Griffiths v Delron Cleaning Pty Ltd - [2002] WADC 186

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GRIFFITHS -v- DELRON CLEANING PTY LTD [2002] WADC 186

CORAM: COMMISSIONER GREAVES

HEARD: 20-23 MAY 2002

DELIVERED : 23 AUGUST 2002

FILE NO/S: CIV 4707 of 1999

BETWEEN: PAMELA MAY GRIFFITHS
Plaintiff
AND
DELRON CLEANING PTY LTD
Defendant

Catchwords:

Negligence - Employer - Safe system of work - Liability only in issue - Failure of employer to provide training and instruction about work on slippery surface and to provide slip-resistant shoes to employee - Risk of consequent injury to plaintiff reasonably foreseeable and avoidable - Negligence established – 20 per cent contributory negligence established

Legislation:

Nil

Result:

Judgment for plaintiff

Representation:

Counsel:

Plaintiff: Mr I L K Marshall
Defendant: Mr M L Greenland

Solicitors:

Plaintiff: S C Nigram & Co
Defendant: Greenland Brooksby

Case(s) referred to in judgment(s):

Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483

Case(s) also cited:

Bank of Western Australia v Ocean Trawlers Pty Ltd (1994) 13 WAR 407
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Castro v Transfield (Qld) Pty Ltd (1983) 57 ALJR 619
Commercial Union Assurance Co Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Hayes v Mazurak and Anor, unreported; DCt of WA; Library No 990024; 5 February 1999
Jones v Dunkel (1959) 101 CLR 298
Lewis v High Duty Alloys Ltd [1957] 1 All ER 740
McLean v Tedman (1984) 155 CLR 306
Shire of Wyong v Shirt (1980) 146 CLR 40
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Ta Ho Ma Pty Ltd v Allen (1999) 47 NSWLR 1
Turner v State of South Australia (1982) 42 ALR 669
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Willis v CRA Exploration Pty Ltd (1984) A Tort Rep 80-521

