Mallows, Elizabeth Ellen v Woolworths (Victoria) Limited Trading as Purity Supermarket

[1998] TASSC 85

85/1998

PARTIES:  MALLOWS, Elizabeth Ellen
  v
  WOOLWORTHS (VICTORIA) LIMITED

trading as PURITY SUPERMARKETS

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1095/1992
DELIVERED:  17 July 1998
HEARING DATE/S:  6, 7, 8, 11 May 1998
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Torts - Negligence - Essentials of action for negligence - Damage - Causation - Generally - Plaintiff slipping on floor of retail premises where no public access on the way to employment interview - Cleaning system adequate - Plaintiff's onus to establish defendant's failure to maintain system of inspection and cleaning of floor not discharged - Failure of plaintiff to establish negligence on part of defendant.

Griffin v Coles Myer Ltd (1991) Aust Torts Reports 81-109; Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241; Kocis v S E Dickens Pty Ltd (t/as Coles New World Supermarket) (1996) Aust Torts Reports 81-382, applied.
Dulhunty v J B Young Ltd (1975) 50 ALJR 160, followed.
Aust Dig Torts [60]

REPRESENTATION:

Counsel:
             Plaintiff:  A M Blow QC
             Defendant:  M E O'Farrell, W M Beveridge
Solicitors:
             Plaintiff:  Glade-Wright & Mahindroo
             Defendant:  Dobson Mitchell & Allport

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  85/1998
Number of pages:  10

Serial No 85/1998
File No 1095/1992

ELIZABETH ELLEN MALLOWS v
WOOLWORTHS (VICTORIA) LIMITED
trading as PURITY SUPERMARKETS

REASONS FOR JUDGMENT  COX CJ

17 July 1998

The plaintiff sues the defendant for personal injuries arising from a fall on 9 October 1991 at the defendant's premises at Eastlands, Rosny Park, where it carried on business as a supermarket.  It is admitted on the pleadings that the plaintiff entered the premises for the purpose of attending an interview with an employee of the defendant as to the availability of employment as a pastrycook.

The plaintiff entered the premises shortly before 11 o'clock on a Wednesday morning and made her way to the service desk in the public supermarket area.  She had an appointment to see Mrs Shepherd, the manager.  Mr Mallows, her husband, had driven there with her from their home at Maydena and waited at the entrance to the store.  After a short time, another employee, Mrs Kelly, who had come from the area where Mrs Shepherd had her office for the purpose of delivering stationery to the desk, escorted the plaintiff towards that office.  They passed through the public area of the store and through a door on that level into a section to which the public did not have access.  The doorway is approximately 3 ft wide and leads into a passage of the same width which extends approximately 14 ft.  To the left of the passage is the bakery.  At the end of this enclosed section of passage there is, to the left, a wooden sliding door leading into a washroom.  Directly opposite this doorway, which is likewise about 3 ft in width and was, at all material times, open, there is a further door into the bakery.  That door is made of solid but transparent plastic through which the observer may see the outline of people and objects in the bakery.  Beyond the doorway in the passage, a solid wall extends to the outer wall of the building.  At the end of the initial enclosed 14 ft section of passage and to the right is an open area of storage space.  Access to the office, which is on the floor above, is gained by means of stairs adjacent to the outer wall.  The distance from the end of the enclosed passage, where it widens out into the storage area to the bottom of the stairs, is approximately 8 ft, or approximately 5 ft from a point opposite the further end of the sliding door into the washroom.

The plaintiff gave evidence that Mrs Kelly preceded her into the enclosed passage and walked in the direction of the stairs.  She was walking to the right of the plaintiff and was about one pace forward of her.  As the plaintiff passed the door into the washroom (but which she described as the bakery, because she said she could see the bakery equipment through plastic strips or streamers) her feet shot from under her.  She said she did not have the sensation of falling, but she ended up on the floor, while Mrs Kelly kept on walking.  She ended up in a sitting position, but as she fell onto her buttocks, she tried to break her fall with her right hand and in the process sustained a painful fracture of the right wrist.  Prior to this accident, she had never suffered blackouts, nor did she suffer, nor has she since suffered, from any condition which might explain the fall.  She was a 52 year old woman in good health and of robust build.  She was wearing court shoes which she had purchased about two months earlier and had worn several times before the accident.

