Tomic, Z. v Limro P/L
[1993] FCA 897
•03 DECEMBER 1993
ZORA TOMIC v. LIMRO PTY. LIMITED and AUSTRALIAN CAPITAL TERRITORY HEALTH
AUTHORITY
No. ACT G79 of 1993
FED No. 897/93
Number of pages - 11
Evidence
(1993) 47 FCR 414
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
GENERAL DIVISION
BEAUMONT, VON DOUSSA AND HIGGINS JJ
CATCHWORDS
Evidence - significance of admission of fact in answer to interrogatories - to what extent is Court bound to accept uncontradicted evidence.
Gannon v Gannon (1971) 125 CLR 629.
Devries v Australian Railways Commission (1992) 112 ALR 641.
Dawson v Westpac Banking Corporation (1991) 104 ALR 295.
Holman v Holman (1964) 81 WN (Pt. 1) (NSW) 374.
Hardy v Gillette (1976) VR 392
HEARING
CANBERRA, 4 November 1993
#DATE 3:12:1993
Counsel and Solicitors Mr. C. Hickey with
for Appellant: Mr. M.C. Scott instructed
by Scott Sheils and Glover
Counsel and Solicitors Mr. W. Austron instructed
for First respondent: by Hunt and Hunt
Counsel and Solicitors Mr. R. Williams QC with
for Second respondent Mr. B. Meagher instructed
by A.C.T. Government Solicitor
ORDER
THE COURT ORDERS THAT:
The appeal is dismissed, with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
INTRODUCTION
BEAUMONT, VON DOUSSA AND HIGGINS JJ The appellant, Zora Tomic, brought an action in the Supreme Court for damages for personal injuries she claimed she sustained on 6 August 1985 in the course of her employment by the first respondent, Limro Pty. Limited, on premises occupied by the second respondent, Australian Capital Territory Health Authority, the Jindalee Nursing Home. Gallop J dismissed the claim against each of the respondents. The appellant now appeals from his Honour's order that judgment be entered for the respondents.
THE APPELLANT'S CASE AT FIRST INSTANCE
2. By her statement of claim, the appellant alleged that on 6 August 1985, when employed by the first respondent to perform cleaning work at the nursing home premises occupied by the second respondent, she fell on a wet and slippery linoleum floor in the premises and was injured.
(1) The claims pleaded as against the first respondent
3. The appellant claimed that the first respondent was negligent by failing to ensure a safe place of work and, in particular, failed to provide a system which would prevent water and other liquids from lying on smooth linoleum in the area where she worked. She also claimed that the first respondent should have seen to it that there was a "non-skid" surface, such as a suitable mat, and should have provided her with adequate "non-slip" footwear. She further claimed that the first respondent failed to warn her of the risks involved in attempting to walk across such a slippery surface.
(2) The claims pleaded as against the second respondent
4. As against the second respondent, the appellant alleged a failure (a) to warn her of the slippery area; (b) to provide a suitable surface; and (c) to provide a system to prevent others from depositing water or other liquids on the floor.
(3) The evidence in the appellant's case
(a) The appellant's own evidence
5. In her evidence, the appellant said that she was employed by the first respondent as a cleaner in 1984; she was sent to work at the Jindalee Nursing Home in 1985. She worked there six, sometimes seven, days a week. She started at 6.30 a.m., finishing at 3.30 p.m., with a break at 9.00 a.m. for breakfast and at l.00 a.m. for lunch.
The appellant said that, on the day of her accident, she spent the first hour, as was her practice, using a buffing machine in the corridor adjacent to the kitchen, cleaning store and dining room ("the corridor"). It had been raining for several days and she noticed that the floor of the corridor (which led to a landing and then to steps) was "wet and ... also greasy". She then gave the following evidence in her examination in chief, through an interpreter:
"THE INTERPRETER: It was raining.
MR HICKEY: (Counsel for the appellant) And did you have breakfast as you've told us you normally did? THE WITNESS: Yes.
MR HICKEY: Was it still raining?
THE WITNESS: Yes.
MR HICKEY: And did you see people using the corridor during the course of the morning?
THE WITNESS: Yes.
MR HICKEY: Where did they come from and go to? THE INTERPRETER: They are entering through the back door going to the kitchen and the rest of the area. MR HICKEY: At any time that you were working there were there any mats at the foot of the back door? THE WITNESS: No, no.
MR HICKEY: And what was the surface of the corridor made out of?
THE INTERPRETER: Vinyl tiles.
MR HICKEY: And what did you notice about it when that surface was wet, if anything?
THE INTERPRETER: I noticed that there was bit of grease on that floor.
MR HICKEY: But just listen to my - what did - my question. What did you notice about the surface when it was wet? THE INTERPRETER: I noticed a bit of grease on the floor. MR HICKEY: But if you walked on it when it was wet, what did you notice?
...
THE INTERPRETER: I noticed that it was dirty. MR HICKEY: I see.
THE INTERPRETER: And it was also slippery."
