Els v Countrywide Nominees Pty Ltd
[2015] WADC 2
•13 JANUARY 2015
ELS -v- COUNTRYWIDE NOMINEES PTY LTD [2015] WADC 2
| Pending Appeal |
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 2 | |
| 13/01/2015 | |||
| Case No: | CIV:2141/2013 | 9-12 DECEMBER 2014 | |
| Coram: | BIRMINGHAM QC DCJ | 12/12/14 | |
| PERTH | |||
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's claim dismissed | ||
| PDF Version |
| Parties: | SANETTE ELS COUNTRYWIDE NOMINEES PTY LTD |
Catchwords: | Slipping case Fall by plaintiff in shopping centre Slippery floor Allegation of oil on floor caused by defendant's cooking operations Whether oil on floor and if so whether inference that defendant responsible for it Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
COUNTRYWIDE NOMINEES PTY LTD
Defendant
Catchwords:
Slipping case - Fall by plaintiff in shopping centre - Slippery floor - Allegation of oil on floor caused by defendant's cooking operations - Whether oil on floor and if so whether inference that defendant responsible for it - Turns on own facts
Legislation:
Nil
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff : Mr T H Offer
Defendant : Mr J R Criddle
Solicitors:
Plaintiff : Stephen Browne Lawyers
Defendant : SRB Legal
Case(s) referred to in judgment(s):
Nil
1 BIRMINGHAM QC DCJ: [This judgment was delivered extemporaneously on 12 December 2009 and has been edited from the transcript.]
2 By agreement between the parties the trial was limited to the issue of liability.
3 Shortly after 5.38 pm on Wednesday, 14 December 2011, the plaintiff and her husband attended the Gateway Shopping Centre (the Centre) in the suburb of Success. The Centre closed at 6.00 pm. They intended to do some last minute Christmas shopping for chocolates and biscuits for Mr Els' work colleagues at the Woolworths and/or Big W store.
4 The movements of the plaintiff and her husband within the Centre were captured on the Centre CCTV. They are recorded entering at the southern end of the Centre, go into the Woolworths store for approximately 50 seconds, re-emerge and walk in the direction of Big W at the other end of the Centre some distance away. At 5.40 pm the plaintiff was in that area described on the tendered plan as the Woolworths Court (exhibit 2) heading towards the central mall. The central mall is the thoroughfare that runs in front of the Lenard's poultry store. Whilst adjacent to the Lenard's store plaintiff slipped and fell heavily to the floor.
5 The plaintiff says the defendant is responsible for her slipping and for the injuries that she is said to have then suffered.
6 At all material times the defendant was the proprietor of the Lenard's poultry store at the Centre. The defendant had operated the business at that location since 2006. Throughout the day on 14 December the defendant had used a portable cooker in the front of its store to promote cooked chicken products for sale. Small items were cooked on the cooker and then offered to patrons of the Centre to encourage sales. The defendant had undertaken this operation, namely the cooking and offering samples of cooked product almost every day since it commenced business since 2006. On 14 December 2011 the defendant had packed up the cooker at approximate 5.10 pm, some 30 minutes before the plaintiff arrived at the Centre.
7 The plaintiff says that she slipped on oil that had been placed on the floor by the defendant during the cooking process. The plaintiff's case is premised on the fact that she fell as a result of slipping on oil that was on the floor in the Centre and that it was the defendant who put the oil on the surface of the floor.
8 The negligence alleged is the defendant's failure to clean the area when it was aware that a risk was created by the presence of the oil. The defendant denies that it caused any oil to be on the floor and says that the plaintiff's slip was not due to any conduct on its part.
9 The evidence of the system then operated by the defendant is not pleaded by way of defence save that the defendant relies on the system and the manner in which the cooking operations were then conducted to evidence the improbability of it being the defendant who was at fault.
10 The critical issue is one of causation. Did the defendant cause or materially contribute to the plaintiff's fall and injury?
11 In determining liability for harm caused by the fault of a person, the plaintiff bears the onus of proving on the balance of probabilities any fault relevant to the issue of causation.
12 Whilst the incident was captured on CCTV, it is not possible to make any definitive assessment as to what caused the plaintiff to fall. It is not apparent from the CCTV footage available whether the plaintiff slipped on oil or not and if so, whether the defendant was responsible for it being there.
