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- Unreported Judgment
- Appeal Determined (QCA)
State of Queensland v Nudd QCA 281
SUPREME COURT OF QUEENSLAND
Court of Appeal
Application for Leave s 118 DCA (Civil)
19 October 2012
9 October 2012
Holmes and Fraser JJA and Atkinson J
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – CAUSATION – where respondent was an inmate at correctional centre operated by applicant – where respondent fell heavily in a common area of his cell block and was injured – where respondent was on crutches at the time of fall – where respondent sued the applicant for damages for negligence – where primary judge found that respondent fell because of small quantity of water on floor under the tip of his right crutch – where applicant argued it was not open on the evidence to find that the postulated system of inspection probably would have detected the water – where primary judge held that factual causation test in s 11(1)(a) of the Civil Liability Act was satisfied – whether primary judge erred – whether a reasonable system of inspections probably would have detected the presence of the water before the respondent’s accident
Civil Liability Act 2003 (Qld), s 9, s 11
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; (2009) 84 ALJR 19;  HCA 48, considered
M T O'Sullivan for the applicant
Crown Law for the applicant
 HOLMES JA: I agree with the reasons of Fraser JA and the orders he proposes.
 FRASER JA: On 21 December 2002, the respondent was an inmate at the Sir David Longland Correctional Centre. As a result of an ankle injury he required crutches to move around. At about 1.30 pm he was standing up on both crutches in a common area of his cell block when he fell heavily and was injured. The respondent sued the State for damages for negligence. After a two day trial in the District Court in November 2011, the primary judge held that the respondent’s fall and consequential injuries were caused by the State’s negligence and ordered judgment in favour of the respondent for $83,335.48.
 The primary judge’s critical findings may be summarised as follows. The respondent fell because a small quantity of water on the floor under the tip of his right crutch caused the crutch to slip from under him. The risk of injury from a heavy fall for a man in the respondent’s condition was foreseeable and it was “not insignificant” within the meaning of s 9(1)(b) of the Civil Liability Act 2003. A reasonable person in the State’s position would have taken precautions against such a fall. The content of the duty of care owed by the State to a prisoner with mobility restrictions of the kind affecting the respondent was greater than the content of the duty owed to a typical prisoner with no particular mobility restrictions. Spillages in the fairly limited areas in which the respondent commonly moved around were foreseeable. The State owed the respondent an obligation to have some periodic inspections specifically of the floor in those particular areas. Whilst the probability that harm would occur if the floor was not checked in that way was relatively low, the likely seriousness of the harm if someone on crutches slipped and fell was significant and the burden of taking precautions to avoid that risk was low. The State did not suggest that it could not have taken those precautions with resources already available to it or that it had any other conflicting obligations. A reasonable person in the State’s position would have put in place inspections at least every two hours specifically of the floor in the area where the respondent commonly moved about. The State breached its duty of care because it did not conduct any such inspections. That breach caused the respondent’s fall and his consequential injuries because the appropriate system of two hourly inspections probably would have led to the discovery and removal of the water.
 The State has applied for leave to appeal pursuant to s 118(3) of the DistrictCourtof Queensland Act 1967. Leave is required because the final judgment is for less than the monetary limit of the Magistrates Court’s jurisdiction. The proposed appeal concerns liability only. The grounds of the proposed appeal are that the primary judge erred:
“(i)In finding that the defendant had breached its duty of care to the plaintiff, the Primary Judge unduly focussed on the circumstances of the incident in which the plaintiff slipped and fell, rather than the response of a reasonable person in the position of the defendant having regard to his finding that the risk in question was relatively low;
(ii) Having found that the slip and fall of the plaintiff occurred because of the presence of a small inconspicuous quantity of water on the floor of the large common area at Sir David Longland Correctional Centre (‘the unit’) erred in further finding that:
(A) the water had been on the floor of the unit for long enough to have allowed a reasonable system of inspection to have detected and removed it prior to the incident;
(B) in any event, any reasonable inspection by the defendant would have detected the presence of this water in the unit prior to the incident;
(C) the defendant was required to make an inspection specifically of the floor of the unit, or at least that part of the floor, frequented by the plaintiff, for the presence of the water, at least every two hours; and
(D) notwithstanding the cleaning and inspection regime of the defendant the risk was not insignificant and a reasonable person in the position of the defendant would have taken the precaution of conducting a specific inspection of the floor of the unit.”
