Coles Supermarkets Australia Pty Ltd v Bridge

[2018] NSWCA 183

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183

Hearing dates:

4 July 2018

Decision date:

17 August 2018

Before:

Leeming and Payne JJA at [1];
Emmett AJA at [38]

Decision:

1. Appeal allowed in part.

 

2. Set aside the judgment entered on 19 December 2017 in the amount of $769,381, and in lieu thereof enter judgment for the plaintiff in the sum of $577,035 (being 75% of the amount earlier ordered).

 

3. Otherwise dismiss the appeal.

 4. The appellant to pay two thirds of the respondent’s costs of the appeal.

Catchwords:

NEGLIGENCE – occupier’s liability – customer slipped and fell on wet surface of supermarket carpark – whether risk of harm was foreseeable – where store manager had described wet carpark as incident waiting to happen – whether risk of harm could be identified by reference to injury sustained

  NEGLIGENCE – contributory negligence – plaintiff slipped and fell when attending to his mobile phone – primary judge found no contributory negligence – challenge to findings that responding to mobile phone was momentary inattention with no causal connection to slip – appeal allowed in part and finding of 25% contributory negligence made

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5R
Evidence Act 1995 (NSW)
Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9
Suitors Fund Act 1951 (NSW)
Supreme Court Act 1970 (NSW), s 75A
Uniform Civil Procedure Rules 2005 (NSW), r 51.53

Cases Cited:

Agresta v Agresta [2010] NSWCA 330
Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146
Erickson v Bagley [2015] VSCA 220
Garzo v Liverpool / Campbelltown Christian School [2012] NSWCA 151
Goode v Angland [2017] NSWCA 311
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34
Kuhl v Zürich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12
McLean v Tedman (1984) 155 CLR 306; [1984] HCA 60
Meakes v Nominal Defendant [2011] NSWDC 9
Nominal Defendant v Meakes [2012] NSWCA 66; 60 MVR 380
Nominal Defendant v Rooskov [2012] NSWCA 43; 60 MVR 350
Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90
Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; [2014] Aust Torts Rep 82-172
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42
Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 310
Sungravure Pty Ltd v Meani (1964) 110 CLR 24; [1964] HCA 16
Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320
Verryt v Schoupp [2015] NSWCA 128; 70 MVR 484
Vincent v Woolworths Ltd [2015] NSWSC 435; [2015] Aust Torts Rep 82-215

Category:

Principal judgment

Parties:

Coles Supermarkets Australia Pty Ltd (Appellant)
Larry Kenneth Bridge (Respondent)

Representation:

Counsel:
G Watson SC with D Weinberger (Appellant)
I D Roberts SC (Respondent)

  Solicitors:
McCabes Lawyers (Appellant)
Monaco Solicitors (Respondent)

File Number(s):

2017/384984

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Civil

Citation:

[2017] NSWSC 1800

Date of Decision:

19 December 2017

Before:

Campbell J

File Number(s):

2015/00363960

Judgment

1. LEEMING AND PAYNE JJA: We have had the advantage of reading Emmett AJA’s judgment in draft. His Honour has described the evidence relevant to Mr Bridge’s fall in the underground carpark at Coles’ premises in Coffs Harbour on 6 April 2014, and the factual and procedural background to the litigation culminating in Coles’ appeal from a judgment against it in the amount of $769,381. His Honour’s judgment allows us to be relatively concise. What follows presupposes familiarity with, and does not unnecessarily repeat, the matters contained in his reasons.

2. The primary judge applied the relevant provisions of the Civil Liability Act 2002 (NSW) transparently and in their terms. Most importantly, s 5B provides as follows:

“General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.”

3. Dispositive of the approach taken by his Honour to s 5B(1)(a), namely, whether there was a risk in the carpark of which Coles knew or ought to have known, was Exhibit 5, the email from the developer shortly after Coles entered into possession in February 2012. We agree with Emmett AJA, for the reasons his Honour gives, that the primary judge misconstrued that email. To be fair, the email is somewhat problematic. It is reproduced in full by Emmett AJA. On its face it appears to deny the presence of a “smooth Westfield polished type carpark finish” and maintain that there was a “good clear commercial broomed nonslip finish as required by the [contract]” except in three localised areas. It is difficult to reconcile that statement with the photographic evidence and, more importantly, the testimonial evidence of Mr Wagstaffe that the surface where Mr Bridge fell was “polished” and extremely slippery. It was not suggested that Mr Wagstaffe lacked expertise, and his evidence suggested that he was well-qualified (for example, he described two ways of achieving a finished concrete surface: “helicopter screed” and “screed surface by hand”). However, we agree with Emmett AJA that the email is not a sufficient basis for putting Coles on notice that there was a hazardous surface where Mr Bridge slipped. Its tenor is that most of the surface was a non-slip surface, designed against the likelihood that there would be occasions when it was wet, because of flooding or ingress (because the carpark was below the water table).

4. Section 5B(1)(a), no differently from (b) and (c), is a necessary element of liability for negligence. That is to say, a plaintiff must fail unless s 5B(1)(a) is made out. It follows that the judgment cannot be sustained on the reasons given by the primary judge.

5. It was against the possibility that this Court might so find that Mr Bridge relied on a notice of contention to support the s 5B(1)(a) finding that Coles was, or ought to have been, aware of the risk of harm. (The notice was filed late, but that reflected the fact that Coles had by its amended notice of appeal (which was confined to grounds 1, 9, 11 and 12) abandoned its challenge in grounds 2-5 of its original notice of appeal to the findings made based on the email. Coles was permitted to reagitate those grounds under grounds 1(b) and 9(b) of its amended notice of appeal, but at the price of Mr Bridge being permitted to rely on a notice of contention.) The notice relied upon the following matters:

“1. The area in which the Respondent fell was of smooth polished concrete;

2. The area was dangerously slippery;

3. The management of the Appellant regarded the presence of water in the car park as hazardous and posing a risk to safety (Exhibits CB244 and CB246);

4. No one was called by the Appellant to elucidate the meaning of the emails referred to above.”

6. We have concluded that those four matters were each established on the evidence. There is of course no difficulty with this Court making fresh findings of fact, as empowered by s 75A(6)(b) of the Supreme Court Act 1970 (NSW), and the desirability of avoiding a retrial (not to mention the obligation in UCPR r 51.53) is a sound reason to take that course, if findings may fairly be made based on the appellate record.

7. This Court’s ability to make findings of fact was enhanced by the somewhat unusual course of this trial, insofar as:

1. Coles called no lay evidence at all to explain or qualify the inferences available to be drawn from emails tendered by Mr Bridge;

2. Coles called no expert evidence to respond to the opinions of Mr Wagstaffe, the consulting engineer retained by Mr Bridge to express views on the slipperiness of the carpark surface where Mr Bridge fell and the steps which could have been taken to address the risks identified by him; and

3. counsel appearing for Coles at trial made no significant objections to Mr Wagstaffe’s report, and his cross-examination was brief (some ten pages of transcript).

