Anna Pavic v Limro Pty Limited and Australian Capital Territory [1996] ACTSC 54 (6 June 1996)

SUPREME COURT OF THE ACT

ANNA PAVIC v. LIMRO PTY LIMITED AND AUSTRALIAN CAPITAL TERRITORY
No. SC 736 of 1993
Number of pages - 10
Negligence - Damages - Evidence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Negligence - employer's liability - occupier's liability - plaintiff slips and falls down concrete steps wet with rain whilst employed by cleaning contractor at hospital - held no negligence by employer or hospital authority.

Negligence - contributory negligence - if defendants negligent so was plaintiff in failing to look where she was going.

Negligence - overriding consideration that plaintiff must prove unreasonableness of defendants' conduct.

Damages - provisional assessment of damages where judgment for defendants - plaintiff suffering minor disability in ankle exaggerates symptoms in other parts of body and fails to discharge on effect of injury other than on ankle.

Evidence - ergonomist gives evidence of ways to avoid risk of injury - much of evidence not in nature of expert opinion but admissible under s.80 of the Evidence Act 1985 (Cth).

Evidence Act 1985 (Cth)

Miletic v. Capital Territory Health Commission [1995] HCA 13; (1995) 130 ALR 591

Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 CLR 40
McLean v. Tedman [1984] HCA 60; (1984) 155 CLR 306

HEARING

CANBERRA, 5 and 6 December 1995
6:6:1996

Counsel for the plaintiff: Mr. B. Murray QC with
Mr. G. Lunney

Solicitors for the plaintiff: Snedden Hall and Gallop

Counsel for the first defendant: Mr. K.J. Crispin, QC

Solicitors for the first defendant: Macphillamy Donald

Counsel for the first defendant in
addition and by leave: Mr. M. Cranitch

Solicitors for the first defendant
in addition and by leave: Deacons Graham and James

Counsel for the second defendant: Mr. R. Williams, QC with
Mr. R. Bayliss

Solicitors for the second defendant: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. There be judgment for both defendants.

DECISION

MILES CJ The plaintiff sues for personal injuries sustained on 7 April 1992 when she was working as a cleaner at the Woden Valley Hospital. She worked for the first defendant. The second defendant was the occupier of the hospital.

2. The plaintiff had been working at the hospital for the defendant as a cleaner for about one year prior to the injury. Her job at the time was to clean the two top floors of a three-storey building which was used by doctors as residences and offices. The building had an internal staircase and an external staircase. The doctors used the internal staircase. The workers used the external staircase. Part of the plaintiff's job was to fill plastic bags with rubbish and take them down the external staircase to a bin or hopper situated at ground level. The plastic bags were of 100 litres capacity. On the day in question the plaintiff had placed a number of discarded telephone books into one or both of the bags and they were heavier than usual.

3. The external staircase is cast entirely in concrete. On the top and intermediate levels there is a walkway leading from a door of the building. The walkway is enclosed on either side by a concrete wall or balustrade about a metre high. The walkway leads to a flight of three steps which lead down to a landing. The steps are to the right of and at a right angle to the walkway for a person descending. On the left of the steps is a handrail. Each step has embedded into it two strips of abrasive carborundum tape set back about three centimetres from the edge of the step. Each strip is about a centimetre wide and the strip further from the edge is about three centimetres from the strip nearer to the edge. The strips extend across the steps to within about a few centimetres of the concrete walls which line the sides of the staircase. The walkway, the flight of steps and the landing are open to the weather.

4. On the day in question at about 10.20 a.m. the plaintiff had filled two bags with rubbish, including the telephone books referred to. To what capacity the bags were filled is unclear, but they were too heavy for her to carry completely free from the floor or ground. She was alternately dragging and lifting the bags as she proceeded from the doorway of the building, across the walkway until she reached the top of the three steps. As she began to turn on the top step, she lifted the bags. When she put her foot on the top step, she slipped and fell down the three steps on her back, finishing with her feet on the landing at the bottom of the three steps. She called and screamed for help in Croatian and German. A nurse and two male employees helped her on to a chair or trolley and took her to the casualty section of the hospital.

