Harris v Woolworths Ltd - [2010] NSWCA 312

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Harris v Woolworths Ltd [2010] NSWCA 312

FILE NUMBER(S):
2007/265188

HEARING DATE(S):
11 November 2010

JUDGMENT DATE:
11 November 2010

EX TEMPORE DATE:
11 November 2010

PARTIES:
Leonie Edna HARRIS (appellant)
WOOLWORTHS LIMITED (ACN 000 014 675) (respondent)

JUDGMENT OF:
Hodgson JA Campbell JA Young JA

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
SC 20351/07

LOWER COURT JUDICIAL OFFICER:
R A Hulme J

LOWER COURT DATE OF DECISION:
10 February 2010

LOWER COURT MEDIUM NEUTRAL CITATION:
Harris v Woolworths Ltd [2010] NSWSC 25

COUNSEL:
D P O’DOWD/ L ROBISON (appellant)
P BLACKET SC/ D RONZANI (respondent)

SOLICITORS:
Cox West Lawyers (appellant)
Bartier Perry Solicitors (respondent)

CATCHWORDS:
TORT – Negligence – Slip by plaintiff in defendant’s store – Whether error by primary judge in not being satisfied that there was liquid on the floor, or as to causation.

LEGISLATION CITED:
Civil Liability Act 2002 ss 5D and 5E

CATEGORY:
Principal judgment

CASES CITED:
Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241
Drakos v Woolworths (South Australia) Limited (1991) 56 SASR 431
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Franklins Limited v Brown [2000] NSWCA 177
Harris v Woolworths Ltd [2010] NSWSC 25
Kocis v SE Dickens Pty Ltd t/as Coles New World Supermarket [1998] 3 VR 408
Mifsud v Campbell (1991) 21 NSWLR 725
Rose v Abbey Orchard Property Investments Pty Ltd (1987) Aust Torts Report 80-121
Shoeys Pty Limited v Allan (1991) ATR 81-104
Woolworths Limited v Strong [2010] NSWCA 282

TEXTS CITED:

DECISION:
Appeal dismissed with costs.
[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT:

- 18 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2007/265188
SC 20351/07
HODGSON JA
CAMPBELL JA
YOUNG JA
Thursday 11 NOVEMBER 2010