COMMISSIONER GREAVES: In 1994, the plaintiff was employed by the defendant as a cleaner at the Kalgoorlie Police Station. By par 6 of the statement of claim, the plaintiff alleges that on 18 January 1994 in the course of her employment with the defendant, the plaintiff was cleaning the Kalgoorlie Police Station and was stripping the floor in the men's shower area using a solution of industrial stripper and hot water when she slipped and fell on the wet and slippery floor and sustained injury. The defendant denies the accident occurred. By par 4 of the statement of claim the plaintiff alleges it was the duty of the defendant as her employer to provide a safe system of work at the Kalgoorlie Police Station. The defendant denies the existence of that duty but the issue between the parties on the evidence is, if the accident occurred, whether the defendant was in breach of that duty.
The plaintiff pleads the following particulars of the breach of that duty in par 10 of the statement of claim as follows:
"10.1failed to take all reasonable precautions for the safety of the Plaintiff in that with the knowledge that in the course of her employment the Plaintiff would be required to stand and walk on slippery surfaces whilst stripping floors using industrial stripper and hot water solution failed to provide work shoes containing slip‑resistant shoe sole such as polyurethane shoe sole;
10.2exposing the Plaintiff to risk of damage or injury of which it knew or ought to have known in that the Defendant failed to provide work shoes containing slip‑resistant shoe sole prior to requiring the Plaintiff to stand and walk on slippery surfaces carrying out stripping of floors using industrial stripper and hot water solutions;
10.3failing to provide a safe system of work for the Plaintiff in that the Defendant:-
10.3.1failed to implement and enforce a safety policy in relation to working on slippery surfaces for its employees including the Plaintiff;
10.3.2failed to provide the Plaintiff on the job training as to how to carry out her duties with safety;
10.3.3failed to provide a suitable slip resistant footwear for the Plaintiff to wear when carrying out her duties in the course of her employment; and
10.3.4failed to provide information, instructions, training and supervision to enable the Plaintiff to work in a safe manner."
By pars 3 and 4 of the statement of defence, the defendant pleads:
"3.On several occasions before 18 January 1994, the employer (by Jan Rose, Dorothy Eversden and Christine Forward) expressly orally instructed the plaintiff that while working, she was to wear either the safety boots provided by the defendant, or safety shoes of her own (for which the defendant would reimburse the plaintiff). On one such occasion, the defendant caught the plaintiff wearing inappropriate footwear, and warned the plaintiff that she must wear shoes appropriate for the work.
4,The floor surface to which the plaintiff had applied stripper, was not slippery but sticky at the time of the alleged accident."
The defendant also pleads in par 8 of the statement of defence contributory negligence on the part of the plaintiff. By par 2 of her reply, the plaintiff pleads:
"2.The Plaintiff refers to paragraph 3 of the Defence and denies that the Defendant provided her with the work shoes and further denies that the Defendant provided her with any specifications for the work shoes to be purchased by her and further denies that the Defendant warned her for wearing inappropriate footwear. The Plaintiff says that the Defendant required the Plaintiff to purchase and supply her own work shoes without giving any specifications and instructions in relation to the nature and type of the work shoes."
Liability only is in issue. In Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291 at 300, the learned Chief Justice said:
"In Wyong Shire Council Mason J (with whom Stephen and Aickin JJ agreed) held that the existence of a foreseeable risk of injury did not in itself dispose of a question of breach of duty. The magnitude of the risk and its degree of probability remained to be considered with other relevant factors. As his Honour said in Wyong Shire Council (at 47 – 48):
'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.' "
In Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483 at 39 et seq Gleeson CJ said:
"Because the concept of foreseeability in the law of negligence has been taken to embrace risks which are quite unlikely to occur, and to mean only that a risk is not one that is far‑fetched or fanciful, many of the cases which discuss the approach to be taken by a tribunal of fact in deciding whether there has been a breach of a duty of care speak in terms of balancing the magnitude of the risk with the cost or inconvenience of preventing it. But, as Mason J pointed out in Wyong Shire Council v Shirt, ultimately the question of fact is what a reasonable person, in the position of the defendant, would do by way of response to the risk.
…
Where it is claimed that reasonableness requires one person to provide protection, or warning, to another, the relationship between the parties, and the context in which they entered into that relationship, may be significant. The relationship of control that exists between an employer and an employee, or of wardship that exists between a school authority and a pupil, may have practical consequences, as to what it is reasonable to expect by way of protection or warning, different from those which flow from the relationship between the proprietor of a sporting facility and an adult who voluntarily uses the facility for recreational purposes. I say 'may', because it is ultimately a question of factual judgment, to be made in the light of all the circumstances of a particular case."
In Crombie v Uniting Church Property Trust (WA) (supra) the learned Chief Justice recited the duty of an employer to take reasonable care to avoid unnecessary risks of injury to an employee and referred to the decision of the High Court in Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18. At p 301 of the report, the learned Chief Justice continued:
"It may be accepted that an employer's obligation is not merely to provide a safe system of work but also to maintain and enforce such a system: see McLean v Tedman (1984) 155 CLR 306. However, consistently with the approach adopted by Mason J in Wyong Shire Council, Taylor J said in Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177 at 183: '… the duty of an employer does not extend to guarding against every conceivable risk however remote or fanciful …'
The employer is only required to take reasonable care for the safety of employees. This 'does not mean that he must safeguard them completely from all perils': Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 318, per Windeyer J.
In accordance with these authorities, the plaintiff bears the onus on the pleadings of establishing on the balance of probabilities by evidence or reliable inference that the defendant failed:
(a)to instruct the plaintiff how to carry out her duties safely while stripping floor sealant;
(b)to enforce those instructions; and
(c)to provide the plaintiff with slip resistant shoes.
The case for the defendant is that:
(a)the plaintiff did not fall as alleged;
(b)the defendant did instruct the plaintiff how to carry out her duties safely, and did enforce those instructions;
(c)the defendant purchased safety shoes for the plaintiff; and
(d)if the plaintiff fell as alleged, it was as a result of her own negligence, in failing to wear appropriate footwear and failing to tread carefully.
On the evidence the court must determine the following facts in issue:
(1)The kind of shoes the defendant required the plaintiff to wear at the Kalgoorlie Police Station. The kind of shoes the plaintiff wore on 18 January 1994. Whether the defendant provided slip resistant shoes to the plaintiff for use at the Kalgoorlie Police Station
(2)What instructions the defendant gave the plaintiff, if any, about how to strip floor sealant.
(3)Whether and how the defendant enforced those instructions; and
(4)Whether the plaintiff fell as alleged.
(5)Did the plaintiff fail to wear appropriate footwear and fail to tread carefully on 18 January 1994?
I shall consider first the evidence for the plaintiff and defendant relevant to the facts in issue and relevant to credibility. I shall then turn to a determination of the facts in issue upon that evidence. I shall consider the liability of the defendant upon the facts found and in accordance with the authorities to which I have referred. Finally, I shall consider the issue of contributory negligence. The onus of proving contributory negligence is upon the defendant and the test in this particular case is whether the plaintiff failed to take reasonable care for her own safety and that depends upon the circumstances of the case. In Commissioner of Railways v Ruprecht (1979) 142 CLR 563 Mason J noted the difference between negligence and contributory negligence at 570:
"Contributory negligence differs from negligence. There is no duty of care owed to another person (Nance v British Columbia Electric Railway Co Ltd (1951) AC 601 at 611); and contributory negligence involves conduct which exposes the actor to the risk of injury without necessarily exposing others to risk."
In Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 the court delivered a joint judgment and at 494 stated:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42‑49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."

