Ragnelli v David Jones (Adelaide) Pty Limited & Anor No. DCCIV-00-124

RAGNELLI v DAVID JONES (ADELAIDE) PTY LIMITED & ANOR
[2004] SADC 5
Judge Bright
Civil

On Saturday 20 September 1997, at around 12.15 p.m., the plaintiff fell on a flight of stairs at shop premises owned by the first defendant (David Jones). She suffered quite serious injury. The quantum of her claim has been agreed in the sum of $224,818.95. She was then 31 and had no prior disability relevant to her fall. She entered the store from Rundle Mall. Immediately ahead of her was a staircase descending to the lower ground floor. It began with a straight flight of about 20 steps. Then there was a landing. Flights of about six steps branched from each side of the landing to complete the descent. The plaintiff fell from the top of the left hand (western) lower flight to the bottom of that flight. The lower flights were, on each side, at an angle a little more than a right angle to the upper flight. All stairs and the landing were constructed of a mottled grey marble, or similar stone. There is no claim that the method of construction, or the dimension or colour of steps or landing were dangerous or defective. At each side of the stairs was a sturdy brass banister rail. Between that rail and the stairs was a clear glass panel.
The claim is that, on the landing, close to the edge of the top step of the lower western flight, there was some clear, oily substance which caused the plaintiff to slip without warning.
All that the plaintiff knows is that, having reached the landing without any problem, she had her left hand on the banister as she turned left to descend the lower flight. She probably took one or two small steps as she turned left on the landing. She says she put her left foot down at the edge of the landing and had her right foot in the air on its way to the first step below the landing, when her left foot shot forward and into the air. She fell onto her buttocks and bumped and slid to the base of the stairs.
She was immediately in considerable pain, was shocked, weepy, and very upset. She could not understand how she had come to fall. A shop assistant helped her to her feet and sat her on a chair just north of the foot of the stairs. That assistant summoned Ms Donato, who was David Jones’ designated first aid officer at the time, as well as working on the shop floor. She arrived within a few minutes. She tried to comfort the plaintiff. She offered to take her to a more private place to see if she had injuries and, perhaps, to apply ice to any bruising. The plaintiff declined this help.
Earlier in the morning, the plaintiff had had a haircut in premises further to the east in Rundle Street. When that was finished, she rang her (then) boyfriend Gianni (he is now her husband) to see if he could meet her in Gawler Place, to drive her home. The plaintiff worked in Rundle Mall and often met her boyfriend there for that purpose. He was then near Gepps Cross, driving to the city and agreed to meet her in about half an hour.
The plaintiff wished to buy a card from the section of David Jones adjacent to the western flight of stairs in the lower ground floor. She walked to the store with that intention. She was familiar with the layout of the store and the stairs. Working nearby, she was a frequent customer.
She was wearing boots with high, but not very high, heels, which had a fairly broad base. They were fashion boots, but not of the “titter totter” sort. They were fairly new, but it is not established that their design, or the slipperiness of new soles played any part.
I return to the meeting between the plaintiff and Ms Donato. The plaintiff again telephoned Gianni and told him of her fall. She must have sounded upset. Gianni says he was then near the Children’s Hospital and was soon able to park (illegally) in a loading zone on the eastern end of Gawler Place, opposite David Jones. The plaintiff was not able to ascend the staircase. With Ms Donato, she went to lifts at the northern end of the store and, by that means, came to the ground floor not far from the eastern, or Gawler Place entrance to the store. There they met Gianni, who had just arrived.
Seeing his girlfriend in pain, he became upset and abrupt. He dashed off to look at the scene of the fall. The plaintiff sat on a lounge near the lift to wait. Ms Donato set off in pursuit of Gianni. Near the eastern entrance was another staircase down. Gianni and, a few moments later, Ms Donato used it to get to the lower ground floor. It appears that Gianni then took a route which brought him to the eastern branch of the stairs from the front entrance, while Ms Donato went to the western.
