Miletic v Capital Territory Health Commission

[1994] HCATrans 53

IN THE HIGH COURT OF AUSTRALIA

Registry         No C15 of 1994

B e t w e e n -

RITA MILETIC

Applicant

and

CAPITAL TERRITORY HEALTH
  COMMISSION

Respondent

Application for special
  leave to appeal

MASON CJ
DEANE J
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 OCTOBER 1994, AT 10.31 AM

Copyright in the High Court of Australia

MR B.J. SALMON, QC:   May it please the Court, in this matter I appear with my learned friend, MR B. HULL for the applicant.  (instructed by Nelson & Co)

MR R.E. WILLIAMS, QC:   If the Court pleases, I appear with MR F.M.G. PARKER for the respondent.  (instructed by the ACT Government)

MASON CJ:   Mr Salmon.

MR SALMON:   What has become the classic formula for determining whether there has been a breach of duty is set out in Wyong Shire Council v Shirt at page 47.  That case though, as was recognised at page 48 by Justice Mason, as you then were, was a case that went on the question of foreseeability.

The relevant passage of Wyong Shire Council v Shirt is at the bottom of page 47 where it is set out:

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.  If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.  The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.  It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

As I indicated, Wyong Shire Council v Shirt only dealt with the issue of foreseeability.  In the case which we bring to the Court, the foreseeability question was decided initially against us, but by the Federal Court in our favour.  The only matter which we seek to ventilate in this Court is the proper approach to the balancing function which is referred to in Wyong Shire Council v Shirt.

The old cases, such as Neill v NSW Fresh Food and Ice and O’Connor v Commissioner of Govt Transport, were dealing with cases in which the issue was whether there was evidence fit to go to a jury.  They were not dealing with the actual function which a judge, sitting alone, should perform once evidence of an obviating measure has been called, and the reasonableness of enforcing that measure is in issue.

The case in the High Court where the matter was looked at was Bankstown Foundry v Braistina, a relatively recent decision which was a case where a decision of a judge sitting alone was being considered, and the matter was then considered by the Court of Appeal in that case and the issue there was the balancing function, which is referred to in Wyong Shire Council v Shirt, that is whether the obviating measure, the use of a hoist, was reasonable bearing in mind that it was conceded that there was only a slight risk of injury.  That was referred to at page 310.  I will not take the Court to the actual discussion of it, but in that case the Court was not being asked to examine the way in which the various judges who had considered the matter had carried out the balancing test.  At the time it got to the High Court the trial judge Mr Justice Priestley and Mr Justice McHugh had all found that the balancing test ended up in favour of the injured worker.  But, Mr Justice Samuels, dissenting in the court below, had applied the test and found that, having examined the evidence, that it would not be, in his view, reasonable to impose the use of the hoist.

The reason the case came before this Court, I would suggest, was because Mr Justice McHugh, in particular, and to a slightly lesser extent perhaps, Mr Justice Priestly, had made reference to the high standard required of an employer in circumstances of that kind and the appellant was suggesting that by referring to that high standard the Court of Appeal would tend to mislead trial judges.  So that the case really came before this Court not to consider the balancing act but to consider whether there had been any departure from the ordinary rules applying in cases such as this. 

What we submit to this Court is that the case that we have is different because here the obviating measure, and that is the application of a penetrating oil by use of an aerosol can on a regular basis, was a measure which on the evidence was apparently not at all difficult to perform.  There was no suggestion that it was expensive to perform, there was no suggestion that it would not work, although the actual reasons given by the Federal Court really depended on that last matter.  So that here what we suggest is that the Federal Court was examining an obviating measure which had been given in evidence and which was, by no stretch of the imagination, a ridiculous or fanciful measure, and one of the bases, of course, on which plaintiffs have lost these cases, and an example is O’Connor v Commissioner of Government Transport, is because the suggested obviating measure to eliminate the risk has been regarded as quite fanciful, absurd, and the Court has not had to go any further.

MASON CJ:   Are you right in saying that the Full Court of the Federal Court rejected that on the basis that the suggested remedy, the use of the penetrating oil and the aerosol can, would not have been effective?

MR SALMON:   Yes, that is what we submit they did when they considered the matter.

MASON CJ:   It is at page 41?

MR SALMON:   At page 41.  Perhaps to just take you back, they did, in fact, set out the bit of evidence on which we relied, and that is at page 35 of the application book.  They were summarising the evidence of the expert, and perhaps if I read from line 18:

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.

