Norman v Coles Supermarkets Aust P/L
[2000] QCA 295
•28 July 2000
SUPREME COURT OF QUEENSLAND
CITATION: Norman v Coles Supermarkets Aust P/L [2000] QCA 295 PARTIES: DAPHNE ELSIE NORMAN
(plaintiff/respondent)
v
COLES SUPERMARKETS AUSTRALIA PTY LTD ACN 004 189 708
(defendant/appellant)FILE NO: Appeal No 9975 of 1999
DC No 1900 of 1997DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: District Court at Brisbane
DELIVERED ON: 28 July 2000 DELIVERED AT: Brisbane HEARING DATE: 18 July 2000 JUDGES: de Jersey CJ, Davies JA and Mullins J
Judgment of the Court
ORDER: Appeal dismissed with costs
CATCHWORDS: TORTS – NEGLIGENCE – STATUTES, REGULATIONS ETC – ADMISSIBILITY AND EFFECT IN ACTIONS FOR NEGLIGENCE – GENERALLY – breach of contract – employee slipped ascending stairs at workplace – whether sufficient evidence adduced at trial to support findings
INDUSTRIAL LAW – QUEENSLAND - APPLICABILITY OF LEGISLATION AND GENERALLY - breach of statutory duty – Workplace Health and Safety Act 1989 s 9(1) – whether applicable to premises constructed prior to commencement of Act – failure to provide second handrail for stairs in breach of Workplace Health and Safety Regulation 1989 – whether condition of stairs irrelevant to action for breach of statutory duty
Workplace Health and Safety Act 1989 (Qld) s 9(1)
Workplace Health and Safety Regulation 1989 (Qld) s 94, s 140, s 141, s 142Hardy v St Vincent's Hospital Toowoomba Ltd [2000] 2 QdR 19, considered.
Rogers v Brambles Australia Ltd [1998] 1 QdR 212, considered.
Schulz v Schmauser [2000] QCA 17; Appeal No 9022 of 1998, 11 February 2000; followed.COUNSEL: RAI Myers for the appellant
M Grant-Taylor SC with PB de Plater for the respondentSOLICITORS: Clayton Utz for the appellant
Watling Roche for the respondent
THE COURT: This is an appeal from the judgment of the learned District Court judge given on 8 October 1999 in favour of the plaintiff who is the respondent to this appeal.
The appellant was the respondent's employer and was found liable for damages for negligence, breach of contract and breach of statutory duty. The damages were assessed at $72,092.19. The appeal is in respect of the issue of liability only.
The respondent was employed by the appellant at its Caboolture store on 22 June 1988 and remained in that employment until she left the position on 30 November 1995. After four or five years her position was that of "matron" which included looking after the tea room, collecting laundry and receiving it after cleaning, daily banking and posting mail. In April 1995 a refurbishment of the store was being carried out. At the date of the respondent's accident, the respondent was working from 9 am until 6 pm each week day assisting customers with problems arising from the refurbishment, in addition to her duties as "matron".
On 27 April 1995 the respondent was walking up the stairs from the ground floor to the tea room to clock off at 6 pm. The stairs comprised two flights both in the same direction, but separated by an intermediate landing. There was a handrail on one side of the stairs, being the left side going down (or the right side going up). The respondent gave evidence that she was walking up the stairs and reached the second last step before the landing, putting her right foot on that step, and as she raised her left foot to reach the next step her right foot slid backwards on the step and she fell forward landing on her right arm.
The nose of each stair tread consisted of a strip of corrugated rubber held in place between two strips of metal, so that the corrugated rubber would provide traction to a person using the stairs. The respondent's evidence was that the rubber insert on the stair on which she had placed her right foot had worn smooth, so that it provided no traction and her foot slipped on the surrounding pieces of metal, when she exerted pressure on her right foot in order to raise her left foot from the step below to the step above. The respondent had ascended the stairs on the left side facing the stairway. She therefore did not make use of the handrail which was on the right side.
The learned trial judge found that the respondent did slip whilst ascending the stairs. On the question of whether that slip was due to the condition of the stairway, the learned trial judge stated:
"... I think it proper to conclude as a matter of probability that it was in fact the worn condition of the rubber insert which rendered the stairs slippery and which was the substantial cause of the plaintiff's slipping and falling."
On that basis the learned trial judge found that the appellant was in breach of its duty to take reasonable care to provide safe premises for the respondent to carry out her work, both as an obligation in tort arising out of the relationship between the parties, and also as an obligation of a contractual nature in the form of an implied term in the contract of service between the parties.
The learned trial judge also dealt with the respondent's case based on breach of statutory duty, namely section 9(1) of the Workplace Health and Safety Act 1989 ("the Act") which provided:
"An employer who fails to ensure the health and safety at work of all his employees, save where it is not practicable for him to do so, commits an offence against this Act."
The learned trial judge found that sections 94 and 142 of the Workplace Health and Safety Regulation 1989 ("the Regulation") which required stairways at a workplace to conform to the requirements of AS1657 applied to the appellant's premises. The relevant requirement of AS1657 is that every stairway which exceeds a width of 1000 mm must have a handrail on each side. The width of the subject stairway is about 1200 mm.
The learned trial judge found that it was practicable for the appellant to have seen that the rubber strips laid on each tread of the stair in order to provide or increase traction were in such a condition as to provide the intended benefit. In addition, the learned trial judge found that the appellant was in breach of the Regulation in not providing a second handrail for the stairway, a handrail may well have saved the respondent from falling as a result of the slip, and the provision of such an additional handrail would have been practicable for the appellant. The learned trial judge therefore found that the appellant breached the duty owed to the respondent under section 9(1) of the Act.
