Domocombe Pty Ltd, Cahill and Guthrie v Hess

[1993] QCA 326

IN THE COURT OF APPEAL

[1993] QCA 326

SUPREME COURT OF QUEENSLAND

Appeal No. 98 of 1993

Brisbane

[Domocombe v. Hess]

BETWEEN:

DOMOCOMBE PTY. LTD. and MARY KATHERINE CAHILL
and GREGORY EDWIN GUTHRIE

(Defendants) Appellants

- and -

VICKIE MARREE HESS

(Plaintiff) Respondent

The President
Mr Justice Davies

Justice White

Judgment delivered 06/09/93
Judgment of the Court

APPEAL ALLOWED. THE JUDGMENT APPEALED FROM IS SET ASIDE. IN LIEU THEREOF, IT IS ADJUDGED THAT THE RESPONDENT RECOVER FROM THE APPELLANTS $15,681.90. APPELLANTS TO PAY THE RESPONDENT'S COSTS OF AND INCIDENTAL TO THE PROCEEDINGS IN THE COURT BELOW TO BE TAXED. RESPONDENT TO PAY TAXED COSTS OF AND INCIDENTAL TO THIS APPEAL.

CATCHWORDS: DAMAGES - Causation - Personal Injuries - Plaintiff cleaning broken mirror at hotel - Defendants could have replaced urgently, taped up or not ordered plaintiff to work in vicinity - Damages apportioned - 60% to plaintiff, 40% to defendants

Counsel:	Mr. A.M. Warnick for the appellants Mr. K.J. Murphy for the respondent
Solicitors:	Messrs. Roberts & Kane for the appellants Messrs. Peter Channell & Associates for the respondent

Hearing Date: 02/09/93
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 98 of 1993

Before The President
Mr Justice Davies
Justice White

[Domocombe v. Hess]

BETWEEN:

DOMOCOMBE PTY. LTD. and MARY KATHERINE CAHILL
and GREGORY EDWIN GUTHRIE

(Defendants) Appellants

- and -

VICKIE MARREE HESS

(Plaintiff) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 06/09/93

This is an appeal from a judgment in the District Court at Brisbane on 4 May 1993 whereby the respondent recovered against the appellants the sum of $39,204.70 and the taxed costs of and incidental to the action.

The matter has been conducted on the basis that, if the first appellant Domocombe Pty. Ltd. is liable to the respondent, then so are the other appellants.
At the material time, Monday 2 March 1987, the respondent was employed by Domocombe at its licensed premises at 706 Main Street, Kangaroo Point known as the "Pineapple Hotel".

On the previous Saturday, 28 February 1987, a patron at the hotel had thrown a glass and broken a mirror held in a metal frame and affixed to a wall at the back of the public bar. The mirror was estimated to be about four feet high and three feet wide. In the words of the trial judge:

"The damage to the mirror took the form of an arc at the bottom shaped ... like Ayers Rock. It was, in effect, a smooth concavity removed from the bottom of the mirror extended up into the glass. Glass on either side of this arc remained intact in the mirror so that instead of a continuous bottom edge, there were two smaller edges with a gap between them about half the width of the mirror in size."

The male appellant was on the premises at the time the mirror was broken and he and the manager cleared away the broken glass and removed all bottles and other articles to the far end of the bar, some metres away from the mirror. Later, the various items were placed in cupboards underneath a bench at the back of the bar in fairly close proximity to the broken mirror. It is not clear whether the cash register was also moved but, by the time the respondent was injured, the cash register was situated on the bar more or less opposite the broken mirror.

The respondent, who was employed as a bar attendant at the hotel, claimed in her pleading that, on the morning of Monday 2 March 1987, when she "... was cleaning around a post-mix machine and some spirit and some cordial bottles in the bar area directly in front of a broken mirror ... ", "... a piece of broken mirror fell on the plaintiff's left hand ..." injuring her.
It is not disputed that the respondent was injured or that, if she was injured in the way alleged in her pleading, she would be entitled to the damages assessed by the trial judge. However, the appellants contend that the respondent failed to establish on the balance of probabilities that she was injured as she said.
The respondent had no memory of the incident and there were no eye-witnesses. It seems that, when the respondent attended for work that morning, she "... asked for some 'Windex' in order 'to clean the mirror', to quote the trial judge. His Honour continued:

"There was, however, another mirror in the bar and her request may have related to that mirror. She had earlier asked what had happened to the broken mirror."