 Counsel for the State argued that the primary judge’s conclusion that a reasonable system of inspections probably would have detected the relevant water was wrong. He argued that the erroneous decision would have a tremendous impact upon the way in which the State manages prisons. It would require a very taxing regime of inspections of the floors in the common areas of prisons throughout the State. The respondent’s counsel contended that leave should be refused because the decision was correct and it turned upon its distinctive facts. He argued that the decision applied only in relation to a prisoner who, like the respondent, used crutches, and the evidence suggested that this was relatively rare. The evidence to which the respondent referred establishes that it is not very common for prisoners to be on crutches, but that it does happen from time to time. I have respectfully concluded that the primary judge’s approach was unduly liberal to the respondent and the decision sets an inappropriate precedent, notwithstanding the relatively confined class of plaintiffs in relation to whom the decision might be applied. That feature suggests that leave should be granted because substantial injustice would otherwise result.
 I earlier recorded that the primary judge found that the State breached its duty of care because it did not conduct any inspections specifically of the floor. The State’s case was that its prison officers inspected the floor when they carried out regular patrols in the unit. With reference to a log book and video surveillance footage of the relevant area, the primary judge accepted that there were patrols, or at least that a prison officer entered the relevant area, at 8.10 am, 9.10 am, 10.06 am, 11.00 am and 12.35 pm (or 12.36 pm, the time shown on a video exhibit), the last such occasion being less than an hour before the respondent fell; but the primary judge noted that it was in issue whether the prison officers inspected the floor on any of those occasions. The State’s counsel argued that the primary judge did not find that the State did not conduct any inspections specifically of the floor. That argument should not be accepted. One of the prisoners in the respondent’s unit was appointed specifically to keep the unit clean and received some payment in that position. The primary judge found that the relevant prison officers were supposed to conduct hourly patrols and that if the prison officers noticed any mess they would tell the prisoner designated as the unit cleaner to clean up any mess. However the primary judge also found that, whilst a reasonable person in the position of the State would have put in place “…periodic specific inspections of the floor in at least that part of the unit where the plaintiff would commonly be moving about”, “[t]his was not done …”. Furthermore, the primary judge expressly accepted the submission on behalf of the respondent that:
“…there was in fact no system of inspection of the floor in place in the unit, because there was no evidence, or at least no reliable evidence, that the prison officers had been told specifically to inspect the floors during their hourly patrols, or indeed that they did so.”
 In relation to causation, the primary judge found in favour of the respondent that, in terms of the second limb of the test in s 11(1) of the Civil Liability Act 2003 (“(b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (“scope of liability”)”), there was no reason why the scope of liability of the State should not extend to the harm suffered by the respondent. The primary judge also held that contributory negligence was not established on any of the bases upon which the State relied. Those conclusions are not now in issue.
 In relation to the first limb of the test in s 11(1) (“(a) the breach of duty was a necessary condition of the occurrence of the harm (“factual causation”)”), the primary judge referred to Adeels Palace Pty Ltd v Moubarak and held that the respondent was required to prove that, but for the negligent act or omission, the harm would not have occurred; it was not sufficient to prove that the risk of harm would have been reduced or that, if reasonable precautions had been taken, it was likely that the factual situation would have differed. The primary judge concluded (and neither party challenges the conclusion) that it was necessary for the respondent to show that it was more probable than not that:
“…but for the absence of a reasonable system of inspection required by the duty owed to the plaintiff, the fall and hence his injury would not have taken place.”
 One issue about factual causation at the trial concerned the difficulty of proof when it was not known how or when the relevant water came to be on the floor. The primary judge resolved that issue in favour of the respondent by applying a methodology approved by the plurality in Strong v Woolworths Ltd (t/as Big W):
“Woolworths’ submission that it was necessary for the appellant to point to some evidence permitting an inference to be drawn concerning when the chip was deposited must be rejected. It was incumbent on the appellant to prove that it was more probable than not that Woolworths’ negligence was a necessary condition of her fall, but this onus could be discharged by consideration of the probabilities in circumstances in which the evidence did not establish when the chip was deposited. The point was illustrated by Hayne JA (as he then was) in Kocis v SE Dickens Pty Ltd. His Honour posited a case in which reasonable care required the occupier of premises to carry out inspections at hourly intervals. Assume that no inspection is made on the day the plaintiff slips on a spill eight hours after the premises opened for trading. If there is no basis for concluding that the spill is likely to have occurred at some particular time rather than any other time, the probability is that that the spill occurred in the first seven hours of trading and not in the hour preceding the plaintiff's fall. As Hayne JA observed, a plaintiff must prove his or her case on the balance of probabilities and it is no answer to the question whether something has been demonstrated as being more probable than not to say that there is another possibility open. The determination of the question turns on consideration of the probabilities.”
 If that methodology is applicable, and if the postulated system of inspection would have detected the water, there was a basis for finding that it was more probable that the water was spilt during the period when the prisoners were in the common area before the last (hypothesised) two hourly inspection of the floor than in the much shorter period between the last (hypothesised) inspection and the fall. The State argued that the approach was not applicable in this case for two reasons. First, it is premised upon a conclusion that, if the relevant water was spilt on the floor at any time before the accident, it would have remained on the floor at the time of the accident. The State argued that the effect of evaporation in the mid-summer heat at the prison falsified that premise. That argument may have a sound theoretical basis, but that does not seem to have been explored at the trial and the evidence does not touch upon the significance or effect of evaporation in the particular environment in the common area of the respondent’s unit at the prison.
