Woolworths (WA) Pty Ltd v Berkeley Challenge Pty Ltd
[2004] WASCA 196
•27 AUGUST 2004
WOOLWORTHS (WA) PTY LTD -v- BERKELEY CHALLENGE PTY LTD [2004] WASCA 196
| (2004) 28 WAR 540 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 196 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:68/2003 | 16 JUNE 2004 | |
| Coram: | MALCOLM CJ MURRAY J JENKINS J | 27/08/04 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Order that respondent contribute 60 per cent of judgment in favour of plaintiff | ||
| A | |||
| PDF Version |
| Parties: | WOOLWORTHS (WA) PTY LTD BERKELEY CHALLENGE PTY LTD |
Catchwords: | Negligence Award of damages in favour of plaintiff against employer/occupier of premises by consent Plaintiff slipped on wet floor Contribution proceedings by employer against cleaner of premises Claim unsuccessful Whether cleaner negligent Whether cleaner estopped from asserting that employer was not negligent Relevance in contribution proceedings of alleged contributory negligence of plaintiff |
Legislation: | Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA), s 7(1)(c), s 7(2) Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c), s 5(2) |
Case References: | Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Bitumen & Oil Refineries (Australia) v Commissioner for Government Transport (1955) 92 CLR 200. , Brambles Construction Pty Ltd v Helmers (1966) 114 CLR 213 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53. , Wallaby Grip Ltd v State Rail Authority of New South Wales [2001] NSWCA 105 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 Wyong Shire Council v Shirt (1980) 146 CLR 40 Blondel v Wesfarmers CSBP Ltd [2004] WASCA 117 Joslyn v Berryman (2003) 198 ALR 137 Kondis v State Transport Authority (1984) 154 CLR 672 Miller v BP Fremantle Ltd [2002] WASCA 201 Mitchell Erectors Pty Ltd v Hinnen [2002] WASCA 169 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 State of New South Wales v Lepore (2003) 212 CLR 511 Union International (WA) Pty Ltd v Mazurak [1999] WASCA 272 Uzabeaga v Town of Cottesloe [2004] WASCA 57 Vosten v Commonwealth of Australia (1984) ATR 80 Western Australia v Dale (1996) 15 WAR 464 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : WOOLWORTHS (WA) PTY LTD -v- BERKELEY CHALLENGE PTY LTD [2004] WASCA 196 CORAM : MALCOLM CJ
- MURRAY J
JENKINS J
- Appellant
AND
BERKELEY CHALLENGE PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : THE DISTRICT COURT OF WESTERN AUSTRALIA
Coram : FRENCH DCJ
File Number : CIV 2305 of 2000
(Page 2)
Catchwords:
Negligence - Award of damages in favour of plaintiff against employer/occupier of premises by consent - Plaintiff slipped on wet floor - Contribution proceedings by employer against cleaner of premises - Claim unsuccessful - Whether cleaner negligent - Whether cleaner estopped from asserting that employer was not negligent - Relevance in contribution proceedings of alleged contributory negligence of plaintiff
Legislation:
Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA), s 7(1)(c), s 7(2)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c), s 5(2)
Result:
Appeal allowed
Order that respondent contribute 60 per cent of judgment in favour of plaintiff
Category: A
Representation:
Counsel:
Appellant : Mr M L Greenland
Respondent : Mr D R Clyne
Solicitors:
Appellant : Greenland Brooksby
Respondent : Pynt & Partners
Case(s) referred to in judgment(s):
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Bitumen & Oil Refineries (Australia) v Commissioner for Government Transport (1955) 92 CLR 200. ,
Brambles Construction Pty Ltd v Helmers (1966) 114 CLR 213
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53. ,
Wallaby Grip Ltd v State Rail Authority of New South Wales [2001] NSWCA 105
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460
Wyong Shire Council v Shirt (1980) 146 CLR 40
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Case(s) also cited:
Blondel v Wesfarmers CSBP Ltd [2004] WASCA 117
Joslyn v Berryman (2003) 198 ALR 137
Kondis v State Transport Authority (1984) 154 CLR 672
Miller v BP Fremantle Ltd [2002] WASCA 201
Mitchell Erectors Pty Ltd v Hinnen [2002] WASCA 169
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
State of New South Wales v Lepore (2003) 212 CLR 511
Union International (WA) Pty Ltd v Mazurak [1999] WASCA 272
Uzabeaga v Town of Cottesloe [2004] WASCA 57
Vosten v Commonwealth of Australia (1984) ATR 80
Western Australia v Dale (1996) 15 WAR 464
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1 MALCOLM CJ: In my opinion, this appeal should be allowed, the judgment of the learned trial Judge set aside, and an order be made that the respondent contribute 60 per cent of the liability of the appellant under the judgment in favour of the plaintiff, assuming that the appellant has discharged its liability to the plaintiff as is implied by the notice of appeal.