The plaintiff's evidence about how the defendant instructed her to carry out her duties at the Kalgoorlie Police Station

The plaintiff began to work at the Kalgoorlie Police Station in December 1991 with Mrs Christine Forward. She described (T14) the nature of the work. She said once a month the floor was scrubbed with stripper in several areas including the men's shower room. She said her work was not supervised, "just Christine and I did it, what had to be done" (T15). The plaintiff recalled the defendant's officers told her on occasion how they had inspected the work at the Kalgoorlie Police Station.
She gave evidence that on 18 January 1994 she had an accident. She explained how she and Mrs Forward arrived at the premises at 4.00 am. The plaintiff referred to Exhibit 1, photograph 1 and explained what she did on 18 January 1994: (T17)
"What I did, I got the stripper and mop and I went in and I lay stripper down between those lockers. They're about a metre apart and they're 3 metres long. So I have laid that stripper down there and then I went back with the broom and started to scrub that."
The plaintiff said she scrubbed the floor with a "kitchen broom" (T18). She continued:
"I got to about halfway, I think, about halfway, and I was standing on the side of one locker scrubbing in front of the other locker and my feet went from underneath me and I went down on my backside."
She went on to say: "My feet just went from underneath me." (T19) She said she broke her watch and cut her right arm on the locker handles. She continued (T19): "I got up off the floor and I walked to get Christine and told Christine that I had had a fall and could she please come."
The plaintiff explained her practice was to work into the corridor between the lockers and scrub the floor to which the stripper had been applied "so that you're not walking on the sealant any longer than necessary …" (T20). The plaintiff said she had adopted that practice since December 1991.
The plaintiff went on to say the defendant provided her with an apron but no work boots. She said she purchased a new pair of shoes at Kmart three weeks before the accident. She continued (T22):
"They were enclosed shoes. They come up just around your ankles but they didn't have laces in them. They were not joggers.
… Slip-ons.
… They had a good grid on the bottom. It was synthetic and they had a little mini heel on them."
In cross‑examination the plaintiff was asked how she learnt to do "stripping work" and she replied, "Christine showed me". (T23) She explained she watched Christine Forward do it at the police station. The plaintiff said she knew, everybody knew the stripper made the floor very slippery. (T23) Mrs Griffiths explained how Mrs Forward showed her how to scrub the floor between the lockers with the broom, where neither the plaintiff nor Mrs Forward use the mechanical buffer. Counsel for the defendant suggested to the plaintiff (T31) that Mrs Forward applied the stripping solution to the floor for about a metre and a half for about half that passageway. The plaintiff replied, "No. We did that passageway in one hit." (T31)
The plaintiff repeated her evidence that the defendant required her to wear "enclosed shoes with a good grip". (T36) She denied Mrs Eversden caught her wearing slippers. She said she always wore the same type of shoes. She described them as follows: (T38)
"They were enclosed shoes which come up to just underneath my ankle. They were like nurses' shoes but they didn't have laces, and they had a good grip on the bottom and an eighth to an inch thick thing on the bottom."
The plaintiff denied she told Mrs Jan Rose on behalf of the defendant in September 1993 that Kalgoorlie Consolidated Gold Mines required the plaintiff to wear "steel-capped safety shoes" on its site. The plaintiff said she was not given at any time steel‑capped boots and she did not buy steel-capped boots (T41). She also denied she bought such footwear from "Roweda's" in Kalgoorlie with Jan Rose. She was adamant, "I have never in all my life worn steel‑capped shoes." She denied Mrs Rose bought a pair of shoes like Exhibit 2 of whatever colour.
The plaintiff repeated she applied stripper to the three metres of the corridor between the lockers. She said she was certain because "We always did it that way. … That was the way we always did it. Christine did it, I did it. That's the way it was always done." (T48)
The plaintiff was then cross‑examined about the contents of Exhibit 3 and her answer to the interrogatory: "Since the accident, have you performed any remunerative work other than for Delron Cleaning Pty Ltd?" to which she answered: "No." She accepted that the answer was incorrect and said she had misunderstood the question to ask whether she had performed any remunerated work since her operation. Counsel for the defendant suggested to the plaintiff she had not provided a full answer to the interrogatory and she accepted her memory of the work which she had carried out was unreliable. The plaintiff denied she had attempted to misrepresent her pre‑accident back condition which she insisted was of a gynaecological origin.
The plaintiff called her son, Mr Shane Griffiths, who said he worked as a cleaner for the defendant between 1991 and 1994. He was also engaged in stripping work. He said he was given no instruction how to do it. He said he was required to wear enclosed shoes. He said the defendant did not supply shoes to him. He said he knew his mother was engaged in cleaning the police station. He said he learnt how to do the stripping and sealing by watching others. He received no training.
In cross‑examination he said his mother has never worn steel‑capped shoes.

