Griffin v Coles Myer Ltd

[1991] HCATrans 376

tr,

4

'

--~~

-

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 1 13/12/91

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 13 DECEMBER 1991, AT 9.54 AM

Copyright in the High Court of Australia

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 2 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, or at least the type of operation being

carried on on the premises, would it not?

MR RAPOPORT:  To a certain extent, Your Honour, yes.

DAWSON J: It is more than a certain extent. That would be

crucial in some cases, would it not?

MR RAPOPORT: That is quite so, Your Honour. There is not,

in my submission, a great deal of difference in the

circumstances between the instant case and those in

Shoeys or Drakos. They all involve effectively

what amounts to a supermarket or a variety store

operation. We are not speaking of a small corner

grocery store, but rather in a broad principle

approach, very similar operations.

DAWSON J: In this case the substance was on the floor in

what part of the premises, the part of the premises
where food was not served? Is that right?

MR RAPOPORT:  Not served in that part of the premises, no.

It was held by the learned trial judge that it was

brought to that part of the premises from another
part of the store, and there was evidence, of

course, that such items were sold in the store and

that food had been brought into the area near where

the plaintiff fell. It should be pointed out that

the plaintiff fell near the checkouts.

Your Honours, it is significant that where the

plaintiff has failed there has clearly been

evidence of the system of supervision or cleaning

on the day of the accident and, in my submission,

there is no such evidence in this case. That is

the second part of the argument.	If there is
evidence, I have tried to encapsulate the

propositions for which the applicant contends,

mainly because I thought it might help to clarify

my own thinking on the subject.

Your Honour, with respect to those who may

take a different view, my proposition is simply

this, that it is not, as has been said in some

cases, the point that if the system had been in operation the plaintiff would not have suffered

injury. What needs to be established for the

defendant to succeed is that there was no breach of

a duty of care.

McHUGH J: Not for the defendant to succeed, but for the

plaintiff to succeed; the onus is on the plaintiff.

Griffin 13/12/91

MR RAPOPORT: Precisely, Your Honour. What I mean is, if

the plaintiff is to fail, then it must be that the

accident would not have happened.

McHUGH J: Well, the onus is on the plaintiff to prove that

there was a reasonably foreseeable risk of injury,

which by reasonable case could have been avoided.

MR RAPOPORT:  Yes, precisely, Your Honours.

McHUGH J: Well, unless he establishes what the risk of

injury is, he does not get his case off the ground

or her case off the ground.

MR RAPOPORT: Well, Your Honour, with respect, the approach

adopted in both Shoeys and Drakos is somewhat

different. That principle is encapsulated possibly

on page 3 of my outline, where I say that both

Shoeys and Drakos are authorities effectively for

this proposition, that the plaintiff will establish

a prima facie case based on the inference that a

proper system would probably have detected the

substance.

McHUGH J: But how can you do that in most cases, if you do

not know how long the material has been there? If

it is a view open on the evidence that the matter

may have been dropped one second before or ten

seconds before, how can you say that the defendant

is negligent?

MR RAPOPORT: Well, that is precisely my point, Your Honour.

If Your Honour will recall, I just made a comment a moment ago - maybe I should clarify that particular

proposition. It is not contended, nor could it be

contended, in my submission, that if the material

had been dropped five seconds or ten seconds

before, there would be a failure of a good system;

in fact there would not be and therefore the

plaintiff would fail. What I am contending for is

this proposition, that if there is evidence that

there had been a reasonable system in operation,	then if the material is shown to have fallen within
a time within that period - let us assume, as was
assumed, for example, in a couple of the cases that
it is either say 30 minutes, as was assumed in Shoeys' case, as I understand it - if the material
had fallen within that time, then the defendant
would not be in breach and the plaintiff would
fail.

McHUGH J: Well, it may be in the particular case.

Rose's case was an illustration of that sort of argument which succeeded, but there is no question of law involved, is there?

Griffin 4 13/12/91

MR RAPOPORT: Well, Your Honour, there seems to be the

proposition arising from Dulhunty's case, which was

adopted in this case, as - - -

McHUGH J: But they are only citation of facts; it is like

the view that used to prevail that if you were not

one car's length behind the other car and you ran

into it, then you were guilty of negligence. That

is just a factual proposition; it is not a question

of law.

MR RAPOPORT: Well, Your Honour, with respect, my submission

is that here there is a pure question of law

involved and that is, is there a general principle

that in every or most cases the plaintiff must show how long the material has been on the floor or else the plaintiff will fail.

DAWSON J: Well no, but the plaintiff must show that the

accident was caused by the lack of an adequate

system.

MR RAPOPORT: That is so, Your Honours, and in this case,

what has happened is, there is no evidence of the

system on the day in question and yet the plaintiff

has still failed on appeal.