The appellant said that, on completing her buffing work, she then proceeded to another area, designated as Block A, as she usually did, and worked there, with a break for breakfast, until lunchtime. After lunch, she went to the cleaning room and then to the back door to see whether cleaning materials for her use had arrived. To get to the cleaning room, she walked down the corridor. She noticed that the floor of the corridor was wet. She picked up a 25 litre drum outside the back door and carried it into the cleaning room. After decanting some cleaning fluid she started to walk along the corridor to Block A. She fell in the corridor.
She then gave this evidence:
"MR HICKEY: And as you went to go to your block did something happen?
THE INTERPRETER: I fell then when I started to walk towards the block.
...
MR HICKEY: How many steps did you take before you fell? THE INTERPRETER: Three or four steps when I started to walk.
MR HICKEY: Did you fall in the corridor? THE INTERPRETER: Yes.
MR HICKEY: Where did you fall in relation to the cleaning room?
THE INTERPRETER: When I walk out of the cleaning room I fell in the hallway.
MR HICKEY: When you fell, what happened, how did you fall? THE INTERPRETER: I fell on my left side. I hit my head on my arm in the floor I think.
MR HICKEY: Why did you fall?
THE INTERPRETER: I slipped. I didn't know why I fell. It was slippery.
MR HICKEY: What did you notice about the floor when you fell on to it?
THE INTERPRETER: It was slippery, greasy and it was dirty, too."
The appellant was cross-examined by both counsel for the respondents. She said that she did not discuss the wet surface in the corridor with her supervisor or her co-workers. She said that she assumed that they could see it for themselves.
She gave the following evidence in cross-examination:
"MR AUSTRON: (Counsel for the first respondent) You had, I think, cleaned that corridor ... that morning, had you not? THE INTERPRETER: Yes.
MR AUSTRON: And when cleaning that corridor, what sort of things would you do?
THE INTERPRETER: I took a dry mop and I wiped it first. MR AUSTRON: That is the whole of the corridor? THE INTERPRETER: Yes, the whole lot.
MR AUSTRON: And what did you do after that? THE INTERPRETER: After that I buffed it up. MR AUSTRON: When you left that morning, what was the condition of the corridor?
...
THE INTERPRETER: It was dry and it was clean when I finished. People walked over it afterwards and it became wet.
MR AUSTRON: Did you ever go back to the corridor after you finished cleaning it and left it in a dry state? THE WITNESS: Yes.
THE INTERPRETER: Yes.
MR AUSTRON: When did you go back there? THE INTERPRETER: When I came to work in the morning. That is when I arrived.
MR AUSTRON: I am talking about after you had left the floor, after you had left the corridor in a dry state, did you ever go back to that corridor?
THE WITNESS: After lunch.
THE INTERPRETER: After lunch.
MR AUSTRON: So between the time you left it and the time you went back after lunch, you never went to that corridor again?
THE INTERPRETER: No.
MR AUSTRON: In your normal duties would you ever go back to clean that corridor again later in the day? THE INTERPRETER: No, that was not my job. It was only for me to clean it once and that was it.
MR AUSTRON: Are you aware that that corridor was cleaned on other occasions other (than) when you did it in the morning? THE INTERPRETER: That hall nobody cleaned except myself. MR AUSTRON: Apart from yourself, who else would use that corridor?
THE INTERPRETER: All the people - all the workers that were working there in the kitchen, in the linen area, everybody was using it.
MR AUSTRON: What sort of things went on in the kitchen? THE INTERPRETER: They were bringing the food out from Woden Valley Hospital.
MR AUSTRON: And did - when you say they were bringing it out, did they use the area you've described as the landing across the corridor into the kitchen?
THE INTERPRETER: Yes, they had to pass through there. They could not pass through any other way.
MR AUSTRON: And what did you notice about the floor after those people had used it?
THE INTERPRETER: I noticed that it was slippery. MR AUSTRON: What from?
THE INTERPRETER: Because of their shoes and the grease and the water that was brought in.
MR AUSTRON: And would you clean that grease and water up when you cleaned it in the morning?
THE INTERPRETER: I cleaned all that in the morning. MR AUSTRON: When you had lunch, did you leave the area that you have described as the dining room in exhibit one and walked down to the cleaning rom?
THE WITNESS: Yes."
The appellant said that she was wearing a new pair of nurse's shoes, with rubber soles. (It appears that the appellant's claim that the first respondent failed to provide her with adequate footwear was not seriously pursued.)
The appellant next gave the following evidence:
"MR AUSTRON: Just so I might get this in order, Mrs Tomic, is this the situation: that after lunch, you and the two other women left the dining room and went to the cleaning room?
THE INTERPRETER: Yes.
MR AUSTRON: Did you then leave the cleaning room by yourself to go to the landing area to get a drum? THE INTERPRETER: Yes.
MR AUSTRON: Having obtained the drum - sorry, to do that, you would have had to walk past the kitchen, through the back door out on to the landing?
