Ragnelli v David Jones (Adelaide) Pty Ltd
[2004] SASC 393
•2 December 2004
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
RAGNELLI v DAVID JONES (ADELAIDE) PTY LTD & ANOR
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Gray)
2 December 2004
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - OCCUPIERS
Appeal against decision of Judge of the District Court dismissing a claim for damages - appellant suffered injury as a result of falling down a flight of stairs at the first respondent's department store - oily substance present on marble stairs leading down to a food hall - trial Judge found that first respondent owed the appellant a duty of care but that duty had not been breached - both respondents held not liable in negligence for damages - appeal on grounds that trial Judge erred in finding no breach of duty - consideration of cleaning contract between first and second respondents - consideration of occupier liability under statute and common law - consideration of standard of care owed by owner of a department store to members of the public - consideration of adequate cleaning and inspection systems - consideration of principles of breach of duty - consideration of principles of causation.
Held:- duty of care owed by first respondent to all entrants - standard of care heightened by commercial activities conducted on the premises and the nature and extent of the risk of danger - system of cleaning and inspection in place inadequate - failure to remove oily subtsance from stairs - breach of duty of care by first respondent - injury reasonably forseeable - causation established - first respondent liable in negligence for damages - appeal allowed - appellant entitled to judgment against the first respondent in the amount of $224,818.95 - plaintiff's claim against second respondent and claims for contribution between the respondents remitted to trial Judge for determination.
Wrongs Act 1936 (SA) Part 1 B; Civil Liability Act 1936 (SA) s 20, referred to.
Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241; Kocis v S. E. Dickens Pty Ltd [1998] 3 VR 408; Chappel v Hart (1998) 195 CLR 232; Van de Heurval v Tucker (2003) 85 SASR 512; Kelly v Lend Lease Retail Pty Ltd (1993) 113 FLR 21; Franklins Ltd v Hunter [1998] NSWSC 239; Allcorp Cleaning Services Pty Ltd v Fairweather [1998] NSWSC 291; Dulhunty v J B Young Ltd (1975) 50 ALJR 150; Hackshaw v Shaw (1984) 155 CLR 614; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Wyong Shire Council v Shirt (1980) 146 CLR 40; Tame v New South Wales (2002) 211 CLR 317; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Drakos v Woolworths (SA) Ltd (1991) 56 SASR 431; Griffin v Coles Myer Ltd [1992] 2 Qd R 478; Drotem Pty Ltd v Mannig [2000] NSWSC 320; Fitzgerald v Penn (1954) 91 CLR 268; Medlin v State Government Insurance Commission (1995) 182 CLR 1; Alphacell Ltd v Woodward [1972] AC 824; March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506; Bennett v Minister of Community Welfare (1992) 176 CLR 408, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"occupier liability"
RAGNELLI v DAVID JONES (ADELAIDE) PTY LTD & ANOR
[2004] SASC 393Full Court: Doyle CJ, Duggan and Gray JJ
DOYLE CJ I have had the benefit of considering the reasons of Gray J. I adopt his summary of the reasons of the trial Judge and, by and large, his summary of the relevant facts and circumstances. I agree that the appeal should be allowed, and that judgment should be entered for Mrs Ragnelli against David Jones (Adelaide) Pty Ltd (“David Jones”). The Judge did not make findings as to the liability of Tempo Services Limited (“Tempo”) to Mrs Ragnelli, nor did the Judge deal with the question of whether either defendant was entitled to contribution or indemnity from the other in respect of any liability to Mrs Ragnelli. The action should be remitted to the Judge for him to deal with those issues. It is not appropriate for this Court to decide them.
My reasons for allowing the appeal differ in some respects from those of Gray J. Accordingly, it is necessary for me to explain why I would make those orders.
Facts
In making the findings that are summarised by Gray J, the trial Judge accepted evidence from Mr Ragnelli that when he inspected the steps and landing, not long after Mrs Ragnelli fell, he found a small patch of a clear oily liquid and a few drops of the same liquid on the landing between the two flights of stairs. Although the Judge did not make an explicit finding, it is clear that he found that Mrs Ragnelli slipped when she put her foot on this liquid while descending the stairs.
Mr McNamara QC, counsel for David Jones, challenged this finding. He submitted that the Judge erred in not accepting evidence from Ms Donato, an employee of David Jones. She was a first aid officer. She came to the place of the fall within a few minutes, and tried to comfort Mrs Ragnelli. Her evidence conflicted sharply with that of Mr Ragnelli, and if accepted pointed to a conclusion that there was nothing oily or slippery on the stairway that could have caused Mrs Ragnelli to fall.
Both Mr Ragnelli and Ms Donato gave quite detailed evidence about their observations after the fall, and about things they said to each other. It is common ground that together they inspected the place where Mrs Ragnelli fell, not long after she fell, and discussed the circumstances of the fall. The Judge considered their evidence with care.
As is common in such cases, there are matters that tend to support the evidence of each of them. There are obstacles to the acceptance of all of the evidence of each of them.
Mr McNamara did not identify anything in the nature of an incontrovertible fact that presented an obstacle to the acceptance of Mr Ragnelli’s evidence. Nor did he point to anything that provided incontrovertible support for Ms Donato’s evidence. He identified a number of difficulties in the way of accepting Mr Ragnelli’s evidence. But they were not difficulties of a kind that precluded acceptance of his evidence. His evidence was not improbable. There were matters that arguably supported the acceptance of Ms Donato’s evidence, but they were no more than that. Mr McNamara submitted that counsel for Mrs Ragnelli at trial failed to cross-examine Ms Donato to the effect that, having been told by Mr Ragnelli that he had found the oily substance, if Mr Ragnelli was to be believed she had then done nothing about the presence of that oily substance, despite, on the plaintiff’s case, it having shortly before led to Mrs Ragnelli falling. Mr Ragnelli had given evidence that when he found the oily substance on the landing, he pointed it out to Ms Donato. Mr McNamara argued that the failure to put to Ms Donato that, if Mr Ragnelli’s evidence was to be accepted, she had failed to take any steps to deal with the source of danger, precluded acceptance of evidence from Mr Ragnelli that involved that conclusion. I do not agree that it was essential to put this to Ms Donato. It was an obvious result of the acceptance of Mr Ragnelli’s evidence. In any event, failure to cross-examine Ms Donato to this effect is not something that, as a matter of fairness to her, precludes acceptance of Mr Ragnelli’s evidence.
For those reasons I am not satisfied that the Judge’s acceptance of Mr Ragnelli’s evidence was erroneous.
The issue of the liability of David Jones then falls to be decided on the basis found by the Judge, namely, that Mrs Ragnelli slipped on a small patch of an oily substance on the landing of the staircase.
Other relevant facts are not in dispute. David Jones’ premises were busy commercial premises. Many members of the public used the stairway to go to and from the lower ground floor. The stairway gave access to a food hall. Food was sold there that was “preserved in oil or contained oily fluid”. It was likely that from time to time members of the public who purchased food there would spill or drop liquid or food on the stairway. The stairs and landing were “mottled grey marble, or similar stone”. Although mottled, they were predominantly dark in colour, but with a shiny surface.
It was obvious, I consider, that it might be difficult to see liquid lying on the surface of the marble, and that the presence of liquid on the surface would make the marble slippery and the stairway dangerous.
Mr Whitington QC, counsel for Mrs Ragnelli, argued that the Judge should have found that the stairway was, in the circumstances, constructed with a surface that was unsuitable for the location. The submission seemed to be that the stairway was unsafe, and that David Jones might be found liable to Mrs Ragnelli on that basis.
I agree with the submission by Mr McNamara that such a case was not pleaded or mounted at trial. The Judge himself recorded on two occasions that there was no claim that the stairway itself was “dangerous or defective”. Had a case along these lines been run at trial, David Jones might well have led evidence, including expert evidence, about the suitability of the surface chosen for the stairway. It would be unfair to allow Mrs Ragnelli to put such an argument for the first time on appeal. This submission should be rejected.
Not much attention seems to have been paid at trial to the relevance, to the issue of David Jones’ liability to the plaintiff, of the contract between David Jones and Tempo. As it happens, I consider that the contract is of no particular significance. Any light that the contract throws on David Jones’ awareness of the need to take care to ensure that the stairway was safe adds nothing to the facts of the case which, as will appear, speak for themselves.
I regard the following matters as significant in determining the standard of care owed by David Jones to Mrs Ragnelli. The stairway was frequently used by the public; its use by people going to and leaving the food hall gave rise to an obvious risk of food or liquid being spilt on the stairway; the hard surface meant that food or liquid on the stairway would make the stairway slippery and quite dangerous; there was, in a sense, a double danger, because the dark colour and shiny surface might make it difficult to see a liquid in particular. For those reasons, the stairway was an area that called for fairly close attention in the interests of the safety of the public.
Duty and standard of care
It was common ground that David Jones owed to the public visiting its store a duty to take reasonable care for their safety, and in particular to keep its premises reasonably safe.
The duty of care at the time was imposed by s 17C of the Wrongs Act 1936, now s 20 of the Civil Liability Act 1936. The relevant provisions are set out by Gray J. I proceed on the basis that in the present case there is no need to distinguish between the principles that would be applicable at common law and the statutory provisions.
David Jones owed to Mrs Ragnelli a duty to take reasonable care for her safety. In particular, David Jones owed her a duty to take reasonable care in all the circumstances to see that the stairway was not in a dangerous condition. The duty was and remained a duty to take reasonable care in all the circumstances for her safety as a member of the public.
