Maynard v Airlite Cleaning Pty Ltd - [2011] WADC 32

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MAYNARD -v- AIRLITE CLEANING PTY LTD [2011] WADC 32

CORAM: EATON DCJ

HEARD: 21 - 22 FEBRUARY 2011

DELIVERED : 2 MARCH 2011

FILE NO/S: CIV 2502 of 2009

BETWEEN: DIANNE MARY MAYNARD
Plaintiff
AND
AIRLITE CLEANING PTY LTD
Defendant

Catchwords:

Torts - Negligence - Whether plaintiff has proved her case - Turns on own facts - Liability the only issue

Legislation:

Civil Liability Act 2002

Result:

Plaintiff's action dismissed

Representation:

Counsel:

Plaintiff: Mr K S Pratt
Defendant: Mr M L Greenland

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: Greenland Legal Pty Ltd

Case(s) referred to in judgment(s):

Nil

EATON DCJ: By writ of summons filed on 25 August 2009 the plaintiff sued the defendant seeking damages for negligence. The defendant, in due course, entered an appearance and filed a defence, the latter denying the claim in negligence. As the matter progressed the parties resolved the quantum of the plaintiff's damages. The issue of liability was the subject of a trial.
At the trial the plaintiff gave evidence and called her husband, William Parkin Maynard. The defendant called Marion Carol O'Neil and Jennifer Elizabeth Stoltze. The former was, at the material time, a mall patrol cleaner in the employ of the defendant and the latter was, at the time of giving evidence, an operations administrator for the defendant, having commenced in that role on 16 December 2008.
The issue, as defined by the pleadings as to the question of liability, arose out of an injury suffered by the plaintiff on 7 February 2007 as she and her husband walked through the Warwick Grove Shopping Centre at Beach Road, Warwick. She suffered the injury having slipped in a pool of water. She pleaded that the defendant, at all material times, owed a duty of care to her to prevent, as far as was practicable, the foreseeable risk of injury or harm to her and others who were lawfully proceeding through the shopping centre. She alleged that the defendant had breached its duty of care and that it had done so by failing to display a sign warning of the presence of water on the floor, failing to warn her to proceed through the premises with caution, exposing her to a risk of injury or harm of which it knew or ought to have known, failing to clean and/or remove the water from the floor and allowing it to be on and remain on the floor and to become a danger and a trap to her and others.
By its defence the defendant denied that it owed a duty of care to the plaintiff as alleged and that it was negligent as alleged. The defendant pleaded that its employee had inspected the area where the fall occurred 2 or 3 minutes before the fall and that, at the time of inspection, there was no water on the floor. The defendant pleaded that the plaintiff's fall was caused or contributed to by her own negligence in that she had failed to keep a proper lookout and that she stepped in the pool of water instead of walking around or over it. The defendant denied the relief claimed by the plaintiff.
At the close of the evidence counsel for the defendant conceded that the defendant did have a duty to deal with spills such as water on the floor of the shopping centre and to take reasonable care to warn the plaintiff as to hazards of which it was aware.
The plaintiff and her husband visited the Warwick Grove Shopping Centre on the afternoon of 7 February 2007 for the purpose of collecting a pair of glasses for him from OPSM, opticians. It was their habit, when attending a shopping centre, to enjoy an ice‑cream and so, having collected the glasses, the two walked from the OPSM store towards the food hall at the western end of the centre. There they purchased ice‑creams and sat and ate them. Having done so, they retraced their steps, walking back along the central corridor running east/west through the centre.
The OPSM shop was one of a group of shops opposite a moving walkway known as a travelator, providing patrons with access from that level to the mezzanine level above. The travelator, running west to east, was in the centre of the central corridor such that patrons in that corridor could pass it on either side. The shops on the northern side of the travelator from west to east were, at the time, Trax, EB Games, Shane's Mensland, OPSM and Skirtz.
When the plaintiff and her husband left OPSM they walked on the northern side of the travelator past Shane's Mensland towards the west entrance and, having eaten their ice‑creams, returned following the same path in an easterly direction.
The plaintiff and her husband were side‑by‑side, on the left and right, respectively. They were making their way towards the underground car park. To do so one would walk past the travelator and turn right.
In evidence‑in‑chief the plaintiff described walking between the travelator and the shops to the north. She said:
We were just talking. And the next thing I was on the ground. I had my leg twisted under me. I was facing the wall of the travelator at the time. Bill had taken a couple of steps because he had not realised that I had actually fallen over. He turned around, rushed back. There was a lady helping me, to see if I was okay.
The lady who rendered assistance was, it seems, a shopper who stayed only for a few minutes and then left.
William Parkin Maynard said that they were walking, looking straight ahead with his wife on his left hand side. He said:
Well, we were walking along just talking, just looking - just looking straight ahead and talking, and all of a sudden I looked to my left. Dianne wasn't there and I - I was probably taking at least one or two steps before I realised. And I turned around and she is just sitting on the floor with her leg, her right leg twisted back underneath her and just yelling out. She was in a lot of pain. I - I would - I walked back towards her, turned to my - my left and went back towards her to see if she was okay and she said, 'No. No, I can't get up'. And her - her kneecap actually came out and she banged it back in and we were probably sitting there for, just guessing, but around about 10 minutes. But in the meantime, straight after it happened I remember this voice coming from behind us saying 'I've just come to - it was the cleaner …'
In her statement of claim the plaintiff pleaded that she had slipped in a pool of water measuring approximately 5 to 6 metres and fell to the floor. Indeed, about one week after her injury her solicitors wrote to the shopping centre manager referring to a pool of water of some 5 to 6 metres length.
There was water on the floor. The plaintiff did slip in it. She clearly did not see it as she made her way along the corridor. Neither did her husband. She was aware of its presence, having fallen because, shortly after the fall she was aware that she was actually sitting in water and that her pants and legs were wet.
