Nepean Blue Mountains Local Health District v Starkey

Court of Appeal (NSW)|2016-05-20|Before: McColl JA, Payne JA, Garling J, Gleeson CJ, As Garling J, Coll JA

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

The Proceedings in the District Court

The Statement of Claim was pleaded sparely, and by reference only to an outdated claim of common law negligence. There was no reference to the Civil Liability Act 2002 ("the Act"). There was no clear pleading of the existence of a duty of care, or the content of it. The pleading did not address, explicitly or implicitly, the necessary preconditions for a finding of negligence set out in s 5B of the Act. The pleading was wholly inadequate as a basis for a claim for damages under the Act.
However, the Statement of Claim included the following particulars of acts or omissions on the part of the LHD which were said to constitute the negligence of the LHD and which were relevant to the case made at trial: "(c) fail to provide a safe floor that was free of slippery substances; … (e) permitted a faulty leaking soap dispenser to remain in use; (f) failed to either totally remove the faulty soap dispenser or to replace with a properly functioning one."
Whether the LDH sought particulars of the plaintiff's claim prior to the trial and, if so, what particulars were provided, were matters not made known to the primary Judge, or this Court.
The LHD did not move to strike out the Statement of Claim, nor did it suggest to the primary Judge that it was unaware of the nature or details of the claim being made against it. Accordingly, this Court is entitled to assume that the LHD understood the case being made against it. This conclusion is reinforced by the fact that, at trial, counsel for the plaintiff did not open her case in any detail and counsel for the defendant (who did not appear on the appeal) did not protest the absence of such an opening.
On the contrary, after counsel for the plaintiff briefly informed the primary Judge that the plaintiff had badly injured herself when she fell "… in a staff toilet at the hospital where she was working", counsel for the defendant informed the primary Judge that the defendant: "… accepts that the plaintiff fell and injured herself … The defendant does not concede that it was in any way responsible for the plaintiff's fall. That is the principal issue … The key fact is … it is a causation point, whether or not the defendant in any way caused the plaintiff to fall."
Against the background of those brief opening remarks, the primary Judge heard evidence over three days and then the final oral submissions of the parties.
There was little cross-examination of the plaintiff on the issue of damages. No doctors were called to give oral evidence, although reports were tendered.
That the hearing was confined to the issue described by counsel for the defendant to her Honour in the terms set out above is clear from the cross‑examination of the plaintiff by counsel for the defendant. That cross‑examination was directed to these matters: 1. the knowledge of the plaintiff that the floor of the staff toilet had recently been cleaned, and may have been wet; 2. the fact that the plaintiff was taking precautions when entering the staff toilet to avoid slipping over; 3. that prior to her fall, there was nothing about the state of the floor of the staff toilet which suggested to the plaintiff that it was not safe to walk upon; 4. the location of the plaintiff's feet at the time she slipped, in the context of the general layout of the staff toilet; 5. the plaintiff's recollection of events immediately following her fall, including who had attended to her, and what she had noticed about those who had come to her aid; 6. the plaintiff's pre-accident medical history commencing in July 2002, over 10 years before the accident.
As to the last of these matters, it was put to the plaintiff by counsel for the defendant that her pre-accident medical history provided an explanation for her fall. The following exchange took place: "Q. It's entirely possible, given your history of dizziness and vertigo that you simply fell that day, isn't it? A. No, it's not, it's not. Either my heel or my toes went on or close around that drain, and there's no way I simply fell. It was very, very slippery, incredibly slippery."
In submissions to the primary Judge, after the conclusion of the evidence, counsel for the defendant commenced with this statement: "The only issue on the question of liability in these proceedings is causation. That is an issue in respect of which the plaintiff always bears the onus of proving on the balance of probabilities any fact that is relevant to it and, of course, that is s 5E of the Civil Liability Act."
Counsel went on to address the evidence, and submitted that the primary Judge should not find that the plaintiff slipped because of a slippery substance on the floor. Rather, the primary Judge should find that the plaintiff's medical history readily explained her fall.
As might be expected, counsel for the plaintiff concentrated upon the evidence which supported the proposition that the plaintiff's fall was caused by the very slippery state of the floor.
Ashford A-DCJ delivered judgment orally on the morning following the conclusion of the hearing. As this Court has remarked on many occasions, reasons given in such circumstances should be read as a whole and should not be scrutinised over-critically. Such reasons must also be read in light of the issues upon which the parties, and their counsel, chose to conduct the trial.
Although there was a conflict in the evidence surrounding the plaintiff's fall which needed to be resolved, a fair reading of her Honour's judgment, in light of the way in which the issues were contested at trial, enables the following facts to be identified as the basis for her Honour's findings in favour of the plaintiff. The facts which the primary Judge did not accept can also be identified.
At the time of her fall, Mrs Starkey was 75 years old. She first qualified as a nursing sister in 1988 at the age of 51. She was a good student and was awarded a prize for the best and fairest student in a graduating class of 180 fellow students. After graduation, she commenced work as a registered nurse in 1989 at the Nepean Hospital at Penrith. She underwent further training and in 1995 commenced work as a Nurse Facilitator. Typically, a Nurse Facilitator is responsible for supervising between 8 and 11 undergraduate students who are undertaking clinical placements in public hospitals.
On 26 September 2012, the plaintiff was working the morning shift in her role as a Nurse Facilitator at the Hospital. At about 9.45am, she went to the staff toilets which were located in the Swing Ward.
Having used the toilet in the cubicle, the plaintiff fell onto the floor in the wash basin area and injured herself very badly. She fractured the tibia and fibula in her right leg. Consequently, she had ongoing difficulties walking and was unable to return to work.
Since there is no appeal from the primary Judge's assessment of damages, there is no need to recount the plaintiff's injuries and disabilities in any further detail.
The primary Judge was satisfied that the plaintiff noticed a sign outside the toilets saying "Beware of Wet Floor", or words to that effect, and another such sign inside the toilet. Because of these signs, the plaintiff was very careful upon entering the toilet to observe the state of the floor. The plaintiff said that she felt the floor with her feet and carefully looked to see if the floor was wet. She told the primary Judge that her foot gripped on the floor as normal and, accordingly, she proceeded to enter the first cubicle. However, as the plaintiff was leaving the cubicle, she stepped forward and her foot then went from under her. Consequently, she slipped and hit the ground.
