Michel v Broadlex Services Pty Ltd
[2020] ACTSC 57
•13 March 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Michel v Broadlex Services Pty Ltd |
Citation: | [2020] ACTSC 57 |
Hearing Date: | 14 February 2020 |
DecisionDate: | 13 March 2020 |
Before: | Mossop J |
Decision: | See [63] |
Catchwords: | CIVIL LAW – NEGLIGENCE – Personal injury – appeal from the Magistrates Court – appellant was injured at work while reaching for the phone – whether the magistrate erred in finding the injury was not foreseeable – he did – no findings as to credibility of witnesses – limited reasons given – proceedings remitted to the Magistrates Court |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT), s 43 Court Procedure Rules 2006 (ACT), r 6700 Limitation Act 1985 (ACT), s 36 |
Cases Cited: | Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 Chapman v Hearse (1961) 106 CLR 112 Wyong Shire Council v Shirt (1980) 146 CLR 40 |
Texts Cited: | Commonwealth of Australia, Review of the Law of Negligence: Final Report (2002) |
Parties: | Daina Michel (Appellant) Broadlex Services Pty Ltd (Respondent) |
Representation: | Counsel T Crispin (Appellant) A Muller (Respondent) |
| Solicitors Capital Lawyers (Appellant) Minter Ellison (Respondent) | |
File Number: | SCA 63 of 2019 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Lawton Date of Decision: 26 September 2019 Case Title: Michel v Broadlex Services Pty Ltd Court File Number: CS 189 of 2019 |
MOSSOP J:
Introduction
On 13 January 2015 the appellant, an office manager for a cleaning company, was injured when she rolled her ankle at work. She had rushed from a storeroom to her desk in order to answer the phone. She arrived at her desk and leaned over to pick up the phone. At that point her ankle rolled. She had previously asked her manager for a telephone headset, cordless phone or an answering machine, but this request was declined. The appellant claimed damages in proceedings in the Magistrates Court. She also sought an extension of time in which to bring the proceedings under s 36 of the Limitation Act 1985 (ACT). Both aspects of the case were heard together. The magistrate granted an extension of time. However, the magistrate gave judgment for the respondent on the substantive claim. The reason that her claim was unsuccessful was the magistrate found that it was not foreseeable that she would suffer an injury in the manner that she did. The appellant has appealed from that decision. The respondent has filed a notice of contention seeking to uphold the order in its favour upon grounds different to those articulated by the magistrate. There is no appeal against the order granting an extension of time.
Grounds of appeal
The appellant’s grounds of appeal are as follows:
a.His Honour’s finding that the respondent was not negligent was incorrect and not supported by the weight of the evidence;
b.His Honour’s finding that the appellant had suffered a “freak accident” that was not reasonably foreseeable by the respondent was incorrect and not supported by the weight of the evidence;
c.His Honour should have found that the respondent was negligent, as the respondent required the appellant to answer all calls, denied her request for a headset or cordless phone, and the appellant was often alone in the office, which meant that she had to rush to her desk from the storeroom to answer incoming calls, increasing her risk of injury; and
d.His Honour should have found that there was a reasonably foreseeable risk of injury, particularly due to the layout of the office and the requirement for the appellant to move through the office at great speed to answer incoming phone calls.
In written submissions, although none of the grounds of appeal were abandoned, the contentions of the appellant were summarised as a single proposition, “that the injury suffered by the Appellant was reasonably foreseeable”. I have dealt with the appeal on that basis.
Notice of contention
The respondent filed a notice of contention. The respondent contended:
1.The relevant risk of harm, being the risk that a person exercising reasonable care for their own safety would roll their ankle while moving to answer a phone was insignificant.
2.In the circumstances, the respondent did not breach its duty of care to the appellant as, a reasonable person in the respondent’s position would not have taken precautions against the risk of harm, as:
a.the probability that the harm would happen was insignificant;
b.a reasonable person would not have warned the appellant about the risk of everyday activities such as walking or moving over a flat surface or answering a telephone;
c.the office layout was such that the appellant could have answered the phone without “rushing”; and
d.the work systems of the respondent did not require the appellant to ‘rush’ to answer calls.