2 I have reached this conclusion for the reasons to be published by Murray J. I agree with his Honour that consideration needs to be given to the position in respect of the worker's compensation paid by the plaintiff to the appellant in the context of s 92B of the Workers' Compensation and Rehabilitation Act 1981 (WA).
3 MURRAY J: In June 1995 a Ms Stone, who was employed as a store supervisor at the appellant's supermarket at the La Plaza Shopping Centre in Bentley, slipped and fell on the wet floor of the staff lunchroom as she walked across it at about 7.30 am, shortly after she arrived at work. She was going to place her lunch in the refrigerator. She was injured in the fall.
4 She sued both the appellant, her employer and the occupier of the premises, and the respondent, a cleaning company contracted to clean the premises, whose workers had mopped the floor and left it wet some time before the plaintiff entered the lunchroom. She pursued a variety of causes of action against the appellant, but her principal claim lay in negligence and that was the cause of action pursued against the respondent who, she alleged, was negligent in failing to ensure that the floor was dry before allowing access to the lunchroom and in failing to warn the plaintiff that the floor was wet and slippery.
5 The appellant took contribution proceedings against the respondent. In effect, it repeated the plaintiff's allegations, alleging negligence in making the floor slippery when it was foreseeable that staff members would enter the room, a failure to ensure that it was dry before permitting such access, and a failure to warn of the danger. By way of defence to the plaintiff's action and the statement of claim in the contribution proceedings, the respondent denied any negligence as pleaded.
6 In fact, however, by the time the pleadings in the contribution proceedings were finalised, the plaintiff's action had been settled. At a pre-trial conference the appellant had consented to judgment at a pre-trial conference in the sum of $185,600, exclusive of workers' compensation payments, and costs of $20,000, inclusive of disbursements. The
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- respondent was involved in that conference and, by order, the plaintiff's action against it was discontinued.
7 The contribution proceedings which followed were tried in the District Court in March 2003. The appellant was the plaintiff in those proceedings and Ms Stone was called by it to give evidence. Judgment was given for the respondent, with costs.
8 The appeal is brought on the following ground:
"The trial judge failed to give sufficient weight to the facts that:
1. It was foreseeable to the respondent that the plaintiff would slip and suffer injury if the floor were left wet at 7.30 am on a working day;
2. There were reasonable precautions which the respondent could have taken to avoid the injury, namely:
(a) drying the floor before leaving it; and
(b) carrying out the mopping earlier, so that it would be dry by the time store staff walked on it.
3. The respondent, without explanation or excuse, failed to take the precautions; and
4. The plaintiff suffered injury as a result of that failure."
9 The respondent filed a notice of contention which raises two substantive points:
"1. On the basis of the findings of the learned trial Judge that the Plaintiff knew at the relevant time that the floor was wet and voluntarily elected to walk over it, there was no act of negligence on the part of the Respondent which caused or contributed to the Plaintiff's injuries.
2. Further, the Respondent says that on the basis of the findings of the learned trial Judge there was no negligence on the part of the Appellant which made it a party liable to pay damages to the Plaintiff and in the premises:
(a) the fact that it consented to judgment in favour of the Plaintiff was unreasonable;
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- (b) it is not thereby a tortfeasor as defined in Section 7(1)( c) Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947;
(c) it is not a party who is entitled to the benefit of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 and not entitled to contribution from the Respondent."
10 The trial judge dealt with the contribution proceedings upon the basis that they served to raised the issue whether the respondent was obliged to make any contribution to the damages awarded to the plaintiff against the appellant. Her Honour did not consider the matter raised in the second ground of contention and I shall return to that question in due course.
11 By a third ground of contention the respondent suggests that if it is to be held liable in the contribution proceedings, this Court should determine the percentage contribution to be made and it should make findings about the contributory negligence of the plaintiff. I should say that contributory negligence was not pleaded by the appellant, but it was pleaded by the respondent as against the appellant in its defence to the appellant's statement of claim in the contribution proceedings. Of course, in light of her Honour's judgment for the respondent, it was unnecessary for the trial Judge to consider whether it was open to her in the contribution proceedings to make findings about contributory negligence on the part of the plaintiff and to decide what degree of contributory negligence, if any, there was. These are issues to which I shall return in due course.
