Reid v Target Australia Pty Ltd

[2014] NSWCA 60

Court of Appeal

New South Wales

Case Title:

Reid v Target Australia Pty Ltd

Medium Neutral Citation:

[2014] NSWCA 60

Hearing Date(s):

29 November 2013

Decision Date:

17 March 2014

Before:

Macfarlan JA at [1]
Ward JA at [2]
Emmett JA at [103]

Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

EVIDENCE - whether primary judge should have drawn Jones v Dunkel inferences - whether other inferences should have been drawn in absence of oral evidence
TORTS - negligence - whether duty of care to monitor area outside leased premises for persons carrying beverages

Cases Cited:

Brady v Girvan bros Ltd t/as Minto Mall (1986) 7 NSWLR 241
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Strong v Woolworths Ltd [2012] HCA 5: (2012) 246 CLR 182

Category:

Principal judgment

Parties:

Trina Reid (Appellant)
Target Australia Pty Ltd (Respondent)

Representation

- Counsel:

Counsel:
T Molomby SC with M Daley (Appellant)
M T McCulloch SC with R Gambi (Respondent)

- Solicitors:

Solicitors:
Brydens Law Office (Appellant)
McCabe Lawyers (Respondent)

File Number(s):

CA 2012/244650

Decision Under Appeal

- Before:

Neilson DCJ

- Date of Decision: 

13 July 2012

- Court File Number(s):

DC 2010/376891

JUDGMENT

1. MACFARLAN JA: I agree with Ward JA.

2. WARD JA: Mrs Reid, the appellant, was injured on 27 September 2008 when she slipped and fell in front of a store occupied by the respondent, Target Australia Pty Ltd, in the Castle Towers shopping centre at Castle Hill. Mrs Reid brought proceedings in the District Court against both Target and the owner of the shopping centre (QIC Limited) seeking damages for personal injury based on the alleged negligence of the defendants. Before the commencement of the hearing, Mrs Reid settled her claim against QIC but it remained a party to the proceedings as the respondent to a cross claim that had been brought against it by Target.

3. The area where Mrs Reid fell was not leased to Target but it was an area (referred to as the Target Passive Zone) that Target was permitted, under its lease, to use for the purposes of "casual retailing". On the day in question, this was done by placing a portable wire basket, containing goods for sale, outside the store entrance.

4. Mrs Reid contended that Target was liable for the injury suffered by her. In essence, this was put on the basis that Target was or ought to have been aware of the spillage of liquid in the area outside its store where Mrs Reid slipped and fell and ought to have taken reasonable steps to have prevented Mrs Reid's fall (such as by cleaning the spillage itself, reporting it to the cleaners or the shopping centre management and standing guard over it until it was cleaned, or warning Mrs Reid of its presence).

5. Despite the pleaded particulars of negligence, which suggested otherwise (see, for example, [9] (h) and (i) of the further amended statement of claim), Counsel for the appellant (Mr Molomby SC) confirmed that it was not alleged that Target had an obligation to put in place a system for cleaning the area outside its store. Nor was there any allegation that the cleaning company engaged by QIC to clean the common areas of the shopping centre had been negligent in performance of its cleaning duties. It was, however, contended that Target had an obligation to monitor the Target Passive Zone, on reasoning of the kind articulated in Brady v Girvanbros Ltd t/as Minto Mall (1986) 7 NSWLR 241 (at 247).

6. The primary judge found against Mrs Reid on liability. Damages, had Mrs Reid been successful, were assessed at $296,034, with no deduction for contributory negligence. His Honour also dismissed Target's cross-claim against QIC. There is no appeal from his Honour's contingent assessment of damages nor is there any cross-appeal by Target from the dismissal of the cross-claim.

7. Mrs Reid appeals from his Honour's finding on liability. Particular emphasis is placed on two matters.

8. First, that his Honour did not draw an adverse inference, from the absence of evidence from the Target employee who was at the store entrance at the time (Ms Billows), that Target's employee had or could have seen the spillage of liquid on which Mrs Reid slipped. Second, that his Honour drew inferences from QIC's business records relating to the system of cleaning and inspection in place for the common areas of the centre, as to the presence of a cleaner near the area of the spillage shortly before Mrs Reid's fall and hence that the spillage had only been on the floor for a short period of time, notwithstanding that no oral evidence was called from a cleaner or from QIC in respect of the system of cleaning and inspection in respect of the common areas of the shopping centre.

Background

1. Mrs Reid's accident occurred at about 10.10am on a Saturday morning. She walked around a corner in the common area of the shopping centre towards the entrance of the Target store, passing a Wittner shoe store on her left and a Jamaica Blue café on her right. The café was situated in the common area of the centre opposite the entrance to the Target store and just outside the Target Passive Zone.

2. The Target store frontage, at the time, included a glass window extending at right angles to the Wittner store, there being a small corridor between the end of the Wittner store and the Target shop window that led to what seems to have been a fire door. The entrance to the Target store was through an open area to the right of the glass window between two pillars that were slightly angled. In front of the pillar to the left of the entrance, when facing the store, and within the Target Passive Zone, was the portable wire basket in front of which was the liquid on which Mrs Reid slipped.

