Kartinyeri v Woolworths (South Australia) Pty Ltd
[2004] SASC 172
•9 June 2004
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
KARTINYERI v WOOLWORTHS (SOUTH AUSTRALIA) PTY LTD
Judgment of The Full Court
(The Honourable Justice Perry, The Honourable Justice Bleby and The Honourable Justice Gray)
9 June 2004
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE - PARTICULAR CASES - DUTY OF OCCUPIER
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - STANDARD OF CARE - PARTICULAR PERSONS AND SITUATIONS
The appellant, a customer in the respondent's supermarket, was injured when she slipped on foodstuffs which had been spilled on the floor - her claim for damages in the District Court was dismissed - held on appeal that the respondent was negligent in failing to take adequate measures to prevent spillage of foodstuffs and in failing to provide matting or take other steps to prevent customers from slipping - observations as to duty of care owed by occupiers of premises - appeal allowed.
Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241; Drakos v Woolworths (SA) Ltd (1991) 56 SASR 431; Kelly v Lease Retail Pty Ltd (1993) Aust Torts Reports 81-216; Griffin v Coles Myer (1991) Aust Torts Reports 68,997; Drotem Pty Ltd v Manning [2000] NSWSC 320; Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303; Chapman v Hearse (1961) 106 CLR 112; Fitzgerald v Penn (1954) 91 CLR 208, considered.
LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - THE PERIOD OF LIMITATION
The appellant's proceedings were issued out of time - pursuant to s 48 of the Limitation of Actions Act 1936 (SA) she sought an extension of the applicable 3 year limit - the trial judge held that her receipt of a medical report furnished within a year before the institution of the proceedings disclosing a 20 per cent permanent loss of function of the lumber spine, constituted the ascertainment of a material fact within the meaning of the section and the discretion to extend time should be exercised in her favour - on appeal, consideration of the relevant principles - notice of cross-contention challenging the extension of time dismissed.
Limitation of Actions Act 1936 (SA) s 48(3)(b), referred to.
Pomeroy v Thwaites Witham Pty Ltd (2001) 79 SASR 489; Henrick v Agnew (1998) 26 MVR 277; Sydney City Council v Zegarac (1997-98) 43 NSWLR 195; Mason v Murray's Charter Coaches and Travel Services Pty Ltd (1998) 159 ALR 45; Paramasivam v Flynn (1999) 160 ALR 203; Kinnas v Petricca (1999) 28 MVR 539; Holt v Wynter (1999-2000) 49 NSWLR 128; Napolitano v Coyle (1997) 15 SASR 559, considered.
KARTINYERI v WOOLWORTHS (SOUTH AUSTRALIA) PTY LTD
[2004] SASC 172Full Court: Perry, Bleby and Gray JJ
PERRY J The relevant facts are set out in the reasons for judgment of Gray J.
I agree with the conclusion reached by him on the issue of liability, for substantially the reasons which he gives.
I have entertained some hesitation as to whether the discretion to extent the time for the institution of proceedings was properly exercised in favour of the appellant. In particular, I think that the plaintiff’s delay in getting on with her claim prejudiced the ability of the respondent properly to investigate the claim.
However, the basis upon which the finding of negligence is predicated, namely, a failure to take precautions such as the provision of non-slip matting around the salad bar, does not suggest that more intensive investigations closer to the date of the incident would have improved the ability of the respondent to meet the claim.
I agree with the orders proposed by Gray J.
BLEBY J I agree that the appeal should be allowed. I agree with the orders proposed by Gray J and with his reasons.
GRAY J This is an appeal against the dismissal of a claim for damages for personal injury following a trial before by a District Court judge.
The claim arose as a result of injuries sustained from a slip caused by foodstuffs on the floor of a supermarket. There were two primary issues on appeal: whether the judge’s dismissal of the claim of negligence was in error and whether the plaintiff was entitled to an extension of time to bring the proceedings.
In 1995, on a date about which there is some controversy, the plaintiff and appellant, Lorraine Grace Kartinyeri hurt herself when she slipped whilst shopping at a Woolworths supermarket at Murray Bridge. On the day of the incident, she went to the supermarket with her two year old son Ethan and her neighbour Ethel Rigney in order to purchase food for the evening meal. Ms Kartinyeri slipped on a small quantity of an oily substance, probably coleslaw, carrot and mayonnaise on the floor by the salad bar.
Trial Judge’s Finding
The judge provided a detailed description of the layout of the supermarket.
A number of gondolas of merchandise, separated by aisles, run from the front to the rear of the store. On the right are the refrigerated gondolas. That closest to the right is low. The next one in is full height.
