Els v Countrywide Nominees Pty Ltd
[2016] WASCA 4
•8 JANUARY 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ELS -v- COUNTRYWIDE NOMINEES PTY LTD [2016] WASCA 4
CORAM: BUSS JA
MURPHY JA
MAZZA JA
HEARD: 2 DECEMBER 2015
DELIVERED : 8 JANUARY 2016
FILE NO/S: CACV 16 of 2015
BETWEEN: SANETTE ELS
Appellant
AND
COUNTRYWIDE NOMINEES PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :BIRMINGHAM DCJ
Citation :ELS -v- COUNTRYWIDE NOMINEES PTY LTD [2015] WADC 2
File No :CIV 2141 of 2013
Catchwords:
Appeal - Negligence - Causation - Alleged errors in finding facts which were inconsistent with incontrovertible evidence - Turns on own facts
Legislation:
District Court of Western Australia Act 1969 (WA), s 79
Evidence Act 1906 (WA), s 79C
Supreme Court Act 1935 (WA), s 58
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr K S Pratt
Respondent: Mr J R Criddle
Solicitors:
Appellant: Stephen Browne Lawyers
Respondent: SRB Legal
Case(s) referred to in judgment(s):
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Els v Countrywide Nominees Pty Ltd [2015] WADC 2
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
BUSS JA: I have examined the trial record including the CCTV footage and the photographs taken from that footage. I agree with Mazza JA, for the reasons he gives, that the appeal must be dismissed.
MURPHY JA: Having viewed and considered the CCTV footage, and having considered the arguments advanced by the appellant, I would join with Mazza JA, essentially for the reasons he gives, in concluding that the appeal should be dismissed.
MAZZA JA:
Summary
In the late afternoon of 14 December 2011, the appellant and her husband, Nicholas Els, were Christmas shopping at the Gateway Shopping Centre in the suburb of Success (the shopping centre). At the time, the respondent was the proprietor of the Lenard's shop at the shopping centre (the Lenard's shop). As the appellant and her husband walked past the Lenard's shop, the appellant fell over. As a result of the fall, the appellant alleged that she suffered physical injury. The incident was captured by the shopping centre's CCTV system. The CCTV footage was shown at trial and tendered in evidence (exhibit 1). So too were some still photographs taken from that footage (exhibits 4.1 ‑ 4.7)
The appellant commenced a negligence action in the District Court against the respondent seeking damages. Essentially, the appellant alleged that she had slipped on oil that had been deposited on the floor by a portable cooking station used by the respondent to cook products which were offered as samples to shoppers as they walked past the shop. The appellant alleged that the respondent had been negligent by allowing the oil to drop to the floor and by failing to properly clean it.
A trial, limited to the issue of liability, took place before Birmingham DCJ (ts 2). On 12 December 2014, his Honour dismissed the appellant's claim: Els v Countrywide Nominees Pty Ltd [2015] WADC 2. This is an appeal against the dismissal of that action.
The appellant relies upon a sole ground of appeal. Shorn of its particulars, it is alleged that the learned trial judge erred in fact and in law in making findings of fact which were inconsistent with the allegedly 'incontrovertible evidence' of the CCTV footage. For the reasons that follow, the ground of appeal has not been made out and the appeal must be dismissed.
Background
The Lenard's shop was situated in the shopping centre just outside the Woolworths supermarket. In front of the shop was a large thoroughfare which led to other parts of the shopping centre.
On 14 December 2011, a cooking station was set up in the thoroughfare. The cooking station was frequently used to cook chicken products sold by Lenard's for shoppers to sample. The demonstrator who operated the cooking station was Jennifer Green, an experienced demonstrator who had been employed by the respondent since the Lenard's shop opened in 2006 (ts 6).
