MARKOVSKA v ST GEORGE HOSPITAL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, CLARKE and POWELL JJA 10 December 1993, 10 December 1993 [1993] NSWCA 174 NEGLIGENCE — employer's duty — safe place of work — kitchen worker slips on floor which she recently washed and mopped — jury returns verdict for employer — expert evidence concerning "coefficient of friction" of floor — appeal — claim that verdict perverse — application for leave to add ground alleging misdirection on expert testimony — held: (1) The complaint about the suggested defects of the expert testimony, not having been reserved at the trial should not be allowed over opposition. Eggins v Brooms Head Bowling and Recreational Club Ltd (1986) 5 NSWLR 521 (CA) applied; (2) In any case, the directions on the expert testimony were adequate; (3) The verdict for the employer was not perverse or so unreasonable that the jury could not, weighing the evidence reasonably, arrive at it. Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; Metro Meat (Cootamundra) Ltd v Ricardo, Court of Appeal, unreported, 2 November 1993; [1993] NSWJB 115 applied; (4) Appeal, accordingly, dismissed. PRACTICE and PROCEDURE - Court of Appeal - grounds of appeal - additional grounds - jury trial - no application for redirection - whether additional grounds should be permitted - held: In the absence of an application for redirection and no relevant injustice being shown, the claim to add the grounds on the appeal should be rejected. Eggins v Brooms Head Bowling and Recreational Club Ltd (1986) 5 NSWLR 521 applied. ORDERS 1. Motion for leave to add proposed grounds 2 and 3 to the grounds of appeal dismissed; 2. Appeal dismissed; and 3. The appellant to pay the respondent's costs. Kirby P This is an appeal from a judgment entered by McDevitt DCJ following a jury verdict for the defendant. A kitchen worker loses her claim for damages Mrs Nada Markovska (the appellant) was the plaintiff at the trial. She brought a claim against her employer, St George Hospital (the respondent). The appellant was born in 1954, in what was then the Federal Republic of Yugoslavia. She came to this country in 1967. She worked first as a shop assistant and catering assistant. Such work was interrupted by pregnancy and the economic difficulties of her employers. But she had a good work history. In May 1977 the appellant began working for the respondent as a catering assistant. She provided relief work until March 1978. Her position was then changed to permanent part time catering work for the respondent. Her duties included the filling of urns and the packing of trolleys and cups used in hospitals to serve patients. She also had to set the table in the board room where doubtless the important people at the hospital went from time to time to enjoy its culinary delights. 2 UNREPORTED JUDGMENTS The appellant's main task, however, was catering work in and about the cafeteria. This involved packing the dishwasher, carrying food to the tables and generally assisting in hospital catering functions. The food which she carried could be contained in pots weighing up to 15 kilograms. At the end of her shift the appellant was required to clean the floor and mop up the area of the kitchen in the vicinity of the washing up area. The appellant liked her job. It was suitable to her domestic circumstances with young children at school. She gave evidence that she had no intention to retire from it at the time before she was injured. At the conclusion of the trial, after his summing up, McDevitt DCJ instructed the jury upon certain matters upon which the parties sought redirection, principally on the issues of negligence, contributory negligence and damage. His Honour agreed to give certain redirections on contributory negligence. By these, he made it plain that the onus of establishing that defence lay upon the defendant. He also gave redirection on the issue of damages. He was not specifically asked to give redirections on the issue of the expert evidence, to which I will shortly refer. The significance of that omission will shortly appear. The jury retired. They retired again after the redirections. They came back with a verdict in favour of the respondent. Belated application to add fresh grounds of appeal rejected The appellant has appealed to this Court. The original notice of appeal contained but one ground of appeal. This was that the verdict of the jury was perverse. However, upon the return of the appeal, the appellant gave notice of her intention to seek leave to add two additional grounds of appeal. These were that his Honour failed to direct the jury adequately on the effect of the expert evidence in the case and that his Honour had failed to direct the jury on the manner in which the expert evidence could be used by them. With the concurrence of the parties, the Court took