5. The particulars of negligence alleged against the first defendant were as follows:

"a) Failure to devise and ensure the maintenance of a system
of work such as the plaintiff was not exposed to unnecessary risk
of injury.
b) Requiring the plaintiff to lift and move excessively heavy
bags.
c) Failure to instruct the plaintiff never to handle more
than one bag at a time unless the bags were exceptionally light.
d) Failure to instruct the plaintiff that in wet weather the
external stairs were not to be used.
e) Failure to supervise.
f) Failure to provide the plaintiff with all suitable gear,
plant and equipment in particular a suitable stair climbing
trolley for the transfer of garbage bags.
g) Failure to allow the plaintiff sufficient time to perform
her duties.
h) Failure to warn the plaintiff of the dangers of moving
large bags of rubbish on wet stairs.
i) Failure to properly and adequately inform itself of the
risk of permanent injury arising from the work required of the
plaintiff.
j) If the defendant did so inform itself then failure to
properly and adequately act upon such information.
k) The defendant by itself its servants and agents was
negligent thereby causing the injuries of which the plaintiff
complains."

6. The particulars of negligence alleged against the second defendant were as follows:

"a) Failure to provide a safe place of work so that the
plaintiff was not exposed to unnecessary risk of injury.
b) Failure to maintain the external stairs in a safe
condition.
c) Failure to provide internal means of access to rubbish
disposal units.
d) Failure to ensure exterior stairs surfaces were made
non-slip.
e) Failure to ensure that the bags of rubbish which were
required to be removed were not over filled."

7. The shortest route from where the plaintiff had collected the rubbish to the bin where they were to be deposited was that which the plaintiff was taking. It may have been that she was inhibited from using the internal staircase because the practice had developed that it was not appropriate for cleaners to carry rubbish down the internal staircase. However, there was no express instruction ever given to the plaintiff that she was forbidden to do so. The question arose on the particulars and on the evidence whether on a wet day it might have been safer for her to use the internal stairs instead of the external stairs, and if that were the case, whether there was some duty cast upon either of the defendants to take steps to ensure that the internal stairs were used in those conditions, and whether the plaintiff herself was lacking in taking reasonable care for her own safety by not deciding to use the internal staircase.

8. The plaintiff gave her evidence in Croatian through an interpreter, and even allowing for that factor, her evidence on matters in dispute was not always clear. She was clear, however, in her evidence that the position from which she fell was at the top of the three steps. Letters from her solicitors to the second defendant's solicitors of 26 April 1994 and repeated on 11 May 1994 positively put her case as falling "at the top of the short flights of three steps" and landing "at the bottom of the short flight of steps".

9. On the plaintiff's evidence alone, liability on the part of either defendant could not be established. The only evidence which went to supplement that of the plaintiff on liability was that of Dr Neil Adams, an ergonomist. Dr Adams supplied a report and answered questions over the telephone. Much of his evidence was outside the realm of expert opinion and was of matters of common knowledge. Nevertheless, it was admissible under s.80 of the Evidence Act 1985 (Cth).

10. When Dr Adams visited the scene on 9 August 1993 he observed that the nosing of the steps had been worn "extremely smooth" and "would have been quite slick and hazardously slippery when wet". The rail "would not have been easy to grasp as a safety measure on the part of the person who had commenced a slip or fall". If Dr Adams was suggesting that there was something inherently dangerous or sub-standard about the rail, I reject the suggestion. The rail was within easy reach of any person who wanted to use it and who had a hand free in order to use it.

11. Dr Adams described in detail what he considered to be the usual manoeuvring of a person's body when slipping or falling when descending steps. These are matters of common experience. Dr Adams' drew the conclusion that "clearly what happened in the plaintiff's case was that Mrs. Pavic's leading foot would have made impact at the nosing without encountering the anti-slip strip and her foot encountering the very low frictional resistance available in that hazardously slippery and forward curved section of the step, would have slid forward with the weight of the bags in her hands dragging her backwards". This does not appear as clear to me as it did to Dr Adams whose reconstruction of events is coloured by his view that the nosing of the steps would have been "hazardously slippery" and "dangerously worn". Furthermore, Dr Adams' "ergonomic" approach is affected by his assumption, contrary to the plaintiff's evidence, that the plaintiff had slipped on the bottom of the three steps. Presumably he made the assumption on what he was told by the plaintiff or on her behalf.