The plaintiff fell in the vicinity of a drain in the floor. She told the Court that when her left foot slipped it was pretty well on the drain, or otherwise adjacent to it.
Nurse Joanne West came to the scene of the fall. After the accident, but sometime during 2012 (the precise date was not identified), she wrote a statement which gave the following description of the scene: "On Wednesday 26 October 2012 at roughly 10am, I was asked to attend the staff toilets on the swing ward. The cleaner had informed me that the Nursing Facilitator had fallen over. I found the Facilitator to be lying in the supine position with head nearly in the doorway of toilet and legs facing towards sink. Facilitator was alert and oriented with no obvious injuries. Also in the bathroom was two nursing students who was assisting Facilitator. RMO Matilda Wilding was ask to review and she did. I found the floor to be extremely slippery on the far side of the drain as was witnessed by Mary Brown who also attended the bathroom with me." (sic)
It seems clear that her Honour accepted this written account of what occurred in preference to Ms West's unaided recollection given in her evidence-in-chief, when she was called by the LHD.
A further witness, Mr Carl Hallstrom, a nurse, was called by the plaintiff and gave evidence by telephone. He said that he heard someone calling out and went to investigate. He went to the staff toilets and found the respondent lying on the floor and calling out. Mr Hallstrom said in evidence that the floor was slippery. He said he put his foot down and "… nearly went over …". He described the floor saying: "It was very slippery. It was like putting your foot into petroleum jelly or grease or something". He said he was unable to move the plaintiff because his foot could not retain traction on the floor.
Although Mr Hallstrom's account was challenged in cross-examination, he did not deviate from it. His evidence corroborated that given by the plaintiff, and the account of events contained in Mrs West's contemporaneous statement. To the extent that his evidence differed from that of Ms Karen Boys, the cleaner called by the LHD, the primary Judge specifically accepted it. She found Mr Hallstrom to be very straightforward and reliable in his evidence.
The primary Judge went on in her judgment to consider the evidence of Ms Boys, the cleaner at the Hospital on the day in question, and Ms Boys' supervisor, Ms Cheryl Grabham, both of whom were called by the LHD. The primary Judge did not accept the evidence of Ms Boys. She said that she thought Ms Boys was a very defensive witness, particularly in cross‑examination. In his final submissions, counsel for the defendant accepted that this was an appropriate description of Ms Boys' evidence in cross‑examination. Ultimately, her Honour's conclusion with respect to the evidence given by Ms Boys was, in substance, that Ms Boys had little, if any, accurate recollection of the events on the day and had given her account of what she had done on that day by reference to her usual practice.
The primary Judge then considered the evidence of Ms Grabham, Ms Boys' supervisor. Ms Grabham was notified of the plaintiff's fall shortly after it happened. She attended at the scene with Ms Boys but did not enter the room until after the plaintiff had received medical attention and had been taken to the Emergency Department.
Ms Grabham said that when she entered the room at that later point in time, she did not notice anything slippery about the floor. She agreed that on 13 February 2012 she distributed a Memorandum to all cleaning staff which stated as follows: "Following on from my inspection to each area, and my observation of how the hand wash is used, I have spoken to many staff and requested that waste bins are placed under the Avagard Hand Wash dispensers that are not over a sink. Please make sure this happens from now on as a safety precaution. I have noticed that some people use too much hand wash and the excess drips onto the floor."
In her evidence, Ms Grabham explained that in many, but not all, toilet areas the hand soap dispenser was not situated over a sink. She said that that was the reason why she had given the instruction to place a waste bin under the soap dispensers.
Ms Grabham said that when she entered the bathroom after everyone had left, she noticed that there were some marks on the floor which she described as "shoe marks or people marks". She added "there was a fair bit of traffic, I should imagine at that moment, like through that incident". She said that after she mopped the floor, she reported what had happened to her General Manager and then telephoned 3M, the company which was the manufacturer of the soap dispenser in the bathroom. She asked them to come and do an audit of all of the soap dispensers.
In cross-examination, Ms Grabham told counsel for the plaintiff that soap would spill onto the floor if a bin was not placed underneath a soap dispenser because of the way in which the soap dispensers were used by staff. She described the movements of staff putting their hands under the dispenser and said that there was a tendency for soap to spill onto the floor. She also agreed with counsel that if the liquid from the dispenser fell on the floor, it would make the floor slippery. She also agreed that the purpose of the Memorandum, to which I have earlier referred, was to ensure that the floors in the staff toilets were not contaminated by soap.
She repeated in her cross-examination that when the floor was cleaned after the plaintiff had been removed, she did not notice anything untoward. However, she agreed that she did not know what the people in the bathroom had done before she had entered, including whether they had wiped the floor with a hand towel or taken any other such action.
Ms Grabham gave evidence that she had received an email from a Ms Foxon at 3M dated 5 October 2012. The LHD tendered the email as part of its case. Ms Foxon was the person who conducted the "audit" at the request of Ms Grabham. The email contained a "report summary" of her visit. That report summary was headed: "Report Following meeting with Cheryl Grabham - Domestic Supervisor at Blue Mountains Hospital on Tuesday 2 October 2012 Re: Recent alleged fall incident in staff toilet to University Educator resulting in injury on 26 September"
The report then set out what Ms Foxon was shown by Ms Grabham. Ms Foxon inspected the hand wash dispenser and noted that it was in good working order. She went on to record a conversation with the "Nursing Unit Manager - Mary". The email report recorded this: "Taken to bathroom and shown how she had found the University Educator with ? (2 student nurses). Explained and shown how Educator had her head in the cubicle and legs outside the cubicle at an angle near the drain towards the sink area. Explained and shown how another member of nursing staff went into the bathroom to assist and went to the other side of the bathroom and noted that the floor was 'slippy' to Mary where the drain was. Met with nurse on Ward - Jenny Jo. Taken to bathroom and shown how she had found the University Educator as per Mary. Discussed how Educator had her head in the cubicle and legs outside the cubicle at an angle near the drain towards the sink area. Demonstrated with her foot - that she noted the floor was 'slippy' - small area near the drain in the floor."
This almost contemporaneous business record provided clear corroboration for the evidence of Mr Hallstrom about the state of the floor, the written statement of Mrs Watson, and the version of facts contended for by the plaintiff. Although tendered by the LHD, it did not support its case that the floor was not slippery.