Leonie Edna HARRIS v WOOLWORTHS LIMITED

Judgment

HODGSON JA: On 10 February 2010 R A Hulme J gave his decision in proceedings in which the appellant as plaintiff had sued the respondent as defendant for damages for negligence: see [2010] NSWSC 25. The primary judge gave judgment for the defendant and ordered the plaintiff to pay the defendant’s costs.
The plaintiff appeals from that decision.
I will begin with an outline of facts not in dispute or clearly proved.
Some of such facts are set out in the following extract of the judgment from the primary judge.
[5]At the time of the incident the plaintiff was a 44 year old woman who was employed by Kimberley-Clark Australia Pty Ltd (“Kimberley-Clark”) as a Territory Manager. She was responsible for promoting sales of her employer’s products in various retail stores and supermarkets in the western Sydney metropolitan and Blue Mountains areas. …..
[6]On 19 June 2003 the plaintiff went to the Kings Langley supermarket operated by the defendant. The primary purpose of the visit was to assist another Kimberley-Clark employee, Ms Katherine Plant, in the erection of a display of tissue products. The plaintiff had not been to this supermarket before. She arrived at 8.30 am. She signed the visitors’ book at the front counter and then found Ms Plant within the store. They first attended to restocking shelves with tissue product before commencing to build the tissue display.
[7]The tissue display was erected on a clear area of floor immediately on the store side of a railing that separated the store from the express checkout area. The plaintiff and Ms Plant placed boxes of tissues on the display, initially working on the store side. After it had been completed, the plaintiff walked around to the opposite side with the intention of turning the tissue boxes around so that they were facing out and therefore properly on display to people walking through the express checkout area.
[8]Almost immediately upon entering the express checkout area the plaintiff slipped and fell. …..
[9]She said she fell to the ground, on to her right ankle and/or knee and that she was in a lot of pain. A female Woolworths employee approached her and asked if she was alright and whether she could get up. Ms Harris replied to the effect that she was not alright and that she could not get up because she was in too much pain. The employee left. I am satisfied that this employee was Ms Christina Aquilina who had been working at an express checkout register.
[10]Ms Plant came around from the store side of the display and asked if she wanted some help. The Woolworths employee (Ms Aquilina) then returned with a chair for her to sit on. The two helped Ms Harris to get up and sit on the chair. …..
…..
[12]Apparently Ms Harris was blocking the express checkout area and so with assistance she and the chair were moved around into the store where she resumed her seat adjacent to the tissue display. When she was in that position a Woolworths employee who had provided the chair (Ms Aquilina) then brought a bag of ice. ….. Photographs (Ex G) were taken of Ms Harris sitting on the chair with her right foot up on a carton with a bag of ice on her knee and another underneath her ankle.
…..
[14]Ms Harris said that another Woolworths employee approached her with some paper work. Other evidence established that this was Ms Doris Cortis who completed a Customer Incident Notification form (Exhibit 3) and a Customer Incident Investigation form (Exhibit 4). …..
In the Customer Incident Notification form prepared on 19 June 2003 by Ms Cortis (4 Blue 1694), the incident is recorded as having occurred in the “express lane in front of register four”. In the diagram of the area there is written the words “no spillage on floor”. In the Customer Incident Investigation form (4 Blue 1695-6), also prepared on 19 June 2003 by Ms Cortis, it is noted that the floor was inspected five minutes before the incident by Ms Aquilina, who worked in express, and was said to be “clean”. The condition of the floor after the incident was stated as “Clean, mark from her heel”, and it was also noted that there were no customers, that Ms Aquilina “was waiting for customers”. A Customer Incident Statement signed and dated 19 June 2003 by Ms Aquilina (4 Blue 1697) stated:
At 11.10am to 11.30am on the 19/6/03 watched a Rep walking through the fast lane. Untill she fell next to the sign, twisted her ankle and fell on her knee (right side). The floor was not wet in any way.
Further facts were set out in the following extract from the judgment of the primary judge:
[16]Ms Harris made a telephone call to her manager, Ms Louise Thompson. Ms Thompson came and collected her and took her to Windsor Hospital. An x-ray was performed and she was told that it did not show anything and that she must have just sprained her foot. She was advised to put ice on it and rest.
…..
[27]In 2003 Ms Thompson was a Field Operations Manager for Kimberley-Clark. She supervised a team that included Ms Harris. She received a telephone call from Ms Harris on the day of her fall. She attended the store about 20 minutes later and saw Ms Harris sitting on a chair with her right foot elevated. She assisted Ms Harris to her car and then drove her to Hawkesbury Hospital.
[28]Ms Thompson gave evidence, which was not challenged, of having been told both by Ms Harris and by Ms Plant that there was spillage on the floor and that it had been wiped up after Ms Harris had fallen. She wrote on the copy of the Customer Incident Notification form that had been given to Ms Harris (Ex B p 18), “There was spillage on the floor. It was wiped up after Leonie slipping”.
The emergency record for Hawkesbury District Health Service (2 Blue 544) shows triage assessment occurring at 13.55, and recording “Slipped on wet floor” and the WorkCover medical certificate (2 Blue 547) records “Slipped on wet floor in Woolworths Supermarket Kings Langley.”
