignificant. He concluded:

"That a designer taking the risk into account would ensure that any stairs designed could cater for the risk." (Red AB 64H)

51 His Honour found that it would have been unreasonable for PKD to rely upon the CSIRO testing report and should have carried out its own testing. His Honour said that such testing would have been justified given the substantial size and cost of the project.

52 His Honour set out his conclusion as to breach of duty in relation to PKD as follows:

"122The fourth defendant's liability is not only measured by its failure to have testing done. The fourth defendant designed the stairs and selected the material. The basis for the design was the use of similar steps to those in a clothing store in New York (exhibit 1D7, Minute 5.18). Counsel for the fourth defendant accepted that it was reasonably foreseeable that a person might bring a drink into a clothing store and that it might be spilt onto the steps. Almost incredibly Ms Williams said she could not contemplate drinks going up and down the steps between the first and second floors of the hotel, even though the toilets were situated on the second floor. The question of the safety of the stairs was simply not considered by the fourth defendant. This failure in my view amounts to a breach of the fourth defendant's duty of care." (Red AB 64W-65F)

53 In relation to s 5D CLA and causation, his Honour quoted from Tabet v Gett [2010] HCA 12; 240 CLR 537, Kiefel J at [111] - [112] and from McColl JA in Mobbs v Kain [2009] NSWCA 301 at [107] when concluding that causation had been made out. His Honour said:

"125... Adapting her Honour's words to this case: "Rather, as a matter of common sense, it was" the fourth defendant's negligence in designing (and therefore having installed) steps that were slippery when wet that caused the plaintiff's injury. The negligence that was "a necessary condition of the occurrence of the harm" was the negligent design of the steps, or perhaps more particularly, the design for use in a pub (where drinks would be carried up and down steps and spilled), of steps that were dangerous when wet." (Red AB 65X-66D)

54 In reaching his conclusion as to causation, his Honour rejected the argument that the payment of a cover charge for entry into the Supper Club meant that there was a control point which could be used by the hotel management to control the use of the stairs. His Honour said that because the stairs were "obviously unsuitable" PKD could not delegate in that way its obligations to users of the stairs.

55 His Honour rejected the defence by PKD under s 5O CLA on the basis that it did not adduce evidence that it had acted "in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice".

56 In relation to the occupiers, his Honour said:

"129I think that the first and second defendants were negligent. They owed a duty to lawful entrants to "take reasonable care to avoid a foreseeable risk of injury to the person concerned" (Australia Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479 at 488).

130I think their duty of care extended to taking reasonable precautions to ensure the safe passage of patrons up and down the stairs in circumstances, as I have oft repeated, where it was reasonably foreseeable that drinks might be spilt on the stairs. There was no evidence of any cleaning or inspection system. There was no evidence of any warnings about taking drinks between stairs. There was no control over persons using the stairs. The fact that the liquid may only have fallen on the stairs even moments before the plaintiff slipped, in my view, does not assist the first and second defendants. Their negligence was in allowing a situation to exist in which the stairs might become wet and if they did, could then pose a hazard to users of the stairs." (Red AB 66W-67H)

57 As to causation, his Honour found that the absence of any system of control or the placing of signs, or even the use of a mat to cover the stairs, created a situation which allowed the plaintiff to come upon a hazard and as such was "a necessary condition of the occurrence of the harm".

58 As between the occupiers and PKD, his Honour apportioned liability equally. He found that even though the "original" negligence had been that of PKD, it was also the continuing role of the occupiers in the operation of the hotel which caused Ms Palmer's injuries. His Honour found it difficult to differentiate the culpability of the parties and accordingly found them equally liable.

59 His Honour rejected the defence of contributory negligence. In particular, his Honour rejected the suggestion that Ms Palmer should have used the railing when the stairs had a railing on only one side.

Appeal by occupiers

60 A preliminary issue was the objection by the occupiers to Ms Palmer's Notice of Contention. The Notice of Contention sought to support the judgment in Ms Palmer's favour on the basis that the occupiers had no inspection and cleaning system and that had an appropriate system been in place, it would have minimised or eliminated the hazard created by liquid on the stairs. It asserted that the occupiers' negligence consisted of not having a cleaning system in place. In the alternative, the notice asserted negligence on the part of the occupiers on the basis that if a staff member spilt the liquid, the occupiers were vicariously liable for his or her conduct in either failing to remove the spillage, or failing to warn of its presence.

61 The occupiers submitted that Ms Palmer should not be allowed to rely upon the Notice of Contention because the case had not been run on that basis.

62 I do not accept that submission. Both issues raised by the Notice of Contention were set out in the written submissions placed before his Honour on behalf of Ms Palmer (Black AB 8U, 9K-O, 11C-L, 15R-U). The absence of a cleaning system was the subject of the concession made by the occupiers at Black AB 318 P-Y. Although counsel for Ms Palmer was encouraged to abandon that issue, he did not do so.

"HIS HONOUR: So is it still part of your case that the cleaning - the lack of a system is an act of negligence?

MAXWELL: Well, your Honour, perhaps I can deal with it this way: I think the strongest plaintiff's case is that the stairs were slippery when wet, and it would have been a very simple procedure to put someone at the Supper Club and someone at the -

HIS HONOUR: Yes. Or a sign.

MAXWELL: Policing it. Or a sign. ... (Black AB 461L-P)

Neither his Honour nor counsel for Ms Palmer returned to that issue.

63 It is clear from that exchange that the absence of a cleaning system and its consequences was not abandoned by Ms Palmer. Not only did it form part of her written submissions before his Honour, but it was answered both orally and in the written submissions relied upon by the occupiers. It follows that Ms Palmer is entitled to rely upon her Notice of Contention in this appeal.