The cooking station was on a trolley that was enclosed on three sides with Perspex shields (ts 31). Ms Green cooked on the non‑enclosed side. The trolley was positioned on a large black mat. It comprised a hotplate and a warming or toaster oven. Ms Green cooked chicken products on the hotplate using baking paper rather than cooking oil. Products were not deep fried.
On 14 December 2011, Ms Green cooked chicken burgers. According to her witness statement (she did not give oral evidence at trial), any fat that came from the burgers stayed on the cooking hotplate and drained away underneath into a small container which she cleaned after her demonstration. The amount of fat which drained away was about 'a tablespoon, if that' (green AB 135). She said that her practice after a cooking demonstration was that she moved the cooker away, swept up any crumbs, checked the floor and, if necessary, cleaned any areas with a kitchen towel. She said she always checked the floor around where she had cooked (green AB 136).
A CCTV camera was positioned overlooking the thoroughfare and appears to be some distance in front of the Lenard's shop. There was no evidence led at trial as to how far off the ground the CCTV camera was positioned or how far away it was from the Lenard's shop.
The CCTV footage (exhibit 1)
The CCTV footage comprised an important part of the appellant's case at trial. It also forms the basis of her appeal to this court. The appellant tendered at trial a number of still images taken from the CCTV footage. Overlaid on some of these still images were transparencies designed to enable the trial judge to compare the position of the cooking station before it was packed away with the position where the appellant fell, and to appreciate their very close proximity. Having viewed the recording of the CCTV footage, I made the following observations:
(a)Between the start of the recording at 17:09:58 to approximately 17:11:25, the cooking station outside the Lenard's shop was packed away. This included the removal of what appears to be a black plastic or rubber mat that had been placed under the cooking station.
(b)For a period from approximately 17:10:55 to approximately 17:40:00, a large number of people walked across the vicinity of where the cooking station had apparently been placed. None of them were observed to fall.
(c)At 17:40:00, the appellant and her husband came into shot and walked from Woolworths across the front of the Lenard's shop.
(d)At 17:40:09, the appellant suddenly fell to the floor. Although her body was partly obscured by her husband, who was walking to her left, the appellant's right leg appeared to go from under her and extend backwards, causing her to fall. She was quickly helped up by her husband and was back on her feet at 17:40:14. The appellant then took some steps towards the left of the picture, away from where she had fallen.
(e)Whilst the CCTV footage captured the appellant's fall, it is not possible to determine from it what caused the appellant to fall. It is not apparent from the footage that there was any oil, or any other substance, on the floor which may have caused the appellant to fall.
(f)Meanwhile, the appellant's husband turned around to look at the floor and scuffed the area with his foot. He did so for four or five seconds.
(g)Between approximately 17:40:23 to 17:40:43, the appellant and her husband walked off from the Lenard's shop on the thoroughfare, out of shot.
(h)At 17:41:34, Mr Headland, an employee of the Lenard's shop, was seen with a mop and bucket in hand in the vicinity of where the appellant fell. He appeared to examine the floor and, without using the mop and bucket, returned to the shop at about 17:42:34.
(i)At approximately 17:43:34, Mr Law, the assistant manager of the Lenard's shop, was seen walking from the shop with a safety sign to the vicinity of where the appellant slipped. He scuffed the floor with his right shoe. He then got on his haunches and appeared to look closely at the area where the fall occurred. He remained on his haunches and examined the floor for approximately 13 seconds, and got up at about 17:44:00. Mr Law remained in the area outside the store and looked at the floor. He again got on his haunches at 17:44:07 and appeared to touch with his hand the area where the appellant fell. He did not appear to clean the floor. He did not carry any implement appropriate for that task, nor did he ever examine his hand as if there was something on it.
(j)At approximately 17:44:20, Mr Law got up from the position he was in and walked around the vicinity of where the fall occurred. He appeared to be inspecting the floor. He took what appeared to be basically a circular path, and then broadened his path and walked another wider circle.
(k)At 17:44:45, Mr Law walked to the counter.