Reasons for Judgment

The primary Judge, having reviewed the evidence and dealt with it as I have noted above, observed that the LHD had submitted that the only issue on the question of liability was that of "causation", upon which it contended the plaintiff had not discharged the requisite onus. Her Honour noted that the defendant submitted that there was no evidence to substantiate any suggestion of a leaking soap dispenser, and that the Court should accept the evidence of Ms Boys, the cleaner, that she had followed her usual routine in cleaning the staff toilet appropriately. Her Honour went on to note the submission of the defendant that there was very little time after Ms Boys had finished cleaning the staff toilet for any intervening event to have occurred which would have made the floor slippery.
Her Honour accepted the evidence of the plaintiff as to how the fall occurred, and accepted that the plaintiff took all precautions for her own safety when she walked into the bathroom.
Her Honour then recorded the plaintiff's submissions that the floor, after Ms Boys had finished her routine cleaning and had left, was very slippery. The evidence in support of that submission was that of the plaintiff, Mr Hallstrom and Ms West. Although not specifically identified in submissions, the email from Ms Foxon also strongly supported the plaintiff's submissions.
Her Honour accepted the evidence of the plaintiff, Mr Hallstrom, and Ms West as to the extremely slippery state of the floor.
Her Honour considered and rejected the submission of the LHD that the plaintiff's pre-existing medical condition explained her fall. She did so principally upon the basis that, after the fall, the plaintiff was observed to be alert and oriented by the staff members who came to her aid. The primary Judge was also satisfied that there was nothing in the medical reports tendered to the Court which suggested that the plaintiff had a continuing medical problem which might have explained her fall. In particular, her Honour noted that that submission by the LHD was contrary to the plaintiff's own evidence, which she accepted.
Her Honour expressed this conclusion: "Having considered all the evidence, I am satisfied on the balance of probabilities that more likely than not there was soap residue on the floor after Ms Boys had mopped the toilet area which was a slippery substance as described by the plaintiff, Mr Hallstrom and indeed Ms West. … The evidence of Mr Hallstrom was compelling as to the state of the floor, as was the report by Ms West, and supports that of the plaintiff. I find the defendant owed the plaintiff a duty to take reasonable care to avoid foreseeable risk of injury and that there was a breach of that duty and as a result the plaintiff suffered personal injury. I am satisfied the plaintiff has discharged the onus, and the evidence of the plaintiff, Mr Hallstrom and Ms West in that regard, to the slippery state of the floor, supports a positive inference implying negligence on the part of the defendant, and thus she is entitled to a calculation of damages."

