New South Wales Court of Appeal CITATION: State of New South Wales v Oliver [2006] NSWCA 124 HEARING DATE(S): 15 May 2006 JUDGMENT DATE: 19 May 2006 JUDGMENT OF: Santow JA at 1; Tobias JA at 2; McColl JA at 3 DECISION: Appeal dismissed with costs. CATCHWORDS: NEGLIGENCE - prisoner on weekend detention - slipped on wet floor in toilet cubicle - floor left wet after cleaning - whether breach of duty of care - HELD - Yes. CONTRIBUTORY NEGLIGENCE - whether prisoner failed to keep a proper lookout - HELD - No. Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 Chung v Anderson [2004] NSWCA 321 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 CASES CITED: Romeo v Conservation Commission of the Northern Territory [1998] HCA 5;(1998) 192 CLR 431 Ellis v Home Office [1953] 2 All ER 149 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3;(1999) 73 ALJR 306 State of New South Wales v Napier [2002] NSWCA 402 The Owners of Strata Plan 63477 v Ross [2005] NSWCA 162 University of Wollongong v Mitchell (2003) Australian Tort Reports 81-708; [2003] NSWCA 94 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 PARTIES: State of New South Wales - Appellant Shane Oliver - Respondent FILE NUMBER(S): CA 40251/05 COUNSEL: D Davies SC and S Davis - Appellant I Harrison SC and R O'Neill - Respondent SOLICITORS: I V Knight - Crown Solicitor - Appellant Napier Keen - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 990 of 2004 LOWER COURT JUDICIAL OFFICER: Coorey DCJ LOWER COURT DATE OF DECISION: 17/03/2005 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40251/05 DC 990/04 SANTOW JA TOBIAS JA McCOLL JA Friday 19 May 2006 STATE OF NEW SOUTH WALES v OLIVER Judgment 1 SANTOW JA: I agree with McColl JA. 2 TOBIAS JA: I agree with McColl JA. 3 McCOLL JA: The State of New South Wales appeals from a judgment of Coorey DCJ awarding Shane Oliver $133,261.10 damages and costs in respect of an injury he allegedly suffered in a fall on 1 September 2001 while on weekend detention at the Parklea Periodic Detention Centre. The respondent had been attending Parklea on weekend detention since 30 June 2001. 4 The appeal challenges only the primary judge's conclusions on liability and contributory negligence. Statement of the Case 5 The respondent claimed he was injured when he slipped on a tiled floor while he was turning to close the door of a toilet cubicle, striking his right knee on the toilet bowl and bumping his head. After his fall he noticed a puddle of water and detergent on the floor and the pants he was wearing were wet on the right side. 6 The blow to his knee caused a chondral lesion with a full thickness chondral fissure, upon which an orthopaedic surgeon performed a chondroplasty in November 2002. 7 Mr Tolevski, a fellow weekend detainee, had cleaned the toilet/bathroom area that afternoon by pouring detergent obtained from a cabinet inside the toilet block on the floor, then scrubbing it with a broom. He then got a fire hose located just outside the door and hosed out the area. Mr Tolevski gave evidence that the floor would "slowly dry". He did not place any signs warning persons about cleaning because, in his view, "there was no problem". It might also be noted he said no signs were available, a proposition the appellant accepts. 8 After he slipped, the respondent called for assistance. Mr Tolevski heard his call and assisted him to the office of Mr Malone, a prison officer. Mr Malone went to the toilet block. He did not see "anything unusual". He did not see any puddles or dampness on the floor. 9 Mr Malone then took the respondent to Blacktown Hospital. On the way he asked the respondent what had happened, whether somebody had hit him and the respondent replied "No, chief … no, I slipped." 10 Blacktown Hospital's emergency department triage record in respect of the respondent recorded the presenting problem as: "Brought in fro [sic] Parklea Prison. Fell – off toilet bowl apparently the floor was slippery. Sustained injury to right knee." Handwritten notes on the same page recorded: "…fall onto toilet bowl – lunged forward with (R) knee hitting its anterolateral aspect on the edge of the toilet bowl – immediate pain, unable to support full weight." 11 The principal issues at the trial were whether the respondent had, in fact, slipped on a wet floor in the toilet cubicle, and, if so, whether in the circumstances the appellant was guilty of a breach of its duty of care. The appellant also contended that if the respondent succeeded on liability, he should be found to have been guilty of contributory negligence to the extent of 50 percent for failing to keep a proper lookout. The Primary Judgment 12 At trial the appellant submitted the respondent's case should be rejected for a number of reasons which the primary judge considered seriatim. 