(l)At 17:45:05, Mr Law walked down a corridor in the direction of the back of the Lenard's shop.
The aftermath
Neither the appellant nor her husband reported the incident to the staff at the Lenard's shop. However, the next day, 15 December 2011, the appellant's husband reported the incident to the management of the shopping centre. On 24 December 2011, he wrote a letter addressed to 'Cockburn Gateway centre management'. In the letter, he made no reference to seeing oil on the floor on 14 December 2011. He said that, when he returned the following day to report the incident, he 'went back to the scene … to try and establish a possible cause of the accident' (emphasis added). He continued:
It was … immediately apparent to me what had had [sic] caused the slip and subsequent accident; Right [sic] on the spot where Mrs Els slipped, there was a small Kiosk [sic] deep frying taste bits. It had a small mat beneath it but the [shopping centre] lights could be seen reflecting from small oil droplets on the floor all around the kiosk. There was also no sign at that location warning shoppers to be careful of the potential oily hazard (exhibit 5).
The pleadings
At par 10 of the statement of claim, the appellant alleged that she 'stepped onto the oily area causing her to slip and fall to the ground'.
The plea of negligence is contained in par 11 of the statement of claim and is in these terms:
11.The accident was caused by the negligence of the defendant.
PARTICULARS OF THE DEFENDANT'S NEGLIGENCE
The defendant was negligent in that it:
6.1 [sic]failed to have in place a reasonable system for checking and inspecting the floor of the premises;
6.2 [sic]failed to have in place a reasonable system for cleaning the floor of the premises;
6.3 [sic]failed to check and inspect the floor of the premises with sufficient regularity on the day of the accident;
6.4 [sic]failed to clean the floor of the premises with sufficient regularity on the day of the accident; and [sic]
6.5 [sic]failed to clean the spilt oil which was deposited on the floor by an employee of the defendant's;
6.6 [sic]failed to give the plaintiff any warning of the danger presented by the spilt oil.
The respondent denied it had been negligent.
The evidence adduced at trial
The appellant
The appellant was, at the time of the incident, 42 years of age. She testified that she went to the shopping centre with her husband to purchase some Christmas gifts (ts 26). She testified that she was wearing shoes with wedge heels approximately 5 cm in height and that the sole of the shoe was made of rubber. She was unable to recall whether there was any particular pattern or tread on the sole of the shoe (ts 27 ‑ 34).
The appellant testified that she had owned the shoes for approximately six months to a year and had not encountered any problems walking in them (ts 27).
She gave evidence that she and her husband walked out of Woolworths and, in the vicinity of the Lenard's shop, she slipped and fell. She described the slip as happening 'quickly' (ts 28). She was unable to explain why she had slipped.
The appellant testified that she got up, feeling very embarrassed. She said that she walked off, but her husband went back 'to see what it was that I slipped on'. She said that her husband rejoined her and they walked towards Big W (ts 28 ‑ 29).
In cross‑examination, the appellant said that she did not keep the shoes she was wearing at the time of the accident. She testified that, at the time she fell, she was not watching the floor in front of her and did not see anything on the floor when she looked back after her fall (ts 37).
Nicholas Jacobus Els
Mr Els testified that, after his wife fell, he helped her to her feet (ts 52 ‑ 53). He said that he then went back to the spot where the appellant had slipped. He said he bent down at the spot and saw 'a fine smear mark where her foot had actually slipped away on the … tile' (ts 53). He described the smear mark as 'look[ing] like oil', which he said 'had been rubbed in a specific direction and had gone from a bubble to a flat … area' (ts 53).
Mr Els testified that he went to an information kiosk near the Big W store where he asked how he could report the incident (ts 53).
