Miletic v Capital Territory Health Commission [1995] HCA 13; (1995) 130 ALR 591; (1995) Aust Torts Reports 81-356; (1995) 69 ALJR 675 (16 August 1995)

HIGH COURT OF AUSTRALIA

RITA MILETIC v CAPITAL TERRITORY HEALTH COMMISSION

F.C. 95/029

Number of pages - 5

[1995] HCA 13; (1995) 130 ALR 591

(1995) Aust Torts Reports 81-356, (1995) 69 ALJR 675

HIGH COURT OF AUSTRALIA

BRENNAN, DEANE, DAWSON, GAUDRON AND McHUGH JJ

CATCHWORDS

HEARING

CANBERRA, 8 March 1995

16:8:1995

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Full Court of the Federal Court and in lieu thereof order:

(i) Appeal allowed with costs;

(ii) Set aside the orders of the Supreme Court of the

Australian Capital Territory and in lieu thereof order

that judgment be entered for the plaintiff with costs;

(iii) Remit the matter to the Supreme Court of the Australian

Capital Territory for a hearing limited to damages.

brought an action in negligence against the respondent, the Capital Territory Health Commission ("the Commission"), in the Supreme Court of the Australian Capital Territory claiming damages for injuries sustained in the course of her employment with the Commission. Her action was dismissed. An appeal to the Full Court of the Federal Court of Australia was also dismissed. She now appeals to this Court.

2. Mrs Miletic sustained her injuries when, as part of her duties as a housemaid, she was cleaning rooms in the nurses' quarters of the Royal Canberra Hospital. On the occasion in question, she moved a bed out from a wall and then swept and washed the linoleum floor behind the bed. The bed was on castors. She went to push the bed back, but encountered resistance. She pushed harder and, as she did so, her feet went backwards from under her and she fell forward, injuring her outstretched right thumb, right arm and shoulder.

3. Although Mrs Miletic's claim was particularized in various different ways, the essence of her case at first instance was that her injuries were caused by the jamming of the castors on the bed in the nurses' quarters and that the Commission failed to provide a safe place of work by failing to maintain the castors on a regular basis. Apart from medical evidence, her case comprised her own evidence, the evidence of a fellow worker, Mrs Sdojadinovic, and that of an engineer, Mr Simpson. The Commission elected not to call any evidence.

4. Mrs Miletic gave evidence as to the circumstances of the accident and the nature and extent of her injuries. In her evidence, Mrs Sdojadinovic said that she had been employed as a housemaid by the Commission since 1976 and that her duties extended to the cleaning of the rooms in the nurses' quarters. She also said that the housemaids were required from time to time to move beds in the rooms, sweep and wash the areas behind the beds and, then, push the beds back. There were occasions, she said, when the beds could not be moved "because wheels no working". When that happened, she said, she left the bed where it was and told her supervisor and "maintenance come in and help me move the bed".

5. Mr Simpson was called as an expert witness on the subject of ball bearings and castors. In a written report which was tendered in evidence, Mr Simpson said that it was "normal within Industry generally to regularly maintain wheels, castors and the like". In oral evidence, he said that the problem of sticking or jamming castors was "well known throughout the industry generally", and that it was easily overcome. He was not questioned as to "the industry" of which he spoke and it is possible that he was speaking of industry generally(1). He said the most common cause of the problem was threads of dust, but acknowledged that rust could also cause jamming. His evidence was that the problem could be avoided by the application of oil from an oil can, or by the application of a penetrating lubricant from an aerosol can, to the swivel and axle of the castors. The simple solution, he said, was "(a) squirt of WD40 from a(n) aerosol can, using the long thin plastic pipe that you get with them". That was so, he said, because it had the double effect of lubricating the rolling or sliding surface and of blowing out dust and dirt which is also partly washed out by the spray. There was no evidence whether the castors in question were made of metal or polycarbonate, but the clear inference from Mr Simpson's evidence was that, whatever the material, the regular application of a penetrating lubricant in the manner described would prevent jamming.

6. At first instance, the trial judge (Higgins J) clearly proceeded on the basis that Mrs Miletic fell and suffered injury by reason of the jamming of the castors on the bed in the nurses' quarters, although there was no precise finding to that effect. However, there was a finding that Mrs Miletic "failed to demonstrate that the risk of the kind of occurrence described by her was reasonably foreseeable"(2) and it was for this reason that her action was dismissed. In addition, his Honour found that, even if there was a foreseeable risk, "there (was) nothing to suggest that the (Commission) should have done anything more about it than it did"(3). It is not apparent that the Commission did anything more than that to which Mrs Sdojadinovic deposed, namely, send a member of the maintenance staff to assist in moving the bed when the problem was reported. However, his Honour seems to have thought that, when a report was made, "a maintenance man would come and attend to the bed"(4).

7. On appeal, the Full Court of the Federal Court (Northrop, Miles and French JJ) also proceeded on the clear basis that Mrs Miletic fell when the castors jammed on the bed she was trying to move. In a unanimous judgment, their Honours found, contrary to the finding of Higgins J at first instance, that there was a foreseeable risk that "a bed might unexpectedly jam ... and that consequently (a) cleaner might fall and suffer injury". In this, their Honours were clearly correct, as was conceded in this Court by counsel for the Commission. However, their Honours dismissed the appeal because, in their view, the trial judge was correct in his alternative finding that Mrs Miletic had not proved that the Commission's "conduct was unreasonable". This was so, in the view of the Full Court, because of "the low degree of probability of the kind of occurrence, the unlikelihood of serious injury resulting from it, and the further unlikelihood of the suggested obviating measures being of any practical effect".