"Mrs. Guthrie" (the male appellant's wife) "told her not to touch the broken mirror and Mr. Guthrie said that he did the same. Before she went downstairs, the plaintiff asked Mr. Guthrie for a 'chux' which is apparently a cleaning cloth of some sort. No doubt it was for the purpose of carrying out some cleaning, but there is no indication in the evidence that the plaintiff intended to use it to clean the broken mirror.

The plaintiff went down to the bar and said she was setting up the bar area. It would, no doubt, have been necessary to do this because items which would be required in the course of trading would have to be taken out of the cupboards and placed on a convenient surface to be accessible. She also said that she was cleaning or moving bottles and other things behind the bar because there were little bits of glass there. I consider it likely that the plaintiff, whose memory of the events is almost completely non-existent, had taken bottles, chips, peanuts, etc., mixing drinks and other things from the cupboard and placed them on the bench in a position reasonably close to the cash register, which would also have been close to the broken mirror. This would have been a convenient thing to do and I do not consider that any instructions given to her by Mr. or Mrs. Guthrie were sufficiently precise or detailed as to forbid her taking that course. ...

The plaintiff does not know how she cut her hand. She denied that she was trying to remove glass from the mirror at the time, but her evidence is generally very uncertain. I think it inherently unlikely, however, that she would have been attempting to remove glass from the mirror or from the frame in which it was held."

His Honour then referred to a statement of one Hugh Godfrey Croton (deceased) which was tendered under the Evidence Act. Mr. Croton, who was a guest or boarder in the hotel when the respondent was injured, had died before trial. The effect of his statement was that he was asked by the respondent to assist her in removing the broken mirror from the wall but he told her "to leave it alone and not to touch it ... ". He added:

"... a minute or so later, I heard a crash and scream and I turned to see Vicki Hess running off through the door behind the bar."

His Honour went on:
"The plaintiff denied that she tried to remove the broken
mirror from the wall or that she asked Hugh Croton for a
hand, though she conceded that he was in the bar at the
time.

In view of the fact that Mr. Croton cannot be cross- examined upon his statement, and in view of what I regard as the inherent unlikelihood that the plaintiff would in fact have been attempting to remove the mirror or to remove glass from the mirror, particularly in view of the conversation that had just taken place in the kitchen, I am prepared to give little weight to the statement. To accept the statement at its face value involves accepting that the plaintiff was acting or was proposing to act in direct and deliberate defiance of instructions from her 'employers' and from the Manager in a manner which they would necessarily have discovered very quickly and which might have led to her dismissal. The evidence shows that the mirror could not in fact be removed from the wall by hand and this would have been apparent to the plaintiff.

It is extremely unlikely, therefore, that she would have been attempting to remove it and it is therefore even more bizarre to suppose that she would have attempted to remove the glass from the frame. In the circumstances I find the statement of little assistance in determining the issues in the case."

Later, his Honour returned to the issue of liability in the following terms :

"On the issue of liability, evidence was given by Mr. Kenneth King, a safety consultant. His evidence was to the effect that damage of the sort suffered by the mirror in this case was likely to adversely affect the integrity of the remaining glass by exposing the glass to a bending or flexing pressure as distinct from a compressive pressure which the glass was designed to withstand. The glass apparently offers little resistance to tensile pressure which occurs in the event of a bending or flexing of the glass. The malformation of the mirror is a matter which would likely have this effect. Apart from that, vibration transmitted to the glass via the wall, either from traffic in the street or the opening and closing of doors in other parts of the wall, or from any physical contact with the wall, would tend to cause tiny cracks to appear in the glass which would then become the focus for further deterioration of the mirror. In my view, there was a foreseeable risk of injury to the first defendant's employees by reason of the damaged state of the mirror.

Mr. Guthrie's judgment that the mirror would be safe unless interfered with, upon the evidence, was wrong. There were measures which the defendant ought reasonably to have taken to minimise or obviate the risk of injury thus created. These included having the mirror repaired urgently over the weekend, closing of the bar in question until it was repaired or taping the mirror so as to restrain any movement of the glass. The warning or direction that was given to the plaintiff was inadequate in the circumstances.