 The State’s second, and stronger, argument is that it was not open on the evidence to find that the postulated system of inspection probably would have detected the water if it was present at the time of the last (hypothesised) inspection. The primary judge was alert to this issue. He expressed concern about the fact that the “quite inconspicuous” or “small patch” of water might be difficult to see even upon a “specific inspection of the floor”. The primary judge acknowledged that there might be a case in which the contamination is so inconspicuous that it would not be detected by reasonable inspection, so that the absence of a system of inspection would not satisfy the factual causation test in s 11(1)(a) of the Civil Liability Act, but held that the test was satisfied in this case. The respondent submitted that the primary judge’s analysis convincingly rebutted the State’s argument that causation was not established:
“Overall, however, I consider that the evidence suggests that even a small quantity of water on the floor could have been seen by someone who was specifically checking the floor for contaminants. The plaintiff said that he saw the water on the floor after the accident, and both Ms Cook and the supervisor said that they saw some water on the floor, the supervisor saying that he spotted a patch about the size of a 50 cent piece, even though, in the video that shows him in the area at one stage, there is little indication of his having made any searching examination of the floor. One or both of these witnesses may have seen the water which was relevant to the plaintiff’s fall, as the supervisor’s initial statement suggested, but if that is not the case, the fact that they saw some small quantity of water does indicate that a proper inspection would probably have detected the relevant small quantity of water; it may be consistent with the plaintiff’s evidence that the water was mopped up by someone else before the officers entered the unit after the fall: p 19.”
 The evidence of the supervisor (Wright) to which the primary judge referred was that, when he was called to the unit after the respondent’s fall, he examined the area where the fall was alleged to have occurred. He noticed that there was a small amount of water underneath a water bottle on a chair. He described a small puddle about four inches in diameter. The puddle was not where the respondent had fallen but was about one and a half to two metres away. In cross-examination Wright agreed that in a statement dated 28 January 2005 he had stated that there was a small amount of water near where the respondent had fallen. He said that this was a reference to the water underneath the water bottle on the chair. Wright pointed out, correctly, that he had not said in his statement that the water was where the respondent had fallen. The relevant paragraph of Wright’s 2005 statement was consistent with his evidence. Wright there stated that he recalled noting a small amount of water on the floor near to where the respondent had fallen and he had assumed at the time that the water was from the respondent’s water bottle; he examined the floor quite closely and he could not see any other water on the floor.
 Cook gave evidence that when she arrived in the unit after the respondent’s fall she did not notice anything on the floor. She saw a small amount of water on the bench seat the respondent had been sitting on before his fall. The pool of water was about the size of a 50 cent piece, in the form of condensation from a bottle of frozen water. The water was at least two metres away from where the respondent fell. She answered “no” to the question whether she noticed any other water on the floor apart from the water under the bench or the seat. (In cross-examination Cook said that she had noticed condensation on the floor from the respondent’s water bottle before the fall, although she could not recall at what time. The trial judge did not regard that evidence as reliable.) In Cook’s statement of 2 March 2005 she stated that there was no water on the floor in the area where the respondent fell. There was water underneath a bottle of frozen water on a bench next to where the respondent had been sitting, about 1.5 metres away from where he fell. She stated that she did not see any water on the floor when she went to the respondent’s assistance but it was possible that someone might have mopped up any water before she arrived to the scene. In cross-examination, she said that when the respondent told her that he had slipped on water she looked but did not see any water in the area where he had fallen. She again described the water underneath the bench as being about the size of a 50 cent piece and she agreed with the suggestion by the respondent’s counsel that it was nowhere near where the respondent had fallen.
 In summary, Wright and Cook gave substantially consistent evidence to the effect that they saw a small amount of water which could not have been relevant to the respondent’s fall because it was under a water bottle on a chair some distance away from where the respondent fell. The primary judge did not find that they did see the relevant water but mistakenly remembered it as being in a different place. His observation that Wright and Cook “may” have seen the relevant water was not a finding that either of them did so. The respondent referred also to a statement made by Cook in cross-examination that “[y]ou could see just by walking around … you could easily see if there was any water on the floor just by walking around slowly.” That general statement was not referrable to any identified quantity or location of water. It is of no real value in the present exercise.
 The respondent supported the primary judge’s inference that the fact that Cook and Wright saw a small quantity of water after the accident indicated that a proper inspection probably would have detected the relevant water. As counsel for the State pointed out, however, their evidence was that they only saw any water after the respondent had fallen and had claimed that he slipped because of water on the floor. It must surely be much easier to see an inconspicuous patch of water when one’s attention is directed to a confined area after someone has slipped and complained of water on the floor than in the course of a routine inspection of a larger area of floor. In any event, the primary judge did not find, and it would be inconsistent with Cook and Wright’s evidence to find, that the water they described was relevant to the respondent’s fall.
