TELFER v. BERKELEY CHALLENGE PTY. LIMITED [2000] NSWCA 24

New South Wales Court of Appeal

CITATION : TELFER v. BERKELEY CHALLENGE PTY. LIMITED [2000] NSWCA 24 FILE NUMBER(S) : CA 40100/99 HEARING DATE(S) : 15/02/2000 JUDGMENT DATE : 8 March 2000

PARTIES : VICKI LEE TELFER (Appellant) BERKELEY CHALLENGE PTY. LIMITED (Respondent) JUDGMENT OF : Mason P at 1; Meagher JA at 2; Powell JA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT DC 6264/97 FILE NUMBER(S) : LOWER COURT Patten DCJ JUDICIAL OFFICER :

COUNSEL : A.J. Leslie QC and M.J. Perry (Appellant) P.J. Deakin QC and L.G. Stone (Respondent) SOLICITORS : Steve Masselos & Co. (Appellant) Hickson Wisewoulds (Respondent) CATCHWORDS : Master and Servant - Liability of employer for injury suffered by employee - Duty of care - Safe system of work - ND DECISION : Appeal upheld.

12 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40100/99 DC 6264/97 MASON P MEAGHER JA POWELL JA

8 March 2000

TELFER v. BERKELEY CHALLENGE PTY. LIMITED

JUDGMENT

1 MASON P: I agree with Powell JA. 2 MEAGHER JA: I agree with Powell JA. 3 POWELL JA: This is an appeal from a Judgment delivered, and verdict found, by Patten DCJ in the District Court on 8 February 1999, on which day his Honour ordered that the proceedings which had been brought by the Appellant against the Respondent be dismissed with costs. 4 In those proceedings, the Appellant had sought to recover from the Respondent, by which she was, in October 1994, employed as a cleaner, damages in respect of injuries which she had sustained while carrying out work as a cleaner at the University of Newcastle, which injuries, so she alleged, had been caused by the negligence of the Respondent in (inter alia) exposing her to a risk of injury which could have been avoided by reasonable care. 5 The Appellant, who, in October 1994, was forty-one years of age and had been employed by the Respondent for some two years or so, was a very experienced cleaner, her experience extending to every aspect of cleaning including, in particular, stripping and polishing floors. 6 During the time when the Appellant was employed by the Respondent as a cleaner at the University of Newcastle by far the greater proportion of all floors in the University buildings had been laid with vinyl flooring, which flooring needed to be stripped and repolished on an annual basis. 7 No doubt because of the nature of the work carried out by the cleaners employed by it, the Respondent was accustomed to conduct courses directed toward safety on floors, which courses were directed (inter alia) to stripping and repolishing floors. Although, at the time of her applying for a position with the Respondent, the Appellant had indicated that she was experienced in stripping and repolishing floors, it would seem that, after she commenced her employment with the Respondent, the Appellant did attend the courses which were conducted by the Respondent's training managers. 8 On 4 October 1994, the Appellant returned to work following her vacation. When she did so she reported to the leading hand, Ms. Palmer, who directed her the clean the toilets and to remove the rubbish from the rubbish bins in the Geology Building and, to return to the Geology Lecture Theatre when she had finished doing so. 9 As best as one can judge it, the Geology Lecture Theatre appears to be about twenty metres wide and a little over fifteen metres from front to rear. At the front of the theatre there is a flat floor on which is situated a demonstration bench and a wall-mounted blackboard. Seats within the theatre are arranged on eleven tiers, seats in each tier being arranged in two banks separated by a central aisle, the banks being slightly curved to face the lecture podium. At each side of the lecture theatre is an aisle providing access to the banks of seats from the side. Each of the central aisle and the two side aisles is about one metre wide. Behind the top tier of seats is a further aisle which provides access on one side to a storeroom and on the other to stairs at the rear. Because of the curvature of the banks of seats on each tier, the aisle behind the uppermost tier ranges in depth from about two metres on each side to about one metre at a point opposite the central aisle. The tiers on which the banks of seats were arranged are stepped up 270mm each. In the aisle there are single steps 133mm high and 310 mm deep at the back of each tier. At the time, the floors, each of the tiers and the steps in each of the aisles were surfaced with 300mm square vinyl tiles, the edges of each tier and steps being fitted with plastic or rubber non-skid nosing strips about 60mm deep. 10 After she had finished cleaning the toilets and emptying the rubbish bins, the Appellant went to the Geology Lecture Theatre. When she did so, she saw in the theatre Ms. Palmer and six other women - including a Ms. Wellings - employed by the Respondent as cleaners. At the time, Ms. Palmer and Ms. Wellings were standing in the aisle behind the seats in the top tier. Having entered the theatre, the Appellant then ascended the centre aisle in order that she might ascertain from Ms. Palmer what task she was required to carry out. When the Appellant reached the aisle near where Ms. Palmer and Ms. Wellings were standing, she became aware that the two were arguing, Ms. Palmer apparently being dissatisfied with the stripping which Ms. Wellings had been carrying out in part of the aisle behind the seats in the top tier and between the left-hand side wall and the centre aisle. 11 After the Appellant had reached the top of the centre aisle, Ms. Palmer instructed her to commence stripping the polish from under the seats in the top tier, a task which involved applying a stripper and rubbing the vinyl with steel wool. However, although the Appellant commenced to carry out that task, within a short time, Ms. Palmer instructed her to leave off doing so, and to join her (Ms. Palmer) on the aisle behind the seats in the upper tier and to take "the slosh" of the floor. 