Department of School Education Western Region v Fisher

[2000] NSWCA 257

NEW SOUTH WALES COURT OF APPEAL

CITATION:     Department of School Education Western Region v Fisher [2000]  NSWCA 257

FILE NUMBER(S):
40345/00

HEARING DATE(S):           12/09/00

JUDGMENT DATE:            12/09/2000

PARTIES:
Department of School Education Western Region (Appellant)
Lynette Joy Fisher (Respondent)

JUDGMENT OF:      Handley JA Powell JA Fitzgerald JA   

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):        20736/97

LOWER COURT JUDICIAL OFFICER:     Simpson J

COUNSEL:
A D M Hewitt SC / M G Gilbert (Appellant)
J S Coombs QC / P R Arden (Respondent)

SOLICITORS:
Moray & Agnew - Sydney (Appellant)
R J Nolan & Co - Dubbo (Respondent)

CATCHWORDS:
Negligence - slip or trip
ND

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA  40345/00
SC  20736/97

HANDLEY JA
POWELL JA
FITZGERALD JA

TUESDAY 12 SEPTEMBER 2000

DEPARTMENT OF SCHOOL EDUCATION WESTERN REGION v FISHER

JUDGMENT

1. FITZGERALD JA:   On the morning of 21 August 1992, the respondent was seriously injured in the course of her employment with the appellant.  The respondent sued the appellant.  The trial Judge gave judgment for the respondent for $1,286,163.

2. The appellant has appealed on the basis that the trial Judge erred in holding that it was negligent, and also in assessing damages for past and future domestic assistance "upon the basis of a need for 21 hours per week in circumstances where the evidence was that the respondent's need was in the vicinity of 12 hours per week which was the level of care which the respondent had received since the date of the accident and a level of care which was sufficient to meet the respondent's care needs".

3. The respondent has given a notice of contention which asserts an additional reason for supporting the trial Judge's conclusion that the appellant was negligent.

4. The respondent was a teacher of disabled children in a special unit at Dubbo.  She and a teacher's aide who assisted her had responsibility for a group of six or seven children with significant intellectual and physical impairments.

5. The area in which the respondent and her assistant worked with the children was divided into four modules.  From the entry, three of the modules, which contained the kitchen, storeroom and toilet facilities, abutted the left hand exterior wall.  An activities module was to the right of the other modules.  The kitchen had a vinyl or linoleum floor - I will refer to it as a vinyl floor - and the activities area was carpeted.  Metal strips covered joints in the floor and between floor coverings.  One metal strip covered the joint between the vinyl and the carpet where the kitchen and activities modules connected.  Another metal strip ran from the left hand exterior wall near the kitchen sink, across the vinyl kitchen floor and the carpeted activities module.

6. While her assistant was with one of the children in the toilet module, the respondent was in the activities module and the other children, or some of them, were in the kitchen module.  The respondent noticed that an autistic child had become aware that his toy was in the possession of another child and was moving towards that child.  There was a risk that the autistic child would strike the child who had his toy.

7. The respondent considered that speaking or calling to the autistic child would be unlikely to have any effect. Consequently, she moved quickly to protect the other child. Her eyes were fixed on the autistic child in the hope of eye contact which would cause him to interrupt his progress towards the other child.  She fell in the vicinity of the intersection between the metal strip which covered the joint between the vinyl on the kitchen floor and the carpet on the floor of the activities module and the metal strip which ran from the kitchen wall, across the kitchen floor and the activities area.  As the respondent fell, she struck her left temple on one of the children's tables in the kitchen module.

8. It is not in dispute that something caused the respondent to fall.  However, there was no direct evidence of the cause of her fall.  The respondent could not recollect what had happened, and the only other persons present were the disabled children who, it is accepted, were unable to give useful evidence.

9. The trial Judge was required to determine, by inference from such matters as were established by evidence, the probable causes of the respondent's fall.  The accepted alternatives are that she slipped or tripped.  The appellant does not dispute its liability if she tripped but has informed the Court that it is accepted that it would not be liable if she slipped.

   The appellant's argument that the respondent probably slipped, or that it was not established that she probably tripped, starts with a claim form which she completed six days after she fell in which she said:

   "I slipped and fell backwards while moving around the class."

   In an account of what happened, in her evidence the respondent said:

   "My feet were no longer on the ground and no longer had traction."

10. About a minute after she fell, the respondent was found by her assistant on her back, with her feet in the kitchen module and her head closer than her feet to the intersection of the metal strips.  Her head at that time was in the carpeted area. The respondent’s position at the time when she was found by her assistant is critical to the appellant's arguments, as was recognised by the trial Judge.  A material passage, for example, is to be found in the Red Appeal Book at page 26 at paragraph 15.