The features for the stairway that I have summarised at [15] are such that the discharge of David Jones’ duty of care required particular attention to be paid to the state of the surface of the stairway.
The standard of care required by David Jones is, in the end, a question of fact. It is determined by applying the statutory provisions (or common law principles) to the facts. Useful examples of the approach of appellate courts to this kind of case can be found in two cases in particular to which we were referred: Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 and Kocis v S.E. Dickens Pty Ltd [1998] 3 VR 408. I agree in particular with the observation by Phillips JA in Kocis at 415 that what he called “slipping cases”:
“…do not attract any special principles; they are subject only to the ordinary principles of the law of negligence and ultimately each case is no more than a decision on its own particular facts and cannot therefore be used to dictate the result on other and different facts.”
It is implicit in the trial Judge’s findings that the exercise of reasonable care required that David Jones have a system under which, during shopping hours, there would be periodic inspections of the areas open to the public. It was not sufficient to rely upon sales and other staff to detect a danger of a kind a cleaner might deal with, and then either locate a cleaner or deal with it themselves. The Judge made no finding as to the system that should have been established, to discharge David Jones’ duty of care.
Having regard to the circumstances, I consider that David Jones’ duty of care required that its system for cleaning the premises ensured that the stairway was inspected and cleaned (if necessary) on a regular basis during a trading day, quite apart from overnight cleaning. The frequency of the inspection and cleaning would depend upon the pattern of public movement during the day. I do not, with respect, agree with Gray J that David Jones was required to establish a system that “would ensure any spillages were detected and removed within minutes”. Nor do I agree that the required system “involved something close to continuous observation”.
However, I agree that the cleaning system, as it was, was not adequate to discharge the duty owed by David Jones. I make no comment on the question of whether the cleaning system complied with the contractual requirements imposed on Tempo. That is an issue yet to be considered by the trial Judge.
In my opinion it suffices to say that the stairway should have been inspected at least hourly, and at busy times more frequently.
Mrs Ragnelli fell on a Saturday. According to the Judge on a Saturday only one cleaner was “on the floor all of the time”. The cleaning system was such that the cleaner would inspect the stairway area only four times in the course of the day. The inspection was a visual inspection, the cleaner climbing the lower flight of stairs to the landing, and going no higher. There is no suggestion that the cleaner routinely wiped or mopped the surface of the stairs and landing, in case any liquid was present on them. As the Judge said at [48]:
“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.”
I understand him to mean that the cleaner was mainly concerned with items, such as discarded paper or dockets, that would make the stairway untidy. He added:
“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.”
As I have said, I consider that the exercise of reasonable care required that the stairway be inspected about every hour, and at busy times more often. Particular care should have been taken to check for anything spilt on the surface, or the surface should have been wiped over as a matter of routine, in case there was liquid there that might not be detected with the naked eye.
I am not certain that the Judge intended to find that the cleaning system was not adequate to discharge David Jones’ duty of care. It may be that in the passage just set out he intended to do so. In any event, in my opinion the system was not adequate. The inspections were not frequent enough, nor were they sufficiently thorough.
Causation
That leaves for consideration the issue of whether Mrs Ragnelli has established that the breach of duty, which I find occurred, was the cause of her fall.
That issue has two facets. First, as the Judge found, the oily substance on the landing was not easy to see. Mr Ragnelli saw it only because he inspected the area quite closely. He was looking for something that might have caused the fall. The second problem faced by Mrs Ragnelli is one that often crops up in these cases. Reasonable care did not require David Jones to inspect and clean the stairway continuously, or even every few minutes. It is theoretically possible that the oily liquid that caused Mrs Ragnelli to fall was spilt only moments before she walked down the stairway. If that was what happened, unless the cleaner happened to be in the course of cleaning the stairway when the spill occurred, it is possible that the oily liquid would not have been detected and removed before Mrs Ragnelli walked down the stairway. Accordingly, so the argument runs, how can it be said that a proper cleaning system would have prevented Mrs Ragnelli falling? This latter problem was considered at some length in both Girvan and Kocis, and has been referred to in a number of other cases.
I do not agree, with respect to Gray J, that the approach taken by the High Court in Chappel v Hart (1998) 195 CLR 232 is appropriate in a case like this. That approach, in my respectful opinion, is appropriate only in a particular kind of case, of which that decision was an instance. It was a special case. It was a case in which a surgeon failed to warn his patient of a possible adverse consequence of surgery that might occur, without any lack of care of skill on the part of the surgeon. The operation was performed, and without any lack of care or skill, but the unmentioned consequence ensued. The complication was one that might have occurred whenever the operation was performed, or by whomever it was performed. The issue of whether the failure to warn the patient of the risk caused the injury that occurred, raised unusual issues that called for an approach to the question of causation that differed from the usual approach. I refer, without repeating it, to the discussion of this decision in the reasons of Doyle CJ and Duggan J in Van den Heuvel v Tucker [2003] SASC 110; (2003) 85 SASR 512 at [86]–[99]. I consider that the present case can be decided applying ordinary principles of causation.
As to the first obstacle in Mrs Ragnelli’s path, I consider that there is a simple answer. The fact that a relatively small amount of clear liquid on the surface of the stairs or on the landing might easily be missed, as the Judge found, is the very reason why reasonable care required, in these particular circumstances, either a close inspection of the surface of the stairway or, preferably, that the stairs and the landing be wiped over each time they were inspected. There was a readily foreseeable risk that a visual inspection of the kind the cleaners made might fail to detect liquid on the stairs. It was also foreseeable that that liquid might be oily and slippery, and so it was foreseeable that there might be a source of danger on the stairs that a user of the stairs would not see. Slippery stairs are particularly dangerous. For all those reasons extra care had to be taken.
The Judge remarked that the oily liquid was not easy to see. Then he made what appeared to be critical findings. He said at [57] and [58]:
“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.”
If this is a finding that the breach of duty did not cause Mrs Ragnelli to fall because a reasonable system of inspection could not have detected the oily liquid because it was difficult to see, I disagree. As I have explained, I consider that the risk of such a substance being on the stairs meant that reasonable care required either a close inspection of the surface or that the surface be wiped each time the stairway was inspected. This is because of the characteristics of the surface of the stairway, the risk of oily substances being spilt there, and the dangerous situation that that could produce.
I turn to the second issue. The issue is one of fact, to be resolved in a common sense way, although guided by principles of law found in the cases. The question can be expressed in various ways. It can be asked whether David Jones’ breach of duty, in failing to maintain an adequate inspection system, was the cause of Mrs Ragnelli’s injury. It can be asked whether an adequate inspection system would have avoided her injury. It can be asked whether Mrs Ragnelli would not have slipped and hurt herself, but for David Jones’ failure to establish an adequate inspection system.
In a case of this kind it will usually be impossible for the plaintiff to establish how long the substance that caused the plaintiff to slip or fall was on the ground or on the floor, before the plaintiff fell. Accordingly, common sense suggests that one should not adopt an approach that requires the plaintiff to establish how long the substance in question was present before the plaintiff fell, and then to establish when, in the course of an adequate inspection system, the very area in question would have last been inspected, leading to the substance being detected and removed. That seems to me to be too precise and too demanding. Even if one were to postulate an adequate inspection system that called for inspection of an area every thirty minutes, it would be going too far to say that the area always had to be inspected in exactly the same way and in exactly the same sequence, so that each point of the area would be checked at regular thirty minute intervals. For example, in the course of such an inspection the cleaner might find something that took five minutes to clean up, and so then the balance of the inspection would be delayed by five minutes. The sequence of the inspection might vary. The variations are almost endless.
I prefer the approach taken by Phillips JA and Hayne JA in Kocis. Phillips JA considered a hypothetical situation in which reasonable care required inspections of the area in question at thirty minute intervals. He said at 420-421:
“It will not ordinarily be possible to exclude the possibility that the substance on the floor was spilt only moments before the plaintiff slipped on it; and yet that mere possibility does not, I think, affect the probabilities. Secondly, and more importantly, where the regimen of inspection and cleaning which is required by way of reasonable measures is an ambulatory affair, occurring only at periodic intervals, it will ordinarily not be possible to fix the time at which such inspection and cleaning should last have occurred at the very spot where the plaintiff fell. Yet unless that is known, that last such inspection and cleaning might have taken place (had it been carried out) only, say, three minutes, not 30 minutes, before the plaintiff’s accident. So why should the plaintiff fail if it cannot be shown that the spillage was on the floor for at least 30 minutes (which seems altogether too favourable to the defendant)?
The short answer is that which I gave earlier. The inquiry whether the spillage was on the floor for at least 30 minutes stems from an undue concentration on the interval between periodic inspections which should have been, but which were not, carried out. In my view, the proper inquiry focuses on the whole of the period during which the defendant failed to carry out any inspection at all. In other words, the inquiry is not about one particular default of the defendant, albeit the last before the accident; it is about the defendant’s default overall, for the question is whether that default was cause of the injury. An inquiry which concentrates upon the last default, occurring no more than 30 minutes before the accident, may be appropriate if that last default was the only default of the defendant’s; but that is not the case in my hypothetical example, nor is it here. Otherwise a defendant might be better off for having failed to carry out any inspection or cleaning at all than for failing only to carry out the last that was due before the accident, and the time of which might perhaps be pinpointed with some accuracy.”
