David Jones Ltd v Bates

[2001] NSWCA 233

CITATION:	David Jones Ltd v Bates [2001] NSWCA 233
FILE NUMBER(S):	CA 40659/00
HEARING DATE(S):	27/06/01
JUDGMENT DATE:	20 July 2001
PARTIES :	David Jones Limited (Appellant) Frances Alvonia Bates (Respondent)
JUDGMENT OF:	Heydon JA at 1; Davies AJA at 2; Young CJ in Eq at 28

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	3701/98
LOWER COURT JUDICIAL OFFICER :	Sidis DCJ

COUNSEL:	W Kearns SC and D O'Dowd (Appellant) P Semmler QC and L Locke (Respondent)
SOLICITORS:	Tillyard & Callanan (Appellant) Velleley & Associates (Respondent)
CATCHWORDS:	Torts- Negligence- Plaintiff slipped on floor at junction between carpet and timber surface- Whether negligence- Held No. (ND)
CASES CITED:	Brown v Target Australia Pty Ltd (1984) 37 SASR 145 Dailly v Spot-On Investments Pty Ltd (1995) Aust Torts Rep 81-363 Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 75 ALJR 992 Jones v Bartlett (2000) 75 ALJR 1 Littler v Liverpool Corporation [1968] 2 All ER 343 Phillis v Daly (1988) 15 NSWLR 65 Rasic v Cruz [2000] NSWCA 66 Stocks v Baldwin (1996) 24 MVR 416 Turner v South Australia (1982) 56 ALJR 839 Ward v Tesco Stores Ltd [1976] 1 WLR 810 Wyong Shire Council v Shirt (1980) 146 CLR 40
DECISION:	Appeal allowed.

CA 40659 of 2000
DC 3701 of 1998

HEYDON JA
DAVIES AJA

YOUNG CJ in Eq

FRIDAY 20 JULY 2001

DAVID JONES LIMITED v BATES

JUDGMENT

1    HEYDON JA: I agree with paragraphs [2]-[14] and [16] to [26] of Davies AJA’s reasons for judgment, and with Young CJ in Eq.

2    DAVIES AJA: I agree with the reasons for judgment prepared by Young CJ in Eq but would add a few words of my own.

3    The crux of the evidence of Dr B N Emerson, an expert called on behalf of Frances Alvonia Bates, the plaintiff below, read as follows:-

"It is apparent the Plaintiff slipped as she stepped particularly at heel strike from a highly textured carpet surface with a resilient soft tread, to a hard, polished, smooth, timber surface which was totally untextured. The Plaintiff had become adjusted to walking on the carpet and did not necessarily observe she was stepping from the carpet onto the highly polished timber floor. It is further evident the Plaintiff would have been reasonably expected to be aroused by the various displays surrounding her particularly of the dresses on the mannequins in that department.
The display is specifically designed to attract the attention of the customers walking by. Hence it is not unreasonable or unlikely that the Plaintiff would be so preoccupied as to not be particularly looking at the ground and therefore while still assuming she was walking on highly stable carpet, stepped onto a less stable surface and hence she slipped and sustained injury.
The Plaintiff's heel clearly slipped on heel strike, as is the normal mechanism of this type of slip, whereby she fell heavily to the ground. The Plaintiff had felt confident in her surroundings and had no reason to suspect the floor on which she [was] walking would cause her to slip.
…
It is suggested a proper underfoot surface should be consistent and it should display similar characteristics of coefficient friction. Hence it is wrong in the design of a floor provision to suddenly change from carpet to polished timber and the Australian Standard alerts to this potential danger. The Australian Standard similarly places a great deal of emphasis on the texture of underfoot materials and, in particular, asserts smooth surface on untextured surfaces are more likely to promote slipping."

Dr Emerson also expressed the view that, by reason of the transition from carpet to timber, "the floor is unsatisfactory and unsafe" . Dr Emerson concluded:-
"Clearly such a floor should not have been provided in a place of shopping and recreation where people's, such as the Plaintiff's, level of arousal is clearly directed towards viewing merchandise and not necessarily the floor on which she is walking."

