Berkin v Franklins Ltd

[2000] QDC 442

DISTRICT COURT OF QUEENSLAND

[2000] QDC 442

CITATION:	Helen Pearl Berkin v. Franklins Ltd & Anor
PARTIES:	Helen Pearl BERKIN (Plaintiff) v. FRANKLINS LTD (Defendant) and KIRKVISTA PTY LTD (Third Party)
FILE NO/S:	Plaint No. 167 of 1998
DELIVERED ON:	29 September 2000
DELIVERED AT:	Maroochydore
HEARING DATE:	19 September 2000
JUDGE:	K S Dodds DCJ
ORDER:	There will be judgment for the plaintiff on the claims with costs to be assessed.  Damages have been agreed between the parties.
CATCHWORDS:	NEGLIGENCE – DANGEROUS PREMISES – OCCUPIER’S LIABILITY – pl slipped and fell at def’s supermarket – wh def had taken reasonable care to prevent injury to customers
COUNSEL:	M J Taylor for the plaintiff K A McGinness for the defendant
SOLICITORS:	Bradley & Bray for the plaintiff McInnes Wilson for the defendant

1. In this proceeding the plaintiff, an 83-year-old lady, has sued the defendants, the operators of a large fresh food and grocery market at the Big Top Shopping Centre Maroochydore, for damages for personal injury.  I will deal with the third party proceeding later.

1. The plaintiff slipped and fell in aisle six of the grocery section of the market at or about 10.30 am on Friday 26 January 1996.  She was in the market as a customer.  She broke her wrist and suffered bruising.  She said she was wearing ordinary court shoes and walking normally along the aisle looking for jelly crystals when her feet suddenly went forwards from under her.  She said she believed she slipped in water because afterwards the back of her dress was damp “in the hip and back part”, but was not stained.

1. The plaintiff at the time had some impairment to her vision.  She could not see to read but could see things and where she was walking.  She had on previous occasions when shopping in the market, obtained the assistance of a store employee to help her with her shopping.  She said however that by the time of the occasion she fell she had acquired a general knowledge of where items were in the grocery section and on the day in question, proceeded independently.

1. Because of the plaintiff’s impaired vision, she had been provided with a white cane or stick which could be broken into four parts connected by a continuous piece of elasticised material located inside the segments.  It was assembled by one part slipping into a sleeve on the adjoining part.  It was not tendered.  However, I saw it during the trial.  It was straight and appeared to be a little over one centimetre in diameter, uniform over its length.

1. The plaintiff in evidence said she did not know whether she had the stick with her on the day she fell but if she did it would have been folded and in her handbag.  She said she was not using it.  The defendant placed evidence before me from a woman who was shopping in the same aisle as the plaintiff when the plaintiff fell, a Ms Charmaine McKay.  According to Ms McKay the plaintiff was using the cane or stick as she moved down the aisle by leaning on it.  She thought it was a peculiar looking walking stick.  Just after Ms McKay passed the plaintiff, she heard a cracking noise and a thud.  She turned and saw the plaintiff had fallen on the floor.  She saw the stick on the floor and it appeared to be in pieces.  I accept Ms McKay’s evidence.

1. When the plaintiff fell, staff of the defendant attended, in particular a Miss Ritchie, a Miss Pointing and the then store manager, a Mr Arthur.  According to them, the plaintiff did not say she had slipped in something.  As they had trained to do, they looked at the floor in the vicinity for anything that may have caused the slip and saw nothing.  A report and statements were completed immediately after the plaintiff had been taken by ambulance from the store.  These documents were available to the plaintiff.  I infer they contain nothing contrary to the evidence given by these witnesses.  I accept their evidence.

1. The plaintiff’s son gave evidence.  He had been called to the store after the fall.  According to him an employee of the defendant gave him flowers for his mother (it appeared this was Ms Pointing).  This person and another younger male employee apologised for what had happened and said they did not know how it had happened.  He said the female employee was most emphatic that he was not to worry about his mother’s dress, as it was water she had slipped on and it would not stain.  When he went to the hospital he felt the plaintiff’s dress and it was damp. 

1. I do not accept Mr Berkin’s evidence about being told by this employee the plaintiff had slipped in water.  Rather as I have already indicated, I accept Ms Pointing’s evidence.  I do however, accept his evidence that at the hospital he felt dampness on the dress.

1. It is conceivable that any water on the floor of the aisle ended up under the plaintiff when she fell and was soaked up by her clothing.  She remained lying on the floor for some time until the ambulance attended.  That is capable of explaining why none of the defendant’s staff members saw any water on the floor.

