CENTRAL COAST HOSPITALS and AREA HEALTH SERVICE v DRENNAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY, PRIESTLEY and POWELL JJA 30 May 1994, 30 May 1994 [1994] NSWCA 46 NEGLIGENCE — industrial accident case — fellow employee hoses down steps — whether negligent — whether material on which trial Judge could find negligence — HELD: (1) There was evidence on which trial Judge could find negligence; (2) normally a court requires expert evidence of alternative systems of work where it is alleged that a particular system of work is negligent. However in the present case a court did not require such evidence because it was entitled to use its ordinary experience and commonsense. Hamilton v Nuroof (Western Australia) Pty Ltd (1956) 96 CLR 18 applied; Australian Iron and Steel Ltd v Krestevski (1973) 128 CLR 66 distinguished. Handley JA This is a defendant's appeal in an industrial accident case arising out of an accident which occurred at Gosford District Hospital on 9 March 1983. The case did not come on for hearing before Wood J until 19 September 1990 and unfortunately the appeal to this Court had not come on for hearing until today. The trial Judge found that an employee of the hospital - one described in the evidence as "Ray" - a cleaner, had been guilty of a casual act of negligence in hosing down in an over enthusiastic manner some steps at the hospital leading to the catering office. The plaintiff was employed in the hospital as a porter and messenger and had walked up the flight of some six steps to the small landing at the door of the catering office at a time when the steps were dry, and so far as the evidence goes free of any hazard. Having completed a delivery he came out of the office. In the meantime Ray had, as I said, over-enthusiastically hosed down the steps and the landing so that these were - as one of the witnesses said - awash. The plaintiff slipped on the wet landing or perhaps on the top step, became airborne and fell heavily on his back sustaining serious injuries for which the trial Judge assessed damages in the amount of $498,397 after deducting substantial workers' compensation payments. Mr Maconachie QC for the appellant submitted that the trial Judge was in error in finding that the acts or omissions of the cleaner who had hosed down the steps constituted acts of negligence for which the appellant was vicariously liable. In particular he submitted that there was no material before the trial Judge on which he could decide that the accident was preventable by the exercise of reasonable care by the cleaner. Alternatively he submitted that the proper conclusion on the facts found was that the plaintiff had failed to establish that some other safer system was reasonably practicable and that its adoption would have avoided this accident. The accident occurred on a small flight of steps which led to the catering office. These steps were immediately adjacent to a dock area in the hospital which gave access to the kitchen behind which was adjacent to the cafeteria office. It seems 2 UNREPORTED JUDGMENTS that produce delivered to the hospital was unloaded from vehicles in the dock area and transported into the kitchen through another door and not up the steps and through the cafeteria office. When the plaintiff walked up the steps to the cafeteria office to effect the delivery Ray was hosing down the dock area. There was evidence both from Mrs Boulton and from the plaintiff that the dock area was regularly hosed down by a hospital cleaner at about this time every day. I am prepared to assume that it was reasonable for the cleaner to hose down the dock area because of the risk of spilled produce in that area. However there was no evidence or even suggestion in the cross-examination of the plaintiff or Mrs Boulton that produce had been dropped on the steps leading to the cafeteria office or trodden on to them. As I have said another door gave access from the loading area to the kitchen. There was also evidence both from Mrs Boulton and from the plaintiff that although the dock area was hosed down regularly it was not usual for the steps leading to the cafeteria office to be hosed down at the same time. In my judgment, this is important evidence both on the issue of negligence and on contributory negligence. Mr Maconachie relied upon the absence of evidence of the comparative risks of the steps being hosed or left unhosed. It is true that there was no evidence of the overall system for cleaning this area other than what may be inferred from the fact that the dock area was hosed down regularly each afternoon, while the steps leading to the cafeteria office were not usually hosed down at the same time. In many cases a court is unable to find that a system of work adopted by an employer or an act by a fellow employee are negligent without expert evidence that alternative systems or practices were practicable which would have prevented the injury to the plaintiff. However in my judgment the submission that a tribunal of fact could not find negligence in the present case lacks reality. A court does not require evidence to know that steps may be cleaned otherwise than with a hose. On the evidence it was not a regular feature of the cleaning operations in the general dock area for these steps to be hosed down. This means either that they were not cleaned by Ray at all as a regular practice or else he cleaned them by some other method, or at some other time. The Court - using its ordinary experience and common sense - is in a position to know that alternative cleaning methods were reasonably practicable for these steps involving the use of a broom or a mop instead of the hose. It follows that Mr Maconachie's submissions in favour of the employer necessarily fail. Even if, contrary to this view, one were to hold that hosing the steps was the only reasonably practicable method of cleaning them the Court could still find without evidence that some warning or some system involving the use of warning signs could and should have been used to warn persons in the position of the plaintiff that the steps he was about to move onto were very wet and dangerous. Even if this were not so, there is no reason why Ray could not have waited a short time for the plaintiff to leave before hosing the steps, or else positioned himself at the door of the cafeteria office to warn him as he approached. It has been clear at least since Hamilton v Nuroof (Western Australia) Pty Ltd (1956) 96 CLR 18 that in simple industrial accident cases a court is entitled to find negligence without evidence that the work could have been done in some other way which would have avoided the accident. \WFENTRAL COAST HOSPITALS and AREA HEALTH SERVICE v DRENNAN (Priestley JAB In the circumstances I conclude that