Miletic, R. v Capital Territory Health Commission

[1993] FCA 669

RITA MILETIC v. CAPITAL TERRITORY HEALTH COMMISSION
No. ACTG28 of 1992
FED No. 669
Number of pages - 6
Appeal - Negligence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
NORTHROP, MILES AND FRENCH JJ

CATCHWORDS

Appeal - decision of Supreme Court of the Australian Capital Territory for damages for personal injury.

Negligence - whether risk of injury reasonably foreseeable - lack of evidence of similar occurrence - whether likelihood of serious injury - probability of occurrence - whether reasonable to ignore risk in all the circumstances - no new principles.

C. Czarnikow Ltd. v. Koufos (1969) 1 AC 350 at 385-6

Brkovic v. J.O. Clough and Son Pty. Ltd. (1983) 57 ALJR 834

The Council of the Shire of Wyong v. Shirt and Others (1980) 146 CLR 40 at 47-8

HEARING

CANBERRA, 22 June 1993

#DATE 22:9:1993

Counsel for the appellant: Mr. B. Salmon, QC with

Mr. B. Hull

Solicitors for the appellant: Nelson and Co.

Counsel for the respondent: Mr. J. Poulos, QC with

Mr. G. Parker

Solicitors for the respondent: ACT Government Solicitor

ORDER

The Court orders that:

1. The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

NORTHROP, MILES AND FRENCH JJ This is an appeal by a plaintiff against a judgment of the Supreme Court of the Australian Capital Territory (Higgins J.), dismissing a claim for damages for personal injuries for alleged negligence.

1. The appellant suffered her injury as long ago as 13 September 1978. She was working as a cleaner for the respondent at the now defunct Royal Canberra Hospital. She had to clean rooms in the nurses' quarters. Her cleaning duties included sweeping and washing the linoleum floor of each room. To clean the floor properly, it was the practice that a mat, waste bin and chairs would be taken into the corridor, the bed would be pulled out from the wall and the exposed area of floor swept, and, possibly, washed. The bed would be pushed back and the rest of the floor swept and washed.

2. The beds were on castors. According to expert evidence, the castors were either metallic or made of polycarbonate material. The castors had two essential features. One was a wheel or ball in contact with the floor. In the case of a castor wheel, it was mounted on a horizontal axle. Alternatively, in the case of a castor ball, it was housed in a ring. The other feature was a vertical shaft fixed above the wheel or ball. Provided that there was freedom of movement of both components, the combination of horizontal axle or ring with vertical shaft made it possible to pull or push the bed in any direction across the floor. However, the design of the castor was such that the position of the shaft over the wheel or ball was not in line with the centre of the wheel or ball. The result was that unless and until the wheel or ball was aligned with the direction in which the bed was moved, greater effort had to be applied to the bed to get it moving, and the initial movement of the bed was made less predictable.

3. On 13 September 1978, the appellant was cleaning a room in accordance with the usual practice. She was wearing shoes with soft rubber soles. She moved the bed out from the wall, cleaned the exposed area, and from a position near the foot of the bed attempted to push the bed back. The bed, however, did not move. As she pushed, her feet went backwards from under her and she fell. She thus sustained the injury for which she claims damages.

4. There was undisputed evidence from a fellow employee of the appellant, Ms. Zivka Sdojadinovic, that sometimes the beds were difficult to move because there was "something wrong with the wheels". On such occasions Ms. Sdojadinovic sought assistance from a supervisor, and a maintenance man came to attend to whatever was wrong with the bed.