8. It was not disputed that Mr Wagstaffe measured five locations in the vicinity of the area where Mr Bridge slipped and fell, and found coefficients of friction which were very low (0.27, 0.14, 0.11, 0.16 and 0.18). No criticism was made of the methodology adopted or the measurements obtained. His evidence that the surface at that point had a “polished finish” was unchallenged. The gravamen of Mr Wagstaffe’s opinion was that his tests had found a very slippery surface which, at least at four of the five places tested, had made a “very high contribution” to the risk of slipping when wet with water. He did not depart from that evidence in cross-examination.

9. Much of Mr Wagstaffe’s cross-examination concerned the change in and applicability of Australian Standards. A 1993 standard defined an acceptable surface as having a mean coefficient of friction of no less than 0.4, with no specimen in the sample being less than 0.35. The surface was considerably more slippery than that standard prescribed. Later standards appear to have been more qualitative, and to have tolerated more slippery surfaces depending on other factors (such as the slope or the presence of a handrail). It is not necessary to summarise the way this was explained in Mr Wagstaffe’s report or tested in cross-examination, and in any event, compliance or otherwise with a standard is not determinative of any issue at general law or under the Civil Liability Act. None of the complexity involving the changing Australian standards or Mr Wagstaffe’s cross-examination detracted from his conclusion that the slipperiness of the surface made a very high contribution to the risk of slipping.

10. That is sufficient to establish the first two matters in the notice of contention. The emails to which the third paragraph of the notice of contention refers were emails dated 3 October and 8 October 2013. Both are summarised in Emmett AJA’s judgment. The latter attached three photographs taken in the carpark. A close comparison between the pillars in the photograph and those shown on the plans for the carpark, coupled with the presence of a yellow traffic direction arrow painted on the floor and a drain, both of which may also be seen in the photographs identifying where Mr Bridge fell (for example, on page 22 of Mr Wagstaffe’s report), confirms that at least the first photograph attached to the email includes the very area where Mr Bridge fell. Ultimately, senior counsel for Coles accepted that the photographs depicted precisely the driveway or thoroughfare outside the doors entering into the underground carpark along which Mr Bridge was walking when he slipped and fell.

11. The photographs as reproduced in the appeal books display what appear to be the reflections of the overhead lighting in the carpark upon the wet concrete surface. It is not possible confidently to express any view about whether the photographs disclosed puddles or pools of water. Close examination of the photographs which are in evidence only serves to reinforce the caution which must attend reliance upon such evidence: see Goode v Angland [2017] NSWCA 311. But that does not matter for present purposes. What is important is that four months before Mr Bridge fell on the wet concrete surface of the carpark, the local store manager was attaching photographs of the same area, also wet, and complaining that “Our customers and our team have to push trolleys through this safety hazard”, and adding, “This is an incident waiting to happen”. It is tolerably clear that the perceived hazard was water, even though one cannot confidently identify the amount or depth of water in the photographs as reproduced, because of what was said in the covering email: “We have not had rain in Coffs Harbour for a long time and we have water this deep in our car park.” If some different inference was to be drawn from the email, no one from Coles was called to explain what it was.

12. As Emmett AJA observes, the immediate difficulty appears to have been either or both of a failure of the pumps or a build-up of silt in the pit around the pumps, and the response (by a contractor) was an (unspecified) “modification to the pumps” which would “give us some breathing space”. Emmett AJA also observes that the evidence was silent as to whether or not there had been any other complaint of an unduly slippery surface in the carpark.

13. There is a question as to the appropriate inference to be drawn in light of the limited evidence adduced by the parties. However, we would respectfully draw the inference, to the civil standard, that one aspect of the “safety hazard” which was appreciated by a local Coles manager at the time was the risk of a customer or staff member slipping on the wet surface of the carpark. We reach that conclusion because of the combination of the following considerations:

1. the local Coles manager referred to it as “an incident waiting to happen”, and it is notorious that a significant class of incidents at supermarkets is the slipping and falling of customers;

2. we find it difficult readily to identify any other risk to which the Coles manager might have been referring;

3. the fact of the matter is that the surface of the carpark in this area was, on the unchallenged evidence of Mr Wagstaffe, unduly slippery (his tests were of course conducted after the event, but we see no reason why they may not be used in order to assess the probable meaning of the Coles manager’s email); and

4. Coles did not adduce any evidence explaining or qualifying the email.

14. It follows that the critical finding required by s 5B(1)(a), that Coles was or ought to have been aware of the risk posed by the surface of the carpark when wet, may be sustained, albeit by reason of the October 2013 emails rather than those in February 2012.

Breach

15. We agree with Emmett AJA that if Coles were aware of the risk, a reasonable person would have taken the precautions of treating the surface with non-slip material and providing a pedestrian walkway. Ground 11 of the amended notice of appeal is not made out.

Formulation of risk of harm

16. By grounds 1(a) and 9(a) of its amended notice of appeal, Coles also maintained that the judgment at first instance disclosed an error of principle, namely, that the primary judge had formulated the risk of harm retrospectively. There is no doubt that that is what his Honour did. He said at [43] that the starting point of the inquiry required by s 5B, as with the previous common law, “is to accurately identify actual risk of injury for the purpose of elucidating the true source of potential injury.” At [44], his Honour reproduced what he had said in Vincent v Woolworths Ltd [2015] NSWSC 435; [2015] Aust Torts Rep 82-215 at [27] to the same effect:

“It should be recognised that there is an implicit degree of artificiality in assessing breach, after the event, prospectively. But the air of artificiality becomes overwhelming if one eschews all hindsight when correctly, or accurately, identifying the risk of injury at the outset. In putting it this way I am not attempting to defy authority binding on me rather, I am attempting to apply it in the ordinary, everyday business of the trial court. It seems to me, reading Gummow J’s judgment in Dederer, especially from p 351 to 355, as a whole, the question of the proper identification of the risk is a precursor to the assessment of breach. That is to say it is a question logically anterior to, and separate from, the assessment of breach. At that preliminary point it is permissible, indeed necessary, to know what happened and what act or omission the plaintiff says constitutes negligence. These matters involve hindsight. When these things are known, one then embarks upon (returns to, as Gummow J put it: Dederer at [65]) “to the inquiry into the assessment of breach”. From this point on, all hindsight reasoning is impermissible because hindsight diverts attention from what reasonable care required in foresight, to whether in hindsight the defendant could have prevented the accident which befell the plaintiff: Dederer at [65]; Vairy at [128]; Neindorf at [97].” (emphasis in original)

17. His Honour accordingly identified the risk of injury which materialised in the present case as the risk of a customer suffering personal injury by slipping and falling when walking over that portion of the carpark which was of smooth polished finish when wet: at [45].