Ms Donato had asked the plaintiff where she fell. She understood the plaintiff to have indicated the first step down from the landing. She says that the plaintiff pointed to that area and that Ms Donato had stood on one step after another, asking whether that was the spot. There is dispute over whether the plaintiff stood up from her chair and gave precise directions, or whether she remained seated, giving only a general wave of her hand towards the site of the fall. I do not think that this dispute matters much. The plaintiff was very upset and may well not remember precise details. The situation may well have been ambiguous. In saying where one fell, after a slip, does one point to where one began to slip, or to where one landed? If the latter, does one land on one, or several stairs? If one points to where one fell, how accurately, in all the circumstances, does one do that?
I do not find that anything which Ms Donato says was indicated to her by the plaintiff causes me to doubt the plaintiff’s evidence that her slip began on the landing. I accept that Ms Donato understood it was on the first step down. Ms Donato examined that step and found nothing on it which might have caused a slip. She actually ran her hand over it.
So, when she saw Gianni examining the eastern flight of stairs, she called him over to the western, saying that the fall had occurred there. It seems that Gianni was still upset and abrupt. It may be hardly surprising if neither is entirely accurate in recalling words used. I accept that Ms Donato believed she was being helpful. I accept that Gianni thought she was not.
Of great importance, however, Gianni says that he examined the floor of the landing in the area indicated by Ms Donato – he had not yet had any detail from the plaintiff. Ms Donato thought he was looking in the wrong place and should have been looking a step lower. Gianni says he located a patch or smudge of a clear oily fluid at the edge of the landing, close to the left side. It was a bit larger than a match box, perhaps 60mm x 40mm. He wiped his hand through it. It was clear, but had some dust or dirt particles in it. He says he drew Ms Donato’s attention to it and tried to show her his hand – but she turned away. She is adamant that this did not happen.
He says he then located a few more round drops – about the size of a five cent piece, also on the left, but back towards the upper flight of stairs. He says he drew Ms Donato’s attention to them, but that she did not respond. She denies that. At that time, Gianni was a concrete worker and part time process server. He has since become a building site supervisor. He may have fancied himself as a bit of a detective. He certainly thought he had located the reason for the plaintiff’s fall.
He hurried back to the plaintiff, pursued by Ms Donato. He assisted the plaintiff to his car in Gawler Place. He had telephoned her employer, in a building on the other side of Rundle Mall, and the latter had arranged for the plaintiff to see a doctor who practised in that building. Gianni drove out of Gawler Place down to King William Street, left into Grenfell Street and left into Gawler Place. He parked, again illegally, at the entrance to the employer’s building, where he was met by the employer. The latter assisted the plaintiff to a lift and got her up to the doctor.
Gianni says he then went back to David Jones – it was very close – for another look. When he got to the scene, the patch and droplets were still on the landing. Around 10 minutes must have elapsed since his last visit. He had no contact with staff at David Jones. He returned to his car. The plaintiff had not returned, so he entered the building to go up and find her at the doctor’s. As he did so, she emerged from the lift. He helped her into his car and took her home.
He says that only in the car on the way home did he tell the plaintiff what he had found. At the edge of the landing, and of each step, there were two non-slip strips. He says he noticed, as he passed his hand through the liquid on the landing, that the strips at the edge of the landing were too smooth, presumably worn. He also told the plaintiff of that. No claim to that effect was pursued in court.
However, on the following Tuesday afternoon, Ms Donato telephoned the plaintiff’s place of work, found that the plaintiff was recuperating at home, and rang her there. The plaintiff was, she says, still upset. Something about her tone must have alerted Ms Donato to the possibility of a claim. Until then she had believed David Jones were in the clear, because she believed nothing wrong had been found. She says that it was in this conversation that she first learned of the claim that there had been something on the landing, which had been found by Gianni, who also thought the non-skid strips were smooth. She made a note of it.
Soon after the accident she had filled out certain David Jones forms, expanding on brief notes she had made at the scene. She did not keep the brief notes. Her accident report makes no reference to anything having been on the floor. It refers to the plaintiff having “missed step and fell”. That is what Ms Donato says she understood had happened.
David Jones had a contract with the second defendant, Tempo, to provide cleaning services throughout the store. Both defendants rely on Ms Donato’s evidence to assert that there was no substance on the floor, as deposed to by Gianni. They assert that he is mistaken – and I accept the more forceful argument of counsel for Tempo, that he could not be honestly mistaken. He would have to be a deliberate liar.
