AHMET v DULUX AUSTRALIA LIMITED [1990] NSWCA 3

AHMET v DULUX AUSTRALIA LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, PRIESTLEY and CLARKE JJA 30 April 1990, 7 June 1990

[1990] NSWCA 3

JURY — undisputed evidence that plaintiff slipped and fell while manoeuvring trolley in area where floor slippery from deposits of paint and thinners — failure to find causal connection between slip and condition of floor unreasonable — general new trial ordered.

Samuels JA I have had the advantage of reading in draft the judgment prepared by Clarke JA in which the facts are set out. I agree with his conclusion that the jury's findings in respect of the second incident are not open to challenge. To my mind, this is so essentially because the account which the appellant gave in the report of injury form suggests injury caused by a fall precipitated by the sudden onset of sharp pain in the back, rather than by a slip. Accordingly it was open to the jury to conclude that he had not established that the injury was caused by the slippery condition of the floor in the respondent's premises.

Consideration of the first incident in August 1974 must be predicated upon the fact that it could not reasonably have been disputed that the floor in the area where the appellant says he fell was slippery by reason of deposits of paint and the presence of the thinners used to remove them. The appellant was pulling a trolley, and this was not in dispute.

Although the respondent did not expressly admit that the appellant sustained an injury on this day (as it did in respect of the second occurrence), there can be no reasonable doubt that he did, that he went to the first aid station, subsequently consulted Dr Vickers, and spent some time away from work on compensation. Accordingly, as Clarke JA points out, the question was whether there was the necessary causal connection between the dangerous state of the floor and the appellant's injury. Putting the matter in the framework of the actual forensic contest it was whether his slip was caused by a dangerous condition the consequence of the respondent's negligence or breach of statutory duty.