Barrett v State of Tasmania
[2002] TASSC 101
•15 November 2002
[2002] TASSC 101
CITATION: Barrett v State of Tasmania [2002] TASSC 101
PARTIES: BARRETT, Penelope Kay
v
TASMANIA, STATE OF
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 1713/1995
DELIVERED ON: 15 November 2002
DELIVERED AT: Hobart
HEARING DATES: 9 - 12, 15 October 2001, 11, 12 April 2002
JUDGMENT OF: Crawford J
CATCHWORDS:
REPRESENTATION:
Counsel:
Plaintiff: P W Tree and B C Hilliard
Defendant: P Turner
Solicitors:
Plaintiff: Watling Roche Lawyers
Defendant: Director of Public Prosecutions
Judgment Number: [2002] TASSC 101
Number of Paragraphs: 50
Serial No 101/2002
File No 1713/1995
PENELOPE KAY BARRETT v THE STATE OF TASMANIA
REASONS FOR JUDGMENT CRAWFORD J
15 November 2002
The plaintiff sued the defendant for damages for personal injuries suffered in the course of her employment by the defendant. The only evidence of the accident came from the plaintiff and although she reconstructed some of the detail, I accept the essence of her explanation for its immediate cause.
Her confidently expressed belief that it occurred on a Sunday was wrong. It was an admitted fact on the pleadings that it was on 9 May 1994, which was a Monday. In the statement of claim she asserted that the time of the day was 9.30am. Her evidence was that it was between 8.30 and 9.30am. In an accident report form she completed and signed on the day of the accident, she stated that it was at 7.30am that day, a fact repeated by her 11 days later in a claim form under the Workers Compensation Act 1988. Her evidence of the day of the week and the hour of the day were relevant to the question whether she was in a hurry at the time of the accident. Notwithstanding her chronological errors, I accept her evidence that she was hurrying, there being no evidence contradicting her. The time of the day was also relevant to the length of time over which water had been lying on a floor and whether the floor had been cleaned that day.
The accident was a fall, consequent upon the plaintiff slipping on a small amount of water on the vinyl floor of room G in Statton Ward in the Repatriation General Hospital at Hobart, where she was working as a level 2 clinical nurse. She was responsible that day for the four patients in room G. One was Mr Sproule, who has since died. His bed, number 27, was in a corner of the room. The head of the bed was against one wall. When viewed from the foot, its right side was about 50 centimetres or thereabouts out from the other wall. The plaintiff described the distance as probably half a metre and as a space that she could walk along without turning sideways, but nevertheless a tight fit. Mr Sproule was elderly and frail. He was unable to get out of bed without assistance, but able to do small things, such as pour himself a glass of water. At the time of the accident he was sitting in a chair on the left side of the bed in front of a bedside locker. It is possible that a table on wheels was over his lap. Each bed had a hand control for a patient to call for assistance by pressing a button. The hand control was connected by a cable to a control panel on the side wall near the corner of the room, above and to the right of the head of the bed, when viewed from the foot.
The plaintiff's evidence was that she needed a drug chart that was attached to a clipboard at the foot of bed 26 in room G, for the purpose of a doctor prescribing antibiotics for the patient in that bed. She "would have been" at the nurse's station and she went to room G to obtain the drug chart. She was in a hurry. She agreed with the defendant's counsel that she was rushing to get back to the doctor with the chart. She had lifted up the clipboard from the foot of bed 26 when her attention was drawn to Mr Sproule. She could no longer recall what he did to attract her attention, but said that he was in an agitated state. He had wanted a bottle in which to urinate and in the course of attempting to call a nurse by pressing the call button, he had pulled the end of its cable out of the socket in the control panel in the wall.
As a consequence of having her attention drawn to Mr Sproule and noticing that the end of the cable had come out, the plaintiff moved with the intention of reinserting its plug into the wall socket. She had the drug chart in her hand. She walked briskly to pass the foot of the bed and to go down its right side, in the confined space between the bed and the wall. She slipped and landed heavily on her bottom on the floor. Having fallen, she realised that she had slipped on water. Her oral testimony was that the water was at the foot of the bed, but a sketch plan drawn by her shows that it was alongside the bed, about 30 centimetres or so from the foot. If that is so, it follows that she had only just commenced to make her way down the side of the bed when she slipped. The source of the water was either a water jug or drink container that appeared to have been knocked over by Mr Sproule. The vessel was lying on its side. Water was on the floor on Mr Sproule's side of the bed and underneath the wheeled bedside table, and had flowed under the bed to the point where she slipped on it. She described it as enough to make the floor wet but not a great puddle.
She said that her shift had commenced at 6.50am and that given that Mr Sproule was in his chair it was likely, although she no longer has any memory, that she had got him out of bed, showered him and placed him in his chair with the table on wheels over his lap. To do that she would also have had to dress him after the shower. I find that it is more likely than not that the fall occurred at about 7.30am because that time was recorded by the plaintiff later that day in the accident report form. It follows that the water must have been spilled by Mr Sproule very shortly before she slipped on it, no more than a few minutes earlier, for he could not have been in the chair for very long at all.
