THE MAITLAND HOSPITAL v FISHER (NO 1) [1992] NSWCA 142

THE MAITLAND HOSPITAL v FISHER (No 1) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, MAHONEY JA and SAMUELS AJA 7 July 1992, 7 July 1992 [1992] NSWCA 142

NEGLIGENCE — employer's liability — kitchenmaid injured when slips on water in coolroom of hospital kitchen — trial judge determines cause of water as condensation of moisture and/or inadequate mopping — accepts evidence of fellow worker of prior complaints about presence of water — finds that ready means were available to prevent the risk of slipping from water on the floor — held: Upon the findings of credit by Lee A-J it was not open to the Court of Appeal to disturb the findings of the primary judge on liability in negligence at common law — appeal dismissed. FACTORY — hospital — whether hospital coolroom is a "factory" within Factories, Shops and Industries Act 1962 s4 — whether hospital, as occupier of a "factory", failed to ensure that relevant floor of factory in hospital coolroom was "properly maintained" for the purpose of s34(a) of the Act — Lee A-J holds that hospital coolroom is "factory" and duty breached — held: (on appeal to Court of Appeal) (per Samuels A-JA; Kirby P and Mahoney JA concurring): As the appeal must be dismissed upon the worker's success upon her common law claim, the Court of Appeal expresses no view, one way or the other, upon whether the hospital coolroom was a "factory" and whether breach of the Act was made out in the evidence — appeal dismissed.

Factories, Shops and Industries Act 1962, s4, s34(a).

Samuels AJA This is an appeal from the judgment of Lee AJ delivered on 22 November 1991 in which his Honour awarded the plaintiff (the present respondent), who was then fifty-three years of age, damages totalling $206,090 as compensation for injuries to her left shoulder sustained on 3 July 1985 when she slipped and fell in the room of the Maitland Hospital while employed as a kitchen maid by the defendant (the present appellant).