Drew v State of New South Wales

1. [1]

   THE COURT: On 14 November 2005, Mrs Carol Ann Drew was a cleaner employed by Menzies Property Services Pty Ltd, the second respondent. She was working that afternoon at Campbelltown Public School. While at work that day, she fell and injured herself, particularly her right knee.

2. [2]

   In 2013, Mrs Drew sued the State of New South Wales as the occupier of the school and on the basis that it was vicariously liable for the tortious conduct of staff at the school. She sued Menzies as her employer for a workplace injury.

3. [3]

   The primary judge dismissed both claims, finding that there was no breach of duty by either the State or Menzies, and further that causation was not established in the case of her claim against the State. Against the possibility that he were wrong about that, his Honour would have found contributory negligence at 50%, and apportioned contribution between the defendants at 80% to the State and 20% to the employer. His Honour also made findings permitting the determination of damages against each defendant. It will not be necessary for the purposes of resolving this appeal to analyse the differences in the calculations of damages as modified by the Civil Liability Act 2002 (NSW) and work injury damages under the Workers Compensation Act 1987 (NSW). There is no dispute that his Honour's provisional assessment of damages very substantially exceeds $100,000, such that Mrs Drew's appeal under s 127 of the District Court Act 1973 (NSW) is as of right.

4. [4]

   For the reasons which follow, the appeal should be dismissed.

Factual background

1. [5]

   The primary judge found that Mrs Drew fell while walking through a classroom which was being used to store items for a fete to be held later that month. She was alone at the time.

2. [6]

   The first task was to make findings as to what had occurred. His Honour did so in a conventional way, identifying the contemporaneous documents and assessing them against the plaintiff’s testimonial evidence. In light of the challenge on appeal to almost all aspects of his Honour’s judgment on liability, it is convenient to take the same course in these reasons.

3. [7]

   Mrs Drew told a work colleague of her fall immediately afterwards. The colleague was called as a witness in the plaintiff’s case. She also rang her work supervisor, who said she should go to the doctor. She attended her general practitioner's surgery that afternoon. Her regular doctor was not in attendance, but the treating practitioner's notes record:

4. [8]

   Mrs Drew saw her regular doctor the following day. The practice records refer thereafter to WorkCover “Initial” and “Progress” claim forms and various referral letters. Mrs Drew was cross-examined on a claim for workers compensation benefits signed by her and dated 16 December 2005. Part of the description given in the form was:

5. [9]

   Mrs Drew accepted that that was an accurate description of the accident. The claim form itself was not tendered.

6. [10]

   It is not necessary for present purposes to summarise the lengthy history of Mrs Drew’s treatment, nor to deal with the complications arising from previous injuries she had suffered including to that knee. In February 2006, Mrs Drew had an arthroscopy, with partial success. In August 2006, she saw an orthopaedic surgeon, Dr Barrett, whose report includes the following history:

7. [11]

   The primary judge heard Mrs Drew give evidence in chief and under cross-examination in 2014, more than eight years after the accident. His Honour accepted her as “credible but not always reliable”, having regard to the passage of time. Although not all of the medical histories and other contemporaneous documents mentioned a box, his Honour found that “she caught either her foot or the bucket on the box she identified in evidence”: at [40]. His Honour noted that “all parties approached the case on the basis that a box was in the room where the plaintiff fell and that the plaintiff had failed to avoid it on one of her journeys through the classroom”: at [23].

8. [12]

   In the absence of contemporaneous documentary evidence as to precisely how she had come to fall, it is necessary to turn to Mrs Drew’s evidence. Mrs Drew gave evidence that she had walked through the classroom five times previously that afternoon. There were two buildings at the school, which were her responsibility to clean. One of them was block E. It contained interconnecting classrooms with a staffroom at the end. The block contained three wet areas – two for the classrooms and one for the staffroom. The wet areas had a vinyl floor while the classrooms (including the classroom in which she fell) were carpeted. The classroom in which she fell was known as room number one. It was not being used to teach, but contained items for a school fete. On the first occasions she passed through the room, she had pushed the box, which was heavy, slightly to one side to make a passage. On the first four occasions she had walked through either with a garbage bag, or with a vacuum cleaner on her back. On the fifth occasion, she was carrying a bucket and mop and had finished or almost finished mopping all three wet areas in the two buildings. It was on the sixth time she walked through the room on the afternoon of 14 November 2005 that Mrs Drew fell.