Counsel for the defendant submitted that it should be found that the plaintiff slipped on the water at a point further along the side of the bed towards the corner of the room than claimed by the plaintiff. He based the submission on the statement in a report by a consulting engineer, Robert Nicholson, that the plaintiff had her hand raised in anticipation of fixing the buzzer. I am not persuaded by Mr Nicholson's statement that I should find that she was at any particular point. I find that it was at a point past the foot of the bed, possibly up to halfway along it, but before she reached the control panel in the side wall. I cannot be more precise in my finding, which allows for a range of about a metre, nor do I think that it matters.
The floor was sheet vinyl. Its brand name was Armalon. I accept the evidence of Anthony Barrett, who at the time of the accident was the manager of Environmental Services at the Repatriation Hospital, that when he was first employed there in 1972 most of the floors of Statton Ward, and of the rest of the hospital, were vinyl. The bathroom and toilet areas had terrazzo. The hospital was then owned and operated by the Commonwealth Government. In 1990 the Commonwealth refurbished Statton Ward. Sheet vinyl was installed in bedrooms, including the Armalon in room G, in June 1990. Carpet was put down in corridors for sound deadening purposes. Slip resistant vinyl was installed in toilets, bathrooms and showers. In 1992 the ownership and operation of the hospital was transferred by the Commonwealth to the defendant and at the time of the plaintiff's fall on 9 May 1994, almost all of the floors were those that had been installed by the Commonwealth. However, on 28 January 1994, Mrs Penny Patterson slipped and fell on sheet vinyl in a cleaners' room and suffered injury, causing her to be off work for 7½ months, and as a direct result of her fall the defendant installed a slip resistant surface on the cleaners' room floor.
The evidence established that vinyl flooring is widely used in many commercial situations, such as offices, factories, supermarkets, shopping centres and nursing homes. At the time of the plaintiff's fall, it was extremely common in hospital rooms throughout Australia. The floors of most of the Repatriation Hospital and the Royal Hobart Hospital were of that kind and since the plaintiff's accident, new vinyl has been laid at the Royal, although slip resistant material has been used for floors that are commonly wet, such as toilets, bathrooms and showers, and carpets are common in corridors. Confining my findings to hospital bedrooms, vinyl has and continues to be common to most hospitals, although what might be described as old fashioned vinyl, or polyvinyl chloride (PVC), is more frequently being replaced by a polyurethane flooring, which requires less maintenance but is similarly slippery when wet. An architect with experience of hospital floors since 1973, Michael Ganley, was not aware of slip resistant vinyl being installed in bedrooms of hospitals. In fact, there was no evidence of its use in bedrooms in any hospital. There was evidence from Justin O'Sullivan, an ergonomist and safety consultant, that a private hospital in Brisbane has carpet in all rooms.
The preponderance of evidence was that carpet in hospital bedrooms has proved unsatisfactory, certainly in public hospitals. Mr Anthony Barrett has been the manager of Environmental Services at the Royal Hobart Hospital since 1996. He gave evidence that in that year C block had about 10 carpeted medical ward rooms that became putrid, particularly because of urine spills. Efforts to clean the carpets failed to remove the smell. As a result, the carpets were replaced by vinyl. Similar evidence was given by Mr Geoffrey Howard, the manager of Facilities and Engineering Services at the Royal Hobart Hospital. He said that in about 1992 or 1993, carpet was installed in the bedrooms of the central block wards, but it was removed after only 12 months. Odours caused by the incontinence of many patients, especially in the warmer weather, became unbearable. Carpet in the foyer area of the Royal was also replaced by vinyl. It was looking filthy and absolutely disgusting in the main entrance, with stains that could not be removed. There is no longer carpet in any bedroom. Mr Carl Lunardi, the manager of House Services at the Launceston General Hospital gave evidence to the same effect. When the new hospital complex was built in Charles Street it had floors that were predominantly carpet, but since then a process of carpet replacement by vinyl has been ongoing. All of the carpet has been removed from bed and clinical areas. Although it has acoustic advantages, its maintenance is more labour intensive and expensive than flat floor surfaces such as vinyl, spills upon which are easily mopped up.
The hospital's dress code required nurses not to wear leather soled shoes. The plaintiff's shoes had a non-slip rubber sole with a good tread. They were suitable and complied with the hospital's dress requirements. When wearing those shoes the vinyl floor in room G was quite safe if it was dry.
The Armalon brochure in evidence warns that "all smooth flooring products have an increased tendency to become slippery when wet". It was the evidence of a consulting engineer, Robert Nicholson, based on a National Bureau of Standards Research Paper RP1879, that a coefficient of friction of less than 0.4 should be considered slippery and dangerous for a floor. Much will depend, of course, on whether the walker is unaware that the particular floor is in a slippery condition. The evidence of Dr Neil Adams, a consultant in ergonomics and safety management, was that a floor surface is considered reasonably safe for walking if it has a static coefficient of friction exceeding 0.5 or a dynamic coefficient of friction exceeding 0.4, the latest standard accepting 0.4 as satisfactory. The danger of a wet floor is markedly reduced if the walker is aware of the slipperiness of the surface. Information provided by Mr Nicholson reveals that surfaces such as smooth terrazzo, smooth quarry tiles, white oak timber (waxed and polished), linoleum, rubber tiles (waxed and polished), asphalt tiles (waxed and polished) and smooth vinyl have a coefficient of friction when dry exceeding 0.4 for rubber soles, but in every case the coefficient is markedly reduced if the surface is wet, varying down to as low as 0.16 for linoleum up to 0.32 for rubber tiles with a polished water emulsion wax. White oak timber, waxed and polished, has a coefficient of friction of only 0.19 when wet and for smooth vinyl tests have revealed it to be 0.22.