5. Evidence was given by a Mr. Thomas George Simpson, based upon his qualifications and experience in industrial engineering and in particular his experience in the design of castor systems and the maintenance of ball-bearings. Given the lapse of time between the accident and the time Mr. Simpson was requested to give evidence, it is not surprising that he did not see the bed in question. His evidence was necessarily of a general nature. He said that the problem of sticking or jamming castors was well known "throughout the industry generally". He considered that the most common cause of the problem was "threads of dust". Another cause was corrosion. He considered further that the problem was easily overcome by the use of an aerosol can containing lubricating or penetrating oil. This had the effect, he said, not only of lubricating the surfaces, but also of blowing or washing out any dust or dirt adhering to the surfaces. He said that the design of castors and the materials used in their manufacture were such as to minimise corrosion, and that in the Australian Capital Territory there was a very low incidence of corrosion. He said that if the shaft of a castor was stuck or corroded, it would tend to become fixed in the direction in which the load was moved and that "it's when a change in direction is required that problems occur". The effect of his evidence was that, conversely, if the castors were all in good working order, there would be no mechanical resistance to an attempt to move the load in a different direction.

6. The trial judge held that the appellant had failed to demonstrate that the risk of injury in the kind of occurrence described by her was reasonably foreseeable. However, assuming that there was a risk of that nature, his Honour expressed the alternative view that there was "nothing to suggest that the defendant should have done anything more about it than it did to reduce or eliminate the risk".

7. The appellant submits that his Honour was in error in reaching each of these conclusions.

8. First, it was submitted that his Honour was in error in finding that the risk of injury of the nature suffered by the appellant was not reasonably foreseeable. This conclusion on the part of the trial judge was a conclusion of fact, although a conclusion to be drawn from inference from primary facts. His Honour took into account the complete lack of evidence that any person "anywhere or elsewhere" had suffered a fall in circumstances similar to those described by the appellant. His Honour also concluded, correctly in our view, that, in the light of the evidence of Ms. Sdojadinovic, there was a real possibility that castors on the beds would jam. His Honour turned his mind then to the possible consequences of castors jamming. His Honour considered that there was some risk that, in those circumstances, a person trying to move the bed might suffer back strain, or that the castors, having jammed, would suddenly release, causing the person to lose balance and suffer injury. His Honour further considered that if there were some supervening factor (for instance, if the floor was slippery or the cleaner was wearing slippery shoes), then the jamming of a castor would not cause the person to fall in the way in which the appellant said she fell, namely by her feet shooting out backwards from under her. Mr. Simpson, we note, was of the view that the appellant must have been wearing slippery shoes, but his Honour found on the evidence that this was not so. In this respect his Honour was undoubtedly correct.

9. His Honour decided that it was not possible for any of the castor wheels or castor balls to have jammed, on the ground that, if they had, then the bed could not have been moved away from the wall. On that premise, his Honour thought that the jamming must have been in one or more of the shafts (his Honour referred to them as "axles") so as to prevent realignment of the wheels when the bed was to be pushed back against the wall. This finding was, so it was submitted on behalf of the appellant, in error. With respect to his Honour, it seems to us that the experience of Ms. Sdojadinovic was as consistent with jamming of the wheels (or balls) as it was with the jamming of the castor shafts and as consistent with the jamming occurring after the bed had been pulled away from the wall as with jamming before the bed had been pulled from the wall. Furthermore, if dust or corrosion was a possible cause of the jamming of the shafts, dust or corrosion might also cause jamming of wheels or balls. It may be that if one has to choose between jamming of wheels or balls on the one hand and jamming of shafts on the other on the occasion of the appellant's injury, one might choose jamming of shafts as the more likely. However, ultimately, we do not think that it matters.

10. His Honour expressed the view that it was not "obvious" that in the circumstances the jamming of a castor on the return of the bed to the wall would cause a person to fall. The term "obvious" was not apposite, but it is clear that his Honour meant "foreseeable", and that in this respect he was applying the correct test. However, whether the risk was foreseeable is a fine point on which reasonable minds might differ. The evidence of Ms. Sdojadinovic established that there was a real possibility of a cleaner finding a bed hard to move when it was being returned to the wall. The rest of the evidence established that the likely cause of such a difficulty was the jamming of castor wheels or balls or castor shafts. There was a foreseeable risk that the resistance caused by such jamming would cause a person trying to push the bed back to lose balance. We think, contrary to his Honour, that it was essentially a sudden loss of balance that caused the appellant to fall and suffer injury. The appellant does not have to prove that the exact injury which she suffered was foreseeable (Mount Isa Mines Limited v. Pusey (1971) 125 CLR 383. Nor does she have to prove that the exact occurrence causing the injury was foreseeable. It is sufficient that what occurred was the consequence of what was within the range of foreseeability. His Honour recognized this in his reference to the judgment of Lord Reid in C. Czarnikow Ltd. v. Koufos (1969) 1 AC 350 at 385-6:
    

"The defendant will be liable for any type of damage which is reasonably foreseeable as liable to happen even in the most unusual case, unless the risk is so small that a

reasonable man would in the whole circumstances feel

justified in neglecting it."