4    However, the trial Judge recited the evidence of Mrs Bates that the part of her shoe which struck the timber floor "was most likely to have been the sole". Moreover, the trial Judge did not accept Dr Emerson's view that it was unsafe for David Jones to have a transition from carpet to timber.

5    The trial Judge preferred the evidence of Dr J R Cooke, whose evidence was adduced on behalf of David Jones Limited ("David Jones"), the defendant below. Dr Cooke made these comments, inter alia:-

"Whether such a transition is potentially dangerous depends on a number of factors, including the actual levels of slip resistance of the two adjacent surfaces, the pedestrian's familiarity with the surroundings, the type of footwear, pedestrian behaviour, levels of illuminance, and eyesight.
…

Far from being on the borderline of safety and stability and only marginally satisfying AS/NZS 3661.1:1993, the timber floor, when tested, was found to provide a very high level of slip resistance. …

The dynamic coefficient of friction of the timber floor, when tested, was found to be 0.67. Dr Emerson accepts that figure. The dynamic coefficient of friction of the carpeted floor cannot be measured in the field. Dr Emerson estimates the figure as 0.8 or thereabouts (page 2), which I accept as a reasonable estimate. In my opinion there is an insufficient difference between the dynamic coefficient of friction of the timber floor (0.67) and the estimated dynamic coefficient of friction of the carpeted floor (0.8) to support Dr Emerson's opinion (page 9) that the timber floor is 'unsatisfactory and unsafe' and that the timber floor 'greatly contrasts' with the textured carpet in an unacceptable manner (page 3). Although the two surfaces are quite different in texture, the variation in the dynamic coefficient of friction is not great.

… the use of contrasting floor surfaces in main traffic areas and display areas is common practice, notably in David Jones stores. …

…
… A highly textured floor finish, such as carpet, poses a potential tripping hazard. A slipping accident may occur on a smooth floor with a high dynamic coefficient of friction, with footwear and pedestrian behaviour as causes or contributing causes. As is pointed out in the Note to cl. 1 of AS/NZS 3661.2:1994, it is 'impossible to completely remove the risks of persons slipping on pedestrian surface' (see Appendix A)."

6    On Dr Cooke's evidence, it could not be held that the transition from carpet to timber created a danger which David Jones ought to have rectified.

7    Mrs Bates' claim therefore turned upon the issue as to whether the manner in which the clothing racks were placed on the floor obscured the transition from carpet to timber and thus created a danger which David Jones should have removed by changing the position of the racks.

8    Before turning to this issue, I should say something about the shoes which Mrs Bates was wearing.

9    Mrs Bates chose to wear new shoes on this day. She was aware that new shoes with leather soles were slippery and should be scuffed prior to wear. Mrs Bates gave, inter alia, this evidence:-

"Q. You were aware were you not when you put those shoes on for the first time the next day that new shoes with a leather sole are very smooth to walk on aren't they?
A. Yes that's correct.

…

Q. …
A. I will swear on oath here and now, that those shoes were [the] slipperiest shoes I have ever worn and if you look at them you will find that I actually took them out and I scuffed them before I wore them again. I rubbed and rubbed and rubbed them on the cement out the side."

10    Unfortunately, Mrs Bates did not stop to scuff her shoes on the pavement before entering David Jones, but entered the store wearing the slipperiest shoes she had ever worn. Mrs Bates gave this evidence, inter alia, of her progress through the store:-

"Q. You didn't take any extra steps did you, when you wore those shoes, related to your fear or propensity of falling did you?
A. … I walked across the footpath which is approximately 15 foot wide. I walked down the stairs and because the stairs are like a terrazzo or some Italian marble, I held the rail going right down and going across the floor on the bottom floor I think that's marble as well, I was very very careful. Going up in the escalator, when I saw the wooden floor I headed straight for the carpet. …

…

Q. You had no trouble traversing that wooden floor did you?
A. No because I knew I was on a wooden floor and I was being extremely careful.
…
Q. You were aware were you not that the floor surface of that particular floor was part wooden floor and part carpet?
A. Well I probably knew but it wasn't something that - you know, I thought gee whiz don't do this or that, but I did make my way, carefully, across that wooden floor, until I was comfortable on the carpet."

