Re Maryanne George v the Commonwealth of Australia [1984] FCA 409 (19 December 1984)

FEDERAL COURT OF AUSTRALIA

Re: MARYANNE GEORGE
And: THE COMMONWEALTH OF AUSTRALIA
No. ACT G26 of 1984
Master and servant

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Davies J.
Sheppard J.
Everett J.

CATCHWORDS

Master and servant - negligence - casual act of negligence on part of fellow employee - question of fact - no question of principle

HEARING

CANBERRA
19:12:1984

ORDER

The appeal be allowed.

The judgment for the respondent be set aside.

There be a new trial on all issues.

The costs of the previous trial be reserved to the Judge hearing the new trial.

The respondent pay the appellant's costs of the appeal.

DECISION

This is an appeal from a judgment of the Supreme Court of the Australian Capital Territory (Gallop J.) delivered on 16 April 1984. The appeal is by the unsuccessful plaintiff in an action against the defendant for negligence. The causes of action relied upon by the appellant were for breaches of the duty owed by the respondent as the plaintiff's employer to take reasonable care not to expose her to unnecessary risk of injury. Two causes of action were relied upon because the appellant claimed to have been injured as a result of the defendant's negligence in two separate accidents. They occurred on 2 August 1978 and 9 March 1979 respectively. In the alternative the appellant relied only on the cause of action based on the accident which occurred on 2 August 1978 and claimed that the injuries suffered in the second accident were a consequence of those which she had suffered in the first.

2. His Honour found against the appellant on both causes of action with the result that judgment was entered for the respondent. His Honour did not find it necessary to deal with the questions of contributory negligence, damages or the connection of the injuries suffered on 9 March 1979 with the accident which happened on 2 August 1978.

3. The plaintiff was born on 26 August 1948. In 1976 she commenced employment as a clerical assistant with the Public Service Board. She continued to be employed in the Board's office until her retirement on grounds of invalidity on 30 April 1980. Shortly before 2 August 1978 when the first accident occurred there had been a re-organization of the Public Service Board which necessitated a large number of staff being moved into new office premises. The move was carried out by the Office Services Section of the Board. The appellant was amongst those affected by the move. With the plaintiff was moved office equipment used by her in the course of her duties. This consisted of a desk, a side telephone table and a desk chair.

4. Before giving an account of the circumstances of the accident of 2 August 1978, which we propose to take substantially from his Honour's judgment, we should mention that counsel for the respondent did not accept that his Honour's account represented any more than an account of the appellant's evidence. He strongly resisted the submission made on behalf of the appellant that the various factual matters stated by his Honour were findings. We propose to put on one side for the moment such problem as arises because of those submissions. For the time being we shall proceed on the footing that the facts found by his Honour are as stated in the account given in his judgment.

5. By 2 August 1978 the move was largely completed. Not all furniture had been moved into the new office and there were files on top of the appellant's desk. But her desk, desk chair and telephone table were in position. The appellant returned from lunch between 1.00 p.m. and 2.00 p.m. She answered the telephone located on her table and was taking notes of the conversation when she heard someone come in to the general office where her desk was. She heard something being put down but did not turn to see what it was. As she was speaking another telephone rang in a different part of the office. The appellant concluded her telephone conversation and went to answer the second telephone.
His Honour continued:-

"When hurrying in a fast walk but not running

past the end of her desk, and between the
end of her desk and a side wall - a space of
about two feet - she collided with a steel
framed office chair which had not been there
a short time before when she had moved to
answer the telephone on her side table."

6. The chair had presumably been placed where it was by the person who had come in to the office while she was talking on the telephone. The appellant did not see the chair before she struck it. She conceded that there was nothing to obscure her vision. She hit her right knee on a corner of the steel frame of the chair. She stumbled and hopped to answer the other telephone. Her knee was extremely painful. It had begun to swell. She reported the injury by telephone to the first aid officer. In the course of her evidence the appellant identified a sketch showing the layout of the office at the time of her accident. The sketch is not as clear as it might have been but suffices to show, at least generally, the position of the various articles of furniture which we have mentioned and also the two telephones. His Honour proceeded upon the basis that the drawing was reasonably accurate. It did not contain measurements and was not to scale.

7. The sketch showed that the desk and the telephone table were placed at right angles to each other and the desk chair in a position which would enable the appellant to sit at either the desk or the table. The desk was placed lengthwise along the room. The appellant's means of access to her chair was by way of a space of about two feet between the end of the desk and the wall.

8. The telephone which rang during her original telephone conversation was on a table in another part of the office diagonally across from hers. Her natural path to it was through the gap of about two feet between the desk and the wall and then in a diagonal direction across to the other side of the office. The chair with which the appellant collided was placed against the wall not very far from the end of the desk, but it did not obstruct the space between the end of the desk and the wall. His Honour made no finding nor assumption as to the distance which the chair was from the desk, but of this matter the appellant said that "it could have been as close as one foot, it could have been as close as adjacent". She said that she did not recall. However the general picture painted by the appellant's evidence, particularly if one has regard to the sketch, is that the chair was reasonably close to the end of the desk. As it is positioned on the sketch it would tend to be across the appellant's path to the other telephone.

9. There was no evidence as to the happening of the accident except that of the appellant. Her case was that the chair was placed where it was without her knowledge and that in her hurry to answer the telephone she did not see it. Through her counsel she submitted that she stumbled either because of a casual act of negligence on the part of a fellow employee or because the respondent did not provide her with a reasonably safe place in which to work or safe means of access to and from her work.

10. The appellant's evidence in relation to the second accident was that on 9 March 1979 she was working in an upstairs office, not in the building where she had been hurt the previous year, but in another building in which she had previously been employed. It was part of the appellant's duties to deliver files and correspondence to other buildings occupied by the Public Service Board. The appellant was required to make deliveries on an average of 5 to 8 times per day to buildings known as Block 2 and the Kings Avenue building. Her knee would become sore after doing a number of messages each day. At the end of the day she needed to rest because the knee was sore and swollen. She said the knee would give way about once a day.

11. The appellant provided the respondent with a certificate by a Dr. Armstrong dated 16 August 1978. He said that he was the appellant's doctor and that she had sustained a blow to the medial side of her right knee at work on 2 August 1978. Dr. Armstrong said that it was medically advisable that her work be primarily sedentary and that she did very little walking or climbing of stairs until the condition settled.

12. The appellant gave evidence that she had told her superiors of her problems with her knee. Two were involved, a Miss Goode and a Mr. Parkinson. Miss Goode was the appellant's superior until January 1979 and Mr. Parkinson her superior thereafter. Miss Goode gave evidence, Mr. Parkinson did not. His Honour rejected the appellant's evidence that she had complained to Miss Goode but he accepted that she had complained to Mr. Parkinson.

13. His Honour found (here no question of any assumption is involved) that on 9 March 1979 (it would appear that the date 2 March 1979 in his Honour's judgment is a mistake) the appellant spoke to Mr. Parkinson in his office. At that time she was in pain and her knee was swollen and discoloured and had just given way near her desk. The appellant said to Mr. Parkinson, "My knee is sore. I want to go home." He said, "just clear your in-tray first." The appellant did that. It involved her in taking papers to the Kings Avenue building. She went to the head of the stairs in Block 1 where she was working. It is a two-storey building without a lift. When she was at the head of the stairs her knee unexpectedly gave way and she fell down the flight of about ten steps to the landing below. The appellant suffered further injuries as the result of her fall.

14. The appellant agreed in cross-examination that she had agreed to clear her in-tray when asked to do so as she thought that she could do the job that she had been asked to do. She also agreed that she was in a better position than Mr. Parkinson to judge how good her knee was. She agreed that there was a handrail on the stairway but that she was not holding on to it at the time she fell. She agreed that she could have used the handrail if she had wished, but said that this was not her practice. She was sure that she had not tripped.

15. We have stated sufficient of the facts to come to the question of whether, upon the basis that they are correct, his Honour was right in deciding that the appellant had not made out a case in negligence in respect of either accident. There was no argument, assuming the facts to be as stated, that we are in as good a position as the learned primary Judge to make that judgment.

16. The standard of care owed by an employer to an employee is well settled. The employer has a duty to take reasonable care not to expose an employee to unnecessary risk of injury. Particular applications of this duty of care are that he must provide his employee with a safe place in which to work, safe means of access to or from his place of work and a safe system of work. The employer will also be liable for casual acts of negligence by his other employees. It is difficult to see how the present case could be put except on the basis of a casual act of negligence on the part of the employee who placed the chair where it was.

17. In order to determine whether there has been a breach of an employer's obligation or whether another employee has been negligent, it will be necessary to consider whether or not the employer himself or other servants ought reasonably to have foreseen that its or their acts or omissions might cause harm to the plaintiff. In Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 CLR 40 Mason J., in whose judgment Stephen and Aickin JJ. agreed (pp. 44 and 50) said (pp. 47 - 48):-

"A risk of injury which is quite unlikely to
occur, such as that which happened in Bolton
v. Stone [1951] UKHL 2; (1951) AC 850, may nevertheless
be plainly foreseeable. Consequently, when
we speak of a risk of injury as being
"foreseeable" we are not making any
statement as to the probability or
improbability of its occurrence, save that
we are implicitly asserting that the risk is
not one that is far-fetched or fanciful.
Although it is true to say that in many
cases the greater the degree of probability
of the occurrence of the risk the more
readily it will be perceived to be a risk,
it certainly does not follow that a risk
which is unlikely to occur is not
foreseeable.

In deciding whether there has been a breach
of the 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 in 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."

18. Shirt's case was not an employment case but that does not render what Mason J. said in relation to the question of foreseeability inapplicable to the circumstances of the present case.

19. In relation to the first incident his Honour's conclusions were as follows:-

"In relation to the accident on 2 August 1978
when she bumped her knee on the steel chair
I conclude that the steel chair had been
placed there by some member of the Office
Services Section of the Public Service Board
while the plaintiff was speaking on the
telephone. That happened, on the
plaintiff's case, a very short time before
she concluded her telephone conversation and
moved to answer the other telephone.

It was not suggested that there was anything
unusual or peculiar about the chair itself,
whether as to size, colour or anything of
that nature. It was an ordinary office
chair such as might have been expected to be
found in a Public Service office. I find
that it was in a position where one might
have expected to find such a chair. It was
plainly visible if the plaintiff had taken
the trouble to look. I reject Mr. Maguire's
submissions, very ably put on behalf of the
plaintiff, that the chair was effectively
blocking the passageway and the plaintiff
had no reason to expect it to be there.

It seems to me that the presence of the
chair for such a short time and in full view
of the plaintiff, if she had cared to look,
at least once she moved to the end of her
desk and the risk that the plaintiff might
bump the chair in the ordinary course of
walking past it could not be characterised
as an unnecessary risk or foreseeable danger
which the Commonwealth should have foreseen
and taken precautions to avoid injury to the
plaintiff by her doing so."

20. In our opinion a critical question is whether his Honour was correct in finding that the chair was in a position where one might have expected to find such a chair and in rejecting the submission made to him that the chair was effectively blocking the appellant's passageway. Upon the basis of his Honour's earlier findings or assumptions, we find ourselves unable to agree with his conclusions as to its position. The sketch plainly shows that it was blocking, at least to a not insubstantial degree, the appellant's pathway from her desk to the telephone on the other table and indeed to the doorway which led from the office. The sketch plan and the appellant's evidence are consistent in this respect.

21. His Honour's next conclusion was that the chair was plainly visible "if the plaintiff had taken the trouble to look." In our opinion that begs the question. Her case is that she did not see the chair because of her need to hurry across the room to the other telephone. Again, that appears to have been his Honour's primary finding or assumption upon which he decided this question. It seems to us that a person in the position of the appellant might easily fail to see a chair placed so recently where it was while she was preoccupied in dealing with one phone call and concerned to endeavour to deal with another away from her own area. His Honour's use of the expressions, "if the plaintiff had taken the trouble to look," and, "if she had cared to look," confirm the earlier impression given by his account of the facts that the appellant did not see the chair. In the circumstances in which she found herself it seems to us to be an unwarranted criticism of her to reflect upon her not having seen the chair when one takes into account the circumstances in which she was discharging her duties and the circumstances in which the chair came to be placed where it was. In any event those matters seem to us to be more relevant to the question of contributory negligence than to any question of negligence on the part of the respondent or relevant to the question of contributory negligence than to its servants or agents.

22. That leaves the most critical question. Ought the employee who placed the chair where it was reasonably to have foreseen that the appellant might bump into the chair and do herself harm? We have not found this an easy question to resolve. After all the employee did place the chair in plain view of the appellant. If she had walked normally and not been distracted by her duties, she would undoubtedly have seen it. Ought the employee who placed the chair where it was, and thus the respondent, reasonably have foreseen that the appellant might not see the chair because of additional circumstances, such as the undue pressure under which she was immediately before the accident occurred? The exercise is a judgemental one and we do not pretend that the answer is straightforward. Nevertheless, having reflected on the matter, we have reached the conclusion that the employee should have foreseen the risk of harm to the appellant and was therefore negligent. We would accordingly allow the appeal in sofar as it concerns the cause of action based on the first accident.

23. We turn to the cause of action based on the accident which occurred on 9 March 1979. In our opinion his Honour's conclusions ought not to be disturbed. There are two principal reasons why we are of this view. The first is that the appellant did not establish that if she had not continued working the injury would not have occurred. It was incumbent upon her to persuade the Court that if she had gone home as she apparently wished to do, the accident would probably not have occurred. Her journey home would have commenced with the descent of the very stairs from which she fell because her knee gave way. It is true that she was carrying papers which she would not have been carrying if she had left to go home, but the evidence does not suggest that these made any significant difference to her ability to negotiate the stairs or to her knee giving way. She was not using the handrail but that was her invariable practice when descending the stairs whether she had papers or not.

24. Our other reason for agreeing with his Honour in relation to this cause of action stems from a consideration of the appellant's conversation with Mr. Parkinson on the day of the accident. It was putting a premium on his judgment to make him the judge of how fit or otherwise the appellant was to continue with her work. Furthermore, it seems to us that there is a question as to whether his request to her to clear her in-tray before she left was an instruction or simply an enquiry as to whether or not she might do that before she went home. Just how difficult Mr. Parkinson's position was is perhaps brought out by a consideration of a report of Dr. Arnold Mann who saw the appellant for medico-legal purposes. In his summary Dr. Mann said that the appellant was difficult to assess and that it was distinctly possible that there was a voluntary element in her symptoms.

25. It follows that, if the appeal had been based only on a challenge to his Honour's conclusions concerning the second cause of action, we would have dismissed it.

26. The next question is to determine whether we should enter judgment for the appellant in respect of her first cause of action or send the matter back to the Supreme Court for a retrial on all issues. Counsel for the respondent strongly contended for the latter course, principally because there had been very substantial challenges to the appellant's credit at the trial. In his submission his Honour had not found it necessary to deal with these challenges because of the view he took of the appellant's case. That is why, in his submission, his Honour did not make findings but, rather, proceeded to assume that the facts were as the appellant said. His Honour's view was that, even if they were, she should fail.

27. In all the circumstances we have decided that there should be a new trial on all issues. Our reasons for that conclusion depend partly upon the matters relied upon by counsel for the respondent and upon other factors as well. There is first the question of contributory negligence. Unless we were clearly of the view that there was no contributory negligence we would not ourselves feel comfortable about assessing the relative degrees of fault of the appellant and the respondent. We make it clear that we do not indicate by that statement that we are necessarily of the view that there was contributory negligence. We have no view one way or the other. Then the appellant's claim for damages is complex. Counsel for the respondent submitted before the learned primary Judge that the appellant was grossly exaggerating her symptoms and that a back condition from which she claims to suffer was not caused, if it existed at all, by either accident. In our opinion, the Judge who will hear the matter again ought to have before him the whole of the evidence and the ability to decide all questions whether of liability or damage. A consequence of this will be that the appellant, notwithstanding what we have earlier said, will remain able to rely on her second cause of action, but that must follow if the new trial is to be on all issues.

28. The orders we would make are as follows:-

1. The appeal be allowed.
2. The judgment for the respondent be set aside.
3. There be a new trial on all issues.
4. The costs of the previous trial be reserved to the Judge

hearing the new trial.

5. The respondent pay the appellant's costs of the appeal.