Kellys Property Management Services Pty Ltd v Anjoshco Pty Ltd trading as McDonalds BP Chinderah

[2016] NSWCA 341

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Kellys Property Management Services Pty Ltd v Anjoshco Pty Ltd trading as McDonalds BP Chinderah [2016] NSWCA 341
Hearing dates:	18 November 2016
Decision date:	06 December 2016
Before:	Meagher JA at [1]; Gleeson JA at [2]; N Adams J at [74]
Decision:	1.   Appeal dismissed. 2.   Appellant to pay the respondent’s costs.
Catchwords:	TORTS - negligence – slip and fall – workplace injury – tiled walkway left wet and unguarded following cleaning – respondent employer paid injured employee compensation and successfully claimed indemnity from appellant cleaning company appellant in court below – Workers Compensation Act 1987 (NSW) s 151Z(1)(d) – challenge to factual finding by primary judge – whether employee acting reasonably should have been aware the floor was wet – cleaning machine left floor damp – usual cleaning system involved placing chairs on tables and ‘wet floor’ signs around perimeter of section being cleaned – expert evidence that wetness of tiles difficult to see – where finding that ‘wet floor’ signs displayed in adjoining food court and behind rubbish bin not obvious – where finding that sign outside toilets indicated to employees toilets closed for cleaning – where employee slipped and fell when turning right into corridor towards alternative toilet – where perimeter of wet walkway left unsigned
Legislation Cited:	Civil Liability Act 2002 (NSW) ss 5B, 5F, 5G, 5H, 5R, 5S Workers Compensation Act 1987 (NSW) s 151Z Supreme Court Act 1970 (NSW) s 75A Uniform Civil Procedure Rules 2005 (NSW) rr 51.18, 51. 36, 42.1
Cases Cited:	Bevillesta Pty Ltd v Liberty International Insurance Company [2009] NSWCA 16 Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) NSWLR 393; [2014] NSWCA Fitzsimmons v Coles Supermarkets Australia Pty Ltd [2013] NSWCA 273 Gordon v Truong (2014) 66 MVR 241; [2014] NSWCA 97
Category:	Principal judgment
Parties:	Applicant – Kellys Property Management Services Pty Ltd Respondent – Anjoshco Pty Ltd
Representation:	Counsel: Applicant – Mr N Polin SC Respondent – Mr R Gambi   Solicitors: Applicant – Sparke Helmore Lawyers Respondent – Moray & Agnew
File Number(s):	2015/338288
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 03 November 2015 Before: Norton DCJ File Number(s): 2012/48615

Judgment

1. MEAGHER JA: I agree with Gleeson JA that this appeal should be dismissed with costs.

2. GLEESON JA: The respondent, Anjoshco Pty Ltd (Anjoshco) brought proceedings in the District Court against the appellant, Kellys Property Management Services Pty Ltd (Kellys), claiming indemnity for workers compensation payments paid to its employee, Ms Susan Muller, as a result of a ‘slip and fall’ injury she suffered whilst at work. Ms Muller had fallen on a tiled passageway outside the toilets at the BP Chinderah roadhouse near the Tweed River in northern New South Wales. The claim was brought pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) (Workers Compensation Act).

3. On 3 November 2015, Norton SC DCJ gave a verdict and judgment for Anjoshco in the sum of $117,918.12 and ordered Kellys to pay Anjoshco’s costs.

4. Kellys appeals that decision.

Circumstances of the accident

5. As at 14 March 2011, BP Australia Pty Ltd (BP) was the owner of the “Service Centre” complex or roadhouse known as BP Chinderah. Under a contract with BP, Kellys provided cleaning services at BP Chinderah. Anjoshco, a tenant in the complex, carried on business as McDonalds BP Chinderah (McDonalds store); and employed Ms Muller as a second assistant manager there.

6. The front entrance of the BP Chinderah roadhouse leads into a store area containing a console and a café, ‘Wild Bean café’. The café counter has a right-angled shape, which partly fronts the store area and partly fronts a food court to the left (looking towards the front entrance) containing tables and chairs and some booth-like partitions. Behind the food court are the counters of the McDonalds store and a KFC store, which, at the time of the accident, was still being fitted. Opposite the KFC counter was a smaller, open booth area with tables and chairs. A walkway in front of the McDonalds store and the KFC store led to an alcove with the entrances to the men’s and women’s toilets. A corridor to the right of the walkway, just prior to the alcove, led to a disabled toilet, truckies’ amenities and a storeroom. The floor of the roadhouse near the food service counters generally comprised ceramic, dark grey tiles, and elsewhere, light coloured tiles.