1. It is clearly foreseeable that a variety of materials may find their way to the floor of a market such as this one.  Dropping of product and spillages do occur.  This is commonly apparent to an observer shopping at such a market.  It is also commonly known that wetting a smooth vinyl floor surface, as appeared to exist in the defendant’s market, makes it slippery.  This common knowledge received some technical support from the evidence of Mr Shepherd, an engineer called by the plaintiff to give evidence.  Markets like the one in question, are relatively busy places, some days busier than others.  People of all ages attend to do shopping.  Some, like the plaintiff, are elderly.  Many elderly people prefer to be as independent as they can.  Customers shopping in a market such as the defendant’s may generally be expected to be looking at product on the shelves.  They do not usually proceed keeping a lookout for some spillage on the floor that may cause their feet to slip from under them. 

1. What is the defendant’s duty?  It is not an insurer.  Rather its duty as the occupier of the market is to take such care “as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises”: Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 CLR 479.

1. The plaintiff must prove on the balance of probability that there was some liquid on the floor and there was a foreseeable risk of injury to her as an entrant in the store of slipping and falling.  If she does that, she must prove that the defendant failed to take reasonable care to avoid injury to her as a customer, more particularly that in all the circumstances there was no, or no adequate precaution taken by the defendant to identify and clean up the liquid.  That requires a consideration of the degree of risk of injury, and what sort of injury, along with the difficulty and expense of managing the risk.  Moreover, if she does prove a failure to take reasonable care in the light of foreseeable risk of injury she must prove that failure was a cause of her fall.  Put another way the plaintiff must prove that if reasonable care had been taken the fall would probably not have occurred.

1. In Medlin v. State Government Insurance Commission (1995) 182 CLR 1 at 6, Deane, Dawson, Toohey and Gaudron JJ said that for “the purposes of the law of negligence the question whether the requisite causal connection exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved on the probabilities as a matter of commonsense and experience”.

1. I accept Mr Arthur’s evidence about the instruction and training given to all staff about what was to be done when a staff member saw or was alerted to foreign material on the floor of the market.  Essentially it was to be cleaned up and until that was done, other persons including customers were to be warned and excluded from that area of floor.  I also except Mr Arthur’s evidence that he spent a major part of his working day moving about the market, observing its operation.

1. The defendant employed night and day cleaners.  The latter ordinarily involved two persons, one for the fresh food market and one for the grocery market.  They were supplied by a company with which the defendant contracted.  The defendant joined  that company in third party proceedings in the proceeding.  However at the beginning of the trial, I was informed the defendant no longer wished to proceed with the third party claim.  There was no appearance by the third party.

1. According to Mr Arthur the day cleaners were to patrol the floor regularly and clean throughout the day on a regular basis.  Each time a cleaner patrolled the aisles, he or she was required to fill out a log that signified they had performed the task and everything was clean.  The log for the period including the day the plaintiff fell was produced.  Mr Arthur identified it.  He said that any staff member who cleaned an area also had to fill out the document noting the time they undertook the cleaning action. 

1. In answers to interrogatories, the defendant accepted the log was the defendant’s document and that the cleaning contractors were the servants or agents of the defendant.  It identified the day on the log on which the plaintiff fell as Friday in the first week on the log.  It said the document was completed daily.

1. The day the plaintiff fell was Australia Day.  The defendant’s witnesses said it was not a busy day.  Ms Pointing said, and Mr Arthur confirmed, there was a reduced staff that day although the evidence did not provide details.  The log has no entries of time or initials on that day.  Rather it has a line drawn through the column in which times of attending to calls should be entered.  The previous day, Thursday, has a large number of times entered, the last being 11.50 in the last available space and then the words “on and on” written.  Apparently Thursday was a busy day.

1. At the top of the log are the following words:

“Please note: every two hours while the market is operational the grocery/customer service area must be checked to ensure it is clean and in order.  Also ensure that each time a call is made for a cleaner the box provided in the CALL column is filled out with the time and initials.  Your signature means the floor is clean and clear.” 

1. There is a difference between this instruction and Mr Arthur’s evidence as to the entries to be put in the log.  The log is arranged into weeks one, two, three and four.  There is a header column for each week signifying two hourly intervals commencing at 9.00 am to 9.00 pm.  There are then two columns provided for each day of the week, headed respectively with the day of the week and “call”.  The system required the time to be written in the “call” column and the initials of the person attending to the task adjacent in the day of the week column.  It seems apparent looking at the log the system of recording described in evidence was often not adhered to.