THE INTERPRETER: Yes, the drum was on the back of the verandah.
MR AUSTRON: And was the back verandah covered over or not? THE INTERPRETER: No.
MR AUSTRON: Did you then walk from the back verandah back through the back door, past the kitchen into the cleaning room?
THE INTERPRETER: Yes.
MR AUSTRON: And did you notice anything about the floor between the back door and the cleaning room when you were carrying the drum back.
THE INTERPRETER: I notice that the floor was slippery. MR AUSTRON: Then why didn't you go and get a broom or a mop and mop it up?
THE INTERPRETER: It wasn't my job to do it, to clean it, I did it only once and that was in the morning. MR AUSTRON: Why didn't you tell the women, who were in the cleaning room, to, 'Look out' when they walked out? THE INTERPRETER: I am not the boss to tell the others what to do in their jobs, I have my own work. MR AUSTRON: But, madam, you had just walked past an area that you found slippery, you had gone into the cleaning room and then were walking out with your fellow workers and you hadn't bothered to tell them about any slipperiness that was in front of them?
THE INTERPRETER: We don't have time to look at the floor and to warn one another, we have a lot of work to do. We had to do our jobs and we were in a hurry, all three of us.
MR AUSTRON: If you had noticed it was slippery, before you went back into the cleaning room, you would have known that that was something that you should keep 'an eye out for', isn't that right?
THE INTERPRETER: I didn't have time to look. ...
MR AUSTRON: Madam, I suggest that you never mentioned anything about the floor to these two ladies, because there was nothing wrong with the floor when you came back from the loading dock to the cleaning room, do you agree with that, or not?
THE INTERPRETER: I did not tell them anything, I picked up the drum, brought it in, and I told them that we all have to go each of our blocks to do our jobs.
MR AUSTRON: I suggest to you, Madam, you didn't mention anything to them because there was nothing wrong with the floor.
THE INTERPRETER: The floor was dirty, it was wet, and it was slippery."
(b) The appellant's other evidence
13. No other witnesses were called by the appellant. However, there was tendered, on her behalf, answers by the first respondent to interrogatories as follows:
"Q3. On the 6th day of August 1985 -
(c) Did the Plaintiff fall on an area of wet floor at the premises?
A3. (c) Yes
Q5. Set out as fully and clearly as you are able so as to explain how it occurred -
(c) Of what substance did the surface of the area of the floor where the injury occurred comprise?
(d) Was the area of the floor where the injury occurred wet at the time of the injury? A5. (c) Vinyl flooring
(d) yes"
THE FIRST RESPONDENT'S CASE
14. At the trial, the first respondent's case was that, although it admitted that the appellant was employed by it at the time, it denied negligence and alleged contributory negligence. The first respondent called no evidence.
THE SECOND RESPONDENT'S CASE
15. The second respondent admitted its occupation of the premises but denied negligence and pleaded contributory negligence. It also called no evidence.
THE FINDINGS AND REASONING OF THE TRIAL JUDGE
16. Gallop J said:
"The first (respondent) was under a duty of care to ensure that the premises were reasonably safe. But, however high, the duty is not one of insurance; it demands no more than the provision and maintenance of work premises in as safe a condition as reasonable care by a prudent employer can make. The second (respondent) was under a duty of care under the ordinary principles of negligence to the (appellant). The touchstone of the existence of the duty of care is that there be reasonable foreseeability of a real risk of injury to the (appellant). The measure of the discharge of the duty is what a reasonable man would do in the circumstances by way of response to the foreseeable risk."
No challenge has been made to this as a statement of the relevant legal principles. The appeal is, rather, concerned with the primary Judge's approach to the facts.
With respect to the facts, his Honour summarised the version of events given in the evidence of the appellant to which I have already referred. Noting that no other witness was called by the appellant, Gallop J said:
"The evidence demonstrated that one of the (appellant's) co-workers was present at court and available to give evidence on the (appellant's) behalf. No such evidence, nor any evidence at all, was called to corroborate the (appellant's) evidence about her fall and the obvious dangerous state of the floor."
His Honour then said:
"The (appellant) was in the witness box for a long time, particularly under cross-examination by counsel for the first (respondent). Notwithstanding that she has some command of English (she has after all been in Australia since 1970), she chose to give evidence in the Serbian language through an interpreter.
It is notoriously difficult to assess the credibility of a witness who gives evidence in a foreign language through an interpreter. Taking that into account, I did not form a favourable impression of the (appellant) as a witness of truth. She frequently did not give direct answers to questions, choosing to give answers which were self-prompting and not responsive. Because of my unfavourable impression of the (appellant's) truthfulness, I would not be satisfied even on the balance of probabilities that the floor in the hallway was dirty, wet or greasy as asserted by the (appellant) in the absence of other evidence. In making that assessment of the (appellant) I have taken account of her evidence on the issue of damages. It was appropriate for the (respondent's) counsel to describe her evidence as having a dominant theme of exaggeration."