11. The respondent was wearing rubber soled shoes. It was submitted for the appellant that her Honour should not have concluded that the respondent's rubber soled shoes were unlikely to slip on the vinyl floor even if there was saliva or some other substance on it without expert evidence. However, the respondent's assistant did not notice any moisture or other substance on the floor when she returned soon after the respondent fell and the principal, who came not long afterwards, did not observe any moisture or other substance on the floor when he inspected it after the respondent had been removed by ambulance.  At best for the appellant, one of the disabled  children might have dribbled saliva on to the floor of the kitchen area which dried before anyone inspected the floor surface.  That is mere conjecture, or at best a remote possibility. There was no evidence to suggest that the material section of the floor had ever been slippery previously, whether because of a child's saliva or otherwise.

12. The trial Judge considered it was more probable that the respondent tripped on a section of metal strips which had come loose and lifted.  That occurred from time to time and the staff, including the principal, used the heel of a shoe or an implement (in the case of the principal, a hammer) to reattach any raised section of the strip. The respondent fell in the vicinity of a section of metal strip which had previously lifted more than once. 

13. The trial Judge also thought it significant, correctly in my opinion, that the respondent had struck her left temple on a table in the kitchen module as she fell.

14. The appellant criticised the trial Judge's reasoning. It was submitted that the circumstances that the respondent struck her left temple on a table in the course of her fall was "equally consistent with her falling backwards as she could slip and, while falling backwards, if her head was inclined to the left, strike her left temple".  I do not agree.  Although it might have been possible for the respondent to strike her temple while falling backwards, the position of her head on the carpeted floor of the activities area, upon which the appellant substantially founded its case, made it unlikely that she had struck her head on a table in the kitchen while falling backwards.

15. The trial judge referred to a statement by the principal a day or so after the accident that he had been thinking about what might have caused the respondent to trip and while he could not imagine what it had been, he had taken a hammer and gone back into the room and hammered down everything on the floor which might have caused the accident. Another matter to which her Honour referred was the possibility that the respondent, who was conscious, had moved between the time when she fell and the time when her assistant came to her aid. That is by no means unlikely given she had suffered a heavy blow to the head and was quite likely distressed and possibly shocked and disoriented.

16. Further, I do not accept the implicit assumption made by the appellant that one who slips falls straight backwards and one who trips falls straight forward.  A person who loses balance as a result of tripping often makes efforts to save himself or herself and twists or turns as he or she falls.  The  respondent's collision with the table further complicates the matter and detracts from the appellant's hypothesis.

17. Over all, the appellant's criticisms of the reasons for judgment do not persuade me that it was not open to the trial Judge to find that the respondent probably tripped as she claimed, and I do not think that there is any significant error in the reasons given by her Honour for that conclusion.

18. In my opinion, it was open to her Honour to place considerable weight on the absence of any indication of a slippery substance on the vinyl floor and the known hazard caused by the metal strips in the particular area where the respondent fell.

19. The appellant's complaint in relation to the damages awarded to the respondent also should be rejected. 

20. The respondent's husband gave evidence that he cared for her for ten to twelve hours per week "maybe more". The trial Judge acted on the basis of evidence from a qualified expert that the respondent would, in the future, require care for three hours per day, seven days a week.  In my opinion, it was plainly open for her Honour to adopt that course.

21. I would dismiss the appeal with costs.

22. HANDLEY JA:  I have been troubled by this case for some time.  I was inclined to the view that the position in which the respondent was found after her fall was a fact incontrovertibly established which was plainly inconsistent with the finding of the trial Judge that she had tripped over a metal strip.

23. There is no doubt about the position in which the respondent was found after her fall.  Both Mr Rawson, the school principal and Miss Back, the respondent's teacher's aide, saw the respondent on her back with her feet closer to her intended destination than her head.  There is also no doubt the respondent's left temple hit the corner of a table during her fall.

24. It is not easy to see how the respondent could have injured her left temple if she had slipped as Mr Hewitt contended but this injury is easily explained if she tripped.

25. The case is a difficult one but, in my view, the problem facing the appellant is that it is difficult, indeed I have ultimately concluded impossible, for it to establish error on the part of the trial Judge.

26. In my view, there is no fact here incontrovertibly established which is inconsistent with the trial Judge's conclusions.  Subject to those remarks, I agree with the judgment delivered by Fitzgerald JA and the orders he has proposed.

27. POWELL JA:  I agree with Fitzgerald JA.

28. HANDLEY JA:  The order of the Court, therefore, is appeal dismissed with costs.

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LAST UPDATED: 22/09/2000