Da Costa v Bitu-Mill [2021] VSC 48 (11 February 2021)

"...non-slip coverings on the tread as suggested by Mr Dimopoulos are relatively simple and straightforward steps"

Case: Da Costa v Bitu-Mill [2021] VSC 48 (11 February 2021)

Date of Judgement: 11 February 2021

Court (Location): Supreme Court of Victoria

Expert (for the Plaintiff): John Dimopoulos, forensic engineer, Dohrmann Consulting

Solicitors: Maurice Blackburn (Plaintiff); IDP Lawyers (Defendant)

Legal Matter: Plaintiff slipped and fell while descending unstable steps on road profile resulting in serious knee injury, leading to an amputation of his left leg above the knee.

Court Decision: Damages assessed at $2,108,567.

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

Paragraph 70: At some point as Mr Withers noted, the company did attempt to put non-slip paint on the steps of different machines. It was unclear when that was. In addition, Mr Dimopoulos, engineer, was called by the plaintiff. He gave evidence as to a number of steps that could be taken in response to the problem created by a slippery tread. Although Mr Dimopoulos did not profess any familiarity with profiler machines generally or the model in question, the question of actions to minimise the risk of slips on steps or ladders, is more directed at the nature of the stairs themselves rather than familiarity with the type of plant on which they are present.

Paragraph 73: Both a systemic approach to the repair and replacement option identified by Mr Thomas and Mr Withers and reflective and non-slip coverings on the tread as suggested by Mr Dimopoulos are relatively simple and straightforward steps. They are directed at maintaining an aspect of the profiler that has a bearing on the safety of the drivers who operate it but has no role in the mechanical operation of profilers. Although the risk was recognised and it was a risk that was faced a number of times each shift by each driver of the various profiler machines, no system was devised to provide safeguards. Despite the absence of other incidents or injuries it could not be said that the risk was unforeseeable or was fanciful. The safety notice that was issued in February 2009 about the risk of using the stairs makes clear the existence of a real risk known but not previously addressed.

Full court report can be accessed via the Australasian Legal Institute - Da Costa v Bitu-Mill [2021] VSC 48 (11 February 2021).

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