" Master and servant - nealigsnce - casual act part of princip fo. ALS coram: fellow emploves - question of fact Le or nealigence ~- no gm1escicn Davies, Sheopard and Eveareiz cs. L3 Decemper 1334 Canberr a cn ot IN_ THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TEFRITORY Wo. A.C.T.G. 26 of 1934 DISTRICT PEGISTRY GENERAL DIVISION On Appeal from the Supreme Court of the Australian Capital Territory BETWEEN Appellank THE COMMAS LTH OF SUSTRRLTA ORDER JUDGES MAKING ORDER : Davies. Sheppard and Everett JJ. DATE OF ORDER : 19 December 1984 WHERE MADE : Canberra THE COURT OPDERS THAT : l. The appeal he allowed, 2. The judament for the respondent be set aside. 3. There be a new trial on all issues. 4. The costs of the previous trial be reserved to the Judde hearing the new trial. 1S The respondent pav the appellant s costs of Ehe appeal. lL. IN THE FEDERAL COURT OF AUSTPALTA ) AUSTRALIAN CAPITAL TEFPITORY ' On Sppeal from the Suereme Court of the Australian Capiral Territory SETWEEN: MARYANNE GEORGE Avvellant AND: THE Oo -jONWEALTH OF AUSTRALIA Defendant mi CvIFT: This 13 an appeai from a -udament of the fFurreme + 2, -vart if the Australian 'Tapital 2. neqliqence in two separate accidents. They occurred on 2 Anqust 1978 and 9 March 19793 respectivelv. In the alternative the appellant relied only on the cause of action based on the accident which occurred on 2 August 1973 and claimed that the iniuries suffered in the second accident were a consequence of those which she had suffered in the Tirst, His Honour found against the appellant on both causes of action with the result that judament was entered far the = respondent. His Honour did not find it necessary to dea with the questions of contributorv negligence, damages or the connection of the injuries suffered on 9 March 1979 with the accident which happened on 2 Aucust 1978, The plaintiff was born on 26 August 1948, In 1974 she commenced emplovment as a clerical assistant with the Public Service Board. She continued to be emploved in the Board s office until her retirement on grounds of invalidity on 34 April 1980. Shortly before 2 August 1978 when the first accident occurred there had been a re-organization of the Public Service Board which necessitated a larage number of staff beina moved into new office premises. The move was earried out by the Office Services Section of the Board. The appellant was amongst those affected by the move. With the Plaintiff was moved oaffice equipment used bv her in the course of her duties. This consisted of a desk. a side 3. telephone table and a desk chair. tb a 2) rh et ao iw Before aiving an account of the circumstanc a # f. wo ac nt of 2 August 1373, which we pronose ks take substantially from his Honour s judament, wa should mention that counsel for the respondent did not accent that als Honour s account revoresented anv more than an accounn of the appellant s evidence. He stronaglv resisted tne suomi3sicn made on behalf of the appellant that the various factual matters stated bv his Honour were firdinas. We propose to put on one side for the moment such problem as arises o2cause of those submissions. For the time being we shall proceed on the tooring tnat the facts found bv nis Honcur are as stated un the account given in his cudamenc. Ey 2 August 1978 the rove was Larqely ccompleted. Nok all furniture had been moved into che new office and there were files on top of che appellans 3 a2sk. Hut her uesk, desm cnair and celephone ccanpl2® wers ain position, aroellant returned from luncn Eetween 1.90 p.m. and 1.00 em. Zhe answered the ctelephcne iocared cn ner tapni2 and was taking notes of tne conversation when she heard someone come in > tha aeneral office where her de3k was. She neard scmeathing belrna puc down sut aid not turn co see what it was. Ss sn was speadinu another telenpnore rany in a aifferenc His Honour continued:- en hurevina in a fast walk but noc running past the end of her desk, and between the end of her desk and a side wall - a2 seace cr about two feet - she collided with a steel framed office chair which had not been there a shoct tire befcre wnen she had movad to anzwer the teleencne on her s:de tabis." The chair had oresumablyv been olaced where 1t was by