7. Early in the morning of 14 March 2011, at about 3.25 am, Ms Muller left the McDonalds store to use the women’s toilets. Her route took her along the grey tiled walkway in front of the counter of the McDonalds store and the KFC store. As she walked towards the toilets, she noticed a sign outside them indicating they were closed. As she turned right to proceed into the corridor leading to the disabled toilets, she slipped and fell, sustaining injuries.

8. Ms Muller gave evidence which the primary judge accepted (at [53(13)] that after she fell, she noticed that the floor surface was wet where she was laying, and the water extended “a bit down the corridor”. Mr Andrew Hogg was working in the Wild Bean café at the time of the accident. He heard a scream and was the first to attend Ms Muller. He then reported the incident to Ms Marilyn Bourke who was working the night shift on the console at the roadhouse. Ms Bourke gave evidence that she did not see any “wet floor” signs on the ground in the area of the fall: at [18]. Mr Hogg could not recall passing or stepping over any “wet floor” sign as he came out of the door from the staff area of the Wild Bean café on his journey to Ms Muller: at [30].

9. The accident was captured on closed circuit television footage (CCTV footage). It is not in dispute, as the primary judge found, that it showed a cleaner (Mr Irwin) pushing a cleaning scrubbing machine diagonally across the area in front of the KFC counter towards the corridor in front of the alcove outside the men’s and women’s toilets. The cleaner turned into the corridor and pushed the machine to the end of it and put it away in the storeroom. Whilst walking along that corridor, the cleaner looked behind to the area he had just cleaned. After putting the machine in the storeroom, the cleaner walked back down the corridor to leave, stopping on the way apparently to knock or wipe the sole of each shoe on his opposite trouser-leg. The time stamp on the CCTV footage records that Ms Muller turned right from the walkway into that corridor just under two minutes later.

10. The still photographs from the CCTV footage showed that there were four yellow “wet floor” signs placed near the tables in the food court in front of the Wild Bean café, where Mr Hogg was working at the time of the accident. The chairs were up on the tables in that area.

11. In the area opposite the KFC store, the chairs were also on the tables, however, there were no yellow “wet floor” signs marking the perimeter of that area. There was a single yellow “wet floor” sign behind a rubbish bin, near the open booth area adjacent to the KFC store. There was another yellow “wet floor” sign in the alcove outside the entrances to the men’s and women’s toilets.

Kellys’ cleaning contract with BP

12. The terms of the written agreement between Kellys and BP contained a Scope of Services for Travel Centres in Schedule 2. Kellys’ obligations included cleaning the common areas inside and outside the roadhouse. Schedule 2 required that the floor in the food court and the coffee lounge area be promptly mopped for spills and regularly swept. It also required that the floor be machine scrubbed (including under furniture) daily and high-speed buffed daily. Kellys was required to place “CAUTION WET FLOOR” signs near the area being mopped.

13. At trial, Kellys pointed to the absence of any express contractual obligation to place “wet floor” signs near the area being cleaned, except where a spill was being mopped. However, the primary judge found, based on the evidence of Ms Muller and Mr Hogg, that the usual system of cleaning involved cleaning the roadhouse in sections and delineating those sections by the placing of signs: at [53(16)] and [86]. Mr Irwin, the cleaner on duty and shown in the CCTV footage, was not called by Kellys to give evidence.

The expert evidence

14. Anjoshco tendered at trial, without objection, an expert report from Dr John Cooke, a consultant architect. Dr Cooke tested the tiled floor at the location of the accident under wet conditions in accordance with the procedures specified in the Australian/New Zealand standard 4663: 2004 entitled “Slip resistance measurement of existing pedestrian surfaces” (the Slip Standard). Dr Cooke also viewed the CCTV footage of the accident.