Grounds of Appeal

It is convenient to deal with the grounds somewhat out of the order in which they were listed in the Notice of Appeal and to use the headings which the appellant used in its submissions to this Court.

Ground 2 - Failing to Refer to and Apply the Civil Liability Act Provisions Regarding Breach of Duty of Care

This ground is expressed in the following terms: "Finding that the appellant breached its duty to the respondent without identifying the risk of harm, making a finding as to whether the risk was not insignificant, or a finding as to what precautions a reasonable person in the appellant's position would have taken in the circumstances as required under s 5B of the Civil Liability Act 2002."
The appellant submitted that notwithstanding the absence of any reference in the Statement of Claim to the provisions of the Act, and the absence of any reference being made in the final submissions by either party to s 5B of the Act, the primary Judge nevertheless had an obligation to consider and apply the provisions of s 5B of the Act.
The appellant submitted that the primary Judge was obliged, but failed, to identify and have regard to the necessary preconditions for a finding of negligence set out in s 5B(1) of the Act, namely (i) the identification of a foreseeable risk of harm (ii) which was not insignificant and (iii) against which a reasonable person in the appellant's position would have taken precautions which the appellant failed to take.
The appellant submitted that because of the primary Judge's failure to consider "… the three necessary pre-conditions to liability under s 5B(1), her findings on breach of duty miscarried and the verdict and judgment in the respondent's favour must be set aside".
As earlier observed, the Statement of Claim made no reference at all to the Act. The pleading did not adequately, or at all, plead a cause of action of the kind which the Act addresses.
With the exception of a passing reference to s 5G of the Act (which was not relevant to any issue determined by the primary Judge), the Defence did not make any reference to the Act. It did not plead that no proper cause of action was identified in the Statement of Claim, nor did it address specifically any of the elements of a cause of action formulated in negligence which took the requirements of the Act into consideration.
As accepted by the appellant, neither counsel referred to the "mandatory requirements" of s 5B of the Act in their submissions on the question of liability.
As seen in [44] above, the only reference to the Act in oral submissions was a passing reference to s 5E. That section relates to the onus of proof falling on the plaintiff, which was not put in issue at the trial because the plaintiff accepted that she had to prove causation.
This ground of appeal calls for consideration and relies upon a number of authorities of the High Court of Australia and of this Court dealing with the Act. It can safely be assumed, given that the Act has been in operation for over 14 years, that lawyers conducting personal injury claims, such as this one, do not do so in ignorance of the provisions of the Act and its requirements.
As the High Court observed in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [11], if attention is not directed to the provisions of the Act "… there is a serious risk that the enquiries about duty, breach and causation will miscarry…". The proper starting point for the Court's determination of the existence of a duty of care, breach of that duty and causation is the Act: Shoalhaven City Council v Pender [2013] NSWCA 210 at [7].
In Jackson v McDonalds Australia Ltd [2014] NSWCA 162, this Court addressed in explicit terms the need for a primary Judge to make findings as to the nature of the duty of care owed by a defendant to a plaintiff, the extent of the duty, breach and damage: at [4] per McColl JA and at [55]-[59] per Barrett JA.
It cannot be doubted that it is necessary for a plaintiff to identify and articulate, first in their pleading and then in submissions to the Court, the "risk of harm" against which it is alleged a defendant is obliged to take reasonable precautions: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 at [59]. See also Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [22] and Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320 at [101] ff.
Having said that, these matters were not presented to the primary Judge as contested issues requiring resolution. Indeed, they were not presented to the primary Judge at all. In my view, it cannot be said to be an error for a primary Judge to fail to address potential issues that have not materialised and have not been presented for determination.
I agree, with respect, to the remarks of Simpson JA (with whom Sackville AJA agreed) in Australia & New Zealand Banking Group Ltd v Haq [2016] NSWCA 93 at [105], where her Honour said: "105. It is not an error for a primary Judge to fail to address potential issues that do not materialise and are not presented for determination. The primary Judge was entitled to proceed on the basis that, while the Civil Liability Act governed the respondent's claim, the appellant perceived no contentious issues arising therefrom. A primary Judge determining a claim governed by the Civil Liability Act must always have in mind the provisions of that Act, and it is probably desirable that some express acknowledgment is made of that fact. However, when both parties are represented by senior counsel, and no mention is made of any specific provision of the Civil Liability Act, and no contested issue arising therefrom is identified, an omission on the part of the judge to refer to it is not indicative of error …"
