The New South Wales Court of Appeal has found in favour of an occupier and an employer after an employee slipped on a wet step.
The worker suffered injuries in the course of his employment when he slipped and fell when stepping up into a demountable hut at the container terminal at Port Botany, NSW. Patrick Stevedores was the occupier of the container terminal and the worker’s employer. FBIS International (FBIS) provided security services to Patrick Stevedores.
The worker submitted that four things contributed to him falling in wet conditions. Firstly, the absence of an awning over the doorway; secondly, the height of the ‘step up’ which he estimated to be 45-50 centimetres (there was a live issue as to the height of the ‘step up’ at the hearing); thirdly, the absence of a grab-rail to assist with his entry into the hut; and finally, the flat metallic covering of the door sill meant that he had to step up to a smooth wet surface. Of significance was the fact that, days after the worker’s accident, an awning and step were added to the hut by Patrick Stevedores.
The trial judge decided that both Patrick Stevedores and FBIS had breached their respective duties of care to the worker and apportioned contribution 40% to FBIS and 60% to Patrick Stevedores. The worker’s own negligence was not found to have contributed to his fall.
On appeal, the Court of Appeal decided that the worker had failed to establish negligence by either Patrick Stevedores or FBIS. The Court of Appeal found that:
- The worker had failed to show that the additional risk posed by the step from the ground up into the demountable hut would have prompted a person in the position of Patrick Stevedores to take some precaution. The Court of Appeal was critical of the plaintiff’s failure to adduce evidence proving the height of the ‘step up’ or its characteristics.
- There was no finding that the ‘step up’ was ‘significantly’ higher than normal. The finding was only that it was ‘higher than normal’.
- Even if FBIS was held to have conducted an inspection of the demountable hut, the evidence did not sustain a finding that the inspection would have disclosed a risk which would have given rise to an obligation on FBIS to take any precautionary measures.
Patrick Stevedores Operations (No 2) v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy
Just because a ‘step up’ is higher than normal does not automatically give rise to a finding of negligence. The onus is on an injured plaintiff to prove that a reasonable person in the position of a defendant would identify the risk and take measures to address it.