When asked in cross‑examination as to the dimensions of the water she said that it was at least 1 metre long and a metre wide. She thought that it was not longer than a metre and a half but did mention that she was not reliable when it came to estimating distances. She agreed that an estimate of 5 metres or 6 metres was an exaggeration.
The plaintiff said, in evidence‑in‑chief, that as she sat on the floor facing the travelator she saw a cleaner coming towards her with her cleaner's trolley which she described as having a bucket on the front, broomstick and a bin at the back. She was, she said, at the time, in a lot of pain. The plaintiff's evidence was that the cleaner said something like 'Oh my god' or 'on no. I'd just come to mop that up again. Kids have been squirting water over the travelator all afternoon'. The plaintiff said that the cleaner called somebody. A security officer arrived and took her details while she was still sitting on the floor. A chair was later provided. She sat on it for a while. She was offered a wheelchair but declined. Once she had recovered to a degree and felt more comfortable she, with the assistance of her husband, made her way to the car park. From there they drove to a doctor's surgery in Princess Road in Balga.
William Parkin Maynard said that immediately after the fall he heard a voice coming from behind. It was the cleaner who said:
I've just - I've just to come to clean this up. I've been cleaning up all afternoon. The kids have been, like, spraying water all afternoon.
When asked by counsel for the plaintiff as to the interval between his wife's fall and the arrival of the cleaner he replied:
Well, she had fallen. I'd probably taken two steps forward, went back. I am only guessing but roughly 10 seconds, maybe 15. I thought she was - I never actually seen her walk up, but I just thought because she came - she was there so soon, I just thought to myself she - she could have even seen her fall, but I can't - I don't know that for sure because I had my back to her, see.
He suggested that a lady enquired as to the plaintiff's welfare and that he reassured that person that she would be okay and that they were waiting for a chair. When asked whether anyone else came to them he said:
Not that I can recall. It was just a cleaner - this woman first and then the security guard roughly 10 minutes after that, you know. There may have been other people just stopped to say if we're okay but I just said 'yeah, we're okay. We're waiting for a chair', you know. But I was just more concerned about Dianne, about her leg. She - she did seem in a lot of pain, you know, the way she twisted it and when she sat on it, like.
The tenor of the evidence from the plaintiff and her husband was that the cleaner arrived from the west, in other words, that she arrived travelling in the same direction as they were.
There can be no doubt that the cleaner who approached the plaintiff and her husband was Marion Carol O'Neil. She was, at the time, employed by the defendant as a mall patrol cleaner and worked in that capacity from November 2006 to November 2008. For the purposes of the defendant's organisation at that shopping centre it was divided into two zones, one called the red zone and the other the blue zone. The red zone was predominantly the eastern portion of the centre and the blue zone was predominantly the western portion. Ms O'Neil worked in the blue zone.
On the day in question she began work at 1.00 pm. Her job entailed circulating on a pre‑determined route within that zone with her trolley. The trolley was equipped with a rubbish bag on a frame, a bucket, a mop, a dustpan, two yellow signs with the word 'caution' and a digital clock. She was, as part of her duties, required to carry a folder with a non‑compliance sheet.
The route to be followed by her commenced at the western entry of the central corridor, travelling in an easterly direction past the travelator on its northern side to a point at the OPSM shop and from there around the lotto kiosk down a corridor to the southern entry and then back, turning left again into the central east‑west corridor this time passing the travelator on the southern side and returning to the western entry. Her task was to complete that circuit within 15 minutes. She was equipped with an electronic wand. There were two points at which the wand was to be passed over a sensor recording the time at that point, the first being at the western entry and the second being at the OPSM store. What was required of Ms O'Neil was that she complete the circuit every 15 minutes and that, in the event of a failure to do so or 'non‑compliance', she was to make an entry in the non‑compliance sheet explaining why the circuit was not completed within the specified time.
On the day in question Marion O'Neil completed a 'mall patrol non‑compliance record'. There were three entries during her shift. The first dealt with the period from 2.45 pm to 2.47 pm when she was 'waiting for security @ travelator - sideboard kicked loose'. She recorded that from 3.37 pm to 3.49 pm she attended 'slip and fall, mopping and drying spill @ bottom of travelator to ATM by EB Games'. From 4.21 pm to 4.23 pm she recorded 'coke spill @ chairs by Gloria Jean'.
Ms O'Neil said that her job was to pick up things from the floor and to deal with any spills or liquid on the floor so that patrons would not trip or fall. At about 3.30 pm on the day in question there were a lot of children coming from the nearby high school. They were noisy and in high spirits. Her evidence was that, at about that time, she engaged the sensor with her wand at the OPSM store. The printout of data from the defendant's system (exhibit 6) suggests that she did so at 3.35 pm. She said that she had passed along the corridor between the travelator and the shops to the north before arriving at the OPSM sensor. When asked if she had noticed anything on the floor as she did so she replied:
No. It was clean. There was nothing on the floor. And I went to the ATMs and cleaned up some rubbish that - drink cups had been left on top of ATMs and things like that. And I took those and put them in the rubbish and then went and zapped - sorry, that's our term and I can't think of anything else to call it.
By that, she meant that she had engaged the sensor with her wand. Having attended to some cleaning outside the Skirtz store she said that she looked to the right and saw what she thought might have been water on the floor near the ATMs. She walked in that direction with her trolley, heard some noises, looked up and saw a lady being helped to her feet. She then saw a line of water to the north of the travelator. As she approached the area she saw a drip coming from the mezzanine floor above. When she saw the lady in difficulty she went to her, walking west in order to do so. She was on the floor adjacent to the dividing wall between the EB Games and Trax shop at the bottom of the travelator. Ms O'Neil said that she left her trolley half way along the spill and deployed the signs at either end to warn shoppers. She then spoke to the lady and asked if she was alright and immediately after called security. She did not begin mopping the spill because, in accordance with her duties, she was obliged to wait until the arrival of security. While waiting there she heard laughter and looked up. There were a group of school children, mainly boys, all laughing. They ran off.
