Illawarra Retirement Trust v Jesionkowski

NEW SOUTH WALES COURT OF APPEAL

CITATION: Illawarra Retirement Trust v Jesionkowski [2001] NSWCA 286

FILE NUMBER(S):
41020/00

HEARING DATE(S): 27 August 2001

JUDGMENT DATE: 31/08/2001

PARTIES:
Illawarra Retirement Trust (Appellant)
Lisa Rae Jesionkowski (Respondent)

JUDGMENT OF: Heydon JA Ipp AJA Studdert AJA

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): CL 20081/00

LOWER COURT JUDICIAL OFFICER: Dunford J

COUNSEL:
Mr J D Hislop QC/Mr G J Parker (Appellant)
Mr D A Wheelahan QC/Mr K P Rewell (Respondent)

SOLICITORS:
Moray & Agnew (Appellant)
Nagle & McGuire (Respondent)

CATCHWORDS:
Torts - Negligence - Breach - Personal Injury - Whether employer negligently breached duty to prevent reasonably foreseeable risks of injury to employee - Whether an alternative system of cleaning whereby cleaning would occur at a different time would have significantly reduced the risk of injury to the employee - Where employee at nursing home suffered personal injuries as a result of slipping on a freshly mopped wet floor at work - ND

LEGISLATION CITED:

DECISION:
See paras 27 and 28

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41020/00
CL 20081/00

HEYDON JA
IPP AJA
STUDDERT AJA
31 August 2001

ILLAWARRA RETIREMENT TRUST v JESIONKOWSKI

Torts - Negligence - Breach - Personal Injury - Whether employer negligently breached duty to prevent reasonably foreseeable risks of injury to employee - Whether an alternative system of cleaning whereby cleaning would occur at a different time would have significantly reduced the risk of injury to the employee - Where employee at nursing home suffered personal injuries as a result of slipping on a freshly mopped wet floor at work

On 14 July 1997 the respondent (the “plaintiff”) suffered injuries as a result of a fall at a nursing home, where she was employed. The plaintiff fell on a freshly mopped wet floor when she was wheeling a resident of the nursing home across a hallway towards his room. It was the daily practice of the nursing home to clean the hallway floor some time between 10.30am and 11.45am. Residents of the nursing home took their daily lunch in the dining room at noon, which resulted in an increase in traffic in the hallway leading up to this time and during the period after 12.30pm.

The plaintiff claimed damages from her employer (the “defendant”), and was successful at trial. The trial judge found that the defendant was negligent in failing to adopt the alternative system of cleaning during lunchtime. The defendant appealed.

Held by Heydon JA (Ipp and Studdert AJJA concurring), allowing the appeal:

The trial judge erred in finding that the defendant was negligent in failing to adopt lunchtime cleaning.

The question of whether an alternative system of cleaning would have been provided by a reasonable employer, involves consideration of both the advantages and disadvantages of such an alternative system in relation to the
degree of risk of injury or accident. To make such a finding it is necessary to show that the risks created by the alternative system would be “significantly” less than those created by the existing system (Heydon JA at [15] and [24]).
Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201, applied.

The trial judge’s findings on the evidence imply that while an alternative system of lunchtime cleaning would have shifted the time of the risk, the magnitude of the risk would have been identical in relation to the amount of traffic in the hallway.

The trial judge’s findings on the evidence imply that an alternative system of lunchtime cleaning would have increased the risks to employees and residents in relation to the presence of foreign matter on the floor.

(a) The presence of foreign matter on the floor for a longer time would have created a health risk.

(b) The presence of foreign matter on the floor for a longer time would have increased the risk of persons slipping.

O R D E R S

The appeal is allowed.
The respondent is to pay the appellant’s costs of the appeal.
The respondent, if qualified, is to have a certificate under the Suitors Fund Act 1951.
The respondent is to repay to the appellant the sum of $270,000 paid on account of the judgment pursuant to the condition imposed by the trial judge on the stay granted on 30 January 2001.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41020/00
  CL 20081/00
HEYDON JA
  IPP AJA
  STUDDERT AJA
31 August 2001

ILLAWARRA RETIREMENT TRUST v JESIONKOWSKI
JUDGMENT

HEYDON JA:
This is an appeal from a verdict and judgment for $541,028 directed by Dunford J on 15 December 2000 after a trial on 29-31 March 2000 and the delivery of reserved reasons for judgment on 3 November 2000. The Notice of Appeal complains of the trial judge’s finding that the defendant was negligent and his failure to find contributory negligence on the part of the plaintiff. There is no appeal against quantum.
Negligence
The plaintiff suffered personal injuries, which turned out to be quite severe, in a fall at her place of employment, the Culburra Nursing Home, on 14 July 1997. The Culburra Nursing Home had two wings, the Evans Wing and the Branson Wing. They shared a common dining room. There were 40 residents. The evidence did not reveal their distribution between the two wings. The events of that day, which were not controversial, were described by the trial judge thus.
“On that day the plaintiff, who was at the time employed as a nursing assistant, was called in to do an extra shift from 11am for 8 hours. Shortly after she commenced duty, she received a call from a resident [Mr Innes] who needed assistance to go to the toilet. She assisted him out of his bed and into a wheelchair and wheeled him to the toilet, used the mechanical lift to place him on the toilet and then returned after a time and placed him back on the wheelchair to take him to the dining room for lunch. On their way to the toilet the hallway floor was dry, when they got back to the hallway heading for the dining room she saw the cleaner, Shane Lewis, who told her the floor was wet and to be careful; and she knew from past experience that when the floor which was linoleum was being cleaned it was extremely slippery, and as she described it, ‘shiny like glass’. Usually one side of the hallway was cleaned and then the other.
The resident wished to go to his room which was on the wet side of the hallway before going to the dining room; the plaintiff started to wheel the wheelchair along the dry side, but then she saw another elderly resident walking towards her on that side, so she moved the wheelchair to the other side which was the wet side, walking very carefully; but after taking about 3 steps, her feet slipped forward from under her and she landed heavily on her backside.”
The accident happened against the following background.
“The defendant operated a nursing home containing a number of elderly residents, many of whom were infirm in varying degrees. It was, of course, necessary to keep the floors clean and attractive and this necessarily involved cleaning them regularly. In fact this was done every day and the method used was to wash them with water using a bucket and mop and then polishing them with an electric polisher. This necessarily made the hallways slippery particularly whilst they were wet, and it seems this was why one side was done and then the other side, leaving at all times one dry side for traffic.
However, this did not allow for persons moving in opposite directions, particularly as a lot of the residents needed to hold onto the handrails on either side whilst walking along the hallway, and it was another resident coming along the hallway that led the plaintiff to move to the other side. The hallway was outside a number of the bedrooms with toilet and bathing facilities at one end and access to the dining room and communal facilities at the other. The route being followed by the plaintiff and the resident at the time would have taken them to the resident’s room and then on to the dining room for lunch Although it would seem that the plaintiff had not reached the resident’s room at the time she slipped, it would have been necessary to cross the wet surface to get to that room. The plaintiff was aware that the floors were slippery when wet, and that they were wet at this particular time, and the staff had been instructed not to walk on or cross wet floors except in an emergency, although the evidence satisfies me that this instruction was not always observed.
The routine for the Nursing Home was for the residents to have breakfast about 8am, lunch at 12 noon and dinner about 5pm. It appears that before and after breakfast the residents were taken to the toilets and also showered for the day and then encouraged to spend time in the communal areas until it was time for lunch. A large proportion of them needed assistance to get to the dining room. After lunch, because of the disabilities of the residents there was a need to clean the dining room while the residents were encouraged to again return to the communal areas until it was time for dinner. The cleaners regularly worked from 6.45am to 3.15pm and the practice was to clean the showers and ablutions areas whilst the residents were at breakfast, and the hallways of this particular wing from about 11am, finishing by about 11.45am, so that the cleaners could have their lunch at the same time as the residents, after which they returned to the dining room to clean up after the residents.
Most of the residents had to be assisted to the dining room and in many cases taken to the toilet first and so there was a build up of movement up to lunch time at 12 noon, but from then until about 12.30pm the hallways were virtually deserted. Each section of the hallways took up to about 10 minutes to dry after being washed and mopped.
The hallways had to be cleaned at some stage and the risk of injury to employees by slipping on the wet and slippery floor could not be entirely eliminated, but the risk could have been significantly minimised or reduced by cleaning the hallways when there was the least traffic in the area, whereas they were cleaned at one of the busiest periods of the day when residents were making their way to lunch, with or without a detour to the toilets. The evidence is that the corridor was 2.17 metres or 7 feet 1 inch wide.”
The failure to have the hallways cleaned at lunch time was the only allegation of negligence ultimately pressed at the trial. At trial there was a contention that the failure to have the cleaning done in the evening was negligent. That contention was reflected in part of the trial judge’s reasoning not set out above, but it was abandoned in the final address delivered on behalf of the plaintiff in reply, when it was conceded that the defendant’s contrary arguments had “force”. Counsel for the plaintiff indicated during oral argument on the appeal that the allegation that evening cleaning should have been adopted was not revived.
The trial judge expressed his conclusion about the avoiding of or substantial reduction in the risk of injury as though the non-negligent course he preferred was the cleaning of the “hallways”, i.e. the hallways in both the Evans Wing and the Branson Wing, followed by a cleaning of the dining room. The defendant attacked that conclusion on the assumption that what the trial judge meant was not a cleaning of first the Evans Wing always, then the Branson Wing always, and finally the dining room, but rather that what he meant was first a cleaning of the Evans Wing always, then the dining room, and finally the Branson Wing. This approach is more favourable to the correctness of the trial judge’s conclusion and less favourable to the defendant’s interests. Adopting the defendant’s assumption about the trial judge’s approach, was the defendant’s failure to adopt lunch time cleaning negligent?
One background matter was common ground. This background matter related to the procedure adopted when the hallways in the Evans Wing were cleaned with a mop in the later part of the morning. The cleaner would mop one half of the corridor (which was 2.17 metres in width) proceeding 15 metres to a corner; the cleaner would turn the corner and continue to mop for 20 or 30 metres; the cleaner would turn at the end of the hallway and come back down the hallway mopping the hitherto unmopped half of the hallway; and finally the cleaner would complete the cleaning of the unmopped 15 metre stretch. After being mopped, a particular area of floor would dry in about ten minutes. Throughout this process warning signs were placed indicating the existence of wet floors in the areas being mopped. The technique of ensuring that only one half of the corridor was wet at any one time left a safe dry passage along the hallway on the other side. The plaintiff on the appeal accepted that as far as it went the system was a well constructed one; that the risk of slipping could not be totally removed; and that the only issue was whether the risk of slipping would have been minimised more by application of the same system at lunch time than by application of that system at the time actually employed.
The defendant’s written submissions to this Court on this point commenced with a reference to two passages in the authorities. The first was from Lord Tucker’s speech in General Cleaning Contractors Ltd v Christmas [1953] AC 180 at 198:
“it is eminently desirable before condemning a system in general use that it should be clearly established by evidence that some other and safer system is reasonably practicable and that its adoption would have obviated the particular accident which has occasioned damage to the plaintiff.”
The defendant then submitted that an alternative exposing employees to risks of a different but equally dangerous kind could not be characterised as a reasonably practical alternative, and referred to the following passage from Taylor J’s reasons for judgment in Electric Power Transmission Pty Ltd v Cuiluli (1961) 104 CLR 177 at 183-4:
“But even if it is possible upon the evidence to say that the appellant did in fact provide the respondent with a tomahawk for the purpose of chopping the wood in question and that, unequivocally, it failed to provide him with a long-handled axe the respondent would in my opinion be in no better case. It is contended, however, that the contrary view is justified by evidence which, at first sight, may be thought to provide grounds for thinking that the use of a tomahawk for chopping small pieces of bush timber involves some real element of risk and that a long-handled axe is a more suitable and safer implement for such a task. But when the evidence is examined it is seen that it goes no further than to suggest that a person using a tomahawk for such a task is more likely to be struck in the face by small pieces than would be the case if he were using a long-handled axe. The reason given for this is, of course, that a person using a tomahawk would be closer to the point of impact between the implement and the timber being chopped. To my mind this is the substance of the evidence and it does not establish that the use of a tomahawk for the task upon which the respondent was employed unreasonably exposed him to any real risk of injury. No doubt, if he had been provided with a long-handled axe and he had injured his foot with it the complaint might have been made that if he had been provided with a saw the risk of injury to his foot would have been eliminated or diminished. On the other hand if, having been provided with a saw, he had managed to injure his fingers the complaint might have been that if he had been provided with a tomahawk that risk of injury would have been avoided. But in none of these cases would the suggested proposition suffice to establish that the employee had been unreasonably exposed to risk of injury.”
The defendant then pointed out that the accident happened at some time soon after 11.10am in the Evans Wing. The defendant pointed to evidence that the cleaning of the Evans Wing usually began at about 10.30am when the residents were in their rooms or in common areas and there was little traffic in the corridors. The cleaning was normally completed before 11.30am, when the process of taking the residents to the dining room for lunch commenced. On occasion the cleaning would commence 10 or 15 minutes later if the cleaner was delayed by other responsibilities. The cleaning would invariably be finished by 11.45am. That was the evidence of Mr Lewis, the regular cleaner of the hallways at the time of the accident. The evidence of Mr Payne, whose primary responsibilities lay in other fields but who occasionally cleaned the hallways, was that the cleaning of the Evans Wing hallways commenced at 11am. However, one would expect the evidence of Mr Lewis, who carried out the cleaning much more frequently, to be more reliable. The trial judge, as has been seen, found that the hallways of the Evans Wing were cleaned from about 11am to 11.45am. Though this does not completely correspond with Mr Lewis’ evidence, the finding was not specifically attacked in the Notice of Appeal, and to the extent that it differed from the evidence, the difference is not crucial. On any particular day, on any version of the evidence, there might well be mopping still in progress between 11.30am and 11.45am.
The defendant then submitted:
“The washing of the floors took three quarters to one hour to complete in each wing (Black 118T-U, 125V-W). The patients commenced to move from the dining room after lunch back to their rooms or the communal areas from about 12.30pm (Black 130L-Q, 131U-W, 133R-T, RB 45U-V). Thus part of the washing procedure, even if it commenced punctually at 12 noon in one wing (an unlikely event as it would be necessary for the cleaners to obtain their equipment, etc., before commencing work) would be carried out during a period of maximum usage of the passageway. Thus the alternative accepted by his Honour, far from obviating the risk of injury, actually increased the potential risk in one wing and had no effect in relation to the other wing.”
One aspect of the submissions can be rejected at the outset. The proposition that the cleaning of the Evans Wing could not commence punctually at noon because of the need for cleaning equipment to be assembled is unsound: there is no evidence that any time consumed in this way would be other than very short. However, the defendant’s more substantial point is that if the process of cleaning commenced at the time when the residents began their lunch at noon, it would be still going on at 12.30pm until it finished at 12.45 or 1pm. According to the defendant, the period 12.30-1pm was a period of maximum usage. It was a period during which the residents, having finished lunch, would be “settling into their rooms”, to use the words of Mr Lewis, who in 1997 had responsibility for cleaning at the Culburra Nursing Home as “general services officer”: see Black 133T. On the other hand, the process of settling was complete by 1pm. Mr Lewis said: “there was hardly any movement in the corridors after 1 o’clock” (Black 133V). In contrast to the system proposed by the plaintiff, the system adopted by the defendant in ensuring that the cleaning of the Evans Wing was complete by 11.30am and the cleaning of the Branson Wing was not commenced until after 1pm ensured that the periods of wet floor coincided with periods of minimum, not maximum, usage.
The terms employed by the defendant in criticism of the trial judge’s conclusion that the failure to have cleaning carried out while the residents were at lunch did not take account of one aspect of the evidence. That criticism assumed both that the period up to 11.30am was a period of relatively low traffic in the Evans Wing hallways, and that, after lunch, the movement of residents through the corridors recommenced from 12.30pm. There was contrary evidence from Denise Mulligan, an employee of the defendant who was called by the plaintiff. She said, first, that there was quite a lot of movement between 11am and noon, and, secondly, that between noon and 1pm everyone was still in the dining room, and that it was not until after 1pm that people began to move out of the dining room. She said the traffic in the corridor between noon and 1pm was “minimal”. She said that the period between noon and 1pm was, together with breakfast time, “the low ebb of the traffic” during the day shift.

Though the plaintiff’s written submissions referred to Denise Mulligan’s evidence, they did not otherwise engage with or abut directly the submissions of the defendant. However, the oral address delivered on behalf of the plaintiff sought to meet the defendant’s contentions by a variety of arguments which were moved to and from a central position as particular points arose in the course of debate.
The initial posture of the plaintiff in oral argument was that:
(a)the mopping of the hallways in the Evans Wing was habitually done at a time when they were subject to maximum traffic - between 11am and 11.45am; and
(b)if the mopping had started at noon, 75% of the task would be completed by 12.45pm.
Further arguments were then propounded to meet possible weaknesses in these propositions. The weakness in proposition (a) is that the bulk of the evidence suggested that the movement of residents to the dining room before lunch became intense from 11.30am but not before. The weakness in proposition (b) is that even though 75% of the task of mopping might be complete by 12.45pm if it started at noon, if the residents had started moving from the dining room to the common areas or to their rooms at or soon after 12.30pm, it would be likely that the hallways would be the subject of substantial traffic movements at 12.45pm; if it took half an hour for the residents as a whole, with the assistance of only about four nurses, to move in before lunch, it would take the same period for them to move out again.
The plaintiff sought to meet these difficulties in three ways. The first way of doing so was to rely on Denise Mulligan’s evidence to support the view that in truth the residents did not leave the dining room until 1pm, by which time mopping commencing at noon would be complete: the strength of this contention depended on the extent to which the trial judge accepted the evidence of Denise Mulligan. The second way of doing so was to treat the “process of lunching” as being a process that took place over an hour into which period the cleaning could have been fitted somehow. So far as this analysis of the “process of lunching” depended on treating Denise Mulligan’s evidence as being to the same effect as Mr Lewis’, it faced the difficulty that the two bodies of evidence conflicted and that Mr Lewis’ evidence appears to have been preferred to that of Denise Mulligan. The third way of doing so was to submit that the period for lunch could have been made to occupy about the same amount of time as the period of mopping if the latter process had been administered “flexibly”, for example by commencing at 11.45am.
The essential argument for the plaintiff must depend on demonstrating that an alternative non-negligent system of work was capable of significantly reducing the risk of an accident. “In determining whether a reasonable employer would have provided such a new system it would be necessary to consider not only the degree of risk of accident and injury likely to result if no such provision were made, but also the disadvantages, if any, of taking the suggested precaution”: Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 at 214 per Gibbs J.
Ultimately the validity of the competing submissions of the parties rests on factual inferences from the evidence. An important part of the evidence, from the plaintiff’s point of view, was that given by Denise Mulligan. Though the trial judge did not give reasons for not accepting Denise Mulligan’s evidence, he appears not to have accepted it, at least so far as it concerned the time when activity in the hallways recommenced after lunch. The trial judge said that from 12 noon “until about 12.30pm the hallways were virtually deserted” (Red 45V). This implies that after 12.30pm they ceased to be virtually deserted. There is also an implied finding that from 12.30pm the hallways became as busy as they had been in the period before noon. This implication follows from:
(a)the finding that in the morning the residents, after being taken to the toilets and after being given showers, were “encouraged to spend time in the communal areas until it was time for lunch” (Red 45H);
(b)the finding that most “of the residents had to be assisted to the dining room and in many cases taken to the toilet first and so there was a build up of movement up to lunch time at 12 noon” (Red 45U);
(c)the finding that the pre-lunch period was “one of the busiest periods of the day when residents were making their way to lunch, with or without a detour to the toilets” (Red 46G);
(d)the finding that after lunch “because of the disabilities of the residents there was a need to clean the dining room while the residents were encouraged to again return to the communal areas until it was time for dinner” (Red 45M); and
(e)the finding that a “large proportion of the residents needed assistance to get to the dining room” (Red 45J).
It is implicit in these findings that just as the hallways in the period before lunch experienced “one of the busiest periods of the day” while the residents moved or were moved from the common areas (in the case of most of them) or their rooms (in the case of others), so the hallways in the period after lunch experienced one of the busiest periods of the day.
The implicit rejection by the trial judge of Denise Mulligan’s evidence that lunch did not finish until 1pm and his implicit acceptance of Mr Lewis’ evidence that it finished at 12.30pm means that there was probably also a silent acceptance by the trial judge of Mr Lewis’ evidence that the period after lunch was busy, but only before 1pm, and not after 1pm; and that the period from when mopping commenced at or after 10.30am until the process was completed at 11.30am or 11.45am experienced the “least amount of traffic of the day” (Black 124B; see also 118U and 127D), except for the time when the residents were actually eating their meals (Black 130T-131C and 131M-W). To the extent that cleaning continued after 11.30am, there would be an overlap between it and the busy period, but only to that extent.
To some degree the submissions of the parties turned on ascribing a precision to the timing of events which the nature of the subject-matter, the terms of the evidence and the findings of the trial judge were incapable of supporting. Not every day at the Culburra Nursing Home can have been the same as all other days. The process by which a small number of staff guided the residents to and from lunch must necessarily have been time consuming. The witnesses were inevitably giving impressions of the general course of events. However, the evidence, particularly when read in the light of the findings of the trial judge, suggests the following conclusions.
First, after the residents had breakfast and completed bathing and toileting operations, most went to spend the morning in common areas and the remainder went to spend it in their rooms.
Secondly, the period from when the residents went to the common areas or their rooms until the time when the staff began to prepare them for lunch around 11.30am was relatively quiet in the hallways. It was obviously not as quiet as it was at night, but it was quieter than in the succeeding period when the residents began to move to lunch. That was Mr Lewis’ evidence. It was also the evidence of Mrs McKinley: she gave different evidence in chief (Black 141J-M), to which the plaintiff referred the court, but Mrs McKinley changed that evidence in cross-examination, when she did not demur to the cross-examiner’s assumption that the cleaning of the corridors commenced at 11am, and said the process by which four nurses moved the disabled residents to the dining room started at about 11.30am (Black 149D-M). The plaintiff gave contrary evidence (Black 64W and 81M-Q), but conceded that she could be mistaken in her assessment (Black 64Y-65B). Denise Mulligan also gave evidence suggesting that movement in the hallways began as early as 11am. This Court was referred to the following passage (Black 90D-91G):
“Q. Now, we’ve heard of a procedure involved in getting people to lunch?
A. Yes.
Q. What time is lunch?
A. Lunch is at 12.
Q. Is there something that has to be done with most of the patients before their taken to the dining room?
A. Yes, they will be all over the complex, whether it be outside or in their rooms or wherever and they all need to be transported to the dining room.
Q. For those in their rooms, are they taken straight to the dining room or to the toilet first or what’s the position?
A. Depending. We have a toilet regime and often it does fall around about 11, 11.30 which is prior to lunch and that is attended to on the way.
Q. For some of those then who are occupying their rooms at say 11 o’clock they have to go to the toilet first?
A. Yes.
Q. And then from the toilet presumably, if possible, direct to the dining room?
A. That’s correct.
Q. And I think you told us before lunch that the vast majority require assistance with mobilisation?
A. That’s correct.
Q. And most of them by wheelchair?
A. Yes, or chair lifter which is similar.
Q. And there, I think you told us, about six nursing staff on hand during day shift?
A. That’s correct.
Q. Two RN’s and four nurses aids, to use the old term?
A. Yes.
Q. Are all of those six persons engaged in the process of getting the residents to lunch?
A. Usually, but often the RN’s are still attending to their work, so it may mean that the four are doing that.
Q. The four nurses aids?
A. Yes, yes.
Q. And they’ve got to divide themselves up then between not only those people in their rooms, but those people in other parts of the nursing home as well when the time comes to start getting organised for lunch?
A. That’s correct.
Q. How much movement occurs within the nursing home between 11 and 12 leading up to the lunch bell?
A. Quite a lot, because everyone has to be transported in some form or manner to the dining room.
Q. With particular reference to the corridor which is outside the various rooms one of which Mr Innes occupied, how much traffic is there in that area during the 11 to 12am period?
A. It is fairly busy, but it depends on how many have gone back to their rooms and it depends on the climate. Like if it’s a nice day they may be outside, otherwise they may be in their rooms, but there’s usually a fair amount of traffic.”
However, it is to be noted that Denise Mulligan was not precise about times: for example, she said the “toilet regime … often … does fall around 11, 11.30 … .” Further, she said at Black 97E-H:
“Q. Is it your experience that the cleaning of the corridor where the plaintiff fell occurs at more or less the same time each day?
A. Correct.
Q. And is that time more or less when the patients are having lunch?
A. It’s prior to them coming to lunch.
Q. Just prior?
A. Just prior.”
That evidence suggests that at least the bulk of the mopping took place before the bulk of the pre-lunch movement of residents. A further indication that the pre-lunch movement of residents started around 11.30am is the fact that when the plaintiff assisted Mr Innes, to the toilet at approximately 11.10am, she “thought at the time that it was perhaps a bit early to take him” to lunch (Black 46L).
Thirdly, the movement of residents, most of whom needed some guidance or assistance whether by reason of dementia or frailty or otherwise, into the dining room was continuing right up to noon. None of the evidence suggests it ended any earlier.
Fourthly, the movement of the residents out of the dining room to the places where each would spend the afternoon began at 12.30pm or very soon afterwards. Mr Lewis said it began then. The trial judge found that it did. That finding is supported by the probability that the residents would not have taken an hour to consume their lunches, by the fact that the residents left the dining room in a condition requiring it to be cleaned in consequence of spillages of food caused by their frailty (Black 141R-Y), by the motivation the staff accordingly had to procure the departure of the residents in order that cleaning could be carried out, by the fact that the cleaning was done immediately after lunch by the same staff who cleaned the hallways (Black 141S), and by the fact that Mr Lewis habitually returned from lunch at 12.30 pm (Black 131N).
That factual position suggests that it is necessary to show that the risks of falls resulting from the cleaning of the hallways at lunch time would have been significantly less than the risk of falls resulting from the cleaning of them in operations commencing from 10.30 or 11am. If the mopping had started at 11.45am, as one of the plaintiff’s submissions suggested, it would have finished safely before the residents began to leave the dining room from 12.30pm. But that would have created a high-risk period from 11.45am to noon on all days which was at least as great at the risk that existed (though not on all days, on Mr Lewis’ evidence) between 11.30 and 11.45am when mopping began at 11am. Even if the risk existed on all days between 11.30 and 11.45am, on the assumption that mopping began at 11am on all days, the change in timing would only have substituted one risk for another of equal degree. If the mopping started at noon, the time of risk would have been shifted again: instead of being from 11.30-11.45am, it would have become from 12.30-12.45pm; but the magnitude of the risk would be identical. In short, the plaintiff’s contention that mopping should have taken place at lunch time would have shifted the time of the risk, but not reduced it.
There is one additional reason why the course of mopping the hallways during lunch was not superior to the course of mopping them in mid-morning. Mrs McKinley, who held the post of Deputy Director of Nursing with the defendant, described the problems that arose from the incontinence of some of the residents (Black 142D-P):
“the greatest time of spillage is that early morning time, that’s when the residents have got out of bed, that’s when the spillage of all body fluids is in the corridors, in the bedrooms and in the ablution blocks. So it should really be cleaned at the point of creation, and we always teach that to the staff that work there.
Q. You said that early morning period is when there is maximum spillage of body fluids?
A. Yes.
Q. And what period are you referring to as the early morning period?
A. The early morning period is from 6 o’clock in the morning till about 10.30.
Q. And in that period of time what activities occurred at the nursing home that created spillage in bodily fluid?
A. Residents had got up out of bed. I would say 60 per cent of nursing home residents are incontinent. They are taken to the shower block to be showered, as we have ablution blocks, and so spillage of that. There is also breakfast, there is spillage of food. There is also, that’s just morning time, it’s a natural process for individuals to evacuate at that morning time, and there are accidents that happen and they are frequent because you’ve got a lot of people getting up at the one time.”
If the period of cleaning were postponed from mid-morning until lunch time, two hazards would be increased. One hazard was the risk to the health of the residents and employees arising from leaving foreign matter on the hallways for a longer period; the other was the risk of injury to residents and employees over the longer period arising from slipping. These were hazards which, as it was, existed in the Branson Wing until 1pm, but they were less in the Evans Wing under the procedure adopted by the defendant than they would have been under the procedure suggested by the plaintiff.
Contributory negligence
It is not necessary in the circumstances to deal with the submissions of the defendant in relation to contributory negligence.
Orders
It follows that the appeal must be allowed with costs, and the sum of $270,000 paid by the defendant to the plaintiff on account of the judgment repaid. Counsel for the defendant conveyed to the court instructions from the defendant that the defendant did not seek interest on that sum from the time of payment until the date of the orders in this appeal. In view of those humane instructions, no order is made in relation to interest for that period.
The following orders are proposed.
1. The appeal is allowed.
2. The respondent is to pay the appellant’s costs of the appeal.
3.The respondent, if qualified, is to have a certificate under the Suitors Fund Act 1951.
4.The respondent is to repay to the appellant the sum of $270,000 paid on account of the judgment pursuant to the condition imposed by the trial judge on the stay granted on 30 January 2001.
IPP AJA: I agree with Heydon JA.
STUDDERT AJA: I agree with Heydon JA.
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LAST UPDATED: 31/08/2001

[2001] NSWCA 286

31 August 2001

Key Legal Topics

Areas of Law

Negligence & Tort

Employment Law

Legal Concepts

Breach

Causation

Duty of Care

Negligence

Reliance