13 The first was that the respondent had given evidence of observing a puddle of water and detergent one and a half feet from the toilet bowl. The appellant submitted that if the respondent had slipped in that puddle his body would not have struck the toilet bowl. The primary judge rejected that submission saying: "The evidence is clear that the plaintiff slipped while he was turning and closing the door … even if there was a distance of more than a metre from the door to the bowl it would still have been possible for the plaintiff to slip and strike the bowl." 14 The appellant next contended that the respondent's evidence of how the accident occurred was irreconcilable with a version of the accident he had given to a Mr Mark Dohrmann, who appears to have been an expert who took photographs of the respondent demonstrating how the accident occurred. The appellant contended before the primary judge, and repeated in this Court, that if the respondent's demonstration of how the accident occurred as given to Mr Dohrmann was accepted, his left foot was near the cubicle door line immediately prior to the accident whereas, on the evidence he gave at trial, his left foot was in, or almost in, the puddle. 15 The primary judge rejected that submission. He accepted the respondent's contention that it was impossible for him to give precise measurements and point to exactly where his left foot was when he slipped. He said: "The simple fact is that the plaintiff's description of the accident shows that the plaintiff was in motion, he had to move to close the cubicle door and he had to turn his body. The reality is that we are not recorders [sic] but the plaintiff is clear that he slipped on the floor and after he fell he noticed that the right side of his pants were wet and he said that the puddle in the cubicle was about one and a half feet in front of the bowl." 16 The primary judge next rejected the appellant's argument that the only conclusion which could be drawn from Mr Tolevski's evidence was that by the time the respondent entered the bathroom the floor was either wet but safe - if he entered after 6.15pm - or completely dry and safe if he entered after 6.30pm. He said: "There is no suggestion that any person had measured the time taken for the cleaning liquid to dry on the date of the accident. The length of time for the liquid to dry depended on how much liquid was placed on the floor and it also depended on the weather conditions. The plaintiff said the floor was wet, there is no reason to reject his evidence. The evidence of the defendant's witness, Mr Malone, is understandably not precise about the events of the day. Mr Malone readily conceded he was not looking for puddles of water when he went to the toilet block, furthermore, he could not recall that the plaintiff went to the office after the accident in the company of Mr Tolevski. He recalls the plaintiff but does not recall that the plaintiff was accompanied by a person." 17 The primary judge next dealt with the appellant's submission that the floor was most probably dry when the accident occurred. The appellant had relied on evidence showed that the evening roll-call probably occurred at 8pm and the accident occurred thereafter so that, assuming the cleaning took place at 6pm, at least two hours elapsed between the time cleaned and the accident. He said: "It is impossible to know exactly what time the cleaning took place on the day of the accident. It is impossible to know precisely when the floor was dry. There is clear evidence that Mr Tolevski hosed the toilet floor on 1 September 2001. There is no evidence to prove precisely when the floor was dry." 18 The appellant relied upon the report of Mr Cowling, a civil engineer, to establish that even if the respondent had slipped in a puddle as he contended, it had not breached its duty of care. It argued Mr Cowling's report demonstrated the floor was not unreasonably slippery even when wet. The appellant also relied upon Mr Cowling's evidence as being consistent with the fact that there was no evidence of any other like accidents in the area, thus demonstrating the floor was not unreasonably slippery, or slippery at all. In rejecting that submission the primary judge said: "I accept the plaintiff's submission that Mr Cowling's report has very little weight. The solution of cleaning liquid which Mr Cowling referred to was not the solution used on the day of the accident. The plaintiff relies on Mr Cowling's statement that when this particular floor had either water or a combination of water and detergent on the floor the risk of slipping was moderate." 19 The primary judge then turned to the respondent's submissions. He accepted that the appellant's duty was to take reasonable care to prevent harm to the respondent. He then referred to the breaches of duty of care relied upon by the respondent being: "(a) The absence of any instruction or direction to cleaners to mop up the floor, bearing in mind that a mop was available. (b) The failure to erect any signs warning of the slippery nature of the surface. (c) The failure to ensure that any puddles of water were removed from the surface before allowing the facility to be used. In this context the failure of the guards when inspecting to ensure that the inmate mopped up the floor. (d) The failure by the employees of the defendant, namely, the guards to observe puddles when inspecting the toilet blocks." 