The expert evidence of Professor Milos Nedved on behalf of the plaintiff

Professor Nedved is the coordinator of the occupational safety and health consultancy team at Edith Cowan University. His evidence is contained in Exhibit 8. With some minor difference in detail, Professor Nedved recites the plaintiff's account of the events of 18 January 1994 in par 3. At par 4.1, Professor Nedved makes the obvious assertion that "the potential for slipping and falling on slippery surfaces is enormous". He goes on to say the risk may be reduced "by using proper footwear, and by the intervention in the area of human factors – specifically by providing appropriate training and increasing safety awareness". He explains the scope of the training required in par 4.3.1 of Exhibit 8. In his oral evidence, Professor Nedved (T161) refers to "the guidance published several times over the last probably 12 years by WorkSafe Western Australia which gives guidance on employee on the job training …" He expressed the opinion that it is not sufficient to leave the employee to observe other employees in the workplace, and continued: (T165)
"… whoever provides the basic on‑the‑job training needs to evaluate whether that safety training message has been understood and complied with and it is a basic principle when we are running training courses in industrial, we have to check at the end of that training program whether our message has been understood, whether the person has really absorbed, digested, that information, so just possibly watching somebody without that feedback is not always sufficient."

Referring to this particular case, Professor Nedved continued:
"Working with the industrial stripper is not the task most cleaners would routinely do. That industrial stripper presents an extremely slippery surface and I believe that it is necessary to bring that fact to the attention of the cleaner who is working with that industrial stripper. … in very simple terms if one is applying a force on a broom in one direction it is possible to expect that one would be sliding in the opposite direction and this should have been mentioned in that simple training; it would have been 10 minutes' basic training which would have reduced significantly the potential for slipping in general."
Professor Nedved was not shaken in his opinion that the slippery floor called for precautions to reduce the risk of the plaintiff's falling.

