"Mr Dimopoulos, the plaintiff’s expert engineer, had no difficulty in reconciling the body position with the described mechanism of the fall."

Extracts from Judge Pillay's comments in relation to evidence provided by expert witness forensic engineer Mr John Dimopoulos.

Paragraph 15 Mr Brouwer was onsite. He saw only part of the fall,[13] being a second or so before Mr Evans struck the ground. Mr Brouwer’s evidence was, however, that Mr Evans’ head was furthest from the van.[14] Mr Kesh was onsite, but neither saw the fall, nor attended the scene on his evidence. Mr Pitman was onsite, but only saw the aftermath.[15] He was uncertain, but largely confirmed Mr Evans’ evidence that his head was near the bumper bar and his feet away from it.[16] In the end, not much turns on this discrepancy, but overall I accept Mr Evans’ version of how his left foot slipped and the position he came to be in on the ground. I do so because Mr Evans was so clear in his recounting. He has not given an inconsistent version since that time. Mr Brouwer did see at least part of the fall and did not give any evidence to suggest the fall occurred via a different mechanism. Dr Culvenor opines that if the fall occurred as Mr Evans gave evidence, then his head would have been away from the van and his feet closer to it.[17] However, this is inconsistent with the evidence of Mr Evans and Mr Pitman. Mr Materia was not asked about the body position despite being on scene almost immediately afterward. Mr Dimopoulos, the plaintiff’s expert engineer, had no difficulty in reconciling the body position with the described mechanism of the fall. For these reasons, I prefer and accept Mr Evans’ versions of events as to the occurrence of the slip and fall, and as to his ultimate body position on the concrete driveway.

Paragraph 41 Mr Dimopoulos, Mr Evans’ expert engineer, was more forthright and opined that loading undercover would have reduced the risk of slipping when wet, though such risk remained when doing deliveries. It is clear that the test of reasonable care does not require the elimination of all risk or a standard of absolute perfection.[53] So while a reduction of risk during the loading at the warehouse did not solve the problem of unloading in the wet during deliveries, attention must remain on whether it was a reasonable response to the risk proposed. In these circumstances, a reasonable response must be taken, even if it is not a perfect response.

Paragraph 43 Mr Evans’ further argued that a breach of duty occurred by reason that non slip tape was not applied to the bumper bar. This is supported to some degree by Mr Dimopoulos,[54] where he opined that such a step “would likely be more beneficial in reducing the likely hood (sic) of a slip occurring”. Dr Culvenor makes no comment as to the efficacy of such a step. Solely on the issue of breach, and specifically disregarding issues of causation, it seems a reasonable step to take given the ease of its installation and modest price.

Paragraph 45 To establish that the breach of duty caused injury, Mr Evans must establish that the failure to have loading carried out inside the warehouse so as to avoid wet conditions in the driveway was a cause of his injuries. In addition, or alternatively, he argues that the failure to have non slip tape on the bumper bar was a cause of his injuries. Taking each of these matters in turn and addressing the issue of loading outside first. It was Dr Culvenor’s opinion that loading inside the warehouse on this particular day of the incident would have made no difference.[55] Mr Dimopoulos was of a slightly different view, that loading in the warehouse would have “reduced the risk of slipping”.[56]

Paragraph 46 While this is not a definitive statement, that the failure to load in the warehouse was a cause of the accident, I find that in context this is the effect of Mr Dimopoulos’s evidence. First, he identifies that the loading in the wet poses a risk. Second, that risk is reduced by loading indoors. Third, the failure to move the loading inside resulted in an unacceptable risk of injury. That seems to imply that injury was on the cards if nothing was done to mitigate the risk. On the balance of probabilities, the risk came home to Mr Evans because of the continued creation of this unacceptable risk. Even if I were wrong about that, I would rely on the principles of Dahl v Grice,[57] and as a finder of fact, consider that the circumstances lead to the conclusion that loading in the wet was a cause of the accident and subsequent injury.

Paragraph 48 Turning to the second step Mr Evans argued Materia ought to have taken, being the application of non slip tape. Dr Culvenor does not consider it to be a step that would ameliorate the risk. In Mr Dimopoulos’s opinion “the application of abrasive tape or similar may have reduced the risk”. It is a lukewarm embrace of Mr Evans’ argument. I do not accept the submission of Mr Stanley on this point. I find that it is uncertain what the effect of the non slip tape would have been. There is no proper evidence to satisfy me to the relevant standard that the failure to apply non slip tape was a cause of the accident.

Full court report can be accessed via the Australasian Legal Institute - Evans v Materia Trading Pty Ltd.