South Eastern Sydney and Illawarra Area Health Service v O'Rourke

[2005] NSWCA 200

NEW SOUTH WALES COURT OF APPEAL

CITATION:      South Eastern Sydney and Illawarra Area Health Service v O'Rourke [2005]  NSWCA 200

FILE NUMBER(S):
40289 of 2004

HEARING DATE(S):               7 June 2005

JUDGMENT DATE: 23/06/2005

PARTIES:
South Eastern Sydney and Illawarra Area Health Service
Patricia Mary O'Rourke

JUDGMENT OF:       Beazley JA Santow JA Hunt AJA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          93 of 2002

LOWER COURT JUDICIAL OFFICER:     Goldring J

COUNSEL:
P R Garling SC, R Sergi (Appellant)
D Campbell SC, S Longhurst (Respondent)

SOLICITORS:
Frances Allpress Sydney (Appellant)
Russell McClelland Brown Wollongong (Respondent)

CATCHWORDS:
Slipping case - brick pavers at entrance to hospital emergency department - mossy substance (cryptogams) between and above bricks - fall in rain and at night-time - plaintiff unable to identify which paver she slipped on - plaintiff's husband next morning saw cryptogams "scattered" over area where plaintiff fell - whether particular cryptogams slippery when wet - examination of area by expert long time after event - evidence that conditions of cryptogams the same both times - whether open to judge to find wet cryptogams cause of slip - main contributing factors to slipping accidents - whether wet cryptogams obvious risk.

LEGISLATION CITED:
Civil Liability Act 2002
Health Services Act 1997

DECISION:
1  The appeal is dismissed.
2  The appellant is to pay the respondent's costs of the appeal, such costs before and on 20 May 2005 to be assessed on a party and party basis and thereafter on an indemnity basis.

JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40289 of 2004

BEAZLEY JA
SANTOW JA
HUNT AJA

Thursday 23 June 2005

SOUTH EASTERN SYDNEY AND ILLAWARRA AREA
HEALTH SERVICE v O’ROURKE

Judgment

1. BEAZLEY JA:  I agree with Hunt AJA.

1. SANTOW JA:  I agree with Hunt AJA.

1. HUNT AJA:  Mrs Patricia O’Rourke was the plaintiff in proceedings in the District Court at Wollongong she brought against the South Eastern Sydney and Illawarra Area Health Service (formerly known as the Illawarra Health Service), a body constituted by the Health Services Act 1997 and responsible for the conduct and management of the Wollongong Hospital, a public hospital.

1. Late in the evening of 29 December 1999, the plaintiff and her husband were telephoned by the police and informed that their son had been involved in a serious motor vehicle accident and had been taken to Wollongong Hospital.  They took a taxi to the hospital and were deposited directly outside the entrance to the hospital’s emergency department.  The plaintiff walked around the taxi and started to walk towards the entrance.

1. It was raining at the time, and had been for some time.  The evidence was that there had been rain throughout that month, and that there was substantially more rain on the day in question than there had been previously.  The rain that day had been heavy.  From the kerb to the entrance, the plaintiff and her husband had to walk over an area with clay bricks laid in a square pattern with pairs of bricks in alternating directions.  The area over which they traversed was open to the rain, and the pavers were wet.  The plaintiff led the way in a straight line towards the entrance, with her husband slightly behind her and holding an umbrella over them.

1. After the plaintiff had taken some steps (the number is not precise, but she had moved about three metres), her left foot slid from under her and she fell forward to the ground on to her left shoulder.  She was unable to explain how she fell beyond saying that her left foot slid on something.  The plaintiff was admitted to the hospital and x-rayed, and treated for a quadruple fracture of the left humerus, the bone in the upper arm.  There is no appeal against the damages awarded and it is thus unnecessary to relate any further history relating to that issue, except to say that she suffered very serious consequences.  Damages were assessed at $279,091.21.

