George v Amp Shopping Centres P/L & Tempo Services No. DCCIV-95-1128 Judgment No. D3615

[1997] SADC 3615

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of Judge Burley Supreme Court Master

Hearing

12/05/97 to 15/05/97.

Catchwords

NEGLIGENCE Plaintiff's claim for damages for personal injury - slipped on paving outside entrance to shopping centre - whether dirt was present in area where plaintiff slipped - whether defendant negligent - whether defendant had taken adequate precautions to prevent accumulation of dirt EVIDENCE Plaintiff did not call witness - no explanation

Materials Considered

• Brown v Target Australia Pty Ltd (1984) 37 SASR 145 at 149, applied.
• Jones v Dunkel (1959) 101 CLR 298;
• O'Donnell v Reichard [1975] VLR 916, applied.

Representation

Plaintiff Susan Gail GEORGE:
Counsel: Mr M O'Loughlin - Solicitors: Gun &; Davey

Defendant AMP Shopping Centres Pty Ltd:
Counsel: Mr R White - Solicitors: Ward &; Partners

Third Party Tempo Services Ltd:
Counsel: Mr G Muecke - Solicitors: Lawson Downs

DCCIV-95-1128

Judgment No. D3615

30 May 1997

(Civil)

GEORGE V AMP SHOPPING CENTRES PTY LTD &

TEMPO SERVICES LIMITED

NO. 1128/95 DISTRICT COURT

Judge Burley

Civil

The plaintiff claims against the defendant damages for personal injury arising from a fall by the plaintiff at the Colonnades Shopping Centre on 6 November 1993. The plaintiff says that she slipped and fell at a point just outside the southern entrance to the Centre. That entrance consists of 2 sets of double sliding doors. The plaintiff had exited the shopping centre through one of the sets of sliding doors and was walking on the pavement which consisted of brick paving. Her evidence was as follows (at page 24 of the transcript): -

"Q.Can you tell his Honour what happened as you were leaving the

supermarket centre.

A. I was walking out of the main doors. I felt my left leg go from

underneath me and I landed on my bottom .

Q. When you fell, did you fall forward or backwards.

A. I fell backwards."

The plaintiff gave further evidence as to the circumstances of the fall at page 26 of the transcript: -

"Q. Before you fell, did you notice anything on the paving, or not.

A. No.

Q. What about after you fell.

A. I noticed that there was some reddish brown coloured dirt on the

pavers.

Q. Whereabouts was that.

A. Just before where I fell - this side of the sliding doors - or the

automatic doors.

HIS HONOUR

Q.I'm not sure what you mean by 'this side of the automatic sliding

doors.'

A. There are 2 sets of automatic doors that lead out into the paved area,

and when I looked back - it was on the doors of this side - the dirt was on this side (INDICATES).

Q. The dirt was between you and the sliding doors, was it.

A. Yes.

XN

Q. Looking at exhibit P1 again, you described the dirt as reddish brown. A. Yes.

Q. How does that compare with the colour of the pavers.

A.It looks very similar.

Q. Are you able to assist in terms of what area there was of the dirt.

A. No.

Q.Whether it was in piles of lumps, of whatever.

A.No, I can't remember.

Q.Are you able to assist us in terms of whether the dirt was dry or wet,

or what.

A.No."

In cross-examination (on page 59 of the transcript) the plaintiff explained what she meant when she said that she felt her left leg go from underneath her (page 24/25 of the transcript). At page 59 of the transcript the following passage of evidence is recorded: -

"Q. Can you tell us in a little more detail the manner in which you fell.

A.I was walking in a normal fashion, talking to my friend, then the

next minute my leg went from underneath me and I was on the

floor.

Q. Were you looking at her asyou talked to her.

A.I can't remember. I can't remember if I was looking ahead or if I was

looking at her.

Q.But you have a recollection of talking to her as you were walking

along.

A.Yes.

Q.You say your leg or legs went from underneath you.

A.My leg.

Q. Which leg went from underneath you.

A. My left leg.

Q. What do you mean by that.

A.Like it slipped from underneath me."

In addition, under cross-examination by Mr White, the plaintiff said that she did not notice the presence of the red dirt prior to the fall nor did she look about her after she had fallen. Her evidence in cross-examination as to seeing the dirt is as follows (at page 63 of the transcript): -

"Q. Was there any stage when you looked at the surface of the pavement

on the afternoon of 6 November 1993.

A.I looked back when I was being taken to the car, and I saw some

reddish brown dirt.

Q.Where were you when you looked back.

A.I think I was in the security car, I'm not sure.

Q.Where was the security car when you looked back.

