Rita Miletic v Capital Territory Health Commission [1992] ACTSC 57; (1992) 108 FLR 213 (12 June 1992)

SUPREME COURT OF THE ACT

RITA MILETIC v. CAPITAL TERRITORY HEALTH COMMISSION
S.C. No. 790 of 1984
Negligence
[1992] ACTSC 57; (1992) 108 FLR 213

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

Negligence - Personal injury - Duty of care - Breach of duty - Foreseeability of risk of injury - Likelihood of harm occurring.

Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1986] HCA 68; (1983) 2 NSWLR 268

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Bolton v Stone [1951] UKHL 2; (1951) AC 850

C Czainikow Ltd v Koufos [1967] UKHL 4; (1969) 1 AC 350

Brkovic v J O Clough and Sons Pty Ltd (1983) 57 ALJR 835

HEARING

CANBERRA
12:6:1992

Counsel for the Plaintiff: Mr B Salmon QC with

Mr B Hull

Instructing solicitors: Messrs Nelson and Co

Counsel for the Defendant: Mr G Parker

Instructing solicitors: ACT Government
Solicitor

ORDER

The Court orders that:
1. There be judgment for the defendant.

DECISION

The plaintiff is a 50 year old woman. At the time of the events sued upon she was a cleaner/housemaid employed by the defendant.

2. It was her task, amongst others, to clean rooms occupied by nurses. She had commenced that role in November 1977. Previously, following her marriage in 1961, she had, subject to the demands of her children, worked at various manual jobs.

3. She had various duties at the Nurses' home. Each bedroom was much the same. There was a lino floor. A mat was placed over it next to the bed. The bed was a usual or standard sized single bed. It was mounted on castors. The rest of the furniture seems to have been built-in except for one or two chairs.

4. The cleaning process included washing the floor. To do so, the cleaners would take the mat out and put it in the corridor outside. A waste bin would be taken out or put on the desk, the bed or in the hall. The chairs would similarly be disposed of. The bed would then be pulled out to enable the floor usually beneath it to be swept and washed. The bed would then be pushed back. The remaining area would then, it seems, be swept and washed. The washing liquid was water with some detergent in it which allowed final buffing with a polisher.

5. It was on 18 September 1978 whilst the plaintiff was engaged in this task, in company with a fellow employee she knew as "Agnes", that an accident occurred.

6. The plaintiff had moved the bed out from the wall. The floor formerly underneath it had been swept and washed. The plaintiff then proceeded to push the bed back into place. Then, she says, it jammed. That is, the castors jammed. The plaintiff had both her hands on the side of the bed pushing it back. When it jammed, she pushed harder. As she did so, her feet went backwards and she fell forward onto the floor.

7. She felt particular pain in her right hand and shoulder. She had fallen, it seems, first onto her outstretched right thumb.

8. Following that fall, Agnes called the supervisor, Mr Wanter. An accident report was filled in. The plaintiff attended at the Casualty section of the Hospital. Her thumb was X-rayed. Her right arm was generally very painful. It was put in a sling. She was off work for four to five days.

9. Following this, the plaintiff had physiotherapy and a splint was put in place.

10. On 10 October 1978 she was referred to a specialist, Dr Roebuck.

11. She had been working at her previous job but with severe difficulty. She had another employee with her at all times to help her.

12. The plaintiff took leave in December 1978. On her return to work her difficulties continued.

13. In March 1979 she saw Dr Quash. On 22 March she was referred to Dr Stubbs. Tests were done. Injections were given. There was little improvement.

14. Between 27 July 1979 and 4 October 1979 there were further tests and further examinations. She saw Doctors Andrews, Goldrick and Brown.

15. On 4 October 1979 she had an operation. She was in hospital for a week. It did not, she says, bring her any improvement.

16. She still could not use her right arm. It was still painful, particularly in the right hand and up to the top of the right shoulder. There has even been X-rays of her neck area to see if there is cervical disc involvement.

17. In January 1980, the plaintiff had been sporadically at work. She had, however, really not been coping. There were no light duties as such and working without the effective use of her right hand and arm was not practically feasible.

18. She was then sent to Dr Newcombe. On 15 August 1980 he performed a neck operation. The plaintiff felt, after convalescence, some easing of her condition. She felt, she said, "more relaxed".