12 The "slosh" is what is produced by the process of stripping the polish and sealant from the floor. In normal use, the stripping compound is applied in a diluted solution by mop to the surface of the floor to be stripped. The solution is then allowed to stand for a time - perhaps five minutes - to enable the polish and sealant to be softened or dissolved. Although when it is first applied the stripping solution is difficult to see because of the similarity of the glossy appearance of the liquid to that of the polished floor, after a time, as the layers of polish and sealant are dissolved, the solution develops a milky appearance and appears to bubble. As the polish and sealant dissolves the coating becomes very slippery about five minutes after the stripping solution has been applied. After the polish and sealant has been softened and dissolved it is mechanically agitated by means of a scrubber machine - in this case, a "Polyvac" machine - such machines being fitted with a vacuum extractor which sucks most of the dissolved polish and sealant from the surface when a sufficient loosening has been achieved. The "slosh" appears to be the residue of the dissolved polish and sealant left after the "Polyvac" machine has been used. That "slosh" appears then to be removed by washing the floor with clean water until all traces of the stripper, dissolved polish and sealant have been removed. 13 According to the Appellant, she understood that the area to which stripper had been applied and from which she was to remove the "slosh" was the area of the aisle behind the seats in the top tier for a distance of approximately 2 metres or thereabouts from the left-hand side wall towards the centre aisle. 14 After Ms. Palmer had instructed the Appellant to assist her (Ms. Palmer) by removing the "slosh", the Appellant then collected her bucket and mop, descended the stairs in the central aisle and went to the point where she could empty her bucket and wash her mop and refill it with clean water before returning to the Geology Lecture Theatre. When the Appellant reached that point there were a number of other women who were likewise emptying their buckets and washing their mops so that she had to wait for a time before being able to do so in her turn. Having done so, the Appellant then returned to the Geology Lecture Theatre. The estimates given by the Appellant as to the time which elapsed before she returned to the Geology Lecture Theatre varied from about seven minutes to fifteen minutes. 15 When the Appellant returned to the Geology Lecture Theatre, she noticed that there were four of the Respondent's employees in the theatre, they being Ms. Palmer, who was in the aisle behind the seats in the top tier and who appeared to be operating the "Polyvac" machine at a point about a metre or a little more from the left-hand side wall and three other women who appeared to be cleaning under the seats in the bank of seats in the top tier to the right of the centre aisle. The Appellant, carrying her bucket and mop, then ascended the centre aisle and, having reached the top landing turned left into the aisle behind the seats in the top tier. While the Appellant was ascending the centre aisle Ms. Palmer appeared to have been oblivious of her return to the Geology Lecture Theatre. However, as the Appellant turned left into the aisle behind the seats in the top tier, Ms. Palmer appeared to have become aware of the presence of the Appellant and called out a warning. By that time, so it would seem, the Appellant had reached a point a little beyond the first seat in the bank of seats to the left of the central aisle, at which point her feet slipped forward from under her so that she fell sustaining the injuries in respect of which she sought to recover in the proceedings. 16 It was not disputed on the hearing before Patten DCJ that the cause of the Appellant's slipping at that point was dissolved stripper, polish and sealant, the stripping solution having apparently been applied from the point which had earlier been reached to the point near the central aisle during the period while the Appellant was away from the Geology Lecture Theatre emptying her bucket, washing her mop and refilling her bucket with clean water. Nor does it appear to have been disputed at the hearing that no warning signs had been placed at the top centre aisle although there were available for use by the Respondent's employees warning signs - taking the form of a yellow triangle - which were kept in the cleaning cupboards of the various buildings in the University. 17 The principal evidence given on behalf of the Appellant at the hearing was the oral evidence of the Appellant herself - the Appellant being accepted by Patten DCJ as a witness of truth - and a written report (Exhibit "G") by Associate Professor D. H. Morton, formerly head of Department and latterly Honorary Visiting Fellow, Department of Applied Physics, University of New South Wales, whose report dealt with (inter alia) the effects of the application of stripper to acrylic - sealed floors. In his report (Exhibit "G") Associate Professor Morton, who was not cross-examined, expressed the following (inter alia) opinions: "5.1 The sealant polished dry vinyl surface of the lecture theatre probably would have been adequately slip-resistant for safe pedestrian use. 5.2 In the presence of a water based liquid such as stripper solution, and even more so once the stripper had begun to dissolve the old sealant from the vinyl, the floor of the theatre would have been treacherously slippery and dangerous. 5.3 The situation would have been made even more dangerous because of the unexpected reduction in grip from the reasonably safe dry floor to the slippery stripper wetted area. 5.4 The risk of injury to which Mrs. Telfer was exposed would or should have been readily foreseen. 5.5. A person without prior warning and walking with a normal level of care for their own safety would be quite unlikely to perceive the presence of patches of liquid stripper lying in their path on a vinyl floor. 5.6 There is no reason to consider that Mrs. Telfer's shoes were unsuitable for their purpose or would have contributed to the cause of the accident. 5.7 The danger could have been avoided by precautions normally used in the industry, of ensuring that the area being treated with stripped is sealed off from pedestrian use by warning signs or preferably by physical barriers. ……… 5.8 At the very least Mrs. Telfer could and should have been provided with visual or audible warning of the danger into which she was about to walk, with sufficient time to adjust her gait or to take evasive measures. …….."