64 The grounds of appeal by the occupiers raised five discrete issues. The first was the content of the duty owed by the occupiers to Ms Palmer and whether there was evidence of a breach of that duty. The occupiers challenged his Honour's findings as to breach of duty on the basis that the particular breach relied upon by his Honour was not pleaded. The occupiers challenged his Honour's findings as to causation. They also challenged his Honour's findings on contributory negligence and as to apportionment of liability between them and PKD.

65 The ground asserting that the basis upon which his Honour found liability against the occupiers was not specifically pleaded as a particular of negligence can be conveniently dealt with first. I accept that it was not pleaded in terms, although arguably particular of negligence (b) "failing to provide a safe environment for patrons including the plaintiff" may have been wide enough to cover it (Red AB 15H). In any event, it is clear from the transcript and from submissions at the end of the trial that the issue was fairly and squarely raised.

66 Cases such as Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 497 and Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598 at [52] - [53] make clear that while it is preferable for pleadings to be amended when such a situation arises, it is not essential and a matter may proceed to judgment provided the issue was raised and run at trial. That clearly occurred here. Consequently, the occupiers' ground of appeal 9 has not been made out.

67 The occupiers accepted the following statements of principle: "The occupier of business premises owes a duty to a customer or other lawful entrant to take reasonable care to avoid a foreseeable risk of injury to the person concerned" (Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479 at 488); and "The occupier is required to exercise reasonable care to prevent injury to a customer or lawful entrant using reasonable care for his or her own safety" (Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330 at 345-346 [45]); Arabi v Glad Cleaning Service Pty Ltd [2010] NSWCA 208 at [34] per Sackville AJA, with whom Hodgson JA and Harrison J agreed).

68 The occupiers, however, disputed the content of that duty as found by his Honour and in particular that the duty had been breached. The occupiers submitted that his Honour had failed to properly carry out the requirements of s 5B CLA.

"5B(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."

69 As a start point, the occupiers submitted that the risk of harm which eventuated here, i.e. slipping on liquid on the stairs, was not foreseeable. This was a surprising submission. At trial counsel for the occupiers had virtually conceded foreseeability:

"Your Honour, stairs in licensed premises have drinks taken up and down them, and there's an associated risk of spillage. Why can't my client when he engages the top designer in the field, expect to have stairs in the same condition?

PKD knew or ought to have known that there was a possibility of spillage, as did my client. We don't shrink from that, my client should have known that there was a possibility of spillage." (Black AB 538N-P)

"Your Honour will have to decide should we know or ought to have known that there was this danger. Well, normally in licensed premises there's the danger exists. It must always exist. People spill drinks on stairs, it must always exist.

...

That may be this case, your Honour, if someone spills a drink on those steps, we've always said it's slippery when wet, it's foreseeable they'll do it, but he goes on - and it's going to be very easy for the plaintiff to satisfy your Honour in that regard". (Black AB 539E, 539K-L).

70 Moreover, it became obvious when questions were addressed to senior counsel for the occupiers that his reluctance to concede foreseeability was based on hindsight reasoning. His submission was that since there were 40 or less people in the Polo Lounge at the time of the accident, it was not reasonably foreseeable that there would be a spillage on the stairs. That, of course, is not the test. What has to be done is to consider the question of foreseeability prospectively from the position of the occupiers of hotel premises where a Supper Club and a Polo Lounge were linked by a set of stairs and when the toilets which serviced both venues were located on the top floor.

71 In those circumstances, the question to be asked was whether it was reasonably foreseeable by such occupiers that patrons would move between those two floors and that if they did, they might carry drinks and those drinks might be spilt, particularly when one of the primary activities being conducted on the premises was the sale and consumption of alcohol. As Dr Cooke said in his evidence - when considering such matters "one would need to look at the worst case, which is busy conditions, late at night after a lot of trading". (Black AB 248J).

72 I have concluded that the concession made by counsel for the occupiers at trial was appropriate. The risk of drinks being spilt on the stairs, given the layout of this part of the hotel, was clearly foreseeable. Not only was it foreseeable but there was a high likelihood of such an event occurring.

73 This appears to have been conceded by counsel for the occupiers at trial in the passages quoted at [58]. As was said by Heydon JA in Wilkinson v Law Court Ltd [2001] NSWCA 196 at [32]: "Stairs are inherently, but obviously, dangerous". In this case, that inherent danger was increased if liquid came upon the stairs. In the circumstances the risk of liquid being spilt onto the stairs causing a patron to slip and fall, must be regarded as "not insignificant". In fact, Mr Hall had slipped when he first used the stairs, although there is no suggestion that liquid was involved.

74 The danger presented by liquid on the stairs was one that should have been obvious to a reasonable occupier of these premises. In this case the occupiers cannot say that there had been no previous accidents on these stairs since they did not go into evidence. Apart from the evidence of Mr Hall, all that can be said by the occupiers is that there was no evidence of any previous accidents involving liquid on the stairs. That does not mean such accidents had not occurred. In the absence of evidence on this issue from the occupiers a conclusion that the risk was not insignificant was well open on the facts.

75 There was no evidence of any response by the occupiers to this not insignificant risk of harm. There were no signs, no warnings and no prohibition by staff on the taking of drinks between floors. There was no system of regularly inspecting or cleaning the stairs. This last point was conceded by counsel for the occupiers at trial (Black AB 318P-Y).

76 Because Mr Hall did not observe any sign prohibiting the taking of drinks from one level to the other, and because he did not see any member of staff outside the Polo Lounge, or the Supper Club, either warning patrons not to take drinks between the floors or checking the state of the stairs, it was open to his Honour to find that there were no such signs and that there were no members of staff performing such a function. This is particularly so when no evidence to the contrary was called by the occupiers.

77 The occupiers submitted that his Honour erred in treating the absence of evidence from them on such issues as enabling him to make positive findings against them. That is to misunderstand what his Honour did. There was evidence before his Honour from Mr Hall which allowed him to make positive findings. In the absence of any evidence to the contrary from the occupiers, he could be more confident in making those findings. It is not without significance that two of the hotel managers - Toby and Will Osman - were present in the Polo Lounge on that night but did not give evidence.