the absence of any additional evidence in the case does not in any way undermine the judgment of the learned trial Judge on liability, and I would reject the appeal insofar as it challenged the finding of negligence. The only other ground of appeal challenged his Honour's finding that the plaintiff was not guilty of contributory negligence. I have no difficulty in rejecting this submission also. The plaintiff had, moments before the accident, walked up steps that were dry and across the dry landing at the top into the office. The evidence from both Mrs Boulton and the plaintiff was that it was not usual for the steps to be hosed down at that time. The plaintiff then stepped out of the office onto the wet landing and the wet steps and fell. There was no warning either from Ray or the employer. There was no reason for the plaintiff to believe that he would be stepping out onto extremely wet surfaces. I am unable in these circumstances to conclude that he failed to take reasonable care for his own safety in acting as he did. I would therefore reject the ground of appeal directed to the finding of contributory negligence. It follows in my opinion that the appeal should be dismissed with costs. Priestley JA I agree with Handley JA's reasons. The case appears to me to fall clearly within the category of those where common knowledge and ordinary experience are sufficient for a court to conclude that practicable alternative means were available to a defendant to avoid the foreseeable risk created by what the defendant actually did and which caused damage to the plaintiff. A case heavily relied on by the appellant employer in argument today was Australian Iron and Steel Ltd v Krestevski (1973) 128 CLR 66. This case indeed has some analogies to the present but also has significant differences which Mr Maconachie of Queen's Counsel acknowledged in the course of his submissions concerning the case. It also provides some help in approaching the present case. In Krestevski an employee whose job required him to work near a furnace in the steel works was injured when there was a sudden explosion of molten iron which injured him. The worker obtained a judgment against his employer at trial, and an appeal to this Court was dismissed. In this Court Jacobs JA delivered the principal judgment and Moffitt JA both agreed with him and suggested a further basis of liability as against the employer. Hope JA was the third judge. When the case reached the High Court there was some disagreement amongst the judges there about the proper analysis of the theoretical basis adopted by Jacobs JA. What seems to me, with respect, to be the most satisfactory explanation of Jacobs JA's approach is that of Mason JA, who said that it was evident and clear - that Jacobs JA was saying that: "On the evidence there was a negligent omission on the part of the appellant in that it adopted a system of work which placed the respondent in close proximity to the furnace without taking any protection (other than the supply of protective clothing) for the respondent's safety. His Honour thought in the circumstances it was evident that some albeit unspecified precaution could have been taken by the appellant which would have avoided the risk of injury to the respondent." (at 680). This was the critical point as Mason JA saw it in that case and is similarly the critical point in the present case, that is, was it open to the Court in Krestevski and was it open to the Court in the present case to hold, without evidence being specifically directed to the point, the risk of injury to the worker would have been avoided by some different method being adopted. 4 UNREPORTED JUDGMENTS Mason JA continued in Krestevski that he could not agree that in that case the conclusion was open to the Court without evidence and his reasons are, I think, instructive. He said: "The operations conducted by the appellant with the blast furnace were complex and technical. The feasibility of any particular precaution designed to protect the respondent from injury could not be determined in the absence of expert evidence identifying the precaution and, if it was a protective device in the nature of a shield or barrier, indicating how it could be installed in the vicinity of the furnace so as to protect the respondent, and at the same time allow the cycle of operations essential to the production of iron to continue on foot. Common knowledge and common sense alone could not breach this gap." (also at 680) What Mason JA said concerning the situation in that case to my mind affords a very sharp contrast to the situation in the present case. Without repeating what Handley JA has said, it seems to me quite clear that common knowledge and ordinary experience were sufficient for Wood J to come to the conclusion that he did in regard to the very simple and indeed rather commonplace situation readily understandable by any ordinary person as it stood in regard to the landing and steps which were the scene of the accident to the respondent in this case. To take a line from Hamilton v Nuroof (1956) 96 CLR 18 at 25-6 what took place when Ray hosed the landing and steps, when it was on the cards someone might immediately step on them, was "the sort of thing you would think might well arouse some degree of apprehension in any spectator of the operation." I agree with what Handley JA has said about contributory negligence and see no need to say anything further on that topic. In my opinion the appeal should be dismissed with costs. Powell JA I agree with the reasons which have been delivered by Handley JA and also agree with the additional reasons delivered by Priestley JA and I too would dismiss the appeal with costs. PRIESTLEY JA Following the Court's announcement that the appeal was to be dismissed with costs, Mr Barry of Queen's Counsel for the respondent asked that the costs order to be made on an indemnity basis, and he tendered documents showing that the factual requirements which trigger the Court's discretion to award such costs were fulfilled. The application was opposed, but the Court is of the view that this case falls into the general run of cases in which it is the Court's practice to award indemnity costs, and we make such order accordingly. The only observation we need to make in regard to what was said in opposition to the application concerns a remark by the appellant's counsel that such a costs order is a punitive one. The Court does not understand that to be the purpose of the rule and does not accept that description of its operation. Appeal dismissed. Costs awarded on an indemnity basis. Counsel for the Appellant: J Maconachie QC and J Griffiths Instructed by: Hickson Lakeman and Holcombe Counsel for the Respondent: CT Barry QC Instructed by: McClellands