11    Mrs Bates then walked along the carpet for probably 30-35feet and commenced browsing amongst the clothing racks. The racks were fairly close together, although Mrs Bates could move between them. Apparently, they were close to or on the transition between the carpet and the timber floor. Mrs Bates did not observe the transition and, feeling herself safe on the carpet, gave her attention to the clothing. When she put her foot on the timber, her foot slipped and she fell.

12    The transition from carpet to timber would not have been obscured had Mrs Bates been watching the floor. Mrs Bates gave this evidence:-

"Q. And you were aware weren't you that at some stage before you completed crossing the floor, the carpet would end and wooden boards would appear as they had been from when you stepped off the escalator crossed the boarded floor onto the carpet?
A. Well I'm sorry but I was shopping, I was not walking along with my eyes on the floor. I was not that concerned about my welfare that I go around like a beagle. I was actually shopping and I was looking where I was going. I was going between the two stands but I was not looking at the floor as you're suggesting I should have been. I was not looking like that.

…

Q. Are you saying that on the occasions that you'd been there before, you were not aware that at some stage on the floor surface the carpet would cease and the wooden floor would appear?
A. No what I'm saying is that my vision was impaired by where the stands were placed. They were placed relatively close together and as I was concentrating at looking at the garments which is the prime reason one goes in there and I stepped through I did not know that the floor was changing."

13    It is not in dispute that Mrs Bates failed to take reasonable care for her own safety. She ought not to have entered the David Jones' store wearing her new shoes in the state they were in. The question is whether David Jones breached its duty of care to Mrs Bates.

14    The fundamental principle to be applied is that stated by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40, where his Honour said at pp 47-48:-

"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

15    In applying this general principle, it is necessary to take account of the circumstances in which the breach occurred. In the context of industrial accidents and injuries occurring in schools and hospitals, the duty of care is considered to be a very high duty. That is because of the special nature of the responsibility undertaken. Employers, school authorities and hospital authorities have a non-delegable duty in respect of those in their care. Motor vehicle driving has been said to require a high duty of care: see Stocks v Baldwin (1996) 24 MVR 416. That is because motor vehicles are dangerous and likely to cause injury unless great care is taken.

16    However, at the other end of the spectrum, for example, with respect to the duties of highway authorities, it was held in Ghantous v Hawkesbury City Council [2001] HCA 29, that the duty was to take reasonable care for the safety of persons who are taking reasonable care for their own safety: see Gleeson CJ at [6]-[8], Gaudron, McHugh and Gummow JJ at [163], Kirby J at [248], Hayne J at [339] and Callinan J at [355].

17    In the case of commercial premises, such as retail stores, and in the case of residential premises, the duty is more onerous than that which applies to a highway authority. Nevertheless, it remains a duty to take that care which a reasonable person would take having regard to foreseeable dangers. As Fitzgerald JA said in Rasic v Cruz [2000] NSWCA 66 at [42]:-

"A shopkeeper owes a duty of care even to careless customers. However, a duty of care is not a general duty to protect careless people from the consequences of their own carelessness. The test of reasonable care is not whether the safety of the shop could be improved."

18    Mahoney JA expressed the same view in Phillis v Daly (1988) 15 NSWLR 65, where his Honour said, at p 74:-

"There is, in my opinion, a further matter to be taken into account. A person coming upon another's premises is expected to act reasonably. And this is relevant in deciding what it was reasonable for the occupier to do.
In one of the classic passages in Indermaur v Dames , Willes J (at 288) said:
'And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; …'
This passage, and the words 'using reasonable care on his part for his own safety', have been the subject of frequent examination. The words were used, I think, to indicate that the standard of the care expected of an occupier - and therefore what dangers he was expected to deal with - were affected by the law's expectation that the plaintiff would take reasonable care for his own safety. This, in my opinion, is still a matter for consideration."