the expedient of hearing argument on the suggestion that the two additional grounds of appeal should be added. It did not rule on whether it would permit the grounds to be added. There are difficulties in successfully maintaining grounds of appeal which challenge directions of the judge to a jury upon a matter upon which the judge has not been asked to redirect the jury. The principles which are applicable in such applications are to be found in the judgment of McHugh JA in Eggins v Brooms Head Bowling and Recreational Club Ltd (1986) 5 NSWLR 521 (CA), at 524. His Honour there disapproved of earlier expressions of mine in Mears v Coal and Allied Industries Ltd, Court of Appeal, unreported, 27 May 1986, [1986] NSWJB 159. I had there suggested that the ultimate principle was the right of a party to have a trial according to law upon directions which were legally accurate. In Eggins, Hope JA agreed with McHugh JA, as did Samuels JA. Eggins has been applied many times in this Court. Mears has been consigned to the insignificance that, so it was held, in law, it deserved. I therefore have to approach the application to add two new grounds of appeal bearing in mind the principles in Eggins, and the cases there cited, as well as the cases which have been decided since. The foundation for those principles is that there must be finality to litigation. Parties must be able to look to their lawyers to raise points, so that if they are good, the primary judge can correct any misdirection and save the trial. As [have said, no application was made at this trial to give the redirections that were sought before us. Being of the view that the failure of McDevitt DCJ to give those redirections did not cause any relevant miscarriage, it would be my opinion URJ MARKOVSKA v ST GEORGE HOSPITAL (Kirby P) 3 that leave to add the additional grounds of appeal should be refused. However, as the matter has been argued, I will, notwithstanding that opinion, deal in detail with the suggested added grounds of challenge to the changes to the jury given by McDevitt DCJ. To some extent it is necessary to do this to explain how I have come to the conclusion that no relevant miscarriage of justice has occurred. The appellant also complained about certain directions which were given by McDevitt DCJ on aspects of the trial which arose out of an award of the Workers' Compensation Commission. This matter, although mentioned in the written submissions, has not been addressed in oral argument, either by the appellant or by the respondent. Its relevance was to the damages to which appellant was entitled. Upon the premise that the appellant was not entitled to damages, in strict logic, the suggested misdirection on the estoppel does not arise for determination. However, I have not overlooked the fact that the appellant complains of an incorrect direction of the estoppel. I am inclined, on the written argument, to think that this was a valid complaint. It may have led the jury to consider that the case was smaller in its proportion than they might otherwise have thought, had the correct direction been given. Nevertheless, this is clearly a peripheral issue. So much is reflected in the way in which the parties presented their oral arguments in the appeal to this Court. Argument that the jury verdict was "perverse" or wholly unreasonable The principal question therefore becomes that which was raised by the original ground of appeal. This was put in the old fashioned way because counsel drafting it thought that such was the proper appellation. It was said that the verdict of the jury was "perverse". The principles to be applied are not in doubt. This Court must approach an application such as this by asking itself whether, at the end of argument and of submissions, the appellant has demonstrated that the verdict, and the judgment resting upon it, are clearly wrong. See Jones v Poore (1889) CLD 220. Perversity was the test expounded in Boyd v Boyd [1940] QSR 331 and in Demir, a decision of the High Court. More recently, the alternative formulation which was first used as long ago as 1886, has been given new authority in Australia. This test raises the question of whether the evidence so preponderates in a particular way that a verdict of the jury contrary to that preponderant evidence is clearly unreasonable and unjust, authorising the appellate court to set the verdict and judgment aside. The authority of the High Court for this approach is found in the recent decision on an appeal from this Court in Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33. At 41, Mason CJ says: "The correct principle is that a court on appeal may order a new trial if the jury has reached a conclusion which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favored by the jury that it can be said that the verdict is such as reasonable jurors