Fisher v Department of School Education Western Region [2000] NSWSC 268

New South Wales Supreme Court

CITATION : Fisher v Department of School Education Western Region [2000] NSWSC 268 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20736/97 HEARING DATE(S) : 28 February 2000, 29 February 2000, 1 March 2000, JUDGMENT DATE : 6 April 2000

PARTIES : Lynette Joy FISHER - Plaintiff Department of School Education Western Region - Defendant JUDGMENT OF : Simpson J at 1

COUNSEL : Mr J Coombs QC with Mr P Arden - Plaintiff Mr M Gilbert - Defendant SOLICITORS : R J Nolan & Co - Plaintiff Moray & Agnew - Defendant LEGISLATION CITED : Workers' Compensation Act 1987 Luxton v Vines (1952) 85 CLR 352 CASES CITED : TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267 Figueroa v New South Wales Insurance Ministerial Corporation (unreported, 18 March 1998) DECISION : Verdict for the Plaintiff

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SIMPSON J

Thursday 6 April 2000

20736/97 Lynette Joy FISHER v DEPARTMENT OF SCHOOL EDUCATION WESTERN REGION Judgment

HER HONOUR : 1 The plaintiff claims damages for personal injury allegedly sustained by her on 21 August 1992 during the course of her employment with the defendant. She claims that her injuries were caused by the defendant's negligence. The defendant denies that it was negligent. Issues for determination are whether the plaintiff has established that the defendant was in breach of the duty of care it undoubtedly owed her; and, if so, the extent of the injury sustained. It is convenient to begin with the issue of liability.

LIABILITY 2 The plaintiff was employed by the defendant as a teacher of disabled children in a special unit at Dubbo in the central west of NSW. She had been so employed since 17 February 1988, although she had previously had intermittent employment of the same kind and at the same establishment. The children with whom she was working plainly had significant impairment of functioning both intellectual and physical, and imposed considerable demands upon the plaintiff's attention. Only six or seven children were ordinarily in the group with whom she worked, and she had the assistance of a teacher's aide. The classroom in which she worked was of the kind known as a demountable, made up of modules joined together to provide the required configuration. This particular classroom was made up of four modules. One of these provided a kitchen area equipped with a sink and facilities for providing meals for the children. The floor of this section was covered in linoleum or vinyl. Adjacent to the kitchen area was a storeroom, and next to that was a toilet. A series of photographs, marked Ex A, depict the area. Another section adjacent to the kitchen area appears to have been equipped for activities with the children. The floor of this section was carpeted. A metal strip ran along the line where the two modules and the different floor surfaces met. A number of other joins were also covered by such strips. By reason of what appears to have been either faulty design or inadequate materials, at least one of the strips (and possibly more) had a habit of detaching itself (or themselves) from the floor and lifting, causing an obvious hazard. Although it was common ground that at least one strip had this propensity there was some conflict in the evidence as to which it was. The plaintiff and others who worked in the area made a practice, when the strip(s) lifted, of using the heel of a shoe or some other convenient implement to re-attach it or them. There was evidence that on occasion the principal, Mr Rawson, used a hammer for the purpose. 3 During the morning of 21 August 1992 the plaintiff was at work as usual. Three or four tables had been pushed together in the kitchen area, on the vinyl floor. The tables were adjustable in height and they had been lowered to provide access for small children having morning tea. One of the smaller children had possession of a toy that belonged to another child who was known to be autistic. The child with the toy was sitting on the vinyl floor between the table, behind which was a chair, and the wall of the storeroom. The autistic child had become aware that his toy was in the possession of the other child. He was heading towards the other child in a manner that threatened violence. The plaintiff recognised that, having regard to the child's condition, speaking or calling to him would be unlikely to have any effect. She fixed her eyes upon him in the hope that, if he met her gaze, he would interrupt his path to the other child. At the same time she moved quickly from where she had been in order to protect the child in danger. Circumstances did not give her the opportunity also of looking at the floor, or where she was putting her feet. 4 Before she reached the child something happened that caused her to fall to the floor. Precisely what happened is critical to the question of liability. The plaintiff has no recollection of anything after she fell until several days later when she was recuperating at home. She was taken by ambulance to Dubbo Base Hospital, where she remained an in patient for four days. There is no direct evidence and the question has to be decided on the probabilities by inference from the other evidence in the case. The teacher's aide on duty that day, Ms Back, (who did not ordinarily work with the plaintiff) was in the toilet area off the main room attending to another child. There was, accordingly, no adult witness to the fall. Clearly none of the children could give evidence of what happened. In undertaking this exercise it is necessary to take care to avoid reliance upon mere conjecture. The plaintiff's case is that, although she has no recollection of the incident, by a process of inference it can be established that she tripped on the metal strip which must have lifted. The defendant's contention is that the plaintiff slipped on the vinyl floor and fell, probably backwards, or alternatively tripped on a child's toy or some other object, and that no negligence can be shown in the defendant's conduct.