So, in the early part of the judgment of the Federal Court, the court correctly set out the evidence of the witness.  But then, when they turned to consider that at page 41, firstly, they said - and this I will perhaps read from line 7:

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. 

We rhetorically say, why?  They then go on in a more detailed way:

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.

With respect, that is quite contrary to the evidence which they had correctly summarised on page 35 because the witness said that the use of this means, not only lubricated but blew or washed out dirt or dust adhering to the surfaces, and it was just a misunderstanding of the evidence or an ignoring of the uncontradicted evidence of the witness.

MASON CJ:   The oil would have had the effect, presumably, of counteracting ruse in a metal castor?

MR SALMON:   Yes.

MASON CJ:   But, even if the castor was made of polycarbonate, the oil would have had the effect of washing out the dust?

MR SALMON:   The combination, I would suggest, of the oil and the fact that it had an aerosol spray.  The combination of the force with which the penetrating or lubricating oil hit the surface, plus the fact of the oil itself, would have washed it away.

DEANE J:   Was there evidence of what the castor was made of?

MR SALMON:   No, there was none.  It was one or the other.  There was evidence, of course, that it was known throughout the industry generally that there was a problem in relation to castors of this nature.  That bit of evidence ‑ ‑ ‑

DEANE J:   The evidence was that there were two sorts of castors in the hospital and the inquiry had not revealed what sort this was, or was it simply ignored?

MR SALMON:   Not quite.  I suppose one could say it was ignored.  There was evidence that the beds had the ball‑type castor to which Mr Simpson’s evidence was being directed, but the evidence did not disclose whether it was a metal one or a polycarbonate one at the relevant time.

DEANE J:   What was his evidence directed to?

MR SALMON:   His evidence was directed to the utility of using this system regardless of what kind it was, that either kind can stick ‑ at least the clear inference from his evidence was either metal ones or polycarbonate ones can stick.

DEANE J:   He distinguished between the two?

MR SALMON:   It was really in cross‑examination that he was asked to distinguish between the two, and it was suggested to him that if the castor was polycarbonate it would not make any difference, and he would not agree with that.  So, although this issue of whether or not the castor was metal or polycarbonate was referred to in cross‑examination ‑ ‑ ‑

DEANE J:   When you say he would not agree with that, did he disagree that it would not have affected the movement if the castor was clean, or did he say it would have some effect in so far as dust was concerned?

MR SALMON:   He said it would have some effect so far as dust was concerned.  At the top of page 3 ‑ the question was asked at the bottom of page 2, so perhaps I should take Your Honour to that.  I put to him -

And what, in your experience, is the most common cause?---Threads of dust.

So he was not saying at that point that it was corrosion, but threads of dust.  Then -

And what is the recommended cure?---A squirt of WD40 from an aerosol can, using the long thin plastic pipe that you get with them -

Fortunately my suggestion that he stop there was not adhered to because it is really what he added to that which, in our submission, makes it quite plain that he was referring to both the lubricating effect and the blowing effect in his answer at the top of the page ‑

That has the effect, doubly, of not only lubricating the rolling or sliding services, but also blows out dust and dirt which is also partly washed out by the spray.

And thereafter, although it is suggested to him that there is not much corrosion in Canberra - perhaps at line 25:

And those casters, some of which - some are made of plastic or a PVC material, are they not?

Usually polycarbonates, but yes.

Right, and others are made of some alloy or other metal, aren’t they?

Yes.

And you have no idea whether he casters fitted to these beds were made of metal or a polycarbonate, have you?

No.

And then the matter was just left there.  There was no suggestion to him, “Well, of course, this would not work; it would not be relevant if it was polycarbonate, because they do not require oil for lubrication”, or something along those lines.

MASON CJ:   Can I ask you about the last sentence in the first paragraph on page 41, where the Full Court says:

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.

What was that suggestion?

MR SALMON:   Well, we cannot find it anywhere.  There is nothing in the evidence at all; it was never put to the witness that that might be ‑ ‑ ‑

MASON CJ:   It was a suggestion made in argument.

MR SALMON:   Well, unfortunately, when we tried to determine whether it had been made in argument in the Federal Court, the argument had not been transcribed, and we did not go to the expense of getting all the argument, but it must have been in argument ‑ ‑ ‑

DEANE J:   In the Full Federal Court?

MR SALMON:   In the Full Federal Court. And the suggestion though, if it had been made, there was such a straightforward and simple answer to it, and that is the bit of evidence at the top of page 2 of the appeal book.