78 In Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 the plurality (Heydon, Crennan and Bell JJ) said:

"63The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue ... ."

79 Not only was there a not insignificant foreseeable risk of harm from someone slipping and falling on the stairs, there was a high likelihood of serious injury being suffered thereby. In those circumstances, the responses suggested by his Honour were reasonable and "the burden of taking precautions to avoid the risk of harm" was not great.

80 His Honour suggested that signs prohibiting the movement of drinks between the floors could have been placed in position. The effect of such signs would have been enhanced by a member of staff being positioned outside the Polo Lounge to enforce the prohibition or alternatively, members of staff being instructed generally to enforce the prohibition where they saw drinks being taken between floors. These responses were relatively inexpensive and practicable.

81 A further response suggested was a system of inspection and removal of liquids from the stairs. While the additional cost of deploying members of staff in this way is not known, it is not an unreasonable response when one considers the potential seriousness of injuries likely to be suffered by a patron slipping and falling on stairs of this kind, i.e. a combination of glass, metal and cement render. There was also the high likelihood of such a fall occurring given the nature of the premises and the inevitable effect of alcohol on patrons.

82 There was no evidence of any response by the occupiers to the foreseeable risk of harm presented by the stairs. To the extent that there was evidence on the subject, it came from Mr Hall who observed no response. In the circumstances, it was open to his Honour to find that no response had been made by the occupiers. It follows that the requirements of s 5B CLA have been satisfied and that breach of the duty of care which the occupiers owed to Ms Palmer has been established.

83 The occupiers submitted that before his Honour could find that the positioning of signs and the enforcement by staff of a prohibition against carrying drinks between floors were appropriate responses to the risk of injury, it was necessary for Ms Palmer to call expert evidence to that effect. I do not agree. This is one of those situations where "common knowledge and common sense" can be invoked when determining what is an appropriate response to a foreseeable risk of injury.

84 In Neill v NSW Fresh Foods and Ice Pty Ltd (1963) HCA 4; 108 CLR 362 at 368 Taylor and Owen JJ said:

"In many cases no more than common knowledge, or perhaps common sense, is necessary to enable one to perceive the existence of a real risk of injury and to permit one to say what reasonable and appropriate precautions might appropriately be taken to avoid it."

85 Similar observations were made in Hamilton v Nuroof (WA) Pty Ltd (1956) HCA 42; 96 CLR 18. That was a case where the plaintiff was injured when a bucket of bitumen, which he was lifting onto a roof, spilled over him. Dixon J and Kitto J said in those circumstances no expert evidence was required to establish that:

"When a vessel containing 40 pounds weight of molten metal is raised by hand in front of the body high enough for a handle to be seized by a man above, there must be a greatly increased risk of it spilling whether through mishandling or mistake or mischance and the prospect of serious injury if that happens must be much greater also".

Their Honours concluded that the danger was real and evident.

86 The occupiers submitted that no response was required by them to the foreseeable risk of harm because their obligations in that regard had been delegated to PKD. They submitted that PKD was expert in the refurbishment of hotels and that they had not been given any warning by it that there was a problem with the stairs. In those circumstances they submitted liability should be found only against PKD. The occupiers relied upon Bevillesta as authority for that proposition.

87 The occupiers' reliance upon Bevillesta as authority for a capacity to delegate the duty of care which they owed to Ms Palmer, is misconceived. His Honour correctly distinguished the facts of Bevillesta from the facts of this case at [108] - [109] of his judgment (set out in par [46] hereof). The facts in Bevillesta involved the delegation of responsibility by an occupier to a cleaning contractor. That was an appropriate finding because there was a clear overlap in their responsibilities for the cleaning of the shopping centre. The circumstances of this case are quite different.

88 PKD had responsibility for the implementation of the refurbishment of the hotel. This included the design of and materials used in the stairs. It had no responsibility for the management or day to day running of the hotel. The content of the duty owed by the occupiers was not only to provide safe premises, but to exercise reasonable care to conduct the hotel premises so as to avoid exposing patrons to a foreseeable risk of harm. Their responsibility for the management and day to day running of the hotel could not be delegated to the architect. His Honour correctly found that the management of the hotel gave rise to different obligations to those associated with the design of the hotel.

89 The occupiers had to direct their attention prospectively to what action reasonable care required them to take in order to avoid a foreseeable risk of injury to patrons or other lawful entrants to the hotel. Once they accepted the design of the stairs, they had to consider for themselves what potential hazards arose therefrom. Given the nature of the premises, they had to determine for themselves whether a foreseeable risk of injury existed in relation to the stairs, and if so, what response they should make to it on a day-to-day basis. This they failed to do. Breach of duty has been established by Ms Palmer against the occupiers.

90 That does not end the matter. For Ms Palmer to establish liability, she also had to prove that the breach of duty by the occupiers caused her injuries. Section 5D CLA provides:

"5D(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").

(2)In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, 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.

(3)If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a)the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b)any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(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."

91 The most recent statement of principle in relation to s 5D is in Strong v Woolworths Ltd t/as Big W [2012] HCA 5; 86 ALJR 267 where the plurality said:

"18The determination of factual causation under s 5D(1)(a) is a statutory statement of the "but for" test of causation: the plaintiff would not have suffered the particular harm but for the defendant's negligence. While the value of that test as a negative criterion of causation has long been recognised, two kinds of limitations have been identified. First, it produces anomalous results in particular cases, exemplified by those in which there is more than one sufficient condition of the plaintiff's harm. Secondly, it does not address the policy considerations that are bound up in the attribution of legal responsibility for harm."

92 To the extent that there was any doubt on the issue, Strong made it clear that s 5D did not preclude there being more than one cause of injury.