DAWSON J: Because on the evidence, whatever the system, the

accident may well have happened.

MR RAPOPORT: Well, Your Honour, there was not a system,

because there is no evidence of one.

BRENNAN J:  Mr Rapoport, the way in which you stated that

question of law sounds very much to me like the

question that might be asked at the commencement of

an advice on evidence. What evidence do we have

that the plaintiff can prove so-and-so and

so-and-so? There is no question of law in that.

It is no question of law to say, must the plaintiff

prove something. Pinciples are applicable; the

question is on the facts, does the plaintiff have

to prove this? That does not seem to me to come

anywhere near a question of law.

MR RAPOPORT: Well, Your Honour, as I understand the

judgment of the Full Court in this case, they

adopted entirely the proposition stated in this

Court's decision in Dulhunty's case, which was

stated as a proposition of law, as I understand the

judgment of the then Chief Justice.

BRENNAN J: Well, not everything that emerges from the

judges' lips are propositions of law.

MR RAPOPORT: Quite so, Your Honour.

Griffin 13/12/91

BRENNAN J: Obviously, cases have to be determined upon

their particular facts and Dulhunty's case was one

where the Court obviously had to consider the facts

of that case.

MR RAPOPORT:  Your Honour, I could not for a moment disagree

that that was so, except that - two things arise

out of Dulhunty's case. The first is that the

trial judge had evidence before him of the system

that had operated on the day of the accident, that
is the first point to make about it; and the then

Chief Justice said, at page 410 at line 41, that there is:

a failure on the part of the respondent to

take reasonable care causally related to the

incident and the appellant's injury.

So the question of causation arose there, quite

clearly.

BRENNAN J: Of course it does. It always arises in a

question of negligence.

MR RAPOPORT:  Indeed, Your Honour, but then it goes on to

say that because there was no evidence,

effectively, as to how long the grape was on the

floor - this is what His Honour says later on, at

about line 47:

and of the time it had been there was

indispensable in the appellant's case, if a

case against the respondent as an occupier was

to succeed -

that there be evidence of time.

So what His Honour was saying, with respect,

was that it is indispensable where you cannot prove

- sorry, if you cannot prove the time, you cannot

succeed.

BRENNAN J: Well, I understand the proposition as you mount

it but I venture to suggest that you are misreading

what His Honour was there saying as being a

proposition of law. Are you not engaging in the

fallacy of comparing the facts of two cases and

endeavouring to spell out some principle of law,

either by reference to the similarity of the facts

or their distinction?

MR RAPOPORT: With respect, no, Your Honour, because when

one analyses, for example, the case in the New

South Wales Court of Appeal where the plaintiff

failed, that is Sleiman's case, on which the

majority relied in my case, it was there stated as

- effectively the same principle was applied that

Griffin 6 13/12/91

causation had not been established. There is a

common thread running through these on causation,

Your Honour - all of them. It is not necessary to

look closely at the facts, it is simply a matter of

extracting from them whether the fact of the time

has been necessary in each case.

It should be said, Your Honour, first of all,

as I point out from that American decision on

page 3, that it is an "illogical exaction", to use

the American phrase, or if I may take from

Mr Justice Kirby's decision, though dissenting, in

Sleiman's case, it is a Herculean task for a

plaintiff to establish. Your Honour, that, with

respect, is not a principle of fact, it is a

question of law that, if there is the need for a

Herculean task before a plaintiff in such slipping

cases, then there is something wrong with the law,

not with the facts.

Your Honour, there is a slightly different

approach that might be adopted, and that is the one

adopted by Mr Justice Jacobs in Dulhunty's case,

where he spoke of an evidentiary onus moving to the

defendant. Now, here there has not been any

satisfaction of that evidentiary onus because there

simply is no evidence of the system in operation on

the day of the accident. For that reason, the

plaintiff should have succeeded and did, at the

trial. I do not know that I can assist

Your Honours any further.

BRENNAN J: Yes, thank you, Mr Rapoport. We need not

trouble Mr Crowley. This application turns on a
question of fact only. It does not raise any

question of law for determination. It would

involve merely an examination of the evidence in

the case. There is therefore no warrant for the
grant of special leave. Special leave is

accordingly refused.

MR RAPOPORT:	Thank you, Your Honour.
MR CROWLEY:	If the Court pleases, we ask for costs in the

matter.

BRENNAN J:	What do you say about that, Mr Rapoport?
MR RAPOPORT:	I cannot argue against that proposition,

Your Honour. Thank you.

BRENNAN J: It will be refused with costs.

MR CROWLEY:  Thank you, Your Honour.

AT 10.09 AM THE MATTER WAS ADJOURNED SINE DIE

Griffin 13/12/91