The plaintiff after the accident claimed workers compensation, and this claim was recognised by her employer.
There were written statements made later in 2003 by the plaintiff, Ms Aquilina and Ms Plant, at a time when the plaintiff was not contemplating a claim against the defendant for negligence.
The plaintiff’s statement is dated 25 September 2003, and relevantly is as follows:
As I entered the lane I slipped on very slippery and wet substance and fell.
I fell forwards and to my left side and went down. Someone came to help me. My right foot was in severe pain. They asked if I wanted to get up and if I was alright. I said to them I am not alright and did not want to move straight away. Someone brought a chair and I eventually sat on the chair. This was still in the express checkout lane. At this stage Kathy Plant came over to where I was sitting. Also while I was sitting there someone from Woolworths appeared with roller towel (sic) and wiped up the substance.
As I was in the lane blocking the customers I moved around to the front of the display. I did not walk but hopped around holding onto the rail.
Once again I sat on the chair and someone from Woolworths brought ice and applied to my right foot. I recall that photos were taken of me sitting on the chair.
A person from Woolworths appeared with their accident report. She asked me my personal details. I explained what happened and when I said that I slipped on something wet on the floor she said, “No you didn’t, look the floor’s not wet”. And I replied, “That’s because you have wiped it up”.
The lady completed her documentation and showed it to me. I read it and it said, “no spillage on the floor” but this was not in answer to a question but had just been put on the paperwork. I did not sign anything. They gave me a copy of the report and I gave it to my boss.
Kathy Plant was by now with me and she saw them wipe up the spillage.
Ms Aquilina’s statement is dated 22 October 2003, and contains the following material (4 Blue 1698-1700).
5)On 19 June 2003 I was at work at the Kings Langley branch of Woolworths. I was working at the express register no four. I recall that I started work that day at 9:30am.
6)At some time in the morning, I cannot remember the exact time, I saw a lady who I remember was a sales representative was ready to exit through the fast lane and she fell over. This was right in front of me about a few feet.
7)I remember it happening as if in slow motion. I immediately walked from behind my cash register to her to help her. I asked her how she was and tried to help her up. I remember the other rep coming to help her. I think she stood up leaning on the display.
8)I raced up to the staff lunchroom to get her a chair. I took the chair to her and then ran out to the back of the store to get a bag of ice.
9)I went back to the lady and gave her the bag of ice. Because it was not sealed properly, as she placed it on her ankle it poured onto the floor. I put a knot in it and raced back to the back of the store and got another bag of ice. I gave this to her for her knee.
10)They called for the first aid attendant and Doris Cortez and Carlo Hipolito came to see what happened. I went back to my cash register after about ten minutes.
11)The floor area where the lady fell was not wet in any way. I particularly remember feeling the floor on my hands and knees to see if it was wet and it was not. There were no other customers in the express area at the time of her fall and there was no dirt or debris on the floor.
Ms Plant’s statement was made on 18 November 2003, and contained the following:
5)On 19 June 2003 I was at the Kings Langley branch of Woolworths. I was with Leonie Harris working at the store building a display of the company’s products near the express aisle checkouts.
6)At about 11:00am I was in the process of building the display. Leonie walked around to the back of the display. To get there she had to enter the express aisle. All of a sudden I heard a noise and looked up and saw that Leonie was on the floor. I walked round the display to help her up.
7)As I got to Leonie I helped her up. I think another girl from Woolworths also helped. I asked Leonie if she could walk on her foot and she said No. As we were standing there I noticed something on the floor. It was something wet. We then helped Leonie to the chair which someone from Woolworths had brought.
8)I then saw someone from Woolworths come and wipe up the spillage with white paper towels.
9)When Leonie sat down she put her foot up as it was swelling quickly. She was in quite a bit of pain. Someone brought some ice. Leonie called the office and Louise Thompson came and took Leonie to the hospital.
The plaintiff was told on 19 June 2003 that she must have just sprained her foot, but x-rays taken in July and August 2003 showed she had broken her ankle. Her condition did not improve significantly, and an arthroscopy was performed on 22 October 2003. After that, the plaintiff continued to have significant problems which continued in 2004 and up to the present.
The plaintiff consulted a solicitor Mr Linsell for advice concerning what claims she might have. The plaintiff’s employment with Kimberly-Clark terminated as from 28 February 2007. On 22 May 2007, she consulted her present solicitors, and these proceedings were commenced on 12 October 2007.
In his judgment the primary judge identified four issues:
Was there liquid on the floor of the supermarket that caused or contributed to the slip and fall?
If so, was the defendant negligent and was such negligence the cause of the harm occasioned to the plaintiff?
Was the commencement of proceedings outside the three year post discoverability limitation period provided by s 50C of the Limitation Act 1969?