3.The appellant was unable to explain the mechanism of her injury and has not demonstrated that the alleged negligence was a necessary condition of the happening of the harm. Therefore, should the appellant be successful under subsection 43(1)(c) of the Civil Law (Wrongs) Act 2002, the proceedings should nonetheless be dismissed on the basis the appellant has failed to satisfy subsection 45(1)(a) of the Civil Law (Wrongs) Act 2002.
4.The respondent further contends that the following questions of fact were not decided by [the magistrate]:
a.whether, and if so, the frequency with which the appellant was required to ‘rush’ to answer the telephone;
b.the reasons for the appellant requesting a headset; and
c.the distance between the appellant and the closest available telephone at the relevant time.
5.The respondent contends that where a dispute of facts arose in regards to the above, His Honour ought to have preferred the evidence provided by the witnesses called by the respondent.
Judgment below
The judgment below was given orally immediately after the conclusion of oral submissions. It extended over approximately three and three-quarter pages of transcript. One and a half pages were devoted to the substantive claim, the balance being devoted to the issue of whether or not it was appropriate to grant an extension of time in which to bring the claim pursuant to s 36 of the Limitation Act.
The reasoning of the magistrate on the substantive negligence claim was as follows:
(a)The appellant’s evidence was that she was often folding and organising the uniform cupboard in the back of the office. Her desk and phone were at the front of the office. She asked her manager, Mr Todoroski, if she could be supplied with a cordless phone or an answering machine. Her evidence was: “This was to avoid calls that would potentially go unanswered in the Canberra office being transferred through to the head office which would always result in me being reprimanded for not being at my desk to answer frequent calls the office received”.
(b)Contrary to the appellant’s evidence, there was not, in fact, a system of forwarding unanswered calls to the Sydney office. It appeared that “the [appellant] took her responsibilities seriously in terms of her duties to answer the phone in what she perceived to be a timely manner”. It was because of this that she would try to answer phone calls as quickly as possible, usually within two rings. She conceded in cross-examination that no one had told her to answer the phone within two rings.
(c)On the day of the accident she was out the back organising uniforms. The magistrate set out her version of the incident which was:
Fearing I’d miss the call and once again be reprimanded, I ran quickly through the office to my desk. As I approached the desk, starting to lean down to pick up the phone my right ankle rolled outwards and my right foot essentially folded in half. I was in agony with instant pain.
(d)The magistrate then referred to the version of events given to Dr Le Leu which the appellant was cross-examined on. Included in Dr Le Leu’s report was the following:
However, her injury did not happen while she was rushing to the phone but rather as she quickly bent over the desk in what was a tight situation to pick up the telephone handset. As she was leaning over, her right foot was probably at a 45 [degree] angle inwards from directly forward and, as she leaned, the right ankle rolled outwards.
(e)The magistrate made no specific findings as to whether the difference in the description of the incident was significant and, if so, precisely what happened.
(f)The balance of the magistrate’s reasons was as follows:
The nub of this case is whether or not it was reasonably foreseeable that in the circumstances there was a risk that the [appellant] would suffer an injury in the manner that she did. I struggle with that risk. In my view, it does not necessarily even require resolving of the conflict of the evidence of Mr Todoroski and the [appellant].
Mr Todoroski’s evidence, in brief, was that the [appellant] had asked for a cordless phone or headset and on his recollection that was in order to allow her to work at her desk and use the computer whilst still speaking on the phone. The [appellant’s] evidence was different to the respect that, as I have said, and she attests in her affidavit, the provision of a cordless phone would, in her view, necessarily avoid calls that would potentially go unanswered which she said would always result in her being reprimanded.
Ultimately, as I have said, in her evidence she referred to her desire to answer the phone in a timely manner as part of her commitment to her professional duties, but the difficulty I struggle with is that, as I described it in discussions with counsel for the [respondent], he adopted the phrase I used, it was an unfortunate accident as a result of the [appellant] reaching to answer the phone.
I am not satisfied on the balance of probabilities that it was reasonably foreseeable that she would sustain an injury in this manner, and as such I am not satisfied that there was a risk that was foreseeable, and as such, I cannot find that the [respondent] was negligent. Accordingly the claim is dismissed.