the rerson who had come in to the office while she was ctalkina on the televohone. The apoellant did not see the chair before she struck it. She conceded tnat there was nothing to cbscure her vision. She hit her right «nee on a corner of the steel frame of the chair. Sn2 stumbled and herxsed to wD answer the other telerhone. Her knee was eaxtremeiv painful. It had bequn to swell. She reported the incurv by rcelephine to the first aid officer. in the elear a3 it xisht have S4en but sutfices to show, an leasn aeneraliv. the position of tne various artic wnicn w2 have mentioned and also tha two telephcnes. m1s5 neneuc brocesaad unon Tne basis TRA Loe Arawlng ""RS Fi v i) a mh th fas a}Aa ty Ww +iD fa t bay in at iT Sy ny $2. w m Pay wefa al es ip a sb ras ny ray © ' me Pa mm re fh t. re tb wn were placed at riant angles fro each otner and the des chaic an a position whiten would enable the apeesilant to i1t at o either the cesk or the lable. The desk was placed lenathwice it Ss re) = ay we wm id alona the room. The apveliant s méans cr access 72 1 was by wav of a space of abeut two feet between -ne end of the desk and the wall. The celephsne wnicn rang during her original teisoncne conversation was ona table in amother part of the cffice diagonally across from ners. Her natural rath to i1t was through the aap of abouc two feet between the desk and the wall and then in a diayonal directicn acress to che other side of the office. The chair wita whicn the apreilantk ecllided way olaced against the wall not very far fcom the end of che desk. but it did not cksrruct the snace retveen the end wf che desk and tne wall. dis A@cnour tate no iindid tiuld nave seen as cisse close as adiacent'. Sh however 'the «eneral cic evidence. oarticulariy if that the chalr was reasonan As 17 185 rositicned mn tne the arveiliant = catn 72 tne There was no eviqenr2 AS ae Tne Larpening it "£2 ao ace1rdent except that of the anpalilant. ber case was "nat the chair was placed where it was witnour her knowledge ana that in ner hurry to answer t feleenone she did not 43962 it. oO Do do treat she stumpled eltner 3) Tt oO Tarouugh ner counsel sre oDMLT because of a casual act of nealigvence on the part of a fellow emplevee or because the casrpondent did noc provide her with a ceasonagiy safe nlace in wnich to work or access to and from her work. The aroallant's evidence in relatien to the = second accident was that on 9 March 1373 she was working in an upstairs offices, not in the buildinz where she had been nurt the crevious vear, but in another puriding in which she nad ereviously been erploved. Te was wart of tre arpellant duties to deliver files and correspondence to other bulliinas Ts Qccupi2ed ov the Public Service card. Tne arxeesilant was ceaurrei to make deliveries on an average or 5 ro fav oo Eurlaings xno as Bless building. rer b'nee messages 2ah dav. Ar tna 2nd if tne dav ine nesced ts rest ru eyib ty p mh a ran te te awte a b ur w et yex iD at J no a cause che «nee wa ib weull qiv2 wav about once i io fb < The avesllant pre v7laed the vasporaert witn a leccificars ov a Dr. Acmstrond aated 16 August 1372. ce gard thar a2 was the arvellant s doctor and tnat she nad sustained a rliw ta tio ner yiahnt «<ns2 at work in 2 Autust le 7, Dr. Armstrons said that it was melically aivisable raat her work be srimarily sedentary and that she did very iitcls walking or climbing of srairs until the condictiscn setcied. The avpellanc aave evidence that she had tola her super.ors of ner problems with her knee. Two were involiveu. a Miss Goode ani a "tr. Parkinson. Miss Good2 was tne appellant s superior until danuarv 1379 and Mr. Pacwkinscn néc superior thereatter. Miss Goode agave evidence, Mr. Farkinson did not. His Honour reiected the appellant's evidence that she had complained to Miss Goode but he accepted that she had comelained to Mr. Parkinson. mis Honour fcund chere no question Gf anv aséurcticn 1s involved) that on 9 March 1979 (1t vould arpear that whe date 2 March 1973 in his Honour s vadament is a wietaxe, the apeeliant spoke co Mr. Fark.onson in b1e orrite. Ac thay tine she wae in DAlN ana ner "nes was seWwo.i|an ani distilisuréea ard had aust alven wav near ner desea. The aorcallant 2aiadoto