12. That it was likely that the nosing was slippery is incontrovertible, because it was wet with rain. It is not evident to me on the photographs, or anything else in the evidence, that the nosing, even more than a year after the plaintiff's injury, was noticeably worn. The steps appear to me to be very ordinary steps and the nosing appears unremarkable.

13. Dr Adams went to considerable lengths to seek to prove that the weight of the bags somehow contributed to the plaintiff's fall and that allowing the plaintiff to move the two bags at one time was so dangerous that it required one or other of a number of safety measures to be implemented. I do not accept that opinion. Of course there must have been some risk to the plaintiff in allowing her to work at all, but I do not see that the risk was so great that in the circumstances anything needed to be done on the part of the employer to avoid the sort of injury which befell the plaintiff. The plaintiff said in her evidence that she was over-worked, but that assertion was so general and is so easy to make that having regard to the plaintiff's credit and the lack of supporting evidence, I do not regard it as of any probative weight.

14. Various measures to avoid the risk were suggested by Dr Adams, and they appear in the particulars which have been set out above. In my view, there was no requirement that the defendant employer instruct the plaintiff never to handle more than one bag at a time unless the bags were exceptionally light or to instruct her that in wet weather the external stairs were not to be used, or to warn her of any dangers of moving large bags of rubbish on wet stairs. It is easy enough to say that the plaintiff should have been provided with a stair-climbing trolley, but there was no evidence that such trolleys are in use for the purpose of moving bags of rubbish whether in hospitals or otherwise. Common experience suggests that they are not in such use. In any event, I fail to see how the manoeuvring of a trolley down the steps would have reduced the risk of injury to the plaintiff in the circumstances.

15. I reach these conclusions having given considerable thought to the decision of the High Court in Miletic v. Capital Territory Health Commission [1995] HCA 13; (1995) 130 ALR 591. It seemed to me on my initial reading of the judgments in that case that the High Court was saying that where there is a risk of injury of a particular kind, and expert evidence of measures available and practicable to reduce the risk of that injury, then an employer who fails to utilise those measures is guilty of negligence, unless the obviating measures are unreasonably expensive or difficult to implement. Upon reflection and in the light of the general body of case law in the High Court and elsewhere on the subject of employer's negligence, I have concluded that the High Court did not intend to go so far in Miletic. In an action for negligence the onus lies on the plaintiff to prove the unreasonableness of the defendant's conduct. There is no onus on the defendant, even if the defendant is an employer, to show that it is unreasonable for the defendant to be required to implement any practicable alternative which might have reduced the risk. The well-known balancing exercise which Mason J (as he then was) mentioned, or laid down, in Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 CLR 40 must be undertaken.

16. The incidence of serious injury as the result of falling or slipping on steps in the open air is of course foreseeable, although there was no evidence that anybody had fallen down steps at the hospital on any previous occasion. People have been falling down steps for thousands of years at least and will continue to do so. Steps in stone must be among the earliest examples of evidence of the creative capacity of human beings to put natural resources to positive use. The surfaces of steps in stone or concrete, like most other hard surfaces, may be more slippery when wet. Steps out of doors may be more dangerous than steps indoors. The procedures which Dr Adams suggested may have been simple and inexpensive. But ultimately, balancing the possibility of injury against the simple and inexpensive nature of those procedures, I cannot accept that reasonableness demanded that they be utilised. I recognize that the employer is under a duty to provide a safe place of work as laid down for instance in McLean v. Tedman [1984] HCA 60; (1984) 155 CLR 306, but I cannot avoid the overriding requirement that the defendant's conduct be shown to be unreasonable. The decision is ultimately an exercise in value judgment and I cannot see how it can be explained further. I accept that reasonable minds may differ, but it is not the task of a trial judge to try to predict how other judicial minds may react to the same facts. There is no way, consistent with the judicial oath and the application of intellectual honesty, that I can find for the plaintiff on the evidence.

17. In case it might be thought that it has been overlooked, I add that I cannot regard the absence of evidence on the part of the defendant as strengthening the case for the plaintiff unless it is the law that the defendant has positively to prove that it consciously and deliberately considered the adequacy of whatever steps were reasonably necessary to safeguard the safety of its employees from the sort of injury that befell the plaintiff. Until instructed otherwise, I do not understand that to be the law laid down in McLean or Miletic. The plaintiff's claim against the employer defendant must fail.