The evidence for the defendant

Mrs Jan Rose is the manager of operations for the defendant. Between 1989 and 1994, she was the Goldfields Regional Manager of the defendant. She gave evidence that in September 1993, the plaintiff telephoned her and told her that Kalgoorlie Consolidated Gold Mines had requested her to wear safety boots on its premises. She said she arranged to meet the plaintiff at her office the following morning. She continued: (T143)
"It was early the following morning that Pam arrived. She was given a lift by somebody. Directly at the front of my home if you looked straight down my driveway there was a laneway, and at the end of that laneway visually you could see the building called Roweda's. Roweda's was one of the few local suppliers for any sort of safety equipment on mine sites – shoes, hard hats, monogoggles, goggles, and they also sold things like Explorer socks, etcetera. Pamela came to my office. Her and I proceeded to walk down the laneway. We bought her a pair of shoes. We bought myself a pair of safety boots as well, and then we returned back to my office which was a short walk down a laneway."
The witness then identified Exhibit 2 as the shoes which she bought for herself. She said they are the same as those which she bought for the plaintiff. "Pretty much" the same. She said she believed the plaintiff chose a different colour. She said the plaintiff's shoes were a light blue and they had cream stitching. (T144)
It is important to observe in this context that the evidence of Mrs Rose about the purchase of safety shoes was not led to establish that the defendant required the plaintiff to wear such shoes at the Kalgoorlie Police Station. In these proceedings it was led primarily in relation to the reliability of the evidence of the plaintiff and Mrs Rose. Mrs Rose continued: (T144)
"… I also suggested to her that, given that we had paid up to $80 and Pam's were about 75, to get value for money I would recommend that she wore them on all Delron sites."
Mrs Rose said Roweda's was plainly visible down the laneway from her office. Mrs Rose said after the purchase of the shoes for the plaintiff, she did not see the shoes again. She left Kalgoorlie in February 1994. She said she had a conversation with the plaintiff about them shortly afterwards when the plaintiff observed she was surprised how comfortable they were. (T147) Mrs Rose said the plaintiff continued to work for the defendant at Kalgoorlie Consolidated Gold Mines in late 1993, where she was required to wear the safety shoes.
Mrs Rose went on to say she had a further conversation with the plaintiff after the accident when she asked her how she came to slip over wearing her safety shoes. Mrs Rose gave evidence the plaintiff said that she wasn't wearing her safety shoes, she was wearing sandshoes. In cross‑examination, Mrs Rose repeated it was not a requirement of the defendant for its employees to wear safety shoes in general cleaning contracts (T178). There was a requirement to wear closed‑in shoes with good soles (T180). She agreed it was left up to the employee to decide what was a closed‑in shoe and what was a good sole. She had no recollection of inspecting the plaintiff's shoes. (T181) She added "I don't have a specific memory of Pam's shoes outside of the safety boots".
Mrs Rose gave evidence the defendant had no training video, notwithstanding the evidence of the plaintiff she had seen an orientation video. Mrs Rose said she was not responsible for training. Mrs Dot Eversden took care of that. She said workers were not left to turn up at the site and meet the team without any training at all. She was adamant the plaintiff commented to her how comfortable the safety shoes were. She repeated she recommended to the plaintiff that the plaintiff should wear them on all Delron sites. She was not able to say whether Christine Forward wore steel‑capped shoes at the police station or other Delron sites. She believed Dorothy Eversden did not wear such shoes at such sites. In cross‑examination, Mrs Rose conceded it was only on mining sites that the defendant's staff was required to wear safety shoes.
Counsel for the plaintiff referred Mrs Rose to Exhibit 9 and interrogatory 10 which reads together with Mrs Rose's answer as follows:
"State whether the Defendant had a safety policy for its employees including the Plaintiff to educate them on the method of stripping or cleaning floors without the risk of injury?
Yes, the Defendant had a safety policy to educate employees on the method of stripping and cleaning floors without the risk of injury. The Defendant, initially through Jan Rose and subsequently through Dorothy Eversden, provided advice and training in these methods to the Plaintiff."
Mrs Rose said she was responsible for the training of the plaintiff because it was her job to make sure that Mrs Eversden trained the plaintiff (T201).
Mrs Rose said she had no "specific memory" of telling the plaintiff that she was not wearing the correct footwear at the police station (T204). Mrs Rose confirmed she did not make it compulsory for the plaintiff to wear safety boots at the police station for general cleaning. She conceded that the defendant's information booklet contained no statement about stripping and sealing (T213).
Mrs Dorothy Eversden was the contracts manager for the defendant in the goldfields region between 1985 and 1990. She gave evidence she told the plaintiff she was required to wear a closed‑in shoe with a very good grip on the bottom. She went on to say she observed the plaintiff at the Kalgoorlie Consolidated Gold Mine site where she was wearing steel‑capped boots. She recalled another occasion when she visited the Kalgoorlie Police Station and saw the plaintiff and Christine Forward she said: (T231)
"I went in there and they were both wearing soft slip‑on shoes. I just explained to them that they weren't the right kind of shoes to be wearing."
Mrs Eversden expressed the view there was no reason why the plaintiff should not have worn her safety shoes at the police station. (T232) Mrs Eversden was asked to describe the "on-the-job training" which she gave to the plaintiff. In short, she said the plaintiff was required to work with other employees while they carried out the same duties. She could not remember on how many occasions this occurred.
In cross‑examination, Mrs Eversden said the plaintiff was required to wear "comfortable clothing and closed‑in shoes". (T244) She agreed there was no induction for cleaners, "because we went with them and showed them". (T245) She conceded she had no independent recollection of showing Mrs Griffiths how to go about her work. She insisted she told the plaintiff to wear shoes with a good grip for stripping work. (T249)
Mrs Eversden also insisted she saw the plaintiff wearing brown steel‑capped shoes at the Kalgoorlie Consolidated Mines site. (T251) She said she did not see the plaintiff wearing these boots on any other occasion. (T253)
Mrs Eversden conceded she had no "specific recollection of going through the cleaning and sealing process in an instructional way with Mrs Griffiths". (T254) A little later she said "She went on a job with me and step by step as we did the job she was with me." (T257)
The final witness for the defendant was Mrs Christine Forward who confirmed she worked with the plaintiff at the Kalgoorlie Police Station. She also worked at mine sites where she wore steel‑capped boots supplied by the defendant.
She said she knew how to strip and seal. She said Mrs Eversden taught her. She said she was taught to work the strip in front of her so that she was standing on the dry floor behind. She said she could not remember showing the plaintiff how to do a strip and seal. She said both she and the plaintiff wet the whole floor between the lockers with the stripper. She said that was not the way Mrs Eversden taught her to do it. She said that she and the plaintiff each did it that way "because it was a short cut and a quicker way of getting it done". (T266) She said that when they applied stripper to the whole passageway, that made it necessary to walk on the stripper. She said that she and the plaintiff used this method for over three years.
She said that she and the plaintiff both wore slip‑ons like Exhibit 10. She said the plaintiff was wearing something similar on 18 January 1994. She said she recalled the occasion when Mrs Eversden told her that this footwear was incorrect. She said the plaintiff replied, "I'm still going to wear them" and she said, "I am too." (T270)
She said she recalled the day when the plaintiff came to her and said she had fallen and hurt herself. She said the plaintiff was "all dry, not messy or anything like that". (T271) She said she saw no marks on the floor where the plaintiff claimed to have fallen. She said she expected to see marks in the remaining stripper and sealant.
In cross‑examination, Mrs Forward said the plaintiff did not show her a watch. She said there was only one occasion over the three years when Mrs Eversden mentioned their footwear.
Mrs Forward insisted she saw no footmarks on the stripper in the passageway where the plaintiff is alleged to have fallen. She said "There would have been a mess for me to see." (T291) She said she was "definitely looking at the floor to see where she had finished". (T291)
Mrs Forward said that over the years she "hardly slipped at all. … Only the once." (T296) She said the plaintiff always wore shoes like Exhibit 10 and that they had no small heel. (T297) I turn now to consider the facts which I have identified require determination.