"20Under 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."

93 Some guidance in the application of s 5D in slipping cases was provided by the plurality at [32]:

"32The appellant was required to prove on the balance of probabilities that Woolworths' negligence was a necessary condition of her harm. Woolworths' negligence lay in its failure to employ a system for the periodic inspection and cleaning of the sidewalk sales area. Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred. Here, the appellant was required to prove that, had a system of periodic inspection and cleaning of the sidewalk sales area been employed on the day of her fall, it is likely that the chip would have been detected and removed before she approached the entrance to Big W."

94 The occupiers submitted that Ms Palmer had failed to prove causation on the facts. They submitted that it was necessary for Ms Palmer to adduce evidence that appropriate warning signs, the prohibition by staff of the movement of drinks between the two levels and the existence of a system of regular inspection and cleaning would have prevented her fall. In the alternative, that the absence of such actions caused her fall.

95 This submission misstates the test for causation. Ms Palmer was required to prove, on the balance of probabilities, that the occupiers' negligence was a necessary condition of her harm. The occupiers' negligence lay in their failure to have signs prohibiting the movement of drinks between floors, a failure to have staff enforcing such a prohibition and a failure to have system of regular inspection and cleaning of the stairs. Proof of the causal link between such omissions and the occurrence of harm required consideration of the probable course of events had the omissions not occurred.

96 Most particularly, it was not necessary for Ms Palmer to prove that the taking of such action would have prevented her fall. It was sufficient if she proved that the taking of such action would have minimised the risk of such a fall. That was the approach followed by his Honour when he said "the absence of any system of control or placing of signs, or perhaps even the use of a mat to cover the glass stairs, created a situation which allowed the plaintiff to come upon a hazard. This failure "was a necessary condition of the occurrence of the harm"." (Red AB 67K-L) Put another way, these precautions if taken, would have prevented, or minimised, the chance of a dangerous situation coming into existence.

97 In slipping cases there have been traditionally two types of responses to a risk of injury. The first is to prevent, or minimise, the chances of the slippery substance getting onto the floor. The second has been to accept the inevitability of a slippery substance coming onto the floor but to then institute a system to rapidly detect and remove the substance. The latter approach is that which is usually followed in the case of supermarkets. His Honour's conclusions in this case related to a response of the first kind. His Honour clearly regarded such a response as feasible since the occupiers were not dealing with a large supermarket but a set of stairs between two floors.

98 At common law that approach to causation has been approved on many occasions. In State of Victoria v Bryar and Anor (1970) 44 ALJR 174 Barwick CJ, with whom McTiernan, Owen and Walsh JJ agreed, said at 175:

"To satisfy the element of causation, generally speaking it would be necessary to identify the nature of the step which the jury on the available evidence could conclude that a teacher ought to have taken but did not take. That act, if the failure to take it is to be accounted negligent, must be such as the foreseeable risk of injury would require having regard to the nature of the risk and the extent of injury should the risk mature into actuality. It is necessary that the jury could conclude as a matter of evidence and inference that more probable than not the taking of that step or steps would have prevented or minimised the injury which was in fact received."

99 In Kuhl French CJ and Gummow J said:

"45To satisfy the element of causation on the case presented for Mr Kuhl to this Court, it would be necessary to identify the action which, on the available evidence, the trial judge could conclude ought to have been taken; that action, if failure to take it is to be accounted negligent, must be such that the foreseeable risk of injury would require it to be taken, having regard to the nature of that risk and the extent of injury should the risk mature into actuality; and it would be necessary that the trial judge could conclude as a matter of evidence and inference that, more probably than not, the taking of that action (here the installation of the break box) would have prevented or minimised the injuries the plaintiff sustained."

100 In the same case Heydon, Crennan and Bell JJ said:

"104In any event, the first respondent's submissions operate on an erroneous assumption about the test for causation. The question is whether the taking of a particular step which the defendant did not take "more probably than not ... would have prevented or minimized the injury which was in fact received." ... "

101 In Roche Mining Pty Ltd v Graeme Wayne Jeffs [2011] NSWCA 184 McColl JA (with whom Basten JA and Tobias AJA agreed) said:

"81Roche's written submissions on causation contended that the respondent had to establish that the transverse stair access system would have obviated the risk of injury and that it was not sufficient that it be established that that system would have reduced the risk. It is apparent from Kuhl (and numerous other authorities, as to which see Varga v Galea [2011] NSWCA 76 (at [25])) that that submission must be rejected. It is sufficient that the suggested precaution would have minimised the injury. The primary judge (at [118]) accepted the expert evidence that such a system would have significantly reduced the risk of injury. That was sufficient to discharge the respondent's burden of proof in this respect."

102 There was no basis for suggesting that had signs been in position and had members of staff enforced the prohibition, patrons of the hotel would have ignored them. On the contrary Mr Hall said that had such a prohibition been brought to his attention, he would not have carried drinks between the floors. Clearly the implementation of such action could not be said in absolute terms to have prevented the injury which Ms Palmer suffered, but it would have substantially minimised the risk of that injury occurring.

103 Can such an approach to causation now be accommodated by the "but for" test set out in s 5D(1)(a) CLA? In my opinion it can.

104 Following the analysis in Strong at [32], the presence of liquid on the stairs was a necessary condition of Ms Palmer's harm. The occupiers' negligence lay in their failure to erect signs prohibiting the transportation of drinks between floors and to employ a system whereby staff would implement that prohibition by directing patrons accordingly.

105 Proof of the causal link between that omission and an occurrence requires consideration of the probable course of events, had the omissions not occurred. Here Ms Palmer was required to prove that had such a system been employed on the night of her fall, it is likely that liquid would not have come upon the stairs during the 45 minutes or one hour that she and Mr Hall were in the Polo Lounge.