19    In Dailly v Spot-On Investments Pty Ltd (1995) Aust Torts Reports ¶81-363, Sheller JA, with whom Meagher and Handley JJA agreed, referred, at p 62,709, to "the magnitude of the risk and the degree of probability when combined with the other relevant factors". At the same page, his Honour held:-

"In the present case relevant factors are that display stands are commonplace in shops, the display rack was obvious, the defendant could reasonably expect that people coming into the shop would proceed around the display rack so as to avoid it and the display rack was in such a position as would not appear to a reasonable person to create a situation of danger likely to cause serious injury to a visitor to the shop."

20    In Jones v Bartlett (2000) 75 ALJR 1 at 6, Gleeson CJ referred, with approval, to comments of Mahoney JA in Phillis v Daly and said, at [23]:-

"There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective. Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality."

21    In the present case, Mrs Bates was not taking care for her own safety. She was wearing shoes that she ought not to have been wearing. She was aware that such shoes should be scuffed before use. The fact that she fell cannot be taken as prima facie evidence that the premises were unsafe.

22    Nor was there any evidence that any other person had fallen because of the transition from carpet to timber. If anyone had fallen in circumstances similar to those of Mrs Bates, no evidence of the fall was adduced. Although the trial Judge held that it would have been simple and inexpensive for David Jones to move the clothing racks away from the transition, no evidence was given that the clothing racks had only recently been put in that position or that they had occasioned a problem to any other person.

23    In these circumstances, it seems to me that it was not a sufficient basis for a finding of negligence that the safety of the store could have been improved by moving the clothing racks. As Fitzgerald JA said in Rasic v Cruz, "The test of reasonable care is not whether the safety of the shop could be improved". The evidence, as accepted by the trial Judge, did not show that the transition was a danger to persons wearing shoes in a normal state.

24    The question was whether the evidence was such as to disclose a danger which ought to have been remedied. The evidence of Dr Emerson was that there was such a danger. He expressed the view that a store, such as David Jones, should have a consistent floor surface. However, the trial Judge did not accept that view. Dr Cooke, whose report the trial Judge appears to have preferred, expressed the view that it was common and appropriate for retail stores to have more than one type of floor surface and that the floor had "very good slip resistance, well above the minimum requirement". He expressed the view that the timber floor was "suitable for the location". Dr Cooke expressed the view that the variation in the dynamic coefficient of friction between the carpet and the timber was not great and that the difference was insufficient to justify a conclusion that the transition was a potential danger.

25    The trial Judge did not reject these views of Dr Cooke. She made a finding of negligence on the basis that:-

"However, the photograph of the premises shows that the areas of carpeted and timbered flooring were not regular in shape and therefore, in my view, it was unreasonable to expect the plaintiff to know precisely the position of those boundaries and unreasonable to obscure from her view the position of those boundaries."

26    In my opinion, that approach involved an error of law. David Jones did not have to take into account as reasonably foreseeable the fact that a customer would be wearing shoes as slippery as those worn by Mrs Bates. If David Jones had had to take that factor into account, it would have had to provide, at each entrance to its store, a range of footwear suitable for its customers to wear. Walking in the David Jones' store, in the shoes which Mrs Bates was wearing, was a dangerous activity. It seems to me that it was reasonable for David Jones to assume that its customers would be wearing appropriate footwear and that it was not reasonably foreseeable that Mrs Bates would not have done so.

27    I would allow the appeal. I agree with the orders proposed by Young CJ in Eq.

28    YOUNG CJ in Eq: This is an appeal from the District Court which found the appellant liable in damages to the respondent with respect to personal injury suffered by her in an accident in the appellant’s Elizabeth Street, Sydney store on 16 March 1998.

29    At the time of the accident, the respondent was 60 years of age: she is now 63. She had recently been discharged from hospital. Although she then permanently resided on the NSW Central Coast, she was staying with her daughter at Kensington.

30    On the day before the accident, the respondent had purchased a pair of leather soled shoes from the appellant. She was wearing those shoes on the day of the accident. On that day, she had an appointment to see a solicitor. Her daughter drove her into the city and left her outside the appellant’s Elizabeth Street store. The respondent had a little time before her appointment and decided to use that time shopping.

31    The respondent entered the appellant’s store though the doorway in Elizabeth Street. She realized that her shoes were suspect so far as traction was concerned. She made her way carefully across a terrazzo floor to the escalator ascending to the first floor where she intended to do her shopping.