If the above issues are determined in favour of the plaintiff what is the extent of damages for which the defendant is liable?
As regards the first issue, the plaintiff gave evidence to the effect that there was liquid on the floor that caused her to fall, and Ms Plant gave evidence generally supporting that position. Ms Aquilina gave evidence that there was no liquid on the floor at the time of the incident, and the evidence of Ms Cortis generally supported that position. The primary judge found that all witnesses gave their evidence honestly. The primary judge made the following factual findings:
[60]The evidence of the plaintiff and Ms Plant on the one hand is in stark contrast to that of Ms Cortis and Ms Aquilina on the other. Both Ms Harris and Ms Plant claim that they saw liquid on the floor and Ms Harris said that she slipped on it. Both Ms Cortis and Ms Aquilina claimed to have immediately made a close inspection of the floor in the area of the fall and saw nothing. Ms Aquilina also claims to have looked at the area of the floor from a relatively good vantage point some five minutes before the incident and saw nothing.
[61]The inconsistencies in the evidence are explicable, in my view, by the varying abilities of the witnesses to accurately perceive the events at the time they occurred, and to accurately recall the events, and the sequence in which they occurred, after a period in excess of six years had elapsed. Having regard to that delay it is appropriate to give greater significance to the statements that they made either on the day of the incident or within months of it.
[62]The most compelling feature that favours the plaintiff is the fact that she made her claim that there was liquid on the floor in the area where she fell very shortly after the incident. She did so without any immediate thought of holding Woolworths responsible. Indeed, as I will deal more with later, the thought did not occur to her to take any action against Woolworths for some considerable time. Ms Harris raised this issue of the floor being wet with Ms Cortis. She informed Ms Thompson who made a note of it on Ms Harris’ copy of the Customer Incident Notification form (Ex B p 18). She included it in the history that she gave at the Hawkesbury District Hospital. She included slipping on a “very slippery and wet substance” in her statement of 25 September 2003. That statement was made for workers compensation purposes and not in contemplation of any proceedings against Woolworths.
[63]Ms Plant was insistent about there being liquid on the floor. She said the same in the statement she made in November 2003 in connection with the plaintiff’s workers compensation claim. The plaintiff had still at that time not considered holding Woolworths responsible or taking any action against it and so it cannot be (and was not) suggested that by saying this Ms Plant was endeavouring to assist the plaintiff in that regard.
[64]Against that, however, there is the problematic issue of the plaintiff saying that it was a person dressed in a white uniform like that worn by delicatessen staff who wiped up the liquid on the floor. I am satisfied that no Woolworths employee wore such a uniform at that time. Attempts to suggest this might have been a member of the bakery staff, or somebody wearing a white apron, are unacceptable. Such explanations are inherently improbable and also fly in the face of the evidence of Ms Plant. She claimed that it was the younger of the two female employees who were involved in the incident which quite obviously was a reference to Ms Aquilina. But Ms Aquilina did not simply appear suddenly, wipe up some liquid and disappear.
On the question of whether the defendant was negligent, the primary judge found as follows:
[101]I am satisfied on the balance of probabilities that the defendant was in breach of its acknowledged duty of care. It used a floor surfacing that it conceded became slippery when wet. The system employed to ensure that the floor was clean, non-slip and safe to walk upon was inadequate. The very nature of the activities within the premises created a constant risk of spillages. Whilst I am unable to conclude on the evidence in this case that spillages were “frequent”, it at least established that they were not uncommon. The defendant did not deny the risk but sought to ameliorate it by measures which I regard as being insufficient. Having a system of requiring staff whose employment is primarily directed to other endeavours keep an eye out for spillages left too much, unacceptably, to chance. Some areas of the supermarket might be regularly frequented by staff while other areas not. I accept that adopting measures such as having staff devoted to ambulatory inspection of the floor surfaces could never completely eliminate the risk but it would act to reduce it in a significant way.
[102]The plaintiff also contended that another precaution to avoid the risk of harm available to the defendant was to provide an alternative floor surface like the types referred to earlier (at [88]). This contention gives rise to a question of whether the provision of such alternative floor surfacing material was reasonable and practical. This was not an issue that was explored in the evidence. It would be relevant to know something about the cost of providing alternative floor surfacing material and whether it would be practical having regard to the number of people and shopping trolleys that traverse the supermarket floor space. There was no exploration in the evidence of whether the use of other floor surfaces might give rise to alternative risks to customers, for example, tripping in relation to mats. The plaintiff has the onus and I am not persuaded when considering the burden of taking these types of precautions to avoid the risk of harm (s 5B(2)(c) Civil Liability Act) that such steps would be reasonable and practical.

