Westbus Pty Ltd (Administrators Appointed) v Ishak

[2006] NSWCA 198

New South Wales

Court of Appeal

CITATION:	Westbus Pty Ltd (Administrators Appointed) v Ishak [2006] NSWCA 198
HEARING DATE(S):	3 July 2006
JUDGMENT DATE:	25 July 2006
JUDGMENT OF:	Handley JA at 1; Giles JA at 2; Tobias JA at 25
DECISION:	(1) Appeal allowed; (2) Set aside the verdict and judgment for the plaintiff and the order that the defendant pay the plaintiff's costs, and in lieu thereof order that there be verdict and judgment for the defendant and an order that the plaintiff pay the defendant's costs; (3) Respondent pay the appellant's costs of the appeal and have a certificate under the Suitors Fund Act if otherwise qualified.
CATCHWORDS:	Failure to take reasonable care - bus passenger slipped and fell on banana in aisle - whether established failure - when and how banana came to be there - no higher than conflicting inferences of equal probability - not established. ND
LEGISLATION CITED:	Trade Practices Act 1974
CASES CITED:	Luxton v Vines (1952) 85 CLR 352.
PARTIES:	Westbus Pty Ltd (Administrators Appointed) - Appellant Salwak Ishak - Respondent
FILE NUMBER(S):	CA 40488/05
COUNSEL:	A J Stone - Appellant M R Aldridge SC & I Ryan - Respondent
SOLICITORS:	A R Conolly & Company - Appellant Bryden's Law Office - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2338/03
LOWER COURT JUDICIAL OFFICER:	McLoughlin DCJ
LOWER COURT DATE OF DECISION:	19 May 2005
LOWER COURT MEDIUM NEUTRAL CITATION:	(McLoughlin DCJ, 19 May 2005, unreported)

CA 40488/05
DC 2338/03

HANDLEY JA
GILES JA
TOBIAS JA

Tuesday 25 July 2006

WESTBUS PTY LTD (Administrators Appointed) v ISHAK

Judgment

1 HANDLEY JA: I agree with Giles JA.

2 GILES JA: The respondent was a passenger in one of the appellant’s buses. When getting off at her destination she slipped on a banana in the aisle of the bus, and was injured. McLoughlin DCJ held that the appellant was liable to her in negligence and for breach of terms of the contract of carriage, and assessed damages of $111,192.50.

3 The appellant appealed on liability and the assessment of damages. The Court invited submissions in the first instance on liability, and at the conclusion of argument indicated that further submissions were unnecessary. For the reasons which follow, in my opinion the appeal on liability should be upheld.

The respondent’s fall

4 The appellant’s bus ran from Cabramatta railway station to Bonnyrigg and back to Cabramatta railway station. The respondent got on the bus at John Street, Cabramatta, to travel to Cabramatta railway station. She purchased a ticket and sat in a seat three to four seats from the front door of the bus. The bus stopped once before reaching the railway station, and then at the railway station. At the intermediate stop two more passengers got on and took seats.

5 According to the respondent there were ten or twelve passengers on the bus when she got on, all sitting down. Mr Leuzzi, one of the appellant’s bus drivers who was instructing the bus driver Mr Latisovic on the route, said that the bus was “pretty crowded” when the respondent got on, it was a full bus and there were some people standing by the time it arrived at the railway station. The appellant’s report of the incident to its insurer, signed by Mr Latisovic, said that there were 20 to 25 passengers. The judge did not fully reconcile the differing numbers, but appears to have accepted the 20 to 25 passengers; he found that all passengers were seated.

6 The judge accepted the respondent’s evidence that there was rubbish on the floor of the bus in the aisle when she got on; the respondent described it as -

“ … the ticket through the bus, when you get in the bus they give you a ticket had rubbish, some papers, bag papers, bag, you know, you put the food inside and was on the floor, and tissue, not dirty.”

The “not” may be an error in hearing or transcription; it was accepted in the appeal that it did not detract from the description of the rubbish.

7 When the bus arrived at Cabramatta railway station the appellant stood up and took a couple of steps along the aisle towards the door in order to get off. Her left foot slipped, and she fell on the floor in the aisle. She was the last or almost the last passenger to get off. The bus had a middle door, and the respondent and Messrs Leuzzi and Latisovic all said that she fell in the region of the middle door; the judge did not make a specific finding, but it seems that the respondent stepped towards the rear of the bus in order to get off by the middle door.

8 Mr Leuzzi, who had been at the door of the bus helping passengers get off, came to the respondent. The respondent did not herself see it, but she was told by Mr Leuzzi that there was a banana on the floor; the respondent saw something white under her shoes and on her skirt. The judge found that the respondent slipped and fell on a banana or part banana in the middle of the aisle.

9 The judge’s reference to a part banana was later amplified. He found that “it was not a full banana in that it had been partly eaten and discarded amongst tissues”. The basis for the finding appears to have been his Honour’s acceptance -

“ … that the plaintiff was told by Rocky [Mr Leuzzi] that the banana was in essence partly obscured by tissues and from that I draw the inference that it was not a full banana in that it had been partly eaten and discarded amongst tissues.”

10 This was, I think, an error. Mr Leuzzi said that he saw beneath the respondent a full banana in its skin, but squashed, which he picked up and put in the bin. Mr Latisovic described the banana as squashed, with the skin split. The respondent’s evidence of what she was told by Mr Leuzzi was that when he helped her up he said, “Dirty people, they eat the banana. They throw it in tissue and throw it on the floor.” This was a generalisation by Mr Leuzzi, and did not justify the judge’s re-statement that he told the respondent that the banana in question was partly obscured by tissues or the inference that it was partly eaten and discarded amongst tissues. Mr Leuzzi gave evidence that he did not tell the respondent that he saw a banana wrapped up in tissues, and did not see tissues with it. So far as his Honour’s reasons involved that there was a partly eaten banana discarded amongst tissues, I think his Honour misapprehended the evidence.

The judge’s reasons on liability

11 For her case in negligence the respondent had to establish failure to take reasonable care to prevent the hazard of the banana in the aisle causative of her injury. The respondent relied on terms implied into the contract of carriage, under common law principles or pursuant to s 74 of the Trade Practices Act 1974, that the services of carriage by bus would be rendered with due care and skill and any materials supplied in connection therewith would be reasonably fit for the purpose for which they were supplied, and her case in contract was treated as requiring that she establish that her injury was caused by failure to take reasonable care and skill to prevent the hazard of the banana in the aisle. No relevant distinction was drawn between the tortious and the contractual causes of action.

12 His Honour accepted that the bus was dirty, in the manner described by the respondent, and said that there was debris including tissues on the floor which “could well have concealed other debris including food items”. He said that the debris was “well in view of [Mr Leuzzi and Mr Latisovic] well before the bus arrived at Cabramatta Station”.

13 The dispositive paragraphs of his reasons were -

“I find that the banana had been discarded with tissue and been discarded before the bus arrived at Cabramatta Station and discarded into the middle of the aisle where it should readily have been detected by the bus driver and/or Rocky, who should have prevented persons alighting until it had been removed.
I also find that the amount of debris was such which had been allowed to remain upon the floor that it could well be open that it concealed food materials that were slippery and could cause a person such as the plaintiff to fall.
I accept that it was not the practice of the bus drivers to prevent people from moving up and down the aisle when rubbish was upon it and it was not their practice to remove rubbish, notwithstanding it was clearly visible to them until they had arrived back at Cabramatta Station.
The bus driver had a clear view of the aisle and would readily have been able to detect the presence of the tissues and the banana and other debris that was lying around and prevented persons, including the plaintiff, from alighting the bus until such debris was removed and hence made the egress from the bus safe and prevented the injury.
I am also of the view that the bus driver and Rocky would have seen any person eating the banana if they had looked and paid the attention that they were required to do to ensure the bus was maintained in a safe and reasonable manner and as safe as reasonable care and skill could make it.
I am of the view they would have detected any person eating the banana and, in carrying out reasonable observation, would have prevented that person and prevented them from having discarded it as I find into the aisle or, if I be wrong in that assumption, discarding it onto the floor where it could be kicked into the aisle.
As I have indicated I do not accept that a proper cleaning system was put in place, although I do accept that the bus was clean in the morning when it went out on its run, the balance of cleaning would be left to the discretion of the driver. The frequency of cleaning was not carried out as either Rocky or Mr Latisovic have given evidence on the morning and they both allowed an accumulation of rubbish to occur in the aisle and in the bus which was as described by the plaintiff as she alighted the bus.
I am also of the view that the bus driver had allowed persons to eat part of the banana within the bus or they failed to observe when they should have observed that was happening and would then have detected that there was more than likely to be discarded banana left at or about the bus which would render exiting the bus dangerous and that was readily foreseeable that such actions could well cause persons to slip and fall.
A risk of injury in my view was quite likely to occur in those circumstances where foodstuffs, or in this instance bananas, had been left in a position where it was in the aisle. With foodstuffs such as a banana being in the aisle, there is a greater degree on probability of the occurrence of a person falling and suffering injury.”

14 The judge then said that “[f]or those reasons” he found that the appellant was negligent and in breach of the implied terms.

Consideration

15 The judge’s reasoning to his conclusion on liability is, with respect, not entirely clear. Three strands can be seen.

16 The first strand is that one of the passengers was eating the banana and then discarded it into the aisle or onto the floor where it could be kicked into the aisle, and that Messrs Leuzzi and Latisovic should have seen the passenger eating the banana and prevented the passenger from eating it or from discarding it. Since I do not think the judge was correct in finding that the banana was partially eaten, this basis for liability can not be sustained.

17 The second strand is that Mr Leuzzi or Mr Latisovic should have seen the banana, and prevented passengers from getting off the bus until the debris had been removed. The third strand is that there was no proper cleaning system, it seems meaning that even if Mr Leuzzi or Mr Latisovic should not have seen the banana a proper cleaning system would have prevented it from being in the aisle. In that regard, the judge had earlier said that “in general terms” the bus was “cleaned occasionally but not as regularly as it should have been”, which I understand to have been his indication that a proper cleaning system was not put in place.

18 These bases for liability very much involved when the banana came to be in the aisle. The judge recognised this, in that he said that failure to clean the bus as regularly as it should have been -

“ … does not dispose of the matter as it is dependant upon the length of time as to whether the banana was concealed at all by tissue, whether it was partly eaten, whether it was a banana that still had its skin on upon which the plaintiff fell and squashed [sic]”.

19 His Honour did not, however, make a finding beyond that the banana “had been discarded with tissue and been discarded before the bus arrived at Cabramatta Station”.

20 If partial eating and discarding of the banana be put aside, as I believe it should be, the judge’s finding is undermined. Contemplating a full banana on the floor in the aisle, when and how on the probabilities did it come to be there? Deliberate discarding is unlikely; more likely, it slipped from a passenger’s shopping. If the banana had been on the floor for any length of time, a banana not being likely to roll around and change its location, it might be thought that some other passenger would have come to grief; but whether or not that be so, the evidence did not in my opinion enable a finding that the banana was in the aisle for any length of time as distinct from being dropped by a passenger getting off ahead of the respondent at Cabramatta railway station. There was in short, a situation as spoken of by Dixon, Fullager and Kitto JJ in Luxton v Vines (1952) 85 CLR 352 at 358. The circumstances appearing in evidence did not give rise to “a reasonable and definite inference”, but at most gave rise to “conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture”.

21 In so concluding I do not overlook a matter which appears to have weighed with the judge, who said -

“Mr Latisovic also said that nobody dropped anything as they alighted from the bus as he was watching for that. If nobody dropped anything, the banana either had to be in the aisle before the passengers commenced to alight, or kicked to the aisle by alighting passengers after being partly eaten on the bus.”

22 The judge observed that none of the witnesses was “impressive”, which included Mr Latisovic. His Honour was entitled not to accept Mr Latisovic’s evidence that he looked at the aisle at the railway station and “No banana up on corridor, not at all” as probative that in fact there was no banana. After all, there was a banana, which Mr Latisovic saw when helping the respondent. Mr Latisovic must have meant that when he looked he did not see a banana. So also, when Mr Latisovic gave evidence that when passengers got off he watched to see whether they dropped “food or anything on the floor”, and “nobody dropped anything”, he meant that he did not see a passenger drop anything. This was no more probative that in fact nobody dropped anything.

Orders

23 In my opinion, the evidence did not establish causative negligence or breach of contract. I note that the judge granted a stay conditional upon payment of $55,000. Nothing was said in the appeal about a restitutionary order, and I assume that the parties have or will come to an agreement in that respect.

24 I propose the orders -

1. Appeal allowed.

2. Set aside the verdict and judgment for the plaintiff and the order that the defendant pay the plaintiff’s costs, and in lieu thereof order that there be verdict and judgment for the defendant and an order that the plaintiff pay the defendant’s costs.

3. Respondent pay the appellant’s costs of the appeal and have a certificate under the Suitors Fund Act if otherwise qualified.

25 TOBIAS JA: I agree with Giles JA.

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