It is the responsibility of counsel to identify the issues in a trial. Once the issues are identified, the role of the primary Judge is to determine them according to law. The opening remarks of counsel for the LHD at trial, and his final submissions to the primary Judge, demonstrate that the issue of liability contested at the trial was a very narrow one indeed. That is to say, during the trial, there was no live issue on the question of whether the LHD owed a duty of care to the plaintiff, nor was there any submission made directly on the question of breach of duty.
In the particular and unusual circumstances of this case, it is unsurprising that the parties did not put in issue the existence and content of a duty of care. It cannot be doubted that the LHD, as the occupier of the Hospital premises, owed a duty to the plaintiff on the premise that she was taking reasonable care to avoid a foreseeable risk of injury to her: Schultz v McCormack [2015] NSWCA 330 at [73] per McColl JA.
On appeal the LHD accepted that this was so. Given that the case for the plaintiff was that she was taking reasonable care for her own safety, and that counsel for the LHD cross-examined her to that effect, the duty of care was appropriately and succinctly stated by the primary Judge as "a duty to take reasonable care to avoid foreseeable risks of injury".
What was contested was an issue which was described by counsel for the LHD as "causation". This may not have been a technically correct description. A careful reading of the submissions by counsel for the LHD demonstrated that under the heading of "causation", what was substantially addressed was an evidentiary issue, namely whether (i) as was the evidence of the plaintiff, Mr Hallstrom and Ms West, that the floor was slippery and this caused the plaintiff to fall, or (ii) as was the evidence of Ms Boys and Mrs Grabham, that the floor had been cleaned properly, the soap dispenser was not malfunctioning, and accordingly the likely cause of the plaintiff's fall was her own condition of dizziness or vertigo.
Resolving this conflict in the evidence was the central issue presented to the primary Judge for determination. Counsel for the LHD at trial submitted that the extensive medical history of the plaintiff provided a perfectly logical explanation for how it could be that she simply fell, and that her fall was not caused in any way by the state of the floor. He expressed the LHD's case in this way: "There is simply no evidence on which your Honour can find that there was a slippery substance on the floor of any kind that should not have been there, such that the defendant would be held to have in any way caused the plaintiff to fall. As I was saying a little earlier, there is, however, plenty of evidence to support an alternative conclusion and of course although the defendant bears no onus of proof on the question of causation, it is nonetheless relevant that the plaintiff had numerous ailments to her lower limbs and numerous falls in the decade leading up to September 2012…" (see AB 142)
In his submissions, counsel for the plaintiff took the Court to the evidence referred to above. Counsel concluded his submissions on liability with this remark: "The reality is this, if you accept the plaintiff as I ask that you do then liability in my submission is clear cut."
If the primary Judge accepted the plaintiff's factual account of what occurred, namely that the plaintiff fell on a slippery floor shortly after the staff toilet had been cleaned, then an inference obviously open to the primary Judge was that the LHD had been negligent in circumstances where the cleaning had not removed the slippery substance from the floor, or had resulted in a slippery substance being left on the floor. In circumstances where the parties did not address the primary Judge on the issue of breach of duty, her Honour was entitled to take the view that the parties accepted that a finding of breach of duty would automatically follow if she accepted the plaintiff's evidence. In those circumstances, which are very particular to this case, it was not the obligation of the primary Judge to address the necessary preconditions for a finding of negligence in s 5B of the Act.
Accordingly, I am satisfied that there was no disputed issue which merited attention by the primary Judge to the provisions of s 5B of the Civil Liability Act, and that her Honour's failure to refer to it did not constitute an error in the way contended for under this ground.
I am not persuaded that this Ground of appeal succeeds.

Ground 1 - Failing to Elaborate the Duty of Care

The appellant submits under this ground that the primary Judge failed to elaborate the duty of care or make any finding as to its content or scope.
The LHD admitted in its Defence that it was the operator of the Hospital. It occupied the premises. It accepts, as I have noted above at [92], that it "undeniably" owed a duty to the plaintiff to take reasonable care to avoid a foreseeable risk of injury to her. That duty was owed on the premise that the plaintiff was exercising reasonable care for her own safety.
As I have already noted, the plaintiff gave evidence that she was exercising reasonable care for her own safety and counsel for the LHD cross-examined the plaintiff to that effect.
The primary Judge accepted the plaintiff to be "very straight forward and reliable". The primary Judge accepted that the plaintiff "…was taking all precautions for her own safety…". In those circumstances, the statement by the primary Judge of duty, which the LHD contends by this ground of appeal to be erroneous, is not made out.
The only omission in the primary Judge's statement of the content of the well‑known duty was the formula that the duty was owed on the basis that the plaintiff was taking reasonable care for her own safety. The primary Judge was satisfied that she was. The premise was established.
Thereafter, in the consideration of the claims advanced on the issue of liability, it was not an error of the primary Judge to fail to continue to refer to, and include, the premise in the statement of the duty. I would not uphold this ground.