15. Dr Cooke carried out a dynamic coefficient of friction test on the floor. When wet, it was found to be 0.11 and thus posed a “very high slip hazard when wet”. He explained that the slip hazard was most severe if a pedestrian walked from the dry floor to the wet floor without being aware of the presence of water or moisture, and therefore did not attempt to minimise the risk of slipping by avoiding the wet area or by walking across it in a guarded gait.

16. After noting that the ability of a pedestrian to take evasive action depends on the visual cues to the existence of water on the floor, Dr Cooke observed that, in the present case, water was not easily seen on the light coloured tile surface. Dr Cooke concluded that the ceramic (light coloured) tiled floor on which Ms Muller slipped had adequate slip resistance when dry.

17. Dr Cooke expressed the opinion that it would have been good practice for cleaners to “barricade floor areas while they are wet and/or to put up effective warning signs (yellow plastic warning cones, yellow plastic pyramidal slippery floor signs and the like)”.

18. Dr Cooke concluded that unobserved water on the floor posed a very high slip risk which could have been eliminated or minimised by the provision of clear warning signs and/or barricades when the floor was wet.

19. Dr Cooke was not required for cross-examination at trial.

The primary judge’s findings and reasons

20. After summarising the lay and expert evidence and the parties’ submissions on liability, her Honour made 16 findings of fact: at [53]. It is sufficient for the purposes of this appeal to note the following findings:

1. Ms Muller was aware that the floors of the complex were cleaned in the early hours of the morning and that they were damp after they were cleaned. She had observed that when the floors were being cleaned, the chairs were placed on tables and wet floor signs were placed on the floor. She had also observed the floors were cleaned in sections: at [53(4)].

2. Ms Muller had earlier in the night of her fall seen Mr Irwin cleaning the floors near the McDonalds area and the food court but could not recall exactly when that occurred: at [53(5)].

3. At the time of the accident there were four wet floor signs placed near the tables in the food court in the area of the Wild Bean café and part of that area in front of that café was visible from the McDonalds store: at [53(6)]. The cleaning finished at 3:23 am when Mr Irwin was seen on the CCTV footage pushing the cleaning machine up the corridor and putting it away in a storage area: at [53(7)].

4. When Ms Muller left the McDonalds store at about 3:25 am and walked past the front of that store and the KFC store, the chairs in the area opposite the KFC store were placed on top of the tables and there was a wet floor sign behind the rubbish bin near the open booth area adjacent to the KFC store: at [53(8)].

5. As Ms Muller walked towards the toilet she noticed a sign which indicated to her that the toilets were closed therefore she decided to turn right and use the disabled toilets. Her Honour found this sign was a “wet floor” sign which indicated to those who worked at the complex that the toilets were being cleaned. Ms Muller was walking at a normal pace looking primarily in front of her. There was nothing to indicate her shoes lacked grip or that the tiles were slippery: at [53(9)].

6. The water on the tiled floor surface caused Ms Muller’s foot to lose traction as she turned into the corridor, which then caused her to violently slip sideways and fall heavily to the ground: at [53(10)].

7. Ms Muller did not see any signs as she walked towards the toilets other than the sign indicating to her that the toilets were being cleaned. That “wet floor” sign was placed near the entrance to the toilets and not in the walkway. The “wet floor” signs that were displayed were not particularly obvious, as neither Mr Hogg or Ms Bourke saw “wet floor” signs on their journey to Ms Muller after the accident: at [53(13)].

8. The cleaning machine left the floors damp and the cleaner was aware of that but placed the machine away and left the area: at [53(14)].

9. The usual system of cleaning involved cleaning the food court one section at a time and placing yellow wet floor signs around the perimeter of the area being cleaned. Chairs were placed on tables prior to cleaning and remained there for some time after cleaning had been completed; at times the floor was dry but the chairs were still on the tables: at [53(16)].

21. Her Honour then proceeded to address the questions of: duty of care; breach of duty; causation; whether the risk was an obvious risk; contributory negligence; and whether any liability of Kellys to indemnify Anjoshco should be reduced on the ground that Anjoshco, as employer, was liable to its employee, Ms Muller, for failing to take reasonable care to have acquainted itself with the system of cleaning and taken steps to protect Ms Muller as one of its employees.