3. Mrs Reid approached the left hand side of the Target entrance. Her evidence was that in the few seconds between turning the corner and her fall she saw no one else in front of her. As she approached the portable wire basket in front of the left pillar, she slipped and fell, catching her finger in the wire basket and twisting her ankle under the basket.

4. At the time of Mrs Reid's fall, Ms Billows, whose role was described as that of a store greeter or customer greeter, was at the Target store entrance in front of the pillar to the right of the entrance. Ms Billows came to Mrs Reid's assistance and administered first aid. Mrs Reid was helped to stand and her husband, who arrived shortly after the fall, brought her a chair from the nearby Jamaica Blue café on which to sit. Once Mrs Reid was settled, the then Acting Store Manager, Mr Mazzullo, was called. He arrived at the scene a short time after the fall, as Mrs Reid was about to leave.

5. A Target pro forma document headed "Incident Report" was completed, in handwriting, after the incident; it is not clear by whom. The document notes the time of the incident as being 10.25am and records that a copy had been provided to Mrs Reid. Mrs Reid's recollection was that the document was given to her by a woman (presumably Ms Billows).

6. A typed Target document headed "Incident Report & Investigation - Full Version" was also prepared in relation to the incident, apparently for the purposes of submission to the insurer. That document noted that the incident had been reported to Ms Billows; contained the same description of the incident as in the handwritten report; noted the time of the incident as 10.15 am; noted the aid given by Ms Billows; and included, under the heading "Additional Notes", against an entry described as "Detailed Description of Incident", the following:

   Lady was walking towards the entry of the store on her left side (refund counter side) when on approach she was walking close to the basket where the [sic] happened to be yellow liquid on the floor that spread towards the window under the basket (Liquid wasn't yet noticed and hadn't been reported). The lady slipped on the liquid ... she was helped up by the door greeter and given a chair as well as first aid. (my emphasis)

Primary Judgment

1. His Honour formed a favourable impression of both Mrs Reid and her husband as truthful witnesses. Indeed, his Honour noted that there was only one instance where he could not accept Mrs Reid's evidence, that being a point on which nothing turned (as to whether there were electronic security scanners at the entrance to the store).

2. His Honour accepted Mrs Reid's evidence as to the route she had taken; that she had started walking towards the Target store after 10am; and that she had been in the shopping centre for about two minutes prior to the incident. His Honour also accepted Mrs Reid's evidence as to what she saw as she approached the store, though in two instances the appellant complains that he misunderstood or wrongly recalled that evidence (his Honour not having the benefit of the transcript at the time of his reasons). His Honour said:

   [Mrs Reid] told me in her evidence-in-chief that she saw a lady in front of her and to her right. That clearly was the customer greeter. [Mrs Reid] told me that when she saw this lady she was "checking bags and welcoming customers". The plaintiff told me that she noticed that a display on the left side as she approached the entrance to Target, being a sale of cushions which were in a wire basket. That is not controversial.

   The plaintiff told me that she had that view in sight for a few seconds. She then slipped and fell onto the floor. She slipped on something wet ... (my emphasis)

3. His Honour accepted that Ms Billows, the store greeter, was positioned on the common area (or mall) side of the boundary to the Target store "very close to ... but not beyond the right hand pillar at the entrance to the [Target] store". His Honour also noted that the wire baskets in front of the pillars would have been on an angle at the time of the fall.

4. His Honour accepted Mrs Reid's evidence that what she had slipped on was a sticky wet yellow substance similar in colour to a "post-it" note and that the spillage went under the basket adjacent to the left hand pillar or column, extending from underneath that basket and onto the window or glass wall on the left hand side of that pillar (noting that the case had been presented on the basis that this was the direction in which the spillage had spread). His Honour noted that no evidence had been called to explain what the liquid was that had been spilt and that he did not know from the evidence what its original temperature, mass, volume or viscosity had been. His Honour also noted that Mrs Reid had noticed some ice in the middle of the spillage.

5. Turning to the two Target incident reports, his Honour said that the description of the incident contained in the "Additional Notes" section of the typewritten incident report could not have been provided by Mr Mazzullo of his own knowledge (since he was not there at the time and did not arrive until Mrs Reid was close to leaving). His Honour inferred that Ms Billows had provided that description and that the bracketed words in the report ("[l]iquid wasn't yet noticed and hadn't been reported") meant that the spillage had not been noticed by or reported to her.

6. His Honour noted that varying estimates had been given by Mrs Reid as to the distance of the store greeter from the spillage. He concluded that whether the store greeter was two and a half metres (as initially estimated by Mrs Reid) or five and a half metres (as conceded by her in cross-examination), when the store greeter was observed by Mrs Reid, she was not in a position to have seen the spillage. His Honour reached that conclusion on the basis of his recollection that the evidence of Mrs Reid and Mr Mazzullo was that one had to be about one metre close to the spillage in order to see it.

7. His Honour, having thus concluded that the spillage had not been noticed by the store greeter, went on later to comment that this could be explained first, on the basis that the spillage was so recent that the store greeter had not had the time to observe it and, second, because of her distance from the spillage.