A. Again I don't know. All I know is I was being helped up.

Q. Who was it who helped you up.

A. The security guard and the gentleman from the donut shop.

Q. Did your friend Carol assist.

A. I don't know."

Initially, the plaintiff said that she thought the position of the security car into which she was lifted after the fall was about three metres from the place where she fell. However, it is apparent from later evidence which the plaintiff gave (at page 67 of the transcript) that she accepted that the security car was parked at the end of the brick paved walkway outside the entrance to the shopping centre. It was agreed between the parties that the distance between the point where the road surface met the brick paved surface and the point where the fall took place was approximately eight metres.

It was the defendant's case that there was no dirt present, of whatever colour, at or near the point where the plaintiff slipped and fell on 6 November 1993. The defendant pleaded in the alternative that, even if dirt had been present and the plaintiff had slipped on such dirt, the defendant had not been negligent as alleged by the plaintiff or at all. In particular, the defendant asserted that it had in place a system of work whereby all walkway areas open to the public were checked at least every 20 minutes for the presence of dirt or other material upon which a member of the public might slip and that if such substance were detected, it was removed.

The first point to be determined on the question of liability is whether or not there was any dirt present in the area where the plaintiff slipped on the day in question. The pleadings suggest that the position was that there were landscaping works carried out in the vicinity of the southern entrance and that as a result of the presence of those landscaping works, there accumulated in an unspecified manner sufficient dirt on the pavement outside the southern entrance such that should anyone slip on it, he or she would be liable to fall. The evidence of the plaintiff did not go that far. There was no evidence of any work being carried out at or near the southern entrance by workmen or gardeners or other tradesmen such that inference might be drawn that dirt might have collected in the area where the plaintiff slipped. The plaintiff's evidence was limited to identifying the presence of red or orange flags or bunting situated on the other side of the road immediately opposite the southern entrance. The witnesses called by the defendant, a security officer, the centre manager and an electrician who was working on site, did not remember the presence of flags or bunting in the area indicated by the plaintiff or at all. In my view,there is no foundation in the plaintiff's evidence to support the allegations in paragraphs 6 and 7 of the statement of claim which are as follows: -

"6. On the 6th day of November 1993 at approximately 2.00 pm the

defendant, its servants or agents were performing renovation to the landscaping in the area of the footpaths immediately outside the shopping centre near the tobacconist shop and the fast food shop.

7.The defendant, its servants or agents on the said 6th day of

November 1993 were carrying out renovation of the landscaping in the area of the footpaths resulting in dirt and other debris to be left on the footpath which caused the footpath to be slippery by reducing the coefficient of friction between the plaintiff's rubber soled shoes and the cement footpath."

To the extent that any allegation of negligence contained in paragraph 10 is based upon the factual assertions in paragraphs 6 and 7 of the statement of claim, such allegation has not been made out by the plaintiff.

Because of the failure of the plaintiff to make good the allegations contained in paragraphs 6 and 7 of the statement of claim, the question of negligence must be decided by reference to whether or not:

a)there was dirt in the area where the plaintiff slipped which the plaintiff slipped on; and (if so)

b)whether negligence on the part of the defendant was responsible for the presence of the dirt.

I have set out above the main passages of the plaintiff's evidence relating to the presence of reddish brown dirt on the brick paving in the area where she slipped. She did not see the dirt prior to entering the shopping centre, nor did she see the dirt between the time she left the shopping centre and the time of her fall. She first saw the dirt from a distance of approximately 8 metres at a time when she was either being helped into or seated in the security car which was subsequently used to take her to her friend's motor vehicle. It is stating the obvious to say that, if her evidence is correct, there must have been sufficient quantities of the dirt in the area where the plaintiff slipped for it to be observed by her from a distance of 8 metres. This becomes important when considering the evidence of the witnesses called by the defendant who did not observe any dirt, reddish brown or otherwise, in the area of the plaintiff's fall.

The defendant called Mr Fielden, a security officer who assisted the plaintiff within a short time of her fall, Mr Lewis, the Operations Manager of the shopping centre, and Mr Pascoe, an electrician working at one of the shops near to the place where the plaintiff fell.Each of them was patently a witness who was endeavouring to tell the truth to the best of his recollection. Both Mr Fielden and Mr Pascoe were on the scene within a few minutes of the fall. It is impossible to be precise about the duration of time between the plaintiff's fall and their respective attendances on the scene but that does not really matter. The fact is that Mr Fielden attended the plaintiff shortly after her fall and it was not until after the plaintiff's fall that the dirt was observed by the plaintiff. Given that Mr Fielden assisted the plaintiff and in fact was helping her into the security car at the time that the plaintiff said she saw the dirt, it must follow that the dirt was there to be seen by Mr Fielden if he made an inspection of the area where the plaintiff fell.His evidence was that he did make such an inspection. He said that initially it was only a brief inspection whilst he was assisting the plaintiff. He said that he saw no dirt in the area where the plaintiff fell. Shortly after the initial brief inspection he made another inspection of the area to see whether or not he could detect any substance on the ground that may have caused the plaintiff to slip.He saw no such substance.He later photographed the area. Those photographs are exhibit D11. As far as I can see those photographs do not disclose the presence of dirt at the time they were taken.