They say that Ms Donato has no axe to grind and has no reason falsely to assert that Gianni did not wipe his hand on the floor, or in an oily substance; nor did he show his hand to her after doing so. She was not, on any version, responsible for such a substance being on the floor. Her only interest was to administer first aid and to fill out an accident report. If a claim were to be made, it reflected no blame on her, nor would it involve her in any financial responsibility. It is hard to see her making a deliberate attempt to cover up for the benefit of either defendant (more probably David Jones) through misplaced loyalty. It is hard to imagine that she stood to be promoted, or otherwise rewarded for doing so.
On the other hand, it is argued, the plaintiff and Gianni have a considerable financial interest in fabricating the presence of the oily substance. Had the suggestion only arisen long after the accident, that might have great force. Ms Donato learned of Gianni’s allegations about three days after the accident. The plaintiff and Gianni say that Gianni told her about it on the way home after seeing the doctor.
Mr Martin, for Tempo, submits that this is a very unlikely scenario. As he puts it, Gianni went looking for a cause, he found it, hurried back to the plaintiff and, yet, told her nothing of his discovery until later. He submits that it would have been irresistible to come out with the news of what he had found. If he did not blurt it out at once, surely he would have done so in the course of the car journey around the block to the doctor – presumably a trip taking at least five minutes.
This was put to Gianni. He said that the plaintiff was upset and crying, and that his main concern was to get her to the doctor. It just was not the time to discuss how it had happened. He did that later, when the plaintiff had calmed down. To some, such conduct might seem odd – but I do not think it so odd as to give much guidance. I take it into account.
Perhaps equally speculative is the argument of Mr Lovell Q.C., for the plaintiff, who pointed out that, at that time, the plaintiff and Gianni were boyfriend and girlfriend, but were not living together. Each lived with his, or her, parents. They were not yet engaged to marry. At that stage there could have been no potential financial benefit to Gianni in faking a claim for the plaintiff. Arguably there is benefit now they are married, but that was not the case then. If he were faking it, he must have decided to do that very quickly. He told the plaintiff what he claimed to have found within about half an hour. Unless the plaintiff was also lying, she heard about it on the way home. Helping out a girlfriend might earn rewards; but this would have to have been a very quickly seized initiative. We know that the story existed by the time of Ms Donato’s telephone call to the plaintiff.
Mr Lovell Q.C. submitted that Ms Donato was not entirely without motive. If she had misunderstood what the plaintiff had told her, but was, in her own mind, clear on what she believed had happened, did she simply shut her mind to the new theory put forward by Gianni and dismiss it as wrong – therefore making no note of it and now not remembering it? Was she now simply determined to uphold the version she had noted to show she had done her work properly?
These are also attractive submissions, but hardly conclusive. Neither Gianni, nor Ms Donato gave any reason in their demeanour in the box for me to disbelieve them. Nor did the plaintiff.
In my opinion, it is not inevitable that either Ms Donato or Gianni is a liar, rather than being honestly mistaken for some reason. It seems to me that it is easier to imagine that Ms Donato could be mistaken about a matter of only transient concern to her. She is deposing to a negative – that Gianni did not do or see what he says he did do and see. She does not have to be a liar to be wrong. I agree that Gianni does. He did not give me any reason to conclude that he was. Mr Martin’s argument does not prove it. Mr Lovell Q.C.’s explanation for Ms Donato being wrong may, or may not be the correct explanation.
My conclusion can only be on the balance of probabilities. In my view, it is more probable than not that Gianni is not a liar. If I go that far, I think it most unlikely that he could be honestly mistaken. Ms Donato could. I find that the substance deposed to was on the floor.
The substance was described as a clear, oily fluid, containing particles of dirt. It was not identified beyond that. In particular, it was not identified as being a fluid which was sold or otherwise generated by either defendant, though it could have been.
The first defendant had a food store and restaurant in, broadly, the eastern half of the lower ground floor. The eastern limb of the staircase led directly to it. The western limb was only a minor deviation. I would expect that many customers who used the western stairs would have carried food from the food hall. The evidence suggests that various items of food sold there were preserved in oil or contained oily fluids and, potentially, could have been responsible.