Wet tests were conducted on vinyl floors in the Repatriation Hospital by a mechanical engineer, John Dimopoulos, on 28 January 1998, nearly four years after the plaintiff's accident. Only coefficients of friction when the floors were wet were ascertained. In Bisdee Ward the average coefficient was 0.18 and in Statton Ward it was 0.26 near where the plaintiff fell. The difference might be accounted for by the fact that the floor in Statton Ward had not been used for 12 months and was not as clean and shiny as the floor in Bisdee Ward. However, I emphasise that shininess does not equate to slipperiness. On 1 November 1999 friction tests were performed on a dry vinyl floor at the Repatriation Hospital by Dr Adams. The floor where the plaintiff fell no longer had vinyl on it, but Dr Adams tested the same type of vinyl in a storeroom. After being swept with a dry mop, its coefficient of friction for rubber averaged 0.88. Once the floor had been buffed to a relatively high shine with an Aussie Rotobic buffing machine, the coefficient was virtually the same, 0.89.
It will not be surprising to the reader to learn that Mr Dimopoulos was engaged by the plaintiff and Dr Adams was engaged by the defendant, for the former did not test the floor when dry and the latter did not test it when wet. Their tests enable me to find that the vinyl was quite safe for the plaintiff to walk on in rubber soled shoes, so long as it was dry, but it was quite hazardous when wet if she was not aware that it was wet. My findings in this regard would generally be valid for all vinyl floors, other than those manufactured to be slip resistant. The defendant's witness, Dr Adams, accepted that when walking normally on rubber soled shoes a person could slip and possibly fall when stepping from an area of vinyl floor with a coefficient of friction as high as 0.9, onto a section of wet vinyl floor with a dynamic coefficient of friction as low as 0.26.
On the pleadings it was an agreed fact that it was a common occurrence for water and other liquids to be spilt on the floor of the hospital. In an answer to an interrogatory, the defendant admitted that it was common knowledge amongst nurses that spillages onto floors occurred from time to time in all the wards. In that connection it should be understood that a "ward" is not a term that is confined to bedrooms. It extends to a section of a hospital and may include entrances, corridors, offices, storerooms, kitchens, bathrooms, toilets, operating theatres and other spaces
Much reliance was placed by the plaintiff's counsel on the provisions of Standards. The one mainly relied upon was the joint Australian and New Zealand Standard 3661.1:1993 for slip resistance of pedestrian surfaces. It was first published on 11 October 1993 and in my opinion it would be imposing too high a standard of care on the defendant to expect that a great many of its hospital vinyl floors throughout Tasmania should have been replaced to comply with the Standard by the time of the plaintiff's fall only seven months later. However, that consideration is of no relevance, because the floor in room G complied with the Standard in any event. Clause 5.1.2 provided that when dry, the surface should have a mean coefficient of friction of not less than 0.4, with no specimen in a particular testing sample having a coefficient of less than 0.35. The floor in room G plainly complied with that Standard. Clause 5.1.1 required a similar coefficient of friction for wet tested pedestrian surfaces, but the Standard only required the test to be used for "wet areas", defined as "all external pedestrian areas plus those internal pedestrian surfaces that are normally wet during use". An argument advanced for the plaintiff was to the effect that "normally" means sometimes or occasionally at isolated points. Her counsel submitted that evidence established that the floor of room G was normally wet, but it did no such thing. It established merely that from time to time an isolated part of it might become wet from one of a variety of causes, such as the spillage or splashing of water from a vessel, as in this case, or from the hand basin in room G, or spills of urine or other bodily fluids of patients. If it occurred, the spill was quickly cleaned up. The evidence also established that throughout hospitals, rooms such as toilets, bathrooms and showers are treated as wet areas and can normally be expected to have slip resistant floors, but the same cannot be said for bedrooms.
The plaintiff vaguely recalled that she had previously slipped on vinyl in Statton Ward but had not suffered an injury as a result. She could not recall when she slipped, the number of times she slipped, nor whether the floor was wet or dry on any such occasion. Most spills on floors occurred on relatively small isolated areas. Although she accepted that under normal circumstances it would be most unusual to have fluids or liquids on the floor of room G, she claimed that it did nevertheless happen on numerable occasions. She said when she had used the hand basin installed against the wall of the room, between beds 26 and 27, water had splashed out. She did not claim to have seen it happen with other people, and her evidence should be understood in the light of other evidence given by her that if she saw water or other fluids on the floor she would clean it up immediately. She also explained that accidents happened such as a patient urinating on the floor, a urine bag might leak, a glass might be knocked over, a patient might vomit or bleed and water might come onto the floor as a result of a vase being topped up with water.
On 28 January 1994, 14 weeks before the plaintiff's accident, Mrs Patterson, who was a cleaning supervisor, fell in Statton Ward, although not in one of the bedrooms. She did not specify where it was, but other witnesses referred to it as the cleaners' or cleaning room and the sluice room. The plaintiff's evidence was that materials were kept there that included cleaning chemicals and supplies, mops and buckets, and that there was a sluice with a tap above it. Mrs Patterson's description of her accident was that she moved a drum and failed to notice that some liquid had come out underneath it. She did not say what the liquid was. She turned to talk to someone and slipped. The hospital's quick response to her accident was to replace the sheet vinyl floor in that room with a slip resistant one. As a result of the fall she was thereafter off work for about 7½ months.
