COOTES v SHOEYS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, HANDLEY and POWELL JJA 19 April 1995, 19 April 1995 [1995] NSWCA 96 NEGLIGENCE — EVIDENCE OF — CONCLUSION OPEN TO JURY FACTS: Appellant appealed against finding of no negligence based upon lack of expert evidence. HELD: (1) In the absence of expert evidence only, the facts of the case might still leave open to the jury a finding of negligence ORDERS: (1) Appeal allowed; (2) Verdict and judgment below set aside; (3) Order a retrial on all issues; and (4) Costs of first trial to abide costs the second trial. Meagher JA This is an appeal from the verdict by direction given by Phelan DCJ in Newcastle on 14 April 1992. The plaintiff was a lady, Mrs Sharon Lee Cootes, who at the time was aged twenty-one and worked in the defendant's store. She was usually at the payout counter but on this occasion she was asked to do a job of which she had little prior experience, of stacking the dairy cabinet. The dairy cabinet consisted of four or five shelves, the top shelf being above her height. In order to stack the top shelf she had to stand on something and the way she did it was to stand on a ledge projecting from the bottom shelf, swivelling around, taking the goods from the trolley and then putting them, with her hand, on the top shelf. It is not to me altogether surprising that she found herself suddenly having slipped and landed on her buttocks on the floor. She sued for negligence and his Honour granted a verdict by direction on the grounds that there was no evidence of negligence. Certainly, no expert witnesses were called. It is also true, as Mr McIntyre pointed out, that she was unable to identify any particular reason why she fell. There was no evidence of the material of which the ledge was constructed nor was there any evidence before the jury as to the nature of the surface of the ledge. There was no evidence as to whether the ledge was wet or dry and there was no evidence that the ledge was in any way inherently hazardous. Mr McIntyre has also pointed out that she wore appropriate footwear with rubber soles and the floor of the supermarket was dry. The learned judge seemed to find of compelling importance the fact that there was no expert evidence to suggest that a platform or a ladder would have been a better base from which to start the stacking, as was suggested by counsel for the plaintiff. He pointed out that in some cases expert evidence is called to justify propositions of that nature. 2 UNREPORTED JUDGMENTS In my view, however, his Honour was clearly wrong. There was not only, in my view, evidence of negligence, there was abundant evidence of negligence and, one might also feel, compulsive evidence of negligence. The defendant could have supplied a ladder or a platform. In fact, after the accident took place the defendant did, in fact, supply a ladder. It is true, as Mr McIntyre has pointed out to us, that in one respect the use of a ladder would be slightly riskier in that it would possibly have involved a more dangerous angle for the plaintiff to stand on but, nonetheless, the jury might have reasonably felt that that additional risk would have been more than compensated for by the fact that the plaintiff would have had a much more secure base on which to stand. Indeed, quite apart from whether ladders or platforms could or should have been used, it seems to me that the jury might well have thought that to stand on a ledge, which in the photographs looks about two or three inches, was so inherently dangerous that the employer should not have permitted employees to do that. Whether Mr Ryan for the plaintiff submitted it or not to the jury, there is no particular reason why when designing the cabinet the defendant should not have designed it so that that ledge instead of being merely two or three inches could not have been eight inches or a foot. Indeed, one might go further. If it were impossible for some reason so to design the cabinet and if the use of ladders and platforms would be inherently dangerous, it might still be open for the jury to come to the conclusion that for the employer to insist on using the top shelf, which was normally out of reach of the plaintiff, was itself an act of negligence. In my view, the following orders should be made: The appeal allowed; verdict and judgment set aside; order there be a retrial on all issues; the respondent to pay the appellant's costs of the appeal; the costs of the first trial to abide the costs of the second trial. Handley JA I agree with the orders proposed by the presiding judge. The photographs admitted by consent at the start of the trial, showing the scene of the accident, although. taken some time afterwards, reveal the presence of aluminium step ladders stored next to the dairy cabinet. It is, of course, possible that those ladders were stored there but were used elsewhere in the shop. On the other hand, their presence next to the dairy cabinet supports an inference that they were for use in stacking that cabinet. That inference being open and the defendant having elected not to call evidence, the jury were entitled to draw the adverse inference against the defendant with greater confidence. There is nothing esoteric about the acquisition and use of a three step aluminium step ladder at the date of this accident in 1983. The fact that this change in the method of organising the work, made after the accident is not evidence of negligence but it shows what was possible at the time of the accident. The precaution was of an elementary and inexpensive kind and well within the common sense and practical knowledge of the jury and enabled them to conclude, if they saw fit, that the failure to provide such a ladder for the use by the plaintiff and those stacking the dairy cabinet at the relevant time was negligent. I also agree with the presiding judge that an inference was open to the jury based upon their examination of the photographs, that the provision of such a narrow step at the front of the cabinet on which staff had to stand to fully stack the top shelf provided an unsafe means of access to the working place for persons in the position of the plaintiff and that the failure to provide a more adequate step was also negligent. URJ COOTES v SHOEYS PTY LTD (Meagher JA) 3 Again, it seems to me that this was a matter which was open to the jury on the basis of their examination of the photographs in evidence and their common sense, bearing in mind the duty of the plaintiff and persons like her to fully stack the top shelf of the dairy cabinet. For those reasons, I agree with the orders proposed. Powell JA In this case the negligence assigned by the appellant against the respondent was a failure to take reasonable steps to provide a system of work which would be reasonably safe having regard to the dangers necessarily inherent in the work upon which she was engaged. In Neill v New South Wales Fresh Food and ice Pty Ltd (1963) 108 CLR 362 Taylor and Owen JJ said that there were two ways in which a plaintiff might establish such a failure on the part of his or her employer. Of those two ways the first and, for present purposes, the relevant one, was by the application of common knowledge. In such cases their Honours said, at 368: ".,. no more than common knowledge, or perhaps common sense, is necessary to enable one to perceive the existence of a real risk of injury and to permit one to say what reasonable and appropriate precautions might appropriately be taken to avoid it..." In the present case, so it seems to me, it required no great feat of imagination to determine that there was a risk inherent in the method which the plaintiff was required to undertake when stacking the dairy cabinet, which risk could be substantially reduced, if not totally obviated, by the provision for her of a stable platform, be it a ladder or a more elaborate form of platform, upon which, and from which to work. Since, in a case such as this, a judge may legitimately only rule upon an application for a verdict by direction after having regard to all the relevant evidence and since the relevant evidence for this purpose is all the evidence which is favourable to the plaintiff(see, for example, Hocking v Bell (1945) 71 CLR 430, 442-443 per Latham CJ), it seems to me that this is one of those cases where a verdict should not have been directed but the matter should have been allowed to proceed to trial. I agree with the orders which have been proposed by Meagher JA. Meagher JA The orders of the court, therefore, are the orders proposed by me earlier. (1) Appeal allowed; (2) Verdict and judgment below set aside; (3) Order a retrial on all issues; and (4) Costs of first trial to abide costs the second trial. Counsel for the appellant: ARMSTRONG AND PARTNERS Solicitors for the appellant: BJ GROSS QC/K RYAN Counsel for the respondent: HUNT AND HUNT Solicitors for the respondent: JA McINTYRE