Koetsveld v Whitehorse City Council

[2009] VCC 544

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

DAMAGES - GENERAL DIVISION

Case No. CI-08-02055

MARY KOETSVELD	Plaintiff
v
WHITEHORSE CITY COUNCIL	Defendant

---

JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	29 and 30 April, 1, 4, 5, 6 and 7 May 2009
DATE OF RULING:	7 May 2009
CASE MAY BE CITED AS:	Koetsveld v Whitehorse City Council
MEDIUM NEUTRAL CITATION:	[2009] VCC 0544

RULING

---

Catchwords: Application to remove allegation of contributory negligence from jury.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J H Mighell SC with	Maurice Blackburn
Mr A Pillay
For the Defendant	Ms J A Dixon SC with	Thomson Playford Cutlers
Ms P A Cefai
HIS HONOUR:

1          This is a trial by jury which commenced on 29 April 2009 in which the plaintiff claims damages in respect of an injury sustained as a result of a falling incident on 19 October 2001 at premises in Vermont South. At the time the plaintiff was employed by the defendant at the premises as a carer.

2          By her Statement of Claim, the plaintiff alleges that as a result of the incident, she sustained a significant fracture to her right ankle and various other consequences, including particularly work incapacity. She further alleges the incident arose as a result of the negligence of the defendant in failing to provide a safe place of work.

3          On the first day of the trial, Ms Dixon SC, on behalf of the defendant, admitted negligence, however stated that the issue of contributory negligence remained open. By its defence, the defendant alleged particulars of that contributory negligence as:

“(a)	failing to use a more appropriate means of egress from the premises;
(b)	failing to observe that the ramp was wet;
(c)	failing to take any or any reasonable care for her own safety.”

4          At the conclusion of liability evidence, Mr Mighell, on behalf of the plaintiff, submitted that given the circumstances of the case, and the nature of the employment relationship existing between the plaintiff and the defendant, there was no sufficient basis upon the evidence for the question as to contributory negligence to be put to the jury. He applied to have that question taken from the jury.

5          The facts of the plaintiff’s injury can be briefly stated. At the time of the incident she was fifty five years. She had worked for a considerable period as a carer working with intellectually disabled and aged persons. On the day of the incident she was working in such capacity at a hostel operated by the defendant at Livingstone Road, Vermont South. At those premises, there were six separate houses, each containing ten elderly residents. She had previously worked at the hostel, then left and resumed working there in July 2001. At the time, the plaintiff was working an overnight shift and tended to the needs of the residents as necessary. The plaintiff worked alone. She generally commenced working at about 11.00 pm and worked through until 7.30 on the next morning.

6          On 19 October 2001, she had finished her nightshift and was in the process of leaving the hostel. She had handed over care of the patients to the dayshift worker between 7.00 and 7.30 am. The plaintiff then left the main office building to walk to her car, a short distance from the front door of the office.

7          The area where the plaintiff walked and the layout generally are best seen in photographs tendered.[1] Photograph A is a general view of the front of the premises with a car park area. Photographs E and F show the office from where the plaintiff walked as a white building with a door. The plaintiff stated that she parked her car in the car parking area to the front of that office building. Photograph G shows two cars, one red and one white, parked in car park spaces immediately in front of the office. The previous day, the plaintiff had parked her car in the car park area immediately to the left of where the red car is depicted in Photograph G, that is between the red and the white cars with the driver’s side wheels close to the edge of the steel ramp shown in the photograph.

[1]             Exhibit B

8          On the day of the incident, the plaintiff walked from the door of the office (shown in Photograph B) the short distance to her car (Photograph G) and in doing so walked across the steel ramp shown in Photograph G. The ramp had been installed a considerable time previously, and was apparently to assist persons in wheelchairs cross the guttering between the brick paved walkway and the car park. It appears from the photographs it had some form of cross hatching, presumably to provide some slip resistance. When the plaintiff placed her foot upon the ramp, she slipped and fell. It had previously been raining but was not raining at the time. As a consequence of the fall, she suffered a severe fracture to her right ankle.