Mr Pascoe's evidence is to the same effect. Within minutes of the occurrence of the fall he did not see any dirt on the brick paving or, for that matter, any other substance that may have caused the plaintiff to fall.

Mr Lewis' evidence does not help much one way or the other.He had no independent recollection of the events of the day. He was only able to give evidence by reference to notes actually made by him on an incident report filled out on the day of the plaintiff's fall and they do not assist on the question of the presence or absence of dirt as alleged by the plaintiff in her evidence.

On the question of whether or not there was dirt on the brick paving I have to choose on the one hand between the evidence of the plaintiff and her observations of the dirt and the evidence of Mr Lewis and Mr Pascoe. Mr R White, counsel for the defendant, has submitted that I should find that there was no dirt in the area where the plaintiff fell as alleged by the plaintiff. He submitted that the evidence of Mr Fielden and Mr Pascoe in particular should be preferred. Mr White did not suggest that the plaintiff was deliberately fabricating her evidence on the question of the presence of the dirt in the area where she fell. Rather, he submitted, she had reconstructed events in her own mind and now firmly believed that there was dirt in the area where she fell and that she slipped on that dirt. I think he is correct in that regard.

Mr White pointed to notes made by various medical practitioners within a short time of the plaintiff's fall whereby she was unable to state how it was that she slipped overand fell. Had it been that she saw dirt in the area where she fell as she was being helped into the security car, I have no doubt that she would have mentioned to the relevant medical practitioners that she thought she slipped on dirt that she observed in that area.She did not do so. That indicates to me that she did not see any dirt as she was being assisted into the security car and that she has subsequently reconstructed in her own mind that it must have been dirt that she slipped on when she fell over. I infer no dishonesty from that process, but I am unable to rely upon her evidence that she observed dirt in the area of her fall when she was in or being assisted into the security car.

In accepting Mr Fielden's and Mr Pascoe's evidence that they did not see any dirt in the area when they looked at the paving where the plaintiff fell, I must reject the plaintiff's evidence to the contrary. I find that at the time that the plaintiff fell onto the brick paving, there was no dirt either at the point where she fell or in the vicinity of that point.

In arriving at that conclusion I have accepted the defendant's submission in relation to the failure on the part of the plaintiff to call Mrs Carol James who, it transpired, was with the plaintiff at the time of the fall.Mrs James is and was the plaintiff's neighbour. There is no explanation given by the plaintiff as to why Mrs James was not called. It is clear from the cross-examination of the plaintiff on the point that Mrs James could have been called by the plaintiff if she had decided to do so. I was asked by Mr White and Mr Muecke, counsel for the third party, to draw the inference that, had the plaintiff called Mrs James, Mrs James' evidence would not have helped the plaintiff's case. Reference was made to O'Donnell v Reichard [1975] VLR 916 where the Victorian Full Court dealt with the rule in Jones v Dunkel (1959) 101 CLR 298. Norris and Newton JJ stated at 929:

"It is sufficient to say that in our opinion for the purposes of the present case the law may be stated to be that where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person's evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person's evidence would not have helped that party's case; if the jury draw that inference, then they may properly take it into account against the party in question for two purposes, namely:

a)in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party and which relates to a matter with respect which the person not called as a witness could have spoken; and

b)in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect of which the person not called as a witness could have spoken."

That statement of the law was approved by the High Court in Brandi v Mingot
(1976) 12 ALR 551 at 559.

In my view, the plaintiff's failure to call Mrs James comes within the principle enunciated in O'Donnell v Reichard. It seems to me that it is appropriate to draw the inference that Mrs James, if she had been called to give evidence, would not have helped the plaintiff's case and that that inference is a factor in determining whether or not I should accept the plaintiff's evidence as to the existence of dirt on the one hand or the evidence adduced by the defendant that there was no dirt present at the time of the plaintiff's fall.

