Occupiers Liability - Stairs - Travelator - Escalator - Duty of Care - Standard of Care - Damages - PIPA (Qld)



Occupiers' Liability

Stairs, Travelators, Escalators, Moving Walkways

PIPA (Qld), Wrongs Act (Vic)


[A21] Elevator/Travellator/Escalators: 

[A21.1] Entrapment, malfunction, negligence, DOC to repair and maintain lift: Massouras v Kone Elevators Ptd Ltd [2020] ACTSC 66; Winford v Permanent Nominees (Aust) Ltd ACN: 000 154 441 & Ors [2002] ACTSC 21.

[A21.1.1] Tripping on exiting lift - failed to level accurately at the floor: Schneider v AMP Capital Investors Ltd [2016] NSWSC 333; Winford v Permanent Nominees (Aust) Ltd ACN: 000 154 441 & Ors [2002] ACTSC 21; Wilson v Emanuel Group of Companies & Otis Elevator Company Pty Ltd (SASC, Unreported, No 2701 of 1998, Legoe J) BC9100397; Emanuel Group of Companies v Wilson (SASC, Unreported, No 2701 oof 1988, King CJ, Bollen and Prior JJ) BC9200482.

[A21.1.1.1] Lift door closing on person: City Elevator Services Pty Limited v Burrows [2004] NSWCA 26.

[A21.1.1.2] Lift collapsed, lift found to be unsafe for carriage of people: Hillcoat v Keymon Pty Ltd & Anor [2002] QCA 527.

[A21.1.1.3] Lift ceiling falling: Valeondis v Permanent Trustee Aust Ltd [22008] SADC 143.

[A21.1.1.4] Lift allegedly moan and jolt and then jerk; fall - claim not made out: Dimitrelos v 14 Martin Place Pty Limited and 3 Ors [2007] NSWCA 85.

[A21.1.1.5] Slip on travellator while walking down when wet - foreseeability of risk - breach - obvious risk rejected - contributory negligence rejected turns on facts: Akgun v Stockland Property Management Pty Ltd and Anor [2024] NSWDC 253 (Newlinds SC DCJ): " ... [45]  By the conclusion of submissions, I think it is fair to say that it was common ground that the relevant risk of harm for the purpose of the CLA was the risk that people, when walking upon the travelators when wet, would slip and fall and suffer injury. ... [49]  I do not think either point is right for the following reasons. Firstly, the relevant risk which I consider was foreseeable was in my opinion not insignificant. It is not to the point that of the ten or eleven million people who come to The Mall each year, only about five reported to the centre an incident of slipping on liquid on a travelator. That might be said to be an insignificant risk in the context of five people out of eleven million, but to each individual who slips the risk is not insignificant in the sense that, once they fall, there is a very high degree of at least possibility that they will be injured. [50]  It is only the reported instances of slipping and falling which occurred that can be counted, so these figures obviously understate things significantly. As reported, there were still five slips and falls in a period of slightly more than a year. That is a slip and fall on a travelator when wet approximately every two months. If there is only a 50% reporting rate, then that would equate to a slip and fall on a wet travelator at a rate of about once a month. By reference to s 5B(2)(a), it seems to me that there is not just a probability that harm would occur if the alleged care was not taken, it actually becomes a certainty. As far as s 5B(2)(b) is concerned, there is a reasonable likelihood of serious injury being caused and the burden of taking the precautions was a cost to a very large organisation running an enormous shopping mall of at most $250,000. The social utility of shopping malls (s 5B(2)(d)) would not in any way be impacted by the suggested precautions, as the shopping mall could continue to exist and function and, on the Plaintiff’s case, would be a safer place for everyone and the convenience, if it be a social utility, of pedestrians being mechanically assisted when walking can be retained. [51]  The question of liability really boils down to a consideration of s 5B(1)(c) of the CLA. [52]  As discussed during final submissions, this does involve me effectively second-guessing the decision that was taken by Stockland in 2022 when, having identified the very risk which is the subject of this case, and having identified a method of reducing that risk (the application of Chemrex), a decision was made to treat some, but not all, of the travelators. The travelator upon which the Plaintiff slipped and fell was one of the travelators left untreated. Stockland’s submission is that if that precaution was reasonable in 2022, then there would be no basis to conclude that anything more needed to be done prior to the accident. I do not accept this submission. [53]  Having considered the evidence of Dr Cooke and having listened to the evidence of Mr Farhat as to at least his thought process when making the decision to treat only some of the travelators, I am not satisfied that the precautions taken to reduce the identified risk were sufficient. To put it in the words of the statute, in my judgement in all the circumstances a reasonable person in Stockland’s position would have treated, if not all of the travelators, at least those which sloped down, which would have included the one upon which the Plaintiff slipped. It should have done that prior to the Plaintiff’s fall. [54]  Accordingly, in my judgement the identified duty of care owed by Stockland to the Plaintiff was breached. ... [57]  A useful summary regarding the approach to causation is contained in Gomez v Woolworths Group Pty Ltd [2024] NSWCA 121 at [65] –[69]. [58]  In my judgement, the probabilities are satisfied in this case. In the circumstances, Stockland’s failure to treat the travelators with Chemrex was a necessary condition for the occurrence of harm and that s 5D(1)(a) is made out. It was the breach of duty that probably caused or significantly contributed to the Plaintiff’s slip and fall. Dr Cooke said that in the absence of water being on the travelator, the travelator would have been safe from a slip perspective, but when wet it was dangerously slippery. There is no evidence that the Plaintiff had a propensity to fall or misstep. Further, the Plaintiff and his father gave evidence that he had used the travelator before without incident. The CCTV footage shows the Plaintiff walking normally and without hurrying when his feet suddenly go out from under him. I think it was the presence of liquid on the travelator that probably caused the Plaintiff to slip and fall. I have found it was a breach of duty to permit the surface of the travelator to be in the state it was when the Plaintiff suffered his injury, and that state was a necessary condition for the occurrence of harm within the meaning of s 5D(1)(a). [59]  Stockland pleads that the presence of water on the travelators was an obvious risk for the purpose of Part 1A Division Four of the CLA. [60]  A significant hurdle for Stockland in relation to this submission is that it is common ground and obvious that any clear liquid on the surface of the travelator would simply not be observable by a person taking reasonable care for their own safety. [61]  In other words, whilst it may be accepted it is an obvious risk that wet floors may be slippery, the particular risk in this case, being that travelators whilst safe when dry become dangerously slippery when wet, is to my mind not one that would have been obvious at all. Certainly, the requirement in s 5F(1), that such a risk has to be obvious to a reasonable person in the position of the Plaintiff is not made out. Moreover, the risk cannot have been that obvious to Stockland itself, who was familiar with the history of slips and falls, because there was no warning sign to the effect that travelators could become extremely slippery in circumstances where it might be very difficult to predict when and where that might happen. [62]  Stockland also pleads that the Plaintiff was guilty of contributory negligence. In essence the submission is that the Plaintiff ought to have been taken reasonable care for his own safety to prevent damage from the risk I have identified and that he breached that duty because he did not make use of the moving handrails when walking down the travelator. [63]  I do not think that failing to hold onto the moving handles is conduct which could satisfy the requirements of s 5R of the CLA. [64]  As was explained in Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139 : The question whether a person has been guilty of contributory negligence is determined objectively, the question being whether the plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person would take… [65]  As a necessary element for any finding of contributory negligence, I must first find that the relevant risk of harm was foreseeable by the Plaintiff, that such risk was not insignificant, and in circumstances a reasonable person in the Plaintiff’s position would have taken precautions against the risk (s 5B(1)). The relevant risk of harm in this case is the risk of slipping on a wet travelator and falling causing injury. This is not a matter that was foreseeable by the Plaintiff in the circumstances as the Plaintiff was not on notice of that fact ie, that wet travelators are dangerously slippery, nor was he on notice that there was any water on the travelator. In all the circumstances it is not a risk that the Plaintiff knew or ought to have known of. Moreover, s 5B(1)(c) also requires a finding that a reasonable person in the Plaintiff’s position would have taken precautions against the risk of harm. Embedded in that proposition is an assumption that the Plaintiff, and the notional reasonable person, must have been aware of the very risk before he could be expected to take steps to avoid it. [66]  I have viewed 15 minutes worth of CCTV footage of many people using the relevant travelator before and after the Plaintiff’s fall. While some of them hold the handrail while standing stationary on the travelator, the vast majority of them do not do so and instead walk on the travelator, often carrying multiple shopping bags or pushing shopping trolleys or prams. Whilst the question for me is objective, I do not think it is irrelevant to observe that many of those people ought to be taken to have been ordinary reasonable people and hardly any of them are taking the precaution suggested by Stockland. ... [130]  As I have explained, whilst I am satisfied that there was some liquid on the travelator at the time of the fall, and that the cause of the Plaintiff’s injuries was that he slipped on that liquid, I have made and cannot make any finding as to how the liquid got there, for how long it had been there, and whether any actions by Assetlink as cleaner could have possibly identified its presence and cleaned it up prior to the Plaintiff’s fall. [131]  For that reason alone, Stockland’s cross-claim against Assetlink fails."