12 It is necessary first to identify more fully the relevant findings of fact by the trial Judge. I note that neither party challenges those findings.
13 The appellant called four witnesses. I have mentioned Ms Stone. The appellant also called a workmate to whom Ms Stone reported her fall. Ms Stone said, "that she had fallen over a floor that appeared to be wet." The appellant also called Mr Crowle, the manager of the supermarket at the relevant time. Ms Stone reported the fall to him also. He made an entry of her report in the accident occurrence book maintained at the store. He recorded what she had told him, that she slipped on the wet floor of the lunchroom at 7.30 am, just after the cleaners had mopped the floor. That entry made no reference to whether or not Ms Stone knew that the floor was wet when she walked on it.
14 However, that was expressly dealt with by Mr Crowle when he was permitted to give evidence that he had filled out the employer's report of
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- injury form for workers' compensation purposes. The document became exhibit 2. His description of the accident, which he said would have been information given to him by Ms Stone, although he could not recall that happening, included the following:
"Anne slipped on the floor in the lunchroom. The cleaner had just mopped the floor. Anne was aware the floor was wet and was walking carefully but still slipped. She landed on her right knee."
16 There is no need, I think, to discuss the niceties of the laws of evidence in relation to this material or the manner in which the evidence was adduced, but for completeness I should note that in the workers' compensation claim form filled out by Ms Stone she merely said, "I was stepping over the wet floor which the cleaner had just washed. I slipped, landing on my right knee."
17 It has to be said that her Honour's findings of fact in this regard are confusing. Her Honour's judgment, [2003] WADC 94, includes the following:
• "the plaintiff was well aware of the possibility of a wet floor in the lunch room and of a need to take care in walking across the floor." [19]
• Speaking of the workers' compensation forms, "the natural and more likely inference is that she was aware it was wet." [19]
• "her descriptions in the forms completed soon after the accident indicate that she was not only aware that the floor might be wet but was aware that it was wet when she went to walk across it." [21]
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- • "The people who use the floor know it is washed at that time of the morning and that it may be wet." [23]
• "The cleaning was conducted early in the morning in a routine well known to the plaintiff. She was well aware that the lunchroom floor was wet or may be wet and in those circumstances no amount of signs would have avoided the accident." [24]
• "I consider that the plaintiff's fall occurred because she slipped on the floor even though she knew that it was or could have been wet. It may be that she simply did not take sufficient care when walking." [24]
18 I think, with respect, that the better view of all that is that the trial Judge concluded that warning signs were not required because Ms Stone, if she did not in fact know that the floor was wet when she walked on it, thought that it may have been wet and proceeded accordingly. Ms Stone said, particularly in cross-examination, that she did not know that the floor was wet because the lighting was poor, but the trial Judge did not accept that evidence and found that it was possible to adequately light the lunchroom on entering it.
19 Finally, as to the respondent's negligence, her Honour said at [23]:
"The floor needs to be washed frequently, if not daily, to ensure the surface is clean and free from food spills. The people who use the floor know it is washed at that time of the morning and that it may be wet. In these circumstances it is not reasonable to require the [respondent] to prevent access to the area before it dries naturally or to dry it before someone walks on it or to wash it late at night or in the early hours of the morning before the staff attend the premises."
20 For similar reasons, her Honour doubted that it would be appropriate to find the appellant to have been negligent and, as I have already observed, she made the observation that the cause of Ms Stone's fall and injury was that she slipped even though she knew that the floor was or could have been wet. Her Honour observed that she may not have taken sufficient care when walking and added, "People sometimes stumble or trip without any intervention or external cause." As I have said, upon the conclusion to which her Honour came, the question of the contributory negligence of the plaintiff fell away, but I would not take those remarks to be a conclusion that the plaintiff's injuries were caused entirely or at all by her own failure to take reasonable care for her own safety.
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21 As to the issues raised by the notice of appeal and the notice of contention, it is convenient to commence by reminding myself that for all practical purposes the contribution proceedings raised no question that the appellant was entitled to be indemnified by the respondent in respect of its liability to the plaintiff. Certainly that was the case having regard to the way in which the trial was conducted and the appeal was argued. The proceedings therefore fell to be dealt with under the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), s7(1)(c), which provides that where damage is suffered by a person as the result of a tort:
"any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is or would if sued have been liable in respect of the same damage whether as a joint tortfeasor or otherwise … ."
22 Section 7(2) of the Act provides:
"In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the Court to be just and equitable; … ."