8. There are two difficulties with the approach taken by the Full Court on the question of reasonableness. The first concerns their Honours' finding of "the unlikelihood of serious injury". That finding has to be considered in the context of their Honours' earlier and correct finding that there was a foreseeable risk that "(a) cleaner might fall and suffer injury" when trying to move a bed with jammed castors. Clearly, not every fall results in serious injury. However, the incidence of serious injury as the result of falling or slipping is such that there is no warrant for their Honours' finding as to its unlikelihood in this case.

9. The second difficulty concerns their Honours' finding that it was unlikely that "the suggested obviating measures (would be) of any practical effect". This finding seems to have been based on a misunderstanding of Mr Simpson's evidence rather than its rejection, particularly as no cross-examination was directed to this issue. Moreover, the only part of Mr Simpson's evidence that the Full Court indicated might properly have been rejected by the trial judge was that going to the general practice of maintaining wheels and castors within industry - evidence that had no bearing on the practical utility of the suggested measures.

10. In finding that the measures suggested by Mr Simpson lacked practical utility, the Full Court noted that, if the castors were made of metal, "there was no evidence of any likely corrosion", and if made of polycarbonate, "it was not made clear that lubricating oil would have been of any use at all". Their Honours also noted that it was suggested, presumably in argument, "that the use of oil was likely in any event to attract dust and dirt, one of the possible causes of jamming". These statements cannot stand with Mr Simpson's evidence that the most common cause of jamming castors was threads of dust and that if a penetrating lubricant were applied using an aerosol can with a long thin pipe it would "not only lubricat(e) the rolling or sliding surfaces, but also (blow) out dust and dirt which is also partly washed out by the spray". Nor, in our view, is there any basis for rejecting that evidence. Thus, the present case must be decided on the basis that the suggested measures would have had the effect which Mr Simpson claimed.

11. It is clear that the question whether a reasonable person would take steps to avoid a foreseeable risk of injury to another is to be answered by balancing "the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities" which may exist(5). The Full Court should have undertaken that exercise by having regard to the possibility of serious injury and to the simple and inexpensive nature of the maintenance procedures which, according to the evidence, would have provided an effective solution to the problem of jamming castors. These considerations were properly to be balanced against the low degree of probability of an accident occurring as a result of the castors jamming. However, having regard to the nature of the duty involved, namely, to provide a safe place of work(6), that balancing exercise can only result in the conclusion that a reasonable employer in the position of the Commission would have maintained the castors on its beds in the manner suggested by Mr Simpson. The Full Court erred in finding otherwise.

12. It was argued for the Commission that, even if the Full Court erred in its finding on the question of reasonableness, the appeal should nonetheless be dismissed because the evidence was insufficient to establish a case in negligence. It was put that the evidence did not establish that the castors jammed on the occasion in question and, if it did, it did not establish that jamming resulted from threads of dust. It was also put that the evidence did not establish that the Commission failed to maintain the castors.

13. The argument that the evidence was insufficient to support a finding that the castors jammed was made by reference to the evidence of Mrs Miletic that "when I push the bed back then I felt the wheels were stuck in the rug, or jammed, I don't know what is it, then I fell over". It seems that Mrs Miletic was describing the sensation she experienced before falling, not the state of her knowledge as to the cause of the bed's resistance at the time of giving evidence. Moreover, she also gave evidence of the practice of removing mats before cleaning the floor. As there seems to have been no real contest on the matter at trial, the evidence of Mrs Miletic, along with that of Mrs Sdojadinovic, was clearly sufficient to support a finding that she fell and sustained injury when the castors jammed on the bed she was trying to move. That finding is implicit in the approach of the trial judge and, also, in the approach of the Full Court and there is no reason for it to be set aside.

14. It is a short step from a finding that the castors jammed when Mrs Miletic tried to move the bed to a finding that they jammed because of the presence of threads of dust. Indeed, as the only evidence was that threads of dust were the most common cause, that step is inevitable. And although there was no direct evidence on the question whether the Commission had a regular maintenance program, the evidence of Mr Simpson that the solution to jamming castors was the application of oil from an oil can or a penetrating lubricant from an aerosol spray can was capable of establishing by inference and on the balance of probabilities that the castors were not maintained in either of these ways.

15. The inference that the castors were not regularly maintained by the application of oil or a penetrating lubricant was clearly drawn by the trial judge in his finding that "there (was) nothing to suggest that the (Commission) should have done anything more about it than it did", which, according to the evidence, was to send a maintenance man to help move the bed when it was reported that the castors had jammed, but which his Honour thought involved his attending to the problem. Although his Honour's finding cannot stand in its entirety, there is no reason to disturb that part which goes to the Commission's failure to do more than send a maintenance man when the problem was reported.

16. The appeal should be allowed. Judgment should be entered for the plaintiff and the matter remitted to the Supreme Court of the Australian Capital Territory for a hearing limited to damages.

Footnotes:



1 Mr Simpson's evidence was given by telephone and the transcript records that due to interference on the telephone line, some of his answers were not fully transcribed. 2 (1992) 108 FLR 213 at 217. 3 ibid. 4 ibid. at 215. 5 Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-48 per Mason J. 6 As to the standard of care which applies to an employer, see McLean v. Tedman [1984] HCA 60; (1984) 155 CLR 306.