Hayne J took a similar approach. He said at 432:
“Let it be assumed that a reasonable occupier of certain premises would inspect the premises for spillages once each hour. Let it further be assumed that the evidence demonstrates that the occupier made no inspection of the premises at all on the day on which the plaintiff slipped and fell eight hours after the premises opened for business. If that is all that is known, it is of course possible that the substance upon which the plaintiff fell was dropped one minute or 59 minutes before the fall occurred but what are the probabilities? In my view it is open on those facts to conclude that it is more probable that the spillage occurred in the first seven hours of trading than it is that it occurred in the last hour. It would follow that had a proper system of inspection been implemented, it is more probable than not that at the spillage would have been detected and removed. Implicit in the example I have given is that there is no basis for concluding that the spillage is more likely to have occurred at one particular time (or at some particular times) rather than others. That is, the example assumes an undifferentiated period of time in which the spillage may have occurred. That is why it would be properly condemned as “speculation” to say that it is more probable than not that the spillage occurred at a particular time in that period; but that is not the chain of reasoning that is suggested. Rather, it is suggested that common sense dictates that where there is nothing pointing to a particular time as the time of occurrence, the longer the time under consideration, the more likely it is that the spillage occurred during that time than in a different, shorter period.”
It was not necessary for their Honours to go any further than that, because in that case they ordered a retrial on the issue of liability.
In the present case the cleaning system that was in operation was defective in two respects. First, it relied on a somewhat casual, visual inspection of the stairway. It is clear from the Judge’s findings that it was not a close inspection. The surfaces were not wiped as a matter of routine. Second, the inspections were not as frequent as they should have been. In other words, the cleaning system was not adequate.
An adequate system of inspection would have been capable of detecting and removing the oily substance, because it would have involved close inspection or routine wiping of the stairs and landing. Depending on how busy the store was, that would have occurred at no greater than one hour intervals, and possibly at half hour intervals. It is quite possible, indeed it is likely, that the oily substance had been present on the landing for some time, because it is likely that if it was there when the cleaner last inspected the stairway, she failed to see it. There is no evidence to suggest that the oily substance was deposited on the landing only shortly before Mrs Ragnelli fell, nor is there any evidence to the contrary. In the circumstances, I have no difficulty concluding, on the balance of probabilities, that an inspection system of the kind postulated by me would have detected and removed the oily substance before Mrs Ragnelli descended the stairs.
It suffices that this finding is made on the balance of probabilities. It does not matter that the Court cannot exclude the possibility that the oily substance was deposited only moments before Mrs Ragnelli descended the stairs. For what it is worth, my impression is that in this respect the trial Judge’s finding was in favour of Mrs Ragnelli. My impression is that he found against her only because he considered that the oily substance was difficult to see.
Conclusion
For those reasons I agree with the orders proposed by Gray J.
DUGGAN J. In my view the appeal should be allowed and I concur in the making of the orders proposed by Gray J.
I agree with the reasons for decision prepared by Doyle CJ. I add the following comments on the question of causation.
Whilst accepting that there is no unique test for determining causation in “slipping cases”: Kocis v S E Dickens Pty Ltd [1998] 3 VR 408 at 433, I think the approach to resolving the issue of causation in the present case was appropriately summarised by Higgins J in Kelly v Lend Lease Retail Pty Ltd (1993) 113 FLR 21 when he said at 28:
“If it appears that no reasonable system for inspection and cleaning of the floor was in place having regard to expected hazards, it may be inferred that it is probable that if such a system had been in place then the fall would have been avoided.”
Presumably the word “may” in this passage does not suggest that a finding in favour of causation must be made automatically; the finding is to be made only if it is appropriate in the circumstances: Franklins Ltd v Hunter [1998] NSWSC 239.
This analysis by Higgins J was adopted by the New South Wales Court of Appeal in Franklins Ltd v Hunter [1998] NSWSC 329 and Allcorp Cleaning Services Pty Ltd v Fairweather [1998] NSWSC 291. It appears to be the same approach as that followed in Brady v GirvanBros Pty Ltd (1986) 7 NSWLR 241 at 254 where McHugh JA identified the crucial issue as “whether on the probabilities the evidence of a proper system would have removed the spilt oil before the plaintiff’s fall”.
In many of the cases, including the present, frequency of inspection will be a crucial factor in determining whether the defendant’s conduct was causative. As Hayne JA said in Kocis at 433:
“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 Priestly JA held in Brady’s case) it may be easier to conclude that it is more probable than not had such precautions been taken, the accident would not have occurred. If it is decided (as is implicit in Dulhunty’s[1] case) that frequent inspection of the defendant’s premises was not necessary, the proof of causation may well be more difficult.”
[1] Dulhunty v J B Young Ltd (1975) 50 ALJR 150
In the present case I am of the view that the system of cleaning and inspection was deficient and that, if a system of the type identified by the Chief Justice had been in operation, it is probable that the respondent would not have fallen and incurred the injuries which she suffered.
In my view, the issue of causation in the present case was not to be determined by a process involving the shifting of the evidentiary onus discussed in Chappel v Hart (1998) 195 CLR 232. In this respect I agree with the views expressed by the Chief Justice.
GRAY J:
This is an appeal against a decision of a Judge of the District Court dismissing a claim for damages brought by the appellant, Kaly Ragnelli.
At about 12.15pm on 20 September 1997 Ms Ragnelli fell down a flight of stairs at the David Jones department store, Rundle Mall, Adelaide. She suffered serious injury for which she claimed damages in negligence against David Jones, the first respondent, and Tempo Services Ltd, the second respondent.
Background
At the time of trial Ms Ragnelli was a single, unemployed woman aged 34 years. David Jones was the owner of the store in which the fall occurred, and Tempo Services was contracted by David Jones to provide cleaning services to its stores, including the Rundle Mall store.
On 20 September 1997 Ms Ragnelli entered the David Jones store from the Rundle Mall entrance. Immediately in front of the entrance was a flight of stairs descending to the lower ground floor food hall. The staircase consisted of about 20 steps (upper flight) then a landing followed by two sets of six steps (lower flights). The two lower flights adjoined the landing, one from either side. The stairs and the landing were constructed of a mottled grey marble stone. A brass banister rail ran alongside each side of the staircase. Between the banister and the stairs were clear glass panels.
Holding onto the handrail with her left hand, Ms Ragnelli descended the steps to the point where the landing separated the upper flight of stairs from the lower flight. As she stepped from the landing to the next step of the lower flight stairs on the western side, her foot slipped from under her, causing her to fall down the western lower flight of stairs to the lower ground floor.
Ms Ragnelli claimed her fall was caused by the slippery condition of the marble stairs and in particular by an oily substance present on the lower staircase. Ms Ragnelli claimed that David Jones was in breach of the duty of care owed to her as a customer of its store in two respects: first, in that it failed to implement a regime of regular inspections for detection of such spillages on the marble stairs and secondly, that it failed to ensure the prompt removal of the oily substance from the steps. Ms Ragnelli claimed that Tempo Services owed her a duty of care to take all reasonable steps to ensure that the marble stairs were clean and not in a slippery condition. She alleged that Tempo Services was in breach of this duty.
Ms Ragnelli suffered an injury to an invertebral disc for which she consulted her general practitioner who treated her with analgesics and anti-inflammatory medication. As a result of the injury she developed reactive depression and anxiety. She was later referred to an orthopaedic surgeon who arranged for lumbar facet joint blocks to be done. A discography also occurred, demonstrating the tear to the invertebral disc. Ms Ragnelli’s orthopaedic surgeon assessed the plaintiff as suffering from a 15 percent loss of spinal function as a result of her injury. She has continued to suffer ongoing pain and may require surgical intervention in the future. Prior to the incident, Ms Ragnelli was working full-time as an office manager at a pharmacy. Following the incident, Ms Ragnelli experienced difficulty returning to work even on a part-time basis.
The quantum of her damages has been agreed at $224,818.95. This sum is inclusive of interest as at trial.
Trial Judge’s Findings and Conclusions
At trial, conflicting evidence was adduced from Ms Donato, a first aid officer employed by David Jones who attended at the scene of the incident, and Gianni Ragnelli, who was then Ms Ragnelli’s boyfriend and is now her husband.
Ms Donato gave evidence that she asked Ms Ragnelli to tell her where she had fallen and that she inspected the area and failed to find any substance on the staircase.
Mr Ragnelli attended the scene of the accident shortly after it occurred. He also examined the area of the fall and gave evidence that he discovered an oily substance on the surface of the staircase. The Judge summarised his evidence as follows:
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.
The Judge found that an oily substance was present as described by Mr Ragnelli on the staircase:
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. [Counsel for Tempo Services] argument does not prove it. [Counsel for Ms Ragnelli] 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.
Having considered the evidence of Gianni Ragnelli, the Judge made a number of factual findings as to the nature of material spilt on the staircase and how it came to be there:
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.
…
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.
It was further held that the substance present on the surface of the stairs caused Ms Ragnelli to slip and injure herself:
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.
At trial it was agreed that David Jones owed entrants to its premises a duty of care. The Judge made the following findings in relation to the standard of care required to discharge that duty:
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 foreseeably 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. …
The Judge went on to consider the adequacy of the cleaning and inspection system in place and observed:
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.
After making these findings in relation to the inadequacy of the system, the Judge qualified his remarks on the basis that the spillage was difficult to detect. The Judge referred to the evidence of Mr Ragnelli and concluded:
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.
The Judge concluded that even if a reasonable system of cleaning and inspection had been employed by David Jones, it was unlikely that the spillage causing Ms Ragnelli’s injuries would have been detected:
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.
As a result, the Judge dismissed Ms Ragnelli’s claim.