18. I turn now to the action against the hospital authority. I reject the allegation set out in the particulars that there was a duty on the part of the hospital authority to ensure that the bags of rubbish to be handled by employees of the cleaning contractor were not overfilled by those employees. I reject the allegation also in the particulars that there was a failure to provide internal means of access to the rubbish disposal units downstairs. There was such a means of access. If there is an implied alternative allegation that it was negligent of the hospital not to have taken steps to insist that employees of the cleaning contractor should use the internal staircase, especially in wet weather, I reject it also. Reasonable care on the part of the hospital authority did not, in my view, require such steps to be taken.

19. The real case against the hospital is in relation to the allegedly dangerous condition of the steps. Dr Adams agreed in cross-examination that the positioning of the carborundum strips in relation to the nosing was in accordance with usual practice in Australia. He was quick to add that it would be preferable to have "an entire anti-slip surface". He agreed that Australian Standard 167, which deals with standards for the construction of steps, did not deal with the placement of anti-slip strips. Under further cross-examination he added matters not in his report, and probably for that reason, not in the particulars. He said that "unfortunately some people who constructed these steps used a curved steel trowel, the type that had a curved shape, to finish the nosing". He also said that the edge of the steps should have been constructed at an angle of about 88 degrees, with a strip to the very edge. In re-examination Dr Adams went even further. He said that the entire surface should have been of a rubber textured concrete to reach the required standard which should reduce the cost of construction by eliminating the need for carborundum strips to be inserted and would minimise the risk of injury from slipping.

20. The transcript records Dr Adams as saying that "probably the carborundum strips weren't in good condition". If he did in fact say that, I reject his opinion because there is no evidence to support it.

21. In my view, the plaintiff has not discharged the onus of showing that the hospital authority unreasonably failed to maintain the steps or was somehow or other negligent in allowing them to be constructed as they were.

22. It follows that there will be judgment for both defendants. Although the question of contributory negligence does not need to be decided, I express the view that the most important element in the various matters which contributed to the plaintiff's fall was her own failure to look to see where she was placing her foot immediately before she fell, and if it were felt that one or other of the defendants was negligent in failing to discharge its duty to her, I would reduce her damages for her own contributory negligence.

23. In case it may be of further assistance to the parties, I will state in summary form what I would have assessed to have been the plaintiff's damages if she were to recover judgment against either defendant.

24. The plaintiff was born on 10 May 1947. She married at the age of 16 and has three adult children. At the time of the hearing she had been separated for her husband for about seven months.

25. Immediately after her fall, the plaintiff was taken to the admission section of the hospital and placed under the immediate care of the orthopaedic surgeon on duty, Dr Ashman. X-rays showed a fracture of the right ankle which was treated by Dr Ashman by fixation with screws and a compression plate. The plaintiff was discharged two and a half weeks later. Further x-rays of the neck and lumbar region showed no abnormality except that there was some bulging at L5-S1. Medical opinion is unanimous that the bulge shown is consistent with degenerative change and is not the cause of symptoms which the plaintiff claims to have in the lower back.

26. The plaintiff has never returned to work. She came under the care of a general practitioner, Dr Quach, and she saw Dr Ashman on several occasions up to 23 July 1993. Dr Ashman then formed the view that she was totally and permanently disabled from her previous employment as a cleaner and due to her restricted education and limited ability with the English language, was totally and permanently disabled from any form of employment. Dr Quach came to a similar view.

27. Dr Ashman examined the plaintiff again for the purposes of the case on 13 April 1995. There was no improvement in the plaintiff's symptoms and she told him that if anything she was getting worse rather than better. Dr Ashman took the view that she had developed a "chronic regional pain syndrome affecting her low back and right leg" and he remained of the opinion that she was totally and permanently disabled for any form of occupation and likely to suffer from low back pain and right leg pain in the years to come.

28. These assessments were of course dependant upon accepting the plaintiff's complaints as genuine.

29. It may be of significance that the plaintiff's complaints have continued to grow. She has complained at various times of pain in her right knee and left arm. She is grossly over-weight. She began using a walking-stick some months after the injury and still uses it. She is a heavy user of cigarettes. She does not exercise as recommended because, she says, of pain. She also says that she is able to sit only for an hour or so and that she can stay up out of bed for not more than about three hours.

30. The plaintiff plainly does not expect ever to return to the workforce because of her pain. The doctors seem to agree that this will probably be so, but they do not all agree with Dr Ashman that her inability to go to work is a result of her injury.

31. The only objective side of anything abnormal in the plaintiff is in relation to her right foot which remains slightly discoloured and swollen. This is apparently a common result with the type of operative treatment she received. She uses a walking-stick and presumably she limps. This may have had the effect of putting her back out of alignment and made walking and sitting difficult. However, I am not convinced that it continues to do so. Nor am I convinced that she needed a walking stick as a result of her injury beyond a period, say of two years from the date of the injury. The plaintiff's claim that she has not improved since she was discharged from the hospital and that she is indeed getting worse all the time is at odds with a video tape taken of her working in her garden in May and November 1994. After seeing the tape and considering the picture she presented in the witness box both before and after being shown the tape, I am quite convinced that she grossly exaggerated her disabilities and symptoms to the Court and over the years to the doctors. In 1994 she had an operation for varicose veins and she complains about the continuing results of that in such a way that those complaints are quite confused with other symptoms that she associates with the injury.

32. I accept Dr Stubbs' assessment that there is a minor residual incapacity in the right ankle. I accept also his assessment that the exaggeration of her symptoms, particularly in the back and neck, are so gross that in medical terms "any incapacity assessment would be completely unreliable". In legal terms this means that the plaintiff has not discharged the onus of proof of showing that, apart from the condition of her right ankle, her continuing symptoms and disabilities are causally related to her fall. In my view, the effect of the injury on her neck and back ceased by about April 1994.

33. Nor has the plaintiff discharged the onus of proving that the ankle injury incapacitates her for all work as a cleaner. The considerations that she does not speak English and that jobs are particularly hard to find for that reason, are of negligible effect in the present case. They may be important, as marginal factors, in other cases, but not in this one. There may be particular tasks for which the plaintiff's ankle renders her unfit, for instance climbing up and down stairs to put out rubbish, but until she is able to put aside what she claims to be her other disabilities and symptoms, it is impossible to make a decision one way or the other on this. There is no periodic loss of earning capacity shown. All that can be awarded for beyond 1994 is a figure to provide a buffer against the loss of employment opportunity in jobs which require repeated use of the ankle. The condition of the ankle I would expect to last into the indefinite future.

34. Bearing in mind that her total net loss of earnings from the time of injury to April 1994 is about $32,500, I would have awarded her $25,000 for past loss of earning capacity. As this does not exceed what she has received by way of worker's compensation, no interest is payable. For future loss of earning capacity, I would have awarded $10,000.

35. For pain and suffering and loss of enjoyment of life I would have awarded $25,000 as to which $15,000 would have been assigned to the past. I would have awarded a lump sum of $3,500 in lieu of interest in respect of this component.

36. There is a claim for loss of superannuation benefits. As I understand it, the relevant award provided for the employer to contribute $13 per week for this purpose, and from 1 July 1994 that obligation was superseded by a statutory scheme. By the latter date, however, I do not think that the plaintiff has shown that she was incapacitated by reason of her injury for work as a cleaner. I would have allowed recovery of the employer's contribution for the two years following injury at $1,300.

37. Tax payable on worker's compensation received in the two year period following injury was about $4,360 and would be recoverable under the principle in Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438.

38. To these figures would need to be added a sum for the plaintiff's out-of-pocket expenses. I do not have a record of any evidence or agreement on this. It may be that they have all been paid on the plaintiff's behalf and no claim is made.

39. However, because I do not regard the plaintiff as having discharged the onus of proof in relation to the claim against either defendant, there will be judgment against the plaintiff in favour of both the defendants. Unless the parties wish to be heard, I propose to order that the plaintiff pay the costs of both defendants. Unless the defendants wish to be heard in relation to the contribution proceedings, I propose to dismiss the claims for contribution with no order as to costs.