Commonwealth of Australia v Murphy, Murray Vincent

[1981] FCA 183

IN TIE FEDERAL COURT OF AUSTRALIA ) 1

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) No. ACT G16 of

) 1 9 8 1

GENERAL DIVISION 1

ON APPEAL, FROM THE SUPREME COURT	OF THE AUSTRALIAN
CAPITAL TERRITORY

BETWEEN : THE COMMONWEALTH OF AUSTRALIA

Appellant (Defendant)

- AND : NURRAY VINCENT MURPHY

Respondent (Plaintiff)

O R D E R S

c

JUDGES MAKING ORDERS:	Bowen C.J., Blackburn	and Deane JJ
WHERE MADE:	Canberra

DATE	:	12 October, 1981
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THE COURT ORDERS THAT:

1. The appeal be dismissed wylth costs

2. The cross appeal be stood over generally with

liberty to any party to apply on seven ( 7 ) days

notice.

I N THE	FEDERAL	COURT	O F	AUSTRALIA	)
I

AUSTRALIAN	CAPITAL	TERRITORY	)
) N o . A C T G16 of 1 9 8 1

R E G I S T R Y D I S T R I C T ) )

G E N E R A L D I V I S I O N )

ON A P P E A L FROM THE SUPREME COURT O F THE AUSTRALIAN

CAP I TAL TERRITORY

BETWEEN: THE COMMONWEALTH O F

AUSTRALIA

A p p e l l a n t ( D e f e n d a n t )

AND :	MURRAY VINCENT	M u w m
_.

R e s p o n d e n t ( P l a i n t l f f )

CORAM: B o w e n C. J . , Blackburn and D e a n e JJ.

1 2 O c t o b e r , 1 9 8 1

BOWEN C J : I w l l l a s k M r . Just ice D e a n e t o glve the

c

f irst ~ u d g m e n t l n t h i s matter

DEANE J: Thls 1s an appeal by the C o m m o n w e a l t h ( " the

R e s p o n d e n t " ) from a decls ion of t h e S u p r e m e C o u r t of t he

A u s t r a l i a n C a p l t a l T e r r i t o r y ( M r . Jus t ice C o n n o r ) t h a t there

be ~udgment fo r the plaintiff a g a l n s t t h e defendant i n t he

a m o u n t of $ 1 0 2 , 8 3 9 . 0 4 on account of d a m a g e s I n respect of

l n j u r l e s sus t a ined by t h e p l a i n t i f f w h e n , on 1 9 A u g u s t , - l 9 7 3 ,

he s l lpped and f e l l i n a bus depot I n M e n t w o r t h A v e n u e ,

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Kingston, in the Australian Capital Territory. The plaintiff

was then employed by the defendant as a bus driver.

Before the Supreme Court and before this Court, the

main issue involved in the question of liability has been

whether the injuries sustained by the plamtiff were on a

part of the depot described as Stage 1 or on a part of the

depot described as Stage 2. The description of the depot

and the essential facts in relation to the occurrence on

19 August, 1973 appear from the judgment of Mr. Justice Connor

in the Supreme Court. It is unnecessary that I refer to

that evidence in detail.

In so far as the question whether the relevant

occurrence took place on Stage 1 or Stage 2 of the bus depot

is concerned, its importance can be briefly summarized. It r

was common ground that the floor of Stage 1 was smooth and

slippery. The plaintiff's injuries were suffered as a result of his slipping when about to mount his bus on the morning of

the day in question. The evidence indicated that the floor

of Stage 2 was not slippery. It was common ground between the

parties on the hearing that if the plaintiff's injuries were

sustained as a result of his slipping while	on Stage 1, the
defendant was liable in damages.

The plaintiff's evidence as to precisely where the

accident took place was, as one would expect, somewhat

uncertain. He gave evidence that he estimated, as a result

of pacing out the distance some years afterwards, that the

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precise position at which e slipped was some 120 feet from

the eastern boundary of the depot. If this evidence were

accepted as being strictly accurate, it would have placed the site of the accident in Stage 2 , that is the non-slippery

area. Plainly, however, it would be unreal to accept the

plaintiff's evidence as to the precise position which the

accident had taken place as being necessarily completely

accurate. It must be accepted as no better than an estimate

based on reconstruction.

Mr. Justice Connor in the Supreme Court relled on

three particular aspects of the evidence in determining that

the plaintiff had established a case of negligence against

the defendant. The first was the evidence given by a Er.

Newport as to how the buses were customarily parked within

the bus depot, namely either very close to a line of stanchions

Tvhich ran slightly to the west of the boundary between Stage

1 and Stage 2 or with a portion of the bus slightly to the

east of that line of stanchions. The second matter on which

his Honour relied was a statement by Mr. Simpson, the manager

of the depot, in a letter of 29 August, 1973, to the Director

of lJorks, relating to the condition of the floor of the depot. fact of the accident, namely the fact that the plaintiff,

whose evidence his Honour accepted, slipped on the day on

question.	I refer to these three matters	in a little more
detail.

A s regards the first, the evidence of Mr. Newport

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clearly established that it was highly probable that the

occurrence occurred very near the boundary between Stage 1

and Stage 2. In other words, the setting of the accident

was that the plaintiff slipped very close to the boundary

between a floor that was, on all the evidence, likely to

be slippery if there was grease upon it and a floor	which,
on the evidence, was unlikely to be slippery.