The Judge did not make findings or determine the claim of Ms Ragnelli against Tempo Services or the claim for contribution between David Jones and Tempo Services. This unfortunate course was followed with the agreement of all counsel. It may have been thought to be expedient, but it has left this court unable to determine all issues. The matter is complicated by the fact that Tempo Services admits that it owed a duty of care to Ms Ragnelli. However the Judge made no findings about the extent or scope of that duty and whether the duty was breached. As will be discussed later, the Judge did not make findings about the terms of the contract between David Jones and Tempo Services. The course taken by the Judge to split the trial may have diverted his attention from the need to make factual findings on all relevant matters.
The Judge found that David Jones did not provide a reasonable standard of care. The cleaning system in place was inadequate. However, no finding was made as to the particulars of the omission of David Jones. The extent or scope of the duty owed was not outlined. The Judge had no relevant consideration to the terms of the contract between David Jones and Tempo Services and the system of cleaning and inspection that David Jones contracted to be established and carried out.
Analysis of Contract
A cleaning contract was entered into by David Jones and Tempo Services in September 1996. Under the contract, Tempo offered to perform cleaning services for David Jones’ retail stores. The terms of the contract are relevant to the assessment of the factors referred to in section 17C of the Civil Liability Act (2004) SA when determining the standard of care owed by an occupier. The terms of the contract assist in determining David Jones’ awareness of the heightened risk of spillages. The contract lays a foundation from which inferences can be drawn which are relevant to determining the standard of care owed.
By this contract David Jones established the structure of the cleaning and inspection regime throughout its Australian stores. Under the contract, Tempo was to provide labour and back-up labour. The contract required Tempo employees to pay particular attention to marble surfaces and to inspect and clean those surfaces continuously.
Section 5.1 of the contract concerned the cleaning of selling floor areas. The staircase to the lower ground floor was a public access area. Section 5.1 provided:
It is the responsibility of the [Tempo] to remove all spillage’s [sic] and foreign materials from all areas covered by these specifications, and including the whole of the selling floor and all public access areas, during trading hours of the stores. [Tempo] will put in place and adhere to a system of inspection and cleaning services of the stores which ensures that spillage’s [sic] and foreign materials are removed promptly at all times. [Tempo] will indemnify and keep indemnified [David Jones] for all liability arising out of any accident caused or covered by the specifications and including the whole of the selling floor and public access areas. [Tempo] will produce to [David Jones] evidence of an appropriate public liability insurance policy prior to commencement of the cleaning services contract and upon renewal of such policy from time to time.
Special instructions were outlined in respect of particular areas and surfaces in the store including the following:
All slate and marble areas must be maintained to a high finish at all times. (emphasis added)
Section 8 of the contract dealt with minimum labour budgets and relevantly provided:
The Company requires attendants available in store whenever the store is open to clean public toilets and attend to spillage’s [sic] and accidents on a continuous basis. (emphasis added)
The contractual standards set by David Jones are evidence of the standard of care provided by David Jones in its department stores throughout Australia. It is part of the evidence available to the trier of fact. It may prove to be a counsel of perfection. The terms of the contract allow conclusions to be drawn about David Jones’ awareness of danger; the appreciation of risk and the need for steps to be taken to obviate or lessen that risk.
The terms of the contract allow the conclusion that David Jones were aware of a particular danger, namely the risk that a clear oily substance may spill onto the marble surface of the stairs, and addressed that risk by monitoring and by cleaning standards outlined in the contract.
Occupier Liability
At Common Law
Recent developments of the common law with respect to occupier liability can be traced to the judgment of Deane J in Hackshaw v Shaw[2]. That case concerned the duty owed by an occupant to a trespasser. Deane J observed:[3]
[I]t is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of 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 plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk. Where the visitor is lawfully upon the land, the mere relationship between occupier on the one hand and invitee or licensee on the other will of itself suffice to give rise to a duty on the part of the occupier to take reasonable care to avoid a foreseeable risk of injury to her or him. When the visitor is on the land as a trespasser, the mere relationship of occupier and trespasser which the trespasser has imposed upon the occupier will not satisfy the requirement of proximity. Something more will be required. The additional factor or combination of factors which may, as a matter of law, supply the requisite degree of proximity or give rise to a reasonably foreseeable risk of relevant injury are incapable of being exhaustively defined or identified. At the least they will include either knowledge of the actual or likely presence of a trespasser or reasonable foreseeability of a real risk of such presence.
Whether, when a duty to take reasonable care exists, reasonable care has been taken is a question of fact to be answered in the context of the "all-embracing" considerations to which the Judicial Committee referred in Cooper and to which Fullagar J. had referred in Cardy . As Salmon L.J. observed in the course of his judgment in Herrington:
"What is reasonable care is only such care as is reasonable in all the circumstances of the case. The circumstances vary infinitely from case to case. Foreseeability of the likelihood of injury, the degree of risk, the gravity of the injury, are all circumstances which have to be assessed by the court and weighed against the burden which would be incurred by an occupier in taking steps to prevent injury before the court can decide whether or not negligence has been made out. The circumstance that the plaintiff is a trespasser, and the sort of trespasser he is, must clearly be of great importance."
[2] (1984) 155 CLR 614
[3] (1984) 155 CLR 614 at 662
In 1987 these observations of Deane J were adopted and applied by the majority of the High Court in Australian Safeway Stores Pty Ltd v Zaluzna[4]. In that case, Ms Zaluzna was injured when she slipped in the foyer area of a supermarket in Victoria. The vinyl tiled floor of the foyer had become moist as a result of wet weather. Ms Zalunza sought damages from the occupiers of the supermarket, alleging breach of the duty owed by an occupier to an invitee. In their joint judgment Mason, Wilson, Deane and Dawson JJ observed:[5]
The recent review of relevant authority undertaken by Deane J in Hackshaw, and by Mason J in Papatonakis, prepares the way for a more definitive statement on this aspect of the law of negligence in Australia. In Papatonakis Deane J referred to the reasons which he gave in Hackshaw and continued:
" ... it should now be again accepted in this country that the so-called `special duty' which an occupier of land owes to an invitee is, on analysis, properly to be seen as the ordinary common law duty to take reasonable care: `The duty is a duty to take reasonable care. The standard is the standard of the reasonable man', per Fullagar J, Commissioner for Railways (NSW) v Anderson . In that regard, the dissenting judgments of Lord MacDermott and Lord Reid in London Graving Dock Co Ltd v Horton accord better with subsequent developments in the law of negligence and are to be preferred, at least in this country, to the judgments of the majority of their Lordships which were largely rendered inoperative in England by subsequent statutory provision: see Occupiers' Liability Act 1957 (UK), s 2(4)(a)."
Mason J in Papatonakis said:
"In relation at least to a person in the position of an invitee, Anderson and Voli must be taken as settling that the duty of an occupier, even as it is expressed in the Indermaur v Dames formulation, is no more and no less than the ordinary duty of reasonable care."
[4] (1987) 162 CLR 479
[5] (1987) 162 CLR 479 at 484
The court applied the observations of Mason J in Wyong Shire Council v Shirt[6] on the issue of reasonable foreseeability. In Wyong Shire Mason J observed:[7]
A risk of injury which is quite unlikely to occur, … may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the plaintiff’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.
[6] (1980) 146 CLR 40
[7] (1980) 146 CLR 40 at 47
Recent High Court judgments have reinstated “reasonableness” as the unifying concept for the determination of claims based on a breach of a duty of care. The elements of the existence of a duty of care, the extent or scope of the duty, reasonableness and foreseeability, causation and loss cannot sensibly be considered in isolation. Each element may impact on another.[8] The observations of Mason J[9] addressing reasonable foreseeability provide a good illustration. Relevant matters may include the magnitude of the risk, the degree of probability of the occurrence, the expense and inconvenience of taking alleviating action, and any other conflicting responsibilities which a defendant may have.
[8] Tame v New South Wales (2002) 211 CLR 317 per McHugh J at [102]. See also Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [230]
[9] (1980) 146 CLR 40 at 47-48
The High Court judgments direct trial courts to consider the salient factors relevant to the existence of a duty of care and the scope of that duty in the particular case. What is the nature of the relationship between the plaintiff and defendant? If it is commercial, then what degree of control does the defendant enjoy? What resources are reasonably available to obviate or lessen a danger?
At common law the court must assess these salient factors and come to a conclusion about the nature and extent of any duty and whether in the circumstances the duty has been attended to or breached. Ultimately the issue involves a value judgment.
As earlier observed, when determining the liability of David Jones in negligence, it is necessary to have regard to the extent and scope of the duty of care owed by David Jones to entrants to its premises. When doing so, the Court must consider the factors outlined in section 17C of the Wrongs Act.
Statutory Intervention - What is Reasonable Care
In 1987 Part 1 B was introduced by amendment to the Wrongs Act 1936 (SA). Part 1 B is now re-enacted in the Civil Liability Act. This Part provides the framework for the consideration of the duty of care owed by an occupier. Part 1B relevantly provides:
17B In this Part, unless the contrary intention appears-
“dangerous” includes unsafe;
“landlord” includes a landlord under a statutory tenancy;
“occupier” of premises means a person in occupation or control of the premises, and includes a landlord;
“premises” means-
(a) land; or
(b) a building or structure (including a moveable building or structure); or
(c) a vehicle (including an aircraft or a ship, boat or vessel).
Occupier’s duty of care
17C (1) Subject to this Part, the liability of the occupier of premises for injury damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.