Mrs Patterson gave evidence that floors became wet when damp mopped but it went without saying that a warning sign was put out on such occasions. She also said it was not unusual for water or other liquids to be on floors in Statton Ward and that whenever a cleaner was informed of or saw a spillage it was attended to straight away, because it was a potential hazard by being slippery and risking infection.
The plaintiff relied on a number of staff accident and incident report forms that had been completed by staff at the hospital with respect to falls that occurred on various dates on floors throughout the hospital over a period of about two years preceding her fall, as evidence that the hospital's administration had knowledge of the risk of slipping on wet vinyl floors. Sixteen report forms are in evidence. The plaintiff's counsel did not seek to rely on one because it was the plaintiff's report of her own accident, nor on two others that were subsequent to it. He expressly disclaimed reliance on three other reports. A further report was of a staff member slipping on faeces when pushing a patient on a toilet chair. There was no evidence that the nature of the floor was material to that incident. Of the remaining nine reports, none of them concerned falls in a bedroom. With one possible exception, none purported to concern falls in Statton Ward. That possible exception was a report of a fall in a "hallway outside x-ray" on 19 February 1993, that was said to have happened when a ward secretary, whose normal work location was "Statton", "slipped on the wet floor when called back to x-ray". Of those nine reports, there was evidence that in six cases the floor was made of vinyl, and in two cases a witness, Mrs Hester Van Niekerk, expressed her recollection as respectively "I've got a feeling" and "I think we were still" vinyl. Notwithstanding the deficiencies in the reports that I have identified, they do support a finding that the hospital's administration knew or ought to have known that sheet vinyl is slippery when wet and confirms what I stated earlier, that vinyl is quite hazardous when wet if the user is unaware that it is wet.
I record that the plaintiff's counsel also relied on Standard 3661.2:1994. It was published sometime in 1994, but whether that was before or after the plaintiff's accident and whether the defendant was or ought to have been aware of its contents, was not established.
The evidence established that in the years since the plaintiff's accident there has been a tendency for a newer low maintenance vinyl to be installed instead of the older and cheaper vinyl that was more common at the time of the plaintiff's fall, and on which she in fact fell. Stephen Negus, a floor covering specialist, gave evidence of a low maintenance vinyl that has been on the market for at least 10 to 15 years. The low maintenance vinyl is not to be confused with slip resistant vinyl. The manager of Facilities and Engineering Services at the Royal Hobart Hospital, Mr Geoffrey Howard, gave evidence that the modern low maintenance vinyl costs about $50 per square metre, supplied and laid, whereas slip resistant material costs about $80 per square metre. Mr Negus' evidence was that the older and cheaper vinyl, such as the floor upon which the plaintiff suffered her accident, was "far cheaper" than the modern low maintenance vinyl, but its cleaning is more labour intensive and it is more costly to maintain than the low maintenance vinyl. Mr O'Sullivan's evidence was that on testing in wet conditions sometime prior to 12 November 1992, an Altro brand of slip resistant vinyl had a coefficient of friction averaging 0.5, but it costs about twice as much as ordinary vinyl. He had seen flooring of that kind in supermarket fresh produce and delicatessen areas and in healthcare facilities he had seen it in bathrooms and near washbasins. He made no claim to have observed it in bedroom areas. Mr Anthony Barrett explained that slip resistant vinyl is more difficult to clean than normal sheet vinyl, a factor that I infer increases the cost of the material for institutions. He said that it is more difficult to get dirt out of it. A mop might remove dirt from sheet vinyl, but it would not necessarily do so on slip resistant vinyl, which often requires scrubbing.
Slip resistant surfaces can be abrasive like sandpaper, whereas other types are slip resistant because they are textured. The plaintiff described the slip resistant floors in the hospital's wet areas, such as the bathrooms, toilets and cleaners' and pan rooms, as having an abrasive surface. She accepted that elderly patients moved a little more slowly when shuffling across it. Mr Anthony Barrett's evidence was that slip resistant vinyl was "definitely harder" for patients to walk on than other vinyl. He had observed that to be the case with slip resistant floors installed in Statton Ward and at the Royal Hobart Hospital. The extra coefficient of friction of slip resistant floors means that feet cannot move as freely over it. A shuffling person on a walking frame has extreme difficulty, he said.
There was no system in place for the detection of spills, such as one that required a person or persons to be continually moving around the various wards and rooms to inspect floors and ensure that any spills were promptly cleaned up. On the other hand, it was accepted by witnesses that all staff had a responsibility to ensure that a spill was cleaned up immediately upon its detection. For example, the plaintiff's evidence was that it was a requirement of her job to clean up a spill such as the one in this case. If she saw it she would attend to it, because it was a hazard. That was the practice expected of everyone who worked on the ward. If she could do it herself she would do so, but if it was too big a job for her or if she was too busy at the time, she would contact a cleaner to attend to it. The cleaners were responsive to calls, she said. Mrs Van Niekerk, who was assistant Director of Nursing at the hospital when the plaintiff suffered her accident, confirmed that staff were very aware that vinyl floors were very slippery if water spilled on them. Mrs Patterson said that if cleaners were notified of a spill, they were required to clean it up straight away because it was a hazard. I am satisfied that the system for cleaning up spills was appropriate and could not reasonably have been improved. I also find that as the spill in this case could not have occurred more than a few minutes before the plaintiff's accident, it is most unlikely that it would have been detected any earlier, whatever reasonable system for detection had been in place.