Running along the back wall on the right is the deli area. It consists of a chest-high display counter, with staff serving from behind it. Such staff look back towards the front of the store. In 1995, displays of cheese and of pre-prepared salads stood between the deli counter and the ends of the upright refrigerated gondola and other gondolas to its left. There was room (of unspecified dimensions) between those displays and the end of the gondolas. There was a gap of about 7 metres between the displays and the deli bar. There was also room for customers to pass up and down either side of the displays.
The display units were around 1m x 1.5m. That for salad had a stainless steel top with a lip about 100mm deep. Into it rectangular stainless steel salad containers about 400 x 100mm were placed. The display was refrigerated and had a built-in container into which spillages within the display area could drain. Above the display was a clear plastic “sneeze guard” with a shelf on which were placed plastic tubs and lids to be used by customers as they made their selections. Cheese was in a similar display alongside.
The judge made the following unchallenged findings about the manner in which the incident occurred:
The plaintiff walked from left to right to pass the salad bar on her left. She says that, as she did so, her little boy, who had been with Ms Rigney at the deli, ran towards her. She turned to her left and, as she began to pass the salad bar, she bent down to pick him up. At that moment her left foot slipped forward about 30cms. Her right foot went back a little, but stopped against her son’s foot, or leg.
She did not fall, but she jerked her back in this sudden, unexpected manoeuvre. She felt a tearing pain at once. She was embarrassed. She looked only quickly at the floor. There was, she says, a bit of coleslaw, carrot and mayonnaise on the floor; it was about the size of a 20c piece. It was not such a large amount that its presence should have been obvious at once to the staff of the defendant. Nor was the plaintiff negligent in failing to see it.
The judge found that nothing about Ms Kartinyeri’s footwear contributed to the slip.
In making these findings, the judge considered Ms Kartinyeri to be a credible witness. There was some question as to the precise date of the incident. In this regard the judge was sympathetic to Ms Kartinyeri and acknowledged the difficulty of recalling details of an incident that occurred many years earlier:
At the time, it must have seemed a trivial incident. It is not surprising that, after nearly 8 years, details are not clear. It must also be acknowledged that the plaintiff, though apparently honest and cooperative (indeed, apparently a very pleasant person), was not clear in her own mind about many details.
Having accepted Ms Kartinyeri’s general account of the incident, the judge observed:
There is an evidentiary onus on the defendant to establish not only the nature of the system in place to prevent and to clean up such spills, but also that any such system was actually in efficient operation at the time of the fall.
Counsel for the defendant and respondent Woolworths (South Australia) Pty Ltd acknowledged that this was a correct statement of the law. In attempting to address this evidentiary onus Woolworths called Mr Robertson its then Murray Bridge manager. This evidence was accepted by the judge and summarised as follows:
There was a general requirement that every employee was to watch out for spills or other dangers. If a spill was detected, the employee was either to clean it, or to stand guard while help to clean it was summoned. An apple could be easily picked up – a dropped and broken bottle of soft drink would require someone else to obtain cleaning equipment. Such a system is not enough in itself. The defendant had its premises cleaned each night by professional contractors, using appropriate sweeping and polishing machines. Nothing suggests a breakdown in that part of the system.
During the day each area in the store was swept (or mopped, if necessary) at two-hourly intervals, beginning with a clean up just before the store opened in the morning. The store was divided into a number of areas, such as “fruit and vegetable” and “deli”, each of which had its own manager, who was responsible for keeping that area clean. The salad bar was in the “deli area”. It was the manager’s task to instruct the particular employee within that section who was to sweep and clean. The defendant had special printed forms, called “sweep logs” in which, after each two-hourly sweeping, the person who did it would record the fact of doing it, the time, the name of the person who did it and whether anything out of the ordinary was noticed.
Mr Robertson said that he was constantly on the prowl. He examined the floor himself and made frequent, random checks in each area to see that sweep logs were properly written up (and, therefore, that sweeping was occurring as it should). Those sweep logs were kept for at least a year. Another witness (Mr Darroch) thought they were forwarded to the defendant’s safety department for review and analysis.
Mr Robertson also gave evidence that staff working in the delicatessen section of the supermarket were responsible for supervising the salad bar area and replenishing the salads.
The judge found that the system of sweeping and monitoring was not inadequate in the circumstances. He held that although in hindsight a better system could have been employed to guard against slippages, Ms Kartinyeri had failed to show that Woolworths had breached its duty of care. Woolworths were found to be not liable in negligence.