19. The plaintiff did return to work but she remained effectively unable to carry out her duties. She was paid compensation for time off work but it stopped and started inappropriately causing her distress.

20. She could not carry out her home duties over this time. She was able to perform light or one-handed tasks. Her husband and friends helped out.

21. In 1981 the plaintiff moved to Sydney. Since that time she has had ongoing medical treatment but has not returned to work. She now wears special shoes to raise her right foot. She has had pain spreading down her left leg from her hip, probably due to right leg shortening. She uses various pain management techniques. She undertakes swimming for therapeutic purposes.

22. Sometimes the pain is so bad, she says, that she is nauseous. She has tablets which she takes to ease pain and stop vomiting. The pain extends into her neck and head. She sometimes has to be hospitalised and given injections for pain relief.

23. Her regime of painkillers is somewhat awesome. They include digesic, stematil, tryptanol, panadeineforte and naprosin.

24. In 1991, under Dr Bannister, she had a neck scan and traction followed by physiotherapy. She noticed some relief for a month or two. Oddly, although this is not imaginary, her right side has measurably shrunk. No doubt this includes the right leg shortening.

25. During 1989, the plaintiff returned to Yugoslavia for an extended holiday. She took the opportunity to seek medical advice there.

26. I have no doubt, having seen and heard the plaintiff, that she was telling the truth as she perceived it. I am fortified in that conclusion by the objective signs which have been noticed by medical practitioners from time to time.

27. Further, when her husband gave evidence supporting the change wrought in her demeanour and behaviour at home, he was not cross-examined.

28. It is noteworthy also that the plaintiff did not attempt to provide any obvious explanation for the accident such as slippery substances on the floor she was standing on when pushing the bed. Nor did she claim to notice any difficulty moving the bed out from the wall.

29. A fellow-worker, Zivka Sdojadinovic, supported the plaintiff's account of her duties and the system of work in place. Mrs Sdojadinovic said there had been previous complaints about the castors supporting the beds. The beds themselves were far too heavy to lift. She said she had noticed that sometimes the castors would jam and the beds could not be pulled out. If that happened, she would clean the room as best she could and report the jammed bed to the supervisor. Thereafter, a maintenance man would come and attend to the bed.

30. An expert, Mr Colin Simpson, gave a report and attended to give evidence. His evidence was, probably, not really expert evidence at all. It came down to saying that if the castor wheels jammed they should be lubricated. It was not uncommon, he said, for there to be initial resistance followed by movement as the castors realigned. He thought it unlikely that corrosion caused the castor or castors in question to jam.

31. I would say that this conclusion is certainly correct because otherwise the castor should have jammed on the movement away from the wall.

32. Mr Simpson then expressed the opinion, in cross-examination, that the plaintiff would have been much less likely to slip in replacing the bed had she been wearing rubber-soled shoes.

33. The plaintiff had deposed that she was wearing rubber-soled shoes.

34. The expert evidence was really of no assistance. It was not really expert evidence at all.

35. It must be obvious that whatever caused the castors to jam it was not the wheels of the castors (or any of them) jamming. If it had been, the bed would not have been able to be moved away from the wall. The only remaining possibility open on the evidence is that the axles of the castors jammed so as to prevent realignment of the wheels. There was certainly no suggestion that any of the castors had collapsed or fractured.

36. None of those matters, however, touched the real question. That was, why did the plaintiff slip? There was some risk that a housemaid might try and lift a bed into place and suffer back strain. There was a risk that, given the weight of the bed, a bed might resist being pulled out and then suddenly release, causing a housemaid to lose balance. It was not obvious, however, that, in the absence of some defect by way of moisture or other foreign substance on the floor, or some defect in footwear, such as a slippery leather sole, jamming of a castor on the return of a bed to the wall would cause the plaintiff to fall.

37. It can be added that there was no evidence of any person anywhere or elsewhere suffering a fall in the circumstances described by the plaintiff.