About once a year, usually at the end of the year when individual wards could be closed down because of a reduced number of patients, the sheet and tile vinyl floors of Statton Ward, such as the one in room G, were stripped and resealed. Mrs Patterson's evidence was that it occurred at the end of December 1993 or early January 1994, which was about five months before the plaintiff's fall. All furniture was removed and a floor stripper was applied with a mop. A buffing machine then agitated it to make a slurry. The old polish or seal was taken off the floor by the slurry, which was then mopped up. The floor was thoroughly washed with clean water, allowed to dry and then buffed. Following that three to four coats of a metalised sealer or seal were applied to the floor, using a mop and bucket technique. Each coat was allowed to dry before the next one was applied. Some witnesses seemed to use the terms "sealer" and "polish" interchangeably. The sealer's brand name was Glazer. I accept the evidence of Mr Anthony Barrett in that regard. Its purpose was largely to protect the vinyl. When the work was finished, the floor had a good shine to it. The shine was maintained throughout the year by daily buffing. Over the passage of the year, the coats gradually wore down through wear and tear, not so much around the edges but particularly in high traffic areas.
There was a daily cleaning regime for such vinyl floors which to the extent I will first explain, was not in dispute. Every day they were either vacuumed or dry mopped to remove loose debris and the like. The floors were then mopped with a mixture of hot water and detergent. When wet, hospital requirements were that signs warning that the floor was wet were to be put out. Once the floors had dried, an electric polisher (often referred to in evidence as a buffer), usually fitted with a rotating bassoon brush that had very strong hair like material, buffed the floors. The purpose of buffing was mainly cosmetic, to keep a shine on the floors. Mr Anthony Barrett explained that bedside lockers were moved to mop under them, but not all the floor was buffed every day, just the major walk areas. For example, the floor underneath a locker or bed was not buffed every day because there would have been no wear there. It was Mrs Patterson's evidence that floors were buffed nine days out of ten.
The evidence established a particular need in the hospital, that was satisfied, to keep floors very clean. It also established that the vinyl floors of the hospital were regarded by staff, with some pride, as being shinier than those of the Royal Hobart Hospital and that cleaning staff endeavoured to keep them that way. However the evidence also established that a dry vinyl floor that is shinier than another will not necessarily be more slippery, that is to say that shininess does not equate to slipperiness. Dr Adams gave evidence to that effect as did other witnesses. He said that it is a common misperception that because a floor looks shiny it is therefore slippery. He explained that some waxes and polishes on the market give a very glossy appearance but actually improve the slip resistance because of the microstructure of the substance. There was no evidence that a wet vinyl floor that is shinier than another of the same kind is more slippery, but in an answer to a question about that, Mr Dimopolous said that usually the smoother the surface, the more slippery it is. To some extent that may have been evidenced by his tests of vinyl when wet in Statton Ward and Bisdee Ward on 28 January 1998. The mean coefficient of friction for the Statton vinyl was 0.26 and for Bisdee vinyl it was 0.18. He accounted for the difference from the fact that he had been informed that the Statton vinyl had not been regularly cleaned over the previous 12 months and from his observation that it was relatively dusty and dull in appearance compared to the vinyl he tested in Bisdee. To what extent the difference in mean coefficients was accounted for by dust and by shininess respectively, cannot be ascertained by me. In any event, the tests established that when wet, the vinyl floors of both wards were slippery. I add that it was the evidence of Mr O'Sullivan that if a surface feels smooth, it is likely to be slippery when wet, but it does not have to be glossy to be smooth. To a similar effect was the evidence of Mr Anthony Barrett when comparing a newer product, such as a low maintenance vinyl marketed as Accolade, and an older sheet vinyl, such as Armalon. He pointed out that although the low maintenance vinyl is not as shiny as sheet vinyl, it is probably just as slippery when wet.
An important issue concerned what was referred to as the practice of spray buffing of vinyl floors in the course of the daily cleaning regime. The plaintiff relied substantially on the evidence of Mrs Patterson, with which I will deal in due course, in an endeavour to establish that the place on the floor where she slipped and fell had been made more slippery by spray buffing. However I will refer first to the evidence of Mr Anthony Barrett concerning the subject.
Mr Barrett explained that spray buffing involved the use by cleaners of a spray bottle, or atomiser. In the course of using an electric polisher (frequently referred to at the trial as a buffer), a cleaner would spray a substance from the bottle to remove dirt from the floor. He described the substance as an aromatic, pink detergent that came in a 25 litre bottle. It was called Spitfire and was manufactured by a business called Research Products. The purpose of spraying it was not to polish, but to clean, by removing marks from the floor that had not come off with the mopping. As I understood his evidence, he was describing spot cleaning, that is to say, the cleaners did not spray the Spitfire across the entire floor, but applied it where necessary to remove a particular mark. Once sprayed on the floor, it was buffed over with the polisher. He said that Spitfire was specifically made for use by spraying onto floors and then buffing.