9. [13]

   In light of some of the grounds of appeal, it is convenient to reproduce the essence of the evidence before the primary judge, which was itself reproduced and emphasised in the reasons at first instance. The following evidence was given in chief:

10. [14]

    The primary judge also reproduced and highlighted the following evidence given by Mrs Drew in cross-examination (as well as a great deal of evidence which is not reproduced in what follows):

Reasons of the primary judge

1. [15]

   His Honour found that Menzies owed a non-delegable duty of care to provide a safe place and system of work. He observed that cleaning classrooms in a school is not a dangerous activity, although he said that an employer could and should have checked whether the floor or doors or the rooms needed repair. However, the box was not in the classroom on the previous day, and Menzies could not have been aware of its existence unless informed by someone.

2. [16]

   The primary judge relied on O'Connor v Commissioner for Government Transport [1954] HCA 11; 100 CLR 225 where it was said at 230:

3. [17]

   His Honour was satisfied that “there were no precautions which [Menzies] was required to take to avoid the risk of injury in the circumstances. [Mrs Drew] could have as she had earlier done walked around the box and avoided the accident. She misjudged where the box was and caused her own injury”: at [49].

4. [18]

   In relation to the claim against the State, his Honour appreciated that ss 5B-5E of the Civil Liability Act applied. The dispositive portions of his Honour’s reasoning were as follows:

5. [19]

   His Honour gave no reasons for assessing contributory negligence at 50% if he were incorrect on breach of duty or causation. No attempt was made to defend his Honour’s approach in written or oral submissions on appeal. Reasons may be brief, indeed very brief, but here there was nothing. But the fundamental problem is understanding what the assessment of 50% contributory negligence means. As this Court has said, more than once, it is simply not possible to assess contributory negligence in the alternative without clearly setting out the counterfactual findings on which it is based: Gaskin v Ollerenshaw [2012] NSWCA 33 at [62]-[63]; Sexton v Homer [2013] NSWCA 414 at [84]-[85].

6. [20]

   The amended notice of appeal contains 17 grounds. Each is addressed below.

Denial of procedural fairness – grounds 16 and 17

1. [21]

   It is appropriate first to address grounds 16 and 17, which allege denial of procedural fairness, and were included in the appellant’s amended notice of appeal. They were at the forefront of the appellant’s oral submissions, and should in any event be dealt with at the outset, for the reasons given in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [117]; see also Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 at [160]. Although those were cases of bias, the same applies if a trial is said to have been procedurally unfair.

2. [22]

   The alleged procedural unfairness came about because Mrs Drew's case was opened on the basis that “[s]he will tell your Honour that in the couple of days before her accident she complained to her employer, her supervisor and nothing was done about it as far as she is aware”, and, so she submitted on appeal, she was prevented from giving evidence in accordance with that opening.

3. [23]

   However, Mrs Drew was directed to the topic, twice, when giving evidence in chief. The first occasion was as follows:

4. [24]

   Notwithstanding that unequivocal answer, her counsel was later permitted to return to the topic and asked, without objection:

5. [25]

   Subsequent questions were objected to. Counsel submitted he was entitled to “try and clarify that situation”, to which his Honour said that he doubted there was a need for any clarification. Counsel then asked:

6. [26]

   Objection was taken that this was in effect cross-examination, because of the previous questions asked and answered. The question was rejected.

7. [27]

   In cross-examination and re-examination, Mrs Drew gave evidence of a communication book maintained by Menzies, in which the cleaners could raise matters for consideration and action. He asked her “[i]s there any reason why you didn’t write anything in the book?”. After some objection, the question was permitted and the following exchange occurred:

8. [28]

   The appellant complains that she was not accorded natural justice by what occurred, on the basis that she was not permitted to adduce evidence of complaints made to her employer prior to 14 November 2005. There is nothing in this complaint. Undoubtedly the case was opened as it was because of instructions given to counsel. But Mrs Drew’s evidence, permitted to be given twice, was unequivocally inconsistent with a case that she had complained about the cluttering up of the classroom. She was bound by those answers.