What the case, we suggest, raises, is the extent to which, where there is no jury and the matter is being considered by a judge sitting alone, the Court can, as it were, depart from the evidence and start looking at other aspects of the matter to determine the reasonableness of the suggested obviating measure.  It is an issue on which the High Court has not expressly stated a view, although one would have thought that where a judge is sitting alone and the obviating measure is being considered, the court is obliged to give reasons for rejecting it as a reasonable measure, and in the course of doing so would be obliged to stick to the evidence.  And what we submit happened here is - well, if I just put it in another way: had this been a jury verdict, of course, how the jury came to its conclusion could not be examined, but being a decision in which the court gave reasons, it can be examined and we submit that the reasons show that they did not in fact stick to the evidence but, as it were, look at the matter in a different light.

DEANE J:   Well, if you look at page 41, what they have really said is that these sort of basic things about basic castors are things that everyone in the court knows about and Mr Simpson’s evidence, in that regard, was not really expert at all.

MR SALMON:   Well, that is what they seem to have said but, with respect, we would submit that they ‑ ‑ ‑

DEANE J:   I was not saying that it was right or wrong.

MR SALMON:   No, they do seem to have said that, but they have not taken the step that - because, with respect, they could not - of saying, “This obviating measure is just fanciful, ridiculous and unnecessary, and we do not have to consider any further”.  They did consider it, as we submit they were obliged to, and it was the way in which they considered it in which we submit they went wrong.

DEANE J:   I mean, your problem is this, is it not?  The more you look at it, the more it approaches a basic question of fact, that, subject to a bit of criticism, the way the court got there.

MR SALMON:   Inevitably the consideration about the reasonableness of the obviating measure always ends up being a question of fact.  The only basis on which we submit this Court should look at it is because it is a function which has to be carried out again and again by judges who are looking at industrial type accidents where an obviating measure is put up.  This case would appear to allow the Court to depart from the evidence when considering it and not apply what was I think said in McLean v Tedman that, once an apparently reasonable obviating measure is provided, then the evidentiary burden shifts to the defendant.

It is not for the court, as it were, to invent reasons for finding that it will not work.  The other reason why we submit this is such a good case for the matter to be dealt with is that it is not a case with any complicated facts ‑ one could hardly think of a more straightforward one ‑ and they are not in issue.  It is purely that inference‑drawing exercise at the end in which we say the court went wrong.  In any event, it certainly, in our submission, would give this Court the opportunity of writing what, in the case of this

particular plaintiff, we submit was a terrible injustice.  Here she is having, as it were, provided a case in which she should have succeeded and, as a result of this exercise that was conducted by the Federal Court, a very large measure of damages is not available to her.  Those are the submissions of the applicant.

MASON CJ:   Thank you, Mr Salmon.  Yes, Mr Williams.

MR WILLIAMS:   If the Court pleases.  Our submission is this, Your Honours.  The court below was grappling with evidence which was both sketchy and uncertain.  It is not a case where a question of principle arises in relation to the approach to the evidence.  Rather it is a case which called for the assessment of the degree of reasonableness in the light of a very limited case in terms of evidence established by the plaintiff.

Why limited?  Because the applicant relied upon the evidence of a Mr Simpson who was requested some 12 years after the events in question ‑ the incident occurred in 1978; Mr Simpson apparently was retained in 1990 ‑ to offer some very wide and general opinion about systems of maintenance in relation to ‑ and he attempted to lay down what he thought was an appropriate system of maintenance in relation to a hospital operating 12 years earlier that he had never visited and knew nothing about, in relation to beds and castors, the age of which, the condition of which and the type of which he knew nothing.

MASON CJ:   But his evidence did amount to the practice that was followed in the industry.  Do you deny that?

MR WILLIAMS:   No, that is so, Your Honour.  He did say it was general practice in the industry and I think it is fair to say he was including, in terms, the hospital industry.  I think at one point he did say that.

MASON CJ:   There is no suggestion, is there, by the trial judge or by the Full Court that this evidence of practice was to be regarded as inapplicable in relation to the relevant time.

MR WILLIAMS:   The matter was not addressed in terms one way or the other.  The point we would make is that it was extremely general in its approach that if one has castors, there ought be a maintenance system to ensure they are in good working order.  But extremely general and vague.