106 As already indicated, there is nothing to suggest that had signs been in position and had members of staff enforced the prohibition that patrons would have ignored that direction. There is nothing to suggest that members of staff would have ignored such a prohibition. Moreover, the evidence of Ms Palmer and Mr Hall was that on this night there was not a great deal of movement on the stairs with only 40 or less persons in the Polo Lounge. In fact the only movements which they observed while they were present in the Polo Lounge was that of staff moving to and from.

107 In those circumstances, it should have been a comparatively easy task for staff to supervise the movement of persons from the Polo Lounge to the Supper Club or from the Supper Club to the Polo Lounge and the toilets during that 45 minute - one hour period. It follows that it is more likely than not that had the suggested system been in place, liquid would not have been present on the stairs so as to cause Ms Palmer's fall.

108 In relation to Ms Palmer's Notice of Contention, the occupiers submitted that there was no evidence that a system of regular inspection and cleaning would have prevented the fall, since it was not known how long the liquid was present on the stairs. They submitted that there was no evidence that a member of staff had either spilt the liquid and done nothing about it, or had observed the spillage and done nothing about it.

109 In relation to the issues raised in the Notice of Contention, I do not accept that there is sufficient evidence to infer that a member of staff spilt the liquid and failed to clean it up, or observed the spilt liquid and failed to clean it up. The evidence of Ms Palmer and of Mr Hall as to movements in and out of the Polo Lounge by members of staff only, does not preclude the movement of patrons from the Supper Club to the toilets. Those persons would not be able to be observed by either Ms Palmer or Mr Hall. In that regard, although there was no evidence either way, I infer that the Supper Club was open on this night. It was a Friday night, which is traditionally one of the busiest nights of the week for persons having dinner and otherwise attending hospitality venues.

110 In relation to the absence of a system of regular inspection and cleaning, it is not known for how long the liquid had been present on the stairs. It may have been present but not observed by Ms Palmer and Mr Hall when they went to the Polo Club. Although the spillage was substantial in size (A4 size was the estimate by Ms Palmer), it may still have been missed because of the difficulty in seeing it against the glass steps, as Dr Cooke explained. There is, however, no evidence that it was present at that time.

111 The evidence of Ms Palmer and Mr Hall was that they were in the Polo Lounge for between 45 minutes and one hour. If the liquid were spilt on the stairs during that period, there was no evidence as to when within that timeframe, such an event occurred. There was, however, evidence that enabled his Honour to find, and which was conceded by the occupiers, that during that timeframe, there was no system in place whereby the stairs would be regularly inspected and cleaned. There was no evidence either way that members of staff had been directed to look for spillages and if such were identified, they were to be removed.

112 The submission by the occupiers was that even if there had been a system of inspection and cleaning sufficient to discharge their duty of care, there was no evidence that this would have prevented Ms Palmer from falling. They submitted that if they were not obliged to continuously monitor the state of the stairs, then the evidence did not establish that the liquid which caused Ms Palmer to fall did not come onto the step a short time before the accident occurred.

113 The question to be decided was put by McHugh JA in Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at 256:

"The critical question ... is ... whether the evidence gives rise to an inference that the appropriate inspection and cleaning system would have avoided the plaintiff's injury. For it is no comfort to the plaintiff to show that the defendant did not have a proper system unless she can show that the existence of a proper system would have avoided her injury ..."

114 The facts of this case are different to those in Shoeys Pty Ltd v Allan (1991) Aust Torts Reports 81-104 and Strong. The arguments which were there successfully invoked on behalf of the plaintiffs do not seem to me to be available here. Accordingly, although I am satisfied that Ms Palmer has established breach of duty in relation to the absence of any system of inspection and cleaning raised in her Notice of Contention, she has not established that this breach of duty caused her fall. I would dismiss the Notice of Contention.

115 It follows from the above analysis that this part of the occupiers' appeal should be dismissed.

Appeal by Paul Kelly Design

116 It was common ground that PKD did not provide or supply the stairs but recommended the use of glass blocks in the stairs. It was also common ground, as between PKD and Ms Palmer, that it was reasonably foreseeable that given the nature of the premises that there might be liquid on the stairs in the hotel. It was common ground that PKD owed a duty of care to patrons of the hotel although the content of that duty was not articulated.

117 PKD submitted that his Honour's approach to its liability was fundamentally flawed in that his Honour carried out a retrospective analysis. It submitted that his Honour's start point was the assessment by the three experts that the stairs were dangerously slippery when wet. It was submitted that his Honour then worked backwards from that start point as to how it was that Ms Williams, on behalf of PKD, recommended stairs which were dangerously slippery when wet. It submitted that it was not established that Ms Williams knew, or ought to have known, that the stairs would become dangerously slippery when wet.

118 It submitted that his Honour did not determine what it was that Ms Williams should have done before recommending that glass blocks of this kind be used in the stairs. His Honour suggested testing, but did not take that suggestion any further. It submitted that had his Honour properly analysed that question, he would have concluded that Ms Williams would have either gone to the supplier, Obeco, or would have gone to the CSIRO for such testing. Either way, it submitted, she would have been provided with the existing CSIRO test results which showed that the glass blocks, and therefore the stairs, possessed high slip resistant qualities, even when wet.

119 PKD submitted that his Honour had wrongly concluded from Ms Williams' answers under cross-examination that she had no concern about the safety of the stairs when in fact no alternative products were suggested to her in that cross-examination. In that regard, PKD noted that no failure to advise or warn case had been run against it. The only case run, and that which was found by his Honour against it, was a failure to provide steps which were fit for the purpose for which they were likely to be used.

120 PKD submitted that his Honour erred in his approach to causation when finding liability against it. In reaching his conclusion that it had failed to provide suitable steps, his Honour had used in his reasoning process his finding that it had failed to give consideration to safety issues and had failed to carry out testing of the glass blocks. His Honour then went on to find that if those matters had been properly considered, the accident would not have occurred. What his Honour did not consider were the likely consequences if PKD had taken those matters into account. In particular, there was no evidence as to how the owner/occupiers would have responded had these matters been raised with them and there was no expert evidence as to alternative surfaces of a similar kind which could have been used and which had non-slip characteristics.