could not reach ". References are made by their Honours to what Dixon J said in Hocking v Bell (1945) 71 CLR 430 at 440, 499. Reference is also made to what Stark J said there: "The verdict is not disturbed unless the jury, weighing the whole evidence reasonably, could not properly find it " Brennan J in his separate reasons in Calin, at 46, put it this way: "A jury is not bound to accept particular evidence or to draw an inference from particular evidence merely because there is nothing in the rest of the evidence plainly inconsistent with it A reasonable jury might have failed to be satisfied that 4 UNREPORTED JUDGMENTS the plaintiff slipped on a banana skin or might have refused to find that there was any want of reasonable care on the part of the defendant adopting the system it had for dealing with refuse dropped on the floor. " The question of whether Calin expressed a new or different principle was discussed in this Court in a recent decision in Metro Meat (Cootamundra) Ltd v Ricardo (unreported, Court of Appeal, 2 November 1993); [1993] NSWJB 115. That was also an appeal from the judgment which followed a jury verdict. In summary, the Court concluded that no different or new principle was established in Calin. It is a principle with which the Court is very familiar. It is a principle which accords with the restraint which is required of an appellate court which hears argument and studies transcript with necessary brevity but which also has a duty to consider the whole of the evidence itself. Contrast the jury which attends the whole trial, and is, (as is often said) the constitutional tribunal, with the responsibility to determine the disputes of fact on behalf of the community. The evidence as to the plaintiffs place of work The evidence at the trial in this case comprised that of the appellant and certain medical evidence, as well as the evidence of two experts, Drs Coyle and Adams. The appellant gave evidence that on the date of her injury, 3 August 1984, she had finished mopping the floor. She described what then happened: "Q: Could you just indicate to his Honour and the members of the jury what happened? A: Well, as I was doing my usual duties I was required to mop the floor and as I was mopping the floor had done the mopping and when I finished mopping the floor I was taking the bucket out and I accidentally slipped and fell on my bottom, excuse the expression. Q: (Shown exhibit B) Could you mark with the letter X the area where you say you fell (witness complied). In the area where you fell did you notice anything on the floor? A: Yes. Q: What was on the floor? A: It was wet. Q: Did you have any notice or knowledge that you were going to fall? A: No. Q: In terms of you approaching the area that you have marked X were you walking, running or just moving at a normal pace? A: A normal every day routine, walking through. Q: You had the bucket and the mop, is that right? A: Yes. Q: What sensation did you experience? A: Well as I fell on my back I felt a terrible pain and I had people help me, whoever was there. Did you have any warning that you were falling? No. Q: What short of shoes were you wearing at the time? Low heeled closed in shoes. Were they the type as recommended by your supervisors? Yes. Had you ever slipped in this area before? No. Did you receive any instructions from your employer as to the mopping procedures that had to be adopted in that area? QFOPFORPO URJ MARKOVSKA v ST GEORGE HOSPITAL (Kirby P) 5 A: Yes. Q: What were they? A: Only to take the mop and bucket and mop the floor. That was all." The appellant was asked about the procedures that were to be adopted in mopping the floor and performing the duties in question. She gave this evidence: "Q: Did you receive any instructions as to the procedures to be adopted in the mopping of the floor? A: Yes I did. Q: What were you instructed to use to mop the floor? A: Whatever was there in the kitchen that we usually mop with. Water and a little bit of detergent, whatever was there. Q: Were you given any instructions as to the method of mopping the floor? A: No. Q: That area, was that busy at the time you were mopping? A: Yes. Q: In what way? A: Normal shift all had to be finished. Everybody went to their own usual places to finish off their afternoon work. Q: What were they required to do? A: One had to be in the kitchen helping and the other had to be in the lounge, in the dining room, and the other people had to clean all the urns. In the cafeteria everybody had their roster. They were all rostered to do their duties. Q: Was there any movement in and out of the area depicted in exhibit B whilst you were mopping? A: Yes. Q: Why was that? A: Because that was the only way people could go forward and back to their normal duties. HIS HONOUR: Q: The only way they could go about their duties was to walk over the