The following day, he returned to the shopping centre to formally report the incident to the shopping centre management. Before doing so, he went to where his wife had fallen to get 'more information' about the cause of the fall (ts 54). In his examination‑in‑chief, he described what he observed in these terms:
I saw at the exact location where my wife had fallen that there was a little taste bits kiosk and it was standing on a little carpet, a little rubber - rubber mat, so to speak, at this exact spot where my wife had fallen, or this exact location where she had fallen.
And was that kiosk being operated by anybody?‑‑‑Yes. There were people there. They were busy frying little taste bits and there were people coming and going around it.
What did you do next?‑‑‑Well, then I had a - went closer and had a close look at the area but it was immediately apparent as to what I wanted to see.
Which was what?‑‑‑Well, around the area of - of this kiosk, the lights from the [shopping centre], because there are many lights in that area, were shining down on the floor and where they were actually hitting little droplets that had come out from this frying operation, the lights had been reflecting away from these little droplets that were lying on the floor around this kiosk (ts 54 ‑ 55).
By letter dated 24 December 2011, Mr Els wrote to the shopping centre management. I referred to the relevant portions earlier in these reasons at [13].
In cross‑examination, Mr Els described that, on 14 December 2011, he saw 'a small smear mark' on the floor where his wife had slipped, which he estimated to be up to 13 mm in length (ts 58). He did not accept the proposition that he had not carefully looked at the floor where his wife had fallen (ts 61). He denied the further proposition that the first occasion on which he considered that there may have been oil on the floor at the time of the accident was when he returned to the shopping centre the following day (ts 61).
Trial counsel for the respondent referred Mr Els to the letter dated 24 December 2011 and in particular, to that part of the letter where Mr Els said that he had returned the following day 'to try and establish a possible cause of the accident' (ts 62) (emphasis added). The respondent's trial counsel suggested to Mr Els that what he had written suggested that he did not know why his wife had slipped when he went back to the shopping centre on 15 December 2011. He denied that suggestion (ts 63). It was put to Mr Els that he did not actually see any smear mark on the floor. He maintained that he did (ts 66). Mr Els also denied the proposition that there were no oil drops on the floor around the cooking station on 15 December 2011 (ts 68).
Jennifer Lynne Green
Ms Green was in the United Kingdom at the time of the trial. A statement made by her on 12 September 2012 was admitted into evidence pursuant to s 79C of the Evidence Act 1906 (WA) (exhibit 7). In that statement, Ms Green said that she had worked as a demonstrator at the Lenard's shop since it opened in 2006 (green AB 135). She was provided with the cooking menu for 14 December 2011. Although she could not recall the menu, she accepted the information she had been given as correct. She noted that the menu for that day provided for eight burgers to be cooked on the cooking plate. She said that burgers were cooked on baking paper and that she never used cooking oil of any type. She also said that no vapours came from the cooking of items using baking paper and that any fat from the burgers drained underneath the hotplate into a small container, which she cleaned after the demonstration. She said that the amount of fat was 'about a tablespoon if that' (green AB 135).
Ms Green stated that after a cooking demonstration, she would move the cooker away from the mat and sweep up any crumbs. She said that she would then check the floor around the mat to see if anything had dropped from the cooker. If she saw anything, she said she would clean it up using a kitchen towel. She said she always checked the floor around where she cooked.
Ms Green also completed a second statement which was admitted into evidence pursuant to s 79C of the Evidence Act. That statement did not materially add to her statement dated 12 September 2012.
Natasha Vella
Ms Vella is a director of the respondent. She was the manager of the Lenard's shop. She gave evidence that the shop opened in December 2006 (ts 85). She testified that she was not present at the shop when the appellant fell, but she had been there earlier in the day when Ms Green had been cooking burgers at the cooking station (ts 87).
In essence, Ms Vella confirmed Ms Green's evidence as to the use of baking paper to the effect that any fat from the cooking process would drain, and also, how that fat would be disposed of (ts 90). She explained how products which had been cooked would be placed straight into a toaster oven. To her knowledge, it was not possible for oil to leave the cooking area (ts 93).