Mrs Kelly summoned Mrs Shepherd and a chair was procured and placed immediately beyond the doorway into the washroom as one proceeds away from the enclosed passage.  The plaintiff was assisted to it and sat there in considerable pain while an ambulance was called.  It arrived about twenty minutes later.  In the meantime, her husband was paged and he arrived before the ambulance personnel.  While she was sitting there, the manager of the bakery came out from the bakery and procured a sack of flour which was stored beyond the stairs.  He then returned to the bakery.  When the ambulance officer arrived, she said he knelt down in front of her and asked how she had slipped.  She said she was not sure, and he looked on the floor and pointed out a substance on it.  She said she saw a fatty substance.  It was not a great lot, it was a pale yellow colour and it was possibly the size of a 20 cent piece or slightly bigger.  This substance was to her right as she sat with her back to the bakery area and was just outside the bakery door "or just where the bakery door finished".  She received treatment and painkillers and was placed on a stretcher and taken to the hospital by ambulance.

Two aspects of the plaintiff's case require careful consideration of the relevant evidence which it is convenient to undertake now.  They are the precise location of the fall and whether any slippery substance was found there.  From what I have recorded, it can be seen that the plaintiff claims that the fall occurred immediately outside the doorway giving ingress to the washroom/bakery and that the ambulance officer pointed out to her a fatty substance coloured yellow and quite small which was situated in that position.

The plaintiff adduced no further direct evidence as to the location of the fall.  She and Mrs Kelly were the only persons present when she did fall and Mrs Shepherd was the only other person called who saw her on the floor where she had presumably fallen before she was assisted to the chair where her husband and the ambulance officer saw her.  Mrs Kelly gave evidence that she was still employed by the defendant company at a different store, but was the inventory controller at Eastlands at the date of the accident and part of her job was to prevent any injury to staff or customers and to inspect any area where anyone had fallen on the floor.  She said she guided the plaintiff from the service desk towards Mrs Shepherd's office and "went through the door from the actual supermarket floor into a little hallway.  I preceded Mrs Mallows and just before I got to the stairs I heard Mrs Mallows call out.  I turned around and Mrs Mallows was sitting on the floor with her feet out in front of her, cradling her right arm".  By reference to symbols on a plan of the store (exhibit P1), she identified a point in the enclosed passage or hallway 2 ft - 3 ft before the doorway into the washroom/bakery where she said the plaintiff's feet were when she turned around and saw her sitting on the floor.  The witness said she, herself, was at that time "at about the bakery door entrance".  In cross-examination she said that when she first became aware of anything abnormal, she was "to the end of the bakery door there", and when it was put to her that her first statement that she was at a point just before she got to the stairs was more accurate and that she was a pace or two beyond that door and was close to the foot of the stairs, she replied, "I may have been, I really, look, I really don’t recall.  It’s just such a small area, it looks huge on here [ie, the plan], but when you’re actually there a step or a pace, it’s not a very long hallway".  As I have observed, the distance to the bottom of the stairs from a point opposite the end of the doorway further from the door through which access is gained from the supermarket is only about 5 ft in any event.  The plaintiff said that as she fell, Mrs Kelly continued to walk, so it may well be that she had advanced a pace or two towards the stairs before she heard the plaintiff's call and turned around.  To describe her position then as one "just before I got to the stairs" might be more accurate, but it was not in conflict with her claim that the plaintiff was still short of the other end of the doorway when she fell.

Mrs Kelly said that after the plaintiff had been assisted to the chair, she went and had a look where the plaintiff had fallen and checked the area for any debris or anything slippery, but could not find anything.  She made a visual inspection, but could not recall bending down and touching the floor, although that was her general practice.  She also inspected the bottom of the plaintiff's shoes, but found nothing on them.  She said she told Mrs Shepherd she had inspected the floor, but the latter made an inspection herself of the floor and of the plaintiff's shoes before going off to get the plaintiff's husband.