area you had mopped, is that it? A: That is right. Q: Had you been directed by your supervisor as to the way of mopping this area with safety? A: No". The appellant called a witness Mrs Nina Talevski. She was the appellant's supervisor. She also worked for the respondent. She had the overall control of the canteen. She said that she had given employees, such as the appellant, specific instructions as to how to perform the duty of mopping the floor and other duties. She was asked: "Q: Have you had the opportunity or have you experienced walking on this floor when it has been wet? A: All the time. Q: Have you noticed anything about it when it is wet? A: If you wear proper shoes I didn't notice nothing but if I don't wear proper shoes it is slippery. Q: Have you slipped on it? A: I tripped over I tripped over the cord. HIS HONOUR: Q: I'm sorry, I didn't hear that? A: I tripped over the cord and I had high heeled shoes I didn't have proper shoes on. MR WILLIS: Q: Have you ever slipped on this floor other than on this occasion? 6 UNREPORTED JUDGMENTS A: No, only then. When I tripped over the cord but I didn't have proper shoes on. It was my fault was not wet. Q: You are aware of other people having slipped on this floor aren't you? OBJECTION TO HEARSAY QUESTION REJECTED Q: Have you ever received reports of people slipping in this area? OBJECTION. QUESTION REJECTED Q: Have you seen anybody have difficulty walking on this area of the kitchen? A: No. Q: You have never seen anybody have any difficulty at all in relation to walking on this floor? A: They have difficulty, some of them, if they don't wear proper shoes. I said that before. Q: You have actually seen people have difficulty walking on this floor, haven't you? OBJECTION QUESTION REJECTED Q: Have you observed employees of the defendant walking in this area having difficulty with this area? HIS HONOUR: She has already said she has not seen anybody have any difficulty in walking on the floor. MR WILLIS: That is not what I understand his evidence was. HIS HONOUR: Further she says the only time I have ever seen anybody having difficulty is if they are not wearing proper shoes. MR WILLIS: Q: Have you had the need to report the state of this floor to the chief catering officer, Mr Nelson? OBJECTION ON RELEVANCE TO DATE IN QUESTION. QUESTION WITHDRAWN Q: Have you ever found it necessary to report the slippery nature of this floor to the chief catering officer, Mr Nelson prior to 3 August 1984? A: I did report it when Nada slipped on it. HIS HONOUR: Q: Only when Nada slipped over? A: Yes. MR WILLIS: Q: Have you reported the slippery nature of this floor to Mr Nelson, the catering officer, prior to August '84? OBJECTION AS QUESTION HAS BEEN ANSWERED A: Yes, I did report to Mr Nelson I reported to Mr Nelson when Nada slipped on the floor I rang him up straight away and he was down there in two minutes. Q: Have you ever reported the slippery nature of the floor on which the plaintiff fell prior to August "84? A: I reported. Q: Prior to August' 84? A: No". The evidence as to the instructions given to the plaintiff. The appellant then gave evidence that she had a certain experience in mopping of floors, as one would expect, not only in the course of employment but at her home. She said: "Q: So from some date in 1974 until December 1985, for those ten or eleven years did you mop the kitchen floor? A: Yes. Q: Was that on a daily basis? A: Usually, yes, as in all households. Q: Did you use detergent again to mop the floor? A: Could you put the question again please? URJ MARKOVSKA v ST GEORGE HOSPITAL (Kirby P) 7 Q: When you came to mop your kitchen floor did you fill up a bucket with water? Normally, yes. Did you use some detergent in the bucket? Yes. Did you apply a mop? Yes. To the bucket and to the floor? Yes. Did you ring the mop out? : Yes." She was fully aware of the need for care in walking over a floor recently mopped: "Q: When you mopped your floor, did you ever slip over at home? A: No. Q: Careful not to slip over, were you, when you were mopping the floor at home? A: Yes, I was careful. Q: Particularly careful, can we take it, when you were mopping or just after you had mopped the floor and the floor was still wet? A: Would you put that question again please? Q: Would you be particularly careful when you had to mop, when having mopped the kitchen floor at home you had to walk over it when it was still wet? A: Not at home Not in my house, you wouldn't have to walk on the wet floor in my own house, because I am the only person that would be mopping that room and I would leave that room for it to dry." The expert evidence: floor "co efficient of friction" I pass over the medical evidence of Dr David Cunningham, Dr James Ellis for the appellant and Dr Joseph Christie for the respondent. Reports of various other doctors were read, namely, from