Gallop J added:
"But even if the floor was in a dangerous condition, the
(appellant's) own case is that she was fully aware of its condition before she fell. Accepting that to be so, it was the (appellant's) duty to clean the floor, which she had already done once earlier on the day of her fall. She observed its dangerous condition on the way from the dining room to the cleaning store, on the way from the cleaning store to the landing, and on the way from the landing to the cleaning store, if not on the way from cleaning store to Block A. Furthermore, she had the necessary materials supplied by the first (appellant) with which to clean it. She made a deliberate decision not to do so because (she) believed it was not her task. Instead she left the cleaning store to walk to Block A via the hallway. She assumed any risk that existed.
Clearly, in my view, there was no failure by the first
(respondent) to ensure the (appellant's) place of work was safe as pleaded. It was the (appellant's) duty to carry out the employer's directions as to the work to be done, including cleaning the hallway floor. In that way, the employer ensured that the hallway was safe. It was part of her duty to clean up incidental spillages. Likewise there was no failure to ensure there was an adequate system whereby water and other liquids were prevented from being deposited in the area. If water and other liquids were deposited, it was not within the scope of the employer's operations to prevent that happening. But if it did, the employer had a system in place to render the premises safe, namely the (appellant) and others, suitable materials and appropriate instructions.
As to the failure to provide mats or other non-skid surfaces, the employer did not provide them, but the accident was not due to any such failure. It was due to the
(appellant) deliberately declining to render the hall safe and then using it when she knew of its condition. There was no need to warn the (appellant) of the risks involved in attempting to walk across the subject floor. She knew of and recognised its dangerous condition. She herself failed to avoid the known risk.
There was no failure to provide adequate non-slip footwear. She was wearing adequate rubber-soled shoes. For these reasons, the (appellant's) claim against the first
(respondent) fails. For the same reason her claim against the second (respondent) fails."
THE APPELLANT'S GROUNDS OF APPEAL
20. In her appeal, the appellant relies upon the following grounds: (1) It was not open to the primary Judge to refuse to accept the evidence of the appellant. (2) Specifically, it was not open to the Judge to find (a) that the floor was not wet or dirty or greasy; (b) that the appellant's evidence lacked corroboration; (c) that an adverse inference was available because the appellant did not call a co-worker; (d) that it was the appellant's duty to clean the floor at the material time; (e) that the appellant voluntarily assumed any risk that existed as a result of the conditions in which she worked; (f) that the manner in which the first respondent (effectively) ensured that the hallway was safe was to direct the appellant to keep the corridor clean; (g) that the employer had a system in place to render the premises safe; (h) that the first respondent had given the appellant the duty of keeping the floor of the corridor clean; and (i) that the first respondent had given the appellant directions as to the work to be done including cleaning the corridor floor and in this way the employer ensured that the hallway was safe. (3) It was not open to the Judge to regard the state of the corridor floors as due to incidental spillages and to conclude that it was the duty of the appellant to clean it up. (4) It was not open to the Judge to conclude that the first respondent had given appropriate instructions for the cleaning of the corridor and then to conclude from that finding that the first respondent was not in breach of its duty to the appellant. (5) The Judge applied the wrong test of liability in respect of an employment injury in concluding that "the appellant's injury was due to the appellant deliberately declining to render the hall safe and then using it when she knew of its condition". (6) The Judge failed to identify his reasons for dismissing the claim against the second respondent. (7) The Judge erred in holding that for the same reason as there was no liability in the employer, there was no liability in the occupier. (8) The Judge failed to accept the uncontradicted evidence of the appellant and failed to appreciate that the respondents had the opportunity to contradict it but did not do so. (9) The Judge allowed himself to be prejudiced by the appellant's need for an interpreter and failed to take into account her standard of education. (10) The Judge erred in failing to draw from the fact that the respondents failed to call any contradicting evidence the inference that the appellant was telling the truth. (11) His Honour erred in failing to find that the first and second respondents had breached their respective duties of care to the appellant by failing to take any steps to protect her from the known dangers of the wet, slippery and greasy floor.
CONCLUSIONS
21. It is convenient to deal with the grounds of appeal in turn. Ground (1) - That it was not open to the Judge to refuse to accept the evidence of the appellant
On behalf of the appellant, it is said that, on the question whether the floor was wet, greasy and dirty, the evidence of the appellant was not contradicted by any evidence called by the respondents. (It is also contended that there was no suggestion in cross-examination that the appellant had failed to obey instructions in any respect. For reasons which will appear later, we will defer dealing with this at this stage.) In the circumstances, it is said that the primary Judge could not refuse to accept the appellant's evidence.
We have difficulty accepting the submission.
It is true, as has been noted, that the first respondent stated in an answer to an interrogatory that the floor was wet and that neither respondent called evidence. But the statement by the first respondent in answer to the interrogatory could not be conclusive of the issue of liability, even as against the first respondent. The statement is part of the evidence in the case, but not decisive: it must be viewed in its proper context.