On the question of whether any negligence of the defendant caused the plaintiff’s injury, the primary judge found as follows:
[103]Again, despite the fact that I have found against the plaintiff on the first issue, it is appropriate that I proceed to consider whether it is more probable than not that the defendant’s breach of duty caused or materially contributed to the plaintiff’s fall and consequent injury, assuming there had been liquid on the floor that caused or contributed to the plaintiff’s fall. Was the defendant’s negligence a necessary condition of the occurrence of the harm (s 5D(1)(a) Civil Liability Act 2002)? And, is it appropriate for the scope of the defendant’s liability to extend to the harm so caused (s 5D(1)(b))?
[104]There was really no issue about the second of those matters. Quite clearly it is appropriate for the scope of the defendant’s liability to extend to the harm that was occasioned to the plaintiff. However, I am not satisfied in respect of the first matter. Ms Cortis made a contemporaneous note (on Ex 4) that Ms Aquilina had observed five minutes before the fall that the floor in the relevant area was clean. Ms Aquilina had been standing at a cash register in the express checkout area and had a good vantage point. An estimated 20 to 30 customers had passed through the area in the preceding hour without incident. This tends to confirm that there was nothing on the floor until very shortly before Ms Harris’ fall.
[105]Whilst I have held that a system of monitoring and inspection should have been in place for the defendant to have taken appropriate precautions against the risk of harm from customers slipping on spillages, it would be unrealistic in my view for that monitoring and inspection to have been so frequent that it would have detected any liquid spilt in the express checkout area almost instantly. To contend otherwise would be to have it that the defendant should have had somebody keeping the area under almost constant surveillance. If one was to contend that, one would also need to contend that such constant surveillance be carried out throughout the store. At one point it was contended for the plaintiff that CCTV monitoring could have achieved this end, but whether it be monitoring by that means, or by the physical presence of staff, such a proposal is impractical.
[106]Another matter to be borne in mind is that if there was water on the floor as the plaintiff claimed, it was not in an area where there was a high risk of spillages. The area was not immediately at the checkout counters where goods would be transferred from hand to counter or from basket or sometimes trolley to counter. It was not in an area where goods were selected from shelves and either placed in the customer’s hand or the customer’s basket or trolley. In short, it was not where one would expect any movement by way of handling of goods. An adequate system of monitoring and inspection would, by necessity, give priority to areas in which the risk of spillage was greater.
[107]To conclude on this topic, upon the assumption that there was water on the floor as was claimed, I am satisfied that it is more probable than not that the defendant was negligent but not satisfied to that standard that such negligence was the cause of harm to the plaintiff.
The issue concerning the limitation question was also decided adversely to the plaintiff. The plaintiff has appealed from that aspect of the decision, as well as others, but for reasons I will give, in my opinion it is appropriate that this Court not consider it.
The primary judge did not address the question of damages.
The plaintiff relies on the following grounds of appeal, leaving aside those concerning the limitation question.
11.His Honour erred in finding that the evidence of the Appellant and that of Mrs Plant was in stark contrast to that of Ms Cortis, in that such a finding was not supported by the evidence, namely:
(i)The uncontested evidence established that by the time Ms Cortis arrived at the scene of the Appellant's fall, sufficient time had elapsed for the water to have already been wiped up by an employee of the Respondent;
(ii)The concession by Mrs Cortis that it was possible that the Appellant had told her that she had slipped on some clear liquid, like water;
(iii)Mrs Cortis conceded that it was possible that an employee could have worn a white apron (citing bakery staff as wearing white occasionally).
12.His Honour erred in finding that no Woolworths' employees wore a white uniform at the time of the Appellant's fall in that such a finding is contrary to the undisputed evidence of Ms Cortis.