The kind of shoes the defendant required the plaintiff to wear at the Kalgoorlie Police Station. The kind of shoes the plaintiff wore on 18 January 1994. Whether the defendant provided slip resistant shoes to the plaintiff for use at the Kalgoorlie Police Station

The evidence of the plaintiff was that the defendant required her to wear an enclosed shoe with a good grip at the Kalgoorlie Police Station. She said she purchased such shoes with a small heel and good grip and she always wore them, including 18 January 1994. Mrs Forward said she saw the plaintiff's shoes which were "similar to what I was wearing". (T297) She said they were black in colour and they had no small heel. The description the plaintiff gave of the shoes she was wearing on 18 January 1994 does not fit Exhibit 10. I find on the evidence of Mrs Forward, the plaintiff was not wearing an enclosed shoe with small heel and a good grip on 18 January 1994. I also accept the evidence of Mrs Forward that on one occasion Mrs Eversden told the plaintiff and Mrs Forward they were wearing incorrect footwear. I find the plaintiff and Mrs Forward continued to wear shoes such as Exhibit 10. I find the defendant did not enforce the requirement to wear an enclosed shoe with a good grip and did not provide slip resistant shoes to the plaintiff for use at the Kalgoorlie Police Station. The evidence for the defendant was the plaintiff was not required to wear steel‑capped shoes at Kalgoorlie Police Station.

What instructions did the defendant give the plaintiff, if any, about how to strip floor sealant?