1. The plaintiff’s husband noted the following morning, when the rain was only a drizzle, that there was moss and green growth on the surface of the pavement in the area where the plaintiff fell.  He described some pavers as having quite a growth around them of a moss-type plant about half an inch above the ground level of the pavers.  (His estimate of the height of the growth above the pavers was somewhat greater than the remainder of the evidence would suggest.)

1. He said that the moss was “scattered” over an area about six feet wide leading towards the entrance.  He “felt” that the moss was slippery.  This evidence was given in a context in which this suggested that he had touched the substance.  He agreed with counsel for the defendant that he had thought that the light lime green type of moss on top of the pavers had come from the moss growing between the pavers.  He continued to go in and out of that entrance over the next forty-two days when visiting his son (who remained in hospital) and, he said, nothing had changed in relation to the moss-type plants growing between and above the pavers over that time.  The rain had stopped some days after the plaintiff’s fall, and the pavers were not then slippery.

1. When the plaintiff returned to the hospital eleven or twelve days later for outpatient treatment, she also noticed moss and vegetation in that area.  She described it as very mossy between the pavers.

1. A specialist in the frictional properties of various surfaces, Associate Professor David Morton, was retained by the plaintiff.  He visited the scene with the plaintiff in May 2003 — that is, more than three years after the event.  However, the plaintiff gave evidence (which the judge accepted) that the condition of the vegetation at that time in the vicinity of where she fell, as recorded in photographs, was similar to the condition which she had seen eleven or twelve days after her fall, and that the weather conditions were similar on the day Professor Morton inspected the pavers to those existing on the day she fell.  She told Professor Morton that her recollection was that the area had been perhaps more heavily and widely affected by moss and vegetation than it was when subsequently inspected.

1. Professor Morton, having carried out a number of tests in different places in the relevant area, described the pavers at that time in this way:

   Other than those closest to the entrance and under cover, all the pavers were observed to be stained to various extents with what appeared to have been organic growth, leaving them with black and/or green markings.  For a distance of up to about six metres in from the kerb this staining was particularly marked, and over much of the area the organic growth appeared to be live.  Moss and small plants were growing prolifically between and above the pavers. Some patterns of moss extended five millimetres or more above the paver surfaces and some plants were up to seventy-five millimetres wide and fifty millimetres high.  The paver surfaces themselves carried what appeared to be live growth of green and black micro-organisms which I believe could have been fungi, slimes, algae or lichens.

   He referred thereafter to those various growths as “mossy”, and for convenience I propose to do the same.

2. The evidence of all three experts called (two of them retained by the defendant) was that moss and similar vegetation tends to thrive when the weather is hot and damp, and that regular cleaning will prevent the build-up of the growth of moss and similar vegetation.

1. Professor Morton said in relation to the slippery nature of the mossy growth:

   For a foot placed on one of the overgrown patches the slipperiness is moderately dangerous even when “dry”.  As tested under fine dry conditions the live vegetable growth did tend to crush but did not spread into a moist patch.  Under wet conditions the “mossy” situation is slippery and dangerous even for the most inherently high-grip footwear such [as] a deeply block-treaded soft rubber.

   Even for a person who was aware of the slipperiness of a particular surface, Professor Morton said, such a walker, whose gait is adjusted to the level of grip afforded by the relatively clean but wet pavers, is likely to sustain a violent slip when encountering an unexpected patch of wet mossy growth, with the consequent local severe loss of grip.  He described this as the classic “banana skin on the footpath” effect.  He expressed the opinion that there could be no real doubt that a pedestrian placing a foot on a patch of the organic growth would be highly likely to slip and fall.

2. Professor Morton also examined the “court” style shoes worn by the plaintiff on the evening she fell.  He described both the sole and the large heel pad as being of a moderately hard elastomer with a finely ribbed moulded surface.  They were in good condition and showed little sign of wear.  They were not new and only slightly worn.  He expressed the view that the shoes were of a design and style suitable for the occasion, without unusual or extreme characteristics, and that the plaintiff’s choice of that footwear would not have contributed to her fall.