13.His Honour erred in finding that attempts to suggest that this (the person who wipes up the spillage) might have been a member of the bakery staff, or somebody wearing a white apron, were unacceptable, in that such a finding is contrary to the undisputed evidence of Ms Cortis.
14.His Honour erred in finding that the suggestion that a person wearing a white apron or someone from the bakery staff wiped up the spillage was glaringly improbable, in that such finding is contrary to the undisputed evidence of Ms Cortis.
15.His Honour erred in giving undue weight to the evidence adduced in cross-examination from Mrs Plant to the effect that she thought that the person who wiped up the spillage was the younger of the two female employees involved in the incident having been influenced by his erroneous finding that no Woolworths' staff wore such a uniform (white) at that time.
16.It was not open to His Honour to find that the Appellant, although genuinely believing the sequence of events was as she had described, was mistaken, as such a finding is against the weight of the evidence or alternatively is glaringly improbable.
17.It was not open to His Honour to accept the evidence of Ms Aquilina that she had looked at the place where the Appellant fell five minutes before and had observed it to be clean, as such a finding is against the weight of the evidence and/or alternatively is glaringly improbable.
18.His Honour erred in finding that after summoning Ms Cortis after the Appellant's fall, that Ms Aquilina remained there waiting for the attendance of Mrs Cortis, as such a finding is contrary to the express evidence of Ms Aquilina.
19.His Honour erred in finding that after Ms Cortis arrived at the scene of the Appellant's fall, that Ms Aquilina hurried off to retrieve a chair, as such a finding is contrary to the express evidence of Ms Aquilina.
20.His Honour erred in that His Honour's (erroneous) findings about Ms Aquilina waiting at the scene implicitly involved a finding by His Honour that there was no period of time between when the Appellant fell and Ms Aquilina attended to her with Mrs Plant, when the Plaintiff and Mrs Plant were alone without the presence of either Ms Aquilina or Ms Cortis, which was relied upon by His Honour to reject evidence of Mrs Plant and the Appellant as to there being a person who attended and cleaned up the spillage at shortly after the Appellant fell and before the chair arrived, which finding was essential to His Honour's ultimate findings on liability.
Breach of Duty
21.His Honour erred in finding that the value of Ms Cortis' evidence as to there being nothing to prevent a non-slip mat or floor surfacing in the area of the express checkout lane was somewhat dubious having regard to her position in the company and her apparent lack of knowledge of the cost of doing so, where such a finding was not open to His Honour and the evidence, which, rather than establishing His Honour's finding, demonstrated the contrary proposition, namely that her opinion, as acting manager of the store ought to carry considerable weight.
22.His Honour further erred in finding that the contention by the Appellant that another precaution to avoid harm available to the respondent was to provide an alternative floor surface was not an issue that was explored in the evidence when the issue had been expressly explored with the Respondent's employee and acting store manager Ms Cortis, and she had given evidence in support of the Appellant's contention.
23.His Honour erred in rejecting an alternative floor surface or mat as a precaution available to the Respondent, in that in so doing, His Honour was substituting his own experience and contradicting the evidence of Ms Cortis and which had not been challenged on this matter.
Causation
24.His Honour erred in finding that an estimated 20 to 30 customers had passed through the express check out area in the preceding hour as such a finding was not available on the evidence, which evidence was merely an estimate by Ms Aquilina of how many people would use the express check out in June, 2003 in an hour or so, without any consideration of the qualification by Ms Aquilina that during the period 10.00 – 11.00 am, the witness described the store's activity as “pretty quiet”.
25.His Honour erred in finding that the area in which the Appellant fell was not an area of high risk of spillages in that such a finding was not available on the evidence. Further, in so finding his Honour was substituting his own experience and contradicting the evidence of Ms Cortis.
26.His Honour erred in finding that the area where the Appellant fell was not an area where one would expect any movement by way of handling of foods, as such a finding was not supported by the evidence.
27.His Honour erred in finding that an adequate system of inspection and monitoring would, by necessity, give priority to areas in which the risk of spillage was greater, as such a finding was not supported by the evidence.
28.His Honour erred by applying an incorrect test as to causation, namely that he was satisfied that it was more probable than not that the Respondent was negligent, but not satisfied to that standard that such negligence was the cause of harm to the Appellant.
I will consider first the challenge to the primary judge’s decision that he was not satisfied that there was liquid on the floor at the time of the plaintiff’s fall. This is a decision of primary fact based to a considerable extent on the credibility of witnesses, and in my opinion the principles discussed in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 apply. Plainly in my opinion this decision of the primary judge was not demonstrated to be erroneous by incontrovertible facts or uncontested testimony, or to be glaringly improbable or contrary to compelling inferences in the case.
The plaintiff’s challenge rests primarily on the contention that the primary judge’s conclusion is vitiated by errors in his reasoning process. The principal errors identified by Mr O’Dowd who appeared for the appellant, were as follows:
(1)relying on Ms Aquilina’s evidence that she inspected the floor immediately after the fall and before she went to get a chair, when in cross-examination she said that it was possible that she did not inspect the floor until after she returned with the chair;
(2)finding that Ms Aquilina did not leave the plaintiff until after Ms Cortis had arrived, when Ms Aquilina’s evidence was to the effect that she left when Ms Cortis was on her way down;
(3)finding that there was no Woolworths employee who wore a white uniform and rejecting as unacceptable the suggestion that the person who wiped the floor may have been a member of the bakery staff who wore a white apron, and rejecting this without reasons;
(4)finding that water that leaked from the ice pack was the water observed by the plaintiff and Ms Plant, when this leakage occurred in a different position from the location of the fall;
(5)finding that Ms Aquilina wiped up water that leaked from the ice pack, when Ms Aquilina denied in cross-examination that she did so; and
(6)disregarding the consideration that unless the floor was wet there was no explanation for the plaintiff falling.
In my opinion none of these matters considered either individually or collectively makes out a case for overturning the decision of the primary judge.
Ms Aquilina did concede in cross-examination that it was possible she did not inspect the floor until after she returned with the chair, and indeed on this matter in cross-examination said “I don’t recall”. However in my opinion it was open to the primary judge to regard this as not any withdrawal of her evidence in chief that she was with the plaintiff for a few minutes after the fall and her evidence in chief that she inspected the floor immediately after the fall, but rather as merely something to be taken into account in assessing the weight of the evidence.
In relation to the second matter raised by Mr O’Dowd, in my opinion a fair reading of Ms Aquilina’s evidence supports the view that she “waited for” Ms Cortis, and waited at least until Ms Cortis was on her way down, so that if Ms Cortis had not actually arrived when Ms Aquilina left, she was close and was approaching. In my opinion, on Ms Aquilina’s evidence it was unlikely that there was a period of time when there was a realistic possibility that another employee, unidentified, might have come and wiped liquid from the floor.
On the third point, in my opinion the primary judge was entitled to give weight to Ms Plant’s evidence that it was the younger of the two Woolworths employees who attended to the plaintiff who wiped liquid from the floor, and thereby exclude the possibility that the person who wiped the floor was an unidentified person who might have come from the bakery department. In my opinion it was open to the primary judge to draw a distinction between a uniform and an apron, and hold that there was no Woolworths employee who wore a white uniform.
In relation to the fourth matter, the distance from where the plaintiff sat on a chair with the ice pack to the place where she had fallen was small; and in my opinion it was open to the primary judge to hold that the wiping up of water from the ice pack was a matter that the plaintiff and Ms Plant had observed and thought indicated the wiping up of liquid on which the plaintiff had slipped.
