Can occupiers escape liability for defective stairs if a plaintiff merely “loses their footing” ? How much loss of earning capacity applies to someone already significantly impaired?
Consider the recently decided Supreme Court case* of a 41 yr old former UK shipwright from Portsmouth, who after a series of occupational and other mishaps (including a previous workplace fall down steps), took up the lighter trade of a ship’s joiner. He was deployed by his labour hire employer to a Cairns shipyard.
On the 40m luxury vessell he was helping fit out, he was directed by his supervisor to fit a timber panel to the seating area in the foredeck. Returning from the workshop with the tooled panel, he descended the starboard stairs when he slipped and fell about two thirds of the way down. He seriously injured his ankle.
According to the plaintiff, he had slipped on the accumulation of dust on the stair treads. The defendants denied liability because – they contended – the plaintiff did not slip but rather, had merely lost his footing or missed a step when descending, a matter entirely out of their control.
Their case was supported by a witness whose evidence appeared to be so coloured with prejudice that the defendants did not even seek to rely on it. Other evidence established that the work on the vessel had fallen well behind schedule. Painters were working at the same time as finishing trades and as a result there was “some degree of conflict or tension between the performance of the various tasks”.
There were ongoing complaints about dust and overspray and dust from the painting operation. The trial was part heard in February 2010. The plaintiff was recalled on resumption of trial in October and gave further evidence in relation to dust on the stairs.
To rebut the suggestion that he was tailoring his evidence to suit the experts’ opinions, his earlier written statements were tendered – all containing extensive allegations on his part of dust debris from overspray and sanding. There was no direct evidence as to the extent of dust on the stairs.
Expert evidence was that the overspray, which formed a dust when dry, was not of itself, slippery. However when combined with the dust from the sanding operation, it could if sufficiently thick, create a slip risk. Accepting that the plaintiff gave truthful evidence, the court found that the labour hire agency and the host employer (the fit-out contractor) failed to provide a safe system of work to the extent of providing safe access by way of stairs to his workplace.
In another case of wide divergence by defendant doctors from orthodox opinion, orthopaedic surgeon Dr Lim assessed the plaintiff with a 9% permanent impairment as a result of his injury to his ankle and foot. Dr Dickinson on the other hand, for the defendants, said that was a he sustained only a minor injury.
Dr Dickinson’s opinion was disregarded, largely because he had argued with the findings of an MRI investigation and other medical evidence. His honour had difficulty understanding “how there could be such a difference between the specialists”. The plaintiff, despite his prior injuries was adjudged to be a hard and honest worker. His damages were assessed at $516,000. Kitson v Skilled Group Ltd  QSC 414