1. The plaintiff was permitted to administer interrogatories in relation to the defendant’s system for cleaning the brick pavers.  These were answered informally by letter — that is, the answers were unsworn.  The defendant was unable to locate any records which identified the person who had carried out the cleaning of the relevant area on the day the plaintiff fell or which confirmed that the area had in fact been cleaned, but it asserted that the area had last been cleaned on the day prior to that day between 10.00 pm and 6.00 am the previous evening.  It claimed that its usual practice was to clean the area in question daily between 6.00 am and 10.00 am and again between 10.00 pm and 6.00 am.  The defendant said that it had instructed its staff to ensure that slippery and other material which may interfere with a person’s safety be detected and removed.  The cleaning supervisor (and anyone acting in that position) was instructed to undertake visual inspections as part of that supervisor’s task of ensuring that the cleaning staff carried out their duties.  The defendant led no evidence in relation to the cleaning of the area in question.

1. The answer that the usual practice was to clean the area twice each day was inconsistent with an earlier letter from the defendant’s insurer, in which this passage appears:

   The Manager of the Domestic Cleaning Department of the Hospital stated that the area outside the Emergency Department (Casualty Ward) is cleaned between 6.00 am and 10.00 am daily, usually about 7.00 am, Monday to Friday inclusive.  The cleaning method adopted is to firstly sweep the area and then hose it off.  No detergents are used, just plain water.  About once per month a high pressure water blaster is used to further clean the area.

   The last sentence of that passage was in turn inconsistent with a later facsimile sent by the defendant’s insurer to an expert retained by the defendant which denied that any high-pressure hose was in use in that area.  The facsimile went on to say:

   Cleaning was by sweeping, and mopping if there were any spills.

2. Whichever system for cleaning and supervision of the cleaning staff is accepted, it appears not to have been satisfactorily put into effect.  That was made clear by the evidence of Professor Morton.  He had attended the scene at noon on a Monday.  He said that there was no evidence that a high-pressure hose had been used for some months in view of the extent of the overgrowth there, and that the growth was inconsistent with the letter from the defendant’s insurer quoted in the previous paragraph.  The mossy growth he saw on that occasion has already been described.  In his view, it was wholly inconsistent with such a system having been put into effect on that day or any time in the recent past.  As an example of why the pavers could not have been cleaned that morning in accordance with the usual practice laid down, Professor Morton said that even the relatively fragile plant growth seen in some of the photographs he took on that day, which would have been removed by brushing and hosing, could not have regrown within the few hours between such a daily cleaning and his arrival for the inspection.  He concluded that it was most unlikely that the claimed cleaning procedures had been implemented.

1. The defendant called Dr Skinner, a plant sciences consultant, who had not inspected the area in question and who declined to rely on the photographs taken as they were prone to misinterpretation.  He said that cryptogams (which he defined as a group of organisms which include “mosses and their relatives and those things”) can be seasonal even when perennial, and the presence or absence of individual species at a site may also be part of an ecological succession.  This meant, he said, that the kinds of cryptogams which may be there at any one time may be very different from the ones there some time later and also different from the ones there before that.  Dr Skinner agreed that it is fairly common for moss to form in cracks between pavers and that it is not unusual for moss to grow above the level of the paver.  He said that only some organisms became slippery when wet, and that it was necessary to carry out a microscopic examination (to one hundred times magnification) to determine what sort of organic organism each plant was, and therefore whether it would be slippery or not when wet.

1. The defendant also called Dr Cooke, a consulting architect who said he had expertise in coefficient friction as well.  He said that the surface of the mossy substances was below the level of the pavers on the day he inspected the area.  He said that the pavement was safe for normal stride and pace and moderate attention, even if wet.  He explained that there are three main contributory factors to slipping accidents:  (1) the pedestrian surface and its condition, (2) the level of grip provided by the footwear, and (3) the speed of movement.  He expressed the opinion that there was no basis for the plaintiff’s claim, and that it was probable that she slipped because of the combined effect of footwear with poor grip, excessive speed for the level of the grip and excessive speed for the level of the footwear’s grip on the pavement. 