Mrs Shepherd, on being alerted, found the plaintiff sitting on the floor "just before you get to the bakery sliding door … coming from the shop".  Her feet were about 18 ins from the door and in the enclosed section of the passage.  This is close to Mrs Kelly's estimate of 2 ft - 3 ft short of the doorway.  She helped Mrs Kelly pick the plaintiff up and put her on the chair on the other side of the doorway.  She then went and checked the floor where the plaintiff had been sitting.  She said, "I looked and I scuffled - scuffled along and I found absolutely nothing".  She then inspected the plaintiff's shoes and there was nothing on them. 

Counsel for the plaintiff urged upon me the proposition that it was likely that the plaintiff was placed on a chair in close proximity to the place where she fell because of her condition and that as the chair was positioned to the further side of the door, it was more likely that she had fallen opposite the doorway.  I am unpersuaded by this.  If she had fallen on the other side of the doorway in the narrow passage, it was a constricted area in which to put her on a chair and minister to her and there was therefore good reason to put it on the other side of the door where it was much more open.  Furthermore, placing the chair in front of the door would have obstructed access to the bakery.  Although the plaintiff was in pain and was ultimately removed on a stretcher, there is no suggestion that she could not have walked a few paces to the position where the chair was placed when first assisted to her feet.

The plaintiff's recollection of seeing into the bakery through a plastic section on a door is not decisive when considering the competing claims as to the locus in quo.  She did pass across the doorway so as to reach the chair and though no doubt in pain, may have made that observation at that time or before being removed on the stretcher.  In any event, she said she had visited the site with her solicitor about two years ago and it may be that she acquired that mental picture then.

Although I have no reason to doubt the sincerity of the plaintiff's belief in the accuracy of her evidence, there were instances of unreliability about some peripheral matters.  She was clearly mistaken in her belief that the door into the washroom had plastic material on it.  I find that it was a solid sliding door and was in the open position on that day.  She is confusing this door with the inner door into the bakery which had transparent plastic on it.  Furthermore, that was solid plastic and not ribbons or streamers of plastic.  She also said there was a small area of non-slip surface just outside the outer door where she claimed to have fallen, but that it was restricted to that area.  I find that the whole of the walkway from the door of the supermarket proper to the stairs was covered in a non-slip material of yellow/orange colour.

It was implicit in counsel for the plaintiff's submissions that both Mrs Shepherd and Mrs Kelly had reason to maintain (whether consciously or subconsciously) that the fall occurred without fault on the part of the defendant or its employees and that they may have reconstructed its locality so as not to place it outside the doorway in a thoroughfare used by some bakery staff.  It was also implicit that their inspection for anything slippery was either very cursory or yielded results which they were not revealing to the Court.  I have no doubt they were both loyal employees of the defendant company, but I have no reason to suppose that they have allowed that loyalty to colour their evidence.  There is little room for mistake, oversight or poor recollection about the results of the inspection, which I have no doubt they would have conducted and did in fact conduct, and if their evidence is untrue, the most likely explanation is deliberate mendacity on their part.  Mrs Shepherd is now retired and Mrs Kelly employed by the defendant at another store.  They had no apparent reason for such a deception.