According to her recollection her supervisor, Robin Dyer, arrived at the scene before the security officer. Robin Dyer talked to the plaintiff and told Marion O'Neil to clean up the spill as soon as the security officer arrived. The plaintiff had no recollection of the conversation with the supervisor or her attendance.
According to exhibit 6 Ms O'Neil had passed her wand over the OPSM sensor some 27 minutes before, suggesting that she had taken longer than the allocated 15 minutes to complete her circuit. She could not remember why there was, on that day, a 27 minute interval. In cross‑examination she was asked whether she had been, during that period occupied, dealing with children using water pistols and bombs around the place. She said that she was not. She said that from time to time the sensor/wand connection failed. Indeed, the obligation of the employee was to pass the wand over the sensor twice to ensure that a record is made. The printout (exhibit 6) indicates that on most occasions at the OPSM sensor Ms O'Neil did successfully pass the wand over the sensor twice. There were three occasions, according to the record, when, during that shift, she did so only once.
In cross‑examination Ms O'Neil denied that she had said to the plaintiff words to the effect that she was coming back to clean up water left there as a result of school children using water pistols to squirt from the travelator as they had been doing throughout the afternoon. She said that, if that had occurred, she would have noted the event in the non‑compliance record. There is no such notation on the day.
Ms O'Neil completed, at the conclusion of her shift at about 6.00 pm a document provided by her employer, the defendant, being an incident report form (exhibit 5). In that document she reported an incident beside the travelator at EB Games at 3.36 pm. She became aware of the incident when she saw the plaintiff getting up as she arrived on the scene at 3.37 pm. The area had been last serviced, she said, at 3.33 pm. She noted of the plaintiff 'she said she had slipped in the water, her husband also said the same'. Under the heading 'spill' she said that there was a visible spill when she arrived, that it was water and added 'school children had been dropping water bombs'. She said that the latter information had been provided to her later by another.
The contention of the plaintiff and her husband was that Ms O'Neil arrived on the scene of the accident from the west travelling in an easterly direction, the implication being that she had not passed by the Trax and EB Games shops prior to the plaintiff's fall. I find that she had done and that she passed her wand over the sensor at the OPSM store at 3.35 pm at about the time of or very shortly prior to the plaintiff's fall. Ms O'Neil became aware, no doubt because of the plaintiff's cries of pain, that a patron had fallen. She retraced her steps with her trolley to the place of the fall. I accept Ms O'Neil's evidence that, at about that time, she saw water on the floor which had not been there when she past along the corridor between the travelator and the shops to the north several minutes before. Her job was to observe the floor and, in particular, to deal with rubbish and spills, the latter, in particular, out of regard for the safety of shopping centre patrons. There was undoubtedly water on the floor when the plaintiff and her husband arrived and at the time of the plaintiff's fall. A covering of water on a polished terrazzo floor would not necessarily be readily apparent to the plaintiff and her husband as they strolled from the ice‑cream parlour towards the car park.
The plaintiff's claim against the defendant is predicated on the proposition that Ms O'Neil, the defendant's representative at the scene, either was aware or should have been aware of the presence of water on the floor and that she failed to warn the plaintiff of its presence and the risk of injury or harm. That contention is founded upon the words attributed to Ms O'Neil to the effect that she was returning to mop up the spill again and that kids had been squirting water over the travelator all afternoon. The words attributed to her by Mr Maynard were slightly different in that he said that Ms O'Neil walked straight up to them and said:
I have just - have just come to clean this up. I've been cleaning up all afternoon. The kids have been like spraying water all afternoon.
The record of Ms O'Neil's circulations from the beginning of her shift at 1.00 pm on 7 February 2007 suggests that she passed by the OPSM sensor approximately every 15 minutes until the interval of 27 minutes between her doing so at 3.07 pm and again at 3.35 pm. The only non‑compliance notation made by her prior to that period refers to a period of some 2 minutes between 2.45 pm and 2.47 pm when she was waiting for security at the travelator because a sideboard had been kicked loose. I accept her evidence that her circulation up to the point of the plaintiff's injury was without incident apart from that 2 minute wait recorded in her non‑compliance record. I do not infer, as was suggested by counsel for the plaintiff, that some event occurred in the 27 minute interval that involved school children and water such that Ms O'Neil was aware of the spill but had failed to clean it up and later returned to do so. The implication behind the words attributed to Ms O'Neil by the plaintiff is that, immediately following her fall, Ms O'Neil arrived to 'mop that up again'. That may imply that that she had mopped up an earlier spill and moved on leaving no hazard or risk for the patrons. I accept Ms O'Neil's evidence that she had not done so. I accept her evidence that when she passed by only minutes before, to her observation, there had been no spill. It follows, by inference, that the spill encountered by the plaintiff was created subsequent to Ms O'Neil passing through the area and only moments before the arrival of the plaintiff and her husband. Its presence was not known either to Ms O'Neil or the plaintiff. In the absence of knowledge, the pleading that the defendant was negligent in failing to display a warning sign must fail. Equally, the pleading that the defendant failed to warn the plaintiff must also fail, as must the pleading that the defendant exposed the plaintiff to a risk of which it knew or ought to have known and that it failed to clean or otherwise remove the risk.