[A21.1.2] DOC to install and maintain escalator

[A21.1.2.1] Res ipsa loquitor rejected - elevators: Dimitrelos v 14 Martin Place Pty Limited and 3 Ors [2007] NSWCA 85; BCS Strata Management Pty Ltd T/as Body Corporate Services v Robinson and Anor [2004] NSWCA 80, [11].

[A21.1.3] Anti-slip treatment to travellators - reasonable precautions: " [39]  In 2022, after the risk assessment, Stockland decided, and Mr Farhat gave evidence before me that he was part of that decision-making process, to treat some, but not all, of the travelators with Chemrex or some related product. This took place in 2022, two years after the accident, however the Chemrex material was only applied to those travelators going down from level five (undoubtedly because it was identified that it was likely that water would come into the centre from the uncovered car parks on level five) and the travelator going down from level four, the food court, to level three, no doubt because it was identified that there was a risk of water or other liquids getting on the surface of the travelator by people spilling drinks and the like, having purchased them from the food court. [40]  The cost of application of the Chemrex-like material to each travelator was approximately $9,500. The evidence is that there was a total of twenty-six travelators in the Mall as of 2022. The total cost of the treatment of four of them in 2003 was approximately $50,000. If all the travelators sloping downward, which would have included the one the Plaintiff fell on, had been treated in the same way, that cost would have been about $250,000.... [52]  As discussed during final submissions, this does involve me effectively second-guessing the decision that was taken by Stockland in 2022 when, having identified the very risk which is the subject of this case, and having identified a method of reducing that risk (the application of Chemrex), a decision was made to treat some, but not all, of the travelators. The travelator upon which the Plaintiff slipped and fell was one of the travelators left untreated. Stockland’s submission is that if that precaution was reasonable in 2022, then there would be no basis to conclude that anything more needed to be done prior to the accident. I do not accept this submission. [53]  Having considered the evidence of Dr Cooke and having listened to the evidence of Mr Farhat as to at least his thought process when making the decision to treat only some of the travelators, I am not satisfied that the precautions taken to reduce the identified risk were sufficient. To put it in the words of the statute, in my judgement in all the circumstances a reasonable person in Stockland’s position would have treated, if not all of the travelators, at least those which sloped down, which would have included the one upon which the Plaintiff slipped. It should have done that prior to the Plaintiff’s fall. [54]  Accordingly, in my judgement the identified duty of care owed by Stockland to the Plaintiff was breached.": Akgun v Stockland Property Management Pty Ltd and Anor [2024] NSWDC 253.

[A21.1.4] Body Corporates, duty to keep lift in safe and proper working condition, servicing of lifts: Puflett v Proprietors of Strata Plan No 121 (1987) 17 NSWLR 372; BCS Strata Management Pty Ltd T/as Body Corporate Services v Robinson and Anor [2004] NSWCA 80.