1. On one view of the log the line drawn through the Friday ‘call’ column, no times entered and no initials in the ‘day’ column indicates either there was no cleaner in the grocery area of the market that day or there were no cleaning tasks or, on Mr Arthur’s evidence, no patrols.  I note that on the following Sunday there is a line drawn through the ‘call’ column, no times entered but there are what appear to be initials in the day column.  There is a similar confusing entry on Wednesday of week three.  There was no further evidence about these matters, for instance, from the cleaning contractor. 

1. The plaintiff called evidence from a Mr Shepherd, an engineer from “Insafe” an organisation consulting in safety, forensic engineering and ergonomics.  His evidence confirmed the danger of a slip if a smooth vinyl floor is made wet.  The risk is enhanced when a person walking on dry floor steps onto a wet area without being aware of its wetness.  In his report which was tendered, he said that ways to reduce the risk of slip and fall in the supermarket environment were to provide a slip resistant floor surface such as a safety vinyl or/and procedures to manage contamination of the floor surface including documented cleaning procedures, continuous coverage of public areas in 15 – 30 minute intervals and recording and monitoring of the system.  In his oral evidence, he acknowledged that in certain areas of a market there would be a greater likelihood of contaminating matter getting onto the floor eg. in the fruit and vegetable produce area or adjacent to cold storage or freezers.  He considered the primary risk area would be first the fruit and vegetable section, followed by an area where people are eating, followed by areas where there are fridges or freezers although there was still a need for an inspection and cleaning regime in other areas to manage the risk.

1. I find that the plaintiff was walking up aisle six using the stick to assist her to walk.  As she did so her feet suddenly slipped and she fell.  The cracking type noise Ms McKay heard, the source of which was probably the cane is explicable as being provoked by the plaintiff’s sudden slip.  On the evidence I do not find the cane collapsed spontaneously.  The finding disposes of the plea of contributory negligence.

1. I find that when the plaintiff was lying on the floor she became aware her dress was damp at the back in the hip and bottom area.  I infer that her feet slipped on a small patch of water on the floor and that when she fell she fell on to it.

1. I find that the area where the plaintiff fell was in a grocery aisle not adjacent to a fridge or freezer area.  It was at least eight metres from the nearest cold storage area. 

1. I find that the floor surface of the market was a smooth vinyl surface.  That inference accords with the general description of it in the evidence.  There was no evidence to the contrary. 

1. I find that the system or procedure to deal with spillage on the floor relied upon staff members noticing it as they moved about the store, members of the public bringing it the attention of a staff member, regular two hourly checks by the day cleaner or the day cleaner noticing it while proceeding to or from a cleaning task.  If on the day the plaintiff was injured, day cleaners were working at the market and were making regular patrols as required, confirmatory evidence should have been available.  Apart from Mr Arthur’s oral assertion, the only other evidence which may have t ended to confirm these matters was the log.  It did not and on one view of it, suggested no cleaners were at the market that day or no patrols or clean ups were done.  No evidence was led from the cleaning contractor or from any cleaner.  No records were produced of hours worked or paid for or of signing on or signing off.  Mr Arthur’s evidence seemed to suggest that some such record should exist if cleaners had worked that day.

1. There was no evidence about the frequency of spillages occurring in the grocery part of the market. There was no evidence about how long the water had been on the floor.  As has been observed in a number of cases, for example Dulhunty v. JB Young Ltd (1975) 50 ALJR 150 in the High Court, Brady v. Girvan Bros Pty Ltd (1986) 7 NSWLR 241 and Sleiman v. Franklin Food Stores Pty Ltd (1989) ATR 80-266 in the Court of Appeal New South Wales, Boyle v. GJ Coles & Co Pty Ltd (1969) QdR 445 and Griffin v. Coles Myer Ltd (1992) 2 QdR 478 in the Queensland Full Court, it is not necessarily sufficient for an entrant who has slipped and fallen due to some contaminant on an occupiers floor to show that there was not an adequate system of inspection and cleaning unless they also show on the probabilities that shortcoming was a cause of the fall and injury; put another way, that the existence of an adequate system would have on the probabilities avoided the slip and fall. Often unless it can be shown that the risk of the contaminant being on the floor was so great as to require as a reasonable response, that a system of continuous observation and immediate clean up be observed, evidence of the period of time the contaminant has been on the floor will be critical.