Having regard to the general principles outlined in s 5B of the Civil Liability Act 2002 the defendant was aware of a foreseeable risk, that being that there might be, in the shopping centre in the main pedestrian areas, a spillage giving rise to a risk of harm. That risk, in general terms is foreseeable and not insignificant. The defendant employed a mall cleaner circulating in the relevant area every 15 minutes to deal with such eventualities. There is no complaint by the plaintiff that the defendant did not, in general terms, take precautions against the risk of harm caused by spillage on the shopping centre floors. Clearly it did. The claim in this case is based upon the proposition that the particular cleaner, Ms O'Neil, either knew or ought to have known of that particular danger, namely the spillage of water encountered by the plaintiff. In this particular case, having regard to the evidence generally, I am not satisfied on the balance of probabilities that Ms O'Neil knew or could have known of the spillage encountered by the plaintiff. I am satisfied that when she passed by the area in which the spillage was encountered moments before, it was not present. The accounts given of the words attributed to Ms O'Neil by the plaintiff and her husband vary in detail. The encounter between Ms O'Neil, the plaintiff and her husband occurred at a time when the plaintiff was in a good deal of pain and distress and when her husband would also have been distressed and concerned for her. Their recollection of other aspects such as the dimensions of the spill and the presence of others varies as one might expect. I do not accept that either the plaintiff or her husband now have any precise recollection of the words used by Ms O'Neil in her encounter with them. I do not question their honesty in that regard. I do infer that their recollections, particularly as to the words used by Ms O'Neil at the time, are likely to be affected by the distress, pain and embarrassment attendant upon the actual event and their subsequent discussions as to what occurred and as to what was said at the time. All matters considered, in my view, the plaintiff's case must fail.