32    The flooring of the relevant part of the first floor was partly carpet and partly timber covered with a gloss plastic film.

33    The respondent was examining clothing on racks. She was taking the clothes from the racks, examining them and replacing them. She was moving in a sideways direction. She did not notice that the surface changed from carpet to timber.

34    The learned judge described what then happened as follows:

“Immediately prior to her fall she was moving between two racks of clothing positioned closely together. She stated the distance to be one to one and a half metres between the rails of each rack. She said she worked her way along the rack to her left, from time to time taking an article from the rack to examine it and replacing it. She did this until, without noticing, she stepped over the transition between the carpeted area of the floor and the timbered area of the floor.
“As she stepped on the timber floor with her right foot she said she felt no grip on the floor. She said she was unsure if the first strike was with her heel or the sole of her shoe but she said she was walking slightly sideways and therefore it was most likely to have been the sole. She fell to the floor as her right foot rolled to the side and moved forward across her body.

35    I must confess, I do not get a good picture of what occurred from this description. Indeed the respondent said (Black 48) that the clothes from one rack were not touching the clothes from an adjoining rack and that there was enough room for her to walk between two racks. She did say the racks were “relatively close together” (Black 50). She said that the racks were on the carpeted section at the start of her examination . She walked sideways examining the clothes and her foot went from under her when it made contact with the timber floor. She also said that her foot went sideways and she fell.

36 The claim as pleaded and argued centred on three issues; firstly it was alleged that the floor was slippery and dangerous; secondly it was claimed that the defendant displayed goods so as to obscure the point of transition between the carpeted and timbered areas of the floor; and thirdly it was argued that the condition of the shoes worn by the plaintiff was such that they were defective for the purposes of common law and pursuant to the provisions of the Trade Practices Act 1974 and that they were slippery and dangerous to the point where the defendant was negligent in failing to warn her of their condition or failing to provide instruction to her as to the safe way of first wearing those shoes.

37    Her Honour rejected the first and third claims. She found that the allegation that the floor was slippery and dangerous had not been made out. She also rejected the third claim. No appeal was filed in relation to the first claim. A cross appeal was filed with respect to the rejection of the third claim, but this was abandoned at the hearing of the appeal.

38    However, her Honour found for the respondent on the second claim. She said:

“I find therefore that the plaintiff’s injury was caused by the obscuring of her view of the transition from carpeted to timbered floor so that she did not have the opportunity to take the extra care she knew she needed to take when negotiating the timber floor in her slippery new shoes.”

39    Her Honour found that the respondent was guilty of 30% contributory negligence. She entered a verdict for the respondent for $183,503.60.

40    The appellant says that her Honour should have dismissed the proceedings. Although, at one stage there was also an appeal on foot as to the quantum of the damages awarded by her Honour, that part of the appeal was not pursued.

41    The basal submission of the appellant is that whilst Her Honour could have found and did find that the scenario presented a reasonably foreseeable risk of injury, she should not have determined that the appellant had breached its duty of care to the respondent. There was nothing more in the circumstances that the appellant should have done in order to fulfil its obligations to its customers including the respondent. Indeed, Mr Kearns SC, who appeared with Mr O’Dowd for the appellant, put that her Honour did not actually find that there was something that the appellant should have done: all she found is what it could have done.

42    Her Honour said:

“In this situation it would have been a simple solution to the problem without any expense to the defendant to ensure that it displayed goods in positions where the transition areas were not obscured. This was not done on this occasion.”

43    On the other hand, Mr Semmler QC and Mr Locke for the respondent, put that her Honour had quite plainly said that this was a situation where the foreseeable risk could be averted in a very simple and cost free manner and it was implicit that such a course should have been taken.

44    Expert evidence was called on both sides at the trial as to propensity of floors of different varieties to aid or retard slipping. Dr Emerson gave evidence for the respondent and Dr Cooke for the appellant. Her Honour appears to have preferred the latter, though, with respect, she does not always cite him accurately. It matters little for present purposes as the basic facts were agreed by both experts.