18. A threshold difficulty confronted Coles’ challenge to this reasoning. Mr Bridge’s pleading identified a duty in conventional terms: a duty as occupier “to take such care as was reasonable in the circumstances to avoid exposing persons using the premises to a foreseeable risk of not insignificant injury”. Unlike some statements of claim, this pleading squarely engaged with the provisions of the Civil Liability Act. The pleading identified the particular risk of harm which was said to be not insignificant and in respect of which it alleged that a reasonable occupier would have taken precautions in terms.

19. In contrast, Coles’ defence chose not to admit duty or risk of harm, and made no positive allegation on those issues at all. That approach was unhelpful. It was reflected in its refreshingly candid response from senior counsel who appeared in this Court: “I can't defend the defence, it’s hopeless”. The way in which Coles had defended the litigation at first instance accordingly made this appeal an unsuitable vehicle for attacking the specificity of Mr Bridge’s pleading.

20. That said, we see no error in the approach taken by the primary judge. The provisions of the Civil Liability Act require the analysis to start with a risk of harm: see Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 at [104]-[107]. It seems plain that there is no single correct “risk of harm”, and that there are leeways of choice between formulations that are more or less general or specific: Uniting Church in Australia Property Trust (NSW) v Miller at [119]. However, it is “only through the correct identification of the risk that one can assess what a reasonable response to that risk would be”: Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [59] (Gummow J, with whom Heydon J agreed).

21. As Basten JA said in Garzo v Liverpool / Campbelltown Christian School [2012] NSWCA 151 at [7], “the risk must be that which materialised in the case of the injured person seeking to claim in negligence”. Meagher JA said at [22]:

“To address the questions and considerations in s 5B, it is necessary to formulate a plaintiff’s claim in a way which takes account of the precautions which it is alleged should have been taken and identifies the risk or risks of harm which the plaintiff alleges eventuated and to which those precautions should have been directed.”

22. Both formulations use hindsight, in the sense that they insist that the legal analysis be framed so as to encompass the risk which is claimed to have materialised and caused the damage of which the plaintiff complains. That seems to be entirely unexceptional. It has been said that the formulation of risk of harm should identify the “true source of potential injury” (Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [60]) and the “general causal mechanism of the injury sustained” (Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 at [98]); see also Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146 at [43]. In Erickson v Bagley [2015] VSCA 220 at [33] and in Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 310 at [55], the Victorian Court of Appeal said, “Necessarily, the risk must be defined taking into account the particular harm that materialised, and the circumstances in which that harm occurred.” What is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning, because, for example, it obscures the true source of potential injury (as noted in Dederer at [60]) or because it too narrowly focusses on the particular hazard which caused the injury (as noted in Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; [2014] Aust Torts Rep 82-172 at [67]), or because it fails to capture part of the plaintiff’s case (as in Garzo).

22. Customers pushing trolleys through Coles’ carpark faced at least two broad classes of foreseeable risk of personal injury: the risk that they might slip and fall and injure themselves, and the risk that they might be hit by a moving vehicle and suffer injury. The former materialised in the present case. It would be entirely beside the point to formulate a risk of harm so general that it extended to the latter class of case and the different questions (for example, whether the risk is “not insignificant”, the seriousness of the possible harm, and the different precautions to be taken) presented by that class of case.

23. These grounds are not made out.

Contributory negligence

25. Those conclusions make it necessary for us to address contributory negligence. We broadly agree with Emmett AJA’s reasoning on this issue, although on the view we take it is necessary to pursue it to finality.

26. As argued in this Court, there were two main elements to Coles’ case on contributory negligence: (a) that Mr Bridge was not paying attention, but rather was attending to his mobile phone while helping to push his trolley, and (b) that he was wearing thongs. Like Emmett AJA, we agree that there is nothing in Mr Bridge’s footwear constituting contributory negligence, and that the position is different in relation to the first element. Mr Bridge candidly acknowledged that he was paying less attention than he might have been to his surroundings.

27. Consistently with the evidence, the primary judge found that “Mr Bridge was momentarily inadvertent when he gazed at his phone to answer it” and was “satisfied that his attention was temporarily distracted by the process”: at [70]. The primary judge rejected the submission that that amounted to contributory negligence because (a) it was “momentary” and (b) “I am satisfied that he would have slipped when and where he did even if he had not been answering his phone”. We deal with each in turn.

28. The first component of the reasoning was expressed in language recalling the issue as framed in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 493, namely, whether, assuming that the defendant has been negligent and taking into account all relevant circumstances, the plaintiff’s conduct “amounted to mere inadvertence, inattention or misjudgment, or to negligence”. As explained by Windeyer J in Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37; [1964] HCA 16, a temporary inadvertence or inattention may nonetheless be “excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man”. Most such cases involve employees (see for example Agresta v Agresta [2010] NSWCA 330 at [26]-[27]). True it is, as was emphasised in McLean v Tedman (1984) 155 CLR 306 at 315; [1984] HCA 60, that there is no special rule for employees involved in familiar and repetitive tasks. However, we do not consider that this is such a case.

29. The question is whether the plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person would take: Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 at [34], [38] and [70].

30. Mr Bridge was steering his trolley on the short journey to his vehicle, on the wet surface of the carpark. He was aware of the wet conditions in the carpark from walking from the car into the shop a few minutes earlier. On his return to the carpark after shopping, rather than refraining from answering his phone, or stopping while he took the call, he chose to continue steering the trolley, with one hand, while concentrating on his handset. The fact that this was “momentary” does not, in our opinion, detract from the conclusion that a reasonable person in his position would not have proceeded into the carpark, while distracted by his handset, but would either have stopped or else refrained from taking the call. As Mr Watson submitted, very many cases of contributory negligence involve momentary lapses in attention. The momentary inadvertence of Mr Meakes while crossing a road was held at first instance not to give rise to contributory negligence (see Meakes v Nominal Defendant [2011] NSWDC 9 at [224]), but this Court allowed an appeal: Nominal Defendant v Meakes [2012] NSWCA 66; 60 MVR 380. We do not agree that Mr Bridge’s “momentary” inattention is an answer to Coles’ case of contributory negligence; to the contrary, it was conduct which departed from what the ordinary reasonable person in his position would do.

31. Secondly, it was necessary for Coles to establish that the lack of attention by Mr Bridge causally contributed to the damage suffered by him. This flows ultimately from the abrogation of the defence of contributory negligence at law and the apportionment effected by s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 in cases where “a person (the claimant) suffers damage as the result partly of the claimant’s failure to take reasonable care (contributory negligence) and partly of the wrong of any other person”. Because Part 1A of the Civil Liability Act applied, s 5R is also relevant, and requires questions of culpability to be assessed by reference to ss 5B and 5C: see Verryt v Schoupp [2015] NSWCA 128; 70 MVR 484 at [27] and the authorities there cited. Divergent views have been expressed as to whether s 5D is applicable to the determination of causal contribution for contributory negligence, or whether the “common sense” approach in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 applies (for completeness, we mention that, on one view, “as a result of” in s 9 is a separate statutory test distinct from the tests formulated at common law and under s 5D). In Verryt v Schoupp it was conceded that the primary judge had erred in addressing “scope of liability” under s 5D(1)(b) for the purposes of contributory negligence (see at [27]), with the result that this Court did not address the contrary approach applied in Nominal Defendant v Rooskov [2012] NSWCA 43; 60 MVR 350 at [142]-[145]. In many and probably most cases, nothing will turn on this. In the present appeal, no submissions were made on the point, and because for the reasons which follow it is not necessary to resolve the point, it would be inappropriate to do so.