DEANE J:   But his evidence went to two points, did it not?  First, and possibly most important was he said, “If there are castors like this you keep them in order, you don’t wait until something goes wrong and then wait until somebody can come and fix them”.  The second thing he said was, “The way you keep them in order is this very simple method”.  The Full Court did not refer to the first aspect of his evidence, really, and in relation to the second aspect of his evidence expressed a view which is in the teeth of his evidence.  Where do you say the Full Court’s view came from, that:

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.....oil was likely in any event to attract dust and dirt ‑ ‑ ‑

MR WILLIAMS:   The last part must have come from argument before the Full Court, Your Honour. 

DEANE J:   Did the Full Court accept it or are they saying, “Because somebody suggests this in argument we reject the expert’s opinion” or what are they saying?

MR WILLIAMS:   I cannot say one way or the other, Your Honour. 

DEANE J:   No, I am being a little bit unfair to you, Mr Williams.

MR WILLIAMS:   I was not there, Your Honour, so I cannot assert what was said in argument and what was not and what suggestions were made.  But we do put that all of this argument took place in a rather theoretical atmosphere where the conditions and the types of the castors and, indeed, the ages of them, were simply unknown.  Nothing was proved one way or the other.  There are some difficulties with the judgment.  In particular, at page 41 line 21 in the Full Court, the reference to:

the unlikelihood of the suggested obviating measures being of any practical effect -

But if one has regard to what we say is the very general and theoretical statements by Mr Simpson, together with the fact that there is clearly a degree of uncertainty as to what really happened, what really caused the incident which brought about the lady’s fall in the first place.  Nothing is clear. 

It may have been, as Mr Simpson said at one point in his evidence, that the bed simply required a greater force than usual because the castors had lined up opposite the direction in which they were meant to go and there was going to be a momentary delay before the forward pressure would take effect.  Nothing was established as to what caused ‑ and we say this is another difficulty the plaintiff had on the evidence.  Simply nothing was established as to why the castor or castors, in fact, suddenly refused to move.  It is speculation, we would say, on the evidence established in this case, to conclude that it was because the castors or a castor, due to lack of maintenance, suddenly - it will not have been corrosion, in all likelihood - because of an obstruction, due to dust or dirt, froze or stuck.  Nothing has been excluded. 

GAUDRON J:   But did the trial judge not proceed on the basis that the castor had jammed?

MR WILLIAMS:   Yes, Your Honour.

GAUDRON J:   That is a finding of fact, is it not?  It necessarily involves one, anyway.

MR WILLIAMS:   Yes, of jamming.  But it is the cause of the jamming, Your Honour, that I was directing those comments to.  It may have jammed for any reason.  One can think of a number of possible reasons such as a foreign body entering the castor system or an obstruction.  Simply nothing was known, and the case seems to proceed upon some assumptions made by Mr Simpson in his evidence, both at the trial and in the report, that the castor seized due to lack of maintenance by way of oil.

We would say that it was clearly open to the court below, both the trial judge and the Full Court, to find that there was a low degree of the probability of the kind of occurrence taking place, particularly when the plaintiff below was wearing shoes that Mr Simpson had said would make it most unlikely that an accident of this sort would happen, that is that she would slip on the linoleum.  It was open to the court to find that it would be unlikely that any serious incident would arise from such occurrence.

Whilst we have difficulty with the further finding of the Full Court, one has to concede difficulty with it in the light of what was established, that there was an unlikelihood of the suggested obviating measures being of any practical effect.  If one were to substitute in the judgment at page 41 of the application book line 21, the word “uncertainty” for the word “unlikelihood” in the light of what we say was the uncertain state of the evidence, one would have to say that all three of those findings were open to the court on the state of the evidence.

GAUDRON J:   But what relevance is “uncertainty” if there was a foreseeable risk of that kind?  The very nature of a risk is that there is no certainty about it.

MR WILLIAMS:   Your Honour, the risk is slight; the possibility of the kind of occurrence taking place is slight, and when Their Honours in the Full Court are directing themselves to the unlikelihood of suggested obviating measures, we say - I concede it is not clear from the terms of the judgment - that one of the matters Their Honours must have had in mind in dealing with the obviating measures is the fact that there is an uncertainty as to what caused the castor or castors to stick or jam.  It may have been through causes which had nothing to do with the matters that Mr Simpson the expert was addressing, we say, in purely speculative fashion.

DEANE J:   But we are ignorant of the evidence of course in the main trial.  But am I correct that the evidence was that the defendant effectively did nothing to keep these castors in good order, and only did something about them if and when something went wrong in a context where the evidence indicated that “things going wrong” was quite a routine occurrence?  As I say, that is the impression I got from reading the judgment without reading the evidence.