121 In summary, Paul Kelly Design submitted that the mere fact that steps might become slippery when wet should not be the barometer for negligence on the part of an architect because almost all stairs would become slippery when wet. There was no evidence in the case as to the existence of alternative steps and it was never put to Ms Williams that she should have recommended an alternative type of step.

122 The duty of an architect to third parties has been variously expressed. In Voli v Inglewood Shire Council [1963] HCA 15; 110 CLR 74 Windeyer J said at 85:

"... What an architect must do to avoid liability for negligence cannot be more precisely defined than by saying that he must use reasonable care, skill and diligence in the performance of the work he undertakes ... Neither the terms of the architect's engagement, nor the terms of the building contract, can operate to discharge the architect from a duty of care to persons who are strangers to those contracts. Nor can they directly determine what he must do to satisfy his duty to such persons. That duty is cast upon him by law, not because he made a contract, but because he entered upon the work. Nevertheless, his contract with the building owner is not an irrelevant circumstances. It determines what was the task upon which he entered."

123 In Florida Hotels Pty Ltd v Mayo [1965] HCA 26; 113 CLR 588 at 599 Windeyer J said:

"An architect employed to supervise the construction of a building must bring a proper degree of skill to his task and exercise reasonable care in its performance. Ordinarily the builder is an independent contractor employing his own workmen and engaging a subcontractor. The architect supervises the work as a whole."

And at p 603 Windeyer J said:

"In Voli's case an architect who designed the structure was held to have a duty of care to all persons who would later use it for the purpose for which it was designed. In such a case, if the design be defective as a result of the architect's negligence, and if, because of those defects, the structure collapses and persons using it (in the way it was contemplated it would be used) come to harm, then the architect is liable to them in damages. ... Where a person injured was someone who it might be contemplated would be within the area of risk created by the architect, there is, it seems to me, no ground for excluding the architect from liability."

124 While s 5B is not particularly useful in cases involving professional negligence, it still has a part to play. Looking at the matter prospectively, as Ms Williams would or should have done, and as was conceded in argument, it was foreseeable that given the nature of the premises that drinks might be spilt by patrons using the stairs to move between floors where liquor was provided. Of course, that was only foreseeable if the architect turned her mind to the question. A surprising feature of this case is that Ms Williams did turn her attention to the circumstances in which the stairs were to be used.

125 Before examining this question further, it is necessary to say something about the evidence which was before his Honour. The test results concerning the glass blocks while not identical, all indicated an average co-efficient of friction, or British Pendulum Number (BPN), within Class Y of Table 2 of the Australian Standard (Blue AB 539R-V). Class Y specified a BPN range of 25-34. Dr Emerson's tests produced an average BPN of 29, Mr Beckett's 31 and Dr Cooke's a little higher but considerably less than 34. Under the Australian Standard, a Class Y surface made a "high" contribution to the risk of slipping when wet.

126 In submissions by all the parties, differing emphases were placed on the CSIRO test result set out at Blue AB 228-233. Although the test result was sent to Mr Hawke of Obeco by CSIRO in 2006, the circumstances in which it was sent were never explained. More importantly, its relevance to the glass blocks supplied by Obeco for the hotel stairs in 2006 was not explained. What is clear from the test results, however, is that the "etched glass" to which the test results related was Class V. Under the Australian Standard a Class V surface was described as making a "very low" contribution to the risk of slipping when wet. A Class V surface has a BPN of greater than 54. Dr Cooke explained that given the nature of the glass blocks used in the hotel, the BPN would have changed very little over the years (Blue AB 278P-Q). This led his Honour to conclude, as do I, that the glass block tested by CSIRO in 2000 was quite different in its BPN qualities to the glass blocks which were used in the construction of the stairs.

127 The CSIRO test, however, is relevant in this respect. It demonstrates the existence, at least in February 2000, of etched glass blocks which were Class V and therefore had high slip resistant qualities when wet. While the test result may not necessarily indicate the existence of an alternative glass block product with slip resistant qualities in 2006, it certainly indicates a line of enquiry which could have been made had that test result been produced. Moreover, Dr Emerson in his report of December 2008 referred to "anti-slip coarse honed square smooth glass tiles" and "tiling impregnated with an abrasive surface with obviously better frictional qualities when contaminated or wet such as carborundum or similar additives to improve the frictional quality" as alternatives to the glass blocks which were used.

128 The inference which his Honour drew from the evidence of Ms Williams was that she had not turned her mind to safety considerations when recommending that the stairs be constructed of glass blocks. That was a finding open to his Honour. Not only was the finding open to his Honour, but any reading of the transcript of Ms Williams' evidence would confirm his Honour's conclusion in that regard. The inference is unavoidable that what was foremost in her mind was the "look" of the stairs, rather than safety aspects.

129 As his Honour pointed out, Ms Williams did not regard the sandblasting of the glass blocks to be a safety consideration, rather she saw it as providing a contrast between the glass blocks and their surrounds. Her rejection in evidence of the possibility of patrons moving between the Polo Lounge and the Supper Club carrying drinks confirmed his Honour's conclusion. The impression one gains from her evidence is that she simply did not turn her mind to the practical use and operation of the stairs. When Ms Williams was pressed as to safety considerations, she responded that this was the responsibility of those managing the hotel, not something with which she needed to concern herself.

130 Her evidence justified the inference that she saw her function to be a narrow one, restricted primarily to the terms of the agreement between PKD and the owner and that she did not give anything but a cursory consideration to third parties who would be using the hotel, and in particular the stairs, as patrons. His Honour also had the advantage when reaching his conclusions on this issue of seeing Ms Williams give her evidence.