A separate issue at trial concerned the consequences of the inadequate notice given by Ms Kartinyeri of her claim and in particular her application for an extension of time. A notice of contention challenged the judge’s order extending time and will be discussed in detail later in these reasons.
Liability
As earlier observed, it was Ms Kartinyeri’s case that the judge erred in not finding Woolworths liable in negligence. It was accepted at trial and appeal that Woolworths as occupier owed Ms Kartinyeri a duty of care as a customer of its supermarket. The issue on appeal was whether Woolworths breached this duty of care.
In order to ascertain whether Woolworths breached its duty of care it is necessary to first examine the foreseeability of risk of harm and the standard of the duty of care.
Foreseeable Risk
Counsel for Ms Kartinyeri submitted that, as a matter of common sense, it was inherently likely that foodstuffs would spill onto the floor area surrounding the self-serve salad bar in a busy supermarket. It was contended that the risk of a customer slipping on such material was real and foreseeable.
The salad bar was set up as a self-serve area. Customers were required to fill plastic containers with various pre-made salads and dressings. The general procedure followed by customers using the salad bar was described by Mr Robertson:
Q. Just dealing with the question of the open salad area, you mentioned to his Honour that you had seen people come in, they get their little plastic tubs – in one hand, I take it – the spoon in the other, fill up the tub; is that right.
A. Yes, correct.
…
Q. I suppose occasionally you would have people filling [the containers] up to the brim, the smaller ones.
A. Yes, some pack them really tight.
Q. Once they filled it up, I take it what they would have to do is put the spoon down, get a plastic lid and put the lid on top of it.
A. That is the procedure, yes.
…
Q. It wouldn’t matter where you put the lid on, whether you put it on under the bar, whether you put it on outside the bar; you have the cup in your hand and you put it on top.
A. Yes.
Mr Robertson accepted that there was a real possibility that foodstuffs from the salad bar could spill onto the floor:
Q. You accept that there may have been occasions where some of these self-serve people, whether in a hurry or otherwise, might have – dealing with the salad - caused some spillage around the salad bar.
A. That could occur.
…
Q. This area of the salad bar was full of loose material, wasn’t it.
A. Correct.
Q. Did you see it as a possibility occasionally of there being some loose material dropping onto the floor because of the way these people served themselves.
A. That happened, yes.
Q. You didn’t see any need to put matting around there or was matting inconvenient or what.
A. No, it was an infrequent occurrence, and no, I did not see the need.
Q. Do you accept that if there had been matting around the area it would make it harder for someone to slip over it, if there was a non-slip surface around the salad bar.
A. That’s correct.
The risk that food may fall to the floor was real and substantial. It was not far fetched or fanciful. It was reasonably foreseeable that a customer may slip on spilt food, particularly oily or greasy food.
Standard of Care
The standard of care owed by an occupier has recently been addressed by section 17C of the Wrongs Act 1936 (SA)[1]. That section relevantly provides:
[1] Section 17C was added to the legislation by the Wrongs Act Amendment Act 1987 (SA). The Wrongs Act 1936 (SA) became the Civil Liability Act 1936 (SA) following the enactment of the Law Reform (Ipp Recommendations) Act 2004 (SA).
(1)Subject to this Part, the liability of the occupier of premises for injury, damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.
(2)In determining the standard of care to be exercised by the occupier of premises, a court shall take into account--
(a) the nature and extent of the premises; and
(b) the nature and extent of the danger arising from the state or condition of the premises; and
(c) the circumstances in which the person alleged to have suffered injury, damage or loss, or the property of that person, became exposed to that danger; and
(d) the age of the person alleged to have suffered injury, damage or loss, and the ability of that person to appreciate the danger; and
(e) the extent (if at all) to which the occupier was aware, or ought to have been aware, of--
(i) the danger; and
(ii) the entry of persons onto the premises; and
(f) the measures (if any) taken to eliminate, reduce or warn against the danger; and
(g) the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger; and
(h) any other matter that the court thinks relevant.
(3)The fact that an occupier has not taken any measures to eliminate, reduce or warn against a danger arising from the state or condition of premises does not necessarily show that the occupier has failed to exercise a reasonable standard of care.
…
On the issue of the standard of care owed by Woolworths to Ms Kartinyeri, the judge observed:
It is clear that the court must exercise its own judgment in deciding whether a defendant was negligent. That is so even where a defendant is alleged to have fallen short of a high technical standard – such as that applying to a specialist medical practitioner. Here the practices relating to the salad bar seem to have been those applicable to the defendant’s stores generally. The expertise and experience of an entity like the defendant in managing supermarkets is not to be dismissed lightly. Here the criticism is not of some casual failure of an otherwise adequate system, but that the system deliberately chosen was inadequate.