The second defendant had the contract with the first to provide cleaning services throughout the store. I do not have evidence of the complete range of cleaning products used. Potentially, there may have been detergents, or like substances used, which could have been spilled. There is no evidence that that happened. There is evidence that substances supposed to be used for cleaning various surfaces in the vicinity of the stairs and landing would not give the appearance described.
Obviously, members of the public visiting the store carry all manner of items, including items that could deposit an oily fluid. However, the short answer to all of this is that no-one gave evidence of what the substance was, or of how it got there. There is nothing to indicate whether it was deposited by a person entering or by one leaving the lower ground floor.
So the evidence does not, in particular, establish that the substance came from the food hall. However, it seems a fair inference that items purchased there would, from time to time, be dropped or spilled by customers and staff. It was an area that would be more prone to slippery substances on the floor than, say, a clothing or furniture department. The floor was of marble and, so, more prone to be slippery after a spill than, say, carpeted areas of the store. The dangers of spills on and near the place where the plaintiff fell are obvious. This spill was dangerous. It caused the plaintiff to fall and to hurt herself.
The first defendant does not dispute that it owed a duty to customers, including the plaintiff, to take reasonable care to maintain its premises in a state which was suitable and reasonably safe for ordinary use by customers. I have noted that there is no claim of any design fault in the steps. If clean, they were fit for the purpose. There is no dispute that the first defendant had to take reasonable care to see that the stairs were clean, in the sense of being free from dirt, liquids, or objects which might cause a customer to trip, slip, or fall. It says it did take reasonable care. It hired the second defendant to clean the whole building. There was an elaborate contract specifying what had to be done. There is no evidence to suggest that the second defendant was not an experienced and competent cleaning contractor capable of implementing a reasonable system of cleaning.
It is trite to say that all that is required is a reasonable system of cleaning. What is reasonable is to be judged by all the circumstances. Obviously spills in the area on or near the stairs could range from the dropping of objects so large and messy as to be obvious at once to nearby shop staff, to very minor spills that could be hard to detect and which might easily pass unnoticed, at least for some time. A system of regular inspection and cleaning is the only reasonable way of detecting and cleaning spills. Inevitably, a period of time is likely to elapse between the occurrence of some minor spills and their detection.
The area of this fall was a heavily trafficked area. Its proximity to the food hall forseeably increased the likelihood of spills occurring. The surface was one prone to be slippery when wet. It was an area which obviously called for particular attention.
I heard evidence about the cleaning which occurred every night, when the store was closed. Nothing suggests to me that any defect in the cleaning process the night before the fall caused it. The spill described by Gianni was of two groups of droplets, plus a third spot where liquid was more spread – perhaps by the plaintiff’s shoes, or those of others. It was there at the time of the fall, and, on Gianni’s evidence, about 15 minutes later, when he inspected it while the plaintiff was with the doctor.
That it remained for such a period did not cause the accident – it followed it. It shows that Ms Donato cannot have realised anything was there. If she had, it is overwhelmingly probable she would have dealt with it. It follows that the general system was one which failed to detect the spill over at least a 15 minute period. In my view, a reasonable inspection and cleaning system would detect most spillages within that period. However, this was not an easy spillage to detect. Only a very close inspection by Gianni revealed it.
I think it a fair précis of the present law that the mere presence of a spill like this on the floor raises questions about the adequacy of the cleaning system. It gives rise to suspicion. A defendant faces an evidentiary onus of showing that a reasonably safe system was actually in operation at the time. Typically, it will not be possible to say how long a particular spill has been there – if that was known, it should usually have been removed.

In this case, I cannot imagine that this spill had been missed by the night cleaners and, so, been there throughout the day’s trading up to the time of the fall. I think that the two groups of droplets still not squashed would likely have been trodden on. I accept that, on Gianni’s evidence that did not occur over the 15 minutes or so from the fall to his second inspection.
There is no evidence that it was ever detected. It seems that certain documentary records – reports made by staff of spills and other matters – are now lost. The cleaner actually on duty at the time has no recall of it. Apart from her basic cleaning duties, she had to deal with spills perhaps twice a week. She did that for years. It is hardly surprising that she should have no recall, if, indeed, she ever did anything. It was not a great volume of fluid. By sheer luck, did it get cleaned by passing foot traffic over a period?