1. Dr Cooke conceded in cross-examination that his determination of the safety of the pavement when wet was dependent on the surface, although wet, not being affected by any other substance which made it slippery.  He also conceded that the mossy substances found in photographs taken by Professor Morton would cause the surface to be more slippery than the surface which he had himself tested and that, if the mossy substances were sufficiently thick, they would constitute a slip hazard.   He thought that the mossy substances shown in the photographs were probably thick enough for this purpose, and that the area would then be extremely dangerous.  He said that, from personal experience, such mossy substances could be removed by weedkiller or a high-pressure hose, although the substances tended to regrow within a few months. 

1. Dr Cooke also said that the level of illumination at night was well above the minimum recommended for town and city centres and for areas of particular hazard such as steps.  The plaintiff herself agreed that the area was reasonably well lit, and certainly well enough lit for persons to see where they are going.  Neither Dr Cooke nor the plaintiff was asked about the effect of rain on the surface of the pavement at night on the ability of someone to see whether there were mossy substances present.

1. The plaintiff’s case was that she was injured approaching the entrance to the defendant’s emergency department to visit a patient.  That relationship between the parties was sufficient to give rise to a general duty of care by the defendant to the plaintiff, to be discharged by taking reasonable steps to eliminate any reasonably foreseeable (and real) risk of injury to her. This Court was informed that there was no dispute that the defendant owed a general duty of care to the plaintiff.  In determining what was reasonably required to be done by this defendant in relation to persons approaching the entry to its emergency department, of course, it was necessary for the defendant to take into account that recently injured persons seeking emergency treatment for their injuries would also be approaching that entrance.

1. Goldring DCJ accepted the evidence of the plaintiff, her husband and Professor Morton which I have recorded, and also the evidence of the defendant’s experts concerning the tendency of moss and similar vegetation to thrive when the weather is hot and damp and that regular cleaning will prevent the build-up of further growth.  He made the following additional specific findings:

   (1)At the time the plaintiff fell, some pavers were so covered by vegetation or moss that they would become slippery when wet.

   (2) There was moss and other vegetation growing in the cracks between the pavers on the relevant date.

   (3) The moss made the surface slippery and that, as a result, the plaintiff slipped and fell on her shoulder (this finding was by way of inference).

   (4)If the area had been cleaned regularly and properly, either by a high-pressure water spray or proper sweeping, such cleaning would have dislodged the moss before it had grown to the extent that it caused the surface of the paving to become slippery.

   (5)As the system of cleaning was exclusively within the knowledge of the defendant, the absence of any evidence from the defendant on this issue enabled him to infer that, whatever evidence it did have available, it would not have assisted its case.

   (6)The area in question had not been cleaned properly on the day the plaintiff fell or for a significant time before that.

   (7) It was reasonable to expect the defendant to keep the pavement clean and free from vegetation at the relevant time, particularly over the holiday period when the emergency department, which is always busy, may be busier than usual.

   (8)If the defendant had followed the system of cleaning asserted in its answers to the interrogatories, the pavement outside the entrance to the emergency department would have been free of vegetation and would have been less slippery, to the extent that it would have been highly unlikely that the plaintiff, wearing the shoes that she was wearing at the time, would have slipped.

   (9)The defendant was for these reasons liable to compensate the plaintiff for the injuries caused by its breach of duty, constituted by its failure properly to clean the pavement in the area where the plaintiff fell.

2. The availability of the alternative methods of cleaning outlined in finding (4) was established by the letter from the defendant’s insurer quoted in par [16] supra.  The answers to interrogatories referred to in finding (8) dealt with the frequency with which the cleaning was carried out.  The judge’s intention in finding (8) appears to have been to accept that, had the defendant followed the system asserted in the answers to the interrogatories with either of the alternative methods of cleaning available referred to in finding (4), the pavement outside the entrance to the emergency department would have been free of vegetation and would have been less slippery.