However, that is not the end of the evidence, for Mr Mallows came to the scene before the ambulance arrived and he made certain observations.  Although now separated and living apart from the plaintiff, he, likewise, has no reason to give evidence other than what he believes to be true.  He said that the area where his wife sat "and coming away from it was the bakery entrance.  The floor in that area appeared to be soiled with some substance or other".  He said he looked down and there were particles of what appeared to be fat and flour mixed together on the floor, which was a concrete floor grey in colour.  Asked where in relation to his wife's then position those substances were, he said, "Well, basically, all around her, I would say, and leading back down towards the door that I had come in there was two or three marks of what appeared to be flour footprints  -  with flour on".  Questioned about the existence of a non-slip surface, he disagreed that there was one and said that just outside the bakery door, all he noticed was "what appeared to be balled up bits of floury fat and stuff".  He said it was very fine and "looked to be flour and marg mixed together or flour and some sort of fat mixed together".  Asked to elaborate about the footprints, he said, "when I looked back along the passageway that I’d just come in it appeared that there was a couple of tread marks which looked like flour, off the tread of a boot or a shoe … it wasn’t a full shape but they were just bar marks".  He could not recall how far apart they were, but they were possibly an inch across and something like one-quarter of an inch wide.  When asked in cross-examination if he had seen a pale yellow piece of material on the floor next to his wife "about the size of a ten cent [sic] piece", he said he did not recall doing so.  He remembered a worker walking through from the bakery and being introduced as its manager but no one had said in his presence that crumbs had come off that person's shoe.  Mr Mallows also claimed in cross-examination to have inspected his wife's shoes.  This is the relevant exchange:

"Q       Did you check your wife’s shoes?
A        The ambulance officer did, yes.

Q        But you didn’t?
A        I did at the same time, yes.

Q        Right - and there was nothing on that - no slippery -?
A        Yes, there was little tiny bits of stuff on the sole of the shoe I believe.

Q        You believe?
A        Had come from the floor.

Q        You believe?  Did you see little tiny bits of stuff on the shoes?
A        Yes, I did.

Q        You are absolutely sure about that Mr. Mallows?
A        Yes, I am."

The plaintiff herself did not check her shoes, saying that she was not in a fit state to do so.  That is not surprising.

An ambulance officer, Mr Mason, was called to the scene and arrived with a young student.  He gave evidence of the plaintiff's medical condition as it was recorded in the notes made by him and incorporated in the plaintiff's hospital records.  He was then asked something of the circumstances when he attended her at the supermarket, and said:

"AMy recollection is vague apart from the statement that I made approximately four months after that incident.  What would you like me to?----

QWell, you mentioned a statement.  How did it come about that you made a statement?

AI was approached by the party I believe representing the lady in question and I was asked of details concerning that and those details were recorded and that’s about it I think.

QAnd, how were they recorded initially those details?

AThey were handwritten.

QAnd, was the statement itself handwritten?

AIt was initially and then it was returned to me after it was typed up with my signature.

QAll right - I’ll come back to the statement.  Apart from anything you might have read in the statement today or this week or recently can you say what you recollect about what happened at Purity at Eastlands with that patient that day?

AI have no doubt that we were led to a room where the patient was seated on a chair - I can vividly still see the lady sitting upright in a chair.  I also am fairly confident that there was an area on the floor that was pointed out to me by someone - I am not sure who - and I also confirmed that that area on the floor was slippery.  I don’t know how big that area was - I can’t remember at this stage but there was something - I did pass my hand or fingers or whatever over that area and confirmed - I can also - that’s about all I can really remember  accurately.

QWhat did you confirm when you did some movement involving passing your fingers?

AI confirmed that there was an area on the floor that was slippery."

He was then shown a statement signed by him four months later on 10 February 1992 and asked:

"Q… when you signed that statement how was your memory as to the events of that day?

AIt was approximately four months and everything that I stated that was placed in writing I was fairly confident  -  four months had elapsed and I was fairly comfortable with what I said at the time."

The statement was then put in.  After referring to the finding of the plaintiff seated in a chair and his observations about her medical condition, it reads:

"I was squatting down in front of the patient.  I recall that a remark was made about the floor to my left being slippery.  I don't know who made the remark.  I vaguely recall something on the floor or an area of the floor being spoken about.  I reached over near where I was squatting and touched the floor and agreed that there appeared to be something slippery on the floor.  I don't know exactly what it was.  It was to my left.  I could identify the place more exactly if a photograph is taken indicating the area.  As an enquiry into the cause of the fall, I inspected the soles of her shoes, which did not appear to be slippery."