23 As to the matter raised by the second ground of contention, whether the judgment of the trial Judge may be supported on the basis that the appellant was not negligent, despite the final judgment against it, so that it ought to be held that the appellant was not a tortfeasor who could claim contribution from the respondent, the question would appear to be one of res judicata or issue estoppel.
24 A similar question was dealt with by the High Court in James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53. The case came from NSW but the relevant legislation was in practically identical terms. In that case, the plaintiff sued three defendants as joint tortfeasors. Consent judgments were entered against two of those defendants and judgment was entered for the third defendant against the plaintiff, a situation like that which occurred here.
25 However, counsel for one of the defendants against whom the plaintiff obtained judgment asserted that his client did not consent to judgment in favour of the third defendant. Counsel said that although he could not prevent that judgment being entered, his client proposed to pursue a claim for contribution against the third defendant. However, a majority of the High Court, Gaudron, Gummow and Callinan JJ, McHugh
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- and Kirby JJ dissenting, held that the third defendant was not a joint tortfeasor liable with the defendant who brought the contribution proceedings in respect of the plaintiff's damage because the entry of judgment in favour of the third defendant established that it was not liable to the plaintiff and thereby absolved it from liability to the other defendant.
26 The crucial point was that the third defendant had been sued by the plaintiff, who had obtained final judgment in that action. That ended the capacity of the defendant pursuing the contribution proceedings to seek to establish what would, in effect, be a contrary outcome in relation to the third defendant's liability. Their Honours who dissented thought the fact that the defendant bringing the contribution proceedings did not consent to the judgment in favour of the third defendant meant that it was not precluded from bringing the contribution proceedings.
27 I do not propose to discuss further the reasoning of the minority, but that of the majority is effectively encapsulated at 69 of the report in [41] of the judgment of Gaudron and Gummow JJ, where their Honours said:
"The status of the Tribunal as a court of record was such that the circumstance that the judgment in favour of the respondent was entered by consent renders it no less effective to absolve the respondent from liability to the plaintiff. It was for the appellant to have taken the necessary steps to oppose that entry of judgment and to have put itself in the procedural position whereby it was competent to appeal against that entry. In the meantime, whilst that judgment remained on the record of the Tribunal, the respondent did not answer either of the statutory descriptions necessary to confer entitlement upon the appellant to proceed against it for contribution."
28 It amounts to this. The respondent could not and does not argue that the appellant was precluded from bringing the contribution proceedings because it was established by the judgment obtained by the plaintiff that the respondent was not a tortfeasor "who is or would if sued have been liable" to the plaintiff. It did not obtain, by consent, a judgment in its favour. It was merely the case that the plaintiff obtained leave to discontinue her action against the respondent.
29 Nor in my opinion can the respondent now defeat the appellant's claim in the contribution proceedings by asserting that the appellant should not have consented to judgment against it. The simple fact of the
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- matter is that it did so and it matters not that the judgment against it was by consent. The plaintiff's cause of action against the appellant merged in the judgment the plaintiff obtained. The appellant's liability to the plaintiff was thereafter res judicata. It was a tortfeasor liable in respect of the damage suffered by the plaintiff as the result of the tort of negligence committed by the appellant and it therefore has the capacity to seek contribution in respect of the burden of that liability. This is the classic mode of operation of the section: Brambles Construction Pty Ltd v Helmers (1966) 114 CLR 213 per Windeyer J at 221.
30 It may pursue that claim for contribution against the respondent because it may yet establish, within the terms of s 7(1)(c) of the Act, that the respondent is a tortfeasor who "would if sued have been liable in respect of the same damage". It will be apparent that by referring to the statutory provision in relation to the position of the respondent in that way I take the view that although the respondent was sued at one time by the plaintiff, the present situation is that if it were not for the satisfaction of the judgment in favour of the plaintiff by the appellant, the respondent could now, if sued, be found to be liable to the plaintiff for the damage (ie, the injury) she suffered as the result of the tort of negligence committed by the respondent, if that finding be made.
31 As to the question of the relevance, if any, of the plaintiff's contributory negligence, the respondent identifies this as being an aspect of the assessment of the extent of its contribution once its liability in that regard has been established. In other words, if it is open to have regard to the question of contributory negligence at all it must be within the terms of s 7(2) of the Act. The respondent envisages an outcome whereby the Court would hold that the contribution to be made would be a proportion of the damages reduced for the contributory negligence of the plaintiff.
32 Is that now possible? One way may start with the Act, s 4(1), whereby the plaintiff's contributory negligence is dealt with by providing that:
" … the Court shall reduce the damages which would be recoverable by the plaintiff if the happening of the event which caused the damage had been solely due to the negligence of the defendant to such extent as the Court thinks just in accordance with the degree of negligence attributable to the plaintiff."
33 In Bitumen & Oil Refineries (Australia) v Commissioner for Government Transport (1955) 92 CLR 200 at 212-3, the High Court,
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- speaking of the provisions in the Law Reform (Miscellaneous Provisions) Act1946 (NSW), s 5(1)(c) and s 5(2), equivalent to our s 7(1)(c) and s 7(2), said:
"A decision that the liability imposed by the previous judgment is a liability which par (c) of subs (1) contemplated does not necessarily mean that the tribunal which discharges the responsibility of fixing the amount of contribution under subs (2) of s 5 cannot consider whether owing to the fault of the now plaintiff it stands at an excessive figure. No doubt the Court under subs (2) must accept the assessment as conclusive as to the existence and the amount of the liability of the plaintiff claiming contribution. The Court, however, is required to find what is just and equitable as an amount of contribution having regard to the extent of the responsibility for the damage of the tortfeasor against whom the claim is made. There does not seem to be any valid reason why that tortfeasor may not say to the tortfeasor making the claim, if he has improvidently agreed to pay too large an amount or by unreasonable or negligent conduct in litigation has incurred or submitted to an excessive verdict, that the excess is due to his fault and not to that of the tortfeasor resisting the claim. It would be a matter for the Court to consider under the heading of 'just and equitable'."
35 When the Court comes then, in the contribution proceedings, to s 7(2) and the assessment of what, if any, contribution should be ordered as being "just and equitable" in all the circumstances of the case, it will be open to the defendant to raise matters of the kind described by the High
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- Court in the latter portion of the judgment quoted above, because the matters referred to may properly be allowed to have an impact in relation to what contribution it will be just and equitable to order the defendant in the contribution proceedings to make. That is quite a different exercise from that which would notionally reduce the liability of the defendant who is the plaintiff in the contribution proceedings on the ground that the original plaintiff should have had his or her judgment reduced on account of contributory negligence.
36 In my opinion, the statute, by necessary implication, makes the following provision in a case such as this. The defendant who is the plaintiff making the claim for contribution will have had its liability in respect of the damage suffered by the original plaintiff established, by judgment or otherwise. The next step will be to establish the amount or measure of that liability, the damages to be paid, and that is a step which may involve a reduction in the damages which would otherwise have been recoverable against that defendant, attributable to the contributory negligence of the plaintiff. It is towards that monetary sum, after allowing for the plaintiff's contributory negligence, that the defendant in the contribution proceedings may be asked to make a contribution under s 7(2), that contribution being such as is found to be just and equitable. The measure of what is just and equitable will, as the High Court put it, be the extent of the responsibility of the defendant in the contribution proceedings for the damages paid or payable to the plaintiff.
37 It follows, in my opinion, that, there having been no reduction in the damages payable to the plaintiff made on account of Ms Stone's contributory negligence in the consent judgment obtained by her, no such reduction may now be made as part of the process under s 7(2) of assessing the measure of any liability which it may be adjudged the respondent should bear. In those circumstances I would not propose to give detailed consideration to the question whether the plaintiff was guilty of contributory negligence.
38 However, in passing from the point I would simply observe, as I have already mentioned, that as I read the judgment of the trial Judge her Honour made no finding of contributory negligence and gave no clear intimation that she would make such a finding. The only evidence on the point would seem to be that of the plaintiff herself, including any declarations against interest which she made out of court following the accident. That evidence would seem to me to yield support for no more than the conclusion that Ms Stone, anticipating that the floor may be wet and slippery, took care as she walked on it, but nonetheless lost her
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- footing, slipped and fell. She did so despite the fact that, as she said in evidence, she was wearing enclosed shoes with a low heel and rubber soles, a non-slip surface for traction, because her job exposed her to slippery floor surfaces from time to time. Perhaps it was the case that she did not take sufficient care in walking, but it may equally have been the case that she slipped and fell despite the fact that she took reasonable care and precautions for her own safety. After all, the danger to which she was exposed by the slippery floor was of an accident occurring in just the way it happened on this occasion.
39 I turn then to the question dealt with by her Honour. Was the respondent negligent in such a way as also to cause the damage suffered by the plaintiff and if so what is the measure of its responsibility for that damage?
