Lo IN _THE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) No. ACT G16 of ) 1981 GENERAL DIVISION ) ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: THE COMMONWEALTH OF AUSTRALIA Appellant (Defendant) AND: MURRAY VINCENT MURPHY Respondent (Plaintiff) JUDGES MAKING ORDERS: Bowen C.J., Blackburn and Deane JJ WHERE MADE: Canberra DATE: 12 October, 1981 THE COURT ORDERS THAT: - 1. The appeal be dismissed with costs. 2. The cross appeal be stood over generally with liberty to any party to apply on seven (7) days notice. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY ) ) ) ) No. ACT G16 of 1981 DISTRICT REGISTRY ) ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: THE COMMONWEALTH OF AUSTRALIA Appellant (Defendant) AND: MURRAY VINCENT MURPHY Respondent (Plaintiff) CORAM: Bowen C.J., Blackburn and Deane JJ. 12 October, 1981 BOWEN CJ: I will ask Mr. Justice Deane to give the first judgment in this matter ° DEANE J: This 1s an appeal by the Commonwealth ("the Respondent") from a decision of the Supreme Court of the Australian Capital Territory (Mr. Justice Connor) that there be judgment for the plaintiff against the defendant in the amount of $102,839.04 on account of damages in respect of injuries sustained by the plaintiff when, on 19 August, 1973, he slipped and fell in a bus depot in Wentworth Avenue, Kingston, in the Australian Capital Territory. The plaintiff was then employed by the defendant as a bus driver. Before the Supreme Court and before this Court, the main issue involved in the question of liability has been whether the injuries sustained by the plaintiff were on a part of the depot described as Stage 1 or on a part of the depot described as Stage 2. The description of the depot and the essential facts in relation to the occurrence on 19 August, 1973 appear from the judgment of Mr. Justice Connor in the Supreme Court. It is unnecessary that I refer to that evidence in detail. In so far as the question whether the relevant occurrence took place on Stage 1 or Stage 2 of the bus depot is concerned, its importance can be briefly summarized. [It was common ground that the floor of Stage 1 was smooth and slippery. The plaintiff's injuries were suffered as a result of his slipping when about to mount his bus on the morning of the day in question. The evidence indicated that the floor of Stage 2 was not slippery. It was common ground between the parties on the hearing that if the plaintiff's injuries were sustained as a result of his slipping while on Stage 1, the defendant was liable in damages. The plaintiff's evidence as to precisely where the accident took place was, as one would expect, somewhat uncertain. He gave evidence that he estimated, as a result of pacing out the distance some years afterwards, that the -3- precise position at which he slipped was some 120 feet from the eastern boundary of the depot. If this evidence were accepted as being strictly accurate, it would have placed the site of the accident in Stage 2, that is the non~slippery area. Plainly, however, it would be unreal to accept the plaintiff's evidence as to the precise position on which the accident had taken place as being necessarily completely accurate. It must be accepted as no better than an estimate based on reconstruction. Mr. Justice Connor in the Supreme Court relied on three particular aspects of the evidence in determining that the plaintiff had established a case of negligence against the defendant. The first was the evidence given by a Mr. Nevport as to how the buses were customarily parked within the bus depot, namely either very close to a line of stanchions which ran slightly to the west of the boundary between Stage 1 and Stage 2 or with a portion of the bus dlightly to the east of that line of stanchions. The second matter on which his Honour relied was a statement by Mr. Simpson, the manager of the depot, in a letter of 29 August, 1973, to the Director of Works, relating to the condition of the floor of the depot. The third matter on which his Honour placed weight was the fact of the accident, namely the fact that the plaintiff, whose evidence his Honour accepted, slipped on the day on question. I refer to these three matters in a little more detail. As regards the first, the evidence of Mr. Newport clearly established that it was highly probable that the occurrence occurred very near the boundary between Stage 1 and Stage 2. In other words, the setting of the accident was that the plaintiff slipped very close to the boundary between a floor that was, on all the evidence, likely to be slippery if there was grease upon it and a floor which, on the evidence, was unlikely to be slippery. The letter of Mr. Simpson to the Director of Works related to, or rather recounted, details of certain occurrences which