20 Having recited that list, his Honour concluded his judgment on liability saying: "(4) I accept the plaintiff's submission that the removal of risk by the defendant would have been easy and with almost no financial cost. The defendant could simply have directed staff to ensure that the floor was mopped dry after hosing and placing a sign warning of the presence of water and detergent on the floor. (5) Having regard to all of the evidence and all of the submissions I am satisfied that the floor was wet in the cubicle when the plaintiff entered the cubicle and turned to close the cubicle door. I am satisfied that the plaintiff fell because of the slipperiness of the floor and suffered injury as a result of the fall." 21 His Honour then turned to contributory negligence. He accepted the respondent's submission that there was no evidence the puddle in the cubicle in which he fell was visible to a person in his position, that is to a person standing and turning to close the door "when he slipped". He said that the respondent's evidence was clear "that he did not see the puddle in the cubicle until after he slipped and fell to the ground." Submissions 22 The amended Notice of Appeal relied on seven grounds but the argument advanced by Mr D Davies SC who appeared on appeal for the appellant, but not at trial, with Mr S Davis was confined to four propositions: that the primary judge made erroneous factual findings and failed to make critical findings, that the primary judge ought to have accepted Mr Cowling's report, that the primary judge had not properly dealt with the question of breach of duty and that the primary judge had not made any, or any proper, findings on contributory negligence. 23 In order to address the first proposition, Mr Davies undertook a detailed examination of the evidence to establish that, having regard to when the floor was most probably cleaned and how long it most probably took to dry, it could not have been wet when the accident most probably occurred. 24 This first argument focused, in part, on the argument that because the primary judge had made no finding about when the accident occurred, he had misdirected himself as to whether the floor could still have been wet when the appellant contended the accident happened - after the evening roll call, about 8.10pm. Mr I Harrison SC who appeared for the respondent on appeal, but not at trial, with Mr R O'Neill accepted that the plaintiff's accident must have occurred after the roll call. 25 At trial the respondent gave evidence that the afternoon cleaning of the toilet area could be done as late as 6.30pm. Mr Tolevski said cleaning was done from about 4pm to 6pm. The Deputy Superintendent, Mr McPherson, said he did not believe cleaning was done later than between 3 and 4pm while Mr Malone denied it could have been later than 3.30pm. 26 The appellant tendered a Department of Corrective Services memorandum dated 8 November 2000 which dealt with the duties of toilet and shower sweepers. According to it the sweeper was to "sweep and mop both toilet and shower areas" on Saturday afternoons at 3pm. Mr Davies conceded that, having regard to Mr Tolevski's evidence about the use of the fire hose in the toilet and shower area, this memorandum was more honoured in the breach than observance. He submitted, however, that the weight of the evidence was that the toilet and shower areas were cleaned between 4 and 6pm. 27 Mr Davies next dealt with the evidence concerning the time the floor would take to dry. 28 The respondent said the floor could take two to three hours to dry on a fine warm day if the temperature was around 27 degrees – which Mr Davies fairly acknowledged would not have been the ambient temperature on 1 September 2001. Mr Tolevski gave evidence that the floor was "just left to dry" after he hosed it. He said "the tiles would sort of stay wet, the surface of the tiles, they don't just dry up like that". He could not remember if there were puddles. He was confident, however, that after fifteen minutes the floor "wouldn't be unsafely wet". Mr Davies also drew attention to Mr Tolevski's evidence that if he had thought there was a problem he would have asked for signs (presumably signs to warn the floor was wet). As I have pointed out, Mr Tolevski also said there were no signs. 29 Mr McPherson said that even on a cool day the floor of the bathroom became completely dry in half an hour or so. Mr Cowling said that, while undertaking tests on the tiles in the toilet, he noted that "the foaming cleanser tended to evaporate reasonably quickly" and heavy pooling he had deliberately created dissipated within about half to three quarters of an hour max. He also said the pooling was "obvious to the eye …". 30 Mr Davies submitted that on the weight of the evidence the floor would have been dry within a maximum of forty to forty five minutes. 31 On the basis of this analysis of the evidence, Mr Davies submitted that while the floor may not have been completely dry by 8.10pm, there would have been no puddles on it by then, so that the respondent could not have been injured in the manner found by the primary judge. 32 The appellant's alternative argument was that even if the primary judge had not erred in this respect, he ought nevertheless to have found that the appellant had not breached its duty of care having regard, in particular, to Mr Cowling's report. The appellant submitted that the primary judge had attached insufficient weight to that report and, in addition, appeared to have misapplied the report's conclusion that when the floor had either water or a combination of water and detergent on it, the risk of slipping was moderate. 