One proved instance of a very small amount of food on the floor, when no-one knows how it came to be there, is not, in itself, proof that the system was inadequate. After such an event, the light of hindsight always burns brightly and it is often possible to point to arguably better systems.
If, as suggested, the easy solution was to lay a non-slip carpet, how extensive should that be? A single runner around the salad bar would probably have caught this spill, which seems to have been close (though the distance was not deposed to and the width of runners is not known). However, if the spill was from an overfilled container, such a container placed in a shopping trolley could also drip anywhere else. If it came from staff re-filling, or removing containers, should carpet cover the whole route, at least through public areas from the bar to the preparation area? Do such mats, in an area where customers are not used to them create any risk of tripping? I readily accept that an entity like the defendant, which trades on the busy and distracted presence of millions of customers in hundreds of stores, must take great care for the safety of those customers. Amateur standards which might suffice for a small corner shop fall short of what must be expected of the defendant.
The imposition of a heightened standard of care on occupiers of busy retail outlets has the support of authority. In Brady v Girvan Bros Pty Ltd[2] a customer in a busy shopping mall slipped on jelly on the floor of a common walkway. On appeal it was held that in the absence of any evidence of precautions being taken by the shopping mall, an inference could be drawn that the occupier ought to have known of the presence of the jelly and failed to take reasonable care to prevent the injury it caused to the customer. Kirby P observed:[3]
The respondent was in charge of a large commercial enterprise. Undiscriminatingly, it invited members of the public to do business in that enterprise. It derived, by inference, an economic advantage from their presence in its mall. It must anticipate the presence there of members of the public of all ages, inclinations and capacities. It must be taken to be aware of the presence of the confectionery shop. It may be inferred to know of the special risks arising from the fall of such confectionery on a busy thoroughfare. Such risks would be particularly great in summer holidays where there would be likely to be greater demand and enhanced risks of melting and hence an enlarged chance of the dangerous deposit of slippery material in the very passageway where, because of the amount of traffic, risks of mishap would be increased.
…
If the circumstances are such that the dropping of substances is liable to cause a fall and if this was “inherently likely to occur”, the mere fact that the claimant (with imperfect knowledge or means of knowledge as to the system adopted by the occupier) cannot show precisely that such falls have been common and cannot prove exactly the precautions actually taken, does not deprive him or her of recovery from the occupier in the event of injury. If the inherent likelihood of spills is great, it is entirely reasonable that those coming onto the premises should be able to look to the occupier for a very high degree of care indeed.
[2] Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241
[3] Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at 246-247
In Drakos v Woolworths[4] the plaintiff injured herself by slipping on spilt oil on the floor of a supermarket. At trial Woolworths were found liable in negligence on the grounds that the store had failed to exercise the appropriate care by taking reasonable steps to protect customers against slipping on slippery surfaces. It was held that Woolworths failed to provide an adequate system of watching, cleaning and supervision of the store floor. On appeal it was contended that the evidence did not support these findings and that Mr Drakos had not proved that there was a causal connection between the injury suffered and the inadequacy, if any, of the store’s safety system. On the issue of liability, Olsson J and Zelling AJ dismissed the appeal. Olsson J considered that the evidence established a foreseeable risk of the floor becoming slippery as a result of spillages occurring from time to time. There was no direct evidence of a system in place to regularly clean or supervise the floor. Olsson J observed:[5]
… the evidence established an inherent likelihood of the floor becoming slippery … from time to time and reasonable care demanded a considerable degree of supervision of the floor areas. The system adopted by the appellant was plainly inadequate. The fact that the oily substance was present is an indication of inadequate supervision and prima facie evidence of a failure to exercise reasonable care leading to the incident which occurred.