Duty of care

22. The primary judge accepted that whilst the duty of care owed by a cleaner is informed by the terms of the contract of engagement (with the owner or occupier of the premises), such contractors have an implied obligation to exercise reasonable skill and care in the performance of the tasks. Reference was made to Bevillesta Pty Ltd v Liberty International Insurance Company [2009] NSWCA 16, a case involving the liability of a cleaning contractor, engaged by the owner of the premises, to an injured entrant to the premises. There, Hodgson JA observed (at [56]) that “[c]ertainly a cleaner would be liable if it creates a hazard, for example by leaving a floor wet and unguarded”. Similarly, Gyles AJA accepted (at [68]) that cleaners would be liable for a “negligent act causing a foreseeable risk of injury such as leaving a bucket in a dangerous position or leaving an access way in a slippery condition.”

23. Her Honour found that Kellys had specialist skills in the area of cleaning and that Mr Irwin, the cleaner, must have known that the cleaning machine left the floor damp and was aware that it had actually deposited moisture in the area where the worker fell.

24. Her Honour found that Kellys created a hazard by making the floors wet and thus had a duty to take reasonable care not to leave the wet slippery floors “unguarded”. In oral submissions on appeal, Kellys accepted that her Honour’s reference to “unguarded” was to be understood as a reference to the absence of “wet floor” signs delineating the area which had been cleaned.

Breach of duty

25. Her Honour identified the risk of harm for the purposes of s 5B(1) of the Civil Liability Act 2002 (NSW) (Civil Liability Act) as the risk that persons walking through the centre (taking reasonable care for their own safety but making some allowance for momentary inattention) may slip and fall if the floor was left wet.

26. Her Honour noted that it was common ground that the risk of a person slipping and falling on a wet floor was foreseeable, and was not insignificant.

27. Her Honour found that there was a high probability that harm would occur if reasonable precautions were not taken, that serious harm could then result and that the burden of taking precautions to avoid the risk of harm by placing signs along the walkway before leaving the area was not significant ([67] – [70]).

28. Her Honour concluded that a reasonable person in the position of Kellys would not have left the area which had been cleaned “unguarded” and would have placed signs delineating that area.

Causation

29. Her Honour rejected Kellys’ contention that causation had not been established. Her Honour found that the dampness of the tiles was a necessary condition of her fall occurring and, having viewed the CCTV footage, there was nothing to suggest that the worker was not taking reasonable care; she was not running, and she appeared to be looking where she was going.

Obvious risk

30. Her Honour rejected Kellys’ further contention that the risk of harm (of a slip and fall if the floor was left wet) was an obvious risk within the meaning of s 5F(1) of the Civil Liability Act so that pursuant to s 5G(1) any person who suffers harm is presumed to be aware of that risk. This contention had been relied upon by Kellys for the argument that it did not have a duty of care to warn Ms Muller of the risks associated with stepping onto the wet floor because such risks ought to have been obvious to her at the time: s 5H(1) of the Civil Liability Act.

31. Her Honour found that there were no obvious “wet floor” signs in the worker’s path as she walked from the McDonalds store towards the toilets until she saw the sign which indicated to her the (men’s and women’s) toilets were closed for cleaning. Her Honour observed that Kellys was aware that the cleaning machine left the floors damp and was primarily responsible for removing the dampness and whilst attending to it signposting the hazard in accordance with the relevant Australian and New Zealand standards (Standard 4663:2004 referred to in Dr Cooke’s report).

Contributory negligence

32. After referring to the applicable principles under ss 5R and 5S of the Civil Liability Act, the primary judge noted that the only particulars of the defence of contributory negligence provided in Kellys’ amended defence were that Ms Muller failed to take precautions to guard against the risk by not keeping a proper lookout and not taking care for her own safety. The argument advanced by Kellys was that Ms Muller should have noticed the floor was wet and proceeded with more caution.

33. The primary judge rejected this argument and held there should be no reduction for contributory negligence. Her Honour found that a reasonable person in the position of the worker would not have realised that the floor in the walkway had recently been cleaned and left damp and unguarded.

34. It is unnecessary to refer to her Honour’s reasons with respect to quantum as there is no challenge to her Honour’s findings in that regard.