tir. Farkxinson, 'Mv mree is give. Towant to wo home." re sala, "quse clear vour in-trav first." The avpaliant dia that. It involved ner in taking pavers to the Kinas Avenue building. Sane went to the head of the stairs in flock 1 where Fhe was working. Ie is a two-sterev Luildine without a lift. taen she was at the head of the stairs rer xnee unexpectealy save wav and she fell down the fiight sf about ten sctens to tns red furtner wniaries as tanidins beicw. The axsellant suffi th mn the result of her fall. The appellant aqdreed in cross-exzamination that ins nad agreed to clear her in-trav vwnen aszxed to do so as thought that she could do the acb that she had been asxed to do, She alse aqegeed that she was in a better sosition tnan Mr. Parkinson to wdae hew zocd her «nse vas. She aaye2ed that there was a handrail cn tne stairway but tnat ins vas not holding on co it ak crne cime she feil. She agreed that she could have used the randrail if she nad wished, but said that this was noc her cractics. S02 was sure that she had n 1b not tripped. n th Ja eLa . it) UG nd a fod G -, vu » ow He) om 6s tw fe) rw) BP yu ab Pal wv waa? out a cas@ in neali Ther? was no argument. assuming the facts t2 be as stated, than we are 2n aS @904 A KCZ1TLIN 23 TNF learned crimary G Judge to make that "urgent. mhe zhandacd cf care sowed by an erclover to an e~plavee 25 well gectcled. The emvolovyer nas a tut' To take reascnanle LAlLS MOT Tl semes? an encliva. t4 urnecessar' vise of intary ay svstem of work. The emplover will also be liable for casual acts of negligence by his other emplovees. Te is daffacule to see how the present case could be put except on the basis of a casual act of negligence on the part of the emplovee who Placed the chair where it was. In order to determine whether there has been a breach of an emplover's obligation or whether another emplovee has heen negligent. it will be necessary to consider whether or nat the emplover himself or other servants ought reasonably to have foreseen that its or their acts or omissions might cause harm to the plaintiff. In Wvong Shire Council vy. Thirte (1980) 146 C.L.R. 40 Mason J.. in whose qudament Stephen and Aickin JJ. agreed (pp. 44 and 50) said tpp. 47 - 48::- "A tisk of indury which is quite unlikely to eccur, such as that which happened in Bolton v, Stone £19513 A.C. 850. mav nevertheless be plainlv foreseeable. Consequently, when we speak of a risk of inwrv as being "foreseeable" we are not making anv statement as to the probability or improbability of its occurrence. save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in manv cases the qreater the dearee of probability of the occurrence of the risk the more readily it will be perceived to hea risk, it certainly does not fallow that a risk which is unlikely to accur is not foreseeable. In deciding whether there has been a hreach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injurv ta the plaintirf or toa class of 29. persons including the vlaintifr. Tf tne answer be in the affirmativs, it 1s then fer tne tribunal of fact to dsrermine wnara reasonabl2 ran woulda do Sy wav of response to the risk. The perception cf ths reasonable man's esoonse cails Ter oa consideration of tne ragnitude of tne risx and the degree of the wroLabilitv of its eccurrence, alona with the expense, difficultv and inconvenience of taking alleviating action and anv other ccnrilictina responsibilities which the defendant mav have. it 15 onlv when these matters are calanced cut that the triounal of fact can confidently assert what 1s the stanaard of response fo be ascripad to 'the rceasorabie man placed in the dafendant s sosition. The considerations to which indicate ctnat arisxk or 2 remote ain the sense that 1 unlikelv ro occur mav nevertheless constitute a foreseeable risk. A ris which is not far- hed or tanciful 15 real and tzlatiin 12 Tha fisat inridéens als ie) a + ron ib oh + fi Fal e u Persp rg Dh He therefore >reseeable. But, as we have seen, the ex ence cf a Toresesavie risk ¢ infury doz in 16s2if dzsecose of the auestion of breach of dutv. The magnitude of the ris« and its deagree of crasability remain to be censidered witn onee calevant factors." L¥Yt' 3 case was not an ervlovment case rut