45    Both experts considered that the timber floor had a co-efficient of friction of 0.67, whilst the carpet had a co-efficient of 0.8. Although Mr Semmler QC said that this was a 20% difference, that is a quite useless statistic. The relevant fact is that both surfaces were well above the required standard of 0.4. As her Honour found, the timber floor, although glossy, was not slippery. As Dr Cooke said, “The timber floor has a shiny surface, imparted by a polyurethane finish. It is a common misconception that a surface sheen or gloss automatically indicates an inadequate level of slip resistance.”(Blue 240J).

46    There is no doubt that had the respondent been looking at the floor, she would have perceived that the carpet stopped at a certain point. She made the point in cross-examination that a shopper is looking at the goods and not the floor as she did. Mr Semmler QC added to this by saying that the shopkeeper’s whole purpose is to allure the customer into looking at its goods for sale and never intends that customers should be looking at anything else including the floor. Mr Semmler QC noted passages from reported judgments where something like this had been said; eg Ward v Tesco Stores Ltd [1976] 1 WLR 810, 814; Brown v Target Australia Pty Ltd (1984) 37 SASR 145,154.

47    Mr Semmler QC cited a passage from the judgment of Gibbs CJ in Turner v South Australia (1982) 56 ALJR 839, 840:

“Where it is possible to guard against a foreseeable risk which, although perhaps not great, nevertheless cannot be called remote or fanciful, by adopting a means which involves little difficulty or expense, the failure to adopt such means will in general be negligent.”

Mr Kearns SC’s riposte was that that statement could not be read as a general solution to all problems, as if it had been so read, a considerable number of cases would have been decided the other way.

48    The question for the trial judge then was what, if anything, should a reasonable person in the position of the appellant done in order to meet the foreseeable risk of a customer falling in the circumstances of this case?

49    Her Honour seemed to find that the appellant breached its duty of care by not effecting the “simple solution” referred to earlier. The vital question is whether the trial judge was entitled to make this finding?

50    A preliminary question is whether she indeed did so. I believe, she must have done. Although the passage I have set out is phrased in terms of what the appellant could have done to avoid the risk, I consider that one should read the passage as if it concluded, “and I consider it ought to have been done.”

51    The learned judge also said in her judgment:

“In this case, the transition for which the plaintiff needed to remain alert was obscured by the positioning of the display racks. This constituted a risk as acknowledged by Dr Cooke.”

52    With respect the learned judge seems to have read into Dr Cooke’s evidence more than was there. Dr Cooke actually said (Blue 258H) as to the transition of surfaces:

“Whether such a transition is potentially dangerous depends on a number of factors, including the actual levels of slip resistance of the two adjacent surfaces, the pedestrian’s familiarity with the surroundings, the type of footwear, pedestrian behaviour, levels of illuminance, and eyesight.”

Later he said (Blue 261H):
“In these circumstances, it was incumbent upon the plaintiff to be alert and watch for changing surfaces and situations; to be observant and knowledgable about the characteristics of different types of flooring materials and the effect of her footwear on various surfaces, and to watch her step and walk defensively.”

53    Although her Honour did interpret these passages too sympathetically to the respondent, they still, in their original form, point to some degree to a problem if people cannot observe that a change of surface is about to occur.

54    It must be noted that there was no relevant finding based on the evidence before her Honour. She did prefer Dr Cooke over Dr Emerson on parts of the case no longer in issue. However, only the respondent gave oral evidence and there was no cross-examination of either of the experts.

55    Counsel took us to some previous decisions on what might be called “slipping in shops.” They acknowledged that none were of value except as to the general method of approach.