40 The trial Judge held that the respondent did not breach its duty of care. Her Honour noted the evidence, called by the appellant, of its regional maintenance co-ordinator, Mr Witton. He explained that the respondent's duties were settled by a document describing the scope of the work required. The tender for the work was provided on this basis and the contract was to perform the work the subject of that tender. The work was performed by the use of equipment which is kept on site. The lunchroom floor was to be swept, the bins emptied and the floor mopped clean daily. That was a wet mopping process. The floor was to be scrubbed using a hand-held machine and detergent weekly and it was to be polished fortnightly.
41 Whether the floor was mopped clean or cleaned with a scrubber, I consider that Mr Witton's evidence was (at T/71 – 2) that it was to be dried using a mop before it was left. The contract was expressed in terms consistent with this view and, although it did not specify the time of the day or night when the work was to be done, Mr Witton's evidence was that it would be expected that the work would be completed before the store opened.
42 The trial Judge concluded, as I have observed, that the knowledge of Ms Stone, at least that the floor might be wet and slippery, meant that the absence of a sign warning of the wet floor did not constitute a breach of the duty of care. Having regard to the way in which the ground of appeal is formulated, there is no challenge to that conclusion. The challenge is that her Honour should have found a breach of the duty in the failure to dry the floor before leaving it, or in not cleaning the floor earlier so that it would be dry by the time the staff needed to walk on it.
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43 For convenience I set out again the conclusion of the trial Judge on this aspect of the case, which was summed up by her Honour at [23]:
"The floor needs to be washed frequently, if not daily, to ensure the surface is clean and free from food spills. The people who use the floor know it is washed at that time of the morning and that it may be wet. In these circumstances it is not reasonable to require the first defendant to prevent access to the area before it dries naturally or to dry it before someone walks on it or to wash it late at night or in the early hours of the morning before the staff attend the premises."
44 Her Honour observed, correctly with respect, that the respondent's duty was to take reasonable care to avoid exposing those who might walk on the floor to a foreseeable risk of injury. Her Honour, again correctly, said that what is reasonable care would involve consideration of the magnitude of the risk, the likelihood of its occurrence, and the expense, difficulty and inconvenience of taking remedial action: Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-8, as applied in many later cases, of which I will mention but two, Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 and Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540.
45 In this case, I regret to say that although her Honour clearly approached the question of breach of duty correctly, in my respectful opinion her Honour's conclusion was wrong. My evaluation of the facts and circumstances would lead me to a different view. There was a requirement that the floor be washed daily. That process would make it wet. It was a tiled floor in a polished state. As has been seen, it was to be polished monthly. It may be accepted that staff members and cleaners knew that when wet the floor would be slippery enough to make it difficult to keep one's footing and yet it was well-known that staff members would use the lunchroom and walk on the floor early in the day before the store opened, for just such a purpose as that of Ms Stone on the day in question. If the floor was cleaned and left damp or wet at such times, the magnitude of the risk of injury and the degree of probability that someone would fall and injure themselves, was high.
46 What then could a person in the position of the respondent reasonably be required to do to alleviate or substantially reduce the risk of injury? It would appear that staff members such as the plaintiff could not be excluded from the lunchroom at the time in question when utilising it for a legitimate purpose. It would seem clear then that the cleaners should
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- have been required by the respondent to mop the floor dry before leaving it. There was nothing to suggest that that was not perfectly feasible and indeed the evidence of Mr Witton was to the contrary.
47 If there was any difficulty in this regard then there was nothing to suggest that the floor could not have been cleaned earlier in the night when staff members were not present and would not need to use this room. The floor might then be given the chance to become completely dry before staff commenced to arrive in the morning. Certainly the terms of the contract appeared to provide no impediment to the respondent choosing the time out of normal hours when the cleaning work was to be performed.
48 There was no evidence that any great expense would be involved in implementing either of these solutions, or that either of them involved any difficulty or inconvenience in their implementation, and in my opinion the proper conclusion was that the respondent breached its duty of care. It was no answer, I think, to assert, as the first ground of contention does, that the plaintiff knew or ought to have known that the floor was wet when she walked on it.
49 The next question is the degree of responsibility for the damage suffered by the plaintiff to be attributed to each of the appellant and the respondent. Having regard to the nature of the respondent's breach of duty as I have just discussed it, it is clear, I think, that it should bear the major proportion of the responsibility for the plaintiff's injuries. It created the conditions which comprised the risk of injury. It did so because, in my view, it failed to perform the work in a reasonable manner, by not leaving the floor dry after it had been cleaned. It did that when the obvious consequence of staff walking on a wet and slippery floor was a fall and the receipt of injuries such as that experienced by Ms Stone. Its negligence occurred in the context of its ordinary commercial cleaning operations.
50 The appellant on the other hand was negligent because of its failure to supervise the respondent's work practices to ensure that they were being carried out in a manner which did not unreasonably create a risk of injury for its employees. Mr Witton's evidence made it clear that the appellant had a system whereby it would take up with a contractor in the position of the respondent any complaint or failure of procedure and have it amended. It must be taken to have been aware of the practice of cleaning the floor and leaving it wet to which Ms Stone referred in evidence and it must be taken to have been aware of the timing of the
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- cleaning operations, and yet it did nothing to instruct the respondent to ameliorate the hazard. In my opinion, the appellant must bear a substantial responsibility for what occurred.
51 I consider that the appeal should be allowed and I would order that the respondent contribute 60 per cent of the liability of the appellant under the judgment in favour of the plaintiff, presumably by paying the appellant the appropriate sum, on the assumption that the appellant has discharged its obligation to the plaintiff, as the notice of appeal implies. I would hear the parties as to the final orders which should be made if the appeal is allowed.
52 One matter which would no doubt require attention is the position in respect of the workers' compensation paid to the plaintiff by the appellant. Uninstructed by the submissions of counsel, I would have thought that this sum which, having regard to the way the notice of appeal is framed, may be $153,415.16, should be brought back into account in the contribution proceedings. That may, I think, be the effect of the Workers' Compensation and Rehabilitation Act 1981 (WA), s 92B.
53 JENKINS J: I have had the advantage of reading the draft reasons of Murray J. For the reasons advanced by his Honour I agree that the appeal should be allowed. However, I wish to make some comments with respect to one factual issue and the second and third grounds of contention.
Facts
54 I agree with Murray J's summary of the findings of fact except for his conclusion that the respondent's contractual obligations required it to dry the lunchroom floor after it was wet mopped.
55 The conclusion I have reached on this point is that the respondent was not under a contractual duty to dry the floor after it was wet mopped. I have come to this view for the following reasons:
1. The trial Judge did not find that the respondent was under a duty to dry the floor.
2. The cleaning specifications document does not expressly refer to the lunchroom floor being mopped dry.
3. The particularisation of the daily maintenance procedure for the "trading "area" is not apt to apply to the lunchroom, which would not normally be considered a trading area. In
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- the specifications the lunchroom is not subject to the same cleaning regime as the trading area.
- 4. Mr Whitton's evidence was that water is picked up or mopped up after the scrubbing process. I do not read his evidence as suggesting that the lunchroom floor had to be mopped dry after merely being wet mopped.
5. The evidence of persons who worked at the store was that the floor was left wet after being mopped.
6. At the hearing of the appeal, the respondent's counsel submitted that it was only required to wet mop the floor and was not required to dry it. In response, the appellant's counsel said that if this were a contractual claim there may be some strength to this submission.
56 Considering the above matters, there does not seem to have been any issue between the parties as to whether the contract between the appellant and respondent required the respondent to dry the floor after mopping. That is, the appellant did not assert either at trial or on appeal that such a contractual duty existed. I am also of the view that the evidence did not prove the existence of such a contractual duty.
57 Despite my disagreement with Murray J on this point I agree with his conclusions on the issue of the respondent's negligence. Leaving the floor wet at a time when staff were likely to be using the lunchroom meant that the magnitude of the risk of injury and the degree of probability that someone would fall and injure themselves was high. In those circumstances a reasonable person in the respondent's position would have dried the floor before leaving it, regardless of their contractual duties, or changed the time at which it was mopped. For the reasons expressed by Murray J the respondent should contribute 60 per cent to the consent judgment.
Ground of Contention
58 The first ground of contention falls away because, for the reasons given by Murray J, with which I agree, the respondent was negligent and its negligence contributed to Ms Stone's injuries.
59 The second ground of contention asserts that the appellant was not negligent. Three things are alleged to flow from this assertion. The first is that it was unreasonable for the appellant to consent to judgment in favour of Ms Stone. The second and third asserted consequences are, in
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- essence, identical. They assert that the consequence is that the appellant is not a tortfeasor entitled to contribution from the respondent.
60 I agree with Murray J, for the reasons given by him, that once judgment was entered against the appellant in favour of Ms Stone the appellant was a tortfeasor liable in respect of the damage to Ms Stone and was thereby entitled to "recover contribution from any other tortfeasor who is or would if sued have been liable in respect of the same damage", pursuant to the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) ("the Act"), s 7(1)(c).
61 A different question is whether the tortfeasor from whom contribution is sought can seek to have its contribution reduced on the basis that it was "unreasonable" for the claimant tortfeasor to consent to judgment being entered against it.
62 The concept of unreasonableness in this context probably originates from the High Court judgment in Bitumen & Oil Refineries (Australia) v Commissioner for Government Transport (1955) 92 CLR 200 at 213. The relevant passage has been set out in Murray J's reasons.
63 The High Court's dicta refer to a tortfeasor's unreasonableness or negligence in incurring or submitting to an excessive verdict rather than to a verdict at all. In the portion of the judgment quoted by Murray J, the High Court said that the court hearing the contribution proceedings must accept the judgment against the claimant tortfeasor as conclusive as to the existence and the amount of the liability of that party In Wallaby Grip Ltd v State Rail Authority of New South Wales [2001] NSWCA 105 at [44] Priestley JA (with whom Maher JA and Ipp AJA agreed) said:
"It seems to me be likely that it follows from the passage in the Bitumen & Oil Refineries case earlier set out that since the court hearing the contribution claim must accept as conclusive 'the existence and the amount of the liability of the plaintiff claiming contribution' it must accept also matters which were essential to that liability."
64 Priestley JA went on to find that, relevant to that case, two matters essential to the liability of the claimant tortfeasor were its employment of the injured worker and the breach of duty to that worker. With respect, I agree with Priestley JA's analysis and conclude that it was not open for the respondent, in this case, to contend that the appellant was not negligent and therefore it was unreasonable for the appellant to consent to judgment in favour of Ms Stone. The question of the negligence of the
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- appellant was essential to the appellant's liability, which was determined when the consent judgment was entered. Consequently it was not open for the court in the contribution proceedings to find that the appellant was not negligent and to reduce the respondent's contribution for this reason.
65 The third ground of contention raises the issue as to whether a tortfeasor being sued for contribution can seek to have its contribution reduced by virtue of the original plaintiff's contributory negligence. In my opinion the existence or absence of contributory negligence is not a matter which is essential to the liability of the claimant tortfeasor. In such a case such as this, it is a factor which affects the quantum of damages the original plaintiff would have been entitled to receive if the original plaintiff had sued the tortfeasor against whom the claim for contribution is made to judgment on the merits of the case. In the terminology of the Bitumen Oil Refinery case it is a matter which affects the "extent of the responsibility for the damage of the tortfeasor against whom the claim is made". On the basis of the dicta in the Bitumen Oil Refinery case and James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53, per Gaudron and Gummow JJ at 66, par 28, I am of the view that it is open for a tortfeasor sued for contribution to allege, and the onus is on it to prove, that the judgment to which contribution is sought is excessive because it does not reflect a reduction for the plaintiff's contributory negligence and that it would thereby be just and equitable to adjust the contribution.
66 In this case the respondent pleaded that if it was negligent then any award of damages against the appellant would have been less than the damages paid by the appellant by virtue of Ms Stone's contributory negligence. It then pleaded the particulars of Ms Stone's alleged negligence as follows:
"The plaintiff was negligent in that she:
(i) failed to maintain any or reasonable lookout;
(ii) failed to take any or reasonable care with her footing;
(iii) failed to wear footwear with sufficient grip;
(iv) proceeded to walk on the floor when she knew or should have known that it may have just been mopped;
(v) failed, in circumstances where she knew or should have known that it was common practice for the floor of the
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- staff lunchroom at the premises to be mopped at or around 7.30am on Mondays, Wednesdays and Fridays, to ascertain whether or not the floor had just been mopped prior to walking on it;
(vi) generally failed to take reasonable care for her own safety in the circumstances;
(vii) entered the staff lunchroom in circumstances which she considered dangerous, namely without the lights in the lunchroom being fully illuminated and when the floor was likely to be wet;
(viii) failed to turn on the lights to the staff lunchroom so as to be able to see if the floor was wet."
67 For the reasons given by Murray J, although he found that he did not have to deal with the issue of contributory negligence and neither did the trial Judge, I am of the view that the trial Judge's findings fell short of establishing Ms Stone's contributory negligence.
68 In Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310 Mason, Wilson and Dawson JJ in the majority decision of the High Court said:
"A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amount to mere inadvertence, inattention or misjudgement, or to negligence rendering him responsible in part for the damage."
69 Applying these principles to the present case the trial Judge's findings in respect to Ms Stone's conduct amount to no more than a finding of inadvertence or inattention. Thus, there was no justification for the trial Judge to reduce the contribution of the respondent by virtue of Ms Stone's contributory negligence.
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