Ground 3 - Failure to Make any Finding as to Causation

The appellant submits under this ground that the primary Judge erred in finding liability established without making any finding as to how the appellant's breach of duty caused the respondent's injury.
The substance of the appellant's submission was that although the primary Judge found that the floor was slippery due to soap residue being left on the floor after it had been mopped by the cleaner, her Honour made "… no finding as to how the appellant's alleged positive act of permitting a faulty, leaking soap dispenser to remain in use or omission to remove the faulty soap dispenser or replace it with a properly functioning one brought about the respondent's injury".
This submission unduly narrows the case presented by the plaintiff at trial. As noted above at [36], one of the particulars of negligence in the Statement of Claim was to the following effect: "Fail to provide a safe floor that was free of slippery substances".
At the conclusion of the evidence, counsel for the plaintiff addressed the primary Judge on the basis that the state of the floor was very slippery at the time the plaintiff fell, and that this was the basis of the plaintiff's case. Counsel pointed to a rational cause for slippery substances being on the floor, namely soap from the dispenser falling onto the floor when used by staff washing their hands in the bathroom.
The plaintiff's case was not put to her Honour solely on the basis that the soap dispenser in the staff toilet was faulty and ought to have been replaced. No doubt this was because of the email from Mrs Foxon of 3M, which indicated that the dispenser was in good working order. The alternative case that the appellant failed to clean floor properly was relied upon at trial as explained in the discussion in respect of ground 4
I do not accept that the only case presented to the primary Judge was that the floor was slippery because of a leaking or faulty soap dispenser and that the primary Judge could not conclude that the floor was slippery other than by reason of a faulty soap dispenser.
This ground of appeal does not succeed.

Ground 4 - Basis of the Plaintiff's Claim in Negligence

This ground raises a question as to whether the primary Judge's finding that the defendant was negligent in the manner earlier described, namely, by reason of soap being on the floor, was erroneous because it fell outside the claim pleaded by the respondent.
In the course of discussing the preceding ground of appeal, and in light of the particulars identified earlier in the judgment, it is apparent that this ground is not made out.
The LHD contends that the plaintiff's case was not put on the basis that the LHD failed to provide a floor free of slippery substances. The difficulty with this submission is that counsel for the plaintiff specifically addressed the primary Judge on the basis that this was his case. As indicated above at [95], counsel for the plaintiff submitted to the primary Judge that liability was "clear cut" if her Honour accepted the plaintiff's evidence that she fell on a slippery floor. Whilst it may be accepted that the LHD is not the subject of any duty of strict liability to provide a safe floor free of slippery substances, and the plaintiff did not pursue a claim which alleged an inadequate system of cleaning, the facts proved in this case gave rise to a persuasive inference that the staff toilet had not been adequately cleaned by the cleaner on this occasion. This, in effect, was what the primary Judge found.
Notwithstanding the careful and articulate submissions put on the appeal by counsel for the LHD, it is not correct to describe the plaintiff's case at trial as being limited to an accident caused by a faulty soap dispenser. There was another aspect to the claim, namely that the floor was slippery by reason of inadequate cleaning. The plaintiff succeeded in persuading the primary Judge of this aspect of its case. The primary Judge did not determine the other aspect of the claim dealing with the faulty soap dispenser. No doubt this was because, after the conclusion of the evidence, no submission was made with respect to it and it was no longer being pursued.
This ground of appeal does not succeed.

Ground 5 - Finding Liability Established without referring to the Claim Pleaded

The LHD submits that because her Honour failed to elaborate the duty of care, and erred in her summary of the particulars of negligence upon which the plaintiff relied, she ultimately erred in her finding as to liability.
The thrust of the argument on this ground of appeal was that her Honour ought to have analysed the plaintiff's claim in far greater detail than she did. The LHD submitted that her Honour ought to have made findings as to what was on the floor which caused it to be slippery, how it came to be there, whether it came from a faulty leaking soap dispenser, and what precautions the appellant should have taken in view of the risk of harm which existed.
I have earlier referred to the peculiar circumstances of this case at trial in which her Honour was entitled to take the view that there was a single issue being posed for determination, namely which of the competing explanations as to how the plaintiff fell ought to be accepted.
I have also noted, in dealing with the previous ground, that counsel for the plaintiff did not ultimately submit that a faulty soap dispenser was the cause of the plaintiff's fall.
In those circumstances, it was open to her Honour, and in my view it was correct, to infer that the substance on the floor upon which the plaintiff slipped was soap which had come from the soap dispenser after use by staff, in circumstances where the cleaning of the floor a few minutes earlier had failed to remove that soap. That was a finding which fell within the claim pleaded. It was a finding justified by the evidence.
Her Honour was satisfied on the balance of probabilities "… there was soap residue on the floor after Ms Boys had mopped the toilet area, which was a slippery substance as described by the plaintiff, Mr Hallstrom, and indeed, Ms West".
Given that her Honour accepted the evidence of the plaintiff that she fell when her foot, in the vicinity of the drain, slipped, and that the slippery substance identified by her Honour was soap residue, this ground cannot succeed.

Grounds 6 and 7 - Finding the Appellant Negligent on the Basis of the Slippery State of the Floor Alone

In both of these grounds, the LHD complained that her Honour had in effect found that an appropriate way of reasoning was, first, to find that the plaintiff slipped on a slippery substance on the floor, to reason from that to a conclusion that the slippery substance was soap and conclude, in those circumstances, that the LHD had been negligent.
It is clear from the way in which the case was presented to the primary Judge that her initial task was to resolve the single issue posed by the parties for her determination. That issue was whether the plaintiff fell by reason of the floor being slippery, or whether the plaintiff fell by reason of her dizziness, vertigo or another of her past medical conditions. Her Honour determined this issue in favour of the plaintiff.
On the evidence, the only possible slippery substance which could have been on the floor of the staff toilet was the liquid soap dispensed from the soap dispenser, which the cleaner had failed to remove adequately or at all. The evidence did not identify any other possible source. Whilst it is conceivable that spilt water, left on the floor after cleaning, may have produced a slippery surface, the plaintiff denied that there was any such water on the floor, as did Ms Boys. There was no evidence positively establishing that there was water on the floor.
The evidence permitted the identification of the soap dispenser as the obvious source of the soap in the staff toilet. The evidence did not permit a conclusion that the dispenser was faulty. However, it did permit a conclusion that staff members occasionally used too much hand wash, and that the excess dripped onto the floor. This was the subject of the memorandum from Ms Grabham to all domestic staff, referred to above at [61]. There was no suggestion in the evidence that any staff member used the toilet between the time that Ms Boys cleaned it, and the time the plaintiff entered the toilet. In fact, it was the LHD's case at trial that this period of time was very short in duration.
In light of all of those facts, which were largely uncontested, the inference that the cleaning had not removed all of the soap from the floor in the vicinity of the drain was an irresistible one.
No doubt this is why counsel for the LHD at trial did not address the question of breach of duty separately, other than by urging the Court to accept the version of events contended for by the LHD.
There has been no circularity of reasoning. Nor is a finding implying negligence erroneous. On the contrary, as I have indicated, my view is that it was an irresistible inference.
I would not uphold these grounds of appeal.