8. The inference that the spillage was a recent one was based on conclusions drawn from the Selected Activity Report tendered by Target. On the face of the document it recorded persons at times and locations on level 3 of the shopping centre. There was also in evidence a Map and Map Location Legend identifying the locations which corresponded with entries on the Selected Activity Report.

9. Relevantly, the Selected Activity Report recorded that on the day of the incident a person ("C3") was at the "Jamaica Blue" location (number 31) at 9:47:57; at the "Between In Vogue" location (number 15) at 09:51:33 and again (after other locations) at 10:02:26; next at the "Outside Myers Next Phone" location (number 14) at 10:05:43; then at the "Fire Hydrant Wittner" location (number 13) at 10:09:34; and from there at the "Insport" location (number 18) at 10:11:33. Location 18 was shown on the map as being around the corner from the area leading to the Target store in the opposite direction to point 14.

10. Location 13 was shown on the map as being at the side of the Wittner store closest to the Target store and to the left of the pillar in front of which Mrs Reid fell. His Honour considered that it was clear that to get to point 13 from point 14 (which was around the corner diagonally opposite point 13 and further along the mall area past point 17), the cleaner would have passed point 17 ("Skids & Mathers"). There was, however, no record of C3 at point 17 at any time on the day of the incident.

11. A diagonal route from point 17 to point 13 (and the most direct route) would taken the cleaner across the front of the Target store entrance (whether through or around the Target store side of the Jamaica Blue café) and hence past the left hand pillar where Mrs Reid fell.

12. As to the timing of the fall, his Honour accepted that it occurred around 10:10am, accepting Mrs Reid's evidence as to the time taken by her to get to the Target store. His Honour inferred, from the route that he considered the cleaner must have taken, that the cleaner would have been in a position to see the spillage had it been there at or about the time that C3 was recorded as being at point 13. Hence his Honour inferred, that the spillage was clearly after 10:09:34 and held that the spillage occurred in a five and a half minute interval between 10:09:34 and 10:15.

13. His Honour concluded that there was no evidence that Target knew of the spillage prior to Mrs Reid's fall and that it did not have constructive knowledge of that hazard or risk. His Honour went on to say that:

    The only way that I might find that [Target] ought to have known is if the spillage had been other than recent; that the spillage had, for example, been made ten or fifteen or twenty minutes earlier, but everything points in the opposite direction.

14. His Honour noted that there was no evidence that the QIC cleaning services were provided otherwise than in accordance with the contract or that the provisions made by QIC for the provision of cleaning services were inadequate.

Appeal

1. The notice of appeal raised 10 grounds of appeal, though only part of the second ground of appeal was pressed. In summary, it is contended that his Honour erred:

   1. in making certain findings of fact that were against the evidence and the weight of the evidence;

   2. in drawing certain inferences concerning the shopping mall occupier's system of cleaning and inspection in the absence of evidence;

   3. in failing to draw a Jones v Dunkel ([1959] HCA 8; (1959) 101 CLR 298) inference in favour of Mrs Reid from the failure of Target to call the store greeter;

   4. in drawing inferences based upon an assumption of an absence of negligence in Target's system of cleaning when no such evidence was called by it as to its system;

   5. in excluding from the list of possible explanations as to why the store greeter had not noticed the spillage the possibility that her failure to observe it was due to her negligence;

   6. in finding that it would be onerous for a store greeter to observe those carrying beverages in or about Target's premises and the Target Passive Zone in the absence of evidence to that effect;

   7. in finding that Target's obligation of periodic inspection ought to be assessed as no greater than that falling upon the occupiers of the shopping mall, namely an inspection once every 20 minutes;

   8. in failing to find that Target's duty of care in the circumstances required an almost constant system of inspection and monitoring of the passive zone;

   9. in failing to draw inferences concerning the length of time the spillage was likely to have been on the floor in circumstances where the evidence permitted such inferences to be drawn; and

   10. in finding that Target did not have constructive notice of the spillage.

2. The particular factual findings raised by ground 1 of the grounds of appeal are as follows:

   (a) that the spillage was not obvious;
   (b) that the store greeter was not in a position to observe the spillage or the event giving rise to it;
   (c) that the information contained in a Target incident report (Blue 61) was provided by the store greeter;
   (d) that, construing the incident report, the store greeter had not seen the spillage and it had not been reported to her prior to Mrs Reid's fall;
   (e) that the passage of the shopping mall's contract cleaner was such that it was close to where Mrs Reid fell and last occurred shortly before she fell; and
   (f) that the spillage occurred after 10:09.34 am and would have been seen by the cleaning staff if it were present at or before that time.

3. The remaining inferences challenged under the second ground of appeal are that:

   (c) the cleaner (C3) followed a specific route and in particular followed a route that would take that cleaner "directly across the bay behind the Jamaica Blue coffee shop" (Red 29R);
   (d) the "Fire Hydrant Wittner" recording point was in the right angle between the entry to Target and the Wittner shoe store (Red 28F-G); and
   (e) that the purpose of the "wand system" was to record the movement of the cleaners to be sure they were doing their job properly (Red 30H).