Issues on appeal

35. Kellys put in issue all of the matters which had been raised at trial on the question of liability, namely:

(1)   Whether Kellys owed a duty of care to Ms Muller as formulated by the trial judge (ground 1);

(2)   Viewed prospectively, whether Kellys breached any relevant duty of care owed to Ms Muller (grounds 2, 3 and 4);

(3)   Whether Anjoshco established that any breach of duty by Kellys was the cause of Ms Muller’s harm (ground 5);

(4)   Whether Ms Muller's fall resulted from the materialisation of an "obvious risk" (ground 6);

(5)   Whether the trial judge erred in finding that Ms Muller was not guilty of contributory negligence (ground 7);

(6)   Whether the trial judge erred in finding that Ms Muller's employer was not guilty of negligence (ground 8).

36. In oral argument, senior counsel for Kellys accepted that the whole of the appeal, other than the issue of contributory negligence, turned on the outcome of one factual contention which Kellys sought, belatedly, to raise for the first time during the hearing of the appeal. Kellys had not challenged any of the primary judge’s factual findings in its notice of appeal and written submissions, nor contended for any contrary findings.

36. It is convenient to address this issue first.

Should Kellys be permitted to raise a factual challenge?

38. Kellys sought leave to contend that her Honour should have found that Ms Muller ought to have been aware, acting reasonably, that the floor was wet because she should have seen the signs and other matters indicating that the floor was wet.

39. Whilst Anjoshco formally opposed leave being granted to Kellys to raise this factual challenge, counsel for Anjoshco fairly indicated that he was not prejudiced by the late notice and could deal with it on the appeal.

40. Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.18(2) provides that an appellant must specify in the notice of appeal any material facts that the appellant contends the court below should, or should not have found. In addition, r 51.36(2) provides that any challenges to findings of fact must be included in a statement in narrative form (not exceeding 2 pages) at the end of the written submissions filed in an appeal (pursuant to UCPR, r 51.36(1)) setting out only (a) the findings challenged and supporting references to the judgment of the court below, and (b) the findings contended for and supporting references to the transcript and other evidence in the court below.

41. The rules requiring identification of any material facts the subject of challenge or contention on appeal serve a number of purposes. One is to afford the other party procedural fairness. Another is to direct attention to the nature of the error asserted on appeal, and whether the Court is being asked to draw inferences and make findings of fact on appeal in the exercise of its powers under s 75A of the Supreme Court Act 1970 (NSW) (Supreme Court Act).

42. The failure by Kellys to observe these rules in the present case was most unsatisfactory. That is especially so when regard is had to the time that the proposed challenge was first raised and the fact that Anjoshco’s written submissions highlighted the absence of any challenge by Kellys to any of the material facts found by her Honour. Nonetheless, as Anjoshco did not assert it would be caused prejudice, Kellys should be permitted to raise this factual challenge on appeal.

Resolution of factual challenge

43. At trial, Kellys submitted that Ms Muller knew or ought to have known the floor was wet because there were signs in the food court area and chairs were on the tables in the area near the walkway. Her Honour rejected that submission when dealing with the causation argument, and made the following finding at [77]:

I accept Ms Muller’s evidence that she did not see such signs except for the sign between the toilets which indicated to her, and other staff, that the toilets were shut for cleaning. She did not notice the sign near the rubbish bin nor the chairs on the table. I do not find that this establishes she was taking so little care for her own safety that there was no duty of care owed or the fall was caused entirely by her actions.

44. When addressing Kellys’ contention that the risk was an obvious risk within the meaning of s 5F(1) of the Civil Liability Act, her Honour made the following finding at [82]:

I find that the appearance of the tiles was not so different as to render it obvious they were wet and therefore slippery. I have found that adequate precautions would have included putting signs in the walkway to clearly indicate it was wet. I do not accept that the slight change of appearance of the tiles or the presence of chairs on tables in an adjoining area were sufficient to render the risk obvious. I find there were no obvious wet floor signs in Ms Muller’s path as she walked from McDonald’s towards the toilets until she saw the sign which indicated to her the toilets were shut for cleaning.

45. Reference also should be made to her Honour’s findings when dealing with the issue of contributory negligence. Her Honour found at [86]-[87]:

[t]he presence of the chairs on top of the tables did not of itself indicate that the floor was wet. As Ms Muller said, it was the combination of that and the wet floor signs sectioning off the area which made her aware that the floors within that area were wet. There is other evidence to support the fact that the floors were generally cleaned in sections and those sections were delineated by the placing of signs.