In Gannon v Gannon (1971) 125 CLR 629, Menzies J explained the status of an answer to an interrogatory as follows (at 640):
"For my part I am not prepared to put an admission in an answer to interrogatories on the same footing as an admission in a pleading. A pleading may be amended, but an answer to an interrogatory, once delivered, cannot be withdrawn, although, in a proper case, it may perhaps be possible to obtain leave to answer further. Furthermore, however, and more fundamentally, pleadings determine what is in issue; answers to interrogatories do not. An answer could not do so at the time of its delivery and, in my opinion, it does not do so when it is put in evidence. It is no more than evidence of a fact in issue; that is why it is admitted."
Windeyer J said (at 644):
"...one object, and a main object, of interrogatories is of course to obtain admissions of fact. And the answers given in this case were statements of facts relevant to the plaintiff's case. But, even if accepted, they did not fully establish that the defendant the father was negligent. And they were not directly contradicted by the evidence called for the defence. The defendant father said that he had often seen stones thrown up. The other witnesses said that they, using the same kind of machine in other places, had not seen this. There is no absolute contradiction there. The answers to the interrogatories put in evidence were thus merely part of the evidence which the Court had to consider. As Bowen LJ said in Davey v The London and South Western Railway Co. ...:
'If the facts which are admitted are capable of two equally possible views, which reasonable people may take, and one of them is more consistent with the case for one party than for the other, it is the duty of the judge to let the jury decide between such conflicting views.'
If the case is heard by a judge without a jury he must so decide: and he must do so in the light of the whole of the evidence."
It is clear that, at the trial, the respondents disputed several important aspects of the appellant's version of the incident. She was vigorously cross-examined on the credibility of her version of what had happened and on her credit generally. In our opinion, it was open to his Honour, who had the advantage of considerable experience as a trial Judge, to conclude, because of his unfavourable impression of the appellant's truthfulness, that he could not be satisfied, even on the balance of probabilities, that the floor was "dirty, wet or greasy as asserted by the (appellant) in the absence of other evidence." (Emphasis added.)
It will be necessary to revert to this issue when considering the question of corroboration in the context of the principles discussed in Holman's case, below. For present purposes, it will suffice to note his Honour's reference to the state of the floor "as asserted by the (appellant)". In other words, the question for his Honour was not merely whether the surface was, or was not, wet in some areas. The issue was a much broader one and questions of degree were important, perhaps critical, in any attempt to assess whether the surface was slippery or dangerous. The appellant's case was that the floor was slippery and dangerous because it was dirty, wet or greasy. This was a question of fact, and of degree. The appellant, who had the burden of proof, gave a version of the incident which included a description of the surface. Her credit and her version were seriously attacked. His Honour was not favourably impressed with her credit and that finding on her credibility is not challenged.
In our opinion, no error of the kind required to justify the intervention of this Court has been demonstrated here.
The general principles in this area were considered in Devries v Australian Railways Commission (1992) 112 ALR 641. Brennan, Gaudron and McHugh JJ said (at 645-6):
"No doubt the inconsistencies between the plaintiff's out-of-court statements and his evidence at the trial were matters which might make a tribunal of fact hesitate to accept his evidence. But the trial judge had the great advantage of seeing the plaintiff in the witness box over several days. This gave the trial judge an incomparable advantage over an appellate court in determining what reliability could be placed on the sworn evidence having regard to the out-of-court statements of the plaintiff. Furthermore the trial judge accepted the plaintiff's wife as a witness of truth and her evidence confirmed that the plaintiff was fit for work on the morning of 23 January 1985, as did the evidence of the fellow worker who noticed a drastic change come over the plaintiff about 10.30 a.m. More than once in recent years, this court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. ... If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his (or her) advantage' ... or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'..."
Deane and Dawson JJ said (at 646):
"An appellate court which is entrusted with jurisdiction to entertain an appeal by way of rehearing from the decision of a trial judge on questions of fact must set aside a challenged finding of fact made by the trial judge which is shown to be wrong. When such a finding is wholly or partly based on the trial judge's assessment of the trustworthiness of witnesses who have given oral testimony, allowance must be made for the advantage which the trial judge has enjoyed in seeing and hearing the witnesses give their evidence. The 'value and importance' of that advantage 'will vary according to the class of case, and, ... (the circumstances of) the individual case'. ... If the challenged finding is affected by identified error of principle or demonstrated mistake or misapprehension about relevant facts, the advantage may, depending on the circumstances, be of little significance or even irrelevant. If the finding is unaffected by such error or mistake, it will be necessary for the appellate court to assess the extent to which it was based on the trial judge's conclusions about the credibility of witnesses and the extent to which those conclusions were themselves based on observation of the witnesses as they gave their evidence as distinct from a consideration of the content of their evidence."
An example of acting upon evidence "inconsistent with facts incontrovertibly established by the evidence" is Dawson v Westpac Banking Corporation (1991) 104 ALR 295. The High Court there held that an intermediate Court of Appeal was justified in reviewing the primary judge's findings in circumstances where the trial judge was in error in failing to perceive the true significance of a document in evidence.