131 For the reasons already indicated in relation to the occupiers, had Ms Williams turned her mind to the potential hazards created by the stairs, she would have realised that a product which made a high contribution to the risk of slipping when wet, was not an appropriate product to be used on stairs joining two venues where alcohol was going to be consumed. This is not to say, as was put in submissions, that the mere fact that steps became slippery when wet, is indicative of negligence. The analysis goes considerably further than that. As the Australian Standard made clear, the slipperiness when wet was of a high level and the circumstances surrounding the use of the stairs and of the premises generally, had to be taken into account.

132 In accordance with the obligations of an architect set out in Voli and Florida Hotels, Ms Williams should have taken these matters into account and if she had done so, she would have realised that there was a need to test the glass blocks which she was recommending for use in the stairs, and if found to be unsuitable, to have recommended a different product.

133 His Honour's findings as to breach of duty at [113] - [122] (Red AB 63T-65E) were not only open to him, they were appropriate on the evidence. As his Honour pointed out at [116] (Red AB 64G-H) the requirements of

s 5B CLA had been met. The appropriate response to the foreseeable risk of injury was to recommend a different product which would prevent or minimise the harm. That could still be a glass block, but one with slip-resistant qualities such as was the block assessed in the CSIRO report.

134 In summary, the point taken by PKD in relation to causation was that consideration had to be given to the probable course of events, had the omissions relied upon as constituting the breach of duty not occurred. PKD submitted that had Ms Williams made any inquiry of Obeco as to the suitability of the glass blocks which she recommended for use in the stairs, she would have been provided with the CSIRO report which would have indicated the suitability of the blocks so that the same outcome would have occurred.

135 For the reasons already indicated, that submission is too simplistic. A proper inquiry would have involved an assessment by someone who had knowledge of how slip resistant qualities were assessed in products such as glass blocks, not simply an inquiry from the supplier. A person with expertise in that area would have immediately noted the Class V status of the block of glass to which the CSIRO report related. He or she would then have taken action, almost certainly by testing the product supplied by Obeco, to make sure that it complied with that test result. Based on the findings of the three experts who provided evidence in the trial, such a test would have made it clear that the product supplied by Obeco was not the same as that which was the subject of the CSIRO test.

136 In other words, it was not a sufficient response for Ms Williams to make a request of the supplier, but some testing by a person with the necessary expertise of the product supplied by Obeco should have been carried out. If such testing had been carried out, it is clear from the test results used in the trial, that the high risk of slipping on the glass blocks when wet, would have been revealed.

137 As his Honour pointed out at [121] (Red AB 64R-V), given the size of the project, such testing would not involve unreasonable expense or inconvenience.

138 The options then open to Ms Williams would have been to report her findings to the owner and occupiers, or to source the same kind of product, i.e. glass blocks, but those with substantial slip resistant qualities when wet, such as those which were the subject of the CSIRO report or referred to by Dr Emerson. The fact of the CSIRO report would seem to indicate that such a product does exist.

139 In relation to approaching the owners and occupiers, PKD submitted that this would not have made any difference since glass blocks were the product chosen specifically by them because of its "New York Style" (Blue AB 130N). PKD submitted that that inference could be drawn from the absence of any evidence from the owner or occupiers.

140 Such a conclusion does not necessarily follow. It is not known what response the owner or occupiers would have made on being told that the glass blocks recommended for use in the stairs, when wet, created a high risk of slipping for persons using them. An inference can equally be drawn that being conscious of their liability in such circumstances, the owner and occupiers would have accepted a change. I regard that latter inference as more likely than the competing inference, when the former inference is based only upon the tactical decision not to call evidence in the trial. In the event the owner and occupiers were not given the opportunity to consider the matter.

141 PKD submitted that it was never put to Ms Williams in terms that she should have had the glass blocks tested, nor was it put to her that had the testing revealed what the three experts found as to slipperiness when wet, she should have communicated this fact to the owner and occupiers. It is true that this was not put in cross-examination. Significantly, however, no evidence on those issues was led in chief. In that regard, the second part of the statement of principle in Kuhl (set out [78] hereof) is relevant, i.e. "where a witness has been called but not questioned on particular topics". The plurality held that in such a case the court will be less likely to draw inferences favourable to the party who called the witness, but did not ask the questions.

142 When Ms Williams was specifically asked questions about safety and what she would have done had she appreciated that drinks would be taken between the Polo Lounge and the Supper Club levels, she responded that she would not have done anything differently. That is in line with her approach, to which reference has already been made, of interpreting her task as an architect very narrowly. It is also consistent with her later responses when questioned as to safety in which she sought to shift responsibility to those managing the hotel.

143 I am satisfied that in a purely factual sense, and applying the "but for" test, had PKD not recommended the use of a step which became highly slippery when wet, Ms Palmer would not have fallen. Moreover, by failing to have the glass blocks tested and by failing to bring to the attention of the owners the test results which would have been forthcoming, there was a failure to take action which would have prevented or minimised the risk of the fall occurring. It follows that I am satisfied that causation on the part of PKD has been established.

Application of s 50 CLA

144 It is then necessary to consider the defence relied upon by PKD under

s 5O CLA.

145 That section provides:

"5O (1) A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.

(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted."