Mr Irwin was not called to give evidence and therefore it can be assumed that his evidence would not have assisted the defendant’s case. I therefore accept that a reasonable person in the position of Ms Muller would not have realised that the floor in the walkway had recently been cleaned and left damp and unguarded. In those circumstances there should be no reduction for contributory negligence.

Submissions

46. Kellys submitted that Ms Muller ought to have been aware that the floor in the walkway was wet for a combination of reasons. One was that she was aware that the floors in the roadhouse were cleaned in the early hours of the morning and the floors were left damp after they were cleaned. Next, Kellys cited the fact that Ms Muller had observed the cleaner in the McDonalds area and the food court earlier on the night of the accident. The placement of chairs on the tables and “wet floor” signs within the roadhouse was also relied on. Finally, reference was made to Ms Muller’s evidence that if the floor was wet and she had looked at it, she could have seen that it was wet because the tiles would have appeared shinier than if they were dry.

47. Kellys submitted that it would have been obvious to a reasonable person in the position of Ms Muller that the floor ahead of her was wet and that she would need to proceed across it with care.

48. In response, Anjoshco emphasised that it was not suggested to Ms Muller in cross-examination that it was not reasonable for her to interpret the sign in the alcove outside the men’s and women’s toilets as indicating only that the toilets were closed for cleaning (and not that nearby floors, including in the corridor, were also wet from cleaning). Counsel for Anjoshco referred to Ms Muller’s evidence that what would have indicated to her that an area was about to be cleaned, or had been cleaned, and that therefore the floor might be wet, was not simply that chairs were on the tables but also that there were “wet floor signs” on the walkway to the toilets between the KFC counter and the tables and chairs in the open booth area as shown in photo 2 of Exhibit A.

49. Counsel for Anjoshco also submitted that the cross-examination of Ms Muller as to whether she noticed the wet floor signs in the food court, in front of the Wild Bean café and near the rubbish bin, did not establish that she should have seen those signs to her left when walking to the toilets.

Decision

50. It is not in dispute that, in the area of the walkway and corridor where Ms Muller fell, there were no signs warning staff and members of the public that the floor was wet. Ms Muller gave evidence that she did not recall seeing the signs to her left in the food court and near the rubbish bin on her way to the toilets. The cross-examination of Ms Muller on this topic assumed she should have looked to her left. She was asked whether she would have seen those signs “if [she] just… glimpsed across to [her] left” or “if [she had] looked to [her] left” (emphasis added). The cross-examiner did not suggest to Ms Muller that there was any reason why she should have looked to her left and seen those signs, or that she was not taking reasonable care for her own safety in not doing so.

51. The primary judge found that the “wet floor” signs that were displayed were not particularly obvious. This was a reference to the signs in the food court and near the rubbish bin. That finding, which is not challenged, was based on the evidence of Mr Hogg and Ms Bourke. Two further matters support this finding. One is that the inward-facing booth in the food court in the area of the Wild Bean café partially blocked the view to the left of a person walking from the McDonalds store along the walkway and to the toilets. So much is apparent from the still photograph from the CCTV footage taken from the food court looking back towards the McDonalds store. The other matter is that in the still photograph taken from the open booth area near the KFC store looking back towards where the rubbish bin is located, what appears to be a yellow sign on the floor is barely visible as Ms Muller is seen to walk past on the grey tiled walkway in front of the KFC counter.

52. Counsel for Kellys sought to meet this difficulty by positing in oral argument that “one would have thought” that a person walking from the McDonalds store towards the toilets would have seen the signs to their left in their peripheral vision. As I have already noted, that proposition was not put to Ms Muller in cross-examination. Nor was it put to any of the other witnesses who worked at the roadhouse and were present on the day of the accident. Nor was any expert evidence tendered by Kellys directed to the dimensions and layout of the roadhouse and the placement of booths, tables and chairs and the rubbish bin, to support that proposition. The submission that Ms Muller ought to have seen in her peripheral vision the signs to her left when walking to the toilets should be rejected.