In cross‑examination, Ms Vella agreed that products such as burgers contained an amount of chicken fat, perhaps 10% (ts 103). Ms Vella explained that products were cooked slowly without 'splatter going everywhere' (ts 107).
Ms Vella testified that she had, prior to 14 December 2011, repeatedly instructed Ms Green to make sure that everything was kept clean and to 'keep an eye on the floor' (ts 109). She said that the procedure which was adopted when the cooking station was being packed up was to check the area around the trolley to make sure that there was nothing on the floor (ts 113).
Damian William Law
On 14 December 2011, Mr Law was employed as the assistant manager of the Lenard's shop. He gave evidence that towards the end of the day, he saw a woman, namely the appellant, being helped up from the ground. He did not see her fall. As a result, Mr Law sent Daniel Headland to check the floor; specifically, to see if there was anything on it that could have caused a slip (ts 129). Mr Law saw Mr Headland take a mop and bucket and check the floor. Mr Headland apparently saw nothing to clean.
Mr Law testified that he received a telephone call informing him that someone had apparently slipped at the front of the store. As a result, Mr Law said he went to 'double check' that there was nothing on the floor that could have caused a slip (ts 130).
Mr Law said that he did a visual check to see if any oil, crumbs or anything else could be seen. He did not see anything which could have caused a slip (ts 130). He described what he next did in these terms:
I then bent down and touched the floor with my fingers to see if I could feel any residue from anything, I could not and I also scuffed with my foot at numerous places and I did the touching of the floor at numerous places [indistinct] (ts 130).
He said that his touching of the floor revealed nothing which could have caused a slip (ts 130). He said that when he checked the floor surface with his hand, he also looked at the floor. He testified that he did not see any marks on the floor (ts 131).
The cross‑examination of Mr Law by the appellant's trial counsel was brief and focused on whether Mr Law had wiped the entire area with his hand. Mr Law said that he did not wipe the entire area with his hand or foot, although he did touch 'multiple areas' (ts 134). It was not squarely put to Mr Law that he had seen oil on the floor and proceeded to wipe the floor clean.
Daniel Owen Headland
Mr Headland was employed as a casual sales assistant on 14 December 2011 at the Lenard's shop. Mr Headland said that he did not see the appellant fall because he was, at the time, at the back of the shop (ts 122).
He testified that he was instructed to take a mop and bucket onto the thoroughfare outside the store and check if there was anything on the floor to clean up (ts 122). Mr Headland said that when he checked the floor, he saw no oil or water, nor did he see any marks, on it (ts 125). In cross‑examination he agreed that, when he went out to the front of the shop with a mop and bucket, he was looking for a pool of liquid of some description and not anything small (ts 127 ‑ 128).
The trial judge's reasons
The learned trial judge identified the critical issue to be decided as 'one of causation' [10]. His Honour posed the question 'Did [the respondent] cause or materially contribute to [the appellant's] fall and injury?' [10].
His Honour summarised the evidence of the witnesses. He noted that the appellant was 'unable to say why her foot slipped or what caused her to fall' [15]. His Honour found Mr Els was not a very impressive or persuasive witness. His Honour said that Mr Els impressed as a person who was prone to exaggeration and that his Honour considered his evidence of the incident to have 'been largely reconstructed' by information that was later gained when he visited the shopping centre on 15 December 2011. His Honour did not regard Mr Els' account of his observations on 14 December 2011 as reliable.
The learned trial judge's analysis of Mr Els' credibility was influenced by the letter he sent to the shopping centre management on 24 December 2011. His Honour said that the letter was significant for what it did not say. His Honour said that, if Mr Els had seen the oil on the floor at the time of the incident, he would have expected that fact to have been stated in the letter. His Honour observed that Mr Els described the purpose of his visit to the shopping centre on 15 December 2011 as being 'to try and establish a possible cause for the accident' [23].