The presence of an inherently slippery substance on the floor may itself show a lack of adequate supervision. [6]
[4] Drakos v Woolworths(SA) Ltd (1991) 56 SASR 431
[5] Drakos v Woolworths(SA) Ltd (1991) 56 SASR 431 at 449
[6] See also Kelly v Lend Lease Retail Pty Ltd (1993) 113 FLR 21
In Griffin v Coles Myer Ltd,[7] there was icing on the floor in the drapery section of a department store. Williams J reasoned that the mere presence of an item on the floor may be sufficient to establish liability in negligence. It was said that the length of time the substance remains on the floor will not always be determinative:
If the occupier has under his control a substance, such as cooking oil, which is known to be highly slippery and dangerous if it should get on to a floor in a public part of the store, then he may well be negligent in allowing that substance to get onto the floor irrespective of any evidence as to the length of time it was there. [8]
[7] Griffin v Coles Myer Ltd (1991) Aust. Torts Reports 68-997
[8] Griffin v Coles Myer Ltd (1991) Aust. Torts Reports 68-997 at 69-000
The case of Drotem Pty Ltd v Manning[9] involved a claim for damages for injuries resulting from a patient slipping and falling on an access ramp outside of a medical centre. Powell JA considered the particular standard of care owed by occupiers of premises regularly frequented by the public:
… [t]he courts have adopted differential approaches to the standard of care due to an entrant according to the use made of the premises. The cases cited indicate the difference in the standard applied to premises used for residential purposes and those to which members of the public generally are invited, namely retail, commercial, hospital or recreational premises. In retail or commercial premises as stated by President Kirby in Johnson there is an obligation to pay attention to accident prevention. In supermarket cases there is a positive obligation to put in place a system of regular monitoring and inspection of the condition of premises.
These authorities lead me to conclude that in a situation such as that currently before me the standard of care requires more than a reaction when a danger is made known, particularly so when the danger is the result of wear and tear from general public use over a period of approximately twenty years. There is no evidence that the defendant in this case conducted any regular inspection of the premises in the nature of a safety audit. In my view the law imposes on occupiers of retail and commercial premises to which members of the public are invited an obligation of regular inspection to ensure that they are maintained in a condition which is safe for general public use. More so in this case where there is a greater preponderance of persons attending for the purpose of seeking medical attention.
[9] Drotem Pty Ltd v Manning [2000] NSWSC 320 at [36]
Breach of Duty
Mere proof of negligence followed by injury does not establish that the negligence caused the injury.[10] Nor is it sufficient to show that the damage was reasonably foreseeable.[11] In order to recover damages against Woolworths Ms Kartinyeri had to establish on the balance of probabilities that Woolworth's negligence caused or materially contributed to her injury.[12] In the present case there was no suggestion that anything other than the spilt coleslaw caused Ms Kartinyeri to slip and injure herself.
[10] Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303 at 310
[11] Chapman v Hearse (1961) 106 CLR 112
[12] Fitzgerald v Penn (1954) 91 CLR 208
Customers of Woolworths including children, the disabled and the elderly served themselves oily foodstuffs from the self-serve salad bar. There was a real and foreseeable risk that foodstuffs would fall to the floor in close proximity to the self-serve salad bar creating a hazard and risk of customers injuring themselves.
As earlier observed, Woolworths had a sweeping and monitoring system in place. However, such a policy did not and could not guard against spillage from the salad bar between sweeping and monitoring times. It could not guard adequately against similar spillages in other areas. There were further problems in the supervisory system. The self-serve salad bar was positioned some 20 feet away from delicatessen staff responsible for its supervision. The delicatessen staff had a restricted view of the floor surrounding the salad bar and were only required to attended upon the salad bar once every two hours.
It was accepted on appeal that Woolworths was aware of persons slipping in the fruit and vegetable section of the store. In response mats had been provided. An employee was permanently positioned in that area to monitor and address spillages. On occasions, Woolworths had used similar matting in the bakery section of the store in order to prevent slippages as a result of raisins falling to the floor.
Mr Robertson acknowledged that matting was available and if used would have reduced the risk of persons slipping on foodstuffs on the floor surrounding the salad bar. Mr Robertson further agreed that there was no physical or financial reason why matting of the type used in the fruit and vegetable section could not have been used in the vicinity of the salad bar. The likelihood of Ms Kartinyeri slipping and injuring herself on fallen foodstuffs could have been avoided or at the least significantly reduced by Woolworths providing matting in the area surrounding the salad bar. Simple, feasible and inexpensive measures of control were readily available to Woolworths but were not used.
In the present case, the nature of the premises gave rise to a heightened duty to take reasonable care to eliminate foreseeable risks of harm to customers. The danger of a customer slipping and injuring themselves on oily foodstuffs on the floor was real and foreseeable, particularly when customers were invited into shopping centres and distracted by numerous methods of advertising. This is particularly relevant when the customer is a mother with young children. Woolworths was aware of comparable risks of harm in other areas of its store and responded by placing non-slip mats in areas of immediate concern. A similar response to the risk of spillage close to the salad bar would have been practicable and reasonable in the circumstances.
The system employed by Woolworths was inadequate. The risk of foodstuffs spilling to the floor and of a customer slipping were reasonably foreseeable. Woolworths were under a heightened duty to take care of its customers. In the circumstances Woolworths breached its duty of care to Ms Kartinyeri. Her slip and consequent injury were caused by Woolworth’s breach of duty.