32. It is very difficult to slip and fall, even if walking on a slippery surface, if one is pushing a trolley and giving reasonable attention to that task. The reason is simple: in addition to the ordinary support and balance of one’s feet, there is the advantage of support and balance from at least one, and commonly both, hands on the trolley. Of course the trolley is moving, but it will be doing so generally at the same speed and in the same direction as the person, thus providing a further source of support and balance in the event of a slip.

33. When Mr Bridge chose to answer his mobile phone, he removed one hand from the trolley, and focussed on his handset. We would readily conclude that doing so causally contributed to his falling. His inattention and his having only a single hand on the trolley made it more likely that he could not save himself from his slip and instead would fall to the ground.

34. Accordingly, we respectfully differ from the primary judge. We do not understand his Honour’s finding to be advantaged in any way by the fact that he had seen Mr Bridge give evidence, and of course Mr Bridge could not give direct evidence of the counter-factual position which would have obtained had he not answered his mobile phone save to the extent of an admission against interest: Civil Liability Act, s 5D(3)(b). Moreover, we note that the primary judge stated that “Mr Bridge would have slipped when and where he did even if he had not been answering his phone”, which falls short of a conclusion that Mr Bridge would not only have slipped, but also would have fallen and injured himself, as opposed to saving himself before he fell.

35. We turn to apportionment. In this Court, Coles submitted that Mr Bridge should bear a relatively high proportion of the responsibility. A more sanguine approach was adopted at trial, when counsel then appearing said “if your Honour finds against my client, a finding of contributory negligence of 25%”. Of course, this Court is not bound by the approach adopted at trial, but there is nothing to prevent regard being had to what was then perceived by Coles as a realistic apportionment. An apportionment whereby Coles bears three quarters of the responsibility for the damage, and Mr Bridge bears one quarter, is a just and equitable apportionment, having regard to the relative contributions of the parties to Mr Bridge’s injury.

Orders

36. Accordingly, we conclude that Coles remains liable to Mr Bridge, but he is entitled to a lesser judgment. There is no reason to alter the costs ordered at first instance. Coles’ partial success on appeal, on only one of its grounds, in an appeal the main focus of which was setting aside the entirety of the judgment, warrants a partial costs order, that it pay two thirds of the respondent’s costs of the appeal.

37. We propose the following orders:

1. Appeal allowed in part.

2. Set aside the judgment entered on 19 December 2017 in the amount of $769,381, and in lieu thereof enter judgment for the plaintiff in the sum of $577,035 (being 75% of the amount earlier ordered).

3. Otherwise dismiss the appeal.

4. The appellant to pay two thirds of the respondent’s costs of the appeal.

38. EMMETT AJA: The appellant, Coles Supermarkets Australia Pty Ltd (Coles), is the tenant of premises situated at Coffs Harbour, New South Wales, which include a supermarket and car parking areas (the Premises). Coles occupies the Premises as a tenant under a lease granted by Canzon Pty Ltd and entered into possession on 15 February 2012. The construction of the Premises was conceived and developed in consultation with Coles and according to its requirements.

39. On 6 April 2014, the respondent, Mr Larry Bridge (Mr Bridge), slipped on water lying on the floor of the below ground car park of the Premises and fell, as a consequence of which he suffered significant injury. He sued Coles in the Common Law Division seeking damages on the basis that the injuries sustained by him were caused by breach on the part Coles of the duty of care that Coles, as occupier of the Premises, owed to him. On 19 December 2017, for reasons published on that day, a judge of the Common Law Division (the primary judge) directed the entry of judgment for Mr Bridge against Coles in the sum of $769,381. The primary judge ordered Coles to pay Mr Bridge’s costs of the proceedings.

40. By its amended notice of appeal filed on 18 April 2018, Coles appeals from the orders made by the primary judge. Coles contends that his Honour erred in concluding that Coles breached a duty of care owed to Mr Bridge and, in addition, that his Honour erred in failing to find that Mr Bridge contributed to his loss and damage by his own negligence. By his notice of contention filed without opposition on 4 July 2018, during the course of the hearing of the appeal, Mr Bridge seeks to support the conclusion reached by the primary judge on other grounds.

The Injury to Mr Bridge

41. In his amended statement of claim, Mr Bridge made, relevantly, the following allegations:

• On 6 April 2014, Mr Bridge left the supermarket by means of a travelator that provided access to the underground car park and commenced to walk across the car park towards his parked motor vehicle;

• The floor of the car park was wet with large sections of the floor covered with water and, in order to proceed to his motor vehicle, Mr Bridge had to walk through the water. As he did so, he slipped and fell to the floor suffering injury;

• Coles was under a duty to take such care as was reasonable in the circumstances to avoid exposing persons using the car park to a foreseeable risk of not insignificant injury;

• Such risk included the risk of a person, when using the underground car park by walking towards a parked car, slipping on the wet surface of the car park and suffering personal injury.

• The risk that:

(i)   in certain circumstances the surfaces of the underground car park may become wet;

(ii)   when wet, the surface of the car park was slippery; and

(iii)   a person walking on the floor of the car park may slip and fall as result of the slippery surface

was a risk of which Coles was aware or of which Coles ought to have been aware;

• The risk of such harm occurring was, in the circumstances, not insignificant because:

(i)   large numbers of persons were expected to use the underground car park to gain access to and egress from the supermarket and to pass between their parked motor vehicles under the supermarket;

(ii)   the fact that the surface of the car park was slippery when wet was not apparent on visual inspection of the surface;

(iii)   in the event that such a person slipped and fell to the concrete floor, serious injury may occur; and

(iv)   the surface, although wet, appeared safe for pedestrian traffic.

• The injuries sustained by Mr Bridge were caused by the breach of duty of care owed by Coles to Mr Bridge in that Coles:

○   provided to those of its customers who used the underground car park a pedestrian surface that was slippery when wet;

○   failed to provide a surface to the underground carpark which was slip resistant when wet;

○   failed to provide a surface to the carpark which was non-slip when wet;

○   failed to provide to its customers an underground carpark surface upon which they could walk (with a normal stride and pace), safely in all weather conditions;

○   failed to maintain within the carpark a pedestrian walking surface with a minimum co-efficient of friction, when wet, of 0.4;

○   failed to install "Slippery when Wet" signs at the entrance to, and within, the underground carpark;

○   failed to take any, or any adequate steps, to improve the slip resistance of the surface of the underground carpark;

○   failed to provide safe means of access to and egress from its supermarket;

○   failed to undertake a risk assessment of the surfaces within the underground carpark for the purpose of identifying hazards and implementing appropriate and effective risk control measures; and

○   failed to install delineated pedestrian walkways within the underground carpark, such walkways to have surfaces made with non-slip material and/or other non-slip products including non-slip surface treatments.