4. The challenged factual findings and inferences thus focus broadly on the respective positions of the store greeter and the QIC contract cleaner at or about the time of Mrs Reid's fall; and as to what each could, or could not, (or should, or should not, be inferred to) have seen of the spillage.

Grounds 1 and 2 - challenged factual findings and inferences

Ground 1 (a) - that the spillage was not obvious

1. Mrs Reid's evidence was that she did not see the liquid on the floor before she slipped (explicable, it was suggested, by the fact that she was about 29 weeks' pregnant at that stage) but that she could later see the liquid from where she was sitting when she was helped up off the floor and sitting on the chair brought across from the Jamaica Blue café.

2. The liquid on which Mrs Reid slipped was variously described by her as being: a sticky yellow wet substance; liquid like that in a child's drink or "slurpee"; and some kind of "icee". Mr Mazzullo described the liquid as a "juice" and a "big puddle". The colour of the liquid was variously described as a light yellow or orange. The liquid was different in colour from that of the Terazzo flooring outside the Target store, which was a speckled colour.

3. His Honour's finding in relation to the liquid was not that the spillage was not obvious; but rather that one had to be about one metre close to the spillage in order to see it, i.e., it was not obvious until one was close to it. That finding was based on his Honour's acceptance of evidence from both Mrs Reid and Mr Mazzullo.

1. When asked in cross-examination to estimate how close one would have to be in order to see the liquid, Mrs Reid said "[l]ess than a metre, I don't know". She accepted that the "liquid was difficult to see unless you got pretty close to it". Mr Mazzullo's evidence was that the liquid was obvious when he walked up to it "within a metre" but he said that he could not see it from five metres away.

2. It was not clear how far away from the spillage Mrs Reid was seated after the incident, though she had indicated a spot on a photograph of the area. Mrs Reid suggested the chair was about 5 metres away from the spillage but it was accepted on the appeal that this could not have been correct. The distance from the spillage to the Jamaica Blue café area seating was agreed at trial to be about five to six metres and to be much closer to the Target store entrance than to the Jamaica Blue café. The fact that Mrs Reid could see the liquid from where she was sitting after her fall is of little assistance because the distance from that chair and the spillage was not precisely identified and, on any view, where Mrs Reid was seated was closer to the spillage than the position of the store greeter (who it is said should have seen the liquid).

3. His Honour's conclusion that the spillage was not obvious unless one was about one metre away has not been shown to be in error.

   Ground 1 (b) - Position of the store greeter

4. Issue is taken with two aspects of his Honour's recitation of the evidence relevant to the position of the store greeter: first, that he referred to her as "standing", whereas Mrs Reid had referred to the store greeter as having "sat there"; and, second, that his Honour's recollection was that Mrs Reid had said that the store greeter was welcoming customers and checking bags, whereas her evidence was that there was no else in front of her or in her vicinity at the time of the incident and her answer as to the store greeter welcoming customers and checking bags was said to have been descriptive of the role of the greeter and not what she was doing at the time.

5. As to the first, his Honour referred twice in his reasons to Ms Billows "standing": first, when his Honour said that he was applying a Jones v Dunkel inference in "accepting [Mrs Reid's] evidence as to where Ms Billows was standing at the time of the ...fall"; and, second, when his Honour said that "the customer greeter was standing five metres away from where the plaintiff fell" in the context of rejecting the proposition that the store greeter had seen the spillage (my emphases).

6. What Mrs Reid said, having been taken to a later photograph of the Target store entrance and asked about any changes she could remember, was that "[t]he lady [i.e., the store greeter] sat there". She did not elaborate further and, later, she said that she had marked the relevant exhibit "[t]o show that there was a lady there", without referring to whether she was sitting or standing. In contrast, the cross-examination by her Counsel of Mr Mazzullo appears to have been predicated on the store greeter standing at least when Mr Mazzullo arrived at the scene (which may have reinforced the impression in his Honour's mind that the store greeter's position was one that involved her standing at the location identified by Mrs Reid).

7. By reference to the transcript, it must be concluded that his Honour misstated Mrs Reid's evidence on that aspect of the matter. However, the only significance to which Mr Molomby points in relation to this discrepancy is as support for a submission that Ms Billows could not (as his Honour said Mrs Reid had told him) have been occupied in checking bags or welcoming customers at the relevant time. That submission appears to be predicated on a perhaps not unreasonable assumption that it would be likely, if not necessary, for the store greeter to be standing in order to perform those tasks. Mr Molomby submitted that if Ms Billows was sitting at the relevant time then it could be inferred that this was because there was nothing to occupy her attention and hence should have seen the spillage before Mrs Reid's fall. However, it was not suggested that the difference between a sitting or standing position would have affected whether the store greeter could, from that position (absent any focus on any other customers at the time), have seen the spillage. It was accepted on the appeal that the store greeter's position was in front of the entrance to the store near the right-hand pillar and that she was at least 4 metres (perhaps 4 and a half metres) from the portable wire basket where Mrs Reid slipped, since that was the estimated width of the area between the pillars.