It is unfortunate that the magistrate only made very limited findings of fact, failed to resolve any issues of credibility and did not address on a contingent basis the issues that would have arisen had he not found against the appellant on the issue of foreseeability. Each of these features of the decision has the effect that, if the decision on foreseeability is wrong, the burden on this court on appeal is increased and the risk of the need for a retrial, with all its attendant cost and difficulty for the parties, is increased.
Foreseeability
In my view, the magistrate was wrong to conclude that the injury was unforeseeable.
Foreseeability may be relevant to the existence of a duty of care or to the scope of the duty of care. It is only the scope of duty which was relevant to this case as the existence of a duty was not in issue.
Where related to the scope of duty of care, reasonable foreseeability may be relevant in two ways. It may be relevant because the type of accident was not reasonably foreseeable. It may be relevant because the type of injury was not reasonably foreseeable. Under the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act), s 43 says that “A person is not negligent in failing to take precautions against a particular risk of harm unless … the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known)”. The reference to a “risk of harm” picks up issues to do with the type of accident and the type of injury.
The magistrate’s finding was that it was not “reasonably foreseeable that she would sustain an injury in this manner”. Because of the brevity of this statement two things are not clear. First, whether the finding of lack of foreseeability related to the type of accident or the type of injury. Second, at what level of abstraction the magistrate made his finding. The reference to “in this manner” suggests a specific finding concerning the rolling of the ankle. However, it is possible that he used this expression to deny foreseeability to an injury arising out of the need to travel from one part of the premises to the other.
In Thompson v Bankstown Corporation (1953) 87 CLR 619 at 630 (a duty of care case) Dixon CJ and Williams J said in relation to the issue of foreseeability:
In the application of these formulas it is important to avoid the error of confusing the precise chain of circumstances by which the plaintiff incurs the injuries or damage of which he complains with the question whether he, acting as he did, falls within the general description of persons likely to be affected. The exact course which events take can seldom be foreseen in detail. But it is another thing to treat it as reasonable to foresee in a general way the kind of harm that may ensue from acts and omissions and, under wide and indefinite categories, the sorts of situation men must occupy for the harm to be likely to reach them.
This passage was adopted in Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 222 (a foreseeability of injury case) where the majority said:
It is important to observe, particularly as the argument presented for the appellant appeared to give insufficient weight to it, that the jury had not to consider whether it was reasonable to foresee an escape of trucks in the precise manner, whatever it was, in which the trucks escaped on the occasion in question. They had to consider only whether it was reasonable to foresee in a general way the kind of thing that occurred: see Thompson v Bankstown Corporation (1953) 87 CLR 619 at 630.
In Mount Isa Mines Ltd v Pusey (1971) 125 CLR 383 (Pusey) (a foreseeability of damage case) the members of the court held that it is not necessary that the particular injury from which the claim arose should have been foreseeable. It is sufficient to found liability if the class of injury was foreseeable as a possible consequence of particular conduct: see 390, 393, 401-402, 411, 413-414. For example, Barwick CJ said (at 390):
That it is sufficient that the class of injury as distinct from the particular injury ought to be foreseen as a possible consequence of particular conduct in order to establish liability for damages for the particular injury is well established (See e.g. Chapman v Hearse (1961) 106 CLR 112 at 115).
The reference to Chapman v Hearse (a duty of care case) should probably be to page 120 of the decision where the court stated:
It is, we think, sufficient in the circumstances of this case to ask whether a consequence of the same general character as that which followed was reasonably foreseeable as one not unlikely to follow a collision between two vehicles on a dark wet night upon a busy highway.
In Pusey, Windeyer J recognised the potential imprecision of this criterion for foreseeability, saying (at 402):
This comfortable latitudinarian doctrine has, however, the obvious difficulty that it leaves the criterion for classification of kinds or types of harm undefined and at large.
The logical problem thus engendered has been noticed by commentators, including Professor Jackson in his learned and critical article "A Kind of Damage" in The Australian Law Journal, vol. 39, pp. 3-16. Lord Wright in Bourhill v. Young (1943) AC, at p 110 said:
"The lawyer likes to draw fixed and definite lines and is apt to ask where the thing is to stop. I should reply it should stop where in the particular case the good sense of the jury or of the judge decides."
That perhaps does not reckon with courts of appeal, and varying judicial opinions of where in good sense the proper stopping-place is.