42. In its defence filed on 15 June 2016 (the Defence), none of the above allegations was admitted by Coles and the allegation of breach of duty was denied by Coles. In addition, by the Defence, Coles alleged that any injury, disability, loss or damage suffered by Mr Bridge was caused or materially contributed to by his own negligence in failing:

(a)   to maintain a proper lookout;

(b)   to take adequate care for his safety in circumstances where he knew or ought to have known a slipping hazard existed;

(c)   to walk around a slipping hazard;

(d)   to avoid a slipping hazard; and

(e)   to observe his surroundings.

43. Mr Bridge’s evidence as to the circumstances of his fall are not in dispute. His oral evidence-in-chief was as follows:

“Q.   Having completed your shopping, did you have your purchases in a trolley.

A.   Yes.

Q.    Did you leave the supermarket and travel down the travelator?

A.   Yes.

Q.   Did you walk towards your car?

A.   Yes.

Q.   As you walked towards your car, who was pushing or pulling the trolley?

A.   I was pushing the trolley, and my wife was pulling the trolley.

Q.   Who was steering it?

A.   I was steering it.

Q.   Were you using one hand or two hands?

A.   One hand.

Q.   What did you have in your other hand?

A.   I had my mobile phone in my other hand.

Q.   As you were walking, were you watching where you going?

A.   I was watching where I was heading.

Q.   Did you notice anything about the floor of the car park?

A.   Yes.

Q.    What did you notice?

A.    The floor was wet.

Q.    When you say it was wet, did it look like there was a large quantity of water or just the odd drop, what was it?

A.   It was a large quantity of water, yes.

Q.   In terms of the route between where you were and your car park, where was it located?

A.   It was a - located all the way - the passageway and out towards where the cars were parked.

Q.   What do you mean the passageway?

A.   The walkway - the driveway - the aisle, yeah.

Q.   Between the parked cars - the area between the parked cars?

A.   Yes.

Q.   As you were walking along, did something happen to you?

A.   Yes.

Q.   What happened?

A   I had a -I had a slip and a fall.

Q.   Just firstly, when you say a slip and a fall, can you describe - firstly which foot first slipped?

A.   My left foot slipped.

Q.   And how did it slip?

A.   It slipped forward and out from under me.

Q.   Suddenly?

A.   Suddenly.

Q.   Had there been any forewarning of it?

A.   No forewarning, just instant.

Q.   And what happened to you?

A.   I – I took a - a heavy, hard fall to the floor hitting my head – yeah.

Q.   And some other part of your body?

A.   Yes, my left - my left side, my hip.”

44. Mr Bridge’s evidence in cross-examination was as follows:

“Q.   Upon arrival, as you left your car and you walked towards the doors, was your wife on your left, or your right, in front of you, or behind you?

A.   I don't recall.

Q.   Where was your phone?

A.    In my hand?

Q.   Are you sure it was in your hand and not in your pocket?

A.   No.

Q.   So if you're unsure, please don't guess, and just you don't recall or you don't know.

A.   I don't recall.

Q.   The one thing you are sure about is that on the way back to your car, you were holding your phone. Weren't you?

A.   Yes.

Q.   Were you looking at your phone or about to look at your phone?

A.   Yes.

Q.   For the purposes of sending a message, receiving a message, or making or taking a phone call. Which one?

A.   Making.

Q.   Who were you about to call?

A.   My brother.

Q.   So you were about, were you in the process of dialling when you slipped.

A.   No.

Q.   You were about to dial when you slipped?

A.   No. No. I recall I was answering my phone.

Q.   You were answering your phone.

A.   I was answering my phone.

Q.   A minute ago I think you said you were about to dial your phone.

A.   I was answering.

Q.   Are you sure?

A.   Yes.

Q.   If you're sure, why is it that a moment ago you said you were about to dial your phone.

A.   NO, I picked my phone up, I was answering. I was answering.

Q.   A moment ago you said you were about to dial. Didn't you?

A.   Yeah, I did. Yes.

Q.   Now why did you give his Honour that evidence in circumstances where you now say you were about to pick up your phone?

A.   Well, I was. Yeah. I don't have an answer, your Honour. I was just, yeah. But l definitely was answering.

Q.   Were you looking at your phone when you slipped?

A.   No.

Q.   Can his Honour proceed on the basis that you were not as careful as you could have been as, insofar as looking at where you were walking when you slipped?

A.   Yep.

Q.   Because you were looking or dealing with your phone.

A.   Yes.

Q.   You're aware, aren't you, that a typical surface whether it be the floor in the car park at Coffs Harbour, or the floor within the shopping centre, is likely to be more slippery when wet compared to when it is dry?

A.   Yes.

…

Q.   Mr Bridge, you know, that if you're wearing thongs, for example, and you're inside the Coles shopping centre, carrying out shopping, if the surface is wet, it's likely to be more slippery than when it is dry. You're aware of that, aren't you?

A.   Yes.

…

Q.   Mr Bridge, what I want to suggest to you: that, as a matter of common sense, this car park floor is likely to be more slippery when wet, than it would be when dry. Would you agree?

A.   Yes.

Q.   You've given some evidence that your wife was walking in front of you when you slipped. Do you recall giving that evidence?

A.   Yes.

Q.   How far in front of you was she?

A.   She was on the front of the trolley.

…

Q.   Upon arriving at the car park, as you got out of your car and walked towards the doors, as you've identified earlier, you did not walk into any puddle or pool of water, did you?

A.   No.

Q.   What I want to suggest to you is that when you returned to the car, similarly, you did not walk into a pool or puddle of water, would you agree?

A.   No.

…

Q   And the water you walked through, was that before you fell?

A.   Yes.

Q.   So is your evidence this: you walked through a puddle of water. How deep do you say this puddle was?

A.   It was a pool of water; I don't know how deep it was.

Q.   But you didn't slip in that pool of water. You slipped past that pool of water, is that the position?

A.   Yes.

Q.   On water which you would describe as having been tracked in by other vehicles, is that the position?

A.   Yes.”

The Risk of Harm

45. The evidence before the primary judge included a report of 26 November 2015 by Mr Jason Wagstaffe and Mr David Cockbain concerning investigations that they conducted in relation to the surface of the car park (the Wagstaffe Report). Mr Wagstaffe was instructed to undertake “a slip test” in relation to the location where Mr Bridge fell in order to determine the “co-efficient of friction”. Much of the Wagstaffe Report contained opinions in respect of which the requirements of s 79 of the Evidence Act 1995 (NSW) were clearly not satisfied. However, the admission of the Wagstaffe Report was not a ground of appeal.