had in the period immediately preceeding the writing of that letter, occurred at the depot. Mr. Simpson stated that over a recent period of wet weather three drivers had been injured due to slipping on the floor surface of Stage 1. He expressly stated that no accidents at all had occurred on the floor surface of Stage 2. The letter was admitted by kis Honour in evidence. His Honour''s decision in admitting the letter into evidence has not been attacked before us. Plainly his Honour was entitled to place some weight on the contents of that letter. The third matter is, as I have said, the fact that the plaintiff did slip on the morning in question. When ™ weighing the probabilities, it is plainly of considerable relevance that an active man should slip without any apparent reason other than that, either because of a substance on it or because of its natural state, the floor was slippery. In circumstances where the accident plainly took place near the boundary of Stage 1 and Stage 2, and where Mr. Simpson's -5- letter indicated that the view which he took after inquiries was that it took place on that part of the depot known as Stage 1, the very fact of the occurrence supports the conclusion that the accident took place on Stage 1. In the view I take, not only is there no basis for attacking his Honour's finding on liability: I think that that finding was the reasonable one on the evidence before him. The defendant attacks his Honour's award of damages on two distinct grounds. First, it is said that his Honour was in error in awarding an amount of $§572 damages in respect of the period from 14 July 1980 to the date of his Honour's decision which was 15 May, 1981. In reaching that figure his Honour took the amount which the plaintiff would have been expected to have earned in the period if he had continued being employed as a bus driver, including overtime, and subtracted from it the amount which the plaintiff actually earned. His Honour's conclusion as to the resulting net figure of $8572 must however be seen in a context where his Honour made an adjustment, in respect of that amount for that period and of an amount representing past economic loss for the preceeding period since the accident, in an amount of some $1300. While it seems to me that the amount which his Honour allowed in respect of that period is on the high side of what lies within permissible limits, it does not appear to me that, taking into account the allowance which was made for contingen- cies, there is any proper basis for interferring with his Honour's assessment of damages in respect of that period. The other attack which was made on his Honour's assessment of damages was in respect of future economic loss. His Honour settled upon a period of some 30 years as represent- ing the balance of the plaintiff's working life. No attack is made on his Honour's decision in that regard. What is attacked is his Honour's acceptance of a net weekly figure of $75 as a reasonable basis on which to calculate loss. In making that estimate, his Honour took into account a number of factors. One factor was the net wage being earned by a comparable employee in the bus driving industry. When I say comparable I mean comparable to the plaintiff if he had not sustained the injuries which he sustained. Another factor which his Honour took into account was that the plaintiff earned $250 in a job which he had held for some months as a bar manager. His Honour, against the plaintiff, appears to have treated that amount as a net amount after deduction of taxation instal- ments. His Honour also took into account his assessment that the plaintiff was likely over the rest of his working life to have time off and to have intervals between jobs. Taking into account all these factors, it seems to me that the amount of $75 which his Honour reached was a reasonable basis on which to calculate economic loss in respect of the future. Again, I can see no basis for inter- fering with his Honour''s decision in that regard. It follows that, in my view, the appeal should be dismissed with costs. As regards the cross appeal, the parties are agreed that that should be stood over pending the decision of the High Court being available in the appeals in Todorovic v. Waller and Jepsen v. Henken. That appears to me to be the appropriate course to be followed. BLACKBURN J: I agree with all that Mr. Justice Deane has said and I do not wish to add anything. BOWEN CJ: I agree. The orders of the Court will be that the appeal be dismissed with costs and that the cross appeal be stood over generally with liberty to any party to apply on 7 days notice. I certify th-+ tH 3 and the Lb saa toe cary of the precedinr atee : Reasons f r Jyuement hati of his Honour . Mr. Justice Bowery te Th farting. Dated: 1-v/10/8/