Grounds 8, 9, 10 and 11 - Errors in Finding of Material Fact

The first material error, the subject of Ground 8, is that the primary Judge did not explain why she concluded that there was soap residue on the floor in light of the evidence that no one actually saw any soap on the floor, and the conflict in the evidence as to what part of the floor was actually slippery.
It is correct that there was no evidence that anyone noticed that soap was on the floor. However, it is not correct to submit that there was any real conflict in the evidence about where the plaintiff's foot was. The plaintiff was clear in her evidence, which I have extracted at [53] above, that her foot which slipped was on or in the vicinity of the drain. The drain was identified in the photographs and in the evidence.
The fact that no one saw soap on the floor, in light of the evidence about the very slippery nature of the floor, was not of any importance in the reasoning process which her Honour was entitled to follow.
The evidence presented to her Honour as to the slippery state of the floor was highly persuasive. Not only did her Honour accept, and was impressed by, the evidence of the plaintiff and Mr Hallstrom, but her Honour also had almost contemporaneous evidence from Ms Foxon's email and Ms West's written statement as to the slippery state of the floor.
Her Honour rejected the evidence of Ms Boys, again largely on the basis of demeanour. Ms Grabham did not given any evidence of significance either way as to the state of the floor at the time of the fall. She did not enter the staff toilet until after the plaintiff had been taken away to be treated. Many people had moved in and out of the staff toilet by that time.
The only evidence which Ms Grabham gave was that she noticed marks on the floor, apparently from shoes. This observation did not tell against the existence of soap or a slippery substance on the floor.
In those circumstances, her Honour's resolution of the factual case presented by both parties did not bespeak error. The finding that there was soap residue on the floor was plainly open. It was not erroneous. It is one which was plainly correct.
The next error of material fact-finding of which the LHD complained, in Ground 9, was the failure to make any finding as to how and in what circumstances the soap came to be on the floor.
As has already been discussed, the only way in which the soap residue could have come to the floor was via the soap dispenser. There was no other source of soap identified in the staff toilets. Ms Grabham sent a memorandum cautioning staff to be on the lookout for soap residue on the floor of bathrooms because of the way in which dispensers were being used by staff.
No issue was posed to her Honour which required her to make a finding as to how and in what circumstances the soap came to be on the floor. The issue posed for her was whether there was a slippery substance on the floor and if so, what it was.
That issue was resolved by her Honour and it was not erroneous of her in the circumstances of this case to fail to make the finding about which complaint is now made, under this ground.
Ground 10 complains that her Honour ought to have made a finding as to the precise location in which the plaintiff fell.
The staff toilet was not a large room. The evidence of the plaintiff, which was not challenged, was that she slipped after she emerged from the toilet cubicle and as she made her way across the bathroom to the basin. The distance, from the photographs, appears to be no more than two metres or so. The plaintiff's evidence was that her feet were in the vicinity of the drain at the time she fell.
There was no issue of fact posed for her Honour's determination that required her to make any finding about the position of the fall.
On the way in which the case was presented, this was not a necessary fact to be found. I would not uphold this Ground.
Ground 11 complains that the primary Judge erred in making a finding that the LHD employed the respondent. The primary Judge, at the commencement of her judgment, but at no other time, stated that the plaintiff sustained her injury "… in the course of her employment with the defendant as a nursing instructor".
This was plainly an error. The plaintiff was employed by the University of Western Sydney as a nurse facilitator, but carried out her employment duties at the Hospital.
The LHD submits that it is not clear to what extent this error affected her Honour's conclusion as to liability, but draws attention to the well-known duty of care owed by an employer to an employee. The LHD submits that "… it may be that her Honour applied that more stringent duty of care to the appellant, rather than the appropriate duty reflecting its status as occupier".
I am satisfied that her Honour did no such thing. Nowhere in her judgment did she refer to the duty of care owed by an employer to an employee. She did not refer to any of the people that came to assist the plaintiff as her fellow employees. She analysed the duty which was owed by reference to the classic statement of an occupier's duty.
Whilst an error was made, I am not satisfied it had affected her Honour's findings on liability. I would not be prepared to uphold this Ground.

Ground 12 - the Ultimate Finding of Liability

The LHD finally submits that in, an all-encompassing way, it ought not to have been found liable. It pointed to the fact that the evidence was strongly persuasive of the absence of any faulty soap dispensers and did not suggest that anybody saw or noticed any slippery substance on the floor prior to the plaintiff's fall.
I have previously discussed at some length the case against the LHD, and all of the facts drawn out in the evidence.
It is correct that there was no proof that the soap dispenser was faulty. But there was abundant evidence to demonstrate that the LHD was negligent in circumstances which made it responsible for the plaintiff's injuries. I would not uphold this Ground.

Conclusion

I would propose the following orders: 1. Appeal dismissed. 2. Appellant to pay the respondent's costs.

Endnotes

Cf Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 (Adeels Palace) (at [11]).
Cf Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [28] - [29]).
Save for such cases exempted from its ambit by s 3B.
Gleeson CJ, "The Meaning of Legislation: Context, Purpose and Respect for Fundamental Rights", Victoria Law Foundation Oration, Melbourne, 31 July 2008 (http://www.hcourt.gov.au/assets/publications/speeches/former-justices/gleesoncj/cj_31jul08.pdf) (at 6).
(at [11]); see also (at [15], [27], [41]).
Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 (at [22]) per Meagher JA.
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 (at [59]) per Gummow J (Heydon J agreeing); see also Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320 (at [102] - [107]) per Leeming JA (Basten and Simpson JJA agreeing).
Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 (Koehler) (at [19]) per McHugh, Gummow, Hayne and Heydon JJ.
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 (Dovuro) (at [158]) per Hayne and Callinan JJ.
Jackson v McDonald's Australia Ltd [2014] NSWCA 162 (Jackson) (at [4]) per McColl JA; see also (at [57]) per Barrett JA.
Adeels Palace (at [27]).
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; (2009) 77 NSWLR 360 (RTA v Refrigerated Roadways) (at [173]) per Campbell JA (McColl JA and Sackville AJA agreeing); see also (at [443] - [446]) per Sackville AJA.
Jackson (at [59]) per Barrett JA.
(September 2002).
(at [447]); see also Laresu Pty Ltd v Clark [2010] NSWCA 180 (Laresu) (at [42]) per Macfarlan JA (Tobias JA and Handley AJA agreeing); Sibraa v Brown [2012] NSWCA 328 (at 34]) per Campbell JA (Hoeben JA and Tobias AJA agreeing).
(at [42]); see also Woolworths Ltd v Ryder [2014] NSWCA 223 (at [60]) per Sackville AJA (Ward JA agreeing).
[2016] NSWCA 93 (at [105]).
(at [39]).
Cf Civil Procedure Act 2005 (NSW), s 99.
See [35] below.
See [80] below. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 July 2016

Cf Civil Procedure Act 2005(NSW)

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