1. The judge did not make a specific finding that there was a reasonably foreseeable risk of injury to the plaintiff from the combination of the mossy substances and the rain.  It may be that, because the real issue in the case appears to have been the presence of the mossy substances between and above the papers on the day the plaintiff fell, foreseeability was not in issue.  However, the only finding open on the evidence was that any presence of mossy substances which became slippery when wet — growing between and above scattered brick pavers over the area through which a person seeking entry to the defendant’s emergency department had to walk — would when wet create a real risk of injury to such persons (including the plaintiff), at the least where the presence of such substances is not apparent to those persons because of the rain and at night time.  Such a finding did not need the expert opinion of Professor Morton;  it is a matter of common experience and common sense.  The presence of the mossy substances which were in fact present between and over the brick pavers ought to have been discovered if the brick pavers were properly cleaned and inspected.

1. The defendant’s first ground of appeal is that the judge erred in finding that it was negligent in failing to have a cleaning system which ensured that moss or other vegetative growth was removed from pavers in the vicinity of the entrance to the hospital’s emergency department. 

1. That ground of appeal misstates the finding which was made.  The judge made no such finding.  On the contrary, he accepted that, if the system of cleaning asserted by the defendant in the first passage quoted in par [16] supra had been followed, the relevant area would have been free of mossy substances and would have been less slippery, to the extent that it would have been highly unlikely that the plaintiff who would have slipped.  The issue in relation to cleaning was whether that system had been followed.  The judge found that the area in question had not been cleaned properly on the day the plaintiff fell or for a significant time before that.   The evidence of Professor Morton referred to in par [17] supra, together with the evidence of the plaintiff and her husband as to the state of the mossy substances on the days following her fall — and the plaintiff’s evidence that the state of those substances was the same when Professor Morton inspected the area — supports that finding. 

1. The defendant also complained that that the plaintiff had made no allegation of inadequate cleaning in her pleaded claim.  The particulars of negligence in the Amended Statement of Claim are redolent with references to the presence of moss on the pavers, and they assert the defendant’s failure to poison or remove that moss.  Notice of that amendment had been given to the defendant before the trial in sufficient time for the defendant to obtain expert evidence in relation to the moss allegations.  The expert witness gave evidence in relation to the removal of moss from brick pavers.  At the beginning of the trial when the amendment was sought, counsel for the defendant said that an agreement had been reached with counsel for the plaintiff that there would be no objection to the amendment sought provided that the plaintiff also consented to the report of the defendant’s expert dealing with the new issue being served out of time.  The amendment was then allowed.  Moreover, the defendant had been interrogated on the issue of its cleaning system, and it had been subpoenaed to produce documents relating to that cleaning system at the trial.  It is clear that the defendant had been given adequate notice that the plaintiff’s case was related to the mossy substances and its cleaning system.  I would reject this ground of appeal.

1. The defendant’s second ground of appeal is that it was not open to the trial judge to find that the plaintiff’s fall was caused by moss or other vegetative material growing on the pavers on the footpath leading to the entrance to the hospital’s emergency department.

1. This ground raised a number of issues.  The first issue was whether mossy substances were present in between and above the pavers on the evening the plaintiff fell.  There had been no inspection carried out at that time, and the plaintiff’s husband did not see them until the following day late in the morning.  The defendant submits that, in accepting the evidence of the plaintiff’s husband, the judge failed to give any weight to the evidence of Dr Skinner that this inspection was not sufficiently close to the date of the incident to provide evidence that what he saw then was also present when his wife fell. 

1. The reference is to the following statement in Dr Skinner’s report:

   As well, neither date of inspection is sufficiently close to the date of the incident to provide evidence of the presence or [sic] floristics of the cryptogam cover of the paved area at the time of the incident.