8. Nor could any conclusion be drawn, from the fact that Ms Billows may have been sitting in the few seconds that Mrs Reid was in a position to see her at the store entrance, as to whether she should have seen the spillage as it occurred. In cross-examination, Mrs Reid said that when she turned the corner she could see quite clearly the front of the Target store and that, as she approached the basket, "[i]n front of me it was all clear, there was no one in front of me". On Mrs Reid's own evidence, therefore, the spillage must have occurred before she turned the corner. It is speculation to suggest that Ms Billows was not occupied with greeting duties at that time or that the spillage occurred with sufficient "kerfuffle" for it necessarily to have attracted her attention.

9. As to what Ms Billows was doing at the relevant time, when asked what she could see when she got to the point where she could see the entrance to Target, Mrs Reid said that:

   A: I can see the lady to the right she is - she does all the checking and welcoming customers and there is a - while I was going towards Target I can see the sale of the cushion to my left and there's the wire basket there where they put all the cushions. (my emphasis)

   Mrs Reid did not see anybody else in that vicinity and only had that area in her sight a "second, few seconds" before she fell.

10. His Honour set out his recollection of this evidence and said that Mrs Reid "told me that when she saw this lady [the store greeter] she was 'checking bags and welcoming customers'". His Honour further said that Mrs Reid had said that on the day of the incident there was nothing else in front of the Target store other than the two wire baskets and that "I have no note that the plaintiff said that on the day of the accident that there was no-one else in front of the Target store or that there was no one in between her and the store greeter".

11. His Honour again referred to his notes and recollection of the evidence as to what Mrs Reid saw as she approached the store as follows:

    The plaintiff said that there was nothing else, no thing, between herself and the entrance to Target except the two wire baskets on wheels containing the pillows. She did not say there was no one else present and indeed she said that when she saw the customer greeter, the customer greeter was in fact greeting customers and checking bags. (emphasis as per original)

12. It is by no means clear how the answer given by Mrs Reid (referred to at [44] above) should properly be understood. Linguistically, it reads as a general description although it was in answer to a particular question as to what Mrs Reid had seen. To the extent that the transcript adds punctuation that is an addition of the court reporter, presumably to indicate a pause of some kind. Though his Honour did not have the benefit of the transcript he did have the benefit of seeing Mrs Reid in the witness box and he obviously considered that her evidence (responsive to the question she had been asked) was as to what she had seen. Nevertheless, Mrs Reid went on to give evidence that she did not see anybody else in the vicinity and that there was no one else in front of her. Therefore, the distinction his Honour drew as to "nothing else" rather than "no one else" is not what Mrs Reid is recorded on transcript as saying.

13. It is submitted by Mr Molomby that an important part of Mrs Reid's case was not appropriately considered because his Honour made a finding of fact contrary to the evidence based upon his erroneous note of that evidence.

14. It is clear that his Honour misstated what Mrs Reid had said in relation to whether there was anyone in front of her, whether or not he misunderstood the import of the answer given by her to which I have referred at [44] above. However, his Honour's conclusion that Ms Billows was not in a position to see the spillage did not turn on whether or not she was otherwise occupied in attending to customers at the time; it was based on his Honour's acceptance of the evidence as to the distance from which the spillage was obvious. At most, the reference to Ms Billows checking bags and welcoming customers was a matter that may have given his Honour some comfort that the conclusion he had already drawn was correct.

15. His Honour had evidence before him as to the distance from which both Mrs Reid and Mr Mazzullo recalled that the spillage was obvious. That evidence was inconsistent with Ms Billows being in a position to see the spillage on the floor whether or not she was sitting and whether or not she was doing anything else at the time. Further, Ms Billows' position seems to have been at an angle to the right, and closer to the store than, the wire basket. At a distance of 4-4.5 metres on the right-hand side of the left-hand pillar, Ms Billows was not in a position, on the evidence before his Honour, to see the liquid in front of the wire-basket, notwithstanding its colour and volume.

16. Therefore, accepting that his Honour erred in his recollection of Mrs Reid's evidence and erroneously thought that she had seen Ms Billows standing and checking bags/welcoming customers, his Honour's conclusion that Ms Billows was not in a position to observe the spillage is not in error.

    Grounds 1 (c) and (d) - findings in relation to Target's incident report

17. Issue is taken by Mrs Reid as to the conclusion reached by his Honour that Ms Billows was the source of the information, and particularly the parenthetical statement, in the Target typewritten incident report. It is contended that his Honour erred in inferring that the liquid had not been noticed by, or reported to, Ms Billows.

18. Mr Mazzullo gave evidence that there was no written record prepared by Ms Billows. He said that after the incident he did an incident report "through our system" to notify Target of the incident. He said that "within 24 hours we are to do a staff incident report form on the computer" and that normally it is done "straight away", within the hour, and sent to the insurer. Relevantly, Mr Mazzullo said that he would have filled in "pretty much the majority" of the typed report. When asked where he obtained the information as to the additional details section of the form, Mr Mazzullo said that he used the information from Ms Billows. He had earlier given evidence that he took a statement from Ms Billows as to what she recalled of the event. Mr Mazzullo accepted that he was reliant on the accuracy of Ms Billows' report as to what had happened and as to whether she was telling the truth.