The judge’s finding that Woolworths was not in breach of its duty of care was in error. Ms Kartinyeri’s claim in negligence against Woolworths was established.[13]
[13] It should be noted that some years after this incident occurred, all Woolworths stores removed stand alone salad bars from their shop floor. Pre-made salads were subsequently available from the deli counter. Deli staff rather than customers handle and package the salads that are displayed behind a glass cabinet. Although it was submitted by counsel for the respondent at trial that this change was not a response to incidences of injury such as the present case, the change in serving methods operated to remove any risk of customers slipping on fallen foodstuffs.
Causation of Loss and Damage
Counsel for Woolworths submitted that Ms Kartinyeri had not established that her slip led to any injury. It was submitted that as the judge was unable to find the precise date of the incident that it was not open to him to find that the back injury resulted from the slip.
The findings of the judge included the following:
As she slipped, the plaintiff felt a sharp pain in her lower back. She and Ms Rigney hurried home, probably in the car I referred to. That evening the pain increased. Ms Rigney, as she had often done before, had Ethan to stay. The plaintiff retired to bed for most of the weekend. She believes the incident was on a Friday afternoon. On the next Monday she sought medical help.
The date of 6th October for the incident is supported by her general practitioner, Dr Thompson, who says he first saw her on Monday 9th October 1995, complaining of left sciatic pain after a fall while shopping. Dr Thompson gave evidence that he believed there was some unspecific soft tissue injury to the lower back. It appears that he referred her to Dr Ghan, an orthopaedic surgeon, on a couple of occasions. He came to the same conclusion. Conservative treatment, with physiotherapy and “moral support” has followed and has been extensive. On three occasions the pain has been so bad that the plaintiff has had epidural injections. She seems to have spent much of the month after the fall in hospital, resting.
Messrs Potter and Johnson, surgeons, have reported to generally like effect. The prognosis is that the plaintiff will cope with most things she wants to do, but will need to be a bit careful. She should minimise bending, lifting and twisting. She will remain prone to intermittent exacerbations of her pain.
As earlier observed the judge accepted Ms Kartinyeri as a witness of credit. He did not make any adverse finding as a result of Ms Kartinyeri vagueness about the date of the incident. It is clear from the above findings that the judge accepted that immediately following the slip Ms Kartinyeri had felt a sharp pain in her lower back which increased later that evening causing her shortly thereafter to seek medical treatment. The reference in the finding of the trial judge to “after a fall while shopping” was not justified on the evidence of Dr Thompson. He made no note of any such fall, and in his oral evidence said that he had no independent recollection of Ms Kartinyeri complaining on 9 October 1995 of a fall. However, the findings of Dr Thompson on that day were consistent with the appellant having fallen on 6 October or on some date before.
There was however in the file notes of the medical practice of which Dr Thompson was a member, a note of 14 November 1995 made by Dr Altmann, who saw the appellant on that day for the same complaint as that for which Dr Thompson had seen the plaintiff on 9 October. That note referred to a “fall in Woolies 2/12 ago”, meaning two months ago. Dr Altmann was not called.
The finding of the trial judge that a fall in the respondent’s shop preceded the attendance on Dr Thompson on 9 October 1995 was therefore justified.
Counsel for Woolworths drew attention to suggested inconsistencies between Ms Kartinyeri’s account of her developing injuries and records kept by a chiropractor. These suggested inconsistencies were drawn to the attention of the judge during addresses. Although the judge did not specifically refer to the suggested inconsistencies it is clear from his findings that notwithstanding the submissions he accepted Ms Kartinyeri as an honest witness.
Ms Kartinyeri was treated by a chiropractor also on 9 October 1995. Although there was no reference in the chiropractor’s notes made on that day to a fall by Ms Kartinyeri, the notes did refer to “severe acute sacroiliac joint sprain and concomitant (sic) joint dysfunction”, which could only have been brought about by some physical injury such as a fall.
It has not been demonstrated to this court that the judge failed to have regard to any relevant evidence or took into consideration any irrelevant material. His findings of fact were well within his discretion as were his findings of credit.
There was evidence before the judge that supported the conclusion that the slip led to injury as found by the judge. The conclusion that the slip was a material cause contributing to injury was open on the evidence. There is no substance to this complaint.