Section 43(1) frames the issue by reference to “precautions against a risk of harm”. This assumes that a risk of harm has been identified as well as the precautions which are alleged to have been required. This helps define the level of abstraction at which the issue must be considered but does not resolve the issue: Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320; 91 NSWLR 752 at [110].
In the present case the only precautions that were specifically alleged by the appellant were the provision of a second telephone, a cordless telephone or a headset. The possibility of an answering machine was referred to in evidence. In those circumstances the risk of harm may be articulated at an appropriate level of abstraction as the risk of an employee being injured when moving from her place of work within the office to answer the telephone.
In my view such a risk was clearly foreseeable. As the bracketed words in s 43(1)(a) make clear, the concept of foreseeability relates to knowledge rather than probability. It is clearly foreseeable that an employee may suffer injury in a variety of ways if the system of work requires her to move from one part of the office to another in order to answer the phone. There are a variety of ways in which an employee may injure themselves when rushing (or otherwise moving) through an office environment such as the respondent’s in an attempt to answer a telephone that was some distance away. Common risks include bumping into something, tripping, rolling an ankle or falling. It is not necessary at this stage to assess their likelihood or whether they are significant enough to warrant a response. Those issues are dealt with by the other limbs of s 43(1). The focus is only on foreseeability and the bar is not very high. It is satisfied in this case. To put it in a manner more consistent with the negative manner in which s 43(1) is framed: the appellant’s claim does not fail because the accident which occurred or injury that she suffered was not foreseeable.
For this reason, the appellant’s ground of appeal asserting error in the magistrate’s finding is made out.
Notice of contention
The issue then becomes whether the matters identified in the notice of contention provide a basis for the order made by the magistrate. Those matters of contention require an assessment of the matters in s 43(1)(b) and (c).
As only limited findings of fact were made by the magistrate and no assessment was made of the credibility or reliability of the evidence of the witnesses in the case, it is necessary to review the relevant evidence and then decide whether it is possible to determine the matters raised by the notice of contention without making findings based upon the assessment of the credibility or reliability of the evidence of witnesses. If it is necessary to make findings based upon credibility, then a retrial will be required.
Evidence
As the application for an extension of time and the substantive hearing were heard together, much of the oral evidence given at the hearing related to matters relevant only to the extension of time. The issue of quantum was agreed between the parties on the morning of the second day of hearing. Therefore, there was relatively confined evidence given that went directly to the question of liability. That evidence was given by the appellant and two witnesses called by the respondent, Mike Todoroski and Katrina Guy. There was also some limited evidence as to the circumstances of the accident in histories given to doctors whose reports had been tendered prior to agreement being reached about quantum.
The appellant
The appellant had affirmed an affidavit which was read in the proceedings. While evidence in a case such as this would usually be given orally (see Court Procedures Rules 2006 (ACT) r 6700), the affidavit was probably prepared and relied upon because the substantive proceedings were heard at the same time as the application for an extension of time which may have been dealt with as a separate application in proceeding and for which affidavit evidence would have been appropriate.
That affidavit included the following:
8.On 13th January 2015, I was in the back room/storeroom of the Broadlex Fyshwick office folding and organising the uniform cupboard. That was a frequent task within the position I held. My desk and phone were at the front of the office, which is the furthest point from the back room. As I was out the back on a regular basis, I asked Mr Mike Todoroski, ACT Branch Manager, if I could be supplied with a cordless phone or at the very least an answering machine. This was to avoid calls that would potentially go unanswered in the Canberra office, being transferred through to the head office in Sydney which would always result in me being reprimanded for not being at my desk to answer the frequent calls the office received. This request was denied for apparent financial reasons.
9.On the day in question, while I was out the back organising the uniforms, the phone rang. Fearing I’d miss the call and once again be reprimanded, I ran quickly through the office to my desk. As I approached the desk, starting to lean down to pick up the phone my ankle rolled outwards and my right foot essentially folded in half. I was in agony with an instant pain.
In oral evidence she said “so I was out the back folding uniforms and organising the uniform cupboard, and the phone started ringing. So I rushed from right out the back to right down the front to get the phone before it stopped.” She said that it was about 15 metres or so. She said “I had to rush because, you know, people only let the phone ring for so long before they hang up or it would ring out, so I wanted to pick it up so it didn’t go unanswered.”
