Ankica Musladin v Berkeley Challenge Pty Ltd and Australian Institute of Sport [1998] ACTSC 248 (7 July 1998)

  
  
  

  
   Downlaod RTF

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   EINFELD J

  

  

   Negligence
- duty of employer to ensure a safe workplace - foreseeable risk
of injury

  

  

   CANBERRA, 17 September 1997 (hearing), 7 July
1998 (decision)

   #DATE 7:7:1998

  

   Appearances

  

   Counsel for the Plaintiff: Mr R Williams QC and Mr B Meagher

   Solicitor
for the Plaintiff: Scott Sheils & Glover

  

   Counsel for the First Defendant: Mr M Cranitch SC

   Solicitor for the First
Defendant: Abbott Tout Harper Blain

  

   Counsel for the Second Defendant: Mr H Marshall

   Solicitor for the Second Defendant:
Crossin Barker Gooling

  

  

   THE COURT ORDERS THAT:

  

  

   1. Judgment be entered in favour of the plaintiff against the
first and
second defendants in the amount of $895,000.

  

   2. The first and second defendants are to pay the plaintiff's costs
as
assessed or taxed.

  

   EINFELD J

  

   1. Ankica Musladin (the plaintiff) was born in Croatia on 8 April 1942. Her
family
lived on a farm and she attended a village school between the ages of 7
and 11 when she ceased her formal education to work on the
farm. At the age of
20 she married and shortly after, in 1964, came to Australia with her husband
who was a carpenter. They firstly
lived in Bonegilla migrant hostel and then
went to Sydney where her husband had found work. In 1965 the couple's first
daughter,
Bridget, was born. A second daughter, Sandra, was born in 1967, a
son, John, in 1973 and their third daughter, Linda, was born in
1976, in which
year the family went to Canberra for her husband's work.

  

   2. In about 1978 the plaintiff commenced working
as a cleaner for Berkeley
Challenge Pty Ltd (the first defendant), for the first four years at Canberra
House, an office building,
and then for three years at the CML Building.
During this period, she suffered a shoulder and elbow injury while cleaning a
shower
recess, and had three weeks off work and a little physiotherapy. An odd
ache or pain notwithstanding, she made a virtually full recovery
and was
generally in good health thereafter.

  

   3. Then, virtually from the day it opened in 1985, she worked for the first
defendant as a cleaner in the swimming pool complex at the Australian
Institute of Sport (the Institute), working 7 days a week from
4.00 am to
11.30 am with virtually no holidays or time off work. At this time three of
the plaintiff's children were still at home
dependant on her as her husband
was not working due to ill health and disability. Despite her gruelling
schedule, she loved her work,
socialised with the people there, and even
walked to and from work on most days, a walk of about 20-25 minutes. Her
duties at the
Institute were to clean, mop, polish and buff the entire complex
including the public and reception areas, the swimming pool area,
the change
rooms and toilets, and the offices. She was provided with a uniform, gumboots
for the wet areas and a polishing machine
weighing 38 kilos which had two
wheels underneath at the rear.

  

   4. Adjacent to the pool is an area known as "the pit" or "conversation
pit", so called because it is three steps down from the ordinary floor level
in which people wait for swimmers to complete their
training. Swimmers in
their costumes, including children, also often sit there after leaving the
pool so that the area, including
the steps and the floor, is regularly wet.
The pit contains seating, and vending machines dispensing coffee and other
drinks as well
as various types of confectionery. In comparison to the
non-slip tiles provided elsewhere in the complex, the flooring in the pit
and
on the stairs was sheet vinyl with small bubbles.

  

   5. On 21 December 1992 the plaintiff was stripping the floor, a job
done
twice a year, meaning that she was applying a special cleaning solution, first
using a mop, and then by means of different pads
on her polisher, stripping
off the dirt that had caked on the vinyl surface. The next day when the
solution was dry, the plaintiff
planned to apply a polish to refresh the
surface.

  

   6. To leave the pit with the polisher, the plaintiff would walk backwards
up the stairs pulling the polisher, which was in front of her, back and up one
step at a time. As she was dragging the polisher out
of the pit on 21 December
1992, she reached the second step when suddenly she slipped on the wet vinyl
surface and fell back hitting
her back and head on the surface of the top
step. She was wearing her gumboots at the time.

  

   7. The plaintiff was briefly
unconscious, was attended to by staff
colleagues and was then taken home. She saw Dr David Voon, her general
practitioner, later
the same day.

  

   8. She has not worked a day since, but has had regular physiotherapy and
medical consultations for continuous
severe lower back, neck and shoulder
pain. As a consequence, she has been unable to continue as manager of the
household and her
children have had to take care of her and the house. Her
husband died of cancer in 1995 and the plaintiff was unable to care for
him in
his final illness because of her pain and disability.

  

   9. In this action, the plaintiff seeks damages for the negligence
of the
defendants in causing her accident. In the statement of claim a number of
particulars of negligence were given but the principal
allegation against the
employer was that it should not have required or permitted the plaintiff to
drag a heavy machine up wet and
slippery stairs alone. A male should have been
available to help her and non-slip footwear should have been provided. The
principal
allegation against the Institute was its failure to provide a
non-skid or non-slip surface on the steps and the failure to install
the ramp.

  

   10. Each of the defendants denied negligence and alleged contributory
negligence on the part of the plaintiff in
failing to take care for her own
safety. They each also cross-claimed against the other for the negligence
alleged by the plaintiff,
claiming contribution or indemnity. In their
cross-examination of the plaintiff they generally sought not to defeat the
plaintiff's
claim but to sheet the responsibility for her accident on to the
other defendant. In substance, there was little cross-examination
and no
serious assertion on contributory negligence, as I believe correctly, because
none was established by the evidence.

  


  11. The plaintiff and the second defendant presented expert evidence from
consulting engineers. The plaintiff's expert, Alexander
Tiplady, gave oral
evidence to supplement his report. The second defendant presented two reports
of Dr J R Cook from the School of
Architecture at the University of New South
Wales. Mr Tiplady's evidence was that a woman should not be required to lift a
polisher
weighing 38 kgs up or down stairs and that the plaintiff should have
been instructed to seek a male to assist her in this activity
and supervised
to ensure that she did so. He said further that a ramp could have been
constructed to avoid the need for the stairs
and to provide easy access as
well for people with children in strollers and persons who were incapacitated
or in wheelchairs. As
the Institute is used by Paralympians as well as
able-bodied athletes, it is surprising that a +ramp was not originally
included.

  

   12. Mr Tiplady also said that the vinyl flooring in the pit and on the
stairs should have been replaced by non-slip tiles,
as was the position
elsewhere in the building, which would have avoided the need to polish the
floor at all and eliminated any need
for a heavy polishing unit to be taken
into and out of the pit. The floor could then have been washed with soap and
hot water, rinsed
and mopped with clean hot water, and then dried. Mr Tiplady
also felt that the plaintiff should have been provided with industrial
safety
shoes with non-slip soles as gumboots are notoriously slippery on wet vinyl.

  

   13. Despite efforts by the defendants
in cross-examination either to
discredit parts of this evidence or to sheet home responsibility for the
identified failures to the
other, I found Mr Tiplady's evidence to be credible
and persuasive. On the other hand, Dr Cook's first report of June 1997 found
no fault with the flooring in the pit or on the stairs, even apparently when
wet and being negotiated by a person wearing gumboots
and pulling a heavy
polisher. His second report of July 1997 dismissed a ramp as being impractical
and unaesthetic, and concluded
that "the risk of a fall when the floor was wet
as a result of an infrequent cleaning operation did not justify a change of
floor
surface material".

  

   14. In my view there was a foreseeable risk of injury in requiring the
plaintiff to pull a heavy polisher
backwards up wet vinyl stairs. I accept the
evidence that this risk of injury was avoidable by any number of means within
the employer's
control, including providing, and instructing and requiring the
plaintiff to obtain, assistance to remove the polisher, or to remove
it for
her, providing her with a means of cleaning the floor which did not involve
her having to use such a heavy machine and move
it in and out of the pit via
wet stairs and, although the plaintiff did not rely on it in final
submissions, providing her with safer
footwear with which to perform her work.
It does not seem to me that an outside contractor such as the first defendant
could have
been required to install a ramp in a third party's premises.

  

   15. could have been avoided. One is by construction of a ramp;
the second
is by changing the floor surface. Whether the failure to provide the ramp was
negligent requires, according to the authorities,
a balancing exercise
involving an assessment of the magnitude of the risk, the extent of
probability of injury, the expense and inconvenience
involved, the
practicality and the aesthetics. There was a dispute on the expert evidence as
to the aesthetics and the practicality
of the ramp. Dr Cook's view was against
both whereas Mr Tiplady had not really investigated the matter to any great
extent. Although
the probability of injury was not insignificant, and a ramp
would have been useful for various purposes including the plaintiff's
work in
the pit, I believe that the expense involved in the provision of a ramp for
the plaintiff's access to and from the pit twice
a year to strip the floor was
disproportionate to the risk involved.

  

   16. But the flooring which everywhere else was resurfaced
in 1988 is a
different matter. According to the evidence of Mr Tiplady which I accept, it
is a well-known risk that vinyl flooring
is slippery when wet. The
conversation pit was likely to be wet just from the presence of people using
it. It was certainly likely
to be wet when being cleaned. In these
circumstances the Institute owed the users including the plaintiff a duty to
provide a non-slip
surface. If it had done so, the plaintiff would probably
not have fallen.

  

   17. The defendants had a duty of care to provide
the plaintiff with a
reasonably safe system of work and a reasonably safe place to work in. I find
that those duties were breached
in the respects mentioned, the defendants were
therefore negligent, and they are liable to the plaintiff in damages.

  

   18.
On the plaintiff's behalf, evidence was called from the plaintiff
herself, two of her daughters and Dr Geoffrey Champion, two medical
reports
each from Dr Voon and an orthopaedic surgeon Dr Bryan Ashman were placed in
evidence, and some other documentary material
going to different aspects of
the damages was presented. In addition, a statement was tendered from Brenda
Cappa who was the plaintiff's
immediate superior while she was working for the
first defendant. I have of course read the medical reports and Ms Cappa's
statement
carefully. There is no need to summarise all this evidence here. The
picture is of a strong healthy worker, wife and mother being
converted by the
injury into someone who cannot do any physical activity, even cooking, without
considerable pain and disability
from a permanent aggravation of a
pre-existing lumber disc lesion.

  

   19. The defendant also tendered into evidence a number
of medical reports -
three from Dr Barry Cant, a physician, two from Dr Stephen Potter, a
rheumatologist, one from Dr David McGrath,
a consultant in occupational
medicine, and one from Dr J Joubert, a neurologist. These reports provide a
quite different picture
of a woman who is either fit for work or restricted by
some disability unrelated to her accident and significantly exaggerated.

  

   20. The plaintiff did not seem to me to exaggerate her disability at all.
Her daughters' evidence was balanced and persuasive
and Brenda Cappa's
assessment of the plaintiff as a worker was very strong indeed. I accept their
evidence and the assessments of
Drs Voon, Champion and Ashman. The plaintiff
is in my opinion significantly disabled from injuries sustained in her
accident on 21
December 1992 and is unable to work. The first claim therefore
is for loss of wages.

  

   21. At the time of her accident, she
was more than halfway through her 51st
year. At the time of trial she was 55 years 5 months. She claims a loss to
trial of $167,043
being what she would have received had she gone on working
for the first defendant at the Institute or elsewhere 7 days a week. Although
her children are no longer dependant, I think it is reasonable to allow that
sum on the basis that the plaintiff's work was her life
and there is no reason
to believe that she would not have continued for another 5 years or so.

  

   22. Future loss of earnings
is more difficult. It seems quite unlikely that
the plaintiff would have worked to age 65, at least as hard as she was working
pre-injury.
I think that she should be allowed about a further 5 years work at
about two thirds of the present wage being paid for her old job,
discounted
for contingencies and the present lump sum value of weekly payments. I allow
$140,000 for future loss of earnings.

 


   23. A past Griffiths v Kerkemeyer claim is made for about $80,000 and a
future claim for about $500,000. I think that both of
these claims are
excessive. I take into account the considerable assistance given to the
plaintiff by her children up to now, and
by her husband before his death,
across almost the entire gamut of domestic activity and needs. But the
children will increasingly
have to live their own lives and the plaintiff will
be forced to become more independent. In any case her needs will be less when
the last of the children leave the house. It was alleged by the plaintiff that
she received about 1000 hours of domestic assistance
a year or 20 hours a week
up to the time of trial including, no doubt, during the period of her most
acute need immediately after
the injury. As it seems to me, her past and
future needs would more realistically be close to an average of 10 hours a
week or about
1_ hours a day. Up to trial, the amount involved calculates to
$37,500 using $15 per hour as the relevant rate of pay for the assessment.
Using the 3% tables for a life of say another 25 years again at the commercial
rate of around $15 per hour, the lump sum arrived
at is $138,300 which should
be discounted for contingencies. I think that the proper amount under this
heading, past and future,
is $140,000 in total.

  

   24. The plaintiff claims also a loss of superannuation entitlements of
about $45,000. This claim assumes
that the plaintiff would have worked to age
65 and that the plaintiff's superannuation fund would have earned 8-9% a year
in that
period. In my view, both assumptions are too high. I allow $25,000
under this heading.

  

   25. The Fox v Wood component (tax
paid on compensation) is agreed at
$11,000 (actually 55 less). Past medical, chemist and physiotherapy expenses
are agreed at $112,000.
Although physiotherapy does not appear to be helping
the plaintiff, and the medical evidence suggests that no treatment is
available
which is likely to improve her condition, an amount of $10,000
should be allowed for future such expenses.

  

   26. Finally, general
damages were in substance agreed to be of the order of
$50,000 which I think is a reasonable sum in all the circumstances.

  


  27. In summary then:-

  

  

   Loss of wages - past 167,000 - future 140,000

  

   Griffiths v Kerkemeyer 140,000

  

  
Loss of superannuation 25,000

  

   Fox v Wood 11,000

  

   Medical, chemist, physiotherapy - past 112,000 - future 10,000


 

   General damages 50,000

  

   $655,000

  

   Interest to trial 240,000

  

   $895,000

   28. There will be a verdict
and judgment for the plaintiff in the sum of
$895,000 to be shared equally between the defendants which will also equally
pay the
plaintiff's costs as assessed or taxed.