MR WILLIAMS:   Your Honours, those around me will tell me if I am wrong in what I say, but I understand that the state of the evidence at the trial was that the evidence was silent on the question of whether there was any maintenance system, save that if that there was a complaint about a bed or a castor, then a person would make a complaint and a maintenance person would attend and take care of the complaint, and I think that is where it was left.  I understand that the defendant called no evidence at the trial and thus, one would accept that it would follow that a court would find much of what Your Honour puts to me.  The evidence established no more than that a maintenance person was called out if there was a complaint. 

By the same token, it did not establish how often there was a complaint, and it did not establish what the complaint was about.  The evidence which was given by a fellow worker of the applicant was that when there was a problem with the beds - and it was left as vague as that - a maintenance person was called for to deal with the complaint.  So, one is left with the position where there was no evidence before the court as to how often there was a problem with the bed; what the problem with the bed was.  Whether it was a castor problem - one might assume that perhaps sometimes it was, or often it was, it is unclear - and if it was, what caused it.  It comes back to the initial point which is another fact, as to what the condition and the age of the castors were, and the type of castors, and that sort of thing.

In summary, Your Honours, our response to this application for special leave is that it is a case that does not involve the questions of principle that the applicant contends for but, rather, is a case that turns on its own facts and what we say, amounted to insufficient facts to enable the court to be satisfied that the obviating measures which were being suggested - though the Full Court uses the word “unlikely” - amounted to an uncertainty in terms of addressing the problem.  Otherwise, we say, that the other findings in relation to reasonableness, which is always a question of fact, were open to the court, given the evidence that emerged about the ideal shoes, and the low probability of slipping on those shoes, and the uncertainty as to just what caused the incident in the first place.  Even though, as Your Honour

Justice Gaudron puts to me, it is clear that His Honour found, as the trial judge, and Their Honours found in the Full Court, that that there was a jamming or a sticking.  Our point is that nothing further was established as to what might have caused it, and Mr Simpson’s evidence may be nothing more than speculation.  If the Court pleases.

MASON CJ:   Thank you, Mr Williams.  Mr Salmon, do you wish to say anything in reply?

MR SALMON:   I will just point out for the Court the bits of material about which Your Honour Mr Justice Deane was asking my learned friend.  At page 5, Mr Simpson gave some evidence at line 12:

It is at that time that the wheels appear to jam, or they give the impression that they are jammed by the increase in effort required to move it.  As soon as movement is commenced, the - all of the castors quickly rotate so that the actual wheel then trail behind the vertical axis -

and he was then asked in re-examination at page 28, you have probably ‑ ‑ ‑

DEANE J:   It is rather like a supermarket trolley.

MR SALMON:   That is right.

DEANE J:   I can never get them to move.

MR SALMON:   The amount of effort required to eventually get them to change might eventually lead to a successful case against a supermarket.  In re‑examination, I put to him:

You have probably cleared this up already in a subsequent part of your cross‑examination, but do you recall agreeing that it was not uncommon, when someone was moving an object on these sort of castors, for there to be opposition from the castors to the movement that the person trying to operate the item was attempting to create?---Yes, I recall that.

Does that opposition occur if the castors are all in good working order?---No.

And the other bit that I would just remind the Court of is what my learned friend was explaining about the evidence of previous incidence.  This is at page 19 in the judgment of the trial judge, right at the top:

A fellow‑worker, Zivka Sdojadinovic, supported the plaintiff’s account of her duties and the system of work in place.  Mrs Sdojadinovic said there had been previous complaints about castors supporting the beds.  The beds themselves were far too heavy to lift.  She said she had noticed that sometimes the castors would jam and the beds could not be pulled out.  If that happened, she would clean the room as best she could and report the jammed bed to the supervisor.  Thereafter, a maintenance man would come and attend to the bed.

And, in his judgment, right at the end, I think he says ‑ no, I thought he mentioned, at page 24, what the system was, but what was said was:

In any event, even if some risk of falling whilst shifting beds was a foreseeable consequence of the sudden jamming of castors, there is nothing to suggest that the defendant should have done anything more about it than it did to reduce or eliminate that risk.

So, the evidence, we submit, was there for what Justice Deane was postulating, but there was a system of only fixing the thing when there was a complaint.

MASON CJ:   The Court will take a short adjournment in order to consider the course it will take in this matter.

AT 11.08 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.14 AM:

MASON CJ:   There will be a grant of special leave to appeal in this case.

AT 11.14 AM THE MATTER WAS ADJOURNED SINE DIE