Section 17C(1) of the Wrongs Act provides that the liability of an occupier of premises is now to be determined in accordance with the principles of the law of negligence.Mr White correctly submitted that in order to succeed the plaintiff has to satisfy the court on the balance of probabilities:

a)that as of 6th December 1993 she stood in the requisite relationship of proximity with the defendant;

b)that there was a risk of injury in the condition of the pavers on which she fell which risk was reasonably foreseeable and that therefore a duty of care was owed by the defendant to her;

c)that the defendant breached that duty; and

d)that the plaintiff's fall and injury was caused by the defendant's breach.

The defendant submitted that the plaintiff had established neither c) nor d) because either there was no dirt present when she slipped and fell or, if there was dirt present, the plaintiff had not established that the presence of the dirt constituted a breach of an acknowledged duty of care. In light of my finding that there was no dirt present when the plaintiff slipped it must follow that the plaintiff has failed to adduce any evidence which indicates that the defendant was in breach of a duty of care and that that breach caused injury. All that the evidence discloses is that the plaintiff slipped and fell on the brick paving outside the southern entrance of the shopping centre for some unexplained reason. It is the absence of that explanation which must exonerate the defendant. If the defendant is exonerated so is the third party.

There is an additional reason why the plaintiff's case cannot succeed. Even if it is assumed that there was dirt present on the paved area where the plaintiff slipped and fell, that does not mean that the defendant has necessarily been negligent. What was said by King CJ in Brown v Target Australia Pty Ltd. (1984) 37 SASR 145 at 149 is apposite:

"If, viewed in the totality of the circumstances, and including the inherent likelihood of the occurrence, the presence of slippery matter on the floor is more consistent with failure to exercise reasonable care than with the exercise of such care, there is ipso facto some evidence of failure to exercise reasonable care. This evidence may be answered by evidence providing a satisfactory explanation, consistent with due care, as to how and when the substance came to get on the floor or by satisfactory evidence as to the taking of reasonable precautions for the protection of invitees and the due and careful implementation of those precautions. In the absence of such evidence, however, the court is entitled to find that the occupier has failed to exercise reasonable care to protect the invitee from a danger of which he ought to have been aware."

Because of my finding that there was no landscaping work being carried out at or near the entrance from which the plaintiff exited immediately prior to her fall, it cannot be said that the defendant should have been aware of the real possibility of the accumulation of dirt in the area outside the entrance because of the nearby landscaping work. Thus, the situation is that the defendant was required to provide for the maintenance of areas such as the brick paved area outside the southern entrance on the basis that dirt and debris and slippery substances would inevitably accumulate in the relevant area because of the use of that area by large numbers of members of the public going into and out of the shopping centre.It is clear from the evidence of Mr Lewis that the defendant was well aware that unless appropriate steps were taken to keep the area outside the entrance clean, a dangerous condition would be created from the presence of accumulated dirt, debris and slippery substances. The defendant provided for this likelihood by requiring its cleaning contractors to ensure that all public areas of the shopping centre were inspected at least once every 20 minutes for the presence of substances on the floor or paving on which members of the public might slip and to remove same if detected. Indeed, all members of the defendant's staff engaged in running the shopping centre, including the security personnel, were made aware of the need for vigilance to ensure that the floors and walking surfaces were kept clean. This is abundantly clear from the evidence from both Mr Fielden and Mr Lewis. It is also clear from Mr Lewis' evidence that he regularly took steps to ensure that the requirement to inspect the floor surfaces at least once every 20 minutes was carried out.Given the plaintiff could not say how long the dirt had been on the paving prior to her fall, the plaintiff has not established that the dirt had been on the paved surface for an unduly long time.

In accepting the evidence of Mr Lewis and Mr Fielden, I am satisfied that the defendant took reasonable precautions for the protection of members of the public and provided adequately for the "due and careful implementation of those precautions": Brown v Target (supra).

In arriving at my conclusions, both factual and legal, I have derived a great deal of assistance from the written outline of submissions prepared by Mr White. It is not necessary for me to traverse in detail all of the matters raised by him on the question of liability both as to the principles of law which were applicable and the findings of fact that should be made. It is sufficient to state, in addition to what I have already said, that I agree in general with both the factual and legal submissions advanced by Mr White.

In light of my conclusions on the question of liability, it is not necessary for me to deal with the question of the quantum of damages.For the above reasons the plaintiff's claim against the defendant will be dismissed and the defendant's claim against the third party will be similarly dismissed. I will hear counsel as to costs.

In Court 30 May 1997

1.That the plaintiff pay the defendant's costs of action.

2.That the defendant pay the third party's costs of action and that the plaintiff pay to the defendant an amount equivalent to the costs paid by the defendant to the third party.

3.That the claim between the plaintiff and the defendant and the claim between the defendant and the third party be dismissed.

For pltf 1-Mr M O'Loughlin

deft 1-Mr P Jones

TP -Mr G Muecke