She gave evidence of having discussed the issue of the telephone with her supervisor (Mr Todoroski). She said that she had wanted a cordless phone or an answering machine “because if I was out the back I didn’t want to have to rush to get the phone, or I it [sic] was, like, out the back up a ladder or quite often I’d also be in the storeroom that was kind of next to my desk, but there was a door that was always shut there and I’d have to make my way through boxes and all sorts of stuff to actually get back to the phone, so it would just be a lot easier if I could carry something around with me”. She was asked what would happen if a call was not answered and said: “So a lot of people would end up calling the Sydney office direct and then I would get asked why I didn’t answer the phone.”
Her affidavit was then read. She then gave evidence going to damages. At the conclusion of her evidence in chief another witness was interposed and the proceedings adjourned. The next morning she was cross-examined.
In cross-examination she agreed that the mechanism of her accident was that “the injury didn’t happen while you were rushing on your way to the phone, but as you quickly bent over the desk to pick up the telephone headset” and she said “because of the awkward position of where the phone was, I couldn’t just get to the desk and pick it up. I had to kind of get past my chair and get to the phone.” She agreed that she was leaning around in an awkward position picking up the phone when her ankle rolled.
Later in her evidence she disagreed with the proposition that it was not very far at all from the back office to the phone. She agreed with the proposition that it was about a distance of 10 metres. Later saying “I feel like maybe it was a bit more than that, but I mean, it was a few years ago since I was there.” She said that uniforms arrived every six weeks or maybe a little bit more.
She said it was about the same distance going to an alternative desk to pick up the phone.
As to the number of telephone calls that she received each day:
(a)When it was suggested that on average the office only received “a few calls a day” she said “Oh, well, on average maybe.”
(b)Later: “Look, I can’t tell you how many phone calls I received in a day… it was more than two calls a day. I can - yes, that would have been a pretty slow day.”
In relation to her discussion with Mr Todoroski about an answering machine or cordless phone she said that Mr Todoroski had said that there was some money involved in an answering machine or answering company and that installing the cordless phone would also cost money and head office would not agree to that.
It was then suggested to her that two, three, four or five calls a day would not warrant an answering machine or a headset and she answered:
Well, again, I mean, there would be more than five calls a day, and if I’m expected to be out the back in the storeroom, quite often up a ladder, holding boxes, putting uniforms up there, also in the room where the - the storeroom where I’ve got chemicals and other things stored in there, I’d have to be in there, up ladders quite often. In the other storeroom, opening and closing the roller door for the supplies [sic] to deliver things, and that storeroom had boxes all over the joint, so to get in and out of that room was a bit of an obstacle course. So - and you know, I took pride in my job so I didn’t want to miss phone calls.
What I’m suggesting to you is that there was no need for you to miss phone calls because wherever you were within the office you had ample time to reach a phone within a few rings? ---Well, no, that’s not true. If I have to dodge through boxes or get down ladders, if I’m in the middle of holding a box or trying to put something on a top shelf up some steps on a ladder, I’m not going to jump off the ladder and then run through all the boxes. That’s going to take more than a couple of rings.
See, there was no need for you to rush at all to answer the telephone, was there?---Well, yes, there was, because I didn’t want the calls to go unanswered.
No one had told you you needed to rush?---I had been asked why I didn’t answer the phone on many occasions.
There’s no call forward system, as you assert in your affidavit, is there?---I don’t recall but I recall people calling the Sydney office and saying there was no answer in Canberra, and then they would call me and say, “why weren’t you answering the phone?”
No one told you you had to answer the phone after two rings?---No, but that’s sort of like the - the standard. You don’t sort of want the phones to ring for too long because people tend to hang up after a - it rings for a few rings anyway.
But no one told you that you had to do that, did they?---No, no one told me that.
All right?---But as I said, I try to do well at my job, so.
In re-examination she was asked about answering the telephone at another desk and she said that there was a partition in the way as well as a chair and you would have to go round those things.
She gave some evidence as to the modest cost of an answering machine which was objected to, but his Honour appeared to allow that evidence.
Ms Guy
Ms Guy was the office administrator who took over the appellant’s role when the appellant left. They overlapped in employment for one week. She said that it was 10 to 12 metres from where the uniforms were stored to the phone on the front desk of the premises and that except in one irrelevant respect, the layout of the office had not changed over the time that she had been there.
