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). The plaintiff's case at the trial was that the floor of the cool room to which she had to go to fetch a tray of chicken was generally, and on the day in question in particular, wet and slippery. Two reasons for this condition were advanced; the first, that there tended to be condensation on the walls of this cool room which translated into moisture on the floor and, the second, that the system employed of mopping the floor to keep it clean was such as to leave a residue or film of moisture after that operation had been carried out, as it usually was, in the course of the early afternoon. His Honour regarded the plaintiff as a credible witness and accepted evidence given by a Miss Cant, a fellow worker, that she had discussed the condition of the cool room floor with a Mrs Shilvers, who was the supervisor, in effect, of the kitchen and cool room operation. Having arrived at that conclusion and having found the evidence acceptable about the condition of the cool room floor at the time of the plaintiff's mishap, Lee AJ found negligence at common law and a breach of s34(a) of the Factories Shops and Industries Act 1962 on the footing that the cool room, at least, was a factory by dint of the definition contained in s4 of that Act. 2 UNREPORTED JUDGMENTS We have heard argument on the question of negligence and, having come to the conclusion that the primary Judge's finding should not be disturbed, we have not heard any submissions from counsel on the statutory point. All that I think should be said is that we have arrived at no view one way or the other as to whether this cool room or cool rooms in public hospitals generally fall within the definition in the Act. Mr Vincent of counsel, for the appellant, has made a valiant and stalwart attempt - if he will forgive my saying so - to re-run the trial. This has involved submissions that the learned judge was wrong in certain findings of fact; that he failed to give insufficient weight to certain evidence favouring the defendant; that his reasons were both inadequate and defective; that he failed to give proper weight to a video tape of the plaintiff's post accident activities; and that he overlooked evidence given by the plaintiff, in cross examination in particular and by medical witnesses which ought to have led him to the conclusion that the plaintiff's condition was not such as to justify the award of damages which he made. Despite Mr Vincent's argument I can regard this, as I have said, only as an attempt to start from scratch, as it were, and to persuade us to arrive at findings of fact including findings about credibility different from those made by the learned judge. It may be that recent cases in the High Court have made life difficult for counsel whose clients fail at a trial because of findings of fact made by the trial judge, but there is no doubt that our present appellate function in these matters is circumscribed. I do not think it is really necessary, nor would it be helpful, to make an analysis of the evidence which, in my opinion, is quite satisfactorily set out in the judgment under appeal. Reduced to its basic elements, it may be said that the plaintiff and Miss Cant gave evidence that the floor of the cool room on the day and at the time when the plaintiff fell was wet and slippery. A reason for that condition was assigned; indeed, two reasons were put forward. One of them, the condensation, was a structural one and appears to have been satisfactorily dealt with after the accident. The other was a classic 'system' event and evidence was given on the plaintiffs side as to how the work was done and with what result. The woman who had done it on the day in question gave evidence and his Honour concluded that she herself had indicated that after her task was done there would be a film of water on the floor. She agreed that that tended to make the floor slippery. It seems to me, therefore, that all the necessary elements of a case in negligence were made out save for the preventability aspect. That was supplied when Miss Cant asserted, and was believed, that she had raised the question with Mrs Chilvers. Mrs Chilvers' denials may have persuaded another judge; they did not persuade Lee AJ and they cannot now be urged in aid of the task of persuading us. Accordingly, there was evidence - indeed, it has not been suggested that there was no evidence of negligence in the case - and the way in which the judge dealt with it cannot now be assailed. Accordingly, the appellant must fail on the liability question. As to damages the learned judge, as I have said, no doubt influenced by the plaintiff's demeanour, took a view of the plaintiff as a woman who lacked deceit or guile but was an honest witness. She had medical evidence which supported the necessary proposition that she had the disability of which she complained, URJ THE MAITLAND HOSPITAL v FISHER (No 1) (Mahoney JA) 3 that it would interfere with her capacity to work in the manner which she asserted and that it was causally linked to the accident which had befallen her. There was, of course, medical evidence the other way and it is true, as Mr Vincent points out, that there is some evidence from the plaintiff which suggests she could do things which in other passages she denied her capacity to perform. We have not been invited to look at the video, of which I do not complain. It may have been able of being regarded in a different way. What is important is that the judge took a particular view of it which happened to be supportive of the plaintiff's case, and consistent with the positive view he took of the plaintiff's credibility. No specific complaint is made by Mr Vincent of the computation of the various heads of damage. His submission is of a more general nature. It seems to me that once one arrives, as I do, at the conclusion that the learned judge's finding about the plaintiff's disability is effectively invulnerable, that must dispose of the particular attacks on the various heads of damage. I might merely say, in more detail, that the figure of $40,000 for damages for pain and suffering and the like seems to me, in the light of the learned judge's findings on disability, as reasonably modest. As a figure, given the background of those findings, it is not at all out of the range. The other heads challenged, of course, depend upon the medical conclusions, as I have said, and I need say no more about that. Consequently, with all respect to the argument which Mr Vincent has put to us with force and proper economy of time, I cannot see that the learned judge fell into any of the errors with which he was charged. Accordingly, I would dismiss the appeal, and as there may be a question of costs to be argued I will say nothing about that. Kirby P I agree. Mahoney JA I also agree. (Counsel addressed on costs. Counsel for the respondent sought an order that the appellant pay costs on an indemnity basis. Counsel for the appellant sought an adjournment to meet this application). KIRBY P: The orders of the Court are that the Court dismisses the appeal. However, it reserves the costs order to be made in the light of the application for indemnity costs. It provides to the appellant liberty to place a written submission before the Court on the application for indemnity costs. Such written submission is to be filed and provided to counsel for the respondent by 4pm on Thursday, 9 July 1992. The Court affords counsel for the respondent until Friday, 10 July 1992 at 4pm within which to reply. The Court will, in due course, announce its orders in relation to costs. Those orders are reserved. Appeal dismissed. Counsel for the Appellant: RA Vincent / K Osei Counsel for the Respondent: CT Barry Solicitors for the Appellant: PW Turk and Associates Solicitors for the Respondent: McClellands