46. The Wagstaffe Report stated that the co-efficient of friction between two materials is determined by measuring the lateral force needed to move one object in a sliding motion across the surface of the second object and that the force required is generally a linear function of the normal force over the contact area between the two surfaces. The Wagstaffe Report stated that the co-efficient of friction is a property of the two interacting surfaces and is usually independent of the area of contact. The co-efficient of friction is determined by dividing the lateral force by the normal force, giving a “dimensionless co-efficient”. Co-efficients of friction can vary between almost zero for very slippery surfaces to over 1.0 for rubber and synthetic polymers on very rough surfaces.

47. The Wagstaffe Report set out the equation used to determine a co-efficient of friction by reference to Australian Standard AS4663 and Australian Standards Handbook, HB197–1999, in which “non-slip” is equated with being “safe for normal stride or pace and moderate attention” and with a “wet pendulum co-efficient of friction of 0.35 to 0.46 depending on exposure and traffic requirements”. It stated that its authors applied the principles and utilised the procedures set out in AS4663 and HB197–1999.

48. The Wagstaffe Report recorded that the surface of the car park consisted of what appeared to be concrete with a “polished” finish and that no coatings of any kind were visible at the time of the surface testing. It stated that a representative selection of five test locations was made, based on the identification of the position where Mr Bridge slipped. It appears to be common ground that the specific location of the test conducted by Mr Wagstaffe was the place where Mr Bridge slipped and fell.

49. The Wagstaffe Report then set out the measured results from each of the test samples and calculated the co-efficient of friction for the five locations as being 0.11, 0.14, 0.16, 0.18 and 0.27. It stated that the minimum safe co-efficient of friction for a flat surface pedestrian walkway was 0.4 and expressed the opinion that, in the light of those results, the surface of the car park gave a “very high” risk of slipping when wet.

50. The Wagstaffe Report outlined preventative measures that it said could have been implemented by Coles and asserted that those measures were “reasonable” and “should have been implemented”. The measures included the treatment or modification of parts of the surface within the car park by applying a slip resistant substance giving rise to a minimum co-efficient of friction of 0.4 in accordance with AS4663, which deals with “slip resistance measurements of existing pedestrian services”. The Wagstaffe Report also suggested that non-slip material and other non-slip products, including non-slip surface treatments, could be applied to areas delineated as a pedestrian walkway.

51. Thus, there was evidence before the primary judge to support a conclusion that the surface of the car park where Mr Bridge slipped was such that, when wet, it constituted a risk of harm to pedestrians that was not insignificant. There was also evidence that that risk could be reduced at a cost that was probably not excessive. The question is whether that risk was one of which Coles knew or ought to have known. In that regard, it is significant that no other part of the car park surface was tested by Mr Wagstaffe.

Coles Awareness of a Risk

52. The primary judge attached considerable significance to an email communication sent on 22 February 2012 to Mr Domenic Marino, the Retail Leasing Manager of Coles, by Mr Lance Cousins, a director of Lance Cousins Group Pty Ltd, Retail Designers and Project Managers, who were apparently responsible for the development of the Premises. The terms of the email were as follows:

“We have carried out a review of the carpark following undetailed criticism of its condition since opening. A detailed review indicates approximately 3 areas around 2M2 where there is some discolouration of the surface due to some mud ingress during the pouring process. The [sic] is as a result of the carpark slab being excavated and constructed from Oct 2010 - Apr 2011. One of the wettest 6 month periods experienced in Coffs Harbour for many years with a rainfall of 1500mm. At that time some areas of the carpark were covered with up to 400mm of muddy water. The balance of the areas are a good clear commercial broomed nonslip finish as required by the contact.

It should also be appreciated that because of the very high water table and the insistence of CHCC that the carpark be recessed into the ground an average 1500mm, the carpark was required to be constructed as a giant reinforced swimming pool to ensure it was watertight. As a result, the carpark slab & side retaining walls are constantly under very high external water pressure which in the short term will result in minor water ingress points which are being resolved by the builder when these points become apparent. Incidentally, this water pressure required the installation of 90 rock anchors of 65-90 ton capacity fixed into bedrock at 13m - 25m depth to hold the building down & stop it from floating. This is not just a simple infill carpark slab!

We acknowledge that the finish is not the same as a smooth Westfield polished type carpark finish however as the carpark is designed to accept floodwater on occasions together with the occasional pressurised ingress from the water table, a smooth surface would be highly dangerous if wet & may leave Coles open to litigation. It should also be noted that some rain ingress will be experienced through the open sides of the carpark and due to the code requirement for free carpark ventilation, this must be accepted.”

53. Coles contends that the primary judge misconstrued the email in significant respects. His Honour found that Coles must have known that the surface of the car park was not of a uniform finish, in that parts of the car park floor exhibited a smooth polished finish and other parts a commercial broomed finish. His Honour inferred that that difference in finish was not simply due to natural variations in the completion of the essentially manual task of screeding during construction but was explained by the contents of the email of 22 February 2012.

54. The primary judge observed that, although the email referred to “some discolouration of the surface”, it also distinguished that part of the surface from “the balance of the areas” which “are a good clear commercial broomed nonslip finish as required by the contract”. His Honour also observed that the email addressed differences that might be expected in the performance of the broomed non-slip finish compared with a “smooth Westfield polished type carpark finish”. His Honour inferred from the observation that “a smooth surface would be highly dangerous if wet” and “may leave Coles open to litigation”, that the danger, if wet, related to a risk of pedestrians slipping on a wet smooth surface. His Honour also observed that the email referred to what his Honour would regard as a likelihood of a high frequency of the car park being wet for various reasons and added to those matters the common experience that, in wet weather, entering vehicles will “track” rainwater on to the surface of the car park.

55. The primary judge found that the areas of smooth polished finish were large enough to be apparent to Coles as occupier and that Coles had actual notice of the inefficiency of smooth polished concrete as a means of passage when wet. His Honour appears to have concluded that there was “a correlation between” what was referred to in the email as “an area of discolouration” and the smooth finish. His Honour concluded therefore that that matter and the reason for it had been drawn to the specific attention of Coles “during the email correspondence about the performance of the surface of the car park”. It is not entirely clear whether the reference to “the email correspondence” was to the email of February 2012 or whether it was also intended to refer to later email exchanges in September and October 2013.

56. Later in his reasons, the primary judge referred to the email exchanges of September and October 2013, which, his Honour said, demonstrated that persons occupying management positions at Coles in fact had an appreciation that there was a “safety hazard” for customers and employees alike. Those email exchanges were the subject of Mr Bridge’s notice of contention.

57. On 30 September 2013, Mr Marino sent an email to Mr Cousins saying that the “water issue” at Coffs Harbour was becoming “critical”. He asked Mr Marino how he was progressing “with getting these works undertaken”.

58. Mr Cousins replied on 3 October 2013, saying that he had inspected the store that morning and was at a loss to understand the “critical” nature of the problem. Mr Cousins said that there was no evidence of water “to the shopfront area” and that the seepage to the car park had significantly reduced. He said that it was evident that the pump to the central car park sump was inoperative and that, as a result, drainage feeding into the pit was overflowing into the car park. He said that that had been the case for almost three weeks and had been raised by him with a senior member of staff some two weeks before.