13 A court may infer causation by reference to the objective facts established by the evidence.
The evidence
The plaintiff
14 The plaintiff said that she was born in South Africa in 1969 and came to Australia in 2008. In December 2011 she was 42 years of age, a small lady – some 154 cm tall - and weighed approximately 90 kg.
15 The plaintiff said that on 14 December 2011 she was wearing wedge style shoes with a synthetic sole. The shoes were approximately six months old. The plaintiff boasted owning some 198 pairs of shoes. At trial the plaintiff was then wearing a high-heeled shoe with a heel that was in excess of 10 cm high. She said that the shoe that she was wearing on the day she slipped was not as high. She considered the heel to be something in the order of about 5 cm on the wedge. She was unable to say why her foot slipped and what caused her to fall. She saw nothing on the floor at the time. She was embarrassed by her fall and did not linger in the area where she had fallen.
16 The plaintiff acknowledged that she had fallen subsequently on two occasions in August 2012 and February 2014. I do not consider those matters to be relevant to the determination that I have to make.
17 The plaintiff said that her husband, Mr Nicholas Els, briefly went back to the look at the area where she had slipped and touched the area with his foot. They then went to report the fall and she sat on a couch nearby whilst her husband spoke to the people in an information booth.
Mr Nicholas Els
18 The plaintiff's husband, Mr Nicholas Els, said that the plaintiff and he were going from Woolworth to Big W when, as going past the Lenard's store, his wife slipped. He tried to catch her by the left arm.
19 Mr Els described how he looked at the area where his wife had slipped. He said he observed a smear mark that looked like oil. It was like a droplet that had been rubbed. His description of viewing an oily spot is at odds with his explanation in cross-examination. He described and demonstrated how he had closely examined the mark - bending down and closely looking at the mark. He was later forced to withdraw such description upon viewing the CCTV footage of the incident and his somewhat more cursory inspection of the area.
20 Mr Els returned to the Centre the next day to, in essence, further his wife's claim. At that time he observed the defendant conducting cooking operations outside its store. He later described it as 'deep-frying product' in the same location as his wife had fallen the previous evening. He said that he had seen light reflecting from droplets of oil on the floor.
21 Mr Els did not speak to the defendant or anyone at the defendant's store at that time. He acknowledged in cross-examination that he did not photograph the area or his observations at that time. Mr Els subsequently admitted through his counsel that on 27 January 2012, some six weeks after the incident, he had photographed a spillage that he had seen on the floor in an adjacent IGA store.
22 On 24 December 2011 when thing were not going quickly enough in response to his request for compensation, Mr Els wrote to the Centre manager (exhibit 5). Mr Els said that the floor of the Centre was unsafe. In the third paragraph Mr Els expressed the position as follows:
As this incident took place after hours and the centre management was closed I returned the following day to report this incident. At the time I went back to the scene of the accident to try and establish a possible cause for the accident. It was, however, immediately apparent to me what had caused the slip and subsequent accident. Right on the spot where Mrs Els slipped there was a small kiosk deep-frying taste bits. It had a small mat beneath it but the centre lights could be seen reflecting off small oil droplets on the floor around the kiosk. There was also no sign at that location to be careful of the potentially oily hazard. [emphasis added]
23 The letter is significant for what is not said. If, as Mr Els said he had seen oil on the floor at the time of the incident, one would have expected that to be stated in the letter. Further, Mr Els described his visit the following day as an attempt 'to try and establish a possible cause for the accident'.
24 If Mr Els had seen oil on the floor the previous night one would have expected that he did not need to establish what had occurred and perhaps the only issue was who was responsible for it. That was a matter that was identified by the presence of the cooker however Mr Els did not speak to the defendant in relation to the matter.
25 Mr Els saw the cooker in position and being used for the first time on 15 December 2011. He described the activities as being, 'deep-frying taste bits'.
26 I did not find Mr Els a very impressive or persuasive witness. He impressed as a person who was prone to exaggeration as is evidenced by his description of his inspection of the same at night. Further, his close observations on the night and on 15 December did not find their way into his letter of 24 December. If Mr Els had seen oil on the floor at the time of the incident and that fact was subsequently fortified by seeing the cooker in action the next day, I am in no doubt that he would have said so.