Extension of Time
The Statutory Framework
Ms Kartinyeri did not initiate proceedings against Woolworths until more than three years after any possible date of the incident. She applied for an extension of time pursuant to section 48 of the Limitation of Actions Act 1936 (SA). This section allows the court to extend the time prescribed for bringing an action provided it is satisfied that:
that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or
that the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances.[14]
and that in all the circumstances of the case it is just to grant the extension of time.
When either of the specified conditions are satisfied the court’s unfettered discretion is enlivened. The only further criterion then identified is whether the circumstances of the case make it just to grant the extension.
[14] Limitation of Actions Act 1936 (SA) s 48(3)(b)
In Pomeroy v Thwaites Witham Pty Ltd[15] reference was made by this Court to the guidance provided by the High Court as to the test to be applied when considering extensions of time. The differing approaches of members of the court were then identified and discussed in detail. It was then observed:
The decision in Brisbane South Regional Health Authority has been the subject of considerable judicial discussion. Attention has been drawn repeatedly to the different tests formulated by the court. At times, a preference for one or other test has been expressed. However the correct approach has not been settled. Most decisions since Brisbane South Regional Health Authority have reached the same conclusion on the application of either test. The remarks in Brisbane South Regional Health Authority were directed towards the Queensland legislation. It is important to address the legislation in question in any subsequent case.
…the application of either test leads to the same conclusion in this matter. Although this is not the occasion to express a concluded view about the correct approach, I consider that when dealing with an application to extend time the overriding enquiry should be – can there be a fair trial? The South Australian legislative scheme supports such an approach as it leaves the court with an unfettered discretion once an applicant has met the qualifying condition.
The ultimate question is – can there be a fair trial?
[15] (2001) 79 SASR 489 at 506-507
The Judge’s Conclusion
The judge granted Ms Kartinyeri’s application. It was found that facts materially relevant to her case were not ascertained by her until some point of time occurring after the expiration of the period of limitation and that her action was instituted within twelve months after the ascertainment of those facts. These conclusions were not challenged on appeal.
The judge then found that on balance, the justice of the case required the grant of an extension of time:
The plaintiff has (or had) an arguable claim in respect of significant injury. If she is not permitted to pursue it, the hardship to her is obvious. Perhaps, if she cannot proceed here, she may be able to effect recovery from her first solicitor. It is not unlikely, but I do not know how the claim came to get out of time, though there is no evidence that it was attributable to fault of the plaintiff. From the defendant’s point of view, having to meet a claim it thought it had escaped is not relevant. I have found that the proved loss of its file, which might have contained relevant evidence or suggested avenues of inquiry, did not, on the facts of this case, give rise to prejudice. The passage of time and the fading of memories is not, in the absence of some special circumstance, a relevant prejudice. No known witness has forgotten, died, or gone missing. In the exercise of my judicial discretion, I think it just to extend time, and do so to the extent necessary.
Submissions of Counsel
In its notice of alternative contentions, Woolworths challenged this conclusion. It was asserted that the judge erred in evaluating the prejudice to Woolworths when allowing the application. Counsel submitted that sweep log records and other relevant material could not be located by Woolworths as it was unaware of the precise date of the incident and that the relevant sweep logs had been subsequently misplaced or destroyed. It was contended that Woolworths was prejudiced by the lack of sweep log records or records of investigations, the loss of its file due to delay in initiating proceedings and the lack of any discernable date of the incident. It was said that had the time and date of the incident been known, the relevant sweep log might have indicated that the floor surrounding the salad bar area had been cleaned only moments earlier.
Counsel for Woolworths submitted that the judge had misunderstood the time at which prejudice was to be assessed. Attention was drawn to the following observations of the judge:
In some circumstances that could be a serious matter. In this case, I do not think it is. The alleged spill was very small. It does not appear that anyone noticed the plaintiff slip. At about three years after the incident, when proceedings could have been commenced and served, it is wildly improbable that any of the defendant’s staff would have had any recall of anything about it. The plaintiff may have suggested that Ms Rigney saw it – but does not suggest anyone else did. It is not likely that there ever were other witnesses to be found.
Counsel for Ms Kartinyeri submitted that the justice of the case supported the extension order. There was a fair trial. The judge’s exercise of discretion was made having full regard to all relevant matters. Counsel further submitted that any records kept may have disclosed that the floor had not been cleaned for a substantial period. In the circumstances it was appropriate for the judge to attach little weight to this complaint.
Consideration of the Issue
The judge thoroughly reviewed the relevant facts. They can be summarised as follows. At an unspecified date prior to 24 November 1995 Ms Kartinyeri made a report about the incident to the store manager Mr Robertson. As a consequence Mr Robertson on 24 November 1995 made a computer entry about the incident. The judge concluded that it was probable Ms Kartinyeri made a report in writing to Woolworths on a company form with the assistance of Mr Robertson “wielding the pen”.