19. The appellant's submission that Target's typewritten incident report could have been simply a summary of Mrs Reid's version of events together with Mr Mazzullo's own observations upon his arrival at the scene is inconsistent with Mr Mazzullo's evidence as summarised above. Further, Mrs Reid's evidence that an incident report was completed for her by a woman from Target (which must have been a reference to Ms Billows) at the time of the incident supports Mr Mazzullo's evidence that he had used information from Ms Billows for the purpose of the typed report.

20. The appellant submits that even if Ms Billows was the source of the parenthetical note in the typewritten incident report (that the spillage had not been noticed or reported) caution should be exercised in accepting the statement there recorded since she had good reason not to tell the truth (such as criticism and possible loss of employment if she had seen the spillage and not taken action). Of course, on the appellant's case, criticism is levelled at Ms Billows whether or not she had actually seen the spillage, it being contended that she ought to have seen it. Therefore, it cannot necessarily be seen as self-serving.

21. In any event, this submission goes to the weight that might be attached to what Ms Billows had reported to Mr Mazzullo for the purposes of completion of the incident report to the insurer. Even without the inference drawn by his Honour from the report, the evidence as to the distance of Ms Billows from the spillage warrants the conclusion that Ms Billows could not have seen, and did not see, the spillage prior to the fall. There was nothing to support an inference in the appellant's favour that anyone else had drawn the spillage to Ms Billows' attention prior to the fall.

22. His Honour's conclusion as to the inferences to be drawn from the incident report was not shown to be in error. There was evidence that the report had been prepared by reference to information provided by Ms Billows and the inference that no one had reported the incident to Ms Billows is available by reference to the lack of any action taken prior to the fall to report the spillage.

Ground 1(e) and (f) - findings in relation to cleaner C3; Ground 2 - challenges to inferences drawn from the Selected Activity Report

1. These grounds relate to his Honour's findings as to the time the spillage occurred, by reference to inferences drawn from the QIC business records tendered by Target. It is convenient to deal with them together.

2. The relevant documents had been produced on subpoena by QIC and related to the system QIC had put in place in relation to the cleaning and inspection of the common areas of the shopping centre. They included a copy of the Cleaning Service Contract QIC had entered into with an external cleaning company and the Selected Activity Report referred to earlier. His Honour inferred that the report showed the movements of a cleaning staff member (C3) at various times during the day and that it recorded where a member of the cleaning staff was at particular times.

3. Pursuant to the Cleaning Services Contract, QIC's cleaning contractor was responsible, inter alia, for electronically recording detailed cleaning rotations of its cleaners as they completed cycles of the Centre's dedicated areas. Common mall areas during trading hours were to be inspected on a rotational basis every 15 to 20 minutes. Clause 45 of the Schedule to the contract made provision for the operation of an electronic "wand" recording system. Each contract cleaning staff member was required to sign out/sign in a "wand" to be used by him/her for each shift; all contract cleaning staff were required to log their travels throughout their designated areas; the "Wand system" was to be maintained in a fully operational state at all times; and any defects with the wands, "buttons" or the system were to be reported immediately.

4. In drawing the inference that the document recorded the position of a cleaner at point 13 (shown on the map as close to the area where Mrs Reid fell) at 10:09:34, his Honour referred to various provisions of the cleaning contract, noting in particular the requirement that cleaning staff were required to "log their travels throughout their designated areas". His Honour said:

   It is clear that the contract cleaning staff carried some electronic device which was registered at certain point[s] within the shopping mall. Those points are set out in the cleaning contract. The areas where the cleaners' movements were detected electronically and registered are contained in [the document at Blue 222].

5. Those conclusions are amply supported by the provisions of the contract to which his Honour referred. His Honour concluded that "[t]he point of the wand system ... is to record the movement of cleaners to make sure that they are doing their job properly and cleaning all those aspects of the mall that needed to be cleaned". That was an inference that in my view was properly drawn by his Honour, having regard to the obligations set out in the cleaning contract, to which I have referred above.

6. The appellant complains that there was no evidence from a cleaner or someone else familiar with its operation as to how the "Wand system" operated. It is not clear, for example, whether carrying the wand past particular locations automatically triggered an electronic response or it was necessary for the cleaning staff to press some button on the wand or otherwise activate it so as to enable the electronic registration that appeared on the Selected Activity Report. However, nothing turns on the precise method by which the electronic recording was triggered by the wand (i.e., whether automatically or by a deliberate act on the part of the cleaner).

7. Complaint is also made that there was no evidence as to the precise route that C3 took on the day or as to the usual practice of the level 3 cleaners in that regard or as to what were the precise positions of the points noted on the map as corresponding to wand recording devices. So, for example, it is submitted that point 13 might have been further from the point at which Mrs Reid fell (say, down the corridor at the back of the Wittner store). It is submitted that his Honour erred in drawing an inference as to the route C3 followed when there were alternative routes that could have been chosen.