The grounds of appeal raised two main issues:
(1) whether the finding of the learned trial judge that the rubber insert on the subject stair was in a worn condition on the day of the accident was against the evidence or the weight of the evidence;
(2) whether the Act obliged the appellant to provide a second handrail to the relevant stairway, when the premises were constructed prior to the commencement of the Act.
The appellant put forward expert evidence from Dr Grigg on how falls on stairs occur and of statistics of the likelihood of a person slipping, when ascending stairs. One of the grounds of appeal was that the learned trial judge failed to give any or any appropriate weight to the evidence of Dr Grigg that the most likely explanation for the fall was the respondent's inadvertence when ascending the stairway.
As the learned trial judge correctly identified, whether or not the rubber insert on the stair in question was so worn at the time of the respondent's accident as not to provide sufficient traction for safety, was a question of fact.
The learned trial judge did not accept all the evidence of the respondent. The learned trial judge did, however, identify those aspects of the respondent's evidence which he did not accept. The respondent's evidence as to the state of the rubber insert on the relevant stair on the day of the accident was not rejected. The learned trial judge expressly referred to evidence of two other witnesses, Ms Cuffe and Mr Freestone, which was to the effect that the stairs from time to time had become slippery in the past because of the wear of the rubber inserts and of the delays which occurred in replacing the worn inserts. That evidence was supportive of the respondent's evidence.
Mr Myers conceded that he could not fault the learned trial judge's summary of the relevant evidence from each of the witnesses. Although Mr Myers could point to contrary evidence including that of Dr Grigg, the learned trial judge made the impugned finding on the basis of evidence which supported it. There is therefore no basis, whatsoever, for interfering with this finding.
With respect to the second issue, Mr Myers submitted that as the appellant's premises were constructed in accordance with all building standards applicable at the time of construction, the Regulation should not be construed as giving rise to a statutory duty on the part of the appellant to add a second handrail to the stairway which had not been required at the time of construction. Mr Myers argued that would give the Regulation retrospective effect.
The Act and the Regulation are concerned with the condition of a workplace and directed at employee safety. The long title of the Act refers to "securing the health and safety of persons performing work". The Act and the Regulation have a much broader application than to the construction of a workplace.
Sections 140 to 142 of the Regulation provide:
"Compliance
140. The owner of a workplace or, as the case may be, plant shall ensure that this Part is complied with or, as the case may be, are not contravened.Access to be provided
141. At a workplace, safe and protected means of access shall be provided to-
(a) every building or structure; and
(b) every part of a building or structure; and
(c) all plant.Standard
142. The means of access shall comply with the requirements of AS 1657 Fixed platforms, walkways, stairways and ladders-Design, construction and installation (SAA Code for Fixed Platforms, Walkways, Stairways and Ladders)."
It is not a correct characterisation of the Regulation to say that it has retrospective effect in respect of workplaces constructed prior to the commencement of the Regulation. The Regulation specifies standards that have to be complied with from the time the Regulation took effect.
The learned trial judge was therefore not in error in finding that the appellant breached the Regulation in not complying with AS1657 by failing to provide a second handrail for the stairway. The appellant did not advance any other basis for challenging the finding that the appellant breached the duty owed under section 9(1) of the Act. Nor did it contend that if there were a relevant breach of duty under that section it was not causative. In particular, no argument was directed to whether the learned trial judge's statement that "it is a reasonable inference that a handrail may well have saved the plaintiff from falling" was a sufficient finding of causation.
This disposes of the appeal. At the hearing of the appeal, Mr Grant-Taylor SC on behalf of the respondent sought to uphold the judgment on a basis which differed from that found by the learned trial judge. It is not strictly necessary to consider this argument, but as it was advanced, it is convenient to deal with it.
The learned trial judge found the breach of section 9(1) of the Act on the basis that the rubber strip on the relevant stair was in a worn condition and that a second handrail for the stairway (which was not provided in breach of the Regulation) may well have saved the respondent from falling.
Mr Grant-Taylor submitted that the respondent had to succeed in her action based on section 9(1) of the Act, regardless of the state of the stairs, when it was shown that she would not have fallen had there been a handrail.
The respondent relied on the decisions of this Court in Rogers v Brambles Australia Ltd [1998] 1QdR 212; Hardy v St Vincent's Hospital Toowoomba Ltd [2000] 2QdR 19; and Schulz v Schmauser [2000] QCA 17.
In the first two cases, the employee was successful in establishing a breach of section 9(1) of the Act where the employer had not made sure or certain of the employee's health and safety at work by implementing a remedial measure which would have been likely to obviate the injury suffered by the employee. In Schulz v Schmauser, Pincus JA, with whose reasons McMurdo P agreed, stated at para 25:
"It appears to me that a breach of s9 of the statute is not shown unless the injury is first causally connected with an act or omission of the employer."
Once the respondent established that the appellant had failed to install the second handrail in breach of the Regulation and that it would probably have prevented her from falling while ascending the stairs, all elements of a cause of action under section 9(1) of the Act were present. Mr Grant-Taylor's submission that it was unnecessary for the learned trial judge to be satisfied about the worn state of the rubber insert on the relevant stair is correct.
The appeal must be dismissed with costs.
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