Drs Limber, Fuller and Vanderfield. These were relevant to the issue of damages. I need not address them. The other lay witness which the appellant called was Mrs Janet Cush. She had been a fellow worker of the appellant in the kitchen. She identified where the appellant fell. Save for something of a conflict between her evidence and that of the appellant concerning the direction in which the appellant was proceeding when she fell, I do not believe that Mrs Cush's testimony throws a great deal of light on the issue now before this Court. She recognised that the floor was wet. She recognised that when it was wet, it was necessary to be very careful. She knew that the floor became slippery because of detergents which were used in the course of mopping and cleaning the floor. Cleanliness is, of course, something not unimportant in a hospital, as all would know. All of this evidence was, in a sense self evident. However, Mrs Cush gave the evidence. She was followed by the evidence of Dr Ian Coyle. Dr Coyle's testimony is the subject of the second and third proposed grounds of appeal which the appellant sought to raise. He was put forward as an expert with special skills in examining and scrutinising the condition of floors having regard to what was described as a "dynamic coefficient of friction". I shall return in due course to consider the complaints which were made concerning the direction, or as it was put, lack of direction, given by McDevitt DCJ about the testimony of Dr Coyle and Dr Adams. Verdict not perverse: rational explanation of it. FOPOPOPOE 8 UNREPORTED JUDGMENTS For the moment I return to address myself to the primary complaint which is that the verdict which the jury returned was so unreasonable that this Court is authorised to set it aside. In my opinion the Court is not so authorised. The jury would have been entitled in the words of Brennan J in Cannon to take the view that, even bearing in mind the duties which are imposed on an employer to ensure a safe place of work for an employee, there was no want of reasonable care on the part of the respondent in adopting the system which it had for dealing with the relatively simple task of cleaning a hospital kitchen floor. At the trial, an earlier suggestion that the case could be mounted on an unsafe system of work was specifically withdrawn. The sole case which was argued was that the floor was inherently dangerous in the mopped and wet condition in which it was left and across which the appellant was obliged to walk when she slipped. The jury could have reached their conclusion upon the basis that common sense would have told them that, if a person mops a floor - any person, any employee - the floor will, for a time, be wet. It will, for a time, be slippery if detergent is used. These are the inherent dangers in the mopping of a floor in this way. The jury might have accepted, as it was open to them to do, that the supervisor, Mrs Talevski, had, as she said, told employees, such as the appellant, how to mop the floor and how to remove detergent and excess water from the floor. The jury could have accepted that the supervisor told the appellant not to walk on the floor when it was wet. It was open to the jury to accept the evidence of the supervisor that it was her instruction that the canteen area should be isolated for a little time after the mopping had occurred. This instruction was based not only on reasons of safety but also for reasons of cleanliness, and in order to prevent the necessity to re mop an area which had already been mopped. All of this evidence the supervisor gave before the jury. It was clearly open to the jury to accept that the directions described had been given. It might in this case have been the ultimate conclusion that there was simply no negligence on the part of the employer which called for a verdict of negligence in the common law damages action, and that this was a case which, in effect, was more appropriately dealt with under the Workers Compensation Act. The alternative view which the jury might have taken was this. They could have accepted the evidence of Mrs Talevski that the floor was not relatively slippery at the time that the appellant fell, at least if she were wearing flat shoes as instructed. McDevitt DCJ left that issue very clearly to the jury. He said in plain terms that it was open to them to accept that the floor was "treacherously slippery". This instruction certainly posed a test for the jury which was far from unfair to the appellant. Accordingly, on either of these approaches, I believe that it was not perverse for the jury to reach the conclusion that they did. Nor do I consider that the verdict which they reached was so inconsistent with the evidence or that the evidence preponderated in the direction opposite to the verdict, thus authorising this Court