In his evidence-in-chief, Mr Barrett explained that spray buffing with Spitfire was a common practice in the hospital until it stopped in the mid to late 1980s when the product ceased to be made. However in cross-examination he said that the product went off the market in about 1992 and that it was then that spray buffing ceased. Counsel for the plaintiff submitted that the change in Mr Barrett's evidence revealed him to be an unsatisfactory witness and one begrudging to provide information that he perceived might be adverse to the defendant's interests. However I did not gain that impression from Mr Barrett at all, and believe that he was endeavouring to give his honest recollection. He volunteered that it was in 1992 and not in the 1980s when the product went off the market, and he was not under pressure from the plaintiff's counsel when he did so.
Mrs Patterson was employed by the hospital as the cleaning supervisor of domestic staff on Statton Ward. When she worked, she was responsible for two other cleaning staff on the ward. They worked day shifts only, from 7am until 3.30pm. Her evidence was that, generally speaking, they would clean the floors, starting with those of the intensive care unit and finishing all the floors by about 10am. Nine times out of ten, the floor cleaning included buffing, but sometimes that was not done. Mrs Patterson commenced her employment at the hospital on 15 February 1993 and suffered her fall and was injured on 28 January 1994. Thereafter she was off work until after the plaintiff's accident on 9 May 1994. Accordingly, she could only speak relevantly of her observations and experience at the hospital between 15 February 1993 and 28 January 1994.
It was Mrs Patterson's evidence that spray buffing was a practice of two cleaners when she commenced her employment and she regarded it as an unsafe one. The two cleaners were Scott Pidgeon and Michael Donovan, and she said that the late Kathy Hinds encouraged the latter in it. She described the practice as one where, after vacuuming and mopping, the cleaner used the atomiser that was kept hanging on the handle of the polisher, to apply a spray across a small area, buff over it, spray another area and buff over it, and continue in that way until the whole room was done. Her evidence concerning the substance that was used was unconvincing. At one point she referred to it as "the polish that they use when you are stripping", which would suggest Glazer. Shortly after she said components of the spray were a detergent or an antiseptic, the polish and sometimes water. A little later she said two or three brands of polish were used in the spray bottles. However, in cross-examination she conceded that she did not see what was put into the spray bottles, at the same time maintaining her assertion that it was polish because the sprayer was clear. If it was, then it was not Spitfire, which Mr Barrett said was pink. She then agreed that the polish she was referring to was called Nu-Polish, which I understood to be one brand of polish. I accept Mr Barrett's evidence that Glazer was the sealer or polish used on the floors annually, and therefore not Nu-Polish, and that it continued to be so used until 1996. I therefore have difficulty in making a finding from Mrs Patterson's evidence as to what may have been in the spray bottles to which she was referring. I add that at times when she was giving evidence I suspected that she was displaying a bias for the plaintiff. Although that damaged her credit, ultimately the plaintiff's case must fail even if I accept the evidence of Mrs Patterson.
She said that her concern about the practice was that until polish has dried and hardened, it is slippery and quite dangerous. She explained: "We needed to have at least 12 hours before people could actually walk on the floor to give it a hardened surface. So once you actually ¾they sprayed the bottles people walked on it straight away. And that's why I thought it dangerous".
I mention evidence of a cleaning instruction manual, more formally described as the Environmental Services Procedure Manual that according to Mr Barrett, was written in 1987 or 1988 and set out a procedure for spray buffing of floors. He said that once the practice had ceased in about 1992, the manual was not relevantly edited to remove the reference to spray buffing. He added that the contents of the manual were largely ignored, in practice. On the other hand, Mrs Patterson's evidence was that the only references in the cleaning manual to spray bottles was about using them in showers and hand basins, and that the stipulated procedure for the daily cleaning of vinyl floors was that they were only to be washed, vacuumed and buffed. The manual was not tendered and I can have no confidence making a finding as to its relevant contents without reading it for myself. In any event, I am not persuaded that the contents of the manual are material when determining the outcome of this case.
The observations of Mrs Patterson of the spray buffing practice were made when she commenced to work at the hospital early in 1993. Her evidence was that she instructed the two cleaners employing it, Mr Pidgeon and Mr Donovan, to cease the practice and she told Mrs Hinds that it was to cease. Mrs Patterson did not get on very well with Mrs Hinds, who after a few days transferred to other wards at her request. Mrs Patterson appeared to accept that after some initial resistance from them, she no longer witnessed Mr Pidgeon or Mr Donovan engage in the practice of spray buffing. In examination-in-chief, she conceded that when she was working with them, the spray bottles were no longer hanging on the handle of the buffer, although she referred to returning to work after time off, finding the bottles hanging on the machine, and throwing them out. In cross-examination, she said that she did not witness Mr Pidgeon use a spray bottle after she instructed him not to do so, and she accepted that she did not see Mr Donovan use it when she was in charge of him. Although she claimed to observe some evidence that spray buffing did take place after she had initially instructed that the practice cease, her evidence in that regard was non-specific with respect to times to the extent that I could not safely find, for example, that there was any spray buffing after the annual floor cleaning took place at about the end of 1993, or early 1994, less than five months before the plaintiff's accident. There was no evidence that any person spray buffed in Mrs Patterson's time, other than Mr Pidgeon and Mr Donovan.