1. However, this reference and other remarks made by his Honour, seem to have been made in the context of consideration of whether the response by the employer to the risk was adequate. With regard to the precise question whether there was any foreseeable risk at all, his Honour referred to the decision of the High Court in Brkovic v. J.O. Clough and Son Pty. Ltd. (1983) 57 ALJR 834. In that case the plaintiff suffered a back injury when trying to move a pipe. The plaintiff had a pre-existing disposition to back injury unknown to his employer. Gibbs CJ, with whom the other Justices agreed, said at 835:
   

"There is no evidence that a worker, within the normal range of health and strength, would have been put at risk by the system adopted by the respondent. All that the appellant had to do was to bend down and tug on a pipe. The fact that the pipe might jam would not have been likely to endanger a normal employee. The appellant was placed at risk because of the pre-existing condition of his back."

1. In our view, Brkovic is to be distinguished from the present case, where the injured worker had no particular susceptibility to injury and where any cleaner trying to push the bed back to the wall would have been placed at the same risk as the appellant. Therefore, we come to the conclusion that there was a risk foreseeable to an employer in the position of the respondent that a bed might unexpectedly jam when a cleaner was trying to push it back to the wall and that consequently the cleaner might fall and suffer injury. The likelihood that such injury would be serious was not great.

2. However, given the foreseeability of the risk, it was still incumbent upon the appellant to prove that reasonableness required the respondent to take steps to minimise or avoid the risk and it is necessary for the Court to embark upon the balancing exercise weighing up the magnitude of the risk and the degree of probability of its occurrence together with the cost and inconvenience of the obviating measures: The Council of the Shire of Wyong v. Shirt and Others (1980) 146 CLR 40 at 47-8 per Mason J. It was submitted for the appellant that his Honour fell into error when carrying out this exercise.

3. The trial judge correctly and expressly recognized that, if no great harm is likely and if the probability of its occurrence is low, it may be reasonable to ignore the risk. Thus his Honour reached his alternative conclusion that reasonableness did not require the respondent to do more than what it had done, which was to send a maintenance man to attend to a bed whenever a cleaner complained that it was hard to move.

4. It was submitted on behalf of the appellant that his Honour had overlooked or misunderstood the evidence of Mr. Simpson on the issue of obviating measures. It is true that his Honour stated that Mr. Simpson's evidence was "not really expert evidence at all", whereas on a proper analysis some parts of Mr. Simpson's evidence should be characterised as truly expert evidence. For instance, it was Mr. Simpson's experience and expertise which furnished the only evidence of the materials used in the manufacture of castors. Furthermore, Mr. Simpson gave expert evidence of the practice within industry generally to maintain wheels, castors and the like by the application of lubricating oil. However, that latter piece of evidence was so close to matters within the knowledge of the Court, that it was clearly open to his Honour to reject it as of no assistance. Moreover, assuming that the castor was made of metal, there was no evidence of any likely corrosion. Alternatively, if the castor was made of polycarbonate material, then it was not made clear that lubricating oil would have been of any use at all. Indeed it was suggested that the use of oil was likely in any event to attract dust and dirt, one of the possible causes of jamming.

5. For these reasons, we would agree that the low degree of probability of the kind of occurrence, the unlikelihood of serious injury resulting from it, and the further unlikelihood of the suggested obviating measures being of any practical effect, all point to the correctness of the trial judge's alternative conclusion that the appellant failed to prove that the respondent's conduct was unreasonable. The appeal will be dismissed with costs.