BALMAIN HOSPITAL v VATALIS [1990] NSWCA 19

BALMAIN HOSPITAL v VATALIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS AP, CLARKE and MEAGHER JJA 12, 12 September 1990 [1990] NSWCA 19

NEGLIGENCE — no evidence on preventability issue — judgment for plaintiff set aside.

Samuels AP The respondent, the plaintiff below, had been employed by the appellant for some two and a half years as a cleaner before he sustained injury on either 29 October 1984 or 3 November 1984. On the view I take of the case, the precise date is not material.

The respondent's evidence before Judge Hosking in the District Court, which the learned judge substantially accepted, was that on the day in question he had mopped a flight of steps and the area of a corridor, as I think I may call it, leading to the top step about ten minutes before the accident occurred. He had mopped the area with water from a bucket. Having completed this task, he was then called by the supervisor on duty, one Kristensen, to come urgently to clean a bathroom in the hospital.

The respondent's evidence, which it must be taken the learned judge accepted, was that Kristensen told him to come quickly, and in another portion of the appellant's evidence he said that Kristensen called him urgently: "So I had to go

"

The statement of claim is in general terms, alleging a breach of the appellant's duty to take reasonable care for the safety of the respondent as its employee in all the circumstances of the case. The particular, although I do not suggest they were technically inadequate, are to a degree non-specific and in particular I note, in view of the learned judge's finding, that they do not assert that the shoes which the respondent was wearing at the time were inadequate or in any way unfit for the work which he was required to carry out.

There is no direct evidence that the steps, or the area leading to the top step from which the respondent says he slipped, were wet at the time. There is no evidence that the steps or the area were slippery. There is no evidence as to the material used to clean the area or the steps, other than that water was employed, and apart from the fact that the whole of the area, including the steps, was covered with comparatively new linoleum, which had been laid about three months before and was kept clean and shiny, there is no indication of any other property of the floor or stair covering. In particular there is no evidence evidence that they were at the time, or had an inherent tendency to be, slippery, and, in particular, slippery when wet.