Jackson v McDonald's Australia Limited and Anor

[2014] HCATrans 262

[2014] HCATrans 262

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S135 of 2014

B e t w e e n -

CHRISTOPHER MARK JACKSON

Applicant

and

McDONALD’S AUSTRALIA LIMITED ACN 0084966928

First Respondent

CGU INSURANCE LIMITED

Second Respondent

Application for special leave to appeal

CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 NOVEMBER 2014, AT 10.43 AM

Copyright in the High Court of Australia

MR B.M. TOOMEY, QC:   May it please your Honours, I appear with my learned friend, MR D.R.J. TOOMEY, for the applicant.  (instructed by Stacks – The Law Firm)

MR J.E. SEXTON, SC:   May it please the Court, I appear for the first respondent.  (instructed by McCulloch & Buggy Solicitors)

MR R.A. CAVANAGH, SC:   If the Court pleases, I appear with my learned friend, MR S.J. HOLMES, for the second respondent.  (instructed by Holman Webb Lawyers)

CRENNAN J:   Yes, Mr Toomey.

MR TOOMEY:   May it please your Honours. Your Honours, I am the person drinking rum riding the horse on the wrong side of the road referred to by Mr Catterns, because essentially this is a fact case which turns on some aspects of section 144 of the Evidence Act 1995 (NSW), but we say is more caught by the injunction in section 56 of the Civil Procedure Act 2005 (NSW), that the intent of the Act is the just, quick and cheap resolution of disputes.

In this case, a man walked into a restaurant, walked across a wet floor.  The fact that he had to walk across a wet floor was found a basic breach of duty because protocol in the restaurant was that there should be a dry strip left while cleaning so that there would be no dangerous slipping.  The gap between the end of the part that had been cleaned and was wet to the top of some steps was between one and three metres. 

Mr Jackson walked through the wet part of the restaurant, over the floor, as he had to – he had no alternative means of getting out of the restaurant – and either on the first, second or third step – it is not determined – he slipped.  Now, it is important to say that the learned trial judge’s finding that he misstepped as a mechanism of falling was rejected by the Court of Appeal as being based on speculation.

CRENNAN J:   Your complaint, as I apprehend it, is that the findings of the Court of Appeal on causation are somehow incompatible with the findings on breach by the majority in any event.

MR TOOMEY:   In a word, yes, your Honour.

CRENNAN J:   I think you framed the complaint on the basis that the Court of Appeal failed to appreciate the role of inferential reasoning with fact‑finding under the civil liability legislation.  That is it, is it not?

MR TOOMEY:   That is it essentially, your Honour.

BELL J:   There is a difficulty with that, Mr Toomey.  When you turn to application book 107, paragraphs 120 and 121, when Justice Barrett came to focus on issues of causation and to conclude that you had failed to discharge the onus, it was not a question of simply consideration of whether or not one might draw the inference from shoes being wet that a slip was in consequence of the wetness on the sole.  His Honour in both those paragraphs makes references to the evidence of the quality of the floor surface, about which, as I understand it, there was quite a deal of evidence - the non‑slip floor surface, non‑slip detergent, the bubble tile and so forth.

MR TOOMEY:   All of that, your Honour.

BELL J:   What his Honour was considering was not that in every slipping case, one needs to necessarily call detailed evidence about the coefficient of friction, but in a slipping case in which there is considerable evidence about the non‑slip quality of the floor surface, absent some evidence about the effect of a wet sole of the sort of shoe that Mr Jackson was wearing on that surface – and I interpolate, absent evidence from him that he had experienced the floor as slippery – you simply failed on the onus.

MR TOOMEY:   Your Honour, I think that is the means by which his Honour arrived at his conclusion.  But we say that that omits a number of matters which were present in the evidence and which his Honour made no reference to – I should not say that.  He did refer to the fact that there had been other slipping.

The suggestion that the floor was a non‑slip floor could not stand in the light of a number of matters.  The first was that there were signs out “Slippery When Wet” put out by McDonald’s.  The second was that within the year before the applicant’s accident, a lady had slipped and injured herself in the same way on the same flooring surface washed with the same material. 

So what was important to us was that the learned trial judge, having found that probably the accident was caused by a misstep, the Court of Appeal set that aside and said that was mere speculation because there was simply no evidence of that.  At paragraph 124 on page 108 of the book, Justice Barrett went on to say this.  Having found that the trial judge’s finding as to inattention or misstep was, in reality, speculation, he went on to say:

There was, of course, no need for the judge to speculate as to cause.  Her task was to decide whether the appellant had proved that the effects of the breach of duty (that is, the effects of mopping of the floor in a way that made walking on the wet area unavoidable) were causative of the fall.  On the evidence the appellant chose to present, any such conclusion would have been as speculative as that her Honour in fact expressed.

We say not so.  We say that her Honour’s finding as to inattention or misstep was speculative because there was simply no evidence of that.  But in respect of what was found, that did not leave speculation because of the findings made by his Honour in paragraph 105 – I am sorry, page 102, your Honours:

Common knowledge would have told a reasonable person in the appellant’s position that, in those circumstances –

They are the circumstances of the accident –

the soles of his shoes might still be wet when he began to descend the stairs.  Common knowledge would also have told such a person that descending stairs while wearing shoes with wet soles involved a risk of slipping that was not encountered when descending stairs while wearing shoes with dry soles.

By section 144 they become facts, proven facts. We say that in the light of that, where there was no alternative because the inattention and misstep were dismissed by the court as speculative, the plaintiff gave evidence, unchallenged, that he was looking at where he put his feet, as he always did, when he slipped. He gave evidence that he slipped, and the Court of Appeal finds that he slipped; not that he fell, or stumbled, but that he slipped. In our respectful submission, in that factual matrix, the contradictory case had not been cut out ‑ ‑ ‑

BELL J:   The common knowledge findings at application book 102, paragraph 105, were directed to a different question.  At that point in his reasons Justice Barrett was dealing with considerations of breach, was he not?

MR TOOMEY:   Yes, your Honour.

BELL J:   When he came to considerations of causation he was dealing not with consideration of what the ordinary reasonable person in any venue might think about water on shoes; he was dealing with the question of whether, in light of the evidence in this case, it was more probable than not that the slip was caused by water on the sole.  That does seem to me to be a somewhat different analysis.

MR TOOMEY:   With the greatest respect, we agree with your Honour.  It is clearly a different question.  But we say that the decision on causation must be informed by the decision on breach and that is, I think, trite law.  The findings that are made on which causation must be considered were those which are set out in 105.

CRENNAN J:   Are you going so far, Mr Toomey, as to say that a demonstration that the applicant had walked through water prior to reaching the stairs necessarily proves, on the balance of probabilities, that it is water that caused the slip.  Are you going that far?

MR TOOMEY:   No.  What we are saying, your Honour, is that the mechanism of the fall, that is, slipping, makes it more probable than not that there was some intervention of some substance.  We know what the substance was because he had walked through water and there was no other suggested substance, no other suggested reason for a slip.  If he had fallen or stumbled then her Honour’s “inattention” or “misstep” would be stronger, but that was not the finding.

BELL J:   But the finding was linked to – this is at 107, paragraph 121, about line 45:

The need to prove the effects of wetness of one’s soles when traversing flooring materials of the particular kinds –

Then his Honour goes on.  It is the significance of ‑ ‑ ‑

MR TOOMEY:   The particular kinds.  Your Honours, that, we say, is something which is worthy of the attention of this Court, because to what particularity must a matter be proved?  If it can be said this man had walked through water, water on shoes is known to make it more likely that he will slip while descending stairs than had he not.  Prima facie, in the absence of any material which suggests that there was another mechanism which could be found, or could even be referred to, then as a matter of commonsense, we would say, linked to common knowledge, the man has walked through water, slips, does not trip or stumble, falls and is injured – the average juryman, I am sure, would say well, of course, he walked over water, he slipped on the stairs a metre or two away.  You would draw the conclusion that it was more probable than not – it does not have to be much more probable – that the water was implicated in his fall.  Your Honours, can I point out to you that in paragraph 121, his Honour begins the paragraph by saying:

It was for the appellant to prove that water on his shoes, if present, would have caused, on the particular floor surfaces, slipping that would not have occurred if no water had been present.

That is, of course, the ultimate test, but the initial test on causation is could it have?  It seems to us, with respect, that the Court of Appeal have not considered the matter and the proper test that way, whether it was available to find that the accident was caused ‑ ‑ ‑

BELL J:   Perhaps if one reads on to the following paragraph, where his Honour notes the absence of evidence of an opinion that:

the effect that wetness on soles might be expected to have –

I think that rather undercuts the criticism.

MR TOOMEY:   Yes, your Honour, except, as I say, for the presence of the evidence of the earlier slip in which a woman had been injured and the signs put out by the first respondent ‑ ‑ ‑

CRENNAN J:   The obviousness of the risk ‑ ‑ ‑

MR TOOMEY:   Yes, your Honour, it cuts both ways.

CRENNAN J:    ‑ ‑ ‑ followed by the slip.

MR TOOMEY:   Yes, followed by the slip.  We would say that the result was not one one would expect from a proper consideration of the inferences which were available on those facts.  May it please your Honours.

CRENNAN J:   Thank you, Mr Toomey.  We will not trouble the respondents’ counsel.

This application involves the application of established principles to the facts.  The decision of the Court of Appeal of New South Wales is not attended by sufficient doubt to warrant a grant of special leave.  Special leave to appeal is refused with costs. 

The Court will adjourn briefly to reconstitute.

MR TOOMEY:   Goodbye, your Honour.

CRENNAN J:   Thank you, Mr Toomey.

AT 11.00 AM THE MATTER WAS CONCLUDED