His Honour continued:
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 [24].
It is unnecessary to say anything about his Honour's analysis of the evidence of Ms Vella, Ms Green and Mr Headland, save to say that his Honour, in substance, appears to have accepted their evidence as truthful and reliable [28] ‑ [44].
With respect to the evidence of Mr Law, his Honour, in substance, accepted the truthfulness and reliability of his testimony. His Honour found that:
(a)Mr Law did a visual check of the floor in the vicinity of where the appellant fell, looking for oil or any other material that could cause someone to slip;
(b)his inspection included touching the floor with his hand and with his foot;
(c)his 'search' did not reveal the presence of any oil or anything else on the floor surface; and
(d)Mr Law did not wipe anything from the floor as there was no reason to do so [45] ‑ [56].
With respect to the photographic exhibits, including the overlays to which I earlier referred, his Honour found that the better evidence came in the form of the CCTV footage (exhibit 1). As to that footage, his Honour made the following observations at [58]:
I make the following observations in respect of the CCTV footage (exhibit 1).
iAs submitted by counsel for [the respondent], Mr Criddle, as [the appellant] falls and Mr Els goes to her assistance, Mr Els' foot appears to go to the very place where [the appellant] had slipped. Mr Els did not slip;
iiThe mechanism of [the appellant's] fall. It is apparent from the CCTV footage that [the appellant's] right leg goes out from behind her. That is, that as [the appellant] is walking towards Big W it is her right leg that first slips in a backward direction and [the appellant] falls forward;
iii[The appellant] and her husband enter Woolworths to purchase the Christmas presents and depart Woolworths 50 seconds later. One is mindful that the [shopping 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 appellant] and her husband are walking at any increased pace, but they are certainly walking at a reasonable pace.
[The appellant] 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 appellant] and her husband are heading towards the Big W store that is located at the other end of the [shopping centre].
Ms Vella said that Big W was five to 10 minutes' walk from [the respondent's] premises however I do not accept that estimate. I accept that Big W is the other end of the [shopping 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.
ivThe CCTV footage assists when considering the volume of traffic that goes over area where [the appellant] 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 appellant'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 appellant] is seen to slip.
Whilst accepting some tolerance in relation to identifying the exact the spot where [the appellant's] foot slipped, in the immediate vicinity of the area where [the appellant] 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 appellant] 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.
vThe CCTV footage also records Mr Nicholas Els' examination of the area after [the appellant] 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 [58].
The learned trial judge did not accept the evidence of Mr Els as to the presence of oil on the floor at the time of the incident. He found that there was no oil on the floor ([60] ‑ [61]). His Honour based this finding on the evidence of Mr Law as to his close inspection of the floor and, in part, on the evidence of Mr Headland. His Honour found that their evidence was consistent with the CCTV footage.
His Honour's finding that there was no oil present on the floor that had come from the respondent's equipment was fortified by the fact that the system of cooking adopted, and the equipment used, by the respondent precluded oil droplets going onto the floor or beyond the rubber protective mat underneath the cooking station.
His Honour had regard to the fact that there had been no incident or any prior reports of spillage of oil or slippages on the area in the period from 2006 to 2011.
His Honour also had regard to the very significant volume of traffic that passed over the area prior to the appellant's fall.
His Honour concluded as follows:
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 respondent]. I am fortified in that view by the very considerable volume of traffic that passed over that area. Anyone in the [shopping 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.
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 respondent]. 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.
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 appellant'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 [64] ‑ [66].
The ground of appeal
In its particularised form, the appellant's ground of appeal is as follows:
1.The trial judge erred in fact and in law in that he made findings of fact (which were seminal to the issues of negligence and causation) which were inconsistent with the incontrovertible evidence of the images captured by the CCTV footage of the circumstances leading up to the accident, the accident itself and the events following the accident; thereby warranting appellate review of the whole of the evidence.
