McFarlane, Gloria Jean v Australian National University

[1982] FCA 196

Re: GLORIA JEAN McFARLANE
And: THE AUSTRALIAN NATIONAL UNIVERSITY
No. ACT G32 of 1982
Tort

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.
Davies J.
Kelly J.

CATCHWORDS

Tort - contributory negligence - standard of care - interference by appellate court with trial judge's finding

Law Reform (Miscellaneous Provisions) Ordinance 1955 ACT s.15(1)

HEARING

CANBERRA

#DATE 17:9:1982

ORDER

1. The appeal be allowed.

2. The judgment of the learned trial Judge be varied by substituting for the sum of $79,600.00, the sum of $136,000.00.

3. The cross-appeal be dismissed.

4. The respondent pay the appellant's costs of the appeal and of the cross-appeal, to be taxed.

JUDGE1

This appeal arises from an accident to the appellant in the H.C. Coombs Building on the campus of the Australian National University.

The appellant was employed by the respondent as a cleaner. She started work at 4 or 4.30 a.m. When she arrived at work it was still dark and lights had to be turned on as she and other cleaners moved around the building. The system of work was that after collecting keys she proceeded to the area to be cleaned where she unlocked the doors and switched on the lights. She then swept out rooms and where appropriate polished and vacuumed. She then picked up used cups and saucers and put them into a bucket or buckets to carry down to the kitchen to be cleaned.

At about 5.00 a.m. on 24 July 1972 the appellant was descending fire escape stairs between the first floor and ground floor of the building. She was carrying in each hand a metal bucket full of cups and saucers. There were two flights of stairs between each floor level, each flight having about eight steps. The stairway was lit by electric lighting overhead and on the wall of the landing between the levels. There were light switches on the wall at the head of the stairs at each level. All the lights were designed to be activated by any one switch.

The appellant had almost reached the landing between the first floor and ground floor when the lights in the stairway suddenly went off. The appellant was left in complete darkness. She stopped on the stairway and called out to anyone who might hear to put the lights back on. As there was no answer she continued to descend the remaining stairs to the landing, while carrying the buckets. She missed her footing and fell onto the landing, hitting the wall and injuring herself.

There is no appeal from the learned trial Judge's finding that in all the circumstances, only some of which have been mentioned, the respondent was negligent.

His Honour also found that the appellant was negligent, assessing her contributory negligence at 40%. She appeals against that finding, contending that there was no contributory negligence on her part, alternatively that if there was, it was to a much less extent than 40%.

His Honour's finding of contributory negligence was preceded by an assessment of the evidence in these terms:

"Instead of putting the buckets down on the stairs and feeling her way to safety with the aid of the handrail, she paused for something like two minutes and then decided to proceed down the stairs still carrying the buckets in each hand. She could have put them down. She could have put down one bucket and held the handrail. It is relevant that having fallen she was able to guide herself in the darkness back to the first level, whence she had come, by the use of the handrail. Furthermore, she and Mr. Coloretti were able to descend the stairs again in the darkness before the lights were switched on again.".

The basis for a finding of negligence on the part of the appellant may be found in the following passage from his Honour's reasons for judgment:

"It seems to me that in electing to descend the stairs in the darkness to the level between flights carrying the buckets without using the handrail provided the plaintiff failed to a very considerable extent to exercise care for her own safety".

It will be seen that there was no finding of contributory negligence merely because the appellant continued down the stairs. We take his Honour to be saying that her negligence lay in continuing with a bucket in each hand, thus depriving herself of the opportunity to use the handrail.

The appellant was cross-examined as to why she did not put down the buckets and use the handrail. Her answer was that if she had put them down "they could have fallen on the steps and I would not have known where they were, walking down". It was then put to her that the steps were wide enough for her to have put the buckets down and then to have walked down the stairs holding the handrail; to which her answer was "Well, I did not do that". That line of cross-examination was pursued. In the course of it the appellant said:

"Well I did not think to put them down on the stairs simply because if I tried to put them down on the stairs they might overbalance, I might not put them squarely on the steps . . . I still had the buckets in my hands because I thought I was capable of making it to the platform . . . I felt in my own mind it was probably only a few stairs, three or four stairs off to the platform. I did not really know where I was.".

