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. The respondent asserted that he had responded to Kristensen's instruction and carrying his mop and bucket, traversed the area and, when he was about to step onto what he described as the second step, he slipped and fell. There is a conflict of evidence, which the learned judge resolved in the respondent's favour, as to whether Kristensen was present at the time of the fall. But as counsel for the 2 UNREPORTED JUDGMENTS appellant fairly concedes, it must be accepted that the respondent did fall and there is, I suppose, an inference that the nature of the fall or its cause could be described as a slip. Judge Hosking found that the respondent had established his case of negligence and his reasoning was expressed in this way: "T accept that the area in the immediate vicinity of the stairs was wet. The defendant did not take reasonable care for the safety of the plaintiff. The area was rendered unsafe by becoming wet. It is true, as Mr Adams very forcefully pointed out, that that was done by the plaintiff himself. However the hospital authorities failed to provide the plaintiff with adequate footwear to perform his duties. He was forced to work in this area wearing street shoes. Plainly this was not adequate." And there follows a reference to the fact that the plaintiff had to work carrying a mop in one hand and a bucket in the other, and that there was no evidence of any instructions given to him or of any supervision. As I have said, there was no direct evidence that the area, which I will henceforth use to describe both steps and the portion of the premises leading to them, was wet. There is no evidence that the shoes the respondent was wearing, which were his own leather-soled shoes, were inadequate. There was no evidence that there was any other type of footwear which was ordinarily provided in the circumstances of this industrial situation, or that there were shoes available which would have avoided or diminished any risk to which the respondent was exposed by being required to work on wet linoleum. There was no evidence, as I have already said, that the linoleum, when wet, was slippery. The defendant now appeals, contending either that there was no evidence of any breach of duty on its part, or, alternatively, that the learned judge's finding that there was was incorrect. It seems to me that the essential ingredients in the learned judge's conclusion are absent, and there there was not material upon which the finding of negligence could be supported. However, if it is assumed that it may reasonably be inferred that the place where the respondent slipped was wet, and as a result was slippery, I do not consider, in the absence of any evidence that the footwear which the respondent was wearing was inadequate or unsafe or of any other precautions which were reasonably available and which would have avoided or diminished the risk, that the plaintiff has made out a case in negligence. The evidence is that the respondent was called quickly or urgently to this other job. There is however no evidence that he ran or hurried or adopted any gait or mode of movement in response to what he believed was the urgency of the call which increased any danger to which he might otherwise have been exposed by the condition of the linoleum. In short, even if it is concluded that there was evidence upon which a finding could stand, I think that the learned judge was in error in arriving at the finding of fact which he sets out in the judgment. I do not think that on the material that was presented it can be said that the appellant failed to carry out any duty of care which it owed to the respondent. There are other grounds of appeal but we heard this one first because, obviously, if it were successful it would dispose of the appeal and that, in my opinion, is what has happened. I would therefore propose that the appeal should be allowed with costs, that the judgment below should be set aside and in lieu thereof there should be substituted judgment for the defendant with costs. The respondent is entitled to a certificate under the Suitors Fund Act. URJ BALMAIN HOSPITAL v VATALIS (Meagher JA) 3 Clarke JA I agree. Meagher JA I agree. Appeal allowed with costs. The judgment below should be set aside and in lier thereof there should be substituted judgment for the defendant with costs. The respondent is entitled to a certificate under the Suitors Fund Acct.