   However, it is clear from his report that Dr Skinner was not referring to the inspection by the plaintiff’s husband less than twelve hours after the fall.  It would be absurd if he were.  He did suggest that cryptogams can be seasonal even when perennial, but he did not suggest that cryptogams grew to the size seen by the plaintiff’s husband within twelve hours.  In this part of his report, Dr Skinner was dealing with the interpretation of two sets of photographs, one taken by Professor Morton and the other by Dr Cooke — both some years after the fall.  He had complained that the photographs could be misinterpreted due to their lack of clarity.  The opening words of the quoted passage “As well” demonstrate that he is still referring to those two sets of photographs when he mentioned “neither date”.

2. According to the evidence of the plaintiff’s husband which the judge accepted, the mossy substances were in the same condition throughout the forty-two days which immediately followed his inspection.  That evidence was sufficient basis for the judge to find that the same mossy substances seen by the plaintiff’s husband the day after the fall were also there on the day the plaintiff fell.

1. The fact that the plaintiff made no mention of the mossy substances in her account of her fall when she spoke to the hospital staff that evening is hardly surprising, as she had not seen the mossy substance there.  Notwithstanding the defendant’s submissions to the contrary, the judge was entitled to disregard that fact.  The finding made by the judge was open to him on the evidence.

1. The next issue is whether it was open to the judge to find that the fall was caused by the condition of the pavers, as the plaintiff was able to say no more than that she slipped.  The three main contributory factors in slipping accidents identified by Dr Cooke, the architect with expertise in coefficient friction, were the pedestrian surface and its condition, the level of grip provided by the footwear and the speed of movement. 

1. Professor Morton examined the plaintiff’s shoes, and expressed the view that they had not contributed to the fall.  Dr Skinner, who had not examined the shoes, quibbled with the interpretation Professor Morton place on one result he obtained when testing the shoes.  However, he said that, if the figure obtained by Professor Morton were correct, then the shoes met the figure prescribed by the Australian Standards.  When asked whether, if he accepted the figure Professor Morton obtained, he also accepted that it was probable that the shoes played little part in the slip, Dr Cooke replied “No, the exact opposite is the case”.  Neither counsel asked him to explain that curious response.  In the absence of any reasoning given by Dr Cooke for that apparently aberrant view, it was open to the judge to ignore the answer and to accept Professor Morton’s evidence that the plaintiff’s shoes had not contributed to the fall.

1. The plaintiff gave evidence that she was looking where she was going and was not rushing.   She maintained that assertion that she was not rushing under what the judge described as a rigorous cross-examination.  Her husband also said that they had not been rushing.  The suggestion put to them was that they were anxious to see their son who had just been injured, and that it was raining.  The only material in the case which suggested that the plaintiff was rushing is to be found in the notes of a triage nurse which record, as the “presenting problem”, that (and I have translated this from the abbreviations used) the patient had been rushing to see her son in the emergency department and allegedly slipped outside injuring her left shoulder.  The plaintiff denied having said this to the nurse.  Although this clinical record was admissible as a business record, there was no evidence as to how or when that record was made, and whether it constituted first-hand hearsay or came from a more distant source.  The judge said that he was not satisfied that the plaintiff had said that to the nurse.  It was open to him to accept her evidence in the face of that record. 

1. Two of Dr Cooke’s three main contributing factors were therefore excluded by the judge’s findings, leaving the condition of the pedestrian surface.  No other alternatives were suggested.  The defendant, however, raises another issue before blame can be attached to that factor, the failure of the plaintiff and her husband to identify precisely which paver she slipped on.  The best the plaintiff could do was to identify for her lawyers, on one of the photographs Professor Morton took (photograph 4), a spot which she marked “X” together with an arrow indicating the direction of her slip.  Despite a cross-examination calculated to confuse the plaintiff, the general tenor of the evidence she gave which was open to the judge to accept was that she had marked on the photograph where three and a half strides had taken her when she fell.  She said that she was “exactly sure” of the point at which she fell.  She said that she believed her identification of the point she had marked with an “X” was “pretty correct”, but she conceded a degree of error of half a metre.