The document had attached to it a sketch plan which included what appeared to be the door from the supermarket to the passage (which is attenuated and is not shown as an enclosed passage), the door leading into the washroom, the chair on which the plaintiff was sitting, the wall to its right, his own position directly in front of the plaintiff, and to the left of him a hatched area described as "slippery area".  Apart from the chair and his own position, each of the other features, including the slippery area, is preceded by a question mark.  He emphasised that the sketch was not to scale and was not intended to indicate the exact position or size of the slippery area.  He said the sketch was done very quickly and he had anticipated that it would be drawn up in more detail later, but that when it was returned it "generally showed a reasonable description of where things were".  After a lapse of six years, Mr Mason had very little actual recollection of detail.  He could not recall the floor surface.  When asked about the position of doors, he said he would have to see the diagram again and, upon looking at it, said "The question mark indicates that I think there was a door there.  Four months had elapsed and I didn’t take a lot of detail into the exact placement of doors etcetera.  I was more concerned with the patient at that time".  He said he did not normally remember all the details about an incident when he finished with a case.  He had no recollection of anybody saying that there was fat on the floor, nor could he recall seeing anything that was obvious, "but there was, according to my statement, there was something slippery there".  He thought he would have recorded what it was had it been obvious enough to identify.  Had it been an apple or a banana, he said he would have categorically said what it was and recorded it.  The exchange continued:

"QOr a knob of yellow, fatty substance about the size of a twenty cent piece on the floor?

AIf I saw that would I record it?   Is that what you are saying?

QYes?

AIf I knew exactly what it was I would say.  But, to me, that could mean anything.  It could be oil, it could be grease, it could be whatever and I can’t categorically - this is a legal document that I record things into and I would only be hazarding a guess at the time.  But if I saw a banana peel there I would write there was banana peel.

In conclusion, he said, when again pressed about recording obvious things:

"AIt wasn’t obvious to me but then my eyes are focused on the patient.  I have a quick scan around as I approach the patient.  If it was a lump of butter or whatever on the floor I would have sort of glanced at it and I would have said to my partner, you know,  'Just be careful', or whatever.  But it wasn’t something, to the best of my knowledge, that really sort [sic] out as something really obvious.

QYes.  And in fact it was only - according to your statement it was really only after somebody had suggested that there was something slippery on the floor that you investigated?

ACorrect."

Mr Mallows gave evidence that on the arrival of the ambulance officer, they had both looked at the floor and that Mr Mallows had commented "there was stuff on the floor".  He said he did not recall anyone saying that the stuff on the floor had not been there when his wife fell, but that someone had walked through from the bakery and crumbs had come off his shoes.  He did not dispute that a man had come from the bakery and had been introduced as its manager.  Mrs Shepherd conceded that Mr Mallows had claimed that there was something on the floor; she recalled the ambulance personnel being there; but did not remember Mr Mason squatting down in front of the plaintiff or reaching out and touching something on the floor and commenting about it.  She said she did not hear the ambulance officer say anything about a substance being on the floor, nor did she receive a report that he had said anything like that.  When Mr Mallows had claimed that there was something on the floor, she said she looked again, but did not see anything.  Mrs Kelly had a slightly different version of the conversation.  She said that on the arrival of the ambulance officers, Mr Mallows commented on breadcrumbs on the floor.  The bakery manager had just come through from the bakery with a sack of flour from the storeroom and returned to the bakery.  When Mr Mallows made his comment, she observed that there were breadcrumbs on the floor just at the entrance to the washroom/bakery door.  Asked if there were half a dozen crumbs or more than that, she said, "It was sort of a splattering - I mean, he left a little trail from where he had walked out to picking his flour up and then back in again so there wasn’t a pile of breadcrumbs".  She could not recall how far into the storeroom the trail extended.  She responded to Mr Mallows' comment about the breadcrumbs by saying that they had come from the bakery manager's feet.  Eventually she had got a broom and swept the crumbs up.  Asked about their consistency, whether they were damp, or "gloggy", or dry and crisp, she said she was unable to recall, "They just looked liked breadcrumbs to me".  She had no recollection of any conversation involving the ambulance officer as to there being something slippery or fatty on the floor.