But, in our opinion, Dawson's case may be distinguished for present purposes. The question for the trial Judge in this matter was whether the floor was slippery and dangerous because it was wet, dirty or greasy. The resolution of that issue depended, from the appellant's point of view, not on a document but on the acceptance by the Judge of her oral version of the events taken as a whole. It is true that the first respondent's answer to the interrogatories supported, in part at least, the appellant's case. But, as has been said, that answer could not be decisive of the broader question whether the surface was slippery and thus dangerous. It is one thing to admit that the surface was wet (to an unspecified extent); it is a different thing to concede that the floor was slippery and constituted a danger which could reasonably have been eliminated.
Moreover, what his Honour was not satisfied about was not merely whether the surface was wet but whether the floor was "dirty, wet or greasy as asserted by the (appellant)". This appears to be a reference to the entire description of the scene of the accident given by the appellant in her evidence. In short, the trial Judge was not satisfied of the credibility of the appellant's version of what happened, taken as a whole. In our view, in the absence of any attempt to restore the creditworthiness of the appellant, it is not open to this Court to disturb that finding.
Ground (2)(a) - That it was not open to the Judge to find that the floor was not wet or dirty or greasy
33. To some extent, this overlaps with ground (1). However, as has been noted, his Honour did not make a positive finding to the effect suggested by the present ground. What the Judge did was to express the conclusion that the appellant, who bore the onus of proof, had not established that the surface was slippery or dangerous, i.e. wet or dirty or greasy. This is not the same, in substance or in form, as a finding that the floor was not wet or dirty or greasy.
For the reasons given in respect of ground 1, we are of the view that the present ground is not made out.
Ground 2(b) - that it was not open to the Judge to find that the appellant's evidence should be rejected because it lacked corroboration
35. On behalf of the appellant, it is submitted that since a court may act on the testimony of a single witness, even if not corroborated, it was not open to the trial Judge to refuse to accept the appellant's evidence for this reason. For this purpose, reliance is placed upon the well known observations of Sugerman J in Holman v Holman (1964) 81 WN (Pt.1) (N.S.W.) 374 (at 377-8) as follows:
"In Phipson on Evidence, ... there appears this passage: 'As a general rule courts may act on the testimony of a single witness even though uncorroborated; or upon duly proved documentary evidence without such testimony at all ... And where that testimony is unimpeached they should act on it ..., and need not leave its credit to the jury ... But whenever there are circumstances of suspicion or the testimony of a witness is challenged by cross-examination or otherwise, corroboration thereof is allowed; and in the several cases mentioned below corroboration is required either by law or well-established rule of practice'' ... How a court should treat uncontradicted evidence in a trial before a judge sitting without a jury or before magistrates was several times considered by Madden CJ, in the Supreme Court of Victoria. I shall refer to two only of his Honour's decisions on this subject. ... the learned Chief Justice said that where there is evidence sworn to prove one side of the issue, and there is no evidence whatever sworn on the other side to contradict it, the Court is bound to accept it unless that evidence is 'in itself so incredible and unreasonable that no reasonable man could accept it'. He went on to indicate that if the decision is founded on disbelief of the witness this should be disclosed. If this is not done, 'then they are deciding in the teeth of the evidence without showing why they do so, and I do not think that is reasonable in any court of justice, or according to the principles to be applied by courts of justice'. (Later) ... his Honour said that he adhered most stoutly to the principle that where evidence is given on one side which is conclusive of the matter, which is in itself inherently probable, and not unreasonable or improbable, and where it is not contradicted by evidence on the other side, the tribunal which hears it is bound to accept it. 'Because if it were otherwise' his Honour said, 'the decision would be a matter of caprice, a mere matter of prejudice, so that some judge might say - 'I do not like this person or this kind of thing''. Leaving aside questions of the witnesses' demeanour or manner, it may be said that in general uncontradicted evidence in an uncontested proceeding which is not improbable or unreasonable should be acted upon ... 'We think' Macrossan S.P.J., said in Sheahan v Woulff ... 'our functions and usefulness as a court of appeal would be very much impaired if we were bound to uphold a judgment of justices which affected to disbelieve uncontradicted testimony on its face not unreasonable and probable ... A manifest rejection of uncontradicted evidence must be explained by some circumstances appearing from the evidence itself, and must be not unreasonable." (Emphasis added)
In Holman's case, a matrimonial cause, the issue for trial was whether the marriage had been consummated. The petitioner gave evidence, uncontradicted, to the effect that it had not been. The respondent was not represented at the hearing. The trial Judge rejected the petitioner's evidence without, Sugerman J held, giving a sufficiently explicit statement of his reasons.
In our opinion, Holman's case should be distinguished from the circumstances of this matter. In the present case, the appellant's version of her accident and her credit were both seriously questioned in cross-examination; and, in rejecting her testimony as generally unreliable, the primary Judge said that he took into account her manner in giving evidence in forming an "unfavourable impression of (her) truthfulness".