1. The plaintiff’s husband said that mossy substances were “scattered” over the area in which she fell.  The plaintiff’s case depended on the inference being drawn that — her shoes, her speed and her attention to where she was going having been excluded as causes of her slipping (and no other alternatives having been suggested) — more probably than not she would have stepped on one of those mossy substances which were scattered over that area — that is, within the area of half a metre from the point marked “X”.

1. The defendant has nevertheless placed great significance on the failure to identify the particular paver on which she slipped because of the evidence of Dr Skinner, the defendant’s plant sciences consultant, that not all cryptogams are slippery when wet, and that it was therefore necessary to examine each cryptogam microscopically to determine whether or not it was one which was slippery.  The defendant says that the plaintiff’s case should not therefore be accepted unless she can say that the specific cryptogam on which she stepped when she slipped was one which was slippery.  However, it was not suggested by Dr Skinner — in order to counter a common perception that all mossy substances are slippery when wet — that the proportion of cryptogams which are not slippery is in any way a significant one. 

1. The plaintiff’s husband had felt the mossy substances he saw the next day to be slippery.  It was not suggested that he touched each one he saw to test whether it was slippery.  Professor Morton subsequently tested the mossy substances in many places and said that they were slippery.  The mere possibility that some of the mossy substances along the path which the plaintiff took may not have been slippery does not, after the exclusion of the other usual contributing factors, reduce by very much the degree of probability that she slipped because she walked on a mossy substance which was slippery

1. The defendant has argued that the cryptogams present when the plaintiff’s husband examined the area the day after his wife fell were not necessarily perennial, and so cannot be assumed to be the same as the cryptogams examined by Professor Morton.  Reliance is placed on Dr Skinner’s statements that, even though perennial, cryptogams may be seasonal, and that they may be part of an ecological succession — meaning that a cryptogam which was there before “may” not be the same as that which was there later.  The first of those statements does not affect the continued existence of the cryptogams examined by the plaintiff’s husband up to the time Professor Morton examined them.  As to the mere possibility that the cryptogams examined by the plaintiff’s husband were not the same as those examined by Professor Morton, the plaintiff’s case does not have to be established beyond reasonable doubt, when all reasonably possible alternatives have to be excluded.  Once again, the mere possibility that the cryptogams may not have been the same does not reduce by very much the degree of probability that the cryptogams which the plaintiff’s husband said were slippery were the same cryptogams which Professor Morton tested.

1. Causation is a question of fact to be determined by reference to both common sense and experience:  March v E & MH Stramore Pty Ltd (1991) 171 CLR 506 at 522. The defendant has not persuaded me that it was not open to the judge to conclude, on the balance of probabilities, that the plaintiff slipped as a result of walking on a slippery mossy substance. I would reject this ground of appeal.

1. The defendant’s third ground of appeal is that it was not open to the trial judge to find that the plaintiff was keeping a proper lookout and taking care to observe where she walked. 

1. This issue has already been considered in relation to the previous ground of appeal, where part of the plaintiff’s case of establishing that her fall was caused by slipping on a mossy substance required her to exclude other possible causes of her fall, including her failure to watch where she was going.  That was an issue on which the plaintiff bore the onus of proof.  In this ground of appeal, the defendant argues that the judge erred in finding that the plaintiff was not guilty of contributory negligence, an issue on which it bore the onus of proof.  The defendant, having failed to show error in relation to this issue where the plaintiff bore the onus of proof, cannot succeed in showing error by the judge’s rejection of its case that the plaintiff was not watching where she going where it bore the onus of proof.  I would reject this ground of appeal.

1. The defendant‘s fourth ground of appeal is that the trial judge erred in finding that the defendant owed to the plaintiff a duty of care and that it was in breach of it, having regard to the fact that, in the event that the respondent slipped on moss on the pavers, the presence of moss was an obvious risk and one which a reasonably prudent pedestrian ought to have observed.  The fall in this case occurred before the Civil Liability Act 2002 became law, so that the absolute terms in which “obvious risk” is defined in s 5F of the Act (particularly in s 5F(4)), and the statutory presumption in s 5G that an injured person is aware of that risk unless that injured person proves that he or she was not aware of it, do not apply in this case.