I do not accept the evidence of Mr Mallows that he found "little tiny bits of stuff on the sole" of his wife's shoes, at least so far as indicating that there was some slippery substance on them.  He is the only one to make this claim and it is contrary to the evidence of Mrs Shepherd and Mrs Kelly and is unsupported by the ambulance officer who asserted, without qualification, in his written statement four months later, "I inspected the soles of her shoes which did not appear to be slippery"; nor do I accept his claim to have seen floury footprints extending from the bakery doorway back down the enclosed passageway towards the door through which he had entered from the supermarket.  That, too, is contrary to the other evidence.  It seems to be common ground that the bakery manager passed over the area outside the doorway to the bakery where the plaintiff contends she fell after the accident had occurred and I find that he did leave small deposits of breadcrumbs in the process.  Mr Mallows may well be confusing these deposits with the trail of footprints he mentions.  It is possible that some fatty substance was mixed with the breadcrumbs and that this was what Mr Mason touched and described as slippery.  Likewise, what the plaintiff saw may have been deposited by the bakery manager after her fall.

It is curious that the plaintiff should have fallen on a non-slip surface and the very fact of the fall does suggest that something beneath her feet precipitated it.  Nevertheless, the evidence of Mrs Shepherd and Mrs Kelly that the fall occurred in a different position from the "slippery area" mentioned by Mr Mason, the "fatty substance" about the size of a twenty cent coin mentioned by the plaintiff and the location of the "balled up bits of floury fat and stuff" adverted to by Mr Mallows is cogent, as is their evidence that there was nothing observable on the floor when they first inspected it after the fall.  They had an obligation to make a prompt, thorough inspection and nothing to lose by acknowledging the presence of some foreign substance which might have accounted for the mishap.  On any view of the evidence, such a substance, if present, was not glaringly obvious.  While it may expose the defendant company to the risk of litigation, there is no reason to suppose that either of those employees would be held personally responsible by the company for its presence and non-removal.  After a lapse of 6½ years, the fact that Mrs Shepherd does not recall details of the conversation occurring at the scene of the incident is not surprising.  In substance, I accept the evidence of the defendant's employees as to the location of the fall and of their failure to find any slippery material on the floor.  I am unable to find on the balance of probabilities that the plaintiff's fall was caused by the presence of some slippery material on the floor as alleged in the statement of claim.

However, should I be wrong in such a conclusion, I am, nonetheless, of the view that the plaintiff has failed to establish either negligence on the part of the defendant or causation of her injuries thereby.

The question I have to determine is whether, in all the circumstances, including the fact that the defendant is the occupier of the premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the respondent; and if so, whether that duty was breached (Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479). In a slipping case, a number of sub-questions may need to be addressed, as Williams J recognised in Griffin v Coles Myer Ltd (1991) Aust Torts Reports 81-109. At 69,000, he posed them as follows:

"Firstly, does the evidence establish a foreseeable risk of injury from slipping on foreign matter on the floor in the general area where the incident occurred?  Secondly, what precautions were called for in order to meet that risk?  And thirdly, was the fall in question caused by the occupier's failure to take adequate precautions given the foreseeable risk?"

In relation to the first question, I think the answer is in the affirmative.  If foreign matter of a slippery kind was allowed to be present on the path taken from the supermarket by visitors to the company's offices at the head of the stairs, it was foreseeable that injury could be caused thereby.  It was also foreseeable that such foreign matter could be deposited somewhere along that path.  Those coming from the store might bring on their footwear substances such as food or liquid spilled in the supermarket itself and deposit some of it in the passage, which would prove hazardous to later entrants.  The proximity of the bakery with its ingredients of butter, margarine and flour created a foreseeable risk that some such combination might also be deposited by bakery staff dispatched to the storeroom.  That does not make it probable that such a substance was left on the floor.  "A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone [1951] AC 850, may nevertheless be plainly foreseeable", per Mason J in Wyong Shire Council v Shirt (1979 - 1980) 146 CLR 40 at 47.

The second question involves a consideration of the particulars of negligence alleged in the statement of claim, for these state the precautions the plaintiff contends were necessary but not undertaken.  They are as follows:

"(a)Dropping slippery material (possibly margarine, butter, fat and/or flour) on to the floor of a passageway travelled by pedestrians.

(b)Failing to remove that slippery material from the floor.

(c)Failing to warn the plaintiff of the presence of the slippery material on the floor, or that the floor was slippery.

(d)Failing to instruct staff not to drop slippery material on to the floor, and/or to clean up any slippery material dropped on to the floor.

(e)Failing to maintain an adequate system for obviating the risk of persons slipping and falling on the floors of its premises, in that the defendant failed to require regular inspections of the floors, and failed to require any staff member to take personal responsibility for the cleanliness and safety of the area of floor where the plaintiff fell."

As to (a), there is no evidence that any servant or agent of the defendant dropped or deposited this material where the plaintiff alleges it was.  While the possibility existed that the bakery staff could have done so, only dry ingredients such as flour were kept in the storage area and the butter and margarine were kept in a coolroom within the bakery complex.  If the bakery floor itself was not kept clean (as to which there was no evidence), the potential existed for staff to tread in such material and for it to be detached from their shoes if they did leave the bakery via the washroom, in the same way as the breadcrumbs were detached from the manager's feet when he went for further supplies of flour.  The passageway was not accessible to the general public, but it was used by travellers and representatives dealing with management and these would have entered from the supermarket, as would applicants for jobs, such as the plaintiff.  The store staff generally were only permitted to use it on Wednesday afternoons for the purpose of collecting their pay; otherwise it was used by members of the office staff on a fairly limited basis.  I feel unable to make a finding that any servant or agent of the defendant dropped the material, if indeed it was present as alleged.  To do so would be a matter of speculation, in my opinion.

The failure to remove it, as alleged in particular (b), and failure to warn the plaintiff, as alleged in particular (c), could only be precautions which were called for in the circumstances if the defendant's servants or agents were aware of its existence, or ought to have been aware of it.  There is no evidence that any of them was aware of its presence.  Mrs Kelly had passed over that area on her way to the service desk a short time before escorting the plaintiff towards the office.  There is no evidence that she knew of its presence and it is implicit in her testimony that she did not.  It appears that the ambulance officer detected it, not by sight but by touch, when somebody else claimed to have located it.  Whether any of them ought to have known can be considered under particular (e).  As to particular (d), this has not been made out and is contradicted by ample evidence of instructions being given to the staff as to the necessity of not allowing floors to be soiled in this way and of promptly cleaning up any such substances.

Particular (e) claims that there was a failure to take the precaution of conducting regular inspections and of requiring a particular staff member to take personal responsibility for the cleanliness and safety of the area in question.  The evidence was that the floor was cleaned daily prior to the commencement of business by professional cleaners throughout the working week, save on Mondays.  Such an activity involved an inspection of the floor and removal of foreign matter.  There is no reason to suppose that the floor was not inspected and cleaned that morning.  Some reduction in the risk of slipping was achieved by the installation of a non-slip surface along the passage two years prior to the accident.  A Manager's Procedures Manual issued to Mrs Shepherd laid down the defendant company's safety objectives to ensure that all work and shopping surfaces be kept clean, dry and free of refuse at all times and that all clean-up equipment be in good condition and on hand at all times.  Every day the manager, or her assistant, was required to conduct checks on selected sections of the store set out on check list cards for the morning and afternoon of each working day.  Cleanliness is a clear requirement.  Mrs Shepherd gave evidence of her own insistence on cleanliness in both storeroom and shop and of her emphasis to members of staff that any spillage should be immediately cleaned up.  She said she took a particular interest in the passageway in question leading to the stairs to her office.  It may be that her evidence in this respect was a little self-laudatory, but I accept that she was conscientious in her duties.

New staff members were given a memorandum for reading and signature.  The first two rules in the memorandum were expressed thus:

"1DON'T PASS IT UP!    PICK IT UP!

Floors must be kept clean and dry.  Pick up any foreign material on the floor (paper, nails, wire, string, cardboard, produce or other scraps, etc).

2When you spot broken merchandise or liquids on the floor take immediate action.  One person stands where merchandise was broken or spilled while another gets cleaning materials.  Remain until floor is perfectly clean, dry and safe.  If unable to guard it, then be sure the area is closed off to staff and customer traffic."

Rule 11 was "Keep stairways and passageways clean and unobstructed."  Training videos giving instructions about cleanliness, among other things, were shown to new staff.  Mrs Kelly likewise had inspection duties and was required to fill out a Hazard Check List covering virtually all aspects of the stores' activities.  Floors and aisles were required to be checked as free of spillages or slip hazards.  The Hazard Check List was required to be completed weekly by Mrs Kelly and handed to Mrs Shepherd. 

How frequent inspections of the floor ought to have been is a question of fact governed largely by the likely traffic and risk of spillages.  In the passageway in question, the volume of traffic and the risk of spillage was not such as to require the same sort of surveillance one might expect in an area such as the supermarket proper, where food and bottled products might be dropped by customers or their children or knocked from shelves.  There had never previously been a similar accident in the area of the plaintiff's fall.  In addition to the attention it received each morning from the cleaners, the manager and her staff passed over it from time to time and I accept that she, at least, closely scrutinised it when she did so.

In Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241, McHugh JA said at 254:

"The number of people who use the premises, the frequency with which spillages occur, the gravity of the danger, and the area to be supervised are also relevant circumstances in determining what standard of care is reasonably required to avoid risk of injury."

Given the relatively small number of people passing over the area in question, the absence of any evidence of other spillages, the fact that no similar accidents had previously occurred and the reduction of the risk of slipping by the installation of a non-slip surface, I am of the view that the precautions taken were not less than those reasonably required in the circumstances.  As Mrs Shepherd took a particular interest in the area, no formal delegation of responsibility therefor to a particular person was called for as alleged in particular (e), but in any event, would not have been required.

However, even assuming, contrary to the above, that it is necessary to proceed to the third question posed by Williams J in Griffin v Coles Myer Ltd (supra), I am not persuaded that any short comings in the precautions in fact taken by the defendant were causative of the plaintiff's fall.  In Kocis v S E Dickens Pty Ltd (t/as Coles New World Supermarket) (1996) Aust Torts Reports
81-382, a decision of the Victorian Court of Appeal, Hayne JA said at 63,314:

"Of course this is not to deny that the questions of causation in a slipping case will often be very difficult.  Much may turn upon the content of the standard of care and what the evidence reveals about what was done.  Thus, where, as here, the premises are of a kind where spillages are commonplace, how often should the occupier inspect the floor?  If it is decided that inspections at the defendant's premises should have been very frequent (as Priestley, JA held in Brady's Case (supra)) it may be easier to conclude that it is more probable than not that had such precautions been taken, the accident would not have occurred.  If it is decided (as is implicit in Dulhunty's Case (infra)) that frequent inspection of the defendant's premises was not necessary, the proof of causation may well be more difficult."

Dulhunty v J B Young Ltd (1975) 50 ALJR 160 was a case where the plaintiff had slipped on a grape in a passageway in the defendant's store, a store which did not sell food. Even had more frequent and closer inspections of the small area in question here been a reasonably required precaution, I am unable to be satisfied on the balance of probabilities, having regard, in particular, to the difficulty in observing the spillage the plaintiff claims existed here, that had reasonable care been taken, the substance upon which she allegedly slipped would have been detected and removed.

For all these reasons, I am unable to conclude that the plaintiff has established a case against the defendant and judgment must accordingly be entered for it.