9. [29]

   What happened subsequently in the trial was at best of peripheral relevance, although the Court was taken to it at some length. There was no breach of procedural fairness. Indeed, if anything, it would have been procedurally unfair to the defendants to permit Mrs Drew, in re-examination, to expand what had been said in chief, on the basis of which the cross-examination was tailored.

Reliability of Mrs Drew and failure to give reasons – grounds 1 and 11

1. [30]

   Ground 1 complains of his Honour’s finding that the appellant was not a reliable witness, while ground 11 complains of a failure to give adequate reasons. Neither ground was separately advanced in oral submissions. The appellant’s written submissions point to some of the relatively contemporaneous documents suggesting that the appellant fell on a box (although it may be noted that none was within six months of the accident and the first time a document records Mrs Drew as saying she had fallen on a box is a passage in the report of Dr Barrett which is reproduced above). But nothing turns on this, because the primary judge accepted that the mechanism of the accident was as Mrs Drew put forward.

2. [31]

   The appellant’s written submissions also complain that there was a deal of evidence not mentioned by the primary judge, as though it was necessary for his Honour to do so. Much of the evidence referred to in the submissions is contentious and selective. For example, although Mrs Drew maintained in cross-examination that she was being careful at the time (“I believe that I was totally careful of the situation”), complaint is made that the primary judge “failed to consider” this (written submissions, paragraph 15(xiv)). First, that passage was reproduced, and emphasised, in the reasons of the primary judge. Secondly, it did not stand alone. Mrs Drew also accepted – in the question and answer which immediately followed, that she knew full well where all the obstructions in the room were that she had to avoid. The primary judge also reproduced and emphasised that evidence.

3. [32]

   More fundamentally, the task for his Honour was to make findings as to what happened, and then the necessary findings so as to determine the issues of breach of duty and causation. This occurred. The trial was not, ultimately, particularly complex, and did not call for elaborate findings of fact. His Honour found that there was an obvious obstacle in Room 1 which Mrs Drew walked around five times (“Q. But all you had to do was walk around it? A. I walked around it, sir”), and misjudged it on the sixth occasion when she fell. It will be seen that many passages in the plaintiff’s cross-examination sustained that finding. There is no deficiency of reasons, nor appellable error, through failing to refer to all of the evidence.

Breach of duty by Menzies – grounds 2, 3, 6 and 7

1. [33]

   The appellant’s case was that the box had been placed in the middle of room 1 either on 14 November 2005, or shortly beforehand. There was evidence that Menzies had a practice of sending a supervisor to visit the school monthly, and it was not suggested that there was any deficiency in that practice. Accordingly, it was impossible for the appellant to impugn the finding of the primary judge that Menzies neither knew nor ought to have known of any risk posed by the box.

2. [34]

   Against this, the appellant submitted that that was taking too narrow an approach. She submitted that all she needed to prove was that “it was reasonably foreseeable to Menzies that a risk of injury arose to one of its employees who was required to work in circumstances where it was necessary for her to clear a pathway in order to perform her normal duties”. There are other problems with that submission, which are addressed below; it sufficies for present purposes to note that even the more generalised case against Menzies for which the appellant contends is not established to be something which her employer knew or ought to have known of. No appellable error is established in the dismissal of this claim against Menzies.

Breach of duty by State – grounds 2-5 and 8

1. [35]

   In contrast with Menzies, the State must be taken to have had knowledge of the situation in classroom 1 in block B. But the onus lay upon Mrs Drew to prove that the risk was not insignificant and that a reasonable person in the position of the State would have taken precautions not merely to address that risk, but also to address similar risks. To the extent that the risk was posed by the box, the appellant’s submissions face the difficulty identified by Mahoney JA in Phillis v Daly (1988) 15 NSWLR 65 at 74:

2. [36]

   As noted above, the appellant advanced a more generalised risk of harm from the cluttering up of the room, and contended that the primary judge had addressed an unduly narrow case. First, it is clear that the primary judge did address such a case: see [54] reproduced above. Secondly, the plaintiff’s more general case cannot be upheld unless more was known about (a) the items said to be cluttering up the room, and (b) how readily a clear path could be created. It would be necessary to consider, for example, whether the items were heavy, or difficult to notice. There is nothing in the evidence to suggest that Mrs Drew did not immediately, upon seeing the box obstructing her way, push it to one side so as to create a passage for herself and her equipment which she navigated five times that afternoon. Moreover, evidence was given in cross-examination by Mrs Drew’s co-worker, who said she also saw the room containing fete items:

3. [37]

   Moreover, taking no precautions whatsoever may be a reasonable response to a risk, because it can reasonably be assumed that adults will take reasonable care for their own safety and will not reasonably expect premises to be free from obvious hazards. Neindorf v Junkovic [2005] HCA 75; 80 ALJR 341 is one example. In that appeal, Gleeson CJ said at [8]:

4. [38]

   In addition to what was said in Phillis v Daly, a series of cases have held that it is not an objectively reasonable precaution that an occupier remove obvious tripping hazards: Jaenke v Hinton [1995] QCA 484; (1995) Aust Torts Reports 81-368 (hose left lying on lawn); Sibraa v Brown [2012] NSWCA 328 at [75] (Campbell JA, Hoeben JA and Tobias AJA agreeing) (wire mesh left on lawn).

5. [39]

   Section 5B of the Civil Liability Act required the primary judge to determine the probability that harm would occur if no precautions were taken. It is plain from the reasons of the primary judge that his Honour considered that probability to be low. Moreover, only if a reasonable person in the position of the State would have taken precautions can a breach of duty be made out: s 5B(1)(c).

6. [40]

   The appellant contended that the State should have instructed its servants or agents to stack items in the classroom so as to maintain a clear and unobstructed pathway, or alternatively should have placed tape or a chalk mark on the floor with an instruction to store items only on either side of the path thereby delineated, or else to lock the classroom to prevent the ad hoc storage of items for the fete. The primary judge found that the precautions for which the plaintiff had contended would not have avoided the risk of injury. No error has been established in that conclusion. The risk of harm was to be considered prospectively: Sibraa v Brown at [41]. Even if the floor had been marked so as to delineate a way through the middle of the room, or if in some other way control had been exercised so as to reduce the clutter, there would always remain the risk of a cleaner stumbling over an obvious obstacle. Considerations of that nature are also an answer to the appellant’s broader case of the classroom being cluttered.

7. [41]

   The appellant also submitted that error was disclosed by the primary judge addressing the risk as being relevant only to a cleaner; she submitted that the risk of harm was “relevant to anyone who was likely to access the classroom, whether it be a cleaner, a teacher, a parent or, more particularly, a student or some other child visiting the school”. First, the appellant was not able, when asked, to point to evidence of any person other than Mrs Hyland using the classroom as a thoroughfare in the period during which it was used to store fete items, and she herself said that she did not see anybody else in any of the classrooms in the block on that day. Secondly, as Heydon JA said, with the agreement of Mason P and Handley JA, in Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2001] NSWCA 243; (2002) Aust Torts Reports 81-636 at [76]-[77], by reference to authorities, the proposition is “fundamentally fallacious”. The plaintiff in those proceedings was a family member and was injured while in the room of her brother, who was an employee. She, however, “was not an employee and cannot take advantage of the existence of any duty owed to an employee”: at [77].

8. [42]

   Properly, the appellant conceded that an occupier is generally entitled to expect entrants to exercise reasonable care for their own safety, particularly where risks of harm are obvious or apparent (written submissions, paragraph 47). That, in a nutshell, is the reason why the primary judge found no breach of duty by the State. No appellable error has been demonstrated in that conclusion.

Causation and contributory negligence – grounds 10, 12, 13, 14 and 15

1. [43]

   Ground 12 challenged his Honour’s finding of causation. That finding was expressed in terms by reference to ss 5D and 5E of the Civil Liability Act, and came in a section of his Honour’s reasons dealing with the liability of the State. On a fair reading, the finding is confined to the liability of the State, (although it would seem that substantially the same reasoning process would extend to the liability of Menzies).

2. [44]

   His Honour’s reasoning was terse, in light of his conclusion on breach. It did not in terms engage with s 5D(1)(a) or (b). Given that no oral submissions were addressed to this ground, which in any event can have no bearing on the other grounds of the appeal, it is not necessary to say anything about it.

3. [45]

   Grounds 10, 13, 14 and 15 are directed to a challenge to the finding of 50% contributory negligence. For the reasons already indicated, that finding cannot stand. However, in light of the failure of the challenge to the dismissal of the appellant’s claim against both respondents, the error did not affect the result.

Orders

1. [46]

   For those reasons, the appeal should be dismissed with costs.