9          As stated, the evidence relative to contributory negligence was brief. In evidence-in-chief, the plaintiff said the following[2]:

[2]             Transcript (“T”) 35

“Q:	Your car was parked in the staff car park?---
A:	Out the front, yes.
Q:	What happened?---
A:	Where my car was parked, which I normally didn’t park there but I had no room to park anywhere else the night before when I came in, there was a steel ramp beside it. I walked out of the office and I locked it, I walked to my car which was probably about two or three metres away from the office door. It had been raining overnight and I just walked to my car, over the ramp because the door was there and down I went.
Q:	You slipped?---
A:	I slipped.
Q:	Was that on the ramp?---
A:	It was on the ramp …
Q:	Did you notice anything about the ramp after you’d fallen to the ground?---
A:	No, nothing except that I thought to myself – why did I slip – and then I turned around and noticed that it was damp on the ramp.
Q:	Did you notice that it was damp before you fell?---
A:	No.”

10        Further, in the course of cross-examination, the plaintiff said:[3]

[3]             T 119

“Q:	And your car itself was also in - ?---
A:	Yes.
Q:	- what a metre from that ramp?---
A:	No, it was parked right next to the ramp.
Q:	So the wheel of your car would have been how far from the ramp?---
A:	Oh, only a matter of inches.
Q:	You were fully aware of the existence of those ramps?---
A:	Yes, I was aware of them.
Q:	You were aware that there are other ways of walking other than walking on the ramps?---
A:	Well, there was a circular area where some of the residents used to walk round for exercise or the other way was just walk over the gutter.
Q:	So you could walk over the gutter into the car park?---
A:	Yes.
Q:	Or you could go the long way round?---
A:	Yes.
Q:	… and it had been raining?---
A:	It had been raining overnight, it wasn’t raining at the time.
Q:	What footwear were you wearing at the time?---
A:	I was wearing a brand new pair of sneakers.
Q:	So they were simply rubber-soled shoes?---
A:	Yes, they were.
Q:	… so you must have been aware of the fact that if you did walk on a metal ramp after rain that you would potentially slip?---
A:	No, I had no thoughts of walking on a ramp and slipping over.
Q:	Did you actually look at the ramp before you walked on it?---
A:	Well, no I was walking out from the office and walking towards my car and I was watching towards my car door and just stepped onto the ramp. I knew it was there, I had to walk over it to get to my door and I just got to my car door.
Q:	Did you intentionally walk on the ramp?---
A:	Well it was the only way I had to get to my car.
Q:	But there were other ways you could have got to your car, weren’t there? You could have walked around the ramp?---
A:	But how do you mean if you could walk around the ramp? I still had to go past the ramp to get to my car door because it was parked up near the ramp.
Q:	But no doubt you could walk to the side of the ramp on the other side of it and then down the curb and to the door of your car?
A:	Well I suppose if you’re leaving work and you’re looking at the door of your car and you were going to the car would you often walk the long way around to go to the car door? Or would you walk to the - the quickest way of thinking of going to the car door?
Q:	So you were looking at the car door thinking about getting into your car?
A:	That’s right.
Q:	Rather than looking exactly where you were walking?---
A:	No I was … I knew I was walking but I also knew that I was walking to my car that was parked beside the ramp.
… Q:	Just in respect of these ramps, you were aware that they had been there since you’d been working there?---
A:	Certainly in this period.
Q:	Is that right?
A:	Yes, they’ve always been there they were there prior to my work in the first job too.
Q:	So you were aware that they were there for the purpose of getting wheelchairs up?---
A:	Yes.
Q:	And not for the purpose of walking on?---
A:	Well people had walked on them if they were going that way. They would walk on the ramps, or step over the gutter, or whatever.
Q:	But given the incline of the ramp and the fact that it was raining, it must have been apparent to you that there was a potential to slip if you walked on the ramp?---
A:	I had not – not even crossed my mind that it would be slippery, and to fall on.
Q:	It was a metal surface with just a little bit of rubber on it, is that right?
A:	Yeah, they had like pimples on them.
Q:	I suggest to you that it would have been obvious to you that it would have been far safer to take the less direct route around to your car door, rather than crossing over the ramp? Well I think after you’d worked all night and you were just knocking off duty, it was---
A:	All I was thinking of was probably going to my car and getting in it to go home. I never dreamt that the ramp was slippery, or that I was going to have an accident.
… ”

11        Further, in re-examination, the plaintiff said as follows[4]:

[4]             T 159

“Q:	Did you walk in a straight line from the door towards your car or did you walk in some other way?---
A:	No I just left the office door that I closed and I turned around, saw my car and walked straight towards the door. So I didn’t deviate, I just walked straight across the car knowing [I] had to get over the ramp to get to the car.
Q:	You’d worked there for quite a long time from your own observations, was the ramp used by pedestrians, by people walking in that area?---
A:	Oh yes, people walked over them, they took wheelchairs over them. Those ramps have been there since they opened the hostel.”