1. The judge made the following finding:

   Mrs O’Rourke said that she was well aware that it was raining, in fact that her husband had an umbrella — a fact which both Mr and Mrs O’Rourke asserted in their evidence — suggests that they could not have been ignorant of weather conditions and their consequences.  The cause of the slipperiness on the surface was something which, although possibly apparent to someone who inspected it closely, was not readily apparent to a person walking across a paved area leading to the entrance of the public building at night.

   That finding was open to the judge on the evidence.  Even if it were necessary for this Court to reconsider the evidence, I would accept the evidence of Dr Cooke and of the plaintiff as to the state of the lighting in that area (recited in par [21] supra), but I would also take into account the fact that the pavers were wet, a factor which makes it difficult to see the condition of the surface under the water from the rain, particularly at night.  I would therefore reach the same conclusion as the judge did.  Accordingly, I would reject this ground of appeal.

2. The defendant’s fifth ground of appeal is that the trial judge fell into error in holding that it was sufficient for the plaintiff to identify an area up to a few metres square as being an area where she fell in which there may be some, but not all, pavers affected by moss or vegetation.

1. The only new issue raised by this ground of appeal relates to the issue considered in relation to the third ground of appeal, the failure of the plaintiff and her husband to identity precisely which paver she slipped on (discussed in pars [37] – [41] supra).  In his judgment, Goldring DCJ expressed the opinion that it was sufficient for the plaintiff to identify an area, even an area up to a few metres square, given the nature of her case.  The defendant criticised the opinion the judge expressed, but the fact is that the plaintiff was able to identify the spot where she fell within half a metre, not within an area of a few metres square.  Whether the judge’s opinion was correct or incorrect does not matter in those circumstances.  The criticism is therefore misplaced.  I would reject this ground of appeal.

1. The defendant’s sixth and final ground of appeal is that the trial judge erred in failing to find that the plaintiff had not demonstrated to the requisite onus that her fall was caused by the negligence of the defendant.  The submissions filed by the defendant in support of this ground of appeal are expressed in general terms, and appear to rely on the submissions made in support of the earlier grounds of appeal.  The only issue arising under this ground of appeal not already discussed in this judgment is whether it was open to the judge to find that negligence had been established. 

1. The case was fought on the basis that the presence of “mossy” substances which became slippery when wet was a reasonably foreseeable (and real) risk of injury to persons approaching the entrance of the hospital’s emergency department in the rain, that the defendant had available to it a high-pressure spray or the means for proper sweeping, that it was reasonable to expect the defendant to keep the pavement clean and free from vegetation at the relevant time, and that it failed to do so either on the day the plaintiff fell or for a significant time before that.  The judge made specific findings in favour of the plaintiff on all but the first of those issues.  The first issue is discussed in par [25] supra.  They were all open to him on the evidence, as I have already held.  Also open on those findings was his stated conclusion that the defendant was liable to compensate the plaintiff for the injuries she received as a result of its breach of duty, constituted by its failure to clean the pavement in the area where she fell properly.  The challenge to the finding of negligence also fails.  I would accordingly reject this ground of appeal.  The appeal should be dismissed.

1. Before proposing the orders to be made in this appeal, it is necessary to refer to a matter of costs raised by the plaintiff during the hearing of the appeal.  On 20 May this year, the plaintiff’s solicitors made an offer of compromise whereby the plaintiff would accept in settlement of the appeal a figure less than the amount awarded.  This offer was not accepted by the defendant.  The order for the costs of the appeal should therefore include an order pursuant to SCR Part 52A r 22(4) that the plaintiff’s costs of the appeal from the day the offer was made shall be assessed on an indemnity basis.

1. I propose the following orders:

   1.            The appeal is dismissed.

   2.           The appellant is to pay the respondent’s costs of the appeal, such costs before and on 20 May 2005 to be assessed on a party and party basis and thereafter on an indemnity basis.

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LAST UPDATED:               23/06/2005