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. …….." 18 In his Judgment, Patten DCJ said: "There is no doubt that the application of stripping fluid to a vinyl surface produces a dangerous situation of which the plaintiff was well aware. She described it as, 'When it's down it's like glass' and agreed that one needed to be 'very very careful of it'. There seems to be no doubt in this case that the slippery nature of the surface caused the plaintiff's fall. The question is whether that should be regarded as the responsibility of the defendant. ……… It is clear, I think, that although the Statement of Claim does not, in terms, indicate that the plaintiff was actually participating in the stripping and repolishing of the vinyl surface, she was in fact doing so, and apparently a number of employees, up to seven, were also similarly engaged. The plaintiff's claim under the Workers Compensation Act said, 'I slipped over on the floor which had stripper on it. I was helping to strip the floor.' There is of course no doubt that the defendant had a duty to provide the plaintiff with a safe system of work, but it is also clear I think that the ambit of that duty must be related to the competence and experience of the employees involved. In this case, although it no doubt came as a surprise to the plaintiff that an area of stripping had been carried out in the aisle so close to the stairs, the fact is that stripping had been, to her knowledge, carried out at a relatively short distance away on the same level. The task of those employees in the lecture theatre was, inter alia, to strip and repolish the floor, and the plaintiff was very experienced in the process of stripping and repolishing and of the dangers involved in that procedure. Taking those circumstances into account, I do not believe that the defendant had a higher duty to the plaintiff than that which it fulfilled, namely to make her aware of the fact that stripping was being carried out in virtually the precise area into which she walked. The plaintiff, in my opinion, simply failed to direct her mind to the operation which was in progress. I am not persuaded, having regard to the plaintiff's experience and knowledge, including her knowledge of the very operation being carried out that day, that it has been shown the defendant was in breach of its duty towards her." 19 Although a number of grounds of appeal were taken in the Notice of Appeal which was filed on behalf of the Appellant, the burden of the submissions advanced on behalf of the Appellant is revealed by the following grounds which were taken: "4. The Primary Judge's finding that the Opponent had no higher duty of care than to make the plaintiff aware of the fact that stripping was being carried out in the area into which she walked was erroneous. ……… 6. The Primary Judge should have found that it was not sufficient for the defendant to make the plaintiff aware that stripping was being carried out in the general area into which she walked. 7. The primary judge should have found that the opponent had a duty to warn the claimant of the precise danger to which she was exposed." 20 While accepting that, as the Appellant's employer, it was under a duty to take all those steps which were reasonably open to it in the circumstances to protect the Appellant from the dangers involved in her activities as a cleaner without unduly impeding the carrying out of those duties, the Respondent's case was that, in the circumstances, the Appellant being an experienced and competent cleaner, who had been given appropriate instruction in courses conducted by the Respondent as to the proper method of carrying out her duties as a cleaner and who knew that the process of stripping and repolishing was being carried out in the area of the Geology Lecture Theatre in which she was required to work, nothing more was required of the Respondent to fulfil the duty cast upon it. 21 While I accept that other minds may differ, I have concluded that, in the present case, the Respondent did fail in its duty as an employer to take reasonable care for the safety of its employees and, in particular, the Appellant, by (inter alia) failing to establish and maintain what was, in all the circumstances in the case, a safe system of work. 22 Although the phase "system of work" might suggest that the obligation to provide a safe system of work exists only in relation to an operation of a permanent and continuous nature, the obligation is not so limited, but extends to any operation which may be carried out from time to time under various conditions which might call for modification of the system, and to an operation being undertaken for the first time and which may or may not be intended to be repeated. Whether or not, in any particular case, an employer will be required to lay down the manner in which an operation is to be organised and carried out and, if so, whether what the employer has done in the circumstances is to provide a safe system of work, is a question of fact depending on all the circumstances of the case. 23 Because this is so, an employer is not absolved from the duty to provide a safe system of work because his men are experienced and should be capable themselves of devising a system which does not expose them to risk, for if there be any real risk, the employer cannot escape the duty of care imposed on him by the relationship of employer and employee. However, where what is in issue is a simple operation, such as the use