[A21.1.5] Children

[A21.1.6] DOC system of inspection and maintenance, failure to ensure that the escalator proceeded at a speed that made it safe for a pedestrian to walk on: South Sydney Junior Rugby Leagues Club Ltd v Gioia & Ors [2000] NSWCA 249.

[A21.2] WHS: Franklin v Kone Elevators Pty Ltd [2011] VSC 108.

[A21.3] Australian Standards AS 1735, Lifts, Escalators, and Moving Walks: 

> Massouras v Kone Elevators Ptd Ltd; Pattinson v Kone Elevators Ptd Ltd; Shipton v Kone Elevators Ptd Ltd; Soesman v Kone Elevators Ptd Ltd [2020] ACTSC 66. 

> Schneider v AMP Capital Investors Ltd; Schneider v Kent Street Pty Ltd [2017] NSWCA 40.

> VWA v Probuild & Ors [2016] VSC 102: "[8]  The VWA pleads that the incident causing Mr Griffin’s injury was caused by the acts, default and/or negligence of Probuild, Tubeway and/or Higgins. The particulars of negligence of the defendants are pleaded at paragraph 10 of the Further Amended Statement of Claim and are as follows: ... (bb) failing to comply with Australian Standards and/or WorkSafe Victoria guidelines to ensure the swing stages are safe for use by the worker including but not limited to: ... AS 1735.2–2001 Australian Standard — Lifts, escalators and moving walks, and in particular Section 12; (iii)AS 1735.9–1994 Australian Standard — Lifts, escalators and moving walks — Part 9: Special Purpose Industrial Lifts, and in particular Section 12; ... ".

> Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482: "[38] The travelator is a modular structure consisting of sections known as pallets. The accident occurred after the plaintiff stepped onto the travelator, which was descending. Unlike an escalator, a travelator does not have steps, but is effectively a moving walkway. The travelator was constructed with a gradient of 12 degrees to the horizontal. This was the upper limit of the permitted gradient specified in a 1996 Interim Australian Standard: Lifts, escalators and moving walks — Moving walks(AS 1735.6(Int)–1996) and recommended in a 2008 report prepared by the Monash University Accident Research Centre commissioned by the Australian Building Codes Board."

> Dimitrelos v 14 Martin Place Pty Limited and 3 Ors [2007] NSWCA 85.

> Travellator speed: South Sydney Junior Rugby Leagues Club Ltd v Gioia & Ors [2000] NSWCA 249, [6]: "[6]  The obstacle to escaping his Honour's finding is the report of an expert, Mr Burfitt, who examined the escalator in detail, although two or three years later. At that time, Mr Burfitt concluded that the speed was within the limits set out in Australian Standard AS 1735.5 1986 escalators. But, bearing in mind the time which elapsed between the accident and Mr Burfitt's inspection, particularly as the Court was left in total ignorance as to what happened on the occasional inspection which might have taken place in this interval, I do not think any safe reliance can be placed on Mr Burfitt's conclusion."

> City Elevator Services Pty Limited v Burrows [2004] NSWCA 26: "[24]  The report does not purport to be one made from observation at the time of the accident but some four years later. The author of the report had, it appears, inspected the 1997 and 1998 records and, in particular, “The Report of Findings and the Record of Service Calls”; see para 6 and App A of the report. [25]  Dr Shafaghi described visiting the site of the accident and inspecting the function of the elevator against a standard being AS 1735.2–1997. This was for “Passengers and Goods Lift” – “Electric Australian Standard”, extracts from which are attached to his report as App B. He described his inspection as “purposely limited to the design of the doors and their closing functions, overlaps, passenger protection devices and dimensions”. [26]  The appellant rightly observes that there was no evidence showing that the lift was operating outside the Australian Standard. That is a matter of some significance when it comes to considering the basis for contending that the adjustments made by Mr Hoogvliet were actually necessary to render the lift safe, as distinct from being done out of an abundance of caution following an accident as Mr Hoogvliet in his evidence asserted. It must be fundamental to establishing negligence in circumstances of the present kind to demonstrate not merely that the accident would not have occurred had the adjustments been made, but also that (a)the appellant’s conduct by act or omission in neglecting to make such adjustments would have led a reasonable man in the appellant’s position to have foreseen that such conduct involved a risk of injury to the respondent or to a class of persons including the respondent, (b)applying the Shirt calculus, making the adjustments must be what a reasonable person would do by way of response to the risk; that is to say, judging that risk according to its magnitude and probability “along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities the defendant may have”.".

> AS 1735.1.1:2022: "3.76.12 Inspection operation maintenance operation ... facility to operate a lift for inspection and maintenance purposes at a speed of not more than 1m/s .. Note 1 to entry: Inspection is done from on the car roof, within the car or within the machine room. .. 3.88 rated speed contract speed ... <electrohydraulic lifts> speed at which rated load is designed to be carried in the upward direction. ... <passenger, goods and service electric lifts> mean of the speeds in the upward and downward directions when carrying rated load, acceleration and retardation being disregarded. <escalator and moving walk> design speed for unloaded running conditions."

> AS 1735.1 General Requirements: <https://pdfcoffee.com/qdownload/as-1735-1-2003-lifts-escalators-and-moving-walks-general-requirements-pdf-free.html> archived at <https://perma.cc/7LF5-GK9X>. 

> AS 1735.12 Facilities for Persons with Disabilities: <https://pdfcoffee.com/as-173512-1999-lifts-escalators-doe-disabled-pdf-free.html>, archived at <https://perma.cc/PEY9-5PQD>.  