I turn to look at the cleaning system. Was it reasonable, despite failing to detect this spill? I shall not go through the arrangements for complete cleaning at night. It seems quite improbable that any fault lay there. At the level of generality, that part of the system seems to have been appropriate.
During shopping hours, at a practical level, it seems that most spills would first be noticed by customers or staff of the first defendant. Presumably customers would inform staff. Staff would then summon a cleaner, unless the spill was of a nature that called for more urgent action. In a particular case, a staff member might have to remain by the spill until help arrived.
On week days two employees of the second defendant were in attendance at virtually all times. On Saturdays and Sundays only one employee was on the floor all of the time. That person had to clean and check certain areas, such as lavatories, regularly. She had to empty bins at the end of each flight of the escalators. To do that, she would empty a bin into a bag she carried, ride to the next floor, and repeat the process. Thus she would descend from the top floor to the bottom. Then she would travel back on the escalators which went in the opposite direction. As she did this she would scan each floor generally, for obvious problems. As she checked lavatories on various floors, she would walk along the main aisles on those floors.
When she reached the lower ground floor, she would walk from the escalators in a generally southern direction to the base of the stairs where the plaintiff fell. She would climb one of the lower flights, cross the landing, look at the upper flight, descend the other lower flight and then return to the escalators to continue her round. Her experience was that it was common to detect bits of paper, such as cash register dockets on the stairs. She would pick them up. It was not common to find anything else. It was not her habit to climb the upper flight. Having regard to the height of that flight, I do not think she could have seen the surfaces of upper steps while she was on the landing. She followed this routine four times per day and, if she did what she usually did, would last have surveyed the landing at between 11.30 and 12.00. Unsurprisingly, she has no recall of doing so on this day.
The system failed to detect this spillage. It seems to me unlikely that it would have. It was quite small, clear, and hard to see. Ms Donato may have run her hand along the wrong step, but, if the spill on the landing had been easy to see, I believe she would have seen it.
The system does not seem to have provided for a regular routine of formal inspection of the stone. Inspection was largely incidental to the performance of other duties. It was a matter of the cleaner “keeping her eyes open” as she went about her work. I suspect that she could easily have failed to detect much more obvious problems than this. The evidence left me with the impression that shop floor staff also had no duty to inspect formally – if they happened to see something, it should be reported, but it was not specifically their job. Little evidence was given about their duties. Had the spillage been of something easy to detect, such as an ice cream, I think I would have held that a reasonable system should have detected it. I suspect that the system in place could easily have failed to do so. It was not a good system.
However, the spill was not easy to see. I go back to the evidence of the only person who saw it, Gianni. I set out his evidence-in-chief.
Page 82:
"AI went down to the basement, took the stairs down to the basement on the east side of Gawler Place, and I walked through the eatery area, food area and as I walked through, I came to a set of steps. There was one on the left and it was like a fork, one on the left and one on the right.
QWere there many people down in the basement at this stage.
AYes, I had to walk through people.
QHow would you describe it, was it busy, not so busy or you can’t say.
ATo me it was busy.
QWhat did you do when you got to the stairs.
AI got to those first steps there, I looked up and said well I start here and I started looking around, walked up the steps. As I walked up to the first step there was a piece of paper on the left side of the step which like in the corner, and there was a white, like a paper bag just scrunched up, left in the corner there. I just kept looking around to see if there was anything on the steps there. I walked up a bit and noticed a bit of dirt and noticed a person standing on the other side of the other step, which is opposite the steps I was on. Yes, she was just standing there, not saying nothing and I saw her name tag so I thought obviously this must be a lady from where Kaly was. I just kept looking and she just said ‘She slipped on her own’ she just called out ‘she slipped on her own’. I looked at her, I said “And who are you’ and she wouldn’t answer.”
Page 84, 5:
"QYou said the steps appeared a little dirty I think is what you said.
AYes.
QWhat did you mean by there.
AThere were particles of dirt, you could see little – just general particles of dirt that was – you know there and on a closer inspection, you could see dust.
QOn the landing, were you able to see if there was anything on the landing at that stage, that is when you were on the wrong side.
AI got up to the landing and no, I didn’t see anything up on the landing itself, just the paper. She was talking to me, so I was just – went back to where I was looking for them, I missed my spot so I continued back where I was.
QEventually you got directed to the western steps.