The relevant principles are stated in Cross on Evidence, 4th Aust. ed. (D. Byrne and J.D. Heydon) (at 360) as follows:
"The general rule of the law of evidence is that the court may act upon the uncorroborated testimony of one witness, and such requirements as there are concerning a plurality of witnesses, or some other confirmation of individual testimony, are exceptional. This does not mean that the court must act upon the evidence of one witness, even if it is unshaken in cross-examination, and in no way discredited by the witness's demeanour."
Cross adds the following qualification (footnote 1):
"But, where uncontradicted evidence, which is inherently reasonable, probable and conclusive of the matter has been given, the court is bound to accept it: Hardy v Gillette
(1976) VR 392 at 396."
In Hardy v Gillette, Anderson J said (at 396-7):
"On general principles, where uncontradicted evidence, which is inherently reasonable, probable, and conclusive of the matter, has been given, the court is bound to accept it. It is unnecessary to examine the many cases to that effect which are in the reports, and it is sufficient merely to refer to some of them ... There is the qualification, of course, that no judge or tribunal is bound to accept evidence which is in itself inherently improbable and unreasonable which is hesitating, shuffling, inconclusive and unconvincing ... but that is not the position in the present cases."
Gallop J concluded, on the whole of the evidence, that he was not satisfied that the appellant, who had the burden of proof, had established on the balance of probabilities that the incident alleged actually happened in the manner and in the circumstances described by the appellant in her version of the events. His Honour so held because he was not satisfied of the credibility of the appellant's case. It was open to the Judge to do this, especially since, as has been said, no attempt has been made to challenge the Judge's conclusions with respect to the appellant's credibility; this is so notwithstanding that it may also have been open to his Honour to accept the appellant's version of what happened even if it lacked corroboration.
In summary, in our opinion, it was open to the Judge to accept or reject the appellant's description of the events. In the absence of any error in the trial Judge's assessment of the appellant's credibility, and none has been demonstrated, this Court should not, we think, interfere with his conclusion.
Ground 2(c) - That is was not open to the Judge to draw an adverse inference because the appellant did not call her co-worker
43. As has been noted, the Judge relied, adversely to the appellant, upon the circumstance that the appellant might have called her co-worker. On behalf of the appellant it is now said that, since there is "no property in a witness", it was equally open to the respondents to call the co-worker, so no inference adverse to the appellant should have been drawn.
We have difficulty accepting that contention.
In Jones v Dunkel (1959) 101 CLR 298, Windeyer J said (at 320-1):
"...(H)is Honour should have given an answer in accord with the general principles as stated in Wigmore on Evidence 3rd ed. (1940) vol. 2, s.285, p 162 as follows: 'The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted.' This is plain commonsense..."
In the present action, the credibility of the appellant's version of the events in question was seriously questioned in the course of her cross-examination. Common sense would suggest that, being aware that she bore the onus of proof, the appellant's version would be more likely to be accepted if, rather than standing alone, it were supported by calling another witness who was independent. No explanation for the failure to call the other witness was offered. As a fellow worker, there was no reason to suppose that she might be hostile to the interests of the appellant.
Ground 2(d) - That it was not open to the Judge to find that it was the appellant's duty to clean the floor at the material time
47. On behalf of the appellant, reference was made to the evidence of the appellant in which she explained the performance of her normal duties. Particular reliance was placed upon her evidence to which reference has already been made, that it was not part of her normal duties to go back and clean the corridor again later in the day.
As has been seen, this question only arose for the trial Judge on the footing that it be assumed that the appellant had established that the floor was in a dangerous condition. However, his Honour rejected the appellant's version of the incident and the circumstances in which she claimed that it occurred. It must follow that the views expressed by the primary Judge on the present matter were an alternative approach which was not a necessary part of the reasoning leading to his Honour's conclusion that the action should be dismissed.
Since we are of the opinion that this Court should not disturb the Judge's conclusion that he should not accept, as credible, the appellant's description of the incident, it must follow that the present question does not arise for determination in the appeal.
Ground 2(e) - That it was not open to the Judge to find that the appellant voluntarily assumed any risk existed as a result of the conditions in which she worked
Ground 2(f) - That it was not open to the Judge to find that the manner in which the first respondent (effectively) ensured that the hallway was safe was to direct the appellant to keep the corridor clean
Ground 2(g) - That it was not open to the Judge to find that the employer had a system in place to render the premises safe
Ground 2(h) - That it was not open to the Judge to find that the first respondent had given the appellant the duty of keeping the floor of the corridor clean;
Ground 2(i) - That it was not open to the Judge to find that the first respondent had given the appellant directions as to the work to be done including cleaning the corridor floor and in this way the employer ensured that the hallway was safe.
Ground (3) - That is was not open to the Judge to find that the state of the corridor floors was due to incidental spillages and conclude that it was the duty of the appellant to clean it up.