(2) In determining the standard of care to be exercised by the occupier of premises, a court shall take into account--
(a) the nature and extent of the premises; and
(b) the nature and extent of the danger arising from the state or condition of the premises; and
(c) the circumstances in which the person alleged to have suffered injury, damage or loss, or the property of that person, became exposed to that danger; and
(d) the age of the person alleged to have suffered injury, damage or loss, and the ability of that person to appreciate the danger; and
(e) the extent (if at all) to which the occupier was aware, or ought to have been aware, of--
(i) the danger; and
(ii) the entry of persons onto the premises; and
(f) the measures (if any) taken to eliminate, reduce or warn against the danger; and
(g) the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger; and
(h) any other matter that the court thinks relevant.
(3) The fact that an occupier has not taken any measures to eliminate, reduce or warn against a danger arising from the state or condition of premises does not necessarily show that the occupier has failed to exercise a reasonable standard of care.
(4) Subject to any Act or law to the contrary, an occupier’s duty of care may be reduced or excluded by contract but no contractual reduction or exclusion of the duty affects the rights of a person who is a stranger to the contract.
(5) Where an occupier is, by contract or by reason of some other Act or law, subject to a higher standard of care than would be applicable apart from this subsection, the question of whether the occupier is liable for injury, damage or loss shall be determined by reference to that higher standard of care.
(6) An occupier owes no duty of care to a trespasser unless –
(a) the presence of trespassers on the premises, and their consequent exposure to danger, were reasonably foreseeable; and
(b) the nature or extent of the danger was such as measures which were not in fact taken should have been taken for their protection.
…
17E (1) Subject to subsection (2), the Part operates to the exclusion of any other principles on which liability for injury, damage or loss attributable to the state or condition of premises would, but for this Part, be determined in tort.
(2) This Part does not apply to a case where an occupier causes a dangerous state or condition of premises, or allows premises to fall into a dangerous state or condition, intending to cause injury, damage or loss to another.
Section 17C(1) directs that the liability of an occupier for injury attributable to the dangerous state or condition of premises is to be determined in accordance with the principles of common law negligence. However, by section 17C(2) the legislature requires the court to take into account a number of specific matters when determining the standard of care to be exercised. Section 17E(1) confirms the paramountcy of the provisions of section 17C(2) over any other principles on which liability for injury attributable to the state or condition of premises would but for Part 1B, be determined in tort.
In Kocis v S. E. Dickens Pty Ltd[10] Ormiston J discussed the interpretation of sections 14B(3) and (4) of the Wrongs Act 1958 (Vic) when considering a negligence claim arising from a plaintiff slipping on a pool of detergent in the aisle of a supermarket. Section 14B(3) has some similarity to the terms of section 17C of the Wrongs Act 1936 (SA). It provides:
An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
[10] [1998] 3 VR 408
Subsection 14B(4) lists a number of factors to be considered when determining occupier liability including: the gravity and likelihood of the probable injury; the nature of the premises; the knowledge an occupier has of entrants; the ability of entrants to appreciate danger; and the burden on an occupier of protecting entrants from risks of danger. When considering the impact of this section on the common law of occupier liability, Ormiston J observed: [11]
The standard there expressed [in section 14B(3)] is so broadly stated that much of the earlier learning is for practical purposes superseded. In consequence the element which was previously seen to be important in slipping cases, namely the nature of danger and whether the occupier knew or ought to have known of it, no longer requires detailed legal analysis, those matters being merely factors among many others which have to be taken into account in determining whether the duty of care has been breached. In substance, therefore, the statute, while stating in broad terms the duty of care which the occupier owes, effectively gives to all entrants on premises a right to sue an occupier in negligence without the need to prove that the injury resulted from a “danger” of any specified kind.
[11] Kocis v S. E. Dickens Pty Ltd [1998] 3 VR 408 at 409
Whether the scope of a duty of care can be distinguished from the standard of care to be exercised may be problematic. Ultimately, the question of ‘what is reasonable care’ will depend upon the view taken of the facts and circumstances in the particular case.
Standard of Care Owed
As an occupier of busy commercial premises where members of the public are invited to attend to purchase goods, David Jones owes a heightened duty of care to entrants to its stores.
In Brady v Girvan Bros Pty Ltd[12] a customer in a busy shopping mall slipped on jelly on the floor of a common walkway. On appeal it was held that in the absence of any evidence of precautions being taken by the shopping mall, an inference could be drawn that the occupier ought to have known of the presence of the jelly and had failed to take reasonable care to prevent the injury it caused to the customer. Kirby P observed:[13]
The respondent was in charge of a large commercial enterprise. Undiscriminatingly, it invited members of the public to do business in that enterprise. It derived, by inference, an economic advantage from their presence in its mall. It must anticipate the presence there of members of the public of all ages, inclinations and capacities. It must be taken to be aware of the presence of the confectionery shop. It may be inferred to know of the special risks arising from the fall of such confectionery on a busy thoroughfare. Such risks would be particularly great in summer holidays where there would be likely to be greater demand and enhanced risks of melting and hence an enlarged chance of the dangerous deposit of slippery material in the very passageway where, because of the amount of traffic, risks of mishap would be increased.
…
If the circumstances are such that the dropping of substances is liable to cause a fall and if this was “inherently likely to occur”, the mere fact that the claimant (with imperfect knowledge or means of knowledge as to the system adopted by the occupier) cannot show precisely that such falls have been common and cannot prove exactly the precautions actually taken, does not deprive him or her of recovery from the occupier in the event of injury. If the inherent likelihood of spills is great, it is entirely reasonable that those coming onto the premises should be able to look to the occupier for a very high degree of care indeed.
[12] Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241
[13] Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at 246-247
The comments of Mc Hugh JA in Brady are also apposite:[14]
Whether or not the existence of a spillage gives rise to an inference of negligence must depend upon all the circumstances of the case. One circumstance of great importance is that the Minto Mall was a public place. 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. Equally important in determining what reasonable care requires is the importance to the community of accident prevention. The High Court has recently stated that accident prevention is unquestionably one of the modern responsibilities of an employer: McLean v Tedman … Bankstown Foundry Pty Ltd v Braistina …. Likewise, accident prevention is one of the responsibilities of those who for reward, direct or indirect, invite or permit members of the public to attend their premises. Members of the public are entitled to expect that appropriate steps will be taken to safeguard them against danger in using public places.
…
When many people are using public premises, reasonable care may require a system of almost constant inspection and cleaning-up of spillages and other rubbish unless the risk of injury is slight. In that class of case an inference of negligence may arise from proof of the occurrence, even though the plaintiff is unable to prove how long the spillage existed, because the occurrence gives rise to the inference that a failure to provide or maintain the required system caused the injury to the plaintiff. But when the risk of injury is slight or few people use the premises less care is required; reasonable care may require no more than that the premises be inspected and cleaned at regular intervals. In that class of care failure to prove the time between spillage and accident may be fatal; for the occurrence itself raises no inference that the accident was caused by the failure to have a proper system of inspection and cleaning. The accident may have occurred despite the existence of the appropriate system.
[14] Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at 254-5
McHugh JA concluded that in Brady, the occupier of the shopping mall did not have a proper system in place:[15]
The presence of the Mr Whippy store and the other stores made it inherently likely that from time to time slippery substances and rubbish would be thrown or left on the common ways. The risk of injury was no doubt increased by reason of the school holidays and the presence of children buying ice creams and other products. Moreover, in the centre of the walkway was a rotunda where people might sit and eat or drink. The risk of injury to users of the Mall from rubbish and slippery substances was both constant and real. Many people could be expected to use the premises. Each of them was immediately at risk once injurious material was thrown, placed or dropped on the floor. Reasonable care, therefore, required a system of continuous inspection and cleaning to eliminate accidents as far as was reasonably possible.
…
A real risk of injury should be eliminated unless the costs of doing so is disproportionate to the risk.… The cost of employing a full-time cleaner or the installing of an electronic surveillance system was not out of proportion to the risk of injury involved at Minto Mall.
[15] Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at 255
In Drakos v Woolworths[16] the plaintiff was injured by slipping on spilt oil on the floor of a supermarket. At trial Woolworths were found liable in negligence on the basis that the store had failed to exercise the appropriate care by taking reasonable steps to protect customers against slipping on slippery surfaces. It was held that Woolworths failed to provide an adequate system of watching, cleaning and supervision of the store floor. On appeal it was contended that the evidence did not support these findings and that the plaintiff had not proved that there was a causal connection between the injury suffered and the inadequacy, if any, of the store’s safety system. On the issue of liability, Olsson J and Zelling AJ dismissed the appeal. Olsson J considered that the evidence established a foreseeable risk of the floor becoming slippery as a result of spillages occurring from time to time. There was no direct evidence of a system in place to regularly clean or supervise the floor. Olsson J observed:[17]
… the evidence established an inherent likelihood of the floor becoming slippery … from time to time and reasonable care demanded a considerable degree of supervision of the floor areas. The system adopted by the appellant was plainly inadequate. The fact that the oily substance was present is an indication of inadequate supervision and prima facie evidence of a failure to exercise reasonable care leading to the incident which occurred.