frat dss dar what Mason J. said in r2latien tc the gauescicn 7 feraseeabilitv inarplicable to Tha cielumstances 26 ooin aramue ll. Services Section of the Public Service Eo wnile the owlaintiff was speaking on telsonore, That hapveened, on plaintiff 3 case, a verv short time bef she concluded her telerpnone cenversatiocn moved to answer tne other telercnone. Iz was not suqaested that tnere was anythira unusual cr peculiar about tne chair itself, wnether as to size, colour cr anvthing of that mature. Zt owas an oordinary <ifrics chair such a3 might have been expected to be found in a Fublic Service office. TI find That 10 was ln a position where one miant have excected *'o rind such a chair. It was plainly visiole aif the plaintirf nad caken tne trouple to look. I rarect Mr. Maquire's submissions, pvlaintiff, verv aolv thar the cut on behalf of thea chair was effectively blockina the passaweway anicthe vlaintiff had no reason to expect it to be there. It seems tome that t presence of the thair for such a short ti ne m 2 aniain full view of the plaintiff, 1m sh2 had cared to look, at least once she moved to the end of her desk and the risk that the clisintirf miant bump che chair in the ordinary course of walking past it eculd not be characterised aS an unnecessarv risk or Torese¢2abl2 danger "nich the Commmonwealth should have foreseen and tasen rrecautions to avoid iniurv to the claintiff ov her dcing so." Zn Dur seinion a eyatical avestiln ws smetney mas mircur Was correct in finding that the chair vas in a wosir lon wrere ome mimghe nave exoecred to find sush a thatr ana in retecting the submissicn made to him that the chair was affectivelyv piocalng tne apoellant''s passagewav. CUscon the basis of his Honour 3 Sariier findings of assumption:. we iind curzeives Jdnacle be agrees with his conclusions as 29 105 2cSs142CNn Tre smetch plainiv inows that 1t was blecking, at least t3 aoreit wial .2ayse, Tas gereilant'? eatuway fei nes aask 12. to the telephone on the other taple and indé2a £9 che docrwav + snich ied from tne office. The <=Ketch eslan and tne His Honeour's next conclusion was that the cnaryr wa A plainlv visible "if the claintiff had taken ths troucie ta look.' In our opinion that beas the question. Her cas2 15 that gne aid not s22 the cnailr secaus2 of ner need to surry across the rcom to the other telephone. Aaain. that aprears to have been his Honour s vrimary firding or assumpticn upon which he decided this question. Ib seems to us that a ocerson in the position of the arcpeilant miync easriv fail to seea chair placed so recently vhere it was while she was eresceunied in dealing with ene phor= call and concerred to endeavour :2 'deal with another awav fecm 12f own area. is etreumetances in woica ene Tiund herseif ie s4473 t9 us to ne an urwarranted criticism cf her wo <seriect asin her oncr having seen the chai when one fake2s 2Nta account tne eircumstances in which she was Jisthargzins cece duties ani tne 21st c wa im 2s in whith tne cthanr care t3 be vwlarted wnat2 it mR Ma) ta WAS. In anv event cthos2 mattecs sesm £29 45 t9 cre mere relevant to tne wuestien of contributory ceclizence than to avy wuestic of nealigwerce in tne earkh if the .escirsaeis cr 1ts servants or agents. Tnat leaves the most critical question. Cuan the emplove2 wao vlaced the chair whee 12 was reasonably £9 nave foreseen tnat the appellant might bump into the chair and do necaelf harn? vie have not found tnts an m asv AU2sT1lon 5 fer] cesolve. Aner all the emolovee did elac2 tne thair in plain view of tne apoeilant. If she had walked normally and net been distracted by her duties, she would undoubtedlv nave seen it. Quqhe the employee who placed the chair where 1t was, and thus the respondent, reasonably have foreseen that the aopellant might not see tne chair because of adaitzreonal circumstances, gucn a3 the unaue cressure under which ine was immediately befrtre cha accident occurrea? The 2xercise 15 A judgmental cre and wa 22 not pretend that the answes 15 atraishtfcrwaci, mattec, we have chould .avea Toreases woaich oecurrvad on 3 tlaren Ls73. In cur lots acm nis atecur s conclusions susnt net to be disturbed. There Bre ftw printival ceascrs whv we ace of this view. The farst 215 