When is an inference more than just speculation and conjecture?6 March 2019 | Employer's Liability
The Queensland Court of Appeal has affirmed a finding of negligence made by the District Court against the employer of a residential care worker who was injured after slipping on a wet shower floor.
- Whether the trial judge’s finding (an inference) was open to him on the evidence.
- Whether the trial judge erred in making a finding of negligence based on this inference.
On 27 March 2008, Jillian Wallace, a residential care worker employed by RSL Care Limited (RSL Care) at its aged care facility, slipped on a shower floor while she was showering a resident. Ms Wallace subsequently brought proceedings in the District Court at Brisbane against RSL Care
The Decision at Trial
Ms Wallace was successful in convincing the court that her injury was caused by RSL Care’s negligence in failing to appropriately install or maintain the non-slip product on the shower floor.
A critical piece of evidence on which the court relied was expert opinion that the shower floor provided inadequate slip resistance, most likely due to inadequate installation or maintenance. The court relied on this expert evidence despite it being based on testing conducted 5 years after the incident.
The Issues on Appeal
RSL Care appealed the decision to the Queensland Court of Appeal on the basis that the trial judge erred in making a finding of negligence which was based on an unsound factual foundation, namely the expert opinion. RSL Care argued that it was not open for the primary judge to find that RSL Care breached its duty of care to Ms Wallace (which amounted to an inference) because the expert evidence on which he relied was not indicative of the state of the floor at the time of the incident.
The Decision on Appeal
In its consideration of RSL Care’s argument, the Court of Appeal confirmed the approach to be taken when embarking on a process of inferential reasoning (such as that performed by the trial judge). Where direct proof is not available an inference can be drawn provided it is reasonable and definite based on the circumstances appearing in the evidence. An inference should not be drawn where the circumstances give rise to conflicting inferences of equal degrees of probability, but if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the inference sought then it can be made even though it may fall short of certainty.
With that in mind, the Court of Appeal found that the trial judge’s conclusion was open to him based on the expert evidence, lay evidence to the effect that the shower floor was slippery when wet and positive evidence that RSL Care had failed to comply with the manufacturer’s guidelines as to the frequency with which the floor required cleaning and the type of cleaning products that could be used.
The Court of Appeal found further support for the primary judge's inference in RSL Care's failure to adduce any evidence as to how it had dealt with the floor before and after the incident. Applying an extended version of the famous Jones v Dunkel principle, the Court of Appeal concluded that RSL Care's failure to adduce this evidence (which would have had a bearing on the question whether the slip resistance of the floor was adequate at the time of the incident despite the expert opinion) meant that the primary judge could more readily draw the inference he did.
Accordingly, the Court of Appeal dismissed RSL Care’s appeal.
Implications for you
This case (and the first instance decision of the District Court) illustrates to employers the importance of regular inspection and maintenance programs to discharge their duty of care to employees.
It also highlights the risk a party faces when it decides not to lead evidence on a critical issue of fact or to defend a case that is based on circumstantial evidence without any evidence which contradicts the finding the other party seeks. In the absence of contradictory evidence, the court will still be willing to draw an adverse inference despite the apparent speculation this involves.