53. The next matter relied upon by Kellys was the significance of chairs on the tables as a warning that the floor might be wet from cleaning. Ms Muller was not challenged in cross-examination on her evidence that if the walkway had been cleaned she would have expected not only chairs on the tables in the area of the KFC store but also “wet floor” signs “all along there”. That expectation was entirely reasonable. It was consistent with Ms Muller’s observations and her Honour’s findings as to the usual system of cleaning the complex (in sections, with chairs being placed on tables progressively and the area being cleaned delineated by “wet floor” signs).

54. As recorded above (at [20(i)]), her Honour found that the chairs remained on the tables for some time after cleaning had been completed and that, at times, the floor was dry but the chairs were still on the tables. In the absence of signs warning that the area of the walkway was about to be, or had been cleaned, the presence of chairs on tables in the area of the KFC store of itself would not have indicated to Ms Muller that the floor was wet. Nor would the placement of a single “wet floor” sign in the alcove outside the men’s and women’s toilets have indicated to Ms Muller that the end of the walkway preceding the alcove was wet. Although there was no direct evidence of the depth of the alcove, counsel for Kellys conceded it was about two metres deep. The area where Ms Muller fell, which had been made wet by the scrubbing machine, was the end of the walkway where she turned right into the corridor leading to the disabled toilets and storeroom. There were no signs in that area, or in the corridor.

55. Further and importantly, Ms Muller had proceeded without incident along the walkway on the grey tiles and then the light coloured tiles before turning right into the corridor. Her Honour found that the appearance of the tiles was not so different as to render the risk they posed obvious: at [82]. That finding was based on Dr Cooke’s unchallenged expert evidence that it was not easy to see water on them: at [34]. Contrary to Kellys’ submissions, the evidence does not establish that her Honour should have found that Ms Muller ought to have been aware, acting reasonably, that the floor where she slipped was wet.

56. In light of the above conclusion, it is not necessary to consider the grounds of appeal other than ground 7 which challenges the finding of no contributory negligence. The primary judge’s factual findings clearly preclude the making of any contrary determinations concerning the existence of a duty of care owed by Kellys, breach of that duty by Kellys and its causation of Ms Muller’s harm. That disposes of grounds 1, 2, 3, 4 and 5. Counsel for Kellys also acknowledged that the rejection of ground 6 relating to “obvious risk”, followed upon the disposition of the grounds relating to breach of duty. Ground 8 relating to Anjoshco’s liability as employer to Ms Muller, was not pressed.

Contributory negligence

57. Section 5R of the Civil Liability Actprovides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against a risk of harm which materialised and resulted in injury. Accordingly, the existence and extent of a claimant’s contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant’s position would have taken against that risk: Gordon v Truong (2014) 66 MVR 241; [2014] NSWCA 97 at [14] – [15] (Basten JA).

58. The question of whether a person has been guilty of contributory negligence is to be determined objectively – whether the plaintiff had taken that degree of care for his or her own safety that an ordinary reasonable person would take: Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) NSWLR 393; [2014] NSWCA at 139 at [54] (McColl JA); see also at [94] (Basten JA, Emmett JA agreeing).

59. Section 5S provides that, when apportioning responsibility, a court may determine a reduction of 100% in the claimant’s damages by reason of contributory negligence.

60. As indicated, the particulars of contributory negligence relied upon by Kellys were that Ms Muller failed to keep a proper lookout and failed to take care for her own safety. Her Honour rejected this defence for the reasons set out at [45] above. No complaint is made in relation to her Honour’s statement of the applicable legal principles with respect to ss 5R and 5S of the Civil Liability Act.

Submissions

61. Kellys submitted that Ms Muller should have known that the floor was wet, knew that it was slippery when wet, and yet failed to take any adequate precautions for her own safety. Again, Kellys pointed to the fact that Ms Muller did not observe the “wet floor” signs that had been placed in other areas of the roadhouse as described above, or the chairs on the tables which, it was said, told her the floor may be wet. Reliance was also placed on the finding of contributory negligence in another ‘slip and fall’ case which involved an area left wet after cleaning in a supermarket: Fitzsimmons v Coles Supermarkets Australia Pty Ltd [2013] NSWCA 273 (Fitzsimmons v Coles).

62. It was submitted that Ms Muller’s claim for damages should be reduced by 50% for contributory negligence.

63. In oral argument, counsel for Kellys did not press any submission that Ms Muller knew that the walkway was wet. Counsel for Kellys also acknowledged (albeit significantly understating the position) that the defence of contributory negligence became a “thinner argument” if the factual contention rejected above was not made out.