> AS 1735.5: Lifts, escalators and moving walks: 

= AS 1735.5.1:2019 Lifts, escalators and moving walks, Part 5.1: Safety of escalators and moving walks - Construction and installation (EN 115-1:2017, MOD): " .... 5.2.2 Angle of Inclination  The angle of inclination of the escalator shall not exceed 30 degrees, but for risees not exceedingg 6m and a nominal speed not exceeding 0,50m/s the angle of inclination is permitted to be increased up to 35 degrees (see alpha in Figure 5). The angle of inclination of moving walks shall not exceed 12 degrees. ... 5.4.1.2.2 The nominal speed of an unloaded escalator shall not exceed -- 0.75 m/s for an escalator with an angle of inclination of up to 30 degrees; -- 0,50m/s for an escalator with an angle of inclination of more than 30 degrees up to 35 degrees. 5.4.1.2.3 The nominal speed of moving walks shall not be higher than 0,75 m/s. Deviating from the above a nominal speed up to 0,90 ms is permitted provided the width of the pallets or the belt does not exceed 1,10, and at the landings, the pallets or the belt move horizontally for a length of at least 1,60m before entering the combs. The before mentioned requirements do not apply to moving walks with acceleration paths or moving walk systems with direct transition to moving walks travelling at different speeds. ... 5.7 Landings ... 5.7.3 Combs ... [further technical dimensions and requirements]"

= AS 1735.5.2:2019 Lifts, escalators and moving walks, Part 5.2: Safety of escalators and moving walks - Rules for the improvement of safety of existing escalators and moving walks (EN 115-2:2017, MOD): " .... 5.4.2.6 The stopping distances for unloaded and downward moving loaded escalators shall be indicated in Table 2: Nominal speed v / Stopping distances between: [0.50m/s / 0.20m and 1.00m]; [0.65m/s / 0.30m and 1.30m]; [0.75m/s / 0.40m and 1.50m]... The stopping distances for unloaded and horizontally or downward moving loaded moving walks shall be indicated in Table 3: [0.50m/s / 0.20m and 1.00m]; [0.65m/s / 0.30m and 1.30m]; [0.75m/s / 0.40m and 1.50m]; [0.90m/s / 0.55m and 1.70m]."

= AS 1735.5.3:2019 Lifts, escalators and moving walks, Part 5.3: Safety of escalators and moving walks - Correlation between AS 1735.5:2015 and AS 1735.5.1:2019 (CEN/TR 115-3:2017, MOD).

= AS 1735.5.4:2019 Lifts, escalators and moving walks, Part 5.4: Safety of escalators and moving walks - Interpretations related to AS 1735.5 series of standards (CEN/TS 115-4:2015, MOD).

[A21AA] Carparks - Street Parking - Design

[A21A] Stairs: 

[A21A.1] Causation - wetness of shoe from spill or elsewhere - whether wetness of shoe would have caused slip on particular surface: Jackson v McDonald’s Australia Ltd [2014] NSWCA 162: "[119]  The appellant was required to prove on the balance of probabilities that there was water on his shoes and that this caused him to slip. He did not say that he knew that his soles were wet; he merely surmised that they were. Even if it be assumed that there was water on his soles when he slipped on the particular surface, it does not follow, as a matter of “common experience”, that it is more probable than not that he slipped by reason of the wetness of his shoes. The appellant submitted that it was more probable that, if his shoes were wet, he slipped because of the water on them rather than for any other reason. But there is nothing in common experience that tells us that someone with wet shoes who traverses a floor having the particular characteristics of the McDonald’s floor is more likely to slip because of water on their shoes than for any other reason, such as inattention (because engaged in conversation or for any other reason), excessive speed or failing to take advantage of a handrail. People wearing dry shoes walk on wet stairs every day and do not slip. People wearing wet shoes walk on dry stairs every day and do not slip. People wearing dry shoes slip on dry stairs every day. And, as Heydon JA observed in Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [32], stairs are, in any event, “inherently, but obviously, dangerous”. [120]  The appellant, having walked through a wet area of the floor, stepped back over the pile of rubbish and then traversed either about one metre or about two to three metres of dry surface which included the white bubble tiled area at the top of the stairs. He lost his footing either at the top of the stairs (where the white bubble tiles were installed) or on the second or third stair of the nine stairs equipped with handrails which had slip preventing strips along their outer edges. The McDonald’s employees who gave evidence referred to non-slip qualities of the floor tiles themselves, the white bubble tiles and the strips on the edges of the stairs. Mr Shalen, who was involved in the renovation of the premises some three years earlier, gave evidence that the particular flooring materials had been chosen because of their slip-resistant qualities. [121]  It was for the appellant to prove that water on his shoes, if present, would have caused, on the particular floor surfaces, slipping that would not have occurred if no water had been present. The task of proof was facilitated, if at all, only by s 144 of the Evidence Act 1995 (NSW) which, as the High Court recognised in Gattellaro v Westpac Banking Corporation [2004] HCA 6 ; 78 ALJR 394 at [17], dispenses with the need for proof only as to matters which are “common knowledge”. The need to prove the effects of wetness on one’s soles when traversing flooring materials of the particular kinds would therefore be avoided if those effects were “common knowledge”. It cannot be said that “common knowledge” provides an answer to the question whether a person wearing shoes of the particular kind the appellant was wearing is more likely to slip on flooring materials of the particular kinds within the McDonald’s premises when the soles of the shoes are wet than when they are dry. [122]  The appellant did not call any evidence from persons qualified to express an opinion on the issue of slip resistance of the particular surfaces and the effect that wetness on soles might be expected to have had: compare the plaintiffs in, for example, Cherry v Jaymardo Pty Ltd (above), Glad Retail Cleaning Pty Ltd v Alvarenga (above) and Riley v The Owners - Strata Plan 73817 [2012] NSWCA 410. Nor did the appellant call any expert evidence as to the likely state of a sole of the kind he was wearing after it had traversed a wet area and then a dry area of between one and three metres consisting of the particular surface in fact installed at the top of the stairs. He thus chose to leave an evidentiary vacuum on the issue of, first, the extent to which soles of the particular kind, having encountered wetness on the floor surface, were likely still to be wet at the time of his fall and, second, the propensity of soles of the particular kind, if wet, to cause slipping to a greater degree than if dry when traversing surfaces of the particular kinds. ... [125]  It follows from what I have said about lack of proof of causation that neither McDonald’s nor Holistic incurred liability for any breach of duty of care on its part. ... [184]  The relevant risk was that explained by Barrett JA at [96], to which I would add the risk that the soles of the shoes of someone crossing the mopped floor might retain not just moisture but also (or instead) some residue from the non-slip detergent. [185]  I agree with Barrett JA that mopping the floor in sections was a simple precaution that would have prevented any such risk. It was not suggested that this was an onerous precaution to take. It was in fact the direction given by McDonald’s to its own staff as to the protocol in relation to mopping of floors. [186]  I am not convinced that McDonald’s and Holistic were entitled to assume that a person in the appellant’s position would appreciate the possibility that if he or she walked across the mopped floor there could be some moisture or residue of non-slip detergent on the soles of his or her shoes and would take the opportunity to wipe that off the shoes before reaching the top of the stairs, so as to obviate the need for any further precaution to be taken by them."