Because of the plaintiff's extremely poor memory, perhaps related to her psychological reaction to the incident, it is not possible to know precisely how the accident occurred. However, I find, upon the balance of probabilities, that the plaintiff was setting up the bar and cleaning in the area of the broken mirror and that, in the course of her doing so, the mirror fractured and her hand was cut by a piece of liberated glass. The defendant failed, in my view, to take reasonable care to provide and maintain a safe place to work for the plaintiff, and her injuries resulted from his breach of duty in that respect.

I infer from the evidence that the risk of injury to the plaintiff which the defendant failed to take reasonable steps to avoid, in fact materialised, there being no other cause suggested apart from the deliberate conduct alleged against the plaintiff, which allegation I have rejected.

The defendant is accordingly liable to the plaintiff in negligence. There is no evidence from which contributory negligence on the part of the plaintiff might be inferred, preferring, as I do, the plaintiff's evidence to the statement of Mr. Croton."

It was conceded by the respondent in this Court that some of his Honour's findings cannot be supported; eg, his statements that the respondent denied that she was trying to remove glass from the mirror and that her evidence was contrary to that of Mr. Croton. Further, there were other errors; for example, at one point in his judgment his Honour seems to have relocated the cash register to the bench in the vicinity of the broken mirror whereas, on the evidence, it was not on that bench but on the bar opposite. It is unnecessary to record further instances to which the Court's attention was drawn by counsel for the appellant.

There is no basis in the evidence upon which the trial judge could have found that the respondent's injuries occurred because "the mirror fractured and her hand was cut by a piece of liberated glass." The witness, King, offered no more than a theory; "... the circumstances appearing in evidence" did not "give rise to a reasonable and definite inference" that his surmise was what occurred: cf TNT Management Pty. Ltd. v. Brooks (1979) 53 ALJR 267, 269; West v. Government Insurance Office (N.S.W.) (1981) 148 CLR 62, 68-69. Indeed, it is not even the case that there were "conflicting inferences of equal degrees of probability". On the contrary, the balance of evidence favoured the conclusion that the respondent was cleaning the broken mirror when she was injured.

The trial judge rejected the conclusion that the respondent was injured while disobeying instructions, but did not expressly refer to the possibility that, at the time, she was cleaning the broken mirror. That she was doing so was not only generally consistent with the other evidence, including that of Mr. Croton, but accords with what the respondent told the orthopaedic surgeon who gave reports which were tendered at trial. Further, it was consistent with the fact that she is left-handed and it was her left hand which was injured. Indeed, the only truly competing evidence is that she was cleaning in the vicinity of the broken mirror. Although it is plain from the whole of her evidence that she really had little or no memory of what occurred, at one point in her evidence she did say:

"...I was moving bottles ... that were there because there

were little bits of glass.

... I remember that I moved things that were behind the
bar to clean the bar area down, that's all I remember."

On the instructions which had been given to her, the respondent was aware that the broken mirror was dangerous and that she ought not touch it. On the evidence as it stands, it cannot be concluded that she was cleaning only in the vicinity of the mirror and that her contact with it amounted to mere inadvertence, inattention or misjudgment. On the contrary, in accordance with what she told her orthopaedic surgeon, she deliberately encountered the dangers involved in contact with the mirror.

It does not follow that the appellants were absolved from all responsibility for the respondent's injuries. The broken mirror presented a foreseeable danger to the hotel employees required to work in the vicinity of the mirror whether or not touching it deliberately. The appellants had the opportunity to take effective means to obviate the danger including having the mirror removed by skilled personnel, taping up the broken surface or eliminating any need for an employee to work in the vicinity. Instead, while instructing the respondent not to touch the mirror, they effectively required her to work in the vicinity of the mirror in what were dangerous conditions. In these circumstances, the appellants must bear some liability for the respondent's injury: Bankstown Foundry Pty. Ltd. v. Braistina (1986) 160 CLR 301.

It remains to consider the respective responsibilities of the appellants and the respondent for her injuries. Having regard to the fact that she was acting in disregard of specific instructions, the respondent should be held primarily responsible. An appropriate apportionment of liability is 60% to the respondent and 40% to the appellants.

Accordingly, the appeal is allowed and the judgment appealed from is set aside. In lieu thereof, it is adjudged that the respondent recover from the appellants 40% of $39,204.70, ie., $15,681.90. The respondent is entitled to the costs of and incidental to the proceedings in the Court below to be taxed, but must pay the taxed costs of and incidental to this appeal.