Lambert v Warwick Credit Union Ltd [1999] QCA 514

Court of Appeal (Qld)|1999-12-10|Before: Pincus and Thomas JJA, Atkinson J

Patrick T Murphy (Brisbane) as town agents for Peter Wallace & Company (Redcliffe) for the appellant

[2] It was common ground that the respondent had engaged a Mr P H Steketee to apply to the ramp a surface which was supposed to make a fall due to slipping unlikely. The argument advanced on appeal was based on the proposition that Steketee had done the work inadequately. Mr Dorney QC, who led Mr Taylor for the appellant, explained that if that were established then a question arose whether the respondent was liable in damages for the consequences of Steketee's negligence, he being not an employee but an independent contractor. When Mr Dorney QC finished his argument on the issue of Steketee's fault the Court decided to hear counsel for the respondent Mr Sofronoff QC, who led Mr Stephens, on that point. The decision of the appeal was then reserved.

[3] There was no finding made below that Steketee was at fault; nor was there, as Mr Dorney pointed out, any finding to the contrary. Steketee gave evidence below and the impression gained from reading his cross-examination is that there it was not being contended that Steketee was personally to blame for the appellant's injury. Nevertheless, we are invited to hold him to blame, on the basis of evidence which is said to justify that conclusion.

[4] The appellant's fall occurred on 10 December 1994, about six weeks after Steketee resurfaced the ramp, which he did on 30 October 1994. Steketee's evidence explained in some detail how the resurfacing was done and it did not appear that that evidence was challenged or that the method Steketee adopted was alleged to be an unsuitable one. What Steketee did was to clean the surface with detergent, apply a sealing substance and then "broadcast" a non-slip material over the surface. According to Steketee's evidence the practice was to renew the surface after 12 months or 2 years; but he later said in effect that the surface as he left it should have lasted 6 to 12 months, "easy, no troubles".

[5] Here the gap in time between the last application of the surface and the appellant's fall was only six weeks, as we have mentioned. The judge made no finding as to whether or not Steketee was negligent in doing his resurfacing work, on the ground that he was not a party to the action. Of course, that circumstance would not have justified declining to make a finding of negligence on Steketee's part, if the case had been run on the basis that he was negligent. The statement of claim makes no mention of Steketee and the crossexamination of him on behalf of the appellant did not appear directly to challenge anything he said. We were asked to hold that the ramp was too slippery and probably did not meet the relevant Australian standard. This invitation was supported by a submission that if the standard was met it was improbable that anyone would slip.

[6] In our opinion there was not evidence on which it could reasonably have been held that the appellant's fall was caused by the surface, at the point at which she fell, not meeting the requisite standard. Tests were done on 7 July 1995, about seven months after the accident, measuring the coefficient of friction at various points; the ramp was not resurfaced between the date of the fall and 7 July 1995. The measurements made at the two points closest to the place designated by the appellant as being that at which she fell showed a coefficient of friction in excess of the standard. At two other points the coefficient was well below the standard; but those two points were not on the ramp but on an adjacent, differently surfaced, area. On the ramp itself the worst result was at a point rather distant from that at which the appellant said she fell and showed a coefficient of 0.34, as against 0.49 required by the standard. There was however a significant gap in time - seven months - between the date of the fall and the date of the tests and one could not infer that the coefficient of friction at the point just mentioned was substandard at the date of the fall, in view of the likelihood that traffic wore the surface during the period mentioned.

[7] Putting the matter more generally, the tests made showed that at points close to the place where the fall occurred the coefficient of friction was above the standard and at other points it was below it; but it is impossible to be satisfied that the coefficient at any point on the relevant surface was below the standard at the date of the fall, since the evidence showed, as we have mentioned, that periodic renewing of the surface was necessary.

[8] Although the argument for the appellant was not explained in this way, some of what was said appeared to be reliant on the doctrine of res ipsa loquitur: since the appellant fell on the surface while wearing rubber-soled shoes, it must have been too slippery. In some circumstances such a contention might have much weight, but it can hardly do so here where the respondent led credible evidence, which does not appear to have been subject to serious challenge, that a contractor with experience in work of this kind had, not long before the fall, renewed the non-slip coating on the ramp's surface. One might say that the occurrence of the fall might give rise to a suspicion that the ramp's surface was not as it should have been, but the satisfactory tests of friction, seven months later, at points close to that at which the appellant fell, would tend to dispel that suspicion.

[9] It is necessary to mention two other matters. One was that we did not hear argument on the question whether non-compliance with the Australian standard would suffice to prove a breach of duty, on the part of the respondent; we refer in this connection to the discussion in Chicco v Corporation of the City of Woodville (1990) Aust Torts Reports 81-028. Secondly, there was some evidence of two other falls, in comparable circumstances; but the evidence relating to them did not permit the drawing of any inference that the fall in issue was caused by a breach of duty on the part of the respondent.

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