Mikros v the Greek Orthodox Aged and Community of Burwood and District St Nectarios Ltd

[2004] NSWCA 384

NEW SOUTH WALES COURT OF APPEAL

CITATION:    Mikros v. The Greek Orthodox Aged and Community of Burwood and District St Nectarios Ltd. [2004]  NSWCA 384

FILE NUMBER(S):
40989/03

HEARING DATE(S):             19 October 2004

JUDGMENT DATE:               19/10/2004

PARTIES:
Penny Mikros - appellant
The Greek Orthodox Aged and Community of Burwood and District St Nectarios Limited - respondent

JUDGMENT OF:      Beazley JA Hodgson JA Tobias JA   

LOWER COURT JURISDICTION:             District Court

LOWER COURT FILE NUMBER(S):        DC7304/01

LOWER COURT JUDICIAL OFFICER:   Balla DCJ

COUNSEL:
Miss S. Norton SC with J. Thornton for appellant
Mr. K. Rewell SC with M.A. Cleary for respondent

SOLICITORS:
Bryden's Law Office, Liverpool for appellant
Keddies, Sydney for respondent

CATCHWORDS:
TORT - Negligence - Slip on floor in hall - Claim against occupier fails - Whether error by trial judge

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA40989/03
DC  7304/01

BEAZLEY JA
HODGSON JA
TOBIAS JA

Tuesday 19 October 2004

MIKROS V. GREEK ORTHODOX AGED & COMMUNITY OF BURWOOD & DISTRICT ST NECTARIOS LTD.

Judgment

1. HODGSON JA:  On 10 October 2003, Balla DCJ gave judgment for the respondent in proceedings in which the appellant had sought damages for negligence against it and ordered the appellant to pay the respondent’s costs. The appellant appeals from that decision.

2. The appellant’s claim arose from an injury to her back, which she sustained when she fell in a hall occupied by the respondent.

3. The appellant was born in 1962 in Cyprus and was thirty-six years old at the time of the accident on 28 November 1998. At that time, she attended a christening at the Greek Orthodox Church at Burwood. A reception followed in the adjoining hall, which was attended by over one hundred and fifty guests. The reception hall was set up with tables and chairs on a carpet, and there was a parquetry area near the entrance and a parquetry area in the dance hall.

4. The music commenced about eight o’clock and continued until about midnight. The appellant joined the dancing at some stage of the evening, and after dancing for some time she ceased dancing and began to walk towards her table. She slipped and fell on to her left elbow and hip.

5. Evidence was led on behalf of the appellant of prior falls and near falls on the night.

6. The appellant gave evidence that she had seen her aunt Aphrodite fall while dancing.

7. Ms Nicholas gave evidence that she slipped but did not fall on arrival at the function, and that this was reported to bar staff. She said the floor was slippery. She also gave evidence that she fell later in the evening when dancing with Ms Tsangaris.

8. Ms Tsangaris gave evidence that, compared to other floors she had seen, the respondent’s floor had a high shine, and she also gave evidence of her fall with Ms Nicholas.

9. The mother of the child being christened gave evidence that the floor was quite slippery, very polished and very shiny.

10. There was also in evidence a video of the evening, which showed, among other things, dancing taking place over a period of time, and which showed Ms Nicholas and Ms Tsangaris dancing shortly before their fall.

11. Evidence was given by Mrs Giannopoulos on behalf of the respondent. Her evidence was that there were no records of prior falls. She said the floor was maintained and cleaned by a Mr Kekatos, and that about every two years it was resurfaced and repolished. She also gave evidence that Mr Kekatos applied a special chemical to the floor to stop it being slippery. However, Mr Kekatos was not called in evidence because he was said to be in hospital, although no medical report was produced to support this statement. It appears also that there was a subpoena issued to produce documents concerning the maintenance of the floor, and no such documents were produced.

12. The primary judge gave the following reasons at the end of her judgment in support of her decision in favour of the respondent:

    I accept the evidence of the plaintiff as to the circumstances of her injury as she was an impressive witness who was clearly doing her best to recall the circumstances surrounding her fall. I also accept the evidence of Ms Nicholas and Ms Tsangaris as to their recollection of their falls. I also accept that Aphrodite slipped as described by the witnesses.

    The issue is whether this evidence establishes that the dance floor was slippery and dangerous on the evening of the plaintiff's fall.

    Ms Nicholas was not on the dance floor when she slipped on the first occasion shortly after arriving. I am not persuaded that this is relevant to the state of the dance floor.