The letter of Mr. Simpson to the Director of Works

related to, or rather recounted, details of certarn occurrences

which had in the period immediately preceeding the wrlting of

that letter, occurred at the depot. Mr. Simpson stated that

over a recent period of wet weather three drivers had been

injured due to slipping on the floor surface of Stage 1.

Ee expressly stated that no accidents at all had occurred on

the floor surface of Stape 2. The letter was admitted by c

his Honour in evidence. His Honour's decisron in admitting

the letter into evidence has not been attacked before us.

Plainly his Honour was entitled to place	some weight on the
contents of that letter.

The third matter is, as I have sald, the fact that

the plaintiff did slip on the morning in question. When-

weiehing the probabilities, it is plainly of considerable

relevance that an active man should slip without any apparent

reason other than that, either because of a substance on it

or because of its natural state, the floor was slippery. In

circumstances where the accident plainly took place n ar the

boundary of Stage 1 and Stage 2, and where Mr. Simpson's

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l e t t e r i n d i c a t e d t h a t t h e view which he took a f t e r i nqu i r i e s

was t h a t i t took p l ace on t h a t p a r t o f t h e d e p o t known as

Stage 1, t he ve ry f ac t o f t he occur rence suppor t s t he conc lus ion

tha t t he acc iden t t ook p l ace on S tage 1.

In the view I t a k e , n o t o n l y i s t h e r e n o basis f o r

a t t a c k i n g h i s H o n o u r ' s f i n d i n g o n l i a b i l i t y : I t h i n k t h a t

t h a t f i n d i n g	was	the reasonable one on the ev idence before
him.

The defendant a t tacks h is Honour ' s award of damages

on two d i s t i n c t g r o u n d s .

F i r s t , i t is s a i d t h a t h i s Honour w a s i n e r r o r i n

awarding an amount of $8572 damages i n r e s p e c t of t he pe r iod

from 1 4 J u l y 1980 to the da t e o f h i s Honour ' s dec i s ion wh lch

was 15 Kay, 1981. I n r e a c h i n g t h a t f i g u r e h i s Honour tLok

t h e amount which the p la in t i f f would have been expec ted to

have ea rned in the pe r iod i f he had continued being employed

as a bus dr iver , inc luding over t ime, and subt rac ted f rom it

t h e amount w h i c h t h e p l a i n t i f f a c t u a l l y e a r n e d . His Honour's

conclus ion as t o t h e r e s u l t i n g n e t f i g u r e o f $8572 must however

be seen i n a contex t where h is Honour made an adjustment ,

i n r e s p e c t o f t h a t amount f o r t h a t p e r i o d and of an amount

represent ing past economic loss f o r t h e p r e c e e d m g p e r l o d

s i n c e t h e a c c i d e n t , i n a n amount of some $1300. While i t

seems t o me t h a t t h e amount whlch h i s Honour allowed i n

r e s p e c t o f t h a t p e r i o d i s on t h e h i g h s i d e o f w h a t l i e s

w i th in pe rmis s ib l e l imi t s , i t does not appear to me t h a t ,

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taking into account the allowance which was made for contingen-

cies, there is any proper basis for interferring with his

Honour's assessment of damages in respect of that period.

The other attack which was made on his Honour's

assessment of damages was in respect of future economic loss. ing the balance of the plaintiff's working life. No attack

is made on his Honour's decision in chat regard. What is

attacked is hisHonour's acceptance of a net weekly figure of

$75 as a reasonable basis on which to calculate l o s s . In making

that estimate, his Honour took into account a number of factors.

One factor was the net wage being earned by a comparable

employee in the bus driving industry. When I say comparable the injuries which he sustamed. Another factor which h l s

Honour took into account was that the plaintiff earned $250

in a job which he had held for some months as a bar manager.

His Honour, against the plaintiff, appears to have treated

that amount as a net amount after deduction of taxation instal-

ments. His Honour also took into account his assessment that

the plaintiff was likely over the rest of his working life to

have time off and to have intervals between jobs.

Taking into account all these factors, it seems to

me that the amount of $75 which his Honour reached was a

reasonable basis on which to calculate economic loss in

respect of the future. Again, I can see no basis for inter-

fermg with his Honour's decision in that regard.

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It f o l l o w s t h a t , i n my view, the appea l should be

d ismissed wi th cos t s . A s r e g a r d s t h e cross a p p e a l , t h e p a r t i e s

are ag reed tha t t ha t shou ld be s tood ove r pendmg the dec i s ion

of t h e High Cour t be inp ava i lab le in the appea ls i n Todorovic

v. Waller and Jepsen v. Henken. That appears t o me t o be

the appropr i a t e cour se	to be fo l lowed .
BLACKBURN J:	I ag ree w l th a l l t ha t Mr. J u s t l c e Deane

has sa ld and I do n o t w l s h t o add anything.

BOWEN C J : I agree . The o r d e r s of the Cour t w l l l be

t h a t t h e a p p e a l be dismissed w l t h c o s t s a n d t h a t t h e c r o s s

appea l be s t o o d o v e r g e n e r a l l y w i t h l i b e r t y t o a n y p a r t y t o

apply on 7 days no t l ce .