146 The meaning and application of that section was considered in Dobler v Kenneth Halverson and Ors; Dobler v Kurt Halverson (by his tutor) [2007] NSWCA 335; 70 NSWLR 151. At [59] - [60] Giles JA, with whom Ipp and Basten JJA agreed, said:

"59Section 5O was amongst the tort law reforms consequent on the Review of Law of Negligence Final Report, September 2002 ("the Review"). It was intended to introduce a modified Bolam principle. Its importance does not lie so much in questions of onus of proof as in who determines the standard of care. Commonly, as in the present case, there will be expert evidence called by the plaintiff to the effect that the defendant's conduct fell short of acceptable professional practice and expert evidence called by the defendant that it did not; the expert evidence may or may not recognise that the opposing professional practice is one which has some currency. Apart from s 5O the Court would determine the standard of care, guided by the evidence of acceptable professional practice. It would not be obliged to hold against the plaintiff if the defendant's conduct accorded with professional practice regarded as acceptable by some although not by others. Section 5O has the effect that, if the defendant's conduct accorded with professional practice regarded as acceptable by some (more fully, if he "acted in a manner that ... was widely accepted ... by peer professional opinion as competent professional practice"), then subject to rationality that professional practice sets the standard of care.

60In this sense, s 5O provides a defence. The plaintiff will usually call his expert evidence to the effect that the defendant's conduct fell short of acceptable professional practice, and will invite the court to determine the standard of care in accordance with that evidence. He will not be concerned to identify and negate a different professional practice favourable to the defendant, and s 5O does not require that he do so. The defendant has the interest in calling expert evidence to establish that he acted according to professional practice widely accepted by peer professional opinion, which if accepted will (subject to rationality) mean that he escapes liability."

147 In this case there was evidence from Dr Emerson, an engineer, and from Dr Cooke, an architect, to the effect that steps with a surface which gave rise to a high risk of slipping when wet, were not suitable for this location in this venue. As Dr Cooke found (see [28] hereof) "the stair surfaces are inherently inappropriate for the use in wet conditions and, as found, does not have the factor of safety under dry conditions suggested by Table 3". Similarly, Dr Cooke in his oral evidence gave the response at Black AB 247Q-T that "... the testing that I did shows that it doesn't comply with the recommendation in the 1999 Handbook so whether it's a dry area or not, it is still - whether it's wet or dry, the surface is inherently unsatisfactory by reference to Table 1 of the Handbook".

148 It was on the basis of that evidence and by the application of the law of negligence, as set out in ss 5B and 5D CLA that his Honour determined that the conduct of Ms Williams and therefore PKD was negligent in recommending and designing stairs of that type. No evidence was called on behalf of PKD to indicate that there was a body of professional opinion amongst architects to contrary effect. Specifically, Mr Paul Kelly, who was in charge of the team of which Ms Williams was a member, did not give evidence to that effect or at all.

149 In those circumstances, the defence under s 5O has not been made out.

Apportionment of liability between occupiers and PKD

150 No oral submissions were addressed to this question but both the occupiers and PKD dealt with this matter in their written submissions.

151 The occupiers submitted that PKD should have advised them that the glass blocks had a propensity to become dangerously slippery when wet and that because the condition of the stairs had not changed between the completion of the refurbishment and the occurrence of the accident, PKD should accept a greater share of responsibility for the accident.

152 PKD submitted that the occupiers had been in possession of the premises and had been managing them for over 12 months when the accident occurred and would have been fully familiar with how the hotel was operating and likely hazards arising from the use of the stairs. In those circumstances, it submitted that the occupiers should accept a greater share of responsibility.

153 The exercise engaged in by his Honour in apportioning liability between two tortfeasors was essentially a discretionary one, although that discretion had to be exercised in a principled way. What a judge had to balance was the causal potency of the actions of the respective tortfeasors, i.e. which conduct made the greater contribution to the damage and relative culpability (Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 494). In Podrebersek the Court said:

"A finding on a question of apportionment is a finding upon a "question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds": British Fame (Owners) v Macgregor (Owners) (1943) AC 197, at p 201. Such a finding, if made by a judge, is not lightly reviewed."

154 No error of the necessary kind has been identified in his Honour's approach to this question and accordingly his Honour's apportionment should not be disturbed.

Contributory negligence

155 This issue was only pursued by the occupiers. They eschewed as they were obliged to, any reliance upon intoxication. The sole basis of their challenge to his Honour's finding was that had Ms Palmer been keeping a proper lookout as she descended the stairs, she would have observed the presence of the liquid since it was A4 in size. They submitted that her failure to do so was indicative of not only a failure to keep a proper lookout, but that generally she was not exercising reasonable care for her own safety.

156 The test for contributory negligence is an objective one (Joslyn v Berryman & Anor [2003] HCA 34; 214 CLR 552). The question the court has to ask itself is whether a reasonable person in the position of Ms Palmer should have detected the liquid on the stairs before treading in it on this night. In making that assessment, the Court has to take into account the evidence of Dr Cooke as to the difficulty such a person would have in detecting liquid on the stairs (see [40] - [41] hereof). Dr Cooke concluded:

"My opinion is that the presence of liquids on the glass surface would have been practically impossible to detect at night ... My opinion is that the presence of liquids on the glass block surfaces is difficult to distinguish. This applies in daylight and at night."

157 It is also necessary to consider the evidence of Ms Palmer at Black AB 74C-D. There she said:

"Just as my foot was about to touch the step I looked at the step and noticed liquid and reached out for the handrail but never made it".

158 I read that evidence as indicating that Ms Palmer was watching where she was placing her feet, otherwise she would not have seen the liquid. The reason she did not observe it until just before she trod in it is adequately explained by the evidence of Dr Cooke.

159 It follows that there was ample evidence to support his Honour's finding that Ms Palmer was exercising reasonable care for her own safety and that she was not guilty of contributory negligence.

Conclusion

160 The conclusion I have reached is that the appeal and the cross-appeal should be dismissed, as should Ms Palmer's Notice of Contention.

161 The orders which I would make are:

(1)The appeal by Indigo Mist Pty Ltd and Robert Geammal is dismissed.

(2)The cross-appeal by Paul Kelly Design Pty Ltd is dismissed.

(3)Indigo Mist Pty Ltd, Robert Geammal and Paul Kelly Design Pty Ltd are to pay Ms Palmer's costs of this appeal.

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Decision last updated: 09 August 2012