that rne aceellant did crt astaeiisn trat if the nad noc rorcinsus. id. workina the unlurv would not nave occurred. If was incucrent upon her to versuade tne Tourt thar if she had acne 271.2 as she apparently wisned co ds, tne acciasnt woulw cranaLiv nor have occurred. Her tourney some would have commented with the descent of the very stairs Irom which she fell Lecause her kne2 qav2 wav. Ic is trus that she was ctarrviry cavers which she would rot have been carrevina if she had left ta go home, cut the evidense dees not suggest that these maie anv stanificant difference to ner apility t3 negotiate the stairs or to her knee qiving wav. ene was not using the handrail but that was ner invariable practice when desreandiny the stairs whether she had capers or not. Our other relation to this cf the aonellant s conversaticn with Mr, Parkinson cn tne was of the accident. if was outting a sremium on hig -udyrent to make him tne ruaze of now fit ir itinervis2 tne acoaliant «as : (bxg oO ~ s to continue witn there 13 a question as 79 whether biz request to nay to rleRe ner in-trav berore she istt was an instruction <r si70l an enquiry a3 cto whether or nok sne might to that serors ene went home. Tust how difficult Me. ParKinscn 3 69315127 was iS PEernars criught sut fv a cinsitrevaticn of a rsextre ir le. Arnold Mann who gzaw the avrcellant far renico-leyzal rurreores fn his oummary De. Mann said thace tne avotilart -ia3 difirzrals t li asi2ss ari that ir cag l2ietiniely eecsibise chat a3 15. a voluntary element in her svmoetoms. It follows that, 1f tne appeal had been based only ona challenge to nzs Honour's conclisisns ccncernina the second of action, we would have dismissed ic. n au uw ib The next question 215 to determine wnether we should enter qwudament for tne appellart ain respect of ner rirsth cause of action or send the matter back to the Surreme Court for aretrial on all 1s5ues. Counsel for the respcndent stronalv contence ran Mm i] ia ct Pp D bt w a ct o x a u cus o Gv » a B mo) w on a <q o Gf a we io in) tif tt we ] ct r- wy ars a ry fu a wy wvQ w uw a o cr > 1D w ia} ia} u t e ju ro ct uw there kad been verv subs credit at tha trial. In nis submissicn his dAisrnour nad no found it nerzessarv to deal witn these nis supmission, nis Honour didi not maze findinss bur, yatner, proceeded fo assurs that tre facts were as the avrcellanc saad. dis Honour 5 visw was that, aven if tnevy were, ene should be a naw trial on ail issues. Tur veasions fee that fanctiasion aeoend sarkivy ursun tne manrers relred uecn ry erunsel for octne@ ratpenient and ourin stner rarities a5 well a Do i Of u uw = U ' % ny 1b iP] a th Pe) Le fay a) qt ot fom wb ad myib & cr ty wo ag Pag p i)iD s w wu y iy ny aa ny fas vb f at ie) Po <'D ti - Am uy (DBie] ww x oy i a) C te ivr i iv) ras ig) c ow) w a beue ht Oo ih ro 15. comfortable about assessing the relative dearees of fault of the appellant and the respondent. We make it clear that we do not indicate by that statement that we are necessarily of the view that there was contributory negligence. We have no view one wav or the other. Then the appellant s claim for damages is complex. Counsel for the respondent submitted before the learned primary Judge that the appellant was qarosslv exaageratinag her svmptoms and that a back condition from which she claims to suffer was not caused. 1f it existed at all, bv either accident. In our apinion, the Judge who will hear the matter aqain ought to have before him the whole of the evidence and the ability to decide all questions whether of liabilitv or damage. A consequence of this will be that the appellant. notwithstanding what we have earlier said, will remain able to relv on her second cause of action, but that must follow if the new trial is to be on all issues. The orders we would make are as follows:- l. The appeal be allowed. 2. The jiudament for the respondent be set aside. 3. There be a new trial on all issues. 4. The costs of the previous trial be reserved to the Judae hearing the new trial. 5. The respondent pay the appellant's costs of the appeal. Icertty that this and tne AS precec.ng pages are a true copy of the reasons 'or judgme.t herein of the Ceart Ld P AL ehiror Assoclate , 2 (9 NECEMR=R 198L