to set the verdict aside. That therefore leaves only the second and third suggested grounds of appeal. As I have indicated, it is my primary view that the appellant should not, at this belated stage, on the very eve of the hearing of the appeal, have the leave necessary to raise the grounds 2 and 3 as proposed. However, assuming against this opinion that it is appropriate, or elsewhere thought appropriate, to consider the suggestion that McDevitt DCJ gave inadequate directions on the expert evidence, it is necessary to state the fact that his Honour, on four occasions and over the space of five pages of recorded instructions, addressed the expert URJ MARKOVSKA v ST GEORGE HOSPITAL (Kirby P) 9 evidence. He did so, in terms which, in my opinion, were not relevantly inaccurate. Nor were they so inadequate as to require this Court to order a new trial for that reason. The principal directions given were these: "The next witness was Dr Coyle, the occupational consultant He told you about some impressive academic achievements and he is also an expert in psychology and ergonomics, and he told you that he conducted tests and he told you how he conducted the tests, trolleys and persons were moving in and out of the area He was told that the floor had remained unchanged since 1984, but it did have additional wear and tear over the last years, and you might think that is nol unreasonable. He also told you that it is constructed of vinyl tile, but considerably less glossy than it was new and more slippery He also gave you some evidence about the degree of slipperiness He said vinyl tiles when wet were more treacherously slippery Then there was the evidence about the coefficient of friction Perhaps you understand it, perhaps you don't Perhaps I don't understand it, but you heard what the evidence is and I can deal with it in the manner I told you; that you can accept il if you want, you can reject it if you want, you can accept part of it and reject part of it." As well his Honour said this to the jury: "The defendant called Dr Neil Adams and he also was an expert in ergonomics, and he spent quite a length of time on the coefficient of friction, and you might recall that he hadn't done the preview exact tests that Dr Coyle had done. He finished his evidence this morning, it was quite lengthy, you heard it. No doubt you have come to a conclusion, but it was suggested to Dr Adams that it perhaps not sufficiently sanitary or sterile and the Doctor quite fairly admitted that it was not within his own speciality and he didn't express an opinion." His Honour returned to the matter and said: "Dr Adams was then recalled and he completed his evidence about the co efficiency of friction. Dr Adams also said in answer to a question by Mr Willis: 'Foreseeability of slipping on wet vinyl floors must be regarded as moderate to high.' And the doctor agreed I must tell you again, members of the jury, that whether the presence of the risk was remote or fanciful is not for a witness to decide [but for you]. You decide those things. You are aided in the decision you must make by the evidence that you hear." The complaints were twofold. First it was said that his Honour had misled the jury by expressing his instruction in this way: "In any event, the Doctor did give you some evidence about what could have been done as an alternative. He said, first of all, you can coat the floor with an anti slip compound. He told you that would have been effective to remove the slipperiness and that would have cost between $250 and $300" - a misunderstanding of what Dr Coyle said. Dr Coyle actually said: "A. Based on those restricted set of assumptions, dealing with the wear and tear on the floor associated with people walking over it for a period of six years, the use of trolleys and the like, and considering the floor was a viny] tile structure, it is my opinion that the flooring surface would have been considerably less worn six years previously and would have in all probabilities, had a glossier finish and been more slippery, particularly when wet." 10 UNREPORTED JUDGMENTS The last passage related to the period of wear and tear. It does seem that there has been a minor misunderstanding of the facts by his Honour. However, I do not consider that it was significant. It falls far short of what would be required to warrant a retrial to avoid injustice. It was not the subject of an application for redirection. In the broad picture of this case, this passage did not loom large. More significant were the submissions that McDevitt DCJ failed to explain to the jury the nature of the relevant expert testimony, the large measure of concurrence in that testimony as between the evidence of Drs Coyle and Adams, and failed to lend the authority of his judicial office to the explanation which he gave to the jury concerning the significance