59. Later on 3 October 2013, Mr Marino sent a further email to Mr Cousins saying that the urgency from the perspective of Coles was that there was a concern that a heavy rain downfall would “cause safety issues” and significant interruption to customers and their convenience in the shopfront area and seepage to the car park. Mr Marino said that “our operations team” were concerned that “any water leaks or seepages will have a negative impact on safety”.

60. On 8 October 2013, Ms Carolyn Herbert, the Coles Store Support Manager at Coffs Harbour, sent an email to several people, including Mr Marino, attaching photos of the car park. Ms Herbert said that “our customers and our team” have to push trolleys through “this safety hazard”. She said that they had not had rain in Coffs Harbour for a long time but that “we have water this deep in our car park”. She said that “the scary thing” was that clouds were forming and rain had been forecast. She asked what the car park would look like then. She said “this is an incident waiting to happen” and asked whether “we are any closer to the pump controls being fixed”.

61. On 14 November 2013, Mr Aido Schepis, a Retail Store Technician from Coles, sent an email concerning the sump pump. The email said that the rectification works had been completed on the previous Monday and that the pumps were “running automatically”. He said that the “modifications to the pumps will give us some breathing space but we are dealing with a lot of silt”.

62. Thus, the exchange of September and October 2013 was clearly concerned with the malfunction and rectification of the sump pump. However, the significance placed on the exchange by Mr Bridge is not that the sump pump was faulty but that it demonstrates awareness on the part of Coles’ management that the presence of water on the floor of the car park constituted a “safety hazard”.

Conclusions of the Primary Judge

63. The primary judge recorded that the case advanced against Coles by Mr Bridge was a failure to take precautions against the risk of harm that materialised in his case. His Honour referred to three precautions as follows:

• carry out tests of the type subsequently performed for the purpose of the Wagstaffe Report to ascertain the degree of slipperiness of that part of the car park having a smooth polished surface;

• under creating a non-slip walkway as described and suggested by the Wagstaffe Report; and

• erecting warning signs stating “Slippery when wet”.

The primary judge was not satisfied that a reasonable person in the position of Coles would have taken the precaution of carrying out slip resistance testing. Further, his Honour was not satisfied on the balance of probabilities that the erection of the warning signs would have avoided the risk of harm in this case.

64. However, the primary judge was satisfied, on the balance of probabilities, that Coles was negligent in failing to treat “the smooth polished surface” with non-slip material as described in the Wagstaffe Report. However, although his Honour said that the evidence suggested that that area was not extensive, his Honour did not identify the area. His Honour concluded that it would have been sufficient to create a walkway at the edge of the trafficable lane in the car park in a prominent manner so as to attract the attention of entrants and encourage its use. His Honour said that that could be done simply by creating the appearance of a pedestrian walkway or the adoption of appropriate stripes or hatching of the type with which pedestrians are very familiar in car parks.

The Appeal

65. The first two grounds of appeal relied on by Coles are linked. First, Coles asserts that the primary judge erred in finding that Coles owed Mr Bridge a relevant duty of care and in formulating the content of the duty of care said to be owed by Coles to Mr Bridge, by making findings in respect of the relevant duty of care retrospectively rather than prospectively and by formulating the duty of care retrospectively rather than prospectively. Secondly, Coles asserts that the primary judge erred in finding that Coles was aware that the portion of the car park surface upon which Mr Bridge slipped was “dangerous” because it had a “smooth polished finish”.

66. There is an inherent danger in looking first to the cause of damage and what could have been done to prevent that damage and determining the relevant duty, its scope and content from that point. It is erroneous to begin the inquiry as to the scope and content of the relevant duty by focusing only upon questions of breach of duty. To do so is erroneous because the assumption that is made about the content of the duty of care may fail to take fundamental aspects of the relationship between the parties into account[1] .

    1. See Kuhl v Zürich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [19].

67. The identification of risk is central to the determination of civil liability for failure to exercise reasonable care. One can only assess what a reasonable response to that risk would be by correctly identifying the risk and the assessment of breach depends upon the correct identification of that risk[2] .

    2. See Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 at [102]; citing Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [59].

68. The determination of whether a reasonable person in the position of a defendant would have been aware of a particular risk and would have taken precautions to avoid the risk, must, of necessity, have a retrospective element. The formulation of the duty of care owed by a defendant to a plaintiff depends upon an assessment of what was reasonable for a person without knowledge of an incident that has actually happened. However, it is necessary to limit the inquiry by reference to what is relevant in the light of the plaintiff's claim. In any event, for the reasons that follow, the reasoning of the primary judge was erroneous in so far as his Honour placed reliance on the email of February 2012.

69. The reasoning adopted by the primary judge in relation to the email of February 2012 misconstrued its effect. In so far as his Honour found that any such awareness by Coles of the relevant risk arose by reason of the email of February 2012, his Honour erred. There is nothing in the email of February 2012 that would give rise to concerns. The first paragraph draws a distinction between “three areas around 2M2”, on the one hand, and the “balance of the areas” on the other hand. The first is described as having “some discolouration”. The balance is described as having “a good clear commercial broomed non slip finish”. There is nothing to suggest that the “discoloured” areas did not have a “broomed non slip finish”. In any event, there was no evidence to suggest that the location of Mr Bridge’s fall was within any of the “discoloured” areas that were referred to in the email of February 2012.

70. The last paragraph of the email of February 2012 draws a distinction between a “smooth Westfield polished type car park finish” and the finish of the car park in the Premises. It points out that, as the car park is designed to accept floodwater on occasions, a smooth surface would be highly dangerous if wet. Thus, the email reassures the reader that the surface of the car park is not smooth but has a commercial broomed non-slip finish. There is nothing in the email to alert the reader that the surface of the car park was such that it would be dangerous if wet. Rather, the email asserts that it has a different surface to ensure that it would not be dangerous if wet.

71. However, Mr Bridge asserts in his notice of contention that the email exchanges of September and October 2013 are capable of supporting a finding that Coles was aware that water lying on the surface of the car park constituted a risk of harm to pedestrians. The precise nature of the “safety hazard” referred to in the exchange was not identified. In particular, the Wagstaffe Report dealt only with the five locations near the area where Mr Bridge slipped and fell. The subject matter of the exchange of September and October 2013, however, was the presence of water because of a defect in the sump pump, which appears to have been located in quite a different part of the car park. It is by no means clear that the “safety hazard” referred to in the exchange of September and October 2013 was the risk of a pedestrian slipping on an obviously wet surface while taking reasonable care for his or her own safety.

72. Apart from the exchange of September and October 2013, there was no evidence of any complaint having been made to Coles that water on the surface of the car park rendered the surface slippery and there was no evidence that Coles had any knowledge of any person slipping on the surface of the car park prior to the incident involving Mr Bridge. On the other hand, Coles took no steps to establish that, as a matter of fact, there had been no such complaints and no such incidents.