> See also, '[A13.1] Occupiers' Duty of Care' and '[A13.14] Causation' in Occupiers' Liability. 

[A21A.2] Contributory Negligence?: Stavrakijev v Ready Workforce & Anor [2018] VSC 690: "How fast was Mr Stavrakijev walking as he approached the steam chamber stairs? [55]  The defendants submitted that Mr Stavrakijev was moving too quickly, and that this was the reason for the fall. [56]  It was put to Mr Stavrakijev that he was ‘moving beyond a normal walking pace’, and that was the reason he was unable to control his movements when he fell, and he said that was not true, and that he was going down the stairs like he did every day. Mr Stavrakijev was cross-examined on a history contained in Mr Waddell’s report, ‘As he slowed his pace at the top of the stairs his foot slipped forwards, and he fell down the stairs’, and it was put to him this indicated he was moving at a fast pace and he said, ‘Like I always go there. It was the same’. Mr Stavrakijev said he frequently had to rush to complete his work, he did not run, but you had to keep up, and everyone works at that pace. [57]  Before preparing an addendum report on 8 February 2018, Mr Waddell telephoned Mr Stavrakijev to ask him how quickly he was moving at the time of the fall, and said he could not remember. Mr Stavrakijev explained that a gentleman called him on a Sunday, he was not sure who he was, that he was a bit reluctant to give him information, but that he told him something because he did not want to hang up on him. I accept Mr Stavrakijev’s explanation for the manner of his response to Mr Waddell. [58]  Mr Cavka said when he spoke to Mr Keogh the day after the fall, he told him Mr Stavrakijev was going too fast and that was a cause of his fall. Mr Cavka had his back to Mr Stavrakijev, did not see him before he fell and only saw a reflection in the control panel of Mr Stavrakijev falling. He did not give evidence of any observation he made that indicates Mr Stavrakijev was going too fast and this was a cause of his fall. Mr Keogh said, had Mr Cavka told him something about the cause of the fall, he would have recorded it in the worksheet. There is nothing in the worksheet to indicate that Mr Stavrakijev was going too fast. I do not accept the evidence given by Mr Cavka. [59]  I conclude that immediately before he fell, Mr Stavrakijev was walking quickly from the steam chamber apron to the steam chamber stairs, and that this was the usual pace at which he worked. ... Contributory negligence [124]  The defendants allege contributory negligence, first, because Mr Stavrakijev knew there was water and debris on the platform and was rushing; second, Mr Stavrakijev failed to hold the handrail; and third, he failed to clean the platform or to complain about the state of the steam chamber stairs. [125]  I conclude that immediately before he fell Mr Stavrakijev was walking quickly. The pace at which Mr Stavrakijev was moving was a product of Holcim’s system of work, which I have concluded was unsafe. I reject the allegation that Mr Stavrakijev was guilty of contributory negligence because he was rushing when he fell. [126]  Mr Stavrakijev was aware that there was water and debris on the landing, and that he should use the handrail when descending the steam chamber stairs. Failure to use an accessible handrail would, in those circumstances, lead to a finding of contributory negligence. However, I have been unable to reach a conclusion as to whether Mr Stavrakijev was holding the handrail when he slipped and fell, or whether he had reached a position where he was readily able to take hold of the handrail. Accordingly this allegation fails."

[A21A.3] Obvious Risk - Stairs - Wet: 

[A21A.4] Obvious Risk - Stairs - Tripping while ascending: 


[%19] Pre-action Discovery / Disclosure: 

[%19.1] UCPR: Matrix Film Investment One Pty Ltd v Alameda Films LLC [2006] FCA 591, [19] (Tamberlin J):"The purpose of preliminary discovery is not to produce material that will strengthen or enhance a decision to commence proceedings, but rather to provide what is reasonably necessary to enable the decision to be made"; see also, Gary Doherty, 'Preliminary Discovery of Documents from a Prospective Defendant' (March 2015) <https://13wentworth.com.au/wp-content/uploads/2019/01/Preliminary-Discovery-from-a-Prospective-Defendant-G-Doherty-2015.pdf>. 

[%19.2] s 27(1)(b) PIPA (Qld): section 27(1)(b) of the Personal Injuries Proceedings Act 2002, that section, relevantly, provides, a respondent must give a claimant (b) if asked by the claimant (i) information that is in the respondent's possession about the circumstances of, or the reasons for, the incident."

> see also, David Cormack, 'PIPA s.27(1)(b) and disclosure' (2 March 2011) <https://barristerdirect.com.au/pipa-s-271b-and-disclosure/>, archived at <https://archive.is/bVOJq>.  

> see also, David Cormack, 's.27(1)(b) PIPA – provision of information – ‘slip & fall’ – circumstances of the incident' (5 August 2010) <https://barristerdirect.com.au/s-271b-pipa-provision-of-information-slip-fall-circumstances-of-the-incident/>, archived at <https://archive.md/aIUr0>.

> See also,  Wright v KB Nut Holdings Pty Ltd [2010] QDC 91, [37]-[38]. 

> see also, David Cormack, 'PIPA disclosure and de facto interrogatories' (20 April 2010) <https://barristerdirect.com.au/pipa-disclosure-and-de-facto-interrogatories/>, archived at <https://archive.is/YjGEd>.  