of that testimony. Specifically, it was submitted that his Honour misdirected the jury by saying that it was in their own discretion to determine what they would make of the expert evidence. It was claimed that, because Drs Coyle and Adams were experts, that in some way, unless contradicted or challenged, the jury was bound to accept what the experts had said to them. It is always open for the jury to determine what they will make of the facts and to decide whether or not they will accept the testimony of lay or expert witnesses. The answers to the complaints which are made concerning the directions, or lack of directions, which McDevitt DCJ gave on the expert testimony are these. His Honour did draw the jury's specific notice to the "dynamic coefficient of friction". He did so on three occasions. The trial was a comparatively short one. It lasted effectively about two days. The evidence was therefore fresh in the jurors' minds, as doubtless would have been the arguments of counsel. The jury would have had a fresh impression of the experts. There was no relevant application for redirection concerning the use to be made of the expert evidence. There was no question from the jury as to the matter. Nor was there a request for any further direction by his Honour. Most fundamentally, the "dynamic coefficient of friction" was merely a scientific measure of the ultimate question which the jury had to consider in terms of the slipperiness of the floor. There was no doubt that, to some extent, a floor after mopping was bound to be slippery. A vinyl floor after mopping with water and detergent was particularly slippery, even "treacherously" so, as it was suggested. These facts were clearly left to the jury. It was also left to them to decide whether the "scientific" formulae of the experts added much to what common sense taught in any case. Conclusions: the verdict is sustained The jury, by their verdict, must be taken to have concluded that the floor was not so slippery as to have required a reasonably careful employer to have adopted any of the suggested alternative strategies which were put forward by the appellant at the trial to avoid that measure of slipperiness, which was said to be unreasonable. The jury by their verdict must be taken to have accepted, and preferred, the evidence of Mrs Talevski, the supervisor of the appellant, that when the precautions where the employer had instructed the workers to follow were observed, and flat shoes were worn, the floor was not relatively slippery in the sense of being or becoming an unsafe place of work. Upon that view, it was open to the jury to conclude that the employer had sufficiently discharged the obligations which the law of negligence imposed upon it in relation to the appellant. Orders The conclusions which I therefore reach are: URJ MARKOVSKA v ST GEORGE HOSPITAL (Powell JA) 11 1. That the motion for leave to add grounds 2 and 3 to the grounds of appeal should be refused; 2. That the appeals should be dismissed; and 3. That the appellant must pay the respondent's costs. Clarke JA I agree. This is not, in my opinion, a case in which it can be said that the jury could do nothing else than find in favour of the plaintiffs or appellant's case nor is it a case in which the only conclusion that the jury could reasonably arrive at was that the respondent had failed to exercise reasonable care. See Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 34 at 42 and 46. Evidence was given by a supervisor Mrs Talevski that she had walked over the floor on which the appellant fell on many occasions and that, provided she was wearing the proper shoes, the floor was quite safe. She said that if you didn't wear proper shoes it was a slippery floor. There was also evidence which she gave, and in which the appellant concurred, to the effect that the appellant had been instructed at all times to wear the proper shoes. The appellant thought, but she was not able to say certainly, that she had been wearing the proper shoes but the jury may well have not been satisfied on the state of the evidence that this was so and, more particularly, the jury may well not have been satisfied that in the light of this evidence the respondent had failed to act reasonably in all the circumstances. I agree with the orders proposed. Powell JA I agree and I do not think I could usefully add anything. Kirby P: The orders of the Court are accordingly that the motion to enlarge the grounds of appeal is dismissed. The appeal is dismissed with costs. 1. Motion for leave to add proposed grounds 2 and 3 to the grounds of appeal dismissed; 2. Appeal dismissed; and 3. The appellant to pay the respondent's costs. Counsel for the Appellant: BMJ Toomey QC Instructed by: Flannery Mura and Costello Counsel for the Respondent: MJ Neil QC / CK Stewart Instructed by: William K Chambers