It should be appreciated that when the lights went out the appellant stopped where she was for a short time to see if they would come back on. When they did not she called out. She then made the decision to continue descending the stairs. But she made that decision because she thought it would be easier for her to make her way to the platform "and put down the cups and then go back up to the light switch, but when I went down the steps, I do not know, I just stepped into nothing".

In other words, at the time she fell the appellant was carrying the buckets in order to place them on the platform nearby so that she might then ascend the stairs to the light switch.

When the lights went out, there were several courses open to the appellant. She might have stayed where she was until someone heard her cries or the lights came on again. She did in fact call out but no-one heard her, nor did the lights come on. There was no suggestion before this Court that she was negligent in not remaining where she was. Another course open to her was to put down the buckets and then seek to return to the light switch. The appellant's explanation for not doing this was that if she tried to put the buckets down on the stairs they might overbalance and she would not have known where they and their contents were. In making that decision it cannot be said that she was careless of her own safety; indeed she made the decision, which was not an unreasonable one, expressly for reasons of her own safety. She might perhaps have returned to the light switch carrying the buckets but her decision not to do this, because of what she believed to be the proximity of the platform, cannot be criticised. She might perhaps have put down one bucket leaving a hand free to use the handrail. With hindsight that might have been the most sensible decision although there was still the risk that one bucket might overturn and obstruct her.

By reason of s.15(1) of the Law Reform (Miscellaneous Provisions) Ordinance 1955 of the Australian Capital Territory,

". . . where a person suffers damage as a result partly of his own fault and partly of the fault of another person or other persons, the claim in respect of that damage is not liable to be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect of the damage shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.".

The statute requires that the Court arrive at a just and equitable apportionment as between the plaintiff and the defendant of the "responsibility" for the damage. This in turn involves a comparison of culpability, meaning not moral blameworthiness but degree of departure from the standard of care of the reasonable person. Pennington v. Norris, (1956) 96 C.L.R. 10. But before there can be any apportionment it is necessary, the defendant having been held to be negligent, that there be on the part of the plaintiff some departure from the standard of care of the reasonable person.

Was there, in the present case, a departure from the standard of care to be exercised by a person finding himself or herself in the position of the appellant? Counsel for the respondent rightly pointed out that this was not a case of momentary inattention and that the appellant had time in which to make a considered decision as to what she would do. Nevertheless she had been placed in a position of danger by the negligence of the respondent and she was in a dilemma as to what course she could take. To hold the appellant to have been negligent in those circumstances, it is not enough to show, if it be the case, that a course of action alternative to the one she took might have been taken with greater likelihood of safety. The question still remains - did she depart from the standard of care of a reasonable person in the circumstances in which she was placed by the respondent's negligence? In our view the answer to that question must be no. Her decision to continue to the platform, put down the buckets and return to the light switch was a reasonable one in the circumstances.

The Court was referred to the recent decision of the High Court in Watt v. Bretag, (unreported decision delivered 28 July 1982) in which the Court stressed that it is only in exceptional circumstances that an appellate court will interfere with a trial Judge's apportionment. But there is, we think, a difference between interfering with an apportionment by substituting another apportionment and interfering with an apportionment where the Court is persuaded that there was no contributory negligence at all. In both cases an evaluation of conduct must be made but if it is accepted that there was negligence on the part of both plaintiff and defendant, the assessment to be made is one of comparative responsibility involving some exercise of discretion, albeit a discretion to be exercised on proper principles. Where an appellate court is persuaded that there was no departure from the appropriate standard of care by the plaintiff, the comparative evaluation by the primary judge and the exercise of discretion no longer stand in the way. In the present case, to reach a decision that there was no contributory negligence does not involve making findings of fact different to those of the learned trial Judge. It is a matter of the proper inference to be drawn. Warren v. Coombes (1979) 142 C.L.R. 531, Commonwealth of Australia v. Introvigne (unreported decision of High Court, delivered 3 August 1982).

In our view the appeal should be allowed and there should be substituted for the judgment of $79,600.00, a sum of $136,000.00, the damages assessed before apportionment. The appellant should have the costs of the appeal and of the cross-appeal which was not pursued.