Cains v Mathers Shoes Pty Ltd - [1993] QCA 193

THE COURT OF APPEAL

[1993] QCA 193

SUPREME COURT OF QUEENSLAND

Appeal No. 7 of 1993

Brisbane

Before

The President
Mr Justice McPherson
Mr Justice Pincus

[Cains v. Mathers Shoes P/L.]

BETWEEN

THELMA MAY CAINS

(Plaintiff) Appellant

AND

MATHERS SHOES PTY LTD

(Defendant) Respondent

JOINT REASONS FOR JUDGMENT - FITZGERALD P. & McPHERSON J.A.

Judgment delivered 1/06/1993

Mrs Thelma Cains, who is both the appellant and the plaintiff in this action, was visiting Toowoomba in September 1985 when she sustained the injury that gave rise to these proceedings. She had come from Coffs Harbour with friends on a bus trip to see the flowers, and was staying at a local motel.

On the morning of 24 September she and her room mate went for an early morning walk through the shopping centre. In Ruthven Street they walked along the footpath looking in the shop windows. The plaintiff wished to find a place where she could buy a pair of shoes. At the trial she gave the following account of what happened when she came to the Mathers shoe store belonging to the defendant:

"Did you continue walking forward for any particular purpose ? -- No, from one shop to the next. And when I saw Mathers shoe shop I decided to turn in.
Well, just tell the Court then in your own words what happened when you saw the Mathers store; what you did? -- Well, it's a long shaped entrance to the shop and I turned right to move in and tripped over the little - I wasn't sure what it was, a little rise - tripped over and ended falling down with my head, my shoulder and my hip and that's the extent of me.
Are you able to say which of your feet you tripped on? -- My right one.
Where was your attention directed to just before your right foot tripped? -- I think there's a glass window at the front of the shop and I could see shoes through the window to the back of Mathers display, of the shop - of the shoes and I was deliberately --."

A photograph forming part of ex.13 shows the front of the defendant's shoe shop in Ruthven Street. Leading in from the footpath to the shop entrance is a tiled floor area, which was referred to in the evidence as the entrance foyer. It is bounded on both sides by glass display windows containing displays of shoes. The windows reach out to where the shop fronts on to the footpath. The Mathers shop is on the eastern side of Ruthven Street, which falls away across the road toward the western side. The result is, as ex.13 shows, that the surface slopes from the shop entrance down to and across the footpath to the street alignment itself. At the junction of the tiled entrance foyer with the footpath there is a small rise or step up from the footpath level to the foyer level.

Facing the shop, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Cains v Mathers Shoes Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1993] QCA 193
Decision Date: 1/06/1993

CaseChat Overview and Summary

In the appeal of Cains v Mathers Shoes Pty Ltd, the Court of Appeal of the Supreme Court of Queensland reviewed the case of Mrs Thelma May Cains, who alleged that she sustained injuries from tripping on a step at the entrance of Mathers Shoes store. The primary judge dismissed her claim, finding her evidence about the incident not credible. The Court of Appeal found that the primary judge erred in rejecting the plaintiff's evidence without sufficient grounds. The appellate court found that the plaintiff did indeed trip over the step at the entrance of the shop, which was a foreseeable risk of injury. However, the Court of Appeal was divided on the issue of negligence. While the majority found that the defendant should have taken precautions to prevent such incidents, Justice Pincus dissented, finding the risk not significant enough to constitute negligence on the part of the defendant.

The majority of the Court of Appeal held that the plaintiff's tripping over the step was a foreseeable risk, and the defendant should have taken reasonable steps to prevent it. They considered the potential solutions suggested by the expert witness, such as restructuring the entrance foyer to eliminate the step, and found that such measures, while more costly than other suggestions, were reasonable precautions to take. The majority concluded that the defendant's failure to take such measures constituted negligence, and allowed the appeal with costs, setting aside the primary judge's judgment and awarding the plaintiff damages.

Justice Pincus, however, disagreed with the majority's assessment of negligence. He found that the risk of injury from the step was not significant enough to hold the defendant liable for negligence. Justice Pincus considered the evidence that similar steps were common in shops, and that no previous incidents had been reported at the defendant's shop. He also noted that the division between the footpath and the shop premises seemed clear in the photographs in evidence. Justice Pincus believed that the appeal should be dismissed, as he did not think that having a small step between the footpath and the shop entrance, or allowing such a step to remain, was necessarily negligent.

Orders