12        From the evidence it is clear that within several hours of the incident, representatives of the defendant placed a bench over the ramp (as shown in Photograph G) to prevent persons walking over it. Further, some three days later, the defendant undertook work to change the layout of the area where the plaintiff slipped. The guttering area over which the steel ramp was placed was covered by bitumen, thus alleviating the need for the steel ramp (see Photographs A and B).

13        The question of contributory negligence and apportionment of blame are always questions of fact.[5] The test to be applied is, in the circumstances of this case, and considering the nature of the relationship of employment between the plaintiff and the defendant, whether there is no evidence “that ought reasonably to satisfy the jury that the fact sought to be proved is established”.[6] “The assertion that there is ‘no evidence’ does not mean that the party claiming relief on this ground does not mean that there ‘is literally no evidence’.’’[7] The nature of the duty owed by the defendant to the plaintiff, as employer, and any duty owed by the plaintiff is relevant. The duty was described in Liftronic Pty Ltd v Unver[8] as follows:

“… The respondent (worker) owed no relevant legal duty of care to his employer. The appellant (employer), on the other hand, as employer, bore a heavy responsibility to devise, institute and enforce a safe place of work, and a safe system of work, so as to avoid exposing workers, such as the respondent, to unnecessary or unreasonable risks. This was a duty personal to the employer. The ultimate legal responsibility for its fulfilment could not be delegated. In this sense, explaining the standard of care expected of an employer in terms of the conduct of the ‘reasonable person’ may have understated the very heavy duties that the law in Australia casts on an employer. Such duties include affirmative attention to the issue of accident prevention. … ”

[5]             McLean v Tedman & Anor. (1984) 155 CLR 306, at 315; Hicks v British Transport Commission [1958] 2 All ER, at 39

[6]             Swain v Waverley Municipal Council [2005] HCA 4, at paragraph 204

[7]             Swain (supra) at paragraph 204

[8] [2001] HCA 24, at paragraph 85

14        The duty of the employer must also take into account the possibility of inadvertent or even negligent conduct of the worker.[9]

[9]             McLean v Tedman (supra) at 311

15        In relation to contributory negligence, the High Court in Liftronic went on to say:[10]

“When regard is had to the decisions of this Court on the subject of contributory negligence in an employment context, it is indisputable that reasonable care by an employer in Australia today requires ‘allowance to be made (in relation, eg, to a safe system of work) not just for inadvertence, misjudgement or inattention but also for neglect, carelessness and sometimes even foolishness or misconduct on the part of employees – including skilled and/or experienced employees’. Indeed, the cases that support these propositions suggest an increasingly ‘forgiving’ attitude by the Courts toward errant employees in their approach as to what constitutes contributory negligence and the related apportionment of responsibility.

Inattention born of familiarity with a repetitious task, absorption in work functions and mistakes caused by fatigue or severe discomfort may not even constitute contributory negligence at all. Still less would they ordinarily warrant a most substantial reduction in the damages to which the employee is otherwise entitled for the consequences of the employer's negligence. The same is true if the employee lacks appreciation of the danger to which the place or system of work exposes the employee. Employers, acting reasonably, must provide a safe system of work for the average worker and ‘not a system which is safe only for persons of superior skill whose attention never wanders’.”

[10]           paragraphs 87-88

16        I am referred by Mr Mighell to Kulczycki v Metalex Pty Ltd.[11] In that case, Ashley J, having referred to risks of injury which were improbable or unlikely, then said:

“Then take the converse. It may be that a particular risk of injury is readily foreseeable in the event that a system of work which addresses that risk is not implemented and maintained and that the worker is thereby facilitated to conduct himself without due care for his own safety; or, for that matter, inadvertently or inattentively. Indeed, in such a case the principal reason why a system of work should be implemented and maintained may well be to deny or limit the opportunity for the worker to engage in careless conduct. In such a case it appears to me consonant with principle to conclude that a finding of contributory negligence should not be open in the event that the employer breaches its duty of care, and that the worker so conducts himself.