[16] (1991) 56 SASR 431
[17] Drakos v Woolworths(SA) Ltd (1991) 56 SASR 431 at 449
The presence of an inherently slippery substance on the floor may itself show a lack of adequate supervision. [18]
[18] See also Kelly v Lend Lease Retail Pty Ltd (1993) 113 FLR 21
In Griffin v Coles Myer Ltd,[19] there was icing on the floor in the drapery section of a department store. Williams J reasoned that the mere presence of a substance on the floor may be sufficient to establish liability in negligence. It was said that the length of time the substance remains on the floor will not always be determinative:
If the occupier has under his control a substance, such as cooking oil, which is known to be highly slippery and dangerous if it should get on to a floor in a public part of the store, then he may well be negligent in allowing that substance to get onto the floor irrespective of any evidence as to the length of time it was there. [20]
[19] (1991) Aust. Torts Reports 68-997; [1992] 2 Qd R 478
[20] Griffin v Coles Myer Ltd (1991) Aust. Torts Reports 68-997 at 69-000, [1992] 2 Qd R 478 at 482
The case of Drotem Pty Ltd v Manning[21] involved a claim for damages for injuries resulting from a patient slipping and falling on an access ramp outside of a medical centre. Powell JA considered the particular standard of care owed by occupiers of premises regularly frequented by the public:
… [t]he courts have adopted differential approaches to the standard of care due to an entrant according to the use made of the premises. The cases cited indicate the difference in the standard applied to premises used for residential purposes and those to which members of the public generally are invited, namely retail, commercial, hospital or recreational premises. In retail or commercial premises as stated by President Kirby in Johnson there is an obligation to pay attention to accident prevention. In supermarket cases there is a positive obligation to put in place a system of regular monitoring and inspection of the condition of premises.
These authorities lead me to conclude that in a situation such as that currently before me the standard of care requires more than a reaction when a danger is made known, particularly so when the danger is the result of wear and tear from general public use over a period of approximately twenty years. There is no evidence that the defendant in this case conducted any regular inspection of the premises in the nature of a safety audit. In my view the law imposes on occupiers of retail and commercial premises to which members of the public are invited an obligation of regular inspection to ensure that they are maintained in a condition which is safe for general public use. More so in this case where there is a greater preponderance of persons attending for the purpose of seeking medical attention.
[21] [2000] NSWSC 320 at [36]
In Kocis the Victorian Court of Appeal considered a plaintiff’s claim for damages arising from an injury sustained after the plaintiff fell on a pool of liquid in the aisle of a supermarket. When considering the standard of care owed by occupiers of supermarkets, Phillips JA referred to the remarks of McHugh JA in Brady and observed:[22]
Once it has been determined that, because the spillage of slippery substances is to be expected from time to time, the operator of the supermarket is under some obligation, in taking reasonable measure for the safety of its customer, to look to the cleaning of the floors in the course of the day in order to protect against the risk otherwise arising from spillages, the question is what particular steps will serve to discharge that obligation. Each case will turn on its own facts. …
Where the circumstances are such as to require the operator of the supermarket to have in place some system of periodic cleaning and inspection to guard against the risk of injury from spillages, then the question for the jury (or other fact-finding tribunal) will be whether the defendant discharged that duty at the time of the plaintiff’s fall. If, in given case, the defendant is shown by the evidence to have had no system in place for the periodic inspection and cleaning of the floor; or if, such system being otherwise in place, it was not in operation at the relevant time; or if, perhaps, there was a system but the jury is of the view that it was less than adequate or less than was required by way of reasonable measures on the part of the defendant for the safety of customers including the plaintiff – then, the jury may find the defendant to have been in breach of the duty it owed to the plaintiff to take reasonable measures for the safety of its customers including the plaintiff.
[22] [1998] 3 VR 408 at 416
The Circumstances of the Present Case
As provided in section 17C of the Civil Liability Act, the court is required to take into account a number of specified factors when determining the standard of care owed by David Jones to entrants to its premises. These would appear to coincide with the relevant common law considerations.
The Nature and Extent of the Premises
The David Jones Rundle Mall store was a large-scale department store. It had a number of access points where members of the public were invited to enter the store. Escalators, lifts and staircases were provided to facilitate access to its numerous levels. Its interior was inviting and stylish, with numerous hard surfaces including marble. The store sold a wide range of items of clothing, furniture, electrical goods and foodstuffs. Eating areas and coffee shops were included throughout the store, in particular on the lower ground level. The staircase in question was located in the centre of the entry-level floor, where persons were invited to enter from Rundle Mall, a busy shopping precinct in the city of Adelaide.
The Nature and Extent of the Danger
The staircase where Ms Ragnelli fell was in a highly dangerous condition. A clear and difficult to detect oil was present on a dark, mottled marble step. The stairs constituted prime public access to a busy food hall. There was considerable foot traffic in the area. The spillage constituted a ‘hidden trap’ to customers descending the stairs. The nature of the substance spilt made the spillage particularly dangerous.
Once spillage of an oily substance occurred, a trap was created. As observed by Ms Fuller, an employee of Tempo and a cleaner at David Jones:
[Y]ou’ve got to be very careful with oil because as soon as you put water on it it becomes like a skating rink…
A considerable risk of injury arose from the state and condition of the stairs.
The Circumstance in which the Person is Alleged to have Suffered Injury
Ms Ragnelli entered the David Jones store with the intention to shop. She used the public access staircase to descend to the lower ground floor. She did so exercising care by holding onto the handrail. She was wearing appropriate footwear. As she descended the stairs she was confronted by a hidden danger – the spilt oily substance present on one of the dark marble steps. Ms Ragnelli slipped on the substance, lost her footing, and by virtue of gravity, fell down the remaining stairs to the lower ground level. The surface upon which she fell was hard and marbled, as were the stairs.
The Age of the Person and Their Ability to Appreciate the Danger
Ms Ragnelli was a young, apparently fit, fully employed woman. She had normal faculties and an ability to appreciate obvious risks of danger. However, the hidden nature of the clear oil spilt on a dark marbled surface affected her ability to appreciate the risk of danger in this case.
The Extent to Which the Occupier was Aware or Ought to have been Aware of the Danger
David Jones was fully aware that members of the public frequented its premises, and encouraged customers to do so. It was aware that persons of varying age and ability entered its premises for the purpose of purchasing goods. The store had numerous access points from Rundle Mall and its floors accommodated considerable foot traffic. Lifts, escalators and staircases were provided to facilitate public access between floors. David Jones was similarly aware of persons using the staircase to enter the food hall area and purchase substances, including oily substances, and return to the entry level via the same staircase. Further, David Jones was aware of the risk of spillages throughout the store, in particular in the food hall area. At trial David Jones staff acknowledged that spillages and slips were far more likely to occur in and around the food hall than other areas of the store. It can be said that David Jones was aware that large numbers of members of the public entered its premises. David Jones was also aware of the real risk of danger arising from the possibility of foodstuffs being spilt on the hard surface of the staircase.
Whether Reasonable and Practical Measures to Eliminate, Warn of or Reduce the Danger
As earlier observed, David Jones had a system of cleaning and inspection in place which involved a Tempo employee inspecting the staircase area approximately four times a day. A more comprehensive inspection and cleaning system was envisaged in the Cleaning Contract executed between Tempo and David Jones. Under this Contract, something close to continuous inspection of marble surfaces in close proximity to food areas was contemplated. The details of the Contract will be discussed later in these reasons.
It was reasonable and practical for David Jones to pay continuous attention to hard surface traffic areas and particularly those in close proximity to the serving and selling of food. Such areas require ongoing attention with a view to detecting and removing spillages. Due to the nature of the surface of the stairs, and having regard to the steady flow of foot traffic in the area, a reasonable and practical cleaning and inspection system would ensure any spillages were detected and removed within minutes. David Jones specified such a continuous system in the cleaning contract.
Other Relevant Matters
It is necessary to consider the degree of control the parties had over the premises and their own safety. Relevantly, David Jones had a high degree of control over the premises as a commercial occupier. It had the capacity and the opportunity to assess potential hazards and take steps to address them. David Jones had control over where the food hall would be located, the materials used on the floor of the store, the nature of popular walkways, the surface of stairs and the cleaning and inspection regime employed. David Jones’ steps to employ a third party to undertake the role of cleaning and inspecting the store indicate its high level of control over the premises.
It can be concluded that David Jones was aware of the risk of spillages occurring on the staircase in question. Once this risk is acknowledged there are a variety of ways in which it could be addressed. For example, the area could be carpeted or covered with another non-slip surface or warning signs could be erected. Each of these solutions would be described as practical and reasonable in the circumstances. However, from a commercial point of view, such solutions may not be considered attractive. It could be said that the visual attractiveness of the hard, marbled surface added to the ambience and general grandeur of the store. Similarly, warning signs may have the effect of deterring customers from entering the area.
By choosing to use a marble surface on the staircase, David Jones opted for a more commercially desirable solution. This may be said to be understandable in the circumstances. However, as a result of this choice, the nature of surface of the stairs called for a very high standard of care.
Conclusion on Standard of Care Owed
David Jones owed a duty of care to entrants to its premises. It operated a large-scale commercial enterprise. It was aware that it was attracting large numbers of members of the public to its premises. Those members of the public included the elderly, the young, the able-bodied and the disabled. David Jones engaged in methods of advertising and presentation of goods designed to capture and hold the attention of customers. It had a high degree of control over the condition of the premises and access to resources to address potential risks of harm. Entrants to the store, and the community in general, expected to be able to move around the premises safely and without risk of harm.
In relation to the particular stairs in question, the standard of care owed by David Jones was heightened by the close proximity of the staircase to the food hall area. This was an area where foodstuffs were sold, including substances known to be particularly hazardous if spilt, such as oils. It was an area where spillages were most likely to occur.
The risk of spillages and possible falls was increased by the surface of the floor in this area, being a dark mottled coloured marble. David Jones made a commercial decision to use a marble surface on the stairs and landing. No doubt this decision was made for aesthetic reasons to attract customers to the store. Other less slippery surfaces were presumably readily available. In light of the surface chosen, the standard of supervision of the area should have been heightened, particularly due to its close proximity to the food hall.
Having regard to the factors outlined in section 17C and referred to in the authorities referred to above, it is appropriate to conclude that David Jones owed Ms Ragnelli a heightened standard of care. This standard required particular attention to be paid to preventing or removing spillages on the surface of the stairs.
