MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [2012] WASCA 110

Legal Directions

Decision of the Supreme Court of WA, Court of Appeal, delivered 21 May 2012


This was an appeal against the decision of Judge Wager who awarded Whyatt $1,142,353.50 in damages. Wyatt injured his knees and developed back pain as a consequence of a slip on a step in a mechanic’s workshop in the course of employment by Smith in September 2003. He claimed against the Smith and the owners of the building.

The ‘stairs’ in question comprised one step, which was the width of a brick. The step had been constructed in 1991 / 92 and the owner gave evidence that no complaint had ever been received about the step before the Whyatt’s fall.

Whyatt gave evidence that he had complained about the step to one of the building owners. This evidence was rejected. She found that there was no evidence that the owner was aware of any concern in relation to the step before the fall. and dismissed the claim against the owner. There was no appeal against that decision.

The trial judge accepted that Whyatt fell on the date and in the manner described in his evidence and found that the stairs were noncompliant with the Building Code of Australia (BCA), which required a handrail, and noncompliant with an Australian Standard (AS), as the tread was too short. She concluded that this created a ‘danger’. Further, because it would have been inexpensive to rectify these deficiencies and Smith ought to have known about them, Smith breached its duty to provide a safe system of work.

The appeal against these findings was upheld. The Court of Appeal found that the trial judge erred in concluding that the step was noncompliant with the BCA and that the AS had no application. There was nothing else about the step which made it a ‘danger’, requiring a response from Smith.


Smith called evidence that no-one had ever fallen on, or complained about, the step in the five years it had run the workshop prior to the fall during which period the step was used often, up to 100 times per day. Complimentary evidence was available to support the finding made by the trial judge found that no-one had fallen on the step for at least 10 years.

Whyatt gave evidence that he complained to Smith about the step shortly after commencing employment (approximately three months prior to his fall). Smith conceded that he did complain, specifically, that the step was not wide enough.

Following the complaint, Smith conducted an ‘in house’ risk assessment and concluded that the bricks of the single step were sound and that it was not ‘dangerous’, taking into account that no-one had ever fallen on the step. Others who had worked at the premises and used the step also gave evidence of its frequent use and their lack of concern about it.

Whyatt testified that he also complained that a handrail was needed. However, the trial judge made no such finding. It was assumed that she rejected his evidence in this regard.

Principles – employer’s common law duty

Justice Murphy discussed the nature of an employer’s common law duty of care: a duty to its employees to take reasonable care for their safety.

The duty requires ‘a reasonably prudent employer’ to take reasonable care to avoid exposing its employees to unnecessary risks of injury.

On the question of breach, his Honour quoted Justice Mason in Wyong Shire Council v Shirt:

‘The existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.’

The Court noted that the obviousness of a risk and the likelihood that people will appreciate and avoid it are also relevant.

Applying the principles to this case

It was necessary for the Court of Appeal to consider the proper construction of the BCA and the AS. The Court of Appeal found that the ratio of tread width to riser height was entirely compliant with the BCA and that the AS had no application. The trial judge erred in concluding that, if an expert had been asked to advise on the step, he / she would have advised that the tread on the step was too short. An expert who properly construed the BCA and the AS would have concluded that the step was compliant and would have advised that the step offered no danger over and above the danger which all stairs offer to their users.

The trial judge did not consider whether handrails were necessary. If she had, she would have been obliged to conclude that there was nothing about the condition of the step or the people who used it which made handrails necessary.

There was nothing else about the step which made it a ‘danger’, requiring a response from Smith. There was no finding that the step was slippery, there was nothing in its visual appearance which made it a danger, it was not exposed to the elements, it was visible. It was obvious that there were no handrails and the width of the step was plainly observable.

Justice Murphy quoted from Wilkinson v Law Courts Ltd:

‘Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances. Among the essential circumstances is the following fact: ‘persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety’: Stannus v Graham…’

Even if the step in this case was inherently dangerous and constituted a foreseeable risk of injury, the Court of Appeal unanimously held that it was reasonable for Smith not to respond to that risk, taking into account:

  • The fact that the step had been used by persons working on the premises for years without incident or injury
  • The magnitude of the risk was not great – only one step was involved
  • The step complied with the BCA in relation to the width of the tread and the requirement for handrails
  • The use of a step to ascend or descend from one level to another was a well known and understood aspect of everyday life.

Should Smith have obtained an expert’s opinion?

The trial judge also found that Smith breached its duty to provide a safe system of work because it failed to obtain expert evidence after Whyatt complained about the step.

The Court of Appeal considered this to be erroneous reasoning. If the step had been deficient and this deficiency gave rise to a reasonably foreseeable risk of injury which Smith was obliged to take reasonable steps to reduce, then the failure to take those steps would have constituted negligence, not the failure to obtain expert advice.

Lack of previous accidents

Whyatt submitted that the mere fact that an accident had not previously happened did not mean that the step was safe. The Court of Appeal agreed, noting that ‘(t)he mere absence of previous accidents is not determinative, but it is relevant: Kuhl v Zurich Financial Services Australia Ltd…’ In this case, it was considered highly relevant as the step was compliant with the BCA and had no other feature which made it unsafe. The lack of any previous accident corroborated the conclusion that the step did not constitute a danger which required some response from Smith.

Remedial action taken after the accident

Whyatt also raised the point that, subsequent to his fall, the step was made wider at little cost. The Court of Appeal noted, however, that the failure to take action before an accident which might have prevented an injury is not a basis for a finding of negligence. The Court was required to determine what action a defendant was required to take before the accident happened, rather than considering the accident with the benefit of hindsight. The question was not whether the step could have been made safer, but whether Smith breached its duty to take reasonable care for the safety of its employee by leaving the step as it was. Whilst the cost of installing a handrail or widening the step was relatively small, ‘it (was) of significance that the step already complied with the (BCA) in relation to matters of that kind.’

As Justice Gummow said in Roads & Traffic Authority v Dederer:

‘Ultimately, the criterion is reasonableness, not some more stringent requirement of prevention.’

Quantum – award of general damages

The Court of Appeal also considered whether the award of general damages, $170,000, was excessive. Section 10A of the Civil Liability Act 2002 (WA) permitted the court to consider comparable awards of general damages. The parties provided schedules of comparable cases. The Court of Appeal ultimately concluded that the amount awarded to the respondent was excessive and that an amount of $75,000 was appropriate. The Court of Appeal made some general comments about comparing cases:

‘Whilst cases from outside Western Australia are relevant, attention should first be paid to recent comparable decisions in courts in this jurisdiction: Lowes v Amaca Pty Ltd… If a party contends that awards in this State are out of step with awards in other jurisdictions, the point should be expressly raised and argued.’


The Court of Appeal’s reasons were thorough and its decision seems sensible. It is in line with other decisions of the past decade relating to falls on stairs. It also reflects the shift towards accepting personal responsibility for one’s own safety.

Authored by Tracy Bennett, Senior Associate, Perth.

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