In relation to the fifth matter, again in my opinion it was open to the primary judge to rely on the evidence of Ms Plant, which was to the effect that it was Ms Aquilina who wiped up the liquid, and to prefer that to what must be considered uncertain and unclear evidence of Ms Aquilina on this point.
The absence of express reference to the consideration that liquid on the floor would give an explanation for the plaintiff falling, whereas no other particular explanation was suggested, is not in my opinion an omission to refer to a consideration of such importance as would vitiate the judgment: Mifsud v Campbell (1991) 21 NSWLR 725.
For those reasons, in my opinion no error has been demonstrated in the reasoning of the primary judge that would justify the intervention of this Court.
This conclusion would be sufficient to require the dismissal of the appeal. However I will very briefly discuss the two other liability issues raised by the appeal, on the assumption that the plaintiff had been successful to establish that there was liquid on the floor.
First it was put that the primary judge erred in not finding the defendant negligent, because it didn’t provide a non-slip floor in the area. The significance of this challenge is that if it were successful, it would overcome any causation problem. I accept that there was some material that might have supported a finding that a reasonable response to the risk of slipping by a reasonable person in the defendant’s position would have been to install non-slip flooring in the area. However, in my opinion, in the absence of clear evidence directed to questions of cost, practicability, and advantages and disadvantages, it was open to the primary judge not to be satisfied of this, and in my opinion his reasons were apposite. When in such a case a primary judge makes a judgment as to reasonableness, an appeal court will intervene only if satisfied that that judgment was wrong, and I am not so satisfied.
On the question of causation, in my opinion cases such as Franklins Limited v Brown [2000] NSWCA 177, Drakos v Woolworths (South Australia) Limited (1991) 56 SASR 431, and Kocis v SE Dickens Pty Ltd t/as Coles New World Supermarket [1998] 3 VR 408 do not mean that, once a breach of duty is proved giving rise to a risk that a floor will become slippery, the plaintiff does not have to prove on the balance of probabilities that fulfilment of the duty would have prevented the accident. In my opinion, a contrary position at common law is indicated in cases such as Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241, Rose v Abbey Orchard Property Investments Pty Ltd (1987) Aust Torts Report 80-121, Shoeys Pty Limited v Allan (1991) Aust Torts Report 81-104, and Woolworths Limited v Strong [2010] NSWCA 282. The question of causation is now dealt with by ss 5D and 5E of the Civil Liability Act 2002. Those provisions confirm that proof of causation of the nature I have indicated is a requisite for liability.
In this case, there was no evidence directly as to when any liquid might have got on the floor. It might have been possible to use the type of calculation suggested by Rose v Abbey Orchard to support a case of causation. It appears that was not done; but in any event, in my opinion, it was well open to the primary judge to regard the matters referred to in par [104] of his judgment as negativing any inference that might otherwise have arisen supporting causation.
For these reasons, in my opinion no error is shown in the primary judge’s conclusion on causation.
As regards the limitation point, in my view it raises difficult questions, and it would be preferable for this Court not to embark on those questions in a case where a decision on them is not necessary, and would at best be obiter.
For those reasons, in my opinion the appeal should be dismissed with costs.
CAMPBELL JA: I agree. I would add that for counsel to obtain a concession from a witness that it is “possible” that there was a state of affairs to the contrary of the state of affairs that the witness had earlier deposed to is, by itself of very little persuasive value, given the very wide range of degrees of likelihood that are covered by the word “possible”. That is in no way to detract from the significance on appeal of the trial judge’s view of the effect of a witness’ evidence, in deciding whether the Fox v Percy test for reversing a trial judge’s factual finding is met.
YOUNG JA: I agree.
HODGSON JA: The order of the Court is: appeal dismissed with costs.
oOo

LAST UPDATED:
22 November 2010