1. However, evidence of the period of time a contaminant has been on the floor is not essential to a plaintiff’s case: see Rose v. Abbey Orchard Property Investments Pty Ltd (1987) ATR 80-121 in the New South Wales Court of Appeal and Kocis v. SE Dickens Pty Ltd (1996) ATR 81-382. The plaintiff must prove her case on the balance of probabilities. As Hayne J observed in Kocis at 63,311 “it is no answer to the question whether something has been demonstrated as more probable than not to say that there is another possibility open”.

1. On the evidence in this case I infer that there was probably no regular patrol of the grocery market by a cleaner on the day the plaintiff slipped and fell.  I accept that Mr Arthur’s habit was to walk about the store.  Unlike cleaners however, his focus was not only on the floors.  I accept Mr Shepherd’s evidence that the risk of entrants slipping and falling in a market such as this one, with its smooth floor surface, required regular continuous patrols at least every 30 minutes to identify and remove foreign material from the floor.  More frequent patrols would be required in higher risk areas.  According to Mr Arthur, the store opened at 8.00 am.  At about that time cleaners would finish cleaning the floors.  Even patrols at two hourly intervals would have a patrol occurring at 10.00 am, about half an hour before the plaintiff’s slip and fall.  It is much more probable that the water was deposited on the floor in the two hour period between 8.00 am and 10.00 am than in the 30 minute period between 10.00 am and 10.30 am.

1. I find on the balance of probabilities that had such patrols been done on the day the plaintiff slipped and fell, the water would have been identified and removed before the plaintiff happened across it.

1. There will be judgment for the plaintiff on the claim with costs to be assessed.  Damages have been agreed between the parties.

DISTRICT COURT OF QUEENSLAND

[2000] QDC 442

CITATION:	Helen Pearl Berkin v. Franklins Ltd & Anor
PARTIES:	Helen Pear BERKIN (Plaintiff) v. FRANKLINS LTD (Defendant) and KIRKVISTA PTY LTD (Third Party)
FILE NO/S:	Plaint No. 167 of 1998
DELIVERED ON:	29 September 2000
DELIVERED AT:	Maroochydore
HEARING DATE:	29 September 2000
JUDGE:	K S Dodds
ORDER:	Defendant to pay the plaintiff’s costs of and incidental to the proceeding calculated on the indemnity basis.
COUNSEL:	M Taylor for the plaintiff S Falvey (solicitor) for the defendant
SOLICITORS:	Bradley & Bray for the plaitniff McInnes Wilson for the defendant

1. In this matter I gave judgment for the plaintiff against the defendant for $15000 on 29 September 2000.

1. The only issue in the trial was liability.  The quantum of damages had been settled by the parties before trial in an amount of $15000.

1. On 19 May 2000, the plaintiff made an offer to settle under Part 5 of Chapter 9 of the Uniform Civil Procedure Rules 1999 (UCPR) for $8000 for the plaintiff’s claim plus standard costs assessed on the Magistrates Court scale of costs.  The offer was not accepted.

1. Rule 360 UCPR provides:

(1)         If –

(a)the plaintiff makes an offer to settle that is not accepted by the defendant and the plaintiff obtains a judgment no less favourable than the offer to settle; and

(b)the court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the offer;

the court must order the defendant to pay the plaintiff’s costs calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances.

1. Rule 698 UCPR provides:

(1)         Subrule (2)…apply unless the court otherwise orders.

(2)If the relief obtained by a plaintiff in a proceeding in the…District Court is a judgment that, when the proceeding began, could have been given in a Magistrates Court, the costs the plaintiff may recover must be assessed as if the proceeding had been started in the Magistrates Court.

1. The plaintiff should have an order for costs.  The issue at trial was resolved in her favour.  The order should be for costs  on the indemnity basis.  The plaintiff has obtained a judgment no less favourable than her offer to settle.  That offer was to settle all issues between the parties with the defendant paying the plaintiff $8000 for damages plus costs on the Magistrates Court scale.  The defendant has not shown some other order for costs is appropriate.

1. The plaintiff’s claim was never one which could not have been tried within the Magistrates Court jurisdiction. There is no reason to order other than as provided in Rule 698(2) UCPR. Accordingly costs assessed on the indemnity basis must be assessed as if the proceeding had been started in the Magistrates Court. For assessment see Rule 704(3).

1. I order the defendant pay the plaintiff’s costs of and incidental to the proceeding calculated on the indemnity basis.