38. The question which arises as to liability then is whether, given the "jamming" of the castors is foreseeable, it is necessary that the consequence to the plaintiff, happening as it did, was foreseeable. And, if foreseeable, avoidable by the exercise of reasonable care.
Foreseeability

39. The question of foreseeability of harm at the stage where it is to be determined whether the defendant was in breach of an undoubted duty towards the plaintiff was referred to in Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1986] HCA 68; (1983) 2 NSWLR 268, 296 per Glass J.A.,

"The breach question requires proof that it was
reasonably foreseeable as a possibility that the
kind of carelessness charged against the defendant
might cause damage of some kind to the plaintiff's
person or property: Overseas Tankship (UK) Ltd v
Miller Steamship Co Pty Ltd; The Wagon Mound (No.
2) [1981] UKHL 2; (1967) AC 617 at 642-3; Wyong Shire Council v
Shirt (1980) 54 ALJR 283 at 285-6; [1980] HCA 12; 29 ALR 217 at
219-22. Of course, it must additionally be proved
that a means of obviating that possibility was
available and would have been adopted by a
reasonable defendant, ibid."

40. In Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, Mason J. proposed the test for foreseeability as follows:-

(47-8) "In deciding whether there has been a
breach of duty of care the tribunal of fact must
first ask itself whether a reasonable man in the
defendant's position would have foreseen that his
conduct involved a risk of injury to the plaintiff
or to a class of persons including the plaintiff.
If the answer be in the affirmative, it is then
for the tribunal of fact to determine what a
reasonable man would do by way of response to the
risk. The perception of the reasonable man's
response calls for a consideration of the
magnitude of the risk and the degree of the
probability of its occurrence, along with the
expense, difficulty and inconvenience of taking
alleviating action and any other conflicting
responsibilities which the defendant may have. It
is only when these matters are balanced out that
the tribunal of fact can confidently assert what
is the standard of response to be ascribed to the
reasonable man placed in the defendant's position.
The considerations to which I have referred
indicate that a risk of injury which is remote in
the sense that it is extremely unlikely to occur
may nevertheless constitute a foreseeable risk. A
risk which is not far-fetched or fanciful is real
and therefore foreseeable. But, as we have seen,
the existence of a foreseeable risk of injury does
not of 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."

41. The actual result in Bolton v Stone [1951] UKHL 2; (1951) AC 850 may well, as Murphy J. suggests in Wyong, have much to do with the English attachment (not exclusive to England) to the game of cricket. However, it does illustrate the point made that, even if harm is foreseen as a real risk, if its chance of occurrence is small, no response may be required. Lord Reid in C Czainikow Ltd v Koufos [1967] UKHL 4; (1969) 1 AC 350, 385-6 supported that view.

"The defendant will be liable for any type of
damage which is reasonably foreseeable as liable
to happen even in the most unusual case, unless
the risk is so small that a reasonable man would,
in the circumstances, feel justified in neglecting it."

42. These cases illustrate the proposition that a mere assent to a proposition that injury is "foreseeable" does not carry with it the consequence that a person under a duty to take care for a plaintiff in the circumstances is liable in damages to that person if that injury occurs.

43. Clearly, the greater the perceived likelihood of harm occurring, the higher the standard of care imposed. In other words, the higher the risk, having regard to its likelihood to occur and to the degree of harm likely to follow, the greater the precautions it will be reasonable for the person having a duty to take care to take.

44. The greater the ease with which precautions might effectively be taken, the greater will be the obligation to put them in place.

45. I think it is clear enough in this case, that there was a real risk that castors on the beds would jam. I have no information as to the frequency of that occurrence but I conclude from the evidence that it was frequent enough to be no surprise if it happened. However, the usual consequence of such jamming was that the bed would not be moved out from the wall. It is conceivable that a worker could tug excessively on the bed and so suffer muscle strain or back injury. However, there is no evidence that such a consequence would follow if the worker enjoyed normal health and strength (see, for example, Brkovic v J O Clough and Son Pty Ltd (1983) 57 ALJR 835).

46. A fortiori, unless the floor was slippery or the plaintiff's footwear inappropriate, there was no reason to suppose that she would fall while pushing the bed back to the wall if the castors then unexpectedly jammed. If the castors, instead of jamming simpliciter had a tendency to jam then suddenly release, I can see that a worker might be thrown off balance and fall. That is not what happened here.

47. It follows that, in my opinion, the plaintiff has failed to demonstrate that the risk of the kind of occurrence described by her was reasonably foreseeable.

48. In any event, even if some risk of falling whilst shifting beds was a foreseeable consequence of the sudden jamming of castors, there is nothing to suggest that the defendant should have done anything more about it than it did to reduce or eliminate that risk.

49. There will be judgment for the defendant. I will hear the parties as to costs.