Ground (4) - That it was not open to the Judge to find that the first respondent had given appropriate instructions for the cleaning of the corridor and to then conclude from that finding that it was not in breach of its duty to the appellant.
Ground (5) - That the Judge applied the wrong test of liability in respect of an employment injury in concluding that "the appellant's injury was due to the appellant deliberately declining to render the hall safe and then using it when she knew of its condition".Again, in each case of those grounds of appeal, the appellant seeks to challenge the alternative reasons given by the Judge why the appellant's claim should be dismissed. As has been said, having regard to our earlier conclusion, it is not necessary that we deal with these questions on this appeal.
Ground 6 - That the Judge failed to identify his reasons for dismissing the claim against the second responden
51. There is no merit in this contention. His Honour indicated in his reasons that the primary ground on which the claim failed was because he was not satisfied, on the civil onus, that the appellant's version of events was credible. His Honour explained, sufficiently in our view, why he lacked confidence in her credit. There was no need to give further details.
Ground 7 - That the Judge erred in holding that for the same reason as there was no liability in the employer, there was no liability in the occupier
52. As has been seen, at the end of his reasons, Gallop J said:
"For these reasons, the (appellant's) claim against the first (respondent) fails for the same reason her claim against the second (respondent) fails..."
As we read the reasons, this statement should be read distributively, that is to say, as applicable to both the primary basis for dismissing the claim and to the alternative basis. So far as the statement is applicable to the primary basis, it is difficult to see any legitimate ground for complaint. On that basis, his Honour concluded that the appellant's version of events lacked credibility. The reasons for that conclusion were apposite not only in the case of the claim against the first respondent but also in the context of the claim against the second respondent.
For the reasons already given, in any event, it is not necessary for us to deal with the alternative approach taken by his Honour.
Ground 8 - That the Judge failed to accept the uncontradicted evidence of the appellant and failed to appreciate that the respondents had the opportunity to contradict it but did not do so.
Ground 10 - That the Judge erred in failing to draw from the fact that the respondents failed to call any contradicting evidence the inference that the appellant was telling the truth.
Ground 11 - That his Honour erred in failing to find that the first and second respondents had breached their respective duties of care to the appellant by failing to take any steps to protect her from the known dangers of the wet slippery and greasy floor.In essence, these grounds of appeal cover the same area as grounds 1, 2(a), (b) and (c). They should also be rejected, for similar reasons.
Ground 9 - That the Judge allowed himself to be prejudiced by the appellant's need for an interpreter and failed to take into account her standard of education.At the trial, in the course of the opening of the appellant's case, the following passed between counsel for the appellant and the Judge:
"MR. HICKEY: Your Honour, it is a case in which the plaintiff Mrs Zora Tomic who was born 27 September 1948, brings an action against her employer, the first defendant, Limro and against the second defendant, being the occupier of premises where she was carrying out work. Your Honour will hear that she requires the services of an interpreter, a Serbian interpreter; he is available. The plaintiff left school, your Honour, at the age of 12.
HIS HONOUR: Liability is in issue?
MR HICKEY: Yes, your Honour.
MR AUSTRON: It is, your Honour.
MR MEAGHER: Yes, your Honour.
MR HICKEY: She had little education, your Honour. Married at age of 17, came to Australia age 22 in 1970. HIS HONOUR: And she still needs an interpreter. MR HICKEY: Yes, your Honour. Not for all of it, your Honour. Your Honour will hear that - - - HIS HONOUR: Well, I just think that people who have been in the country for 20 odd years and need an interpreter do not do themselves much of a service, Mr Hickey. As we all know, any witness who gives evidence through an interpreter is hard to judge as to demeanour and all the things that are relevant to a fact-finding tribunal, and for a lady who has been in the country for 23 years still to need an interpreter, it is her decision of course, but - - - MR HICKEY: Well, your Honour, I can only say this in reply, your Honour, that it seems that she spent her time very much within the Serbian community, your Honour. HIS HONOUR: Yes.
MR HICKEY: And obviously has been speaking that language. Your Honour, the work she has done has been a cleaner. She is put up as an uneducated lady, your Honour."
As has been seen, in his reasons, Gallop J said:
"The (appellant) was in the witness box for a long time, particularly under cross-examination by counsel for the first (respondent). Notwithstanding that she has some command of English (she has after all been in Australia since 1970), she chose to give evidence in the Serbian language through an interpreter.
It is notoriously difficult to assess the credibility of a witness who gives evidence in a foreign language through an interpreter. Taking that into account, I did not form a favourable impression of the (appellant) as a witness of truth."
In our opinion, none of this material should be treated as an indication, or even the appearance, of bias or prejudice. In essence, the Judge was pointing out, in the context of an action where liability was in issue and where questions of credit could reasonably be expected to arise, that the services of the interpreter should only be used when it was necessary to do so. In our opinion, there could be nothing wrong in his making that point.
The appeal should be dismissed, with costs.
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