    It is unclear whether Aphrodite slipped as a consequence of the condition of the floor or by reason of a foreign substance or some other reason.

    I agree with the submission made by counsel for the defendant that the video shows Ms Nicholas and Ms Tsangaris attempting a pirouette manoeuvre which involved twisting turning and wiggling of the hips while attempting to turn backwards with their arms extended above their heads and holding hands. They both conceded that they were engaged in such a manoeuvre when they fell. I am satisfied both from the oral evidence and the video evidence of the evening that Ms Nicholas and Ms Tsangaris were dancing, at the time that they fell, in a manner which could have caused them to fall regardless of the floor surface.

    On the other hand, many guests danced for lengthy periods all over the dance floor without slipping. This is confirmed both by the oral evidence and the video evidence.

    A number of the witnesses described the floor as very shiny. I do not however conclude that this means that the floor was necessarily slippery.

    A number of the witnesses did describe the floor as slippery. In relation to this evidence there are two matters, which I take into account. Firstly, as a matter of commonsense, a timber dance floor is designed to enable dancers to move appropriately while dancing. This was conceded by the plaintiff. The issue is whether the floor was unnecessarily and unreasonably slippery. Secondly, I was not assisted with any expert evidence as to the condition of the dance floor. I do not find these descriptions of the floor determinative of any issue in dispute.

    I also take into account the evidence of Ms Giannopoulos as to the history of regular use of the dance floor both before and after the date of accident without incident.

    Counsel for the plaintiff urged me to draw an inference against the defendant by reason of the failure of its employee, Mr Kekatos to give evidence. He urged me to find that his absence was unexplained. I accept however, the evidence of Ms Giannopoulos who advised that Mr Kekatos was ill and in hospital. I decline to draw any such inference. I accept that the defendant had not place a system to maintain the floor surface.

    Counsel for the plaintiff invited me to find the defendant negligent after having failed to act on a complaint made by Ms Nicholas after slipping on entering the hall. I do not find this submission to be of any assistance in circumstances where this incident did not occur on the dance floor.

    I am not persuaded that the evidence establishes that the dance floor was slippery and/or dangerous so that a reasonable man in the defendant's position would have foreseen that its conduct involved a risk of injury to the plaintiff. The plaintiff accordingly has not established a breach of duty of care on the part of the defendant.

13. The appellant relies on the following grounds of appeal:

    1.The Trial Judge erred in having found, despite accepting the evidence of the Plaintiff, Ms Nicholas and Ms Tsangaris, that the dance floor was not slippery.

    2.The Trial Judge erred in finding that the dance manoeuvre in which Ms Tsangaris and Ms Nicholas were engaged in at the time of their fall could have caused them to fall regardless of the floor surface when there was no evidence of same.

    3.The Trial Judge erred in failing to draw an inference as against the Respondent due to the failure to call Mr Kekatos.

    4.The Trial Judge erred in failing to find that the dance floor was unnecessarily and unreasonably slippery after having accepted the evidence of the Plaintiff, Ms Tsangaris and Ms Nicholas.

    5.The Trial Judge erred in taking into account the evidence of Ms Giannopoulos as to the history of regular use of the dance floor both before and after the date of the accident without incident as being determinative of any issue between the parties.

    6.The Trial Judge erred in failing to find negligence on the part of the Respondent after having accepted the evidence of Ms. Nicholas that a complaint had been made concerning the slippery nature of the dance floor on entering the Respondent's premises despite evidence that the point at which Ms Nicholas slipped comprised the same type of floor as the dance floor where the Appellant's accident occurred.

    7.The Trial Judge erred in failing to find negligence on the part of the Defendants having accepted that the Defendant did not have in place a system to maintain the floor surface and having accepted the evidence of the Plaintiff, Ms Nicholas and Ms Tangaris that the floor surface was slippery.

    8.The Trial Judge's findings were against the evidence and the weight of the evidence.

14. In relation to the first ground, it was submitted that in the light of evidence accepted by the primary judge, a finding that the floor was not slippery was against the evidence.

15. In my opinion the primary judge did not find the floor was not slippery, but rather that it was not “slippery and dangerous” and not “unnecessarily unreasonably slippery”. The question whether the judge erred in failing to make those findings, I will return to when dealing with other grounds of appeal.