The plaintiff's evidence is that she watched Mrs Forward apply the stripper to the floor at the police station. The evidence of the plaintiff and Mrs Forward is that they each and both applied the stripper to the whole passageway. Mrs Forward said they did not apply the stripper to the floor in small sections in the manner in which Mrs Eversden had shown Mrs Forward, "because it was a short cut and a quicker way of getting it done". (T266) This evidence of Mrs Forward was not put to the plaintiff, but it is consistent with the evidence of the plaintiff "We did that passageway in one hit." (T31) They both adopted this method over a period of three years.
Mrs Eversden could not recall specifically instructing the plaintiff to apply stripper to the floor in small sections. She insisted she showed all staff this method and would have shown the plaintiff. Mrs Eversden accepted she did not check the plaintiff's or Mrs Forward's method over the three years. On this evidence, I find it is more likely than not that the defendant gave very brief instructions to the plaintiff and Mrs Forward some three years before the accident in January 1994. The system which the plaintiff and Mrs Forward adopted became their regular practice.

Did the defendant then enforce those instructions?

There is no evidence the defendant monitored the manner in which the plaintiff and Mrs Forward applied stripper to the passageway in the Kalgoorlie Police Station. There is no evidence the defendant enforced the brief instruction to apply stripper in small sections over a period of three years. I find the defendant had no system in place to monitor the manner in which the stripper was applied and no system in place to enforce its brief instructions. I find, therefore, the defendant did not enforce its instructions over the three years before these alleged events occurred.

Did the plaintiff fall as alleged?

As I have explained, the defendant's case is that the plaintiff fabricated the account of her fall at the Kalgoorlie Police Station on 18 January 1994 and has continued to fabricate it. It is a serious allegation which requires close scrutiny on all the evidence in order to determine whether on the balance of probabilities the plaintiff has discharged the burden upon her to establish the fact of her alleged fall.
It is obvious from the evidence that the plaintiff was alone at the time of her alleged fall. I have found that at that time the plaintiff had applied stripper to the whole of the passageway at the time of the alleged fall. I have found on the evidence of Mrs Forward that the plaintiff was not wearing an enclosed shoe with small heel and a good grip on 18 January 1994. I have found she was wearing shoes similar to Exhibit 10.
The evidence of Mrs Forward was that after the plaintiff told her of the alleged fall, Mrs Forward observed there was nothing about the back of the plaintiff's clothing to suggest she had sat down on the wet floor of the passageway and there was nothing about the condition of the stripper solution on that floor to suggest the plaintiff had fallen in the passageway as alleged. The plaintiff did not tell her she had broken her watch and cut her right arm. She did not observe the plaintiff's watch or the cut on the plaintiff's right arm.
The evidence of Mrs Forward about the condition of the plaintiff's clothing after her alleged fall was not put to the plaintiff in cross‑examination and the plaintiff was not recalled to give evidence. It seems to me in these circumstances no reliable inference can be drawn from the evidence of Mrs Forward about the condition of the plaintiff's clothing. The plaintiff may have fallen without the results being visible to Mrs Forward. The plaintiff may not have shown her broken watch or the cut on her right arm to Mrs Forward, if for no other reason than the alleged fall itself. Once again, it seems to me no reliable inference can be drawn that the plaintiff did not break her watch and did not cut her arm as alleged.
In considering the credibility of the evidence of the plaintiff about the fact of the alleged fall, it is necessary to take into account that I have found on the evidence of Mrs Rose and Mrs Eversden that the defendant purchased a pair of steel‑capped shoes for the plaintiff in October 1993, a fact which the plaintiff denied all knowledge about. It is also necessary to take into account that the plaintiff accepted her answer to the interrogatory in Exhibit 3 was unreliable. Finally, it is necessary to take into account that I have found that on 18 January 1994 the plaintiff was not wearing an enclosed shoe with small heel and a good grip as she claimed but a shoe similar to Exhibit 10. Her evidence in these three respects was therefore unreliable.
The question arises whether the conclusion that the evidence of the plaintiff was unreliable in relation to the purchase of the steel‑capped shoes, her post‑accident employment, and the shoes which she was wearing on 18 January 1994 should lead to the conclusion that the evidence of the plaintiff about her alleged fall is also unreliable and should not be accepted.
I have found that the defendant gave very brief instructions to the plaintiff about how to apply the floor stripper and how to strip the floor sealant. I have found the defendant did not enforce those instructions and they were not followed over a period of three years. I have found the defendant required the plaintiff to wear an enclosed shoe with a good grip but save on one occasion did not enforce that requirement over the same period. I have found that the defendant did not provide slip resistant shoes to the plaintiff to wear at the Kalgoorlie Police Station. I have found the plaintiff did not wear slip resistant shoes at the Kalgoorlie Police Station on 18 January 1994. I have found that the plaintiff applied stripper to the whole of the passageway and the stripper was slippery. I have found the plaintiff walked on the stripper at the time of her alleged fall. I accept the evidence of Professor Nedved that industrial stripper presents "an extremely slippery surface".
These findings lead me to conclude on the balance of probabilities that it is more likely than not that the plaintiff fell as alleged at the Kalgoorlie Police Station on 18 January 1994 and I reach that conclusion notwithstanding those aspects of her evidence which I have found to be unreliable.

Did the plaintiff fail to wear appropriate footwear and fail to tread carefully on 18 January 1994?

There is no evidence the plaintiff failed to tread carefully at the time of her alleged fall. I have found the plaintiff was not wearing an enclosed shoe with a small heel and a good grip, as she claimed, but rather a shoe in the style of Exhibit 10. I find therefore the plaintiff was not wearing slip resistant footwear at the Kalgoorlie Police Station on 18 January 1994.

Has the plaintiff established the defendant was negligent as alleged?

I have found as a fact that the defendant provided only very brief instructions to the plaintiff three years before the accident about how to carry out her duties safely while stripping floor sealant. I have found that the defendant failed to enforce such instructions and failed to provide the plaintiff with slip resistant shoes.
I accept the evidence of Professor Nedved that the potential for slipping and falling on slippery surfaces is enormous and that the risk may be reduced by using proper footwear and by providing appropriate training. Professor Nedved said guidance on such training was available at the time to the defendant. I accept his opinion that it was not sufficient to leave the plaintiff to observe Mrs Forward. That led the plaintiff and Mrs Forward to adopt the unsatisfactory and unsafe practice of applying stripper to the whole of the passageway. The absence of training and continuing instruction (properly enforced by the provision of slip resistant footwear) resulted in the plaintiff's and Mrs Forward's use of incorrect and unsafe footwear.

On the findings which I have made and the evidence of Professor Nedved it is necessary to consider whether a reasonable man in the defendant's position would have foreseen that the failure to provide other than very brief instructions to the plaintiff and the failure to enforce safe practice on the slippery surface of industrial stripper and the failure to provide slip resistant footwear to the plaintiff involved a foreseeable risk of injury to the plaintiff. On the evidence of Professor Nedved, I find the defendant should have foreseen such risk.
It is then necessary to determine what a reasonable man would do by way of response to that 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. The evidence of Professor Nedved establishes that the magnitude of the risk was considerable as was the degree of the probability of its occurrence. There is no evidence that it would have been expensive, difficult or inconvenient to provide adequate training to the plaintiff and to enforce that training. There is no evidence the provision of suitable slip resistant footwear was expensive or otherwise impractical. There is no evidence of other conflicting responsibilities which the defendant may have had.
In these circumstances, I find that the response of the reasonable man in the present case would have been to provide adequate instruction to the plaintiff, enforce that instruction over the three years before this accident occurred and to provide slip resistant shoes to the plaintiff to be worn at the Kalgoorlie Police Station. The employer/employee relationship between the parties was such that it is reasonable to expect the defendant to have responded to the risk in the manner which I have identified. I conclude the defendant was, therefore, in breach of its duty to the plaintiff.

Did the plaintiff contribute to her fall?

The defendant alleges the plaintiff contributed to her fall by failing to wear the appropriate footwear and failing to tread carefully. There is no evidence that the plaintiff failed to tread carefully. I have found the plaintiff failed to wear slip resistant footwear on 18 January 1994. The evidence of the plaintiff is that at all times she knew such footwear was required at the Kalgoorlie Police Station.
The plaintiff's failure to wear slip resistant footwear did not cause her to fall. On the evidence of Professor Nedved, however, the risk of such fall would have been reduced by wearing slip resistant footwear. I find the plaintiff knew of the risk on 18 January 1994, knew that the risk could be reduced by wearing an enclosed shoe with a small heel and a good grip, and knew she was expected to do so. I find, therefore, the plaintiff failed to care for her own safety. The significance of that failure must be considered in the light of the negligence of the defendant established on the evidence, including its failure to provide slip resistant footwear for use at the Kalgoorlie Police Station. I find the plaintiff's failure to reduce the risk contributed by 20 per cent to her fall.

Conclusion

I find the plaintiff has established the negligence of the defendant as pleaded. Any award of damages to the plaintiff should be reduced by 20 per cent for contributory negligence. The counterclaim is dismissed.