DIAN LEE y STATE RAIL AUTHORITY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, MEAGHER and CRIPPS JJA 22 October 1992, 14 December 1992 [1992] NSWCA 131 FACTS: Appellant works as train carriage cleaner and is injured. She claims that respondent was negligent in that it failed to warn her to wear safe footwear. Trial judge finds for respondent. On appeal, claiming she had proved footwear was unsafe and challenging the trial judge's exclusion of certain evidence. HELD:(per curiam) (i) The appellant proved neither that the footwear caused the accident nor that the accident would have been avoided had other footwear been worn instead. (ii) It is impossible to see that, even if all the trial judge's disputed rulings on evidence had been incorrect, the result would have been any different. Mahoney JA I agree with the judgment of Meagher JA and with the orders proposed. Meagher JA The plaintiff appellant, Miss Dian Lee, was in June 1981 working on a nightshift job for the respondent as a carriage cleaner. It was her duty to clean the exterior of the train and then the interior. The washing mixture was supplied by the defendant, the plaintiff applied it to whatever surface needed cleaning, and then one of the plaintiff's co-workers hosed that surface down. On the night in question the plaintiff and her co-worker were working from Platform No 10 at Punchbowl Car Shed. There was a gap of about 30 centimetres between the platform and the carriage which the plaintiff was cleaning, and the floor of the carriage was about four inches above the platform. On the evening in question the plaintiff fell between the platform and the train and suffered great injury. Neither the fall nor the injury is in issue. Exactly how the fall occurred is not quite clear. The version which the plaintiff gave in oral evidence is as follows: "Yes, I had done the cleaning outside and I had opened the doors up....and I had stepped into the train and I had stepped out again, because I had left my rags outside to do the windows with, and I stepped back in and my foot slipped off the doorway." She also gave slightly different accounts in various forms she had completed. It is not suggested that any difference in the accounts discredit the plaintiff. But the fact remains, as his Honour found, that at the conclusion of the evidence it was not clear exactly where her foot was when the slipping began. The plaintiff's case was that her accident was caused by the defendant's negligence. That negligence was said to be a failure to warn her to wear safe footwear, coupled with a failure to police a system whereby employees in her position did in fact wear safe footwear. There was no issue but that the defendant supplied her, in common with other employees, with two types of footwear: a "safety shoe" and a "gumboot". For the purpose of the above allegations, it seemed to be assumed that the ""gumboot" was "safe" and the "safety shoe" was not. Hence, the plaintiff's case became reduced to the allegation that the defendant should have warned the plaintiff on the evening of the accident, when conditions were wet, to wear "gumboots" and to have insisted that she did so. She was wearing her "safety shoes". 2 UNREPORTED JUDGMENTS The plaintiff slipped on (or across) the brass strip at the base of the door onto the carriage. The strip consists of a number of parallel serrations along its length. The plaintiff endeavoured the herculean task of proving that the co-efficient of friction between the "safety shoes" and the brass strip was below 0.4, which would indicate a reason for slipping. The experts called by the plaintiff demonstrated that if the "safety shoe" were run along the length of the strip in wet conditions its co-efficient of friction was 0.38, whereas 0.4 was usually regarded as a measure of safety. Three things must be observed about this; one is that the only evidence on the point is that to be merely 0.02 short of the mark was not to be regarded as "unsafe"; the second is that the test is pointless because the plaintiff in entering or leaving the carriage would be treading across rather than along the metal strip, and if the test were done on that basis the co-efficient of frictions was either 0.52 or 0.67, both well in excess of the widely held acceptable standard of safety; and thirdly, and most surprisingly in view of the way the plaintiff's case was proved, no comparable figures were supplied in respect of the "gumboot". Thus the plaintiff embarked on the task of proving that the "safety boots" were so unsafe that they caused the accident, and that the accident could have been avoided if "gumboots" had been worn instead, but succeeded in establishing neither proposition. Her case was not improved by the fact that, in any event, she knew that the "gumboots" were designed for use in wet conditions, as is evident from the following passage in her cross-examination: Q. You saw people wearing gumboots? A. Yes I did, but not everyone wore them. Q. You knew that they were issued to you because there was water used? A. That is right. Nor was it advanced by the uncontradicted evidence of a Mr Ronald Wall, who had worked with the respondent since 1963, that he had ever seen a person slipping when walking into a carriage stationed at the cleaning sheds. Further grounds of appeal related to the exclusion of evidence. One witness whose evidence on one aspect of the case was excluded was a Mr Anderson, whose expertise in any field was of the slightest. This gentleman had done certain tests on the effect of the "safety shoes" on certain surfaces, but not on metals. In effect, his Honour thought (not unreasonably) that his speculations on how the "safety shoe" performed on metal were outside his sphere of expertise. Another witness was a Mr Tozer who gave extensive evidence about all aspects of shoes, although scarcely qualified to do so; his Honour did not permit him to give evidence as to whether he had personally worn this type of shoe. Finally his Honour rejected the tender of certain photographs which, technically, had not been strictly proved. I find it impossible to see that, even if all his Honour's disputed rulings on evidence had been incorrect, the result would have been any different. In my view, the appeal should be dismissed with costs. Cripps JA I agree with the order proposed by Meagher JA and with his reasons. Appeal dismissed with costs. Counsel for the Appellant: AT McInnes QC with F Stevens Solicitor for the Appellant: Ian M Genge URJ DIAN LEE v STATE RAIL AUTHORITY OF NEW SOUTH WALES (Cripps JA) 3 Counsel for the Respondent: TJ Christie QC with GF Butler Solicitors for the Respondent: Creagh and Creagh