Particulars of findings inconsistent with the CCTV footage
(a)The finding at [60] of the trial judge's reasons for decision is contradicted by the CCTV footage in that the footage shows the respondent's witness Mr Law proceeding to the precise location at which the appellant fell, scuffing that location with his foot and then proceeding to clean, with his right hand, that location. The evidence of Mr Law accepted by the trial judge was to the effect that Mr Law had bent down and touched the floor with his fingers to see if he could feel any residue from any substance which may have caused the appellant to slip and that he could not.
(b)The finding at [58] (i) of the trial judge's reasons for decision is contradicted by the CCTV footage in that the footage shows Mr Els' (the appellant's husband) foot 'going' to the precise location at which the appellant fell and only scuff that location with his foot [sic]. The footage shows that there was no prospect of Mr Els' slipping during the scuffing.
(c)The finding at [58] [v] (which was integral to the finding at [60] of the trial judge's reasons for decision) is contradicted by the CCTV footage in that it shows the appellant's husband's examination of the precise location at which the appellant fell and his attempt to identify, by scuffing, that location with his foot.
The appellant's submissions
In essence, it is said that his Honour's finding that there was no oil on the floor at the time the appellant slipped and fell was 'incontrovertibly' contradicted by the CCTV footage. By particular 1(a), the appellant contends that the CCTV footage plainly shows Mr Law wiping clean the floor where the appellant had slipped and fallen, and that the learned trial judge should have rejected Mr Law's evidence to the contrary. In argument, counsel for the appellant described this particular as the 'main complaint' (appeal ts 7). Particular 1(b) impugns the trial judge's finding that Mr Els' foot went to the very place where the appellant slipped, and yet he did not slip himself. The appellant claims that the CCTV footage does not show that Mr Els' foot went to the very place where his wife slipped. Particular 1(c) attacks the learned trial judge's finding that Mr Els' examination of the location at which his wife slipped and fell was a 'cursory examination'. The appellant submits that the examination conducted by Mr Els immediately after the incident was 'far from being superficial'.
Principles of appellate review
An appeal to this court is a creature of statute: s 79 of the District Court of Western Australia Act 1969 (WA) and s 58 of the Supreme Court Act 1935 (WA). It is an appeal by way of a rehearing on the basis of the record and any additional evidence the court admits. In the present case, the appellant relied solely upon the record before the primary judge.
The powers, functions and limitations of this court's appellate jurisdiction are not a matter of any controversy in this case. They were described in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [20] ‑ [31] and by Kirby J in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 [16] ‑ [17], [21] ‑ [22].
As I have already said, the appellant alleges that the CCTV footage incontrovertibly demonstrates that his Honour's findings as to the cause of the appellant's slip and fall were erroneous. Having regard to what was said by their Honours in Fox v Percy, it may be accepted that, if the appellant makes good this submission, or demonstrates that his Honour's findings were 'glaringly improbable' or 'contrary to compelling inferences', this court may set aside the findings as to causation: see Fox v Percy [28] ‑ [29].
Analysis of the ground of appeal
The proposition that the CCTV footage 'incontrovertibly' contradicted his Honour's findings of fact cannot be accepted.
As I noted earlier, in oral argument before this court, the appellant's counsel said that the main complaint supporting the ground of appeal was contained in particular 1(a). The appellant submitted that the CCTV footage clearly showed that Mr Law found oil on the floor, looked for more oil and then wiped the floor clean.
The CCTV footage does not 'incontrovertibly' show these things. I have already described Mr Law's actions as seen on the footage. The footage is not of sufficient quality to show the presence of any oil or any other kinds of spilt fluid or material on the floor in the area that the appellant fell. The presence or otherwise of oil or some other fluid or material was a matter to be determined essentially on the oral evidence of Mr Els on the one hand, and Mr Law and Mr Headland on the other, assessed in the context of the evidence as a whole, including the events as depicted in the CCTV footage. The actions of Mr Law, as depicted in the CCTV footage, are consistent with his oral testimony which was to the effect that he examined the floor, both visually and by using his hand to touch it, in order to see if there was any oil or other substance on the floor. However, he failed to find anything.
