| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : JARVIS -v- COMPETITIVE FOODS AUSTRALIA PTY LTD [2003] WADC 36 CORAM : LA JACKSON DCJ HEARD : 3-5 FEBRUARY 2003 DELIVERED : 25 FEBRUARY 2003 FILE NO/S : CIV 2727 of 2001 BETWEEN : CORRINE PATRICIA JARVIS Plaintiff
AND
COMPETITIVE FOODS AUSTRALIA PTY LTD
Defendant
Catchwords: Tort, occupiers liability, claim for a fall on allegedly slippery floor in toilet
Legislation: Nil
Result: Plaintiff's claim dismissed
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Representation:
Counsel:
Plaintiff : Mr T H Offer
Defendant : Mr J G Staude
Solicitors:
Plaintiff : Trewin Norman & Co
Defendant : McAuliffe Williams & Partners
Case(s) referred to in judgment(s):
Rose v Abbey Orchard Property Investments Pty Ltd (1987) A Tort Rep 80-121
Case(s) also cited:
Nil
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1 LA JACKSON DCJ: The plaintiff claim is for damages for personal injury arising out of an accident at the defendant's premises on 21 November 2000.
2 The defendant carries on business as Hungry Jacks at Marmion Avenue, Clarkson. Hungry Jacks is a hamburger chain providing both take away and restaurant facilities. Included in its premises are toilets for patrons. 3 On 21 November 2000 at about 11.30 am the plaintiff and a friend went to the defendant's premises to buy an icecream. Both decided to use the toilets. The plaintiff entered the female toilets. 4 The female toilets at the defendant's premises consist of a room containing handwashing and drying facilities and a baby's change table. There are two toilet cubicles each with a door. 5 The plaintiff entered the toilet area and said she was walking towards the cubicles when she slipped, falling on to her buttocks. When she did so, she realised there was a pool of soapy water in the middle of the toilet area. She also noticed another pool of water between the two cubicles. 6 The plaintiff said that after she fell she managed to pull herself up into a standing position, she used one of the toilets and then went back into the retail area where she advised her friend what had occurred. The plaintiff advised the defendant's manager "Toni" what occurred. The plaintiff said "Toni" accompanied her back to the toilet area. 7 The plaintiff and another employee was delegated to clean the floor which was done. She said she showed "Toni" the water and "Toni" said "Oh, don't know how that got there". 8 Shannon Anderson was an employee of Hungry Jacks as a crew member. She remembered the occasion when she had been told that someone slipped over in the women's toilets. She remembered being told there was a puddle there. She agreed she was now uncertain as to whether it was the person who was said to have fallen or someone else who told her about it. 9 She got a mop and a wet floor bollard and went to the female toilets. Upon entering she said she observed a puddle of what appeared to be clear water about 30 to 40cm in size. The puddle was in the righthand cubicle and partly extended under the dividing wall into the lefthand cubicle. She says she mopped it up and put up the "floor wet" bollard in front of the
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toilets. She says she did not see any other puddle in the toilets. It was put to her on behalf of the plaintiff that there might have been another puddle. She said after 2½ years she could not be certain that there was not. 10 In re-examination a statement made by her about three months afterwards was tendered which confirmed that there was only the one puddle. She agreed that after 2½ years she could not say that there was not another puddle in the middle of the floor but frankly I do not accept that as a reasonable interpretation of her evidence. She impressed me as being quite bright (she works as a child care worker now) and she went into the toilets for the purpose of looking for a puddle and cleaning it up. It is inconceivable there was another puddle in the middle of the floor that she failed to notice. She is not a person who is simply going casually into the toilets and happening to notice the puddle. Her purpose for going there was to find a puddle. I am sure if there was more than one of them she would have noticed it and recalled it, particularly three months after the event on the statement. 11 Melissa Goldfinch was employed as a crew member by the defendant at Clarkson for a short time. She says it was between September 1999 and February 2000 but clearly she has the dates wrong, probably by 12 months because the Clarkson Hungry Jacks did not open until October 2000. She said that she was aware that there was a small puddle apparently due to an indentation in the tiling in the righthand cubicle in the female toilets. She described that as being smaller than a saucer and indicated with her hands a circle of not much more than about a 10cm diameter. 12 She said that from time to time customers would complain about the puddle and someone would go and clean it up. But she said it was not in an area where you would normally put your feet when using the toilets. 13 Ms Goldfinch did say that the toilets were cleaned in the mornings, I gather by cleaning staff. She said that sometimes there were puddles of water after they had been cleaned and the water contained the detergent supplied for that purpose. She said that puddles left by the cleaners had usually dried up by the time the store was opened at 10.00 in the morning. 14 I do not think Ms Goldfinch's evidence of a 10 cm diameter pool of water in the area she described has any impact on this case. 15 Antoinette Mason has been employed by the defendant for 13 years, seven of them as assistant manager and 6 as manager. She gave her evidence in a most forthright manner and is obviously very efficient and very involved in the defendant's operations.