73. For example, there was no evidence adduced on behalf Coles concerning incident reports. It might have been possible for Coles to adduce evidence from a witness who had responsibility for recording any such matters on behalf of Coles in circumstances where an inference can be drawn that an entity such as Coles would maintain such records. The unexplained failure by a party to adduce evidence as to a matter within its knowledge may, in appropriate circumstances, support an inference that such evidence would not have assisted the party’s case. Further, the failure to adduce evidence may also permit the Court to draw, with greater confidence, any inference unfavourable to the party who fails to adduce that evidence[3] . Accordingly, the most that can be said is that there was no evidence of any prior complaint or incident. It does not follow that the evidence established that there was in fact no such prior complaint or incident. The evidence is therefore equivocal and indecisive as to that question.

    3. See Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 at 320-321.

65. Neither the author nor the recipient of the emails of September and October 2013 was called to explain what was intended by “safety hazard” or what was understood by “safety hazard”. The question is whether, in the state of the evidence, it is appropriate to draw the inference that appropriate officers of Coles were aware that there was an unusual risk of a pedestrian slipping and falling when walking on the surface of the car park while it was wet.

66. As indicated above, Mr Bridge was aware that water on the surface of the car park constituted a hazard. There is no basis for concluding that Coles should have understood that the hazard was any different from the risk that any smooth concrete surface is likely to be more slippery when wet than when dry. The communication of February 2013 indicates that the surface of the car park had been completed in a manner intended to take account of the fact that the car park was open to the elements and would be likely to be wet. I am not persuaded, on the balance of probabilities, that Coles was aware or ought to have been aware that any part of the surface of the car park was likely to be unusually slippery when wet. I am not persuaded that Coles breached its duty of care to Mr Bridge by failing to take the precautions suggested by the Wagstaffe Report.

67. The third ground of appeal was that his Honour erred in finding that Coles breached its duty by failing to treat the surface of the car park with non-slip material and failing to create a walkway at the edge of the trafficable lane in the car park. A reasonable person in the position of Coles who knew of that risk would have taken precautions against that risk. The precautions that could have been taken included those found by the primary judge. Coles has not demonstrated any error on the part of his Honour in making that finding.

Contributory Negligence

77. The primary judge accepted Mr Bridge was “momentarily inadvertent” when he gazed at his telephone to answer it and was satisfied that his attention was temporally distracted by that process. However, his Honour accepted that that “mere inadvertence” did not constitute contributory negligence because it did not constitute a failure to keep a proper lookout and the particular risk that materialised was not obvious. His Honour concluded that the risk could not have been avoided by Mr Bridge simply paying greater attention to where he was walking. His Honour concluded that Mr Bridge would have slipped when and where he did, even if he had not been answering his telephone but rather had been looking ahead at the surface he was about to cross.

78. Coles also relied upon the fact that Mr Bridge was wearing thongs at the time. His Honour observed that there had been no evidence that thongs per se are unduly slippery or that the thongs that Mr Bridge was wearing were unduly slippery. The thongs were relatively new and Mr Bridge had worn them in the rain in other similar situations over wet concrete without difficulty. Mr Wagstaffe expressed the opinion that the degree of slipperiness of the concrete floor was such that safety work boots or a similar type of footwear would have been necessary to obviate the risk of slipping. His Honour concluded that, since thongs are “very common footwear” in Australia, it was not unreasonable for Mr Bridge “to sport them even on a rainy day”. His Honour concluded that Coles had not established contributory negligence on the part of Mr Bridge.

79. Coles complains that the primary judge erred in breaking down the contributory negligence case as though it only comprised two separate elements, being the wearing of thongs in wet weather and by being “momentarily inadvertent” when Mr Bridge gazed at his mobile telephone. It is of some relevance that the particulars of contributory negligence relied on by Coles in the Defence did not include wearing thongs in wet weather. However, it is clear enough that the case was conducted on the basis that the wearing of thongs was relied upon by Coles as an aspect of contributory negligence. In the course of cross-examination, Mr Bridge gave evidence as set out at [44] above.

80. Apart from the concessions made by Mr Bridge in the course of cross-examination, there was no evidence that the sole of thongs would be more likely to slip on wet concrete than the sole of any other shoes that might ordinarily be worn by an individual when visiting a supermarket. I do not regard the wearing of thongs in wet weather was, of itself, an element of contributory negligence.

81. Much more significant, however, was the finding made by the primary judge that Mr Bridge “was momentarily inadvertent when he gazed at his phone to answer it” and “his attention was temporarily distracted by the process”. Mr Bridge was conscious of the fact that concrete was likely to be more slippery when wet. Whether Mr Bridge was making a call or receiving a call on his telephone, he clearly was not paying full attention to where he was putting his feet. He was guiding the shopping trolley with one hand, holding the telephone in the other hand and paying attention to the telephone. Mr Bridge accepted that he was aware of the risk of the surface of the car park being more slippery when wet than when dry.

82. Clearly, the precautions that Mr Bridge would take against that risk would be different from the precautions that the occupier, namely Coles, might take against that risk. One precaution would be to give full attention to the surface and where Mr Bridge might place his feet. The evidence quoted above indicates that Mr Bridge had walked from his motor vehicle to the supermarket and then part of the way back to his motor vehicle on the wet surface. He had walked through a puddle before his foot slipped. It is significant that the slip occurred while his attention was distracted by his telephone. It was not suggested that the point where he slipped was more slippery than any other part of the surface of the car park. I would therefore draw the conclusion that the inadvertence and distraction occasioned by giving attention to the telephone contributed to Mr Bridge’s fall and constituted negligence on his part. If Coles was in breach of the duty that it owed to Mr Bridge, his contribution to his fall should be assessed at a significant percentage. Before the primary judge, Coles contended that 25% was the appropriate percentage. On appeal, it contended for a higher percentage. However, in the light of the conclusion reached above, it is not appropriate to express a specific percentage.

Conclusion

83. It follows from the above that the appeal should be allowed. The judgment in favour of Mr Bridge should be set aside. In lieu of that judgment, there should be a verdict and judgment for the defendant. The plaintiff should pay the defendant’s costs. Mr Bridge should pay Coles’ costs of the appeal. Mr Bridge should have a Certificate under the Suitors Fund Act 1951 (NSW) if he is otherwise entitled to one.

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Endnotes

Amendments

30 August 2018 - 31 August 2018: the figure of $688,071 where appearing in order 2 and paragraphs 1, 37 and 39 is replaced by $769,381, and the figure of $516,053 where appearing in order 2 and paragraph 37 is replaced by $577,035. These amendments are made by consent on the application of the appellant, and reflect amendments to the judgment at first instance made on 19 February 2018 which had not been disclosed to the Court of Appeal when the appeal was heard and determined.

Decision last updated: 30 August 2018