16. In relation to the second ground of appeal, it was submitted that it was put to Ms Nicholas that the manoeuvre, which she was engaged in with Ms Tsangaris, could have caused her fall regardless of the floor surface, and this was denied by her. This particular proposition was not put to Ms Tsangaris, who said Ms Nicholas fell first and that she slipped after her. It was submitted that the primary judge accepted their recollection of the fall, so it was not open to her to accept the inference that she did, that the manoeuvre could have caused the fall regardless of the floor surface.

17. In my opinion, the primary judge having seen the video of their dancing just before the fall could properly have drawn the inference that she did. Her acceptance of the recollection of the witnesses as to their fall does not, in my opinion, necessarily mean acceptance of their belief as to the precise mechanism of causation of their fall; and, in my opinion, it was open to the judge to conclude, as she did, that that manoeuvre could have caused the fall regardless of the floor surface.

18. Dealing with grounds three and seven, it was submitted that there was no medical evidence to support the statement of Ms Giannopoulos that Mr Kekatos was ill in hospital, and that despite subpoenas no documents were produced to reveal what substance was placed on the floor or how regularly this was done. In those circumstances, it was submitted a Jones v Dunkel inference should have been drawn against the respondent.

19. In my opinion, a witness can say that a person is ill in hospital, although this cannot support a finding as to the actual nature of the illness. Whether such evidence would be considered sufficient to explain the absence of a witness will depend on circumstances, including the importance of the evidence and the reasonableness of allowing the matter to proceed without seeking an adjournment. In my opinion, it was open to the primary judge to conclude that it was sufficient explanation in the circumstances of this case. The practice as to cleaning and polishing floors is not one which suggests a high probability of useful records being kept, and I do not think the absence of records would be a basis of an adverse inference against the respondent.

20. In so far as reliance is placed on the word “not” that appears in the judgment, in the last sentence of the third last paragraph, in my opinion in its context it is clear that that is a typographical error for the word “in”.

21. Turning to ground 5, it was submitted that because no incident book was kept by the respondent, and because Mrs Giannopoulos was not even aware of the appellant’s fall, her evidence of regular use of the dance floor without incident should not have been given weight by the primary judge. In my opinion, it was open to the primary judge to give some weight to this evidence, and I am not satisfied that the primary judge gave it unreasonable weight.

22. Turning to ground six, Ms Nicholas gave evidence that she slipped on the parquetry floor near the entrance and that this was no different from the surface of the dance floor. It was submitted that the primary judge erred in saying that this evidence was of no assistance. All Ms Nicholas was doing at the time of this fall was walking, and this incident supported an inference that the floor was unreasonably slippery, and her evidence that the floor here was no different from the dance floor meant that it could not be disregarded.

23. In my opinion, it was open to the primary judge to take the view that the evidence that the condition of the surface where Ms Nicholas slipped was precisely the same as that of the dance floor, and in particular where the appellant slipped, was insufficient to make this of substantial relevance.

24. I come finally to grounds 4 and 8, and the general submission made on behalf of the appellant that the decision of the primary judge, that the floor was not shown to be unreasonably slippery, was against the evidence and not properly supported by reasons. It was put that, in circumstances where there had been at least four falls or near falls on this particular occasion, and where all the appellant was doing when she suffered her injury was walking, the inference should have been drawn that the floor was unreasonably slippery.

25. Miss Norton SC for the appellant submitted that the primary judge did not deal with evidence given on behalf of the defendant of the methods used to prevent the floor being slippery, and the evidence that a chemical was used so as to ensure that it was not slippery. She submitted that the inference should have been drawn that it had not been correctly applied on this occasion, and that at least the parts of the floor where the slipping incidents occurred, and notably the part where the appellant slipped, must have been too slippery.

26. Miss Norton referred the court to the decision in Eggins v Brooms Head Bowling and Recreational Club Limited (1986) Australian Tort Reports 80-044. However, that was a case where the trial Judge had not let the matter go to a jury, where there had been some evidence that the floor was too slippery, and the matter was sent back for a new trial. I think it is fair to say that the evidence in the present case would have been such that had it been a jury case, the case should have been left to the jury as in Eggins. However, in my opinion, it cannot be said that the evidence was such that a verdict for the appellant was required by the evidence. In my opinion the decision of the primary judge was available, essentially for the reasons given by the primary judge.

27. In my opinion, no error has been shown in those reasons that would justify the intervention of this court.

28. So, for those reasons, in my opinion, the appeal should be dismissed with costs.

29. BEAZLEY J: I agree.

30. TOBIAS J: I also agree.

31. BEAZLEY J: The order of the court is as stated by Justice Hodgson.

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LAST UPDATED:     25/10/2004