Breach of Duty of Care
The system in place in the David Jones store on Saturday 20 September 1997 involved one Tempo employee being responsible for the entire store. Her duties included emptying bins, attending to the public toilets and observing particular areas for spillages or other rubbish. At 11.30am and 1.30pm the Tempo employee had a practice of making a separate inspection of the food hall area, including the stairs and the landing where the incident in question occurred. Other than the one Tempo employee making observations, David Jones management relied upon security personnel and David Jones employees to report any hazards or spillages.
At trial, Veronica Beverley Fuller, a Tempo employee who worked as a day attendant on Saturdays at the David Jones Rundle Mall store, described the cleaning and inspection system at the time of the incident as follows:
[F]irst of all washing the entrances to the outside of the store.
…
…[W]e washed out the wheelie bins and put them out in ... the Food Hall in the back areas.
…
[C]heck on the powder room … and maybe clean one side that had been left from the previous night. By that time the store would be well and truly open.
…
[C]ollect some cardboards from each landing and then we started on bin checks up and down the escalator, servicing the toilets, we were popping in there every hour once the store was opened, there were two for the ladies and there was the public ones for the men on level one.
Q. What was involved in the bin runs.
..
Basically from six floors, you know those round bins that they had by the escalators for smokers and rubbish, we’d have to go through and empty them regularly because people were putting drink containers or food and that in them, so we’d go sort of down and around and up and empty every one in the store at the escalators and all the main entrances, and down in the lower ground.
…
Basically we went down right to lower ground, then came up, went to the doorway ones, and then go up the escalator, the other side, and do the bins on those sides.
Q. … [W]hen you get to the ground floor and step off the escalator at the ground floor what do you do there, where do you go then.
If it wasn’t down the escalator, we went down the stairs because there was two bins there, but I think it was we went down the escalator to lower ground and then went to the bins at the staircases on either side of the store, the main staircase, and then walk up and empty the bins there, at the main entrances.
…
Q. When in the lower ground floor, where exactly did you go from there.
Well towards the front of the store where the main staircase was because there was two landings, one came down to the Food Hall, one came down to stationery and records, and they both had those same bins there.
…
Q. How much of the stairs would you cover in that process.
All of them.
Q. So you’d walk up both flights of steps in the course of that.
Yes.
…
I came through on lower ground, I went to my right to the stationery department. There’s a bin there. So there’s five steps that come up to a flat landing where they had a display thing for the Food Court, and then I’d go down, and back up those stairs to go up the main…
…
Q. Would you check those stairs at the same time.
Yes.
Q. How often during the day would you do that.
Roughly about four times.
Q. Was there any particular attention that you paid to that staircase during the course of your duties generally.
A. No, just keeping an eye out all around, ground floor and lower ground, for anything that was spilt or dropped on the floor.
Q. Apart from that bin run did you have particular duties with respect to the Food Hall.
Yes, there were two bin checks with all the bins behind the counters that the staff were using, they were checked and emptied, and then we used to give a proper sweep behind the counters with a normal broom for the start and then outside we’d use one of those orange fringe mops and go around the Food Court then. That was twice a day, 11.30am roughly and then maybe 1.30 or 2 o’clock in the afternoon.
…
Q. Was [the Food Hall] checked at other times.
No, not unless something was there and they called us out. The manager of the Food Hall would page us if there was leaves blown in or something for us to come and give it a good sweep.
Considering the heightened standard of care owed, an adequate system of cleaning and inspection in the present case would have involved something close to continuous observation. Observations at least every few minutes would most likely suffice. Such observations would require close checking of the surface of the stairs due to the nature of the surface, its colour and the risk that spillages may not be easily detected. Given the nature of the surface, the close proximity to the food hall and the real risk of clear, oily substances being spilt, a very close checking of the surface of the stairs would be an essential part of an adequate system.
As earlier observed, the content of the cleaning contract provided the court with evidence as to what David Jones considered to be its required system of cleaning and inspection. As emphasised previously, the contract stated that ‘continuous’ cleaning and inspection were necessary.
The system provided by David Jones was inadequate. The finding of the trial Judge was correct. The evidence allows the following further findings to be made on the balance of probabilities:
-David Jones had authority and control over its premises.
-David Jones sought to maintain a high standard generally in its store. This included a high standard of cleanliness.
-David Jones recognised that many customers would frequent its store including its basement food hall and the steps leading to and from that floor.
-David Jones was aware or ought to have been aware that customers could include the able-bodied, the disabled, the elderly and the very young.
-David Jones was aware or ought to have been aware that a spillage of a clear oil on a dark, mottled marble step which formed part of a prime public access to a busy food hall constituted a ‘hidden trap’ to customers descending the stairs.
-As occupiers of busy commercial premises, David Jones owed a heightened duty of care to its customers.
-The nature of the surface of the stairs, their frequent use and their close proximity to the food hall gave rise to a need to employ a system of continuous cleaning and monitoring or at the very least, very frequent and close inspections.
Causation
Once breach of duty has been established, it is necessary to consider whether the breach was a cause of injury or damage. This is a question of fact to be resolved as a matter of common sense and experience.[23]
[23] Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 6 per Deane, Dawson, Toohey and Gaudron JJ
In Fitzgerald v Penn[24] the High Court observed that causation “is all ultimately a matter of common sense” and “in truth the conception in question [causation] is not susceptible of reduction to a satisfactory formula.” Similar observations have been made in other jurisdictions. In Alphacell Ltd v Woodward[25] Lord Salmon observed that causation is:
...essentially a practical question of fact which can best be answered by ordinary commonsense rather than abstract metaphysical theory.
In March v Stramare(E & MH) Pty Ltd[26] the High Court adopted the common sense view of causation advanced in Fitzgerald.
[24] (1954) 91 CLR 268 at 278
[25] [1972] AC 824 at 847
[26] (1991) 171 CLR 506
This approach was subsequently affirmed in Medlin v State Government Insurance Commission[27], Bennett v Minister of Community Welfare[28] and Chappel v Hart. [29]
[27] (1995) 182 CLR 1
[28] (1992) 176 CLR 408
[29] (1998) 195 CLR 232
In Bennett McHugh J summarised the position as follows: [30]
Whether or not a causal connexion exists between a breach of duty and any harm suffered by the person to whom the duty is owed is a question of fact to be decided on the balance of probabilities. The existence of the causal connexion is to be determined in accordance with common sense notions of causation and not in accordance with any philosophical or scientific theory of causation or any modification or adaptation of such a theory for legal purposes.
…
[30] (1992) 176 CLR 408 at 428
The application of ordinary commonsense would suggest that the conduct of David Jones was a material cause of the fall and Ms Ragnelli’s injuries. Had the stairway been kept clean on a regular, prompt and generally continuous basis, the risk of Ms Ragnelli slipping would have been removed or at the very least significantly diminished. This is the commonsense of the situation. The breach by David Jones was a material cause of Ms Ragnelli’s fall and injuries. Discussing the matter in greater depth should not be necessary.
In Bennett Gaudron J adopted another approach to the issue of causation and observed:[31]
Leaving aside cases involving some positive act and those in which an omission can be treated as a positive act, a case based on omission or a failure to act will, in certain respects, fall for analysis in a way that differs from that appropriate for a case based on a positive act. Thus, in the case of a positive act, questions of causation are answered by reference to what, in fact, happened. In the case of an omission, they are answered by reference to what would or would not have happened had the act occurred. In that exercise, the larger philosophical questions are brushed aside and the issue is approached on the basis that ‘when there is a duty to take a precaution against damage occurring to others through the default of third parties or through accident, breach of the duty may be regarded as materially causing or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm.’
In practice, it is not always necessary to inquire what would have happened in the circumstances under consideration had a positive duty been performed. Thus, in the case of a statutory duty, a breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty.
And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed, generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury.
[31] (1992) 176 CLR 408 at 420-421
In the present case, David Jones acted in breach of duty. The system utilised was inadequate. The incident that occurred was of the kind that might thereby be caused. This was sufficient to justify the inference, in the absence of any sufficient reason to the contrary that the incident did occur as a result of the omission of David Jones.
In Chappel members of the High Court discussed the circumstances in which a prima facie case of causation may arise. This has sometimes been referred to as a reversal of the evidentiary onus. McHugh J made the following observations in relation to this issue: [32]
[32] (1998) 195 CLR 232 at 247
…[T]he onus of proving that the failure to warn was causally connected with the plaintiff’s harm lies on the plaintiff. However, once the plaintiff proves that the defendant breached a duty to warn of a risk and that the risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case of causal connection. An evidentiary onus then rests on the defendant to point to other evidence suggesting that no causal connection exists.
Gaudron J observed: [33]
[33] (1998) 195 CLR 232 at 238
The duty was called into existence because of the foreseeability of that very risk. The duty was not performed and the risk eventuated. Subject to a further question in the case of a duty to provide information, that is often the beginning and the end of the inquiry whether breach of duty materially caused or contributed to the harm suffered. As Dixon J pointed out in Betts v Whittingslowe, albeit in relation to a statutory duty, ‘breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach.’
Gummow J similarly commented: [34]
Here, the injury to Mrs Hart occurred within an area of foreseeable risk. In the absence of evidence that the breach had no effect or that the injury would have occurred even if Dr Chappel had warned her of the risk of injury to the laryngeal nerve and of the consequent risk of partial or total voice loss, the breach of duty will be taken to have caused the injury.
Kirby J discussed the shifting evidentiary onus: [35]
One means of alleviating the burden cast by law on a plaintiff to establish a causal relationship between the breach and the damage concerns the evidentiary onus. Australian law has not embraced the theory that the legal onus of proof shifts during a trial. Nevertheless, the realistic appreciation of the imprecision and uncertainty of causation in many cases - including those involving alleged medical negligence - has driven courts in this country, as in England, to accept that the evidentiary onus may shift during the hearing. Once a plaintiff demonstrates that a breach of duty has occurred which is closely followed by damage, a prima facie causal connection will have been established. It is then for the defendant to show, by evidence and argument, that the patient should not recover damages. In McGhee v National Coal Board, a Scottish appeal, Lord Wilberforce explained why this was so. Although Lord Wilberforce’s statement in McGhee has proved controversial in England, it has received support in this Court. Its principle has also been accepted by international experts such as Professor Giesen. I find Lord Wilberforce’s exposition compelling:
'T]he question remains whether a pursuer must necessarily fail if, after he has shown a breach of duty, involving an increase of risk of disease, he cannot positively prove that this increase of risk caused or materially contributed to the disease while his employers cannot positively prove the contrary. In this intermediate case there is an appearance of logic in the view that the pursuer, on whom the onus lies, should fail - a logic which dictated the judgments below. The question is whether we should be satisfied, in factual situations like the present, with this logical approach. In my opinion, there are further considerations of importance. First, it is a sound principle that where a person has, by breach of a duty of care, created a risk, and injury occurs within the area of that risk, the loss should be borne by him unless he shows that it had some other cause. Secondly, from the evidential point of view, one may ask, why should a man who is able to show that his employer should have taken certain precautions, because without them there is a risk, or an added risk, of injury or disease, and who in fact sustains exactly that injury or disease, have to assume the burden of proving more: namely, that it was the addition to the risk, caused by the breach of duty, which caused or materially contributed to the injury? In many cases ... this is impossible to prove, just because honest medical opinion cannot segregate the causes of an illness between compound causes. And if one asks which of the parties, the workman or the employers, should suffer from this inherent evidential difficulty, the answer as a matter of policy or justice should be that it is the creator of the risk who, ex hypothesis must be taken to have foreseen the possibility of damage, who should bear its consequences.’
[34] (1998) 195 CLR 232 at 257
[35] (1998) 195 CLR 232 at 273
Approached in the manner suggested by these observations, the question of causation is to be resolved in favour of Ms Ragnelli. The duty owed by David Jones was called into existence by the foreseeability of a risk of slipping on a substance left on the stairs having regard to the proximity to the food hall. In the absence of evidence that the breach of duty had no effect the injury is taken to have been caused by that breach.
In Chappel v Hart McHugh J considered an alternative approach to causation based on the issue of increased risk: [36]
If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant’s conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring.
In the present case the breach of duty by David Jones increased the risk of injury to Ms Ragnelli. That risk eventuated.
[36] (1998) 195 CLR 233 at 244
In Brady, Priestly J took the view that the issue of causation in spillage cases is closely related to the issue of breach of duty:[37]
My view on the issue of causation is related to my understanding of the duty which lies upon the defendants in this class of case. The duty arises from the following factors: the public nature of the premises; the defendant’s interest in encouraging the greatest possible number of people to come there; the likelihood of spillage accidents in the common public part of the premises unless very carefully guarded against and the general expectation which in my judgement exists in the community that the persons in control of areas such as that where the plaintiff slipped will guard very carefully against such dangers. The duty upon the persons in charge to which the foregoing factors give rise is to have such a system of watching for the happening of (inter alia) spillages as will enable them to be removed promptly after their occurrence.
…
Upon my view of the defendant’s duty to persons such as the plaintiff it seems to me that on the undisputed facts of this case if the duty had been carried out it is more probable than not that the jelly which caused the plaintiff’s fall would have been seen and moved before she slipped on it.
[37] Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at 248-249
When considering whether the failure of David Jones to provide an adequate system of cleaning and inspection was a cause of the plaintiff’s injury, the remarks of Ormiston JA in Kocis are also apposite:[38]
In my opinion, if one accepts that the respondent was guilty of a breach of its duty of care, the question ought to have been left to the jury whether that breach was a cause of the appellant’s injuries, which had and still has to be resolved in a common sense way. It was therefore a question whether the failure to have in force on the morning in question a suitable means of detecting dangerous spillages and of ensuring that they were cleaned up was more probably than not a cause of the injury to the appellant resulting from her slipping on the Pine-O-Clean in an aisle of the respondent’s supermarket. This is not to be resolved by mathematical probabilities nor by reference to any supposed or ideal timetable whereby it might be assumed that the supervisor and the boy with the scissors broom might inspect or pass over the particular point where the Pine-O-Clean lay. Unless the cleaning system was actuated with precision at each point of the supermarket by some mechanical or computerised contraption, a thing inherently unlikely at the time of accident, then the test must be broadly stated and resolved by the jury without regard to any supposed ideal timetable.
[38] Kocis v S. E. Dickens Pty Ltd [1998] 3 VR 408 at 410
In Kocis, Phillips JA formulated the question of causation by reference to McHugh JA’s comments in Brady. His Honour observed:
In seeking to identify a causal link between defendant’s negligence and plaintiff’s injury, it is important, I think, that the question whether the one is a cause of the other – or whether the one would have been avoided but for the other – be posed by reference to the actual conduct or omission of the defendant which is considered to amount to negligence. Thus, in the type of case with which we are principally concerned the negligence will have been found in the defendant’s failure to have any system at all for inspection and cleaning on a periodic basis, or, if there be some system in place, then in the defendant’s failing to have it in operation at the relevant time or in its failing to have a system which is adequate in the light of what might reasonably be expected to deal with the risk of spillages in the area of the plaintiff’s accident. But whatever be the actual negligence of the defendant in a given case it is important that the question of causation be asked in relation to that negligence – and none other. Was the particular conduct or omission, which is found to constitute the negligence, cause of the plaintiff’s injury?
Hayne JA made the following comments in regard to the issue of causation:[39]
The question of causation is a question of fact. If, as McHugh JA considered to be the case in Brady, the evidence reveals how long the substance, concerned had been on the floor, the question becomes whether reasonable care would have led to its removal. But if it is not possible to say when the substance was dropped, it by no means follows that the evidence does not permit a conclusion that more probable than not the defendant’s breach of duty caused the plaintiff’s damage.
…
In my view it is open on those facts to conclude that it is more probable that the spillage occurred in the first seven hours of trading than it is that it occurred in the last hour. It would follow that had a proper system of inspection been implemented, it is more probable than not that the spillage would have been detected and removed. Implicit in the example I have given is that there is no basis for concluding that the spillage is more likely to have occurred at one particular time (or at some particular times) rather than others. That is, the example assumes an undifferentiated period of time in which the spillage may have occurred. That is why it would be properly condemned as ‘speculation’ to say that it is more probable than not that the spillage occurred at a particular time in that period; but that is not the chain of reasoning that is suggested. Rather, it is suggested that common sense dictates that where there is nothing pointing to a particular time as the time of occurrence, the longer the time under consideration, the more likely it is that spillage occurred during that time than in a different, shorter period.
[39] [1998] 3 VR 408 at 419, 432
In the present case, the Judge made a number of findings of fact that were relevant to the issue of causation. He found that a clear oily substance was present on the stairs at the time of the incident and that Ms Ragnelli slipped on that substance, fell down the stairs and suffered injury.
The Judge further found that the area in question had a surface which was prone to be slippery when wet. The surface was also one especially prone to the risk that customers would slip through a combination of heavy traffic, the proximity to the food hall and the nature of the surface. He found that the area required particular attention and a system of regular inspection and cleaning to detect and eliminate spills.
With respect to the system of cleaning and inspection then in place, the Judge found that the cleaner’s routine was to descend by the escalators from the top floor to the bottom floor and then travel back again in the opposite direction scanning the floor for obvious problems. This inspection would include the ground floor and the stairs and landing to the lower ground floor, where the cleaner would descend the stairs to the lower ground level and then travel up the other side of the stairs after inspecting the lower ground level.
No sufficient reasons have been advanced to dispute these findings of fact. Against this background, in light of authorities referred to above, it can be concluded that David Jones’ failure to employ an adequate system of cleaning and inspection in the staircase area was a cause of Ms Ragnelli’s injury. This conclusion is available under the approaches advanced by the High Court in Chappel, as well as the approach identified in Brady, and Kocis.
Pursuant to the approach taken in Brady, it can be said that had an adequate system of inspection and cleaning been in place, such as a continuous or near continuous careful inspection of the surface of the stairs in question, it was more probable than not that the spillage would have been detected and removed. An enquiry into the precise length of time the spillage was present on the staircase does not avoid the more pertinent question of whether an adequate system of cleaning or inspection would have detected the spillage and avoided the risk of harm.
Having regard to the shifting of the evidential onus approach to causation discussed in Chappel, it can be said that David Jones has failed to show that, had an adequate system been in place, it would not have detected the spillage.
Appeal Against Tempo Services
The Judge did not make findings on the issues joined at trial between Ms Ragnelli and Tempo Services nor on the claims for contribution between David Jones and Tempo Services. It is not possible for this court to address these claims on this appeal. Those outstanding matters should be referred to the trial Judge for determination.
Conclusion
The appeal should be allowed. Ms Ragnelli is entitled to judgment against David Jones in the amount of $224,818.95. The claim against Tempo Services by Ms Ragnelli and the contribution claims between David Jones and Tempo Services should be remitted to the Trial Judge for determination. The parties should be heard as to costs.
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