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16 She gave evidence of the training systems for staff and produced a voluminous training manual which has a great deal of detail on safety issues including cleaning.
17 The system at Hungry Jacks in Clarkson is that each morning the cleaners clean the whole of the complex. The toilet areas are done at an early part in that process. Ms Mason said that at about 9 o'clock on the morning of 21 November 2000 she inspected the toilets. She observed that they had been cleaned, that the floors were still wet and that a warning bollard had been placed appropriately. Her inspection is recorded on a document headed "Daily QSC Operations Checklist". It appears from other documentation that QSC stands for quality, service and clean. 18 On 21 November 2000 between 8.00 am and 10.00 am Ms Mason conducted the first of the two QSC inspections. The first, and most importantly, is the temperature and efficiency of cooler and freezer cabinets. The cooking areas requiring certain temperatures need to be checked and cleanliness of all areas including toilets. Ms Mason said she inspected the floor of the ladies' toilet at 9 o'clock and found it still to be wet from the cleaning and observed some soap bubbles. 19 On her QSC inspection she went into the toilets and checked the cubicles. Clearly this is an inspection of some detail. On the inspection sheet for 21 November 2000 under the heading "restrooms/dining room" there was a cross against the item "urinals/commodes clean/odour free" with a notation "to wipe". In the item "entrance doors/glass/handles clean" there was a cross with a note to "wipe over". Under the item of "floor/pasteboards/wet floor signs clean" there were the initials "OK". This is a clear indication that the floors were satisfactory. Bearing in mind that the inspection of the toilets was at about 9 o'clock no doubt Ms Mason expected that by 10 o'clock they would be perfectly dry. 20 In addition to the QSC inspection, there is what is described as a "travel path" to be completed every 20 minutes. This requires the manager to walk through the entire premises every 20 minutes to ensure that everything is operating satisfactorily. Staff and equipment are checked, the facilities such as the salts, peppers, serviettes and sauces are checked to be properly supplied. The toilets to be checked to make sure they are clean and stocked with toilet paper. The travel path takes about 10 minutes to complete and is clearly a more cursory examination than the QSC inspection.
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21 Ms Mason said that on 21 November 2000 at about 10.20 am and at about 10.40 am she completed a travel path inspection including the ladies' toilets. Such inspection was, as she described it, a glance through the door. Everything appeared to be satisfactory.