8. Relevant to note in this context is that there was no recording registered at point 17 for the day of the incident at all. This gives rise to at least two competing inferences: that the device/wand at that point was not working or not properly activated or that C3 for some reason did not comply with the contractual requirement to inspect common mall areas during trading hours on a rotational basis once every 15-20 minutes. There was no evidence of any complaint by QIC as to the provision of cleaning services; nor was there any evidence of any malfunction of the wand used by C3 on the day. In the absence of complaint, the more likely inference is that C3 did cover the common mall areas in rotation and therefore that C3 must have passed close to point 17 at some point.

9. As to where, precisely, the recording device at point 13 was to be found, it might be inferred that it was at least relatively close to whatever matched the "Fire Hydrant Wittner" location, since other points appeared to correspond to store locations. It was suggested that it was possible that the recording point might have been accessed behind a fire door. Even if that were the case, any suggestion that C3 traversed between recording points behind closed fire doors would seem inconsistent with the required cleaning and inspection of the centre's common areas.

10. The conclusion of his Honour was that C3 had taken "a route which took him directly across the bay behind the Jamaica Blue coffee shop, from the right-hand front of the bay to the left bottom of the bay, walking across the front of the entry into Target". That is the most logical route, since it is more direct and would enable cleaning of an area otherwise left uncleaned. The suggestion that the cleaner would regularly traverse the customer seating at the Jamaica Blue café is unlikely and point 17 must have been intended as a wand recording point or it would not have featured on the map.

11. In any event, what is clear from the Selected Activity Report is that C3 was at point 13, somewhere in the vicinity of the Wittner store and towards the Target end of that store, at 10:09:34. Approximately two minutes later, C3 was at a location further away from which C3 would not have been in a position to see the spillage or the fall. Whether or not C3 passed across the area in front of the Target entrance, the fact that he was recorded at the point 13 means that, unless he travelled wholly through a corridor behind the fire door to get from point 14 to point 13, he must have passed reasonably close to the area of Mrs Reid's fall very shortly before the incident. Unlike the store greeter, on his route from point 13 to point 18 he would have been on the side of the wire basket closest to the spillage and more likely to have been able to see a spillage extending back under the basket to the near side window.

1. It makes no sense to suggest that someone who was required to inspect and clean the common mall areas on a rotational basis and whose movements were being electronically recorded would not have passed to the side of the area of Mrs Reid's fall at the point 13 location even if not directly in front. In particular, one would not readily assume that a cleaner required to clean the common mall areas would skirt or avoid those areas (at least without complaint by QIC, of which there was no record).

2. The absence of evidence from a cleaner (or from C3 himself or herself) as to the route that was taken does not point to error on the part of his Honour in drawing the inferences that he did as to the cleaner's route. Those inferences were properly drawnfrom the business records in evidence. Counsel for Target was able to plot a logical route by reference to the locations at which C3's presence was recorded (albeit accepting that there was no explanation for the lack of a recording at point 17). The fact that alternative inferences were open as to the actual route taken does not mean that his Honour was in error in concluding that it was likely that C3 had taken the most direct path between recording points, which would have placed him/her at a point close enough to the place where Mrs Reid fell to have seen a spillage of the colour and size as that in which she slipped.

Ground 3 - Refusal to draw Jones v Dunkel inference re failure to call Ms Billows

1. The circumstances in which Ms Billows did not give evidence at the commencement of the hearing were adverted to by his Honour. Medical certificates had been tendered to establish that she was unable to attend Court due to shoulder surgery that had been scheduled for the second day of the trial. The hearing was then adjourned, for other reasons, and when it resumed there was no evidence adduced from Ms Billows. At the time the hearing was adjourned (on 24 June 2012), his Honour adverted to the possibility that adverse inferences might be drawn if there were to be no evidence from Ms Billows, and no explanation for her absence, when the matter resumed.

2. His Honour did not ultimately consider that any Jones v Dunkel inference could be drawn, as to the issue whether Ms Billow had or ought to have seen the spillage, from the fact that she was not called. His Honour noted that he had drawn the inference from Target's incident report that Ms Billows had not seen the spill and that it had not been reported to her. His Honour went on to note that there was evidence from Mr Mazzullo that Ms Billows continued to be employed by Target up to mid-2009 but no evidence that she had continued her employment with Targe,t beyond that time and stated that there was no property in a witness and that Mrs Reid knew where Ms Billows lived and, had she wished to call her, could have done so.

3. The appellant submits that Ms Billows was not a witness that Mrs Reid would have been expected to call since Mrs Reid's case involved criticism of Ms Billows' conduct in either seeing the spillage and not taking appropriate action or in negligently failing to observe the spillage. It was further submitted (though not a ground of appeal) that there was a denial of procedural fairness in his Honour having suggested for the first time in his reasons that Mrs Reid could have called Ms Billows, in circumstances where his Honour had earlier drawn Target's attention to the adverse inferences that might be drawn if she was not called.

4. His Honour's comments did not imply any criticism of Mrs Reid for not calling Ms Billows; they simply noted that Mrs Reid could have done so, as her legal representatives were no doubt aware. As to the procedural fairness issue, it was not suggested that any application to reopen to adduce evidence would have been made by Mrs Reid had it been appreciated that his Honour had not yet determined whether an adverse inference should be drawn against Target from the fact that it did not call her. It should have been understood that determination as to whether to draw such an inference would need to be made on a consideration of the evidence and submissions before his Honour.