The computer record indicated that Ms Kartinyeri had informed Mr Robertson that the incident occurred on 25 October 1995. The judge found that in accordance with Woolworth’s practice it was probable that an injury notification form would have been attached to the computer record. The judge concluded that a file would have been opened as the computer record generated a claim number. Records of Woolworths indicated that no payment had been made to an insurance assessor to investigate the claim. The judge concluded that it was probable that no assessor had been appointed.
A solicitor representing Ms Kartinyeri wrote a letter of demand. This letter was met with a written denial from Woolworths on 13 October 1997. Nothing further happened for more than four years. On 20 November 2001 a further letter of claim was received from another solicitor acting for Ms Kartinyeri.
In the meantime Woolworths had closed its file on 22 March 1999. Woolworth’s practice was to keep the claim file open three years after the date of the incident and if nothing further had been heard to then close the file. It was then the practice for those files to be retained for seven years.
In the present case Woolworths followed this practice. However the system of retention of the closed files was inadequate. The judge concluded:
In this case, the bulk of files became too much and it was decided to store the archive boxes in large cardboard furniture removalists’ boxes. These boxes had a note on the outside of the files they contained. They were then stored, several layers high, at warehouse premises. Inevitably, there was a disaster. The weight of the upper boxes caused the lower boxes to collapse. Files spilled. When, eventually, an attempt was made to sort out the mess and to re-pack files, not everything was neatly in place. Files were broken up and not all files were found.
On receipt of the second solicitor’s letter of demand on 20 November 2001 a search was made for the old file but it could not be located. The judge then reasoned:
If an exact time for the incident were known, the relevant sweep log might indicate that the floor was cleaned only moments earlier, which could be very relevant. It might record someone cleaning it up. In this case, the defendant’s computer record does not record a time, perhaps because that part of the claim/notification was not completed.
But, of greater importance, there is great doubt whether the defendant even had the right day. Its original record was of 25.11.1995. The first solicitor’s letter, dated 2.10.1997, referred to an incident “on or about 20th August 1995”. At that time the sweep logs for August 1995 may have been obtainable, though that is not certain.
The plaintiff’s second solicitor referred to that date when re-opening the claim by letter of 20.11.2001. It was at that stage that it was ascertained that the file was lost. Proceedings issued on 20.12.2001 again referred back to that date. Only in the course of the trial was application made to amend it to 6th October 1995.
That date is a reconstruction. Neither the plaintiff, nor Ms Rigney actually recall the date. It is based on their shared recollection that the plaintiff gave her son a party on his second birthday on 20.9.1995. For that party, the plaintiff put up streamers and balloons, an activity she says she could not have performed in the months after the incident. Obviously, no sweep logs are available now for that date.
…
However, insofar as an inference adverse to the defendant might be open if it failed to call evidence available to it that its cleaning system was, in detail, actually in efficient operation, in the sense of proving specific sweepers and sweepings around the time of the incident, I find that that evidence is not reasonably available to it and will not make any adverse finding on that basis.
The relevant evidence is evidence available from Mr Robertson, who was clear and definite about the systems in place. There is no prejudice to the defendant in standing or falling on that evidence.
The complaint that the judge approached the issue with a misunderstanding about the time at which prejudice was to be assessed is misconceived. It is evident from the above extracts the judge carefully analysed the relevant facts. He paid close attention to the submissions put on behalf of Woolworths and to the factual assertion raised by counsel to suggest that prejudice had arisen. In the above paragraph said to contain error the judge has made observations that were open on the evidence. That paragraph was no more than part of his overall consideration of the factual material before him.
Earlier in these reasons the heightened duty of Woolworths has been emphasised and the failure of Woolworths to provide appropriate floor matting has been the subject of critical observations. The system of sweeping and observation, even if scrupulously carried out, was simply inadequate. Other methods were required, were available and should have been undertaken. The inability to produce the sweep log for whatever day the accident may have happed could not have affected the finding that the respondent was in breach of its duty by failing to provide appropriate floor matting around the salad bar. The findings can be safely made having regard to Mr Robinson’s evidence.
The extension order made by the judge was well within his discretion. No basis has been established to interfere with the order. There was a fair trial. The notice of alternative contention should be dismissed.
Conclusion
The appeal should be allowed. Judgment should be entered for Ms Kartinyeri in the damages assessed by the judge of $96,564.15 together with such orders as are appropriate for the payment of interest and costs.
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