She estimated that it would take two rings of the phone to get from the uniform storage area to the nearest phone.
Her evidence was that in a normal day the telephone only rang “four or five times” and on a busy day “six, eight”. She said that there was never any call forwarding system on the telephone that forwarded unanswered calls to the Sydney office.
She said that in the period since she commenced in August 2015 to the date of the hearing, she had only folded clothes in the uniform storage area twice.
In cross-examination it was suggested that if she answered a phone at a different desk and information was required from the computer then she would have to log in and wait for that process. She denied that was the case, saying a login would only be necessary if the computer had gone to sleep and she had the password anyway. She denied that anyone else had taken over the uniform folding task from her.
Mr Todoroski
Mr Todoroski was the ACT branch manager of the respondent. He had been in that role for 14 years. He was not at the premises when the accident occurred. He said the only difference in the layout of the premises was that the photocopier had been moved.
His evidence was that the appellant’s phone was about 10 metres from the area where the uniforms were stored and that in January 2015 the nearest phone to the storage area was about 4 metres away.
As to the number of phone calls received, he said it was on average about 12 calls a day and up to 20 calls on a busy day.
He agreed that the appellant had asked for a headset and he had said that he did not think she needed one and he would not ask for approval from head office because he knew they would not approve it. He did not think it was needed because they were not getting enough phone calls to warrant a headset.
In cross-examination he agreed that in the 12 months prior to the accident he had one or two conversations with the appellant relating to a headset. It was suggested to him that the appellant explained that she was having difficulty getting to the phone in time to answer it and he said “I’m not aware of that”. It was suggested to him that she had said she needed a headset because it was difficult to get to the phone in time to answer it and he said “I don’t believe so” and that the reason was “it was more so she could continue working on the computer and answer the phone”.
In relation to the delivery of uniforms he said that it was one of the appellant’s duties to put uniforms into the storerooms but that there was no timeframe in which that had to be done. He said the exercise would probably take two or three hours in total.
It was put to him that the appellant had suggested getting an answering machine and he said “I don’t believe an answering machine was ever suggested”.
It was put to him that if a call was not answered then the company might lose a client. He explained that each client has a designated area manager and the client has the manager’s mobile phone number. Clients are encouraged to contact the area manager rather than the office and the manager may be contacted 24 hours a day. He said that the calls coming to the office might be suppliers or cleaners looking for an area manager that they could not reach on the mobile phone, cold callers or head office. He agreed that he had told the appellant that a headset was not warranted. He said he had never looked into the cost of headsets. He did not think a headset was warranted and did not believe that head office would approve it.
In re-examination he gave evidence that it was about 4 metres from the uniform storage area to the phone in his office.
At the conclusion of re-examination the magistrate asked some questions which included what the appellant had said was the reason for her asking for the headset. Mr Todoroski said “it was so she could continue working at her desk while taking calls”. He was asked whether prior to the incident he had ever seen the appellant rush to answer the phone and said “possibly on occasion, yes.” He denied he had ever directed her that she should answer the phone as quickly as possible.
Documentary evidence
The tendered medical reports contained some statements in relation to the accident. The statement referred to in the magistrate’s reasons was that in the report of Dr Le Leu which provided:
Ms Michel confirmed that she was working alone in the back office folding uniforms on 13 January 2015. The telephone at the front office rang, and she rushed to try and answer it. However, her injury did not happen while she was rushing to the phone but rather as she quickly bent over the desk in what was a tight situation to pick up the telephone handset. As she was leaning over, her right foot was probably at a 45 [degree] angle inwards from directly forward and, as she leaned, the right ankle rolled outwards. She heard a crack, and it was “incredibly painful”. She says what made it more annoying was that when she picked up the telephone, the person had hung up.
She emphasised that she had been moving quickly to get to the phone, but at the precise point of injury, she was not moving. Because of the location of the phone, she had to slow down to get it.
An incident report prepared by Mr Todoroski recorded that at the time of the accident the footwear that she was wearing was “sandals-flat”.
Photographs and a sketch plan of the office were also tendered. They illustrated the location of the uniform store and the appellant’s desk and the route between those two places. The photographs showed an unremarkable office space. There were no photographs of the uniform store itself or the other storeroom closer to her desk that was referred to in the appellant’s evidence.
What findings may be made?
The reasons given by the magistrate include the following findings:
(a)The appellant was often folding and organising the uniform cupboard at the back of the office.
(b)Her desk and phone were at the front of the office which is the furthest point from that back room.
(c)She asked her manager Mr Todoroski if she could be supplied with a cordless phone or at the very least an answering machine.
(d)There was no system of forwarding unanswered calls to the Sydney office. The appellant took seriously her duty to answer the phone in what she perceived to be a timely manner.
(e)She would attempt to answer calls as quickly as possible, usually within two rings.
(f)No one had told her to answer the phone within two rings.
On the basis of the evidence it is possible to make the following additional findings:
(a)The appellant was injured when she leaned over her desk and reached for the telephone which had been ringing.
(b)While she was standing and reaching for the phone her right foot rolled outwards and she suffered an injury. That may have been, as Dr Le Leu thought likely, as a result of her foot being angled inwards at about 45° but it is not necessary to make any firm finding about that.
(c)Immediately prior to twisting her ankle she had been rushing from the uniform storage area to the phone at her desk. She had stopped at the desk in order to pick up the phone.
(d)The distance between the uniform storage area to her desk was approximately 10 to 12 metres.
(e)There were other telephones that were closer than hers to the uniform storage area.
(f)Between the uniform storage area and her desk there were two doorways that needed to be passed through. There were no other relevant obstacles to her passage. There was nothing unusual about the flooring in the premises.
(g)At the time of the accident the appellant was wearing flat sandals of some sort.
(h)There was a low volume of telephone calls that required answering at the office being no more than 12 on an average day or 20 on a busy day.
Is remittal necessary?
Notwithstanding that some findings of fact may be made, it is not possible to make findings on several aspects of the appellant’s evidence which would be of significance to the issues arising under s 43(1)(b) and (c). Section 43(1)(b) requires that the risk in question be “not insignificant”. This expression involved a deliberate change from the requirement in Wyong Shire Council v Shirt (1980) 146 CLR 40 that provided a threshold of not “far-fetched or fanciful”: see Commonwealth of Australia, Review of the Law of Negligence: Final Report (2002) (Ipp report) at [7.12] and [7.15]. Section 43(1)(b) involves determining whether or not a reasonable person in the position of the respondent would have taken the precautions contended for.
The relevant evidence of the appellant was that:
(a) She would “quite often” spend time up a ladder in the storeroom.
(b) She would “quite often” be in the storeroom next to her desk where there were chemicals stored and have to “make [her] way through boxes and all sorts of stuff to actually get back to the phone”.
(c) As a result of missing calls she would be “reprimanded” or asked why she didn’t answer the phone.
(d) Her request to Mr Todoroski was because she was “out the back” on a regular basis.
It cannot be said that the appellant would inevitably fail even if her evidence on these issues was accepted.
These matters in combination may, if accepted in their totality and at their highest, lead to a conclusion that the system of work adopted was not a safe one and where the requirements of s 43(1)(b) and (c) were met.
Given the costs and resources involved in any remittal, it is tempting to dispose of the matter, as the respondent’s notice of contention suggested, by not accepting the appellant’s evidence and instead accepting the evidence of the respondent’s witnesses that this was a quiet and benign office environment where the appellant was rarely away from her desk and could easily answer the phone from anywhere in the office. If that is the correct characterisation then it would be open to reach the conclusion that s 43(1)(b) and (c) each required that judgment be given for the respondent. However, the appellant was entitled to have her case determined on the basis of findings about significant aspects of her claim being made by a judicial officer who has the benefit of seeing and hearing the respective witnesses give evidence. That has not yet occurred.
For those reasons I consider that a remittal is necessary.
Orders
The orders of the Court are:
1. The orders made by the Magistrates Court on 26 September 2019 are set aside.
2. The proceedings are remitted for rehearing on the question of liability before a different magistrate.
3. The respondent is to pay the appellant’s costs of the appeal.
4. The costs of the proceedings below shall be costs in the cause.
5. Any party seeking a different order on costs must notify my associate by email (copied to the other party) by 4pm on 16 March 2020 in which case the parties will be heard on costs at 9:30am on 17 March 2020.
| I certify that the preceding sixty-three [63] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 13 March 2020 |
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