33 Mr Cowling attended Parklea on 12 August 2004 to undertake slip resistance testing where the respondent alleged he had slipped and fallen. It is unnecessary to detail the tests Mr Cowling conducted. It is sufficient to observe that when he tested the floor using plain water as the lubricant, the contribution of the floor surface to the risk of slipping when wet was classified as "moderate". The same classification was derived from tests conducted when the tiles were flooded with the cleaning material used at Parklea and also after the cleaning solution had been mopped off, but while the surface was still damp. 34 Mr Cowling concluded his tests indicated that "when wet with the foaming agent solution, the surface was slightly more slip resistant than when wet with water alone." This appears to have been because the cleaning solution used was "an aggressive chlorine-based material" which did "not possess the sort of 'slippery' feel associated with the usual soapy or other pH-neutral detergents". 35 In Mr Cowling's opinion a surface recording of "moderate" indicated the tiles were suitable for use in the toilet area. He drew attention to a handbook published by the CSIRO and Standards Australia, table 2 of which would have classified the tiles at Parklea as Class "X" which, according to table 3, would be recommended for en suite areas in hospital and aged care facilities and for toilet facilities in offices, hotels and shopping centres. 36 The appellant submitted that in circumstances where Mr Cowling was not cross-examined and no contradictory expert evidence was adduced, his evidence ought not to have been dismissed so lightly, as it argued the primary judge had, or at all: Chung v Anderson [2004] NSWCA 321 at [137]. 37 It also relied, on the question of breach, on the fact that there had been no prior accidents in the toilet area: see Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431 at [78] per McHugh J, at [109] per Kirby J. 38 Mr Davies argued that the primary judge had impermissibly elided issues of preventability with what should have been done at the outset: cf The Owners of Strata Plan 63477 v Ross [2005] NSWCA 162 at [14]. He also submitted that his Honour had failed to refer expressly to the way a tribunal of fact might determine what a reasonable person would do by way of response to a foreseeable risk set out in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40. He contended the primary judge had failed to consider the issue of breach properly, or at all. 39 Insofar as his Honour found, on the issue of preventability, that the appellant ought to have placed a sign warning of the presence of water and detergent on the floor, the appellant submitted that it was not necessary the occupier warn of that risk because it was obvious to an entrant exercising reasonable care for his or her own safety: University of Wollongong v Mitchell [2003] NSWCA 94; (2003) Aust Torts Reports ¶81-708 at [33] per Giles JA; cf Meagher JA at [10]. 40 On contributory negligence, the appellant complained that the primary judge did not deal with matters relevant to the issue of whether the respondent kept a proper lookout such as the fact that he had seen a puddle in the adjoining cubicle, was familiar with the way the cubicles were cleaned and did not see the actual puddle on which the primary judge found he had slipped. It argued that his Honour ought to have found the respondent guilty of contributory negligence in the order of 50 percent. Consideration 41 In accepting that the appellant owed the respondent a duty of reasonable care, the primary judge referred to the respondent's counsel having relied upon State of New South Wales v Napier [2002] NSWCA 402 "to support its submission that the relationship between the plaintiff and the defendant creates a duty of care analogous to the established categories of employer/employee and occupier/lawful entrant." Mr Davies submitted that case was irrelevant because it concerned an action in negligence for the injury of nervous shock and related impairments. 42 The real significance of Napier was, no doubt, Mason P's discussion (at [66] - [75]) (with which Meagher JA agreed) of the duty of care owed by prison authorities to prisoners over whom they exercise control. It is unnecessary to refer to that discussion to the extent it considered the content of that duty in the context of prison authorities preventing harm stemming from the unlawful activities of third parties. It is sufficient to note that (at [73] – [74]) Mason P accepted that "the duty on those responsible for one of Her Majesty's prisons …[is] to take reasonable care for the safety of those who are within", citing Singleton LJ in Ellis v Home Office [1953] 2 All ER 149 at 154. Mr Davies did not contend that the primary judge's reference to Napier in terms indicating he may have thought the appellant was subject to a more stringent duty, had led him into error. 43 In order to find in the respondent's favour, the primary judge was required to determine that the circumstances raised "a more probable inference in favour of what is alleged": Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 304 per Dixon CJ. 44 The appellant's attack on the primary issue of liability was that the respondent's version of the accident should not be believed, first because of the alleged inconsistency between the version given to Mr Dohrmann and that recounted in his evidence and secondly, because on the timing of cleaning and the accident, the floor would no longer have had puddles on it. 45 The primary judge's assessment of the respondent's credibility was critical to his resolution of this submission. His findings can only be altered on appellate review if he failed to use or palpably misused his advantage, or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable, or was contrary to compelling inferences: Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. 