The plaintiff also gave evidence of having seen a person, when operating the polisher, spraying a solution from a spray bottle onto the floor. However she accepted that she had not taken much notice of it. She was not specific as to when she observed it. She was unable to say what the substance was, how frequently it was used, or whether it was only sprayed on little parts of the floor from time to time. She accepted that it may have been done to remove particular marks. She did not observe that the floor was different to walk on afterwards. Another witness, Mrs Van Niekerk, described a vague recollection of a spray bottle hanging on the handle of a polisher and she recalled a Michael, presumably Mr Donovan, spraying with it, but she could not recall if it was associated with buffing, nor could she remember the year in which she observed it.
The evidence of Mrs Patterson only suggested that if the practice of spray buffing did continue, despite her instructions to the contrary, it was the practice of Mr Donovan only, with an arguable possibility that Mr Pidgeon may also have continued to engage in it. I accept the evidence of Mr Anthony Barrett based on the hospital's Environmental Services work roster in evidence, that on the day of the accident, the cleaner in charge of Statton Ward was Jenny Galicki and the other two cleaners were Glenn Adams and Andrea Jackman. There was no evidence suggesting that any of them used spray buffing as a procedure and there was no evidence establishing that they had cleaned the floor of room G that day prior to the plaintiff's fall. In the latter regard, the plaintiff tendered the defendant's answers to interrogatories. One asked whether on and prior to the day of the accident, the floor in Statton Ward had been "cleaned in any and if so what manner in the previous two days and at any and if so what time". The answer was that the floor was mopped and buffed on the two previous days at approximately 10am. The answer gives rise to an inference that it had not been cleaned on the day of the plaintiff's accident, prior to her fall.
The roster also establishes, certainly as a probability at the very least, that Mr Donovan had not cleaned in Statton Ward since 11 April 1994 and Mr Pidgeon had not done so since 6 May 1994. That information needs to be understood in the light of Mrs Patterson's evidence that the additional slipperiness created by spray buffing lasted about 12 hours, until the polish in the sprayed substance had hardened. The effects of any spray buffing carried out by either of them on the last day they worked in Statton Ward would not have rendered the floor more slippery on 9 May 1994 than it would have been without spray buffing.
I am firmly of the view that the evidence did not establish that it is more likely than not that spray buffing had made the floor more slippery at the point where the plaintiff slipped, at the time she did so. The evidence did not establish that spray buffing at that point was likely to have occurred there shortly before the accident, certainly not in the previous few hours or even the previous few days, let alone the previous few months. Even if there had been recent spray buffing carried out in room G, it would not necessarily have been at the point where the plaintiff slipped. That point was out of the way, being in a confined space between the bed and the wall, and was less likely to have been a high traffic area where a cleaner, if he or she was one who indulged in spray buffing, was likely to find a particular need for it.
I add that although it was Mrs Patterson's evidence that spray buffing made vinyl more slippery for at least 12 hours, she was obviously referring to the surface when dry. There was no evidence that when wet the surface was more slippery than wet vinyl that had not been subject to spray buffing.
I turn to determine the issue of liability in accordance with legal principles, particularly those stated in the well known passages in the judgment of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47, 48. I find that there was a foreseeable risk that if there was water on the vinyl floors of the hospital, including those of Statton Ward, persons walking on them would slip and fall and suffer injury as a result. I find that the hospital management must have been aware of that risk and it certainly ought to have been aware of it. Counsel for the defendant did not seek to argue that the contrary should be found. I regard it as common knowledge that if water or other fluids are on a hard floor surface such as timber, linoleum and smooth vinyl, the surface is slippery and persons are liable to slip, particularly if unaware of the floor's condition. The evidence clearly established that in any event.
The magnitude of the risk and degree of probability of its occurrence next fall to be considered. In this regard it is necessary to make the observation that the plaintiff fell on the floor of a bedroom in Statton Ward in the Repatriation Hospital and not in an entrance, corridor, kitchen, bathroom, cleaners' room or other place and it is to the environment of a bedroom and, of course, in particular room G, that I must particularly direct my attention. I repeat my finding that the floor in room G was not normally wet during use. That occurred only as an occasional event and it was usually confined to an isolated point on the floor, as was the case here. The evidence established that the hospital staff were extremely conscious that it was a requirement of the hospital, in the interests of safety and hygiene, that any spill was to be cleaned up immediately, and the staff responded to that requirement. That meant that once detected, spills were quickly cleaned up and the risk of an accident being caused by spills was removed. Having regard to the presence of patients and the movements of staff, including in particular nurses and cleaners, I am satisfied that the vast majority of spills were likely to be detected within a short time of their occurrence, a fact that will also have reduced the time during which risks existed.
The evidence also established that the risk of falling in bedrooms was less than in many other areas. Generally speaking, activities in bedrooms were less likely to result in fluids on the floor than in a number of other places in Statton Ward, such as in bathrooms and showers, the kitchen and inside entrances where rainwater might be brought into the building. Further, the evidence of other slipping accidents in the hospital, particularly the staff accident and incident report forms relied upon by the plaintiff, supported a conclusion that slipping accidents in bedrooms were uncommon. The plaintiff's vague recollection that she had previously slipped on vinyl in Statton Ward was not expressed as a recollection of slipping in a bedroom. There was in fact no evidence of anyone having fallen in a bedroom prior to the plaintiff's fall. I conclude that the evidence did not establish that slipping and falling on vinyl floors in bedrooms that were wet or had fluids or other slippery substances on them, were anything other than rare.
The evidence did not establish that if a person slipped and fell they were very likely to suffer significant injury. Nevertheless it was a foreseeable possibility. The injury and incapacity suffered by Mrs Patterson as a consequence of her fall in the cleaners' room was a prior example.
I next consider whether the hospital management, for which the respondent is responsible, breached the duty of care it owed the plaintiff. In the statement of claim there are 13 particulars of negligence, but by the time of closing addresses the breaches essentially relied upon by her could be placed in one of three categories. Her counsel submitted that the hospital ought reasonably have responded to the foreseeable risk of slips and consequent injuries by:
1replacing the sheet vinyl floor with either carpet or slip resistant vinyl;
2ensuring that spray buffing was not part of the cleaning regime for vinyl floors;
3implementing a more effective system for detecting spills.
The plaintiff has failed to persuade me that the sheet vinyl in room G, or in any other bedroom in Statton Ward, should have been replaced by carpet or slip resistant vinyl, for a number of reasons:
(a)As I have already found, the preponderance of evidence was that carpet in hospital bedrooms has proved unsatisfactory in public hospitals, by reason of its tendency to become dirty and putrid. Efforts to clean them have failed to remove smells. It is much more difficult and no doubt more expensive, to clean carpets when compared with vinyl.
(b)Throughout public hospitals in Tasmania, and I infer elsewhere in Australia having regard to the lack of evidence to the contrary, sheet vinyl or its more modern substitute, low maintenance vinyl, were regarded at the time of the plaintiff's accident as suitable and as the most appropriate of materials for use on the floors of bedrooms of hospitals. That is still the case. It was and is also regarded as suitable in many commercial situations including offices, factories, supermarkets, shopping centres and nursing homes.
(c)The defendant acquired the Repatriation Hospital from the Commonwealth in 1992, only two years before the plaintiff's accident. Two years before that Statton Ward had been refurbished, with new sheet vinyl installed on the floors of the bedrooms and other areas throughout the Ward. I infer that the sheet vinyl remained in sound condition and find that the cost of replacing it, not only in Statton Ward, but throughout the hospital complex, with either carpet or slip resistant vinyl, would have been considerable and was not reasonably justified having regard to the relatively low risk of someone being injured.
(d)There was no evidence that slip resistant vinyl has been used in the bedrooms of any hospital. From that and the evidence of what has been used, I infer that throughout the hospital industry it is not regarded as a suitable material for bedroom floors. The evidence of Mr Anthony Barrett, and my own common sense, causes me to find that it is more difficult to clean than sheet vinyl or low maintenance vinyl, a factor that I infer also increases the cost of the material for an institution. I have not ignored the evidence of Mr O'Sullivan that the manufacturer of a slip resistant product, Altro, has published information indicating that the product can be hygienically cleaned to a high standard. The evidence also established that slip resistant vinyl is more difficult for patients to walk on, significantly so for some.
(e)The sheet vinyl complied with all relevant Standards.
Concerning the plaintiff's case that the respondent breached its duty by failing to ensure that spray buffing was not part of the cleaning regime for vinyl floors, I am not persuaded by the evidence that at the time of the plaintiff's accident, the respondent was failing to do so. In other words, the evidence relied on by the plaintiff, which was primarily that of Mrs Patterson, did not satisfy me that spray buffing was a practice in May 1994. If I am wrong about that, the evidence did not establish that it was carried out at the point on the floor where the plaintiff fell at a time when its effects may have remained in existence when she fell, nor does it establish that the effects of spray buffing made the floor more slippery when wet. In other words, any such breach of duty, that I do not find to have been established, has not been proved to have caused the plaintiff to fall.
So far as the implementation of a more effective system of detecting spills is concerned, I am not persuaded that the system was inadequate. The plaintiff's counsel submitted in effect that the respondent should have employed a person, or at least required an employee, to act as a spill locator. As I understood counsel, the task of that person would have been to move around the hospital if there was one locator, or a section of the hospital if there was more than one, at regular and frequent intervals, to look for fluids or other substances that may have come to be on the floors and which may have created the risk of people slipping on them. I find the submission to be an unrealistic one, even fanciful. It was established by the evidence that all staff were well aware of the risk of falls being created by spills. The system was that if any of them was aware of a spill, their duty was to ensure that it was cleaned up without delay. All relevant evidence indicated that staff complied with that requirement. Having regard to the undoubted fact that bedrooms were regularly visited by staff, including cleaning staff and nurses, those who served meals and others, I have no doubt that the vast majority of spills were quickly detected and cleaned up. A spill locator is unlikely to have contributed much in the interests of safety and the costs of employing such a person would, in my view, have been an unnecessary and unreasonable expense.
In any event, I find that even if a spill locator had been employed, it is unlikely that the water upon which the plaintiff slipped would have been detected by a member of staff at an earlier point in time. Once again, the plaintiff has not succeeded on the issue of causation because of my finding that the water could only have been spilled by Mr Sproule very shortly before the plaintiff slipped on it, not more than a few minutes earlier.
There will be judgment for the defendant.
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