There is no reaction or gesture - certainly no eureka moment - which might indicate the discovery of something that may have caused the appellant to fall. Mr Law did not come equipped with any cleaning products. If he wiped the floor clean with his bare hand, he does not examine his hand, or wipe whatever was on his hand onto anything, as he might be expected to do if there was oily residue on it.
The evidence of Mr Headland supported Mr Law's testimony about the absence of oil on the floor.
It is relevant, although not decisive, to observe that it was not squarely put to Mr Law in cross‑examination that he found the oil and wiped the floor clean of it. The cross‑examination proceeded on a different basis; that is, that the area he examined was not the area where the appellant slipped and fell, the inference being that Mr Law was looking for oil in the incorrect place. Any notion that he was looking in the wrong place is contradicted by the CCTV footage.
Particular 1(b) seeks to impugn his Honour's observation at [58](i) of the reasons; specifically, that Mr Els' foot appeared to go to the very place where the appellant had slipped, yet he himself did not slip. The appellant alleges that the CCTV footage shows that Mr Els' foot went 'nowhere near' where the appellant allegedly slipped and fell (appeal t s 15).
For myself, based on my viewing of the CCTV footage and the still photographs (including the overlays), I am unable to identify with precision the actual point at which the appellant fell, and I cannot conclude that Mr Els actually stepped on the very place the appellant fell. However, it is possible to identify with reasonable precision the vicinity in which the appellant fell. It is clear from the CCTV footage that Mr Els scuffed his foot in that vicinity. It may be that his foot crossed the actual point at which the appellant fell, but whether he did or not is unclear. What is clear from that footage is that Mr Els did scuff his foot in close vicinity to where his wife fell, and he did not himself slip or fall. It is not accurate to say, as the appellant does, that Mr Els scuffed his foot 'nowhere near' where the appellant fell.
His Honour's statement at [58](i) may have been inaccurate to the extent that he observed Mr Els scuff his foot at 'the very place' where his wife fell. Nevertheless, it is relevant that Mr Els scuffed his shoe in the area - possibly at the precise place where the appellant fell - and did not himself slip or fall. Any such inaccuracy by his Honour is not a material error of fact.
In any event, the observations in [58] are to be read as a whole and as a series of observations which have (along with other evidence) fed into the finding that the appellant did not prove that she had slipped on oil left by the respondent on the thoroughfare. The observation at [58](i) of his Honour's reasons is hardly indispensable to that finding. Of much greater importance was Mr Law's (and Mr Headland's) evidence as to what they observed about the condition of the floor minutes after the appellant fell.
Particular 1(c) of the ground of appeal seeks to impugn his Honour's characterisation, made at [58](v) of the reasons, of Mr Els' examination of the area where his wife fell as being 'cursory'.
The CCTV footage shows Mr Els examining the area where the appellant fell for approximately four or five seconds. Unlike Mr Law's examination, it does not appear to be a close, careful examination of the areas or its surroundings. In my opinion, his Honour's characterisation of it as 'cursory' was apt, having regard to what is shown in the CCTV footage.
Conclusion
The ground of appeal has not been made out. His Honour's findings of fact were amply justified on all of the evidence led at the trial. His Honour's rejection of Mr Els' evidence as to the presence of oil on the floor on 14 December 2011 was well open to him, having regard to the evidence adduced at trial and, in particular, the testimony of Mr Law. The CCTV footage did not incontrovertibly contradict his Honour's findings that there was no oil on the floor which had come from the respondent's cooking station, nor can it be reasonably said that those findings were 'glaringly improbable' or 'contrary to compelling inferences'.
The ground of appeal is not made out. The appeal must be dismissed.
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