56    In Dailly v Spot-On Investments Pty Ltd (1995) Aust Torts Rep 81-363, an elderly female customer in a camera store fell over a rack displaying picture frames which was on the floor against the service counter. This Court upheld the verdict found in the District Court for the defendant. Sheller JA, when giving the judgment of the court consisting of Meagher, Handley, JJA and himself, said at p 62,709:

“In the present case relevant factors are that display stands are commonplace in shops, the display rack was obvious, the defendant could reasonably expect that people coming into the shop would proceed around the display rack so as to avoid it and the display rack was in such a position as would not appear to a reasonable person to create a situation of danger likely to cause serious injury to a visitor to the shop.
“With this, one can contrast an unfilled space between a false kerb and the permanent kerb and unexpected steep cement stairs in a stairwell a small distance to the side of a cement path. Like the example given by Mahoney JA in Phillis v Daly (1988) 15 NSWLR 65, 74, a shopkeeper might place a chair at the counter for the convenience of persons like the plaintiff. It is reasonably foreseeable that a customer, whose attention is distracted by looking to the shop assistant or at an article displayed on the shelves, may fall over the chair and suffer the sort of injuries that the plaintiff suffered. It does not follow there must have been a breach of duty by the occupier of the shop notwithstanding that shopkeepers may trade in shops without chairs or display racks and these may be easily removed.
“In my opinion the magnitude of the risk and the degree of probability when combined with the other relevant factors to which I have referred were not such as to lead to the conclusion that the defendant by placing and leaving the display rack where it did was in breach of a duty of care to the plaintiff.”

57    Mr Semmler QC put, citing from the judgment of Fitzgerald JA in Rasic v Cruz [2000] NSWCA 66 [42] that “A shopkeeper owes a duty of care even to careless customers.” However the learned judge continued, “However, a duty of care is not a general duty to protect careless people from the consequences of their own carelessness. The test of reasonable care is not whether the safety of the shop could be improved.” This was a dissenting judgment, but the principles just stated must be correct.

58    The authorities are replete with statements that many premises contain objects or structures which could cause injury, that nowhere can any place be made completely safe, and that the occupier of the premises can reasonably assume that people will take reasonable and due care for their own safety; see eg Phillis v Daly (1988) 15 NSWLR 65, 72; Jones v Bartlett (2000) 75 ALJR 1, 6; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 75 ALJR 992.

59    In Jones v Barlett at [20], Gleeson CJ further drew attention to the fallacy of unjustifiable ex post facto concentration on how the accident did happen to make a finding as to what precautions should have been taken.

60    In Ghantous, the High Court judges made it clear that, ordinarily, a pedestrian walking on a footpath in daylight needs to look after himself or herself and has little to complain about if he or she falls because of a slight unevenness of the surface. Callinan, J said at [355], a passage in which the other justices at least implicitly concurred: “The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along.” Gleeson CJ added to his concurrence a passage from the judgment of Cumming-Bruce J in Littler v Liverpool Corporation [1968] 2 All ER 343, 345:

“Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted. A highway is not to be criticised by the standards of a bowling green.”

61    There is no reason why these utterances should not apply, at least generally, to a person walking across a floor in a shop. However, there is at least the difference, as Mr Semmler QC pointed out, that the customer in a shop is, as intended by the shopkeeper, focussing on the goods rather than the floor.

62    In the instant case, there was little difference in the co-efficient of friction of the two surfaces: there was, of course, a difference in texture. However, the plaintiff’s complaint is that had she been given sufficient warning, she would have taken particular care when coming on to the wood. There is little to suggest, however, that not taking care when walking on to the wood, increased the chance of slipping. It must remembered too, that it was common ground that the respondent was a relatively frequent visitor to this store and knew that there were the two different surfaces.

63    Counsel have said that this is a borderline case. I agree. However, I cannot get out of my mind that the present is a case where, whilst there were two separate types of floor surface, neither was slippery and there was no reason to suspect shown on the evidence that a person would have a special susceptibility to falling because of the change of surface. We know that the respondent did in fact fall and that she did in fact fall at the point where the surfaces changed over, but that fact of itself is, to my mind, insufficient.

64    Even though it was doubtless possible without undue loss of selling space or other cost to display goods so that the difference in floor surface was more visible, it would not seem to me that that was something that the appellant should do to avoid the foreseeable risk that someone might fall.

65    In my view, there was no sufficient material to support the finding that the appellant breached its duty of care.

66 It follows that the appeal must be allowed with costs, the judgment of the District Court set aside and in lieu the plaintiff’s proceedings be dismissed with costs. The respondent should pay the costs of the appeal, but have a certificate under the Suitors’ Fund Act.

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