Decision

64. The defence of contributory negligence cannot succeed in circumstances where the factual contention raised by Kellys has been rejected. Other than suggesting that there was an analogy between the present case and the finding of contributory negligence in Fitzsimmons v Coles, Kellys did not attempt to demonstrate error in her Honour’s finding that a reasonable person in the position of Ms Muller would not have realised that the floor in the walkway had recently been cleaned and left damp and “unguarded” (not demarcated by warning signs).

65. Fitzsimmons v Coles involved three “wet floor” signs placed by an employee of Coles in a rough triangle around the area where the plaintiff slipped. The risk posed by the wet floor had been created by Coles’ own staff in cleaning the floor. The warning signs deployed at floor level were not readily within the line of sight of a shopper focussed on the goods on display and the signs at the end of aisles. The plaintiff was hurrying, carrying her daughter on her hip. She had come to the supermarket for the specific purpose of finding a birthday cake for her daughter and she was looking down the aisles as she walked past them, attempting to find the right section.

66. Basten JA and McDougall J each concluded that the plaintiff was partly responsible for her injuries but differed on the question of apportionment. As the other member of the Court (Emmett JA) came to a different view as to the appropriate outcome of the appeal (namely that the plaintiff was entirely responsible for her injuries), Basten JA accepted that the reduction for contributory negligence should be 50%, as assessed by McDougall J, as that figure was between the primary conclusions reached by Emmett JA and his Honour.

67. Basten JA distinguished between a failure to notice the slippery state of the floor and a failure to notice the yellow “wet floor” signs. His Honour said at [21]:

[f]ailure to notice the slippery state of the floor would not have constituted contributory negligence, absent any warning. However, failure to notice the yellow "wet floor" signs did constitute a failure on the part of the appellant to take reasonable care for her own safety, but, given the nature and placement of the signs, it was not carelessness of a high order. An appropriate apportionment would be achieved by reducing any award of damages by 25% for contributory negligence.

68. McDougall J approached the matter on the basis that there were two equally effective causes of the accident and apportioned responsibility for the accident at 50% to Coles and 50% to the plaintiff: at [149]. His Honour said (at [148]) in a passage relied upon here by Kellys:

[t]here were, essentially, two equally effective causes of the accident that Ms Fitzsimmons suffered. The first was the failure of Coles to take precautions to warn its less attentive customers of the risk of danger. The second was the failure of Ms Fitzsimmons to look where she was going, and thus to observe, and pay attention to the danger indicated by, the three bright yellow warning signs.

69. Fitzsimmons v Coles is readily distinguishable on the facts from the present case. In that case, the three yellow “wet floor” signs marked the perimeter of the area where the customer needed to exercise caution to avoid slipping and falling. The nature and placement of the warning signs was critical to the findings of contributory negligence.

70. In the present case, the cleaner failed to place any “wet floor” signs marking the perimeter or indeed any part of the area where the walkway was wet and slippery due to his having recently pushed the cleaning machine across it in his passage to the storeroom. Given the nature and position of the sign outside the men’s and women’s toilets (in Ms Muller’s direct line of sight), the unchallenged finding that the sign indicated that the toilets were closed for cleaning and the absence of any other signs in the area of the walkway, a reasonable person in the position of Ms Muller would not have realised that the floor at the end of the walkway had recently been cleaned and left damp and unguarded (not demarcated by warning signs).

71. The primary judge did not err in rejecting the defence of contributory negligence. Ground 7 has not been made out.

Conclusion

72. The primary judge, having carefully reviewed the evidence, made factual findings and reached conclusions which were well open on the evidence. Kellys has failed to demonstrate that her Honour should have found that Ms Muller ought to have been aware, acting reasonably, that the floor where she slipped was wet. The appeal having failed, there is no reason why costs should not follow the event: UCPR, r 42.1.

73. I propose the following orders:

1.   Appeal dismissed.

2.   Appellant to pay the respondent’s costs.

74. N ADAMS J: I have had the benefit of reading the draft judgment of Gleeson JA. I agree with his Honour’s reasons and the orders he proposes.

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Decision last updated: 06 December 2016