Department of School Education Western Region v Fisher [2000] NSWCA 257

New South Wales Court of Appeal

CITATION : Department of School Education Western Region v Fisher [2000] NSWCA 257 FILE NUMBER(S) : CA 40345/00 HEARING DATE(S) : 12/09/00 JUDGMENT DATE : 12 September 2000

PARTIES : Department of School Education Western Region (Appellant) Lynette Joy Fisher (Respondent) JUDGMENT OF : Handley JA at 22; Powell JA at 27; Fitzgerald JA at 1

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT 20736/97 FILE NUMBER(S) : LOWER COURT Simpson J JUDICIAL OFFICER :

COUNSEL : A D M Hewitt SC / M G Gilbert (Appellant) J S Coombs QC / P R Arden (Respondent) SOLICITORS : Moray & Agnew - Sydney (Appellant) R J Nolan & Co - Dubbo (Respondent) CATCHWORDS : Negligence - slip or trip - ND DECISION : Appeal dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40345/00 SC 20736/97 HANDLEY JA POWELL JA FITZGERALD JA

TUESDAY 12 SEPTEMBER 2000

DEPARTMENT OF SCHOOL EDUCATION WESTERN REGION v FISHER

JUDGMENT

1 FITZGERALD JA: On the morning of 21 August 1992, the respondent was seriously injured in the course of her employment with the appellant. The respondent sued the appellant. The trial Judge gave judgment for the respondent for $1,286,163. 2 The appellant has appealed on the basis that the trial Judge erred in holding that it was negligent, and also in assessing damages for past and future domestic assistance "upon the basis of a need for 21 hours per week in circumstances where the evidence was that the respondent's need was in the vicinity of 12 hours per week which was the level of care which the respondent had received since the date of the accident and a level of care which was sufficient to meet the respondent's care needs". 3 The respondent has given a notice of contention which asserts an additional reason for supporting the trial Judge's conclusion that the appellant was negligent. 4 The respondent was a teacher of disabled children in a special unit at Dubbo. She and a teacher's aide who assisted her had responsibility for a group of six or seven children with significant intellectual and physical impairments. 5 The area in which the respondent and her assistant worked with the children was divided into four modules. From the entry, three of the modules, which contained the kitchen, storeroom and toilet facilities, abutted the left hand exterior wall. An activities module was to the right of the other modules. The kitchen had a vinyl or linoleum floor - I will refer to it as a vinyl floor - and the activities area was carpeted. Metal strips covered joints in the floor and between floor coverings. One metal strip covered the joint between the vinyl and the carpet where the kitchen and activities modules connected. Another metal strip ran from the left hand exterior wall near the kitchen sink, across the vinyl kitchen floor and the carpeted activities module. 6 While her assistant was with one of the children in the toilet module, the respondent was in the activities module and the other children, or some of them, were in the kitchen module. The respondent noticed that an autistic child had become aware that his toy was in the possession of another child and was moving towards that child. There was a risk that the autistic child would strike the child who had his toy. 7 The respondent considered that speaking or calling to the autistic child would be unlikely to have any effect. Consequently, she moved quickly to protect the other child. Her eyes were fixed on the autistic child in the hope of eye contact which would cause him to interrupt his progress towards the other child. She fell in the vicinity of the intersection between the metal strip which covered the joint between the vinyl on the kitchen floor and the carpet on the floor of the activities module and the metal strip which ran from the kitchen wall, across the kitchen floor and the activities area. As the respondent fell, she struck her left temple on one of the children's tables in the kitchen module. 8 It is not in dispute that something caused the respondent to fall. However, there was no direct evidence of the cause of her fall. The respondent could not recollect what had happened, and the only other persons present were the disabled children who, it is accepted, were unable to give useful evidence. 9 The trial Judge was required to determine, by inference from such matters as were established by evidence, the probable causes of the respondent's fall. The accepted alternatives are that she slipped or tripped. The appellant does not dispute its liability if she tripped but has informed the Court that it is accepted that it would not be liable if she slipped.