by a tradesman of his tools of trade (Commissioner for Railways (NSW) v. O'Brien (1958) 200 CLR 211), or the carrying out of an occasional task of a simple character which does not involve any real risk if ordinary care is exercised (see, for example, Electric Power Transmission Pty. Limited v. Cuiuli (1960) 104 CLR 177) there is likely to be little need for the establishment of a system of work. 24 In determining whether, in the particular circumstances of the case, he is obliged to lay down a system of work, and, if so, what that system should be, an employer is required to take into account the possibility of inadvertent and negligent conduct on the part of others including, in particular, his employees (see, for example, McLean v. Tedman (1984) 155 CLR 306, 312; see also Sungravure Pty. Limited v. Meani (1964) 110 CLR 24, 36; Ferraloro v. Preston Timber Pty. Limited (1982) 66 ALJR 872, 873). 25 Finally, it is to be observed, that, where an employer's obligation requires him to establish a safe system of work, his duty is not discharged by his so doing; rather, his duty extends to maintaining and enforcing that system (McLean v. Tedman supra at 313; Bankstown Foundry Pty. Limited v. Braistina (1986) 160 CLR 301, 309). 26 An employee who sues his employer for damages for negligence causing injury at work is not entitled to have a verdict upon his claim unless there is evidence that the employee's injury was caused by the failure on the part of the employer, or those for whom the employer was responsible, to take reasonable care for the safety of the employee (Australian Iron and Steel Limited v. Krstevski (1973) 128 CLR 666, 667 per Barwick CJ, Menzies J). Except in cases in which the doctrine of res ipsa loquitur may be invoked, it is necessary that there should be evidence which directly establishes negligence or from which negligence may be inferred. 27 Although there may be cases in which no more than common knowledge, or, perhaps, common sense, is necessary to enable one to see 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 (see, for example, Hamilton v. Nuroof (WA) Pty. Limited (1956) 96 CLR 18; Nelson v. John Lysaght (Australia) Limited (1974-1975) 132 CLR 201), in the normal course, where the negligence asserted against the employer is a failure to provide a safe system of work, the employee is required to provide evidence that the employer unreasonably failed to take measures, or to adopt means, reasonably open to him in all the circumstances, which could have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment (see, for example, Neill v. NSW Fresh Food & Ice Pty. Limited (1962-1963) 108 CLR 362; Vozza v. Tooth & Co. Limited (1964) 112 CLR 316). 28 What seem to me to be the important findings which were made by Patten DCJ are: 1. the application of stripping fluid to a vinyl surface produces a dangerous situation; 2. it was the slippery nature of the surface caused by the application of the stripper solution which caused the Appellant's fall; 3. the Appellant was not aware of the fact that, during the time when she was out of the Geology Lecture Theatre, stripping fluid had been applied to the floor in the aisle to a point adjacent to the central aisle; 4. the Appellant had failed to direct her mind to the possibility that during her absence the process of stripping might have progressed so far. 29 As these findings make clear, the work of stripping and repolishing a floor such as that in the Geology Lecture Theatre was such as to expose others, be they students or members of the general public or employees of the Respondent, to the risk of potentially serious injury if as the result of a failure to warn students or members of the general public, or of inadvertence on the part of one of its employees, one or other of them might move onto the floor after the stripping solution had been employed. At the time there was readily available to the Respondent a means - the placement of the warning signs to which I have earlier referred - which would have alerted students or members of the general public to the potential danger, or would have prevented its employees from inadvertently moving onto the floor in an area where the stripper had been placed. The placement of such signs at the top of the central aisle and at the top of the aisles on each side of the lecture theatre would have been a simple enough task and would not have interfered unduly with the carrying out by Ms. Palmer and the other members of her cleaning team of the task of stripping and repolishing the vinyl floor. 30 In all the circumstances, therefore, as I have previously indicated, it seems to me that the Respondent did fail in its duty to take reasonable care for the safety of the Appellant and, that being so, I conclude that the appeal should be upheld. 31 I propose the following Orders: 1. ORDER that the appeal be upheld. 2. ORDER that the verdict found, and Judgment entered, in the District Court in favour of the Respondent be set aside. 3. ORDER that, in lieu thereof, there be found a verdict and Judgment entered in the District Court in favour of the Appellant for damages to be assessed. 4. ORDER that the proceedings be remitted to the District Court for the assessment of damages. 5. ORDER that the Respondent pay the Appellant's costs of the trial and of the appeal. 6. ORDER the costs of the hearing as to damages be reserved to the Judge conducting that hearing. ***** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.