Griffin v Coles Myer Ltd - [1991] HCATrans 376

tr,

4
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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No BlS of 1991
B e t w e e n -
PAMELA JEANETTE GRIFFIN

Applicant

and
COLES MYER LTD

Respondent

Application for special leave
to appeal

BRENNAN J

DAWSON J

MCHUGH J

Griffin

13/12/91

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 13 DECEMBER 1991, AT 9.54 AM

MR s.o. RAPOPORT:

May it please the Court, I appear for the

applicant. (instructed by Cleary & Lee)

MR J.G. CROWLEY, QC:

May it please the Court, I appear with

my learned friend, MR R.M. BOURKE, for the
respondent. (instructed by Morris Fletcher &
Cross)

BRENNAN J: Yes, Mr Rapoport.

MR RAPOPORT:

Your Honour, I hope you have before you an

outline of some submissions that I have prepared.

BRENNAN J: Yes, we have those.

MR RAPOPORT:	Your Honour, could I just go directly to the question of general importance which the applicant
puts forward, and that is: is there a requirement
for the time that an object has been on the floor
to be established by the plaintiff in slipping and spillage cases before the plaintiff can succeed to establish causation? That is the general principle
which is in issue in this case, in my submission.
BRENNAN J:	Is that a question of law or a question of fact?

MR RAPOPORT: With respect, it is a question of law, in my

submission, Your Honour, because the courts have
adopted a test which, in my submission, is purely a
matter of law and the facts have to be applied to

that proposition. The proposition as I read it at
the moment where it has been followed is that
unless you can show how long it has been there,
irrespective of any question of time, then you
fail. That, in my submission, is a pure question
of law.

BRENNAN J: Well, we will hear your submission.

MR RAPOPORT:

Thank you, Your Honours. The cases which I

have referred to there I have analysed, hopefully
correctly, and it is significant that there is a
common thread running through the ones where the
plaintiff has been successful and a common thread
where the plaintiff has been unsuccessful.
But the essence of the matter at the moment is

there seems to be a developing pattern which
Your Honour referred to in the earlier application
in Courts of Appeal or Full Courts of the varying
States. This case, for example, follows some of
the earlier authorities but not many, and there is
an increasing tendency in the opposite direction.
In particular, the most recent two cases, that is
Shoeys case and Drakos's case, both decided this
year, have held that where there was no evidence as

Griffin

13/12/91

to the time, nevertheless, the plaintiff was
entitled to what amounted to a presumption and was
successful.

DAWSON J: But that would depend on the type of premises

involved,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1991] HCATrans 376
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia concerning an application for special leave to appeal by Pamela Jeanette Griffin against Coles Myer Ltd. The core of the dispute revolved around the evidentiary requirements for a plaintiff to succeed in a slip and spillage case, specifically whether it is a legal necessity to establish the duration the offending substance was present on the floor.

The legal issue before the Court was whether there is a requirement for a plaintiff in slip and spillage cases to prove how long an object or substance had been on the floor before they can establish causation and succeed in their claim. The applicant argued that this was a question of law, asserting that courts had adopted a test requiring proof of time, irrespective of other circumstances, which, if not met, led to failure.

The applicant contended that recent decisions, such as *Shoeys* and *Drakos*, indicated a developing tendency in appellate courts to move away from a strict requirement to prove the duration of the spillage. These cases, it was argued, suggested that a plaintiff might be entitled to a presumption even without direct evidence of time, particularly in the context of supermarket or variety store operations. The applicant highlighted that in cases where plaintiffs had failed, there was often evidence of a functioning system of supervision or cleaning, which was absent in the present case. The nature of the premises and the operation, such as a supermarket, were considered relevant to this assessment.

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