27 I consider his evidence of the incident has been largely reconstructed by information that was later gained when he visited the next day and is not a reliable account of his observations on 14 December 2011.
Natasha Vella
28 Ms Vella was the proprietor of the defendant at the relevant time. Ms Vella gave evidence of the cooking process that had been adopted by her since the shop opened in 2006. She described how the cooker was used to cook chicken product that would then offered to patrons by way of tastings.
29 The cooker used is depicted in photographs tendered (exhibits 9.1 to 9.10). It has a small hotplate and small warming oven. The hotplate and cooking area is surrounded by a Perspex screen and is hooded such that any fat would not splatter on the floor.
30 Ms Vella said that the cooker was placed on a rubber mat and that the cooking was conducted with the cooker on the mat to catch any spillage.
31 Ms Vella said that cooking was done on baking paper placed on the cooker and that cooking oil was not used. They did not do any deep frying. The hotplate upon which cooking takes place is recessed and it is set back against the Perspex screen. At the front of the hotplate there is a small trenched area where fat, if any, runs off into a catchment drawer on the left-hand side of the cooker.
32 Ms Vella said that the practice was for the catchment drawer to be emptied each night. If any fat accumulated on the baking paper, the baking paper would be folded and then placed in the rubbish area underneath the cooker.
33 Ms Vella said that the area where the cooking was done had a very high volume of traffic. It was one of the main thoroughfares from a loading area and the Woolworth store and in what was the main corridor through the Centre. There are a considerable number of shopping trolleys going through the area and there is a trolley bay near to her store.
34 Ms Vella described how the cooking process involved the use of a toaster oven. The job was effectively to use baking paper and prepare the product. An important task and a requirement was that the cooker had to be kept clean and immaculate because it was on display to the customers. She said that baking paper was the same as if cooking in an oven. She employed a specialist display cooker in Ms Jenny Green. She said that sometimes sausages and burgers would be cooked and may generate fat, but that the baking paper would absorb the fat. Any fat that came off would then drain into the drawer at the front of the cooking table. She said that it was not possible for oil to leave the cooking area due to the way the cooking station had been set up.
35 Ms Vella said that the defendant had been operating the facility since 2006 and staff were constantly advised in relation to safety issues. She said that the product was served hot, but it was necessary that it was cooked at a low temperature because of the need to ensure that there is no smoke generated or any product burnt because of the presence of smoke alarms and due to the requirements of other franchise holders within the Centre. A low heat was used to cook any product.
36 Ms Vella said that throughout the entire time that the defendant had operated the cooking facility there had been no complaint whatsoever of any spillage on the floor, and in particular, any person slipping on any product that had gone onto the floor during the cooking and display process.
Jennifer Green
37 Ms Green's evidence was in the form of a statement tendered pursuant to s 79C of the Evidence Act 1906. I am mindful of the weight that might be attached to such a statement in circumstances where that witness has not been present or cross-examined. I admitted the statement because I was satisfied that Ms Green was then residing in England and attempts to locate her had been unsuccessful.
38 Ms Green stated that she worked as the position of a demonstrator for the defendant since the store first traded. To her knowledge (at the time of making the statement on 12 September 2012) the incident involving the plaintiff was the first occasion that any slip or fall incident had occurred anywhere near the store.
39 Ms Green stated that the cooking unit was on a trolley that contained a hotplate and warming oven and that it was always positioned on a large mat. She said that when she cooked the burgers she used baking paper and that she did not cook in any oil. She stated that after she had finish cooking the burgers on the hotplate she wrapped up the baking paper and it was thrown away after each cooking session. She said no vapours came from the procedure in the use of the baking paper and any fat that came away from the burgers stayed on the cooking plate and drained underneath the hotplate in the corner. She cleaned that when she pushed the trolley away from the area.
40 Ms Green stated that there is always some fat that cooks out of the burgers but all of the fat stays on the hotplate and drains away. She estimated that the amount of fat would be about a tablespoon, if that. Ms Green said that the cooker was enclosed with glass shields on three sides that enabled her to cook on the non-enclosed side. After each cooking demonstration she would move the cooker away, sweep up any crumbs and would then check the area around the mat to check to see if anything has dropped from the cooker. If she saw anything she would then clean it up using a towel. Whenever she finished a cooking demonstration she always checked the area around where she had cooked.