AThat’s correct.
QWhat did you do in terms of looking at the western side steps.
AI started looking down the bottom where she was in the middle of the steps, and that’s when she directed me to the top of the steps. She said she fell all the way down, so it meant that she slid all the way down to the bottom where she was.
QDid you have a look at the landing.
AYes I walked up to the step below the landing, I had a look there and as I was looking, I saw a smudge on the landing near the rail.
QWhen you say a smudge, can you do your best to describe it to his Honour.
AIt was a shiny substance, probably 16 mm long by about 40 mm, a flat sort of a look.
QAre you able to say where it was in relation to –
AIt was about a foot away from the edge of the side of the step, so where the railing is, say about a foot out.
QA foot away from the handrail.
AHandrail, yes.
QHow close to the actual edge of the landing before you take your next step.
AThat was right up to the step tread.
QUp to the step tread.
AYes.
QDid you do anything with that smudge.
ASoon as I saw the smudge, I said ‘What’s this’. I looked at the lady and I said ‘Look, come and have a look at this, what is this, oil or water or something, what’s this.’ She didn’t answer so I kept looking and I found another smudge on the second – on the first step down from the landing. I said ‘There another one here, come and have a look at this’. She replied then I think ‘There’s nothing there’. I said ‘Come and have a look’ she didn’t say nothing, she turned the other way. So then I looked at – I went up to the smudge on the landing and with the palm of my hand, I ran it across and I felt –
QHow did it feel.
AOily. Oily and it was gritty too, so there was particles of dirt I guess, dust in there. It was a brownish, blackish colour, it wasn’t really – I couldn’t distinguish a colour on it because of the particles which were dust. So I held my hand out and I asked her to have a look at this and she refused.”
Page 86:
"AThen I went up to the landing again. I had another look at the landing and I found just as the landing comes around a bit, little dots of some substance there and in the form of a circle, probably the size of a five cent piece or a bit smaller.
QHow many.
AThey were in small groups of three or four and then there was a couple of little dots and three or four.
QAnd did you touch them at all.
AI told her – again I asked her to look, ‘There’s something else here too, come and have a look.’ And she didn’t reply at all. So, again I ran my palm of my hand over it to make sure that it felt the same and it did feel the same. It was the same oily liquid that I had on the smudge.”
Page 87:
"QI think you said you weren’t really able to tell what colour of this substance.
ANo, because of the tiles on the floor are that greyish blackish colour, it just it blended in, so you couldn’t really see what colour it was until I ran the palm of my hand over the top of it and had look and it was just brownish dusty particles in there.”
Page 90:
"QWhen the substance was on your hands, did it give off any smell that gave you any clue as to what it was.
ANo, I didn’t put it up to my hand. It was just very oily, it seemed to me like an oil. I would say it was a clear matter because of the colour of the dust and all that coming through.
QSo the dust gave it a colour –
AA brownish colour, yes.
QWithout the dust your impression was a clear sort of thing.
AYes, would have been clear I guess.”
Cross examination was largely directed to suggesting that Gianni was a liar about what he saw, rather than to the details of what he saw.
Photos show the marble floor to have been of a dark mottled colour, predominantly grey. It seems to me that a few drops and a smudge of a clear liquid, perhaps discoloured by dirt particles, would not have been easy for anyone to see. I think Gianni only found the spill because he was specifically searching for what might have caused the plaintiff to fall. The substance would have been shiny – but so was the marble. He was looking more carefully than one would expect of a reasonable cleaner, in the knowledge that the plaintiff had slipped in a particular location, and in an effort to explain that.
It seems to me that, if a reasonable system of inspection had been in place, it could easily have failed to detect this spill. Presumably there would normally be customers using all areas to be inspected. One would not – for example – clear the stairs and make a minute inspection every half hour. One would walk around on a regular beat looking carefully. Moving amongst customers it would be easy to miss this spill.
So I come to the rather perverse conclusion that the cleaning system was not well organised, but that it is not proved that a reasonable system would probably have detected this spill. Any flaws in the system were not the cause of the fall. The fall was caused by the act of the unknown person who spilled the fluid. It is not possible to attribute blame for that person to either defendant.
The plaintiff’s claim must be dismissed.

[2004] SADC 5

3 February 2004