Between the extremes referred to in the two preceding paragraphs there will be a range of factual situations. It will, I think, be a matter for the tribunal of fact in most cases to determine whether, notwithstanding an employer's failure to take reasonable steps to protect a worker from the worker's own carelessness, the conduct of the .worker amounts to contributory negligence. But in the second type of situation outlined above it will be appropriate, in my opinion, that the issue of contributory negligence, in a trial with a jury, not be left open for consideration by the jury.”

[11] [1995] 2 VR 377, at 409

17        The defendant at the commencement of the trial, and quite appropriately in my view, admitted negligence. It admitted therefore that the plaintiff’s place of work, in particular the ramp over which the plaintiff walked, was unsafe. While it would appear principally the ramp was to assist persons in wheelchairs, it is clear from the plaintiff’s evidence, that other persons coming to and from the premises use the ramp regularly to walk over. There was nothing about the nature of the ramp or the surface of it to give the plaintiff any cause for concern for her own safety up until the day of the incident. She was wearing a new pair of shoes with appropriate rubber soles.

18        The plaintiff had worked the nightshift, and her understandable concern on the morning in question was to walk directly to her car to return home. It is reasonable that after such a shift that the plaintiff’s attention in leaving the front door of the premises was directed to where her car was parked. She admitted she did not look down at the ramp, but I am of the view that on the evidence there was no need for her to do so.

19        Of significance was that although the plaintiff knew that it had been raining, and further, knew at least after the fall that the ramp was damp, she did not believe it was slippery. She said she did not recall walking across the ramp previously when it had been wet. Ms Dixon submits that it would be common knowledge to any person going across the ramp that it might be slippery and therefore the plaintiff ought to have taken extra care for her safety by going to her car via some other available route. It is clear there were other ways the plaintiff could get to her car without walking over the ramp. Further, she says, in relation to whether the plaintiff was merely acting inadvertently as did the garbage collector in McLean, there is a difference between an unsafe system, as was the case there, and an unsafe place of work. She submits further that although the defendant admitted negligence, it was not that there was a patently obvious danger. The plaintiff, she says, was not walking on a designated walkway, and not only the fact of the dampness, but that combined with the slope of the ramp, ought to have alerted the plaintiff to take another easily available route.

20        It may be said that the plaintiff’s conduct could be inadvertent or even inattentive. She may have made a misjudgement by walking over the sloping ramp when it was wet. Given the fact that she had just finished nightshift, she could be easily excused for not, in her mind, realising that the ramp was possibly slippery because it had been raining. As she said, her mind was concerned with getting to her car and getting home. The conduct of the plaintiff, in my view, falls squarely within the description of conduct of an employee referred to in Liftronic.[12] At best it could be said to be inattention born of familiarity, absorption in work functions or mistake caused by fatigue. Given the defendant had the responsibility to provide a safe place of work and did not do so, any inattention or inadvertence by the plaintiff ought not, in the circumstances of the relationship between the parties, constitute contributory negligence. There was nothing about the appearance of the ramp nor the plaintiff’s prior use of it to alert her to the prospect of a fall. If it could be argued she ought to have been alerted by the state of the weather and the slope of the ramp, to take an alternative route, then I am of the view her actions were in the nature of inadvertence, which ought to have been within the contemplation of the defendant. Such inadvertence does not, in my view, amount to contributory negligence. Further, it does not matter whether the facts of the case relate to issues of the system of work as opposed to the place of work.

[12]           (supra), at paragraph 88

21        I have considered whether it is appropriate in accordance with various authorities[13] to reserve leave non obstante veredicto to the plaintiff to argue the matter after the jury’s verdict. In circumstances where there may be delay or expense in determining whether contributory negligence ought to be left open, or the removal of a potential ground of appeal, leave may be reserved.[14]

[13]           See Prestinenzi v Steel Tank and Pipe Consolidated Pty Ltd [1981] VR 421

[14]           See Herald & Weekly Times and Bolt v Popovic (2003) 9 VR 1

22        However, given my findings that there is no sufficient evidence upon which a jury could find contributory negligence, and given that there is no significant delay in the provision of this ruling, I am of the view the matter ought to be determined at this stage.

- - -