5. As to what inference, if any, his Honour should have drawn, the rule in Jones v Dunkel would not have permitted his Honour to find, as a positive inference, that Ms Billows had seen the spillage or that it had been reported to her; nor would it have permitted his Honour to choose between guesses or to convert speculation to inference. Nor would it mandate the drawing of an inference of the kind that Mrs Reid submits should have been drawn that Ms Billows ought to have seen the spillage, in the face of the evidence that the spillage was not obvious until one was about one metre away from it.

6. On his Honour's finding that the spillage could not be seen until about one metre away, and Mrs Reid's evidence as to where Ms Billows was stationed at the time, there was no available inference that Ms Billows had seen the spillage. Nor was there anything more than speculation as to the proposition that if she had been looking in the direction of the wire basket she would have seen the actual spillage occur. His Honour did not in my opinion err in declining to draw an adverse inference against Target on those issues.

Ground 4 - Target's system of cleaning

1. Mrs Reid contends that his Honour erred in drawing inferences "based upon an assumption of an absence of negligence in Target's system of cleaning", when no such evidence was called by it as to its system.

2. Evidence was, however, given by Mr Mazzullo as to the cleaning contractor employed by Target within its store and their usual practices and as to the duties of staff to keep an eye out for potential hazards and of the store greeter to be vigilant or keep an eye out for spillages - first, limiting this to spillages "within her area", which he described as being "where the roller door [at the entrance of the store] shuts inwards" and "in the general vicinity of the entrance to Target". He accepted that if staff noticed dangers to the public they were to report them as soon as they noticed them and that, if the danger was "something major", to stand guard at it.

3. Furthermore, the appellant conceded that there was no allegation that Target should have put in place a system for cleaning the Target Passive Zone itself.

4. Target submits that there was a reasonable system in place insofar as Target's staff were trained and instructed as to what to do when a spillage was seen within the store and there was no basis to suggest Target was aware of any defect in the system of inspection and cleaning employed by QIC's cleaners outside in the common areas. His Honour found that it was otiose for Target in effect to mirror what was being carried out by QIC's contract cleaners (and about which there was no complaint). There is no error in that finding. It is a matter of commonsense.

Grounds 5-8 - failure to exclude possibility of negligence in store greeter's failure to observe spillage; Grounds 6-8 - duty of care of Target in relation to inspection of Target Passive Zone

1. Mrs Reid submitted that Ms Billows, in compliance with her duties as store greeter, ought to have kept an eye on persons carrying drinks within the Target Passive Zone and further that if Ms Billows was not looking at Mrs Reid as she approached the store, and not taking steps as to her safety, then Ms Billows was not fulfilling her duties as a store greeter. It is contended that failure by Ms Billows to comply with her duties would amount to an act of negligence preventing Target's own system for customer safety being implemented. It was again submitted that a Jones v Dunkel inference should have been drawn against Target on this issue.

2. His Honour commented that to require everyone to watch somebody carrying a beverage would be an extremely onerous task and that it might make it impossible for the store greeter to carry out the other duties of the role.

3. Tendered in evidence was an extract from Target's "Asset Protection Manual", which his Honour accepted was a business record of Target. His Honour inferred, from the source of the document, that it was "not a formal duty statement as such but merely record[ed] part of the duties of the customer greeter". That document identified the greeter's primary role as "welcoming customers and providing Customer service" but also noted the equal importance of "[m]inimising [l]oss". The document went on to identify various steps as ones that could be taken to reduce "shrinkage" (i.e., theft), including not leaving the door unattended; making eye contact to all customers entering; constantly looking around and paying attention to others; being aware of customers and checking all bags over a certain size.

4. His Honour had earlier commented that the store greeter would not necessarily have seen the spillage had she looked towards Mrs Reid because she would not necessarily have been looking at the floor ahead of Mrs Reid in order to fulfil her role of making eye contact with customers entering the store.

5. The appellant argues that there was no evidence that, at the relevant time, the store greeter had any of the conflicting duties set out by his Honour, given the evidence that there was no one else in front of her or in the vicinity at the relevant time. However, Mrs Reid was only in a position to speak as to what she observed in the few seconds between turning the corner and the fall. Given that the spillage cannot have occurred in those few seconds (since Mrs Reid would presumably have seen someone in the vicinity had that been the case), it is speculation to suggest that Ms Billows would not have been occupied in other duties at an earlier time when the spillage must have occurred. The rule in Jones v Dunkel does not permit the drawing of a positive inference that any evidence that might have been called would be damaging to the case of the party who might be expected to have called the evidence. Moreover, the submission that had Ms Billows been looking at Mrs Reid she would have seen the spillage on the floor is inconsistent with his Honour's finding that the store greeter was not in a position to be able to do so. Grounds 5-6 have not been made out.

6. Grounds 7-8 go to the findings made as to any duty of care on the part of Target to inspect and monitor the Target Passