Jesionkowski v Illawarra Retirement Trust

[2002] HCATrans 339

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S227 of 2001

B e t w e e n -

LISA RAE JESIONKOWSKI

Applicant

and

ILLAWARRA RETIREMENT TRUST

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 AUGUST 2002, AT 11.10 AM

Copyright in the High Court of Australia

MR K.P. REWELL, SC:   If the Court pleases, I appear with my learned friend, MS A.R. BEARDOW for the applicant.  (instructed by Nagle & McGuire)

MR J.D. HISLOP, QC:   May it please the Court, I appear with my learned friend, MR G.J. PARKER, for the respondent. (instructed by Moray & Agnew)

GLEESON CJ:   Yes, Mr Rewell.

MR REWELL:   It is because the facts of this matter are so simple that it is an ideal vehicle for consideration or reconsideration of the scope of the duty of care owed by an employer to an employee.  The respondent ran a nursing home ‑ ‑ ‑

GLEESON CJ:   Is there a doubt about that as a matter of principle?

MR REWELL:   This case, we would respectfully submit, illustrates that the test has not been adequately defined, leading the New South Wales Court of Appeal to adopt a test which was apt to produce an unjust result, which was apt to be vague, and those consequences actually occurred in this case, in the context of facts which almost spoke for themselves. 

The respondent ran a nursing home and employed the applicant as a member of its nursing staff.  The hallways of the nursing home had to be mopped and cleaned daily.  That had to create a risk, whilst the hallways were wet, that members of staff might slip over.  There was a 30‑minute lunch break at the nursing home during which all residents and all members of the nursing staff were in the dining room and out of the way of the hallways and corridors that had to be mopped and wet.  It was just commonsense that that period of 30 minutes ought to have been used as part of the time necessary to clean the hallways and corridors.  It was the only time, during the 24 hours per day of the operation of the nursing home, when there was a guarantee that no one could slip on a wet floor.

Now, as it happened, in the case, had the cleaning of the corridors started at the beginning of the 30‑minute lunch break, the applicant would not have been injured.  The fact that the New South Wales Court of Appeal formulated a test of the scope of the duty of care owed by the respondent employer to the applicant employee, with the outcome that there was no breach of duty of care in this case, really speaks for itself.  The respondent had not minimised the risks of injury to its employees, including the applicant.  The outcome was an injury to the applicant.  Yet the court, by applying a test of significance rather than minimisation, came to the view that there had been no breach of duty of care.

GLEESON CJ:   Am I right in thinking that the way the case was put for the plaintiff at trial was that the negligent act consisted of the choice of time at which this operation was to take place?

MR REWELL:   Yes, your Honour.

GLEESON CJ:   Why could it not have taken place before people got up in the morning or at night or ‑ ‑ ‑

MR REWELL:   There was, during the course of the trial, evidence about the desirability of cleaning the corridors at night, but, in the end, that did not go anywhere, because residents, because of their age and infirmity, were want to wander the corridors at night looking for bathrooms or for reasons which they themselves would not have been aware of.

GLEESON CJ:   I see.

MR REWELL:   The practical situation was that the cleaning staff worked during the daytime, the same as the majority of the nursing staff.  The difficulty was that the respondent had, for its own reasons, adopted a policy that the cleaners ate with everybody else.  So at the very time when the hallways were deserted, they were also deserted of cleaners, who were sitting at lunch with the staff.  Now, that may have been convenient, so far as the respondent was concerned, to feed everybody at once, but it was not a means by which the risk of injury to employees could be minimised, and that, we would submit, is the appropriate test, that the employer owes to its employees a duty of care to minimise the risk of injury.

GLEESON CJ:   I thought the case went against you in the Court of Appeal upon the basis that the suggestion that was made as to what they should have done that they failed to do would not have reduced the risk.

MR REWELL:   That was because the Court of Appeal, using this word “significantly”, somehow came up with a version of events which the trial judge had not considered, that there were peak periods of 15 minutes before and after lunch, which the respondent was right to avoid in terms of cleaning the corridors.  The cleaning process, there was no dispute, of each hallway took 45 minutes.  It was the plaintiff’s contention that that cleaning process should have started at 12 o’clock when lunch started.  Lunch finished at 12.30, but, of course, not everybody could be moved together.  There were four to six staff and 40 aged and infirm residents, so each staff member would have needed six or seven trips in order to take these elderly people back to their rooms, most in wheelchairs, some needed to use the bathroom on the way to their rooms.

The plaintiff’s case was that if you could reduce the period when the floors were wet and people were moving about from 45 minutes to 15 minutes, by using the lunchtime to accommodate 30 minutes of the cleaning period, then that obviously would minimise the risk to the staff, who had to move each and everyone of these elderly people, none of whom were capable of moving themselves.

HAYNE J:   Even is that were so – and it would seem that the Court of Appeal may not have accepted it to be so – how does that account for the fact that cleaning had to take place soon after the spillage of that which had to be cleaned, the maximum time for which, according to the Court of Appeal, is between breakfast and 10.30, given that you are dealing with aged and incontinent residents?

MR REWELL:   Well, the difficulty with that approach was that there was a constant need really, in an ideal nursing home, to have the floors cleaned.  The evidence was that there were always spillages and other events which occurred because of the incontinence of the residents, but ‑ ‑ ‑

HAYNE J:   Which suggests, does it not, that this comes down to a question of fact which you lost?  Why should we give leave?  What is the point of principle that you seek to distil out of this case?

MR REWELL:   The Court of Appeal said that the applicant was required to demonstrate that an alternative, non-negligent system of work was capable of significantly – and I emphasise significantly – reducing the risk of an accident.  That test was posed, instead of what we say is the appropriate test, that is, that the employer should have done what it reasonably could to minimise the risk to the employees.

GLEESON CJ:   But if “significant” means “not insignificant”, what is the difference?

MR REWELL:   The difficulty with using the word “significant” is that significant may mean different things to different courts and it imposes or introduces into the test of the scope of the duty of care a variable ‑ ‑ ‑

GLEESON CJ:   Suppose he had said “materially”?

MR REWELL:   Either one would have been wrong.  The appropriate test is to minimise the risk the employees face, not to significantly ‑ ‑ ‑

HAYNE J:   No, the appropriate test is to take reasonable tests to minimise, and that is where the debate in this case lay, was it not, what was reasonable?  And that was a balancing exercise.

MR REWELL:   Yes, but the approach the Court of Appeal took by using the word “significant” was to allow it to adopt this peak hour analysis to the facts, saying, “Look, yes, for 30 minutes there could have been no risk, but because we are going to analyse peak periods as being significant” – to use the words of the Court of Appeal – “the employer somehow was not in breach for failing to take advantage of the obvious opportunity to obviate the risk of injury altogether for 30 minutes.”  It just does not make sense that it can be safer to clean the floors for 45 minutes than it is to clean the floors for 15 minutes, and that simple assertion makes it clear that the approach the Court of Appeal took was wrong.  That is the essence of the argument.  The importance of accurately defining the duty of care owed by an employer to its employees need not be elaborated.  If the Court pleases.

GLEESON CJ:   We do not need to hear you, Mr Hislop. 

This case turned upon the upon the application to the particular facts and circumstances of well-established principles and we are not persuaded that the interests of justice require a grant of special leave to appeal.  The application is refused with costs.

AT 11.20 AM THE MATTER WAS CONCLUDED