[%19.3] PIPA: s 27(1)(b); have regard to liability context of 'incident' (as alleged in Notice of Claim)? [Limited exception to Wright and Fletcher above?] (claim of negligence arising from alleged constructive knowledge, ie, "ought" to have known/done something - request for facts (ie, any complaints [which raises inference of actual or constructive knowledge]) that might be relevant information to explain the alleged cause of the injury, that is the failure to act) {ie, facts that have explanative power for why an incident occurred, but not explanation as to why DOC was breached}: "[12] When construing s 27(1)(b)(i) it is necessary to take into account the influence of the context in which it appears and its role in giving effect to the statutory purpose of putting the parties in a position where they have enough information to assess liability and quantum in relation to a claim. Having regard to the statutory scheme, the expression in the definition of “incident”, incorporated into s 27(1)(b)(i), “alleged to have caused … the personal injury”, refers to an allegation made by the claimant in the claimant’s notice of claim given under division 1.[13] The appellant’s notice of claim describes the “incident” as being that the claimant was subjected to sexual abuse perpetrated by carers, including M, whilst the appellant was a resident at the Home. The appellant alleges that the appellant was sexually abused regularly, including in the presence of other residents and other staff, and that caused the appellant to sustain a psychiatric injury. The term “incident” in s 27(1)(b)(i) therefore comprehends each alleged act of sexual abuse of the appellant by M (and others). ... [26] The statutory context and purpose described in [6] of these reasons must be taken into account in construing the expressions “the circumstances of” and “the reasons for”.  With that in mind, the required information about the reasons for and the circumstances of the incident must comprehend information relating to the question whether the respondent may or may not be found liable and the appropriate quantum of the claimant’s claim.  In considering those matters, the statutory scheme requires reference to the claimant’s notice of claim. [27] Section 18 of the appellant’s notice of claim form is headed “Detail the reasons why the injured person believes that person caused the incident”.  (The expression “that person” refers to the respondent).  The first paragraph of the form under that heading states that “the reasons must particularly identify the step, process or act/s of the person that caused the incident and the link to the named respondent …”.  After a statement that the appellant was under the “care and control of the [r]espondent”, this section of the claim describes two different bases of claim. ... [113] The second category refers to an “act, omission or circumstance”. Each of those is qualified in the sense that it each refers to what is alleged to have caused all or part of the personal injury. Given that s 27 applies before any proceedings are commenced in court, each refers to what is alleged in the notice of claim as being the cause of the personal injuries. [114] Therefore, the information required to be given under s 27(1)(b)(i) falls into two categories. One is information about “the circumstances of … the act, omission or circumstance, alleged to have caused all or part of the personal injury”. The second is information about “the reasons for … the act, omission or circumstance, alleged to have caused all or part of the personal injury”. As the legislature chose to use both formulations it may be accepted that there is a difference between what is intended by the “circumstances of”, and the “reasons for”, the relevant act, omission or circumstance. [116]There might be thought to be some circularity in the expanded phrase “the circumstances of … the act, omission or circumstance, alleged to have caused all or part of the personal injury”.  However, on closer consideration, the first refers to facts generally whereas the second refers to particular facts, that is, those that are alleged to have cause the personal injury.  It is, in my view, of little moment in light of the words which matter to the issues here, namely the “reasons for the act, omission or circumstance”. [117] In my view, “reasons for” should be understood in s 27(1)(b)(i) as referring to facts serving to explain the act, omission or circumstance that is alleged to have caused all or part of the personal injury. [118] In lay terms the difference can be explained this way.  The information as to the “circumstances of” the relevant accident, act, omission or circumstance alleged to have caused the personal injury consists of the facts as to what happened.  The formulation as used by Ambrose J in RACQ-GIO Insurance Limited v Ogilvie and adopted in Haug v Jupiters Ltd is apposite:[67] "A circumstance of the accident is any fact to which the occurrence of the accident may be attributed. In my view, upon its proper construction, ‘circumstances of the accident’ within the meaning of s. 45(1)(a) encompass all events which appertain to or are causes of the accident in which a claimant suffers personal injury.” [119] By contrast, the “reasons for” the relevant accident, act, omission or circumstance alleged to have caused the personal injury consists of facts which explain why it happened. [120] An example will serve to illustrate the distinction.  A worker sustains personal injuries by falling into a pit at the workplace, at a time when the lights are off.  Those are facts which go to the “circumstances of” the act or omission.  The employer later discovers that a strike at the electricity supplier’s generating plant led to the electricity for the lights being cut off.  That is a fact that goes to the “reasons for” the act or omission. [121] However, in my respectful view, there is no reason to put a gloss on the plain words of the statute by limiting that which must be disclosed as the “reasons for the act, omission or circumstance alleged to have caused … the personal injury”.  It may be accepted that for a fact to be a reason for the cause of what happened it must be a strand in the rope of causation, as explained by the primary judge.[68] But I do not consider that under s 27(1)(b)(i) the information is limited to what the respondent did or did not do, and excludes information relevant to the respondent’s duty in the circumstances.[69]  The plain words of the section do not suggest such a limitation, nor is it required by applying a broad, remedial construction on the section. ... [126] The respondent urged that reliance should be placed on the decisions in Haug, Oliver and Wright, and that those decisions stood as authority limiting the scope of the information under s 27(1)(b)(i). For reasons which follow I do not consider that submission should be accepted. [127] Haug considered whether documents and information had to be about the incident described and particularised in the notice of claim. At issue were orders made, based on a broad view of s 27(1)(a)(i), which had the effect that the documents to be provided did not have to be “about the incident” in the notice of claim, nor directly relevant. Ultimately the only order in contest, and therefore the only order that the Court had to deal with, was one seeking information under s 27(1)(b), namely the identifying description and location of security cameras.[72]  That was dealt with shortly, on the basis that it sought more than information about the circumstances of or the reasons for the incident.[73] [128] Oliver concerned a claimant who was injured when involved in a fight at a hotel. The claimant contended that the hotel and its security guards should have done more to evict his assailant and prevent the fight, and that the hotel did not properly train or supervise the security guards. The information requested under s 27(1)(b) went to, inter alia, whether in the 12 months prior to the incident there had been other fights between patrons.  Martin J identified various principles drawn from Haug,[74] but none of them are determinative here.  His Honour held that the questions about other fights were not facts to which the occurrence of the incident may be attributed.[75]  That conclusion sets no precedent for the current case given the more restricted form of the claimed breaches of duty made in Oliver.  The only allegation that might have come close to justifying that information was that the hotel failed to take any reasonable steps to prevent patrons at the hotel from becoming involved in a physical altercation when it knew or ought to have known of the risk of that eventuating after an initial altercation.[76]  That alleged risk was vague in content, and in any event, the fight in which the claimant was injured occurred outside the hotel. [129] In my respectful view, Wright suffers from two difficulties that prevent its adoption as authority limiting the scope of information in the present case. First, the learned judge reasoned that s 27(1)(b) was concerned with questions of causation, not duty of care, and that therefore questions could be asked of what the respondent did or did not do, but not of what it ought to have done. His Honour held that information that was “only relevant to the question of whether the respondent had a duty to do something” was not caught by s 27(1)(b)(i).[77]  In that analysis no account seems to have been taken of the impact of reading the definition of “incident” into the provision, and therefore the reasoning does not address the question of information about an omission which is alleged to have caused the injury. [130] Secondly, his Honour seems to have acknowledged that where an omission is the basis of the alleged cause, information may be legitimately sought about prior events:[79] “[35] If there is a duty to act and the defendant does not act, and if, had the defendant performed that duty and acted, the harm to the plaintiff would have been averted, it can be said that the omission was a cause of the harm the plaintiff suffered. But does it follow that a respondent must give a claimant (if asked) information about any relevant omission on the part of the respondent, or about circumstances which are sought to be relied on as giving rise to a duty on the part of the respondent to act, on the basis that it is information about the circumstances of, or the reasons for, the incident? [36] If one focuses on the scope of the reasons for the incident, it may be in a particular case that one of the reasons for the incident can be seen as an omission on the part of the respondent to do something which, if done, would have prevented the incident. On that basis, it may well be relevant to inquire about whether the respondent had done, or had not done, at or prior to the time of the incident, any particular things which if done, or perhaps if done more thoroughly or extensively, or better, would have prevented the incident. That could well cover matters like inquiries as to previous directions given by school staff to pupils in relation to their conduct, which it is alleged ultimately led to the claimant’s injury, as in Broadhead. Possibly, it might extend to information about whether or not the respondent had done anything in relation to a particular individual alleged to have been responsible for the harm as a result of previous conduct by that individual, as in Wolski.” [131] In my view, when that passage is read with what follows in paragraph [37] of Wright, his Honour’s comments cannot be accepted as limiting the information requested in this case. [132] Here the claim in negligence particularises an alleged cause of the personal injury based on, inter alia, omissions to act in the face of actual or constructive knowledge that SDA was being sexually abused by M: see paragraphs [62] and [63] above.  In such a case the fact that there were complaints about M’s conduct [==constructive knowledge], that is conduct during the period when SDA was at the Home, whenever those complaints were made, might be relevant information to explain the alleged cause of the injury, that is the failure to act.  In other words, those complaints might be facts serving to explain the cause of the omission alleged to have caused the personal injury.": SDA v Corporation of the Synod of the Diocese of Rockhampton & Anor [2021] QCA 172, [12]-[13], [26]-[27] (Fraser JA), [113]-[114], [116]-[121]. [126]-[132] (Morrison JA). 

> See also, Bill Madden, 'Abuse: Interlocutory decision on disclosure under PIPA (Queensland)' (21 August 2021) <https://billmaddens.wordpress.com/2021/08/21/abuse-interlocutory-decision-on-disclosure-under-pipa-queensland/>, archived at <https://archive.is/sSlB2>.  

> See also, David Cormack, 'Historical Sexual Abuse – disclosure of circumstances or reasons for the incident' (3 September 2021) <https://barristerdirect.com.au/historical-sexual-abuse-disclosure-of-circumstances-of-or-reasons-for-the-incident/>, archived at <https://archive.md/dDRQw>.  

> This case seems to read as supporting proposition that s 27(1)(b) includes in its scope, facts that have explanative power for why an incident (as set up or asserted in the Notice of Claim) occurred, but not to compel an explanation as to why an alleged DOC (as a matter of liability to be determined) was breached, nor compel whether a respondent had knowledge of alleged duty of care it owed - latter point, see Curry v Brisbane City Council above. 

[%19.4] PIPA: s 27(3): information disclosed need not be in the form or required to be particularised as interrogatory: "The document required in the present case is not an answer to interrogatory but a statutory declaration. The document provided was a statutory declaration. There is nothing in s 27(3) of the PIPA which requires more than the statutory requirements for a statutory declaration“: SO v Trustees of the De La Salle Brothers; MP v Trustees of the De La Salle Brothers [2022] QSC 302, [89] (Crow J). 

[%19.5] PIPA: Overarching Purpose: "As set out in s 4(1), the main purpose of the PIPA is to assist in the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury, and that may be achieved by providing a procedure for speedy resolution of claims, promoting settlement of claims at an early stage, and minimising costs of claims": SO v Trustees of the De La Salle Brothers; MP v Trustees of the De La Salle Brothers [2022] QSC 302, [90] (Crow J).

[%19.6] s 22 PIPA: 

[%19.7] Civil Law (Wrongs) Act 2002 (ACT): 

> Upton v ACT [2012] ACTSC 115. [6], [17]: "In support of their contention that the witness statements were not required to be produced, the defendants referred me to the decision of Boddice J of the Supreme Court of Queensland in Mahoney v Salt [2012] QSC 43 (Mahoney). In that case the plaintiff sought copies of witness statements and draft witness statements that were in the defendants’ possession. The plaintiff was relying on s 27 of the Personal Injuries Proceedings Act 2002 (QLD) (the PIPA) which is in substantially the same form as s 68 of the Wrongs Act. Section 30 of the PIPA is of similar effect to s 72 of the Wrongs Act. The statements sought by the plaintiff in Mahoney were obtained by loss adjusters on the instructions of the defendants’ solicitors.  In the letter of instructions to the loss adjusters, the solicitors requested that witness statements were to be forwarded to the solicitors separately from the investigation report, so as “to retain the benefit of legal professional privilege”.  The loss adjusters were instructed not to attach the witness statements to a covering letter, and not to refer to them in the investigative report. ... I am satisfied that the witness statements are part of the investigator’s report, and as such liable to production to the plaintiff by virtue of s 72 (2) of the Wrongs Act despite them being the subject of client legal privilege.". 

[%19.8] PIPA and Workers Compensation, s 16 Contribution and/or Indemnity: Independent schemes, but s 16 permits contribution to be sought in contract and in tort: "In my view the crucial question here is whether the claimant could properly bring an action against the applicant under PIPA. It is clear that neither the WorkCover Act nor the PIPA prohibit a claimant suing concurrent liable parties (Devlin v South Molle Island Resort (above)).  As Philippides J noted, “[25] Section 253(3) of the 1996 Act abolishes any entitlement of a person not mentioned in s 253(1) to seek damages for an injury sustained by a worker. The present applicant is a person mentioned in s 253(1) of the 1996 Act. It is accepted that he is a ‘worker’ within the meaning of that term as defined in the 1996 Act. He has been issued with the relevant notice of assessment. Section 253(3) does not concern such a person’s rights and does not abolish such a person’s concurrent rights. [26]          Further, to accept the respondent’s contentions would result in injustices which it cannot be accepted the legislature intended.  It would mean that an employee would only have recourse against concurrent tortfeasors where it had been determined that there was no civil liability in an employer.  However, it is not difficult to envisage that in many cases an employee could well be placed in a situation where, by the time of the determination of the employer’s liability, any action against a concurrent tortfeasor had become time barred.  Consequently, if the respondent’s submissions were accepted, an employee might well be left with no ability to pursue another tortfeasor.  Furthermore, the respondent’s contentions have the illogical consequence, as pointed out by the applicant, that while an applicant could not pursue concurrent tortfeasors, such persons could still be indirectly involved through contribution proceedings at the instigation of the respondent.” Such concurrent liability is usually founded on alternative bases such as occupier’s liability.  In Devlin’s case the applicant was seeking a declaration that the PIPA applied in respect of an injury suffered by him alleged to have been caused by the respondent’s negligence. The applicant in that case sought to pursue a claim against his employer under the 1996 Act and a claim against the respondent under PIPA. The facts were that the applicant was acting as the skipper/engineer of a vessel which travelled to South Molle Island for the purpose of loading baggage. While the vessel was docked there, an employee of the respondent threw a bag onto the deck of the vessel striking the applicant and thereby causing injury. Philippides J held that s 6(2)(b) PIPA did not have the effect of excluding the applicant’s claim against the respondent from the ambit of PIPA and made the declaration sought. That decision cannot be distinguished on the basis of the argument raised by WorkCover that the claims by the claimant in that case were both claims for personal injury and that the contribution here sought is for an alleged breach of contract. Here the claims by the claimant are both claims for personal injury. One is against the respondent, his employer, pursuant to the WorkCover Act. One is against the applicant sought to be brought pursuant to the PIPA. While it is clear that such a concurrent action is not abolished by the 1996 Act, as noted above, the basis of liability is usually on some other basis (such as occupier’s liability) rather than on the breach of duty owed by an employer to an employee. In Devlin’s case it was based on the negligent act of a third person.  Here, as noted in paragraph [5], the claim against the applicant relates primarily to alleged breaches of duties owed to the claimant by the applicant as an employer and, to a lesser extent, on other bases.  On the basis of Devlin v South Molle Island Resort, such an action can be brought pursuant to PIPA. Once Notice under that Act had been given to the applicant in this case, the procedures pursuant to PIPA commenced. The applicant was then entitled to apply for leave to add a contributor pursuant to s 16 of the Act. In any event, if the action brought by the claimant against the respondent was excluded from the operation of the PIPA by s 6(2)(b), the action would still lie independent of that scheme and the applicant could issue third party proceedings against the respondent. The fact that the ground of liability sought to be established against the respondent as a contributor is in relation to a breach of contract is, in my view, irrelevant to the right of the applicant to add a contributor under the PIPA scheme. That adding such a contributor is permissible (and desirable) can be seen in the cases mentioned above in paragraph [14]. Section 16 of the Act does not confine the ability to add, or seek leave to add, a contributor to circumstances where the grounds on which the proposed contributor is said to be liable must be in relation to a claim for personal injury. The primary action under PIPA must relate to personal injury. However, in my view, s 16 of the Act does not confine potential contributors to only those against whom a claim in relation to personal injury can be made. If the legislature wished to so limit contributors it should have said so explicitly. In any event, such a limitation would have been against some of the purposes of the Act aimed at the speedy resolution of claims and minimising costs (s 6(2)(a) and (e)). If a contributor, who would otherwise be relevant to a full resolution of the matter, could not be added, the consequence would be a separate action between the alleged contributors at a different time. Such a consequence is obviously not desirable. Such issues should all be resolved at the one trial. In any event I am of the view that the present applicant should not be disadvantaged by not being able to add a relevant contributor because the claimant has brought concurrent actions one of which is against an employer. The applicant remains liable in the proceedings commenced against it pursuant to PIPA and should be permitted to add a relevant contributor. I am also satisfied by the explanation by the applicant as to any delay in giving the written notice to the respondent pursuant to s 16. Any delay was a factor of the appropriate investigations which were conducted. That the respondent will be subject to two separate schemes is a consequence of the legislation. I am not satisfied that any prejudice to the respondent would justify refusing the application. In any event, the respondent will benefit from the procedures of disclosure, tight timeframes and compulsory conference pursuant to the PIPA regime. The application for leave is allowed.": Ridley Agriproducts Pty Ltd v CMAS Consulting Pty Ltd [2003] QDC 284, [25]-[31]. 


[%19A.3] Wrongs Act 1958 (Vic) - ss 28LT, 28LW, 28LWB - "Significant Injury":