46 In my view the appellant has not established that his Honour acted in a manner warranting appellate intervention. It was the case, as his Honour found, that it was impossible to know exactly when the floor was cleaned on the day in question and, more importantly, when puddles would have evaporated or when it was dry. Mr Cowling's tests were not conducted in the atmospheric conditions prevailing at the critical period on 1 September 2001. His observations of how long it took the floor to dry did not aspire to, let alone reach, the standard of incontrovertible or incontestable evidence required to disturb the primary judge's finding that the appellant's injury was suffered as he contended: Fox v Percy. There was, moreover, evidence from the respondent, which the primary judge plainly accepted, that there was a visible puddle of water in the adjoining cubicle, hence his use of the one next door (where it appears the water was not readily apparent) – thus indicating the floor was still wet at 8.10pm. 47 There may have been an apparent inconsistency between the version of the accident the appellant recounted to Mr Dohrmann and that recounted in his evidence, but the primary judge carefully considered that issue and resolved it in the appellant's favour in a manner which again turned on his acceptance of the respondent as a credible witness. There is no basis for this court to interfere with that conclusion. 48 Turning to the issue of breach, I do not accept that the primary judge failed to consider the question of whether the appellant had breached its obligation to exercise reasonable care for the respondent's safety. Mr Davies accepted that if the judgment was understood as accepting the respondent's submissions as to breach of duty of care, his Honour had discharged his obligation to consider that aspect of the case. In my opinion that is the proper interpretation of the judgment. His Honour was reciting the respondent's written submissions which dealt, in order, with content of the duty of care, breach then preventability. He expressly indicated he accepted the submissions on duty of care and preventability. It is clear, in context, that he also accepted the submissions about breach. 49 While his Honour did not expressly refer to Shirt in dealing with the issue of preventability, it is clear that he applied the approach set out in that case. 50 In my view the primary judge's conclusion that the appellant had breached its duty of care was correct. Mr Cowling's conclusion that the surface of the floor was rated a "moderate" risk of slipping when wet was, I accept, susceptible to misinterpretation. But even if it is accepted, as the tables to his report indicate, that such a surface was classified as suitable for use in toilet areas, including for the elderly that is not determinative of the issue of breach. It does not indicate there was no risk of slipping when the tiles were wet. 51 Nor are the views of the respondent's fellow inmate, Mr Tolevski, of any determinative utility. His main preoccupation appears to have been to prevent other inmates from entering the toilet area within 15 minutes after he had cleaned it to prevent it from getting dirty again. 52 The better evidence on the issue of breach is the appellant's memorandum instructing toilet and shower sweepers to mop the toilet and shower areas. Instead of ensuring that instruction was observed, the appellant had permitted a practice to develop which involved sluicing the toilets out with a fire hose after they had been scrubbed with detergent. No signs were erected to warn inmates of even the "moderate" risk of slipping which that exercise would have created. I accept that the fact no previous accidents had been reported was some indication that the probability of a fall was low (Romeo at [98]) however it must also be borne in mind that Parklea had only been open for less than a year as at September 2001 (it was opened on 12 September 2000 according to Mr Cowling's report) and, of course, slippery floors are notoriously dangerous. In my view there was clear evidence that the appellant had failed to act with reasonable care. 53 As to Shirt, the primary judge was correct, in my view, to conclude that, having regard to the magnitude of the risk and the probability of its occurrence, the measures which could have been taken to minimise the risk (mopping, warning) should have been taken. 54 I do not accept the appellant's submission that it did not have to erect warning signs because "the risk was obvious to an entrant exercising reasonable care for his or her own safety". There was clearly a risk that an entrant may not perceive a wet or damp floor because of the chameleon characteristic of water. That is, no doubt, why it is so common to see signs warning of wet floors. 55 Finally on contributory negligence, the appellant has not demonstrated that in the circumstances the respondent's conduct demonstrated a departure from the standard of reasonable care rather than an occasion of excusable, momentary inadvertence. 56 The appeal should be dismissed with costs. ********** 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.