 The only evidence of the quantity and visibility of the relevant water was given by the respondent. The respondent’s evidence-in-chief as to the extent of the water he saw on the floor was that it was “[p]robably just a tiny little puddle”. He then described it as being “maybe” a few inches long and “probably” a couple of inches wide, but he immediately added the inconsistent statements that it was about 12 inches long and “maybe” three or four inches wide. In cross-examination he agreed that in a statutory declaration made on 17 September 2004, he declared that “[u]pon the floor there seemed to be a fine spray of water.” As to the visibility of that water, in response to a question by his own counsel asking whether he had seen the fluid on the floor before he fell, he answered:
“No. The only reason why I saw it is because my face was flat on the ground …”
 The primary judge summarised the respondent’s evidence:
“The plaintiff said that he fell when he moved back and began to turn around, though I cannot see much of this manoeuvre on the video; presumably he fell at an early stage in the process. He said that he ended up face down on the floor, and in that position he saw a puddle of water which he described, which he said he would not have seen but for the fact that his face was in that position: p 19. It does appear from the video that he was briefly face down after the fall, though he did quickly roll onto his back. When he was face down his head would have been about six feet from where any liquid on the floor would have been if it had been relevant to a loss of traction by the right crutch. The plaintiff did not actually say that the water he saw was right beside his face, but I am nevertheless wary about this evidence.”
 In a footnote the primary judge noted that in the respondent’s 2004 statutory declaration he referred to “a fine spray of water” on the floor, and observed that this was “…inconsistent with his other descriptions, and the descriptions of others.” The descriptions given by Cook and Wright were not inconsistent with the respondent’s description because they were not found to be descriptions of the same water, but the respondent’s description in 2004 of a “fine spray” was inconsistent with his description of a “puddle” in his internally inconsistent evidence in 2011; on both occasions he described the water he claimed to have seen after his fall. The primary judge did not make any finding which expressly resolved those inconsistencies in the respondent’s versions, but referred variously to the water as “a small quantity”, “quite inconspicuous”, and “not particularly conspicuous”. The primary judge also found in unqualified terms that the water was “inconspicuous”. In so finding, the primary judge reasoned that otherwise the respondent would have seen it himself because, although it was clear from the videotape that the respondent ordinarily looked where he was going whilst he moved around shortly before the fall and it was apparent from a still image that the respondent looked down at his feet immediately before he fell, he had not noticed anything on the floor.
 As the primary judge observed, a small patch of water might be difficult to see even for a person conducting a specific inspection of the floor. That was certainly true of the water found to have caused the respondent’s fall. None of the respondent, Cook or Wright saw that water before the accident. Neither Cook nor Wright was found to have seen it after the accident. If anyone saw the relevant water after the accident, only the respondent did so. He described what he saw as a “fine spray” or a “tiny little puddle”. If he did see that water, he saw it only from his peculiar vantage point on the floor. His own evidence was that he saw it only because he was on the floor. This evidence was opposed to an inference, and no other evidence accepted by the primary judge was capable of justifying an inference, that the relevant “inconspicuous” water should have been visible upon a reasonable inspection by prison staff. On the evidence as a whole, I would hold that the respondent failed to prove his case because he failed to prove that a reasonable system of inspections probably would have detected the presence of that water before the respondent’s accident.
 I would grant leave to appeal, allow the appeal, set aside the orders made in the District Court, and instead order that there be judgment for the defendant with costs. I would order the respondent to pay the appellant’s costs of the application for leave to appeal and the appeal.
 ATKINSON J: I have had the benefit of reading the reasons of Fraser JA.
 I agree that, for those reasons, the orders proposed by his Honour should be made.
 Nudd v State of Queensland  QDC 64.
 See Pugin v WorkCover Queensland  2 Qd R 37 per Keane JA, with whose reasons McPherson JA and Douglas J agreed.
  QDC 64 at .
  QDC 64 at , .
  QDC 64 at .
  QDC 64 at .
  QDC 64 at .
 (2009) 84 ALJR 19, concerning the equivalent provision in the Civil Liability Act 2002 (NSW).
  QDC 64 at .
  HCA 5 at . Citations omitted.
  QDC 64 at .
  QDC 64 at .
  QDC 64 at .
 Transcript 1-19.
  QDC 64 at .
  QDC 64 at ,  and .
  QDC 64 at .
- Published Case Name:
State of Queensland v Nudd
- Shortened Case Name:
State of Queensland v Nudd
 QCA 281
Holmes JA, Fraser JA, Atkinson J
19 Oct 2012