22 When Ms Anderson went to clean the water she says she found the puddle of water in the righthand cubicle extending partly under the dividing wall. It was suggested by counsel for the plaintiff that between about 10.40 am and 11.00 am it was possible that some other staff member had, using his or her own initiative, mopped up something in the ladies' toilets leaving a pool of water in the middle of the floor. Whilst that is a possibility, it is contrary to the clear evidence of Ms Anderson who says when she went in there to mop up the water which she presumed was there she only found the one puddle and that was the one in the cubicle. 23 Ms Mason said the complaint to her was at about 11.00 am. She was told by Ms Anderson that the complaint had been made. She identified that the plaintiff was the person alleged to have fallen over and spoke to her enquiring as to whether she was alright. She accompanied the plaintiff back to the toilet area which by that time had been mopped up because the floor was damp and a safety bollard placed appropriately. Ms Mason denied the conversation of finding the puddle and of her expression of surprise described by the plaintiff. It is not consistent with the clear evidence of Ms Anderson of her having mopped up the water. 24 The plaintiff's evidence was of slipping in the middle of the toilet area not in the cubicle. There is no evidence that she slipped in the cubicle. Ms Anderson found a muddy skid mark in the cubicle but that could have been left by anyone using the toilet in the hour or so that the restaurant was open that morning before 11 o'clock. 25 Central to the plaintiff's claim is her credibility. In 1991 the plaintiff was diagnosed as having bi-polar disease. No evidence has been given as to the nature of this disease but the plaintiff says it affects her ability to think and her memory. On many occasions during the course of giving her evidence she said she was unable to recall certain matters because of that condition. 26 The plaintiff claims to have a memory loss. Whether or not she does is not a matter I am able to decide. Memory loss is obviously a difficult condition for a witness seeking to have his or her evidence accepted in the face of evidence to the contrary. Amongst the things the plaintiff was
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unable to remember were details of other accidents which she had had and with respect to which she had claimed damages. 27 The defendant strongly argued that the plaintiff should not be accepted as a truthful witness but rather to be taken as a person whose antecedents showed a pattern of claiming damages but of recovering from any consequences of claimed injuries upon receipt of such damages. I find it unnecessary to decide whether such an argument can be sustained. 28 At some time perhaps two years before November 2000 the plaintiff claimed to have been injured when she fell on some steps at the Myer store in Perth. She says she made a claim and that solicitors were acting for her. She says she has now forgotten the names of the solicitors involved or of the doctors involved in advising or treating her. 29 The defence claims, amongst other things, that any symptoms suffered by the plaintiff were caused by any one of a number of previous accidents including the Myer accident. No material in relation to the Myer claim has been located. It is therefore not possible to say the basis upon which the plaintiff claimed against Myer or the basis upon which any settlement was obtained. The loss of memory as to information in relation to that claim has made it impossible for the defence to establish the condition of the plaintiff after the Myer accident. 30 The plaintiff claims to have a good memory of the accident the subject of this claim. Such a memory is inconsistent with the claim of a total loss of memory with respect to relevant aspects of the Myer claim. In the absence of medical evidence which would explain the difference, I must accept that the plaintiff's memory is faulty and deal with the matter accordingly. 31 The plaintiff had had a number of previous accidents both motor vehicle and otherwise in which she had been injured. With respect to most of those she successfully claimed damages. It appears she did not tell her medical advisers of these incidents. In particular she told Dr Mark Pollard of the Myer accident but not any of the others. She did not tell Dr Geoffrey Gee about any of them. Her failure to advise her advisers is difficult for her. On the one hand it might be said she did not advise them because it was not in her interests with respect to this claim to tell anyone she had had any previous injury thus attributing all symptoms to the Hungry Jacks fall. An alternative explanation is that her failure to tell them of such incidents is due to her bi-polar dysfunction. If that is the