41 On 14 December 2011 the cooker had been used by Ms Green and then packed up. The CCTV footage shows that the cooker was later pushed back into the storage area by Mr David Headland.
Mr David Headland
42 Mr Headland was a casual assistant employed by the defendant. He had been employed for about six months at the time of the incident. He said that his duties were to check to see if anything had fallen on the floor and to clean up.
43 Mr Headland acknowledged that the CCTV footage showed him pushing the cooker and but that he did not remember anything about that day. He was the person seen to come out onto the area after the plaintiff had fallen with a mop and bucket. He said he was instructed, seemingly by his immediate supervisor Mr Law, to check to see if there was anything on the floor, whether any oil or water was present. He saw nothing. He said he did not see any marks on the floor when he checked the floor at that time.
44 Mr Headland said that he had become aware that someone had slipped and he was looking for oil or water that might have been spilt on the floor, but acknowledged that he was probably looking more for a pool of water. He saw nothing on the surface.
Mr Damien Law
45 Mr Damien Law was employed by the defendant in December 2011.
46 Neither Mr Headland nor Mr Law are now associated with the defendant.
47 Mr Law said that he had been employed by the defendant and worked as an assistant for about four years prior to the incident - the last two years as the assistant manager.
48 He recalled that on 14 December 2011 the cooking display and demonstration had been undertaken by Ms Green during that day as it had been done on every other day in the past.
49 Mr Law said that from his position behind the preparation bench in the defendant's store he saw the plaintiff being helped up. He did not see the plaintiff slip and fall. He said he dispatched Daniel Headland to check the floor area. He said he saw Mr Headland check the floor and was informed by him that he could not see anything on the floor. Mr Hedland had a mop and bucket with him but did not use it.
50 After Mr Headland had returned, Mr Law received a phone call from a person at the Centre information booth. He was informed that someone had reported that a person had slipped in the vicinity of the defendant's store. Mr Law said he then did a visual check of the floor looking for oil or any other material that could cause someone to slip. His inspection of the floor included touching the floor with his hand and with his foot. He said that his search including touching of the floor did not reveal anything to him. So far as he was concerned there was no oil or anything else present on the floor surface.
51 Mr Law confirmed the cooking process that had been described by Ms Green and said that he been the cooking demonstrator on other occasions. He said that baking paper was used on the hotplate and that on each occasion after cooking the floor was always checked.
52 Mr Law said that on this occasion he did not see any marks on the floor whatsoever in the area where the plaintiff slipped. He said he did not make a report in relation to the incident because in his view there was nothing to report. Mr Law acknowledged that if there was oil on the floor that it would be dangerous. He said that it was for that reason that he was looking traces of anything that was on the floor. He said he did not wipe anything as there was no reason to do so.
53 Mr Law said that in the four years that he had worked for the defendant he had not experienced any oil being spilt on the floor and had not seen any person slip in relation to anything associated with the defendant's cooking operation.
54 The evidence of Mr Law and his reaction to observing the plaintiff being helped up stands in stark contrast to that of Mr Els.
55 Rather than report the matter to the nearest station available to him - that is to say the Lenard's store or something of that nature, perhaps to suggest that if there is something on the floor, to have it cleaned up so no-one else might fall on it – Mr Els went to the information centre to report it as a possible claim.
56 Mr Law, in contrast, considered that if the floor was slippery in front of his store - whether it was due to product from his store or product dropped by a shopper that had been purchased from another store, such as the Baker's Delight store next door, it was a matter that he addressed for the safety of the customers of the Centre.
Westways Visual Communication photographs
57 In addition to the oral testimony a number of photographs that have been tendered by consent, including exhibits 4.1 to 4.9. In my opinion, the CCTV footage is of more assistance than the photographs that contain an overlay indicating where the plaintiff slipped. I find that the better evidence is reflected by reviewing, as I have, the evidence that is the CCTV footage.
CCTV footage
58 I make the following observations in respect of the CCTV footage (exhibit 1).
i As submitted by counsel for the defendant, Mr Criddle, as the plaintiff falls and Mr Els goes to her assistance, Mr Els' foot appears to go to the very place where the plaintiff had slipped. Mr Els did not slip;
ii The mechanism of the plaintiff's fall. It is apparent from the CCTV footage that the plaintiff's right leg goes out from behind her. That is, that as the plaintiff is walking towards Big W it is her right leg that first slips in a backward direction and the plaintiff falls forward;
iii The plaintiff and her husband enter Woolworths to purchase the Christmas presents and depart Woolworths 50 seconds later. One is mindful that the Centre is due to close in less than 20 minutes and that the Big W store is some distance away. It is not possible to determine whether the plaintiff and her husband are walking at any increased pace, but they are certainly walking at a reasonable pace.
The plaintiff is walking with her husband holding her left hand and has a large bag over her right shoulder. The walking pace is seemingly the same as most other shoppers going about their business. The plaintiff and her husband are heading towards the Big W store that is located at the other end of the Centre.
Ms Vella said that Big W was five to 10 minutes' walk from the defendant's premises however I do not accept that estimate. I accept that Big W is the other end of the Centre some distance down the main mall and that the pedestrian traffic was busy, but it is not such a distance that it would take a couple that length of time to walk.
iv The CCTV footage assists when considering the volume of traffic that goes over area where the plaintiff is observed to slip and fall. In the 30-minute period, from the time when the cooking was completed and the cooker removed until the plaintiff's fall, there was a substantial volume of pedestrian traffic over that portion of the floor in the immediate vicinity of the area in which the plaintiff is seen to slip.
Whilst accepting some tolerance in relation to identifying the exact the spot where the plaintiff's foot slipped, in the immediate vicinity of the area where the plaintiff is seen to fall and her right foot go from under her, during the 30-minute period I viewed some 239 adults or adult-sized persons, 26 children or toddlers, 49 shopping trolleys or prams and one large cleaner's cart goes over that area.
Of particular interest was a lady with a very full shopping trolley observed at 5.26 pm. That lady seemingly pushed the trolley across the area where the plaintiff has subsequently fallen. Whilst the lady has some difficulty controlling the trolley, she seemingly had no difficulty maintaining her footing on what would otherwise be a slippery floor surface, if such was the case.
v The CCTV footage also records Mr Nicholas Els' examination of the area after the plaintiff has been assisted to her feet. I would describe it as a cursory examination. The examination of the area as described by Mr Law is also recorded.
59 For the plaintiff to be successful, the plaintiff must establish on the balance of probabilities that she slipped on oil or a greased surface and that the defendant materially contributed to that state of affairs.
60 I do not accept the evidence of Mr Els as to the presence of oil on the floor that night. I prefer the evidence of Mr Headland and in particular Mr Law as to his close inspection of the floor. Their evidence is consistent with the CCTV footage.
61 Further, I am fortified in my view that oil was not present by the system of cooking that was then adopted by the defendant. The equipment was set up by the defendant in a manner that would preclude oil droplets going onto the floor or beyond the rubber protective area. The cooking system established was such that it was unlikely to generate fat that would escape the area. It was not a deep frying process, as the plaintiff's husband believed it to be. There was a mat that was used to catch any spillage.
62 I also have regard to the previous history of the cooking operation and that there has been no incident or any reports of spillage of oil or slippage on the area in the period from 2006 until 2011 or subsequently.
63 I also have particular regard to the very significant volume of traffic that passed over that area prior to the plaintiff that night.
64 I am not satisfied that there was oil on the floor that night. Further, even if there was some pollutant or other material on the floor, I am not satisfied on the balance of probabilities that it was as a result of any conduct on the part of the defendant. I am fortified in that view by the very considerable volume of traffic that passed over that area. Anyone in the Centre premises could have put material on the floor, either by way of contaminated material carried on their shoes from other places, or by spillage of products that that they carried with them such as drinks, ice creams or other things being eaten by them during that period.
65 The volume of traffic upon what is a thoroughfare is significant and one cannot say with any confidence that if there was anything on the floor that it was due to the defendant. Clearly, the presence of the cooker does give rise to an inference, but in my view that inference is not open when one has regard to the whole of the circumstances.
66 I must decide this case on the basis of the whole of the evidence. Whilst in isolation the cooker might alert a person, as it did the plaintiff's husband, to the presence of a possible source, in my view it was not the source and I am not satisfied that it was the source.
67 I am not satisfied on the balance of probabilities that any conduct on the part of the defendant contributed to the plaintiff's fall.
68 Accordingly, the plaintiff's claim is dismissed.
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