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explanation it reinforces the difficulties she has in being accepted as a credible witness. 32 During the period since 21 November 2000 the plaintiff has had considerable medical treatment due to a number of medical problems she has including, she claims, as a result of the fall in the defendant's premises. In or about July 2002 she was sent a notice by the Health Commission asking her to advise which of the many medical expenses for which she had received a benefit from the Health Commission related to the consequences of the fall at the defendant's premises and which were related to other matters. She said that with her husband's assistance she ticked those which related to this action and for which the Health Commission is entitled to recover damages if the plaintiff succeeds against the defendant. The plaintiff is totally unable to explain how it was she was able to distinguish between the different consultations. It seems to me her categorisation is entirely arbitrary. In particular, the evidence of Dr Mark Pollard, her general practitioner, is in many respects inconsistent with what the plaintiff had to say. He checked his records and produced a schedule in which he listed consultations as being injury related, partly injury related and not injury related. In the 12 months from May 2001 to May 2002, the plaintiff ticked 14 consultations which Dr Pollard said were not injury related. 33 This gives further concern as to the reliability of the plaintiff and as to her credibility. 34 I found the employees of the defendant to be entirely credible witnesses. As part of their ordinary course of duties they kept records of the events that had occurred on 21 November 2000. Where their evidence conflicts with that of the plaintiff I prefer their evidence. 35 In my opinion it is not open for me to speculate as to the possibility that the plaintiff fell somewhere other than in the middle of the floor. There is simply no evidence upon which such a finding could be made. The plaintiff puts her case squarely on a fall in the middle of the room. The combination of the evidence of Ms Mason and of Ms Anderson leads me to the conclusion there was no water in the middle of the room. If the plaintiff slipped in the middle of the room it was not because of any water. It may be that after she slipped she observed the water in the cubicle and thought she must have slipped on something similar in the middle of the room. I do not think the plaintiff was being wilfully dishonest. I am certainly more comfortable with an explanation of her assertion as to the
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pool of water that it is a reconstruction rather than that it is a wilful untruth. 36 The defendant is not an insurer. It is only liable for negligence. Negligence is a failure to have in place safe premises and a safe system to ensure the reasonable safety of its customers. 37 In Rose v Abbey Orchard Property Investments Pty Ltd (1987) A Tort Rep 80-121 the New South Wales Court of Appeal was dealing with a plaintiff who had slipped on some spilt oil in a public carpark. The system of inspections was for an inspection about every 45 minutes. The Court said that was insufficient and considered inspections at an interval of not more than 20 minutes would have been reasonable. It may be that this case has become well known and it is for that reason the walk through at 20 minute intervals is part of the defendant's operating procedures. 38 The plaintiff has not satisfied me that she slipped on a puddle of water in the defendant's toilets. Even if she had, I would not have found the defendant to be negligent. The defendant's duty of care is to have a reasonable system in place to protect persons using it's premises. In my opinion it has such a system. 39 John Royal, an architect, said the Hungry Jacks stores, specifically the Clarkson one, had specified the highest quality non-slip tiles. He agreed that wet tiles can be slippery compared to dry tiles. He was unable to say whether water containing detergent was more slippery on the tiles compared to just plain water. 40 It is apparent that the defendant engaged a competent architect to advise as to safety and followed his advice. There has been no lack of care in this regard. 41 Accordingly I find there was no breach of duty by the defendant and the plaintiff's claim must be dismissed. 42 Generally when a plaintiff's claim is dismissed it is desirable for the Judge to make an assessment of the damages he or she would have awarded had the plaintiff succeeded. Unfortunately I am unable to do so in this case. My decision is one based upon a finding against the plaintiff on credibility. She, of course, claims that she has suffered various consequences as a result of the injuries she received. Having found against her on credibility, it is quite impossible for me to make an assessment of damages because such an assessment must be based upon
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the acceptance or rejection of her evidence as to the consequences of the fall. 43 Of particular concern is the lack of evidence with respect to the previous accidents and the resolution of the plaintiff's claims. For example, if the Myer claim was settled on the basis of a permanent back injury, it would effect the plaintiff's assertion that her current symptoms were caused by the alleged fall the subject of this action. If that claim had been settled on the basis of a full recovery, it might tend the other way. Such uncertainty, occasioned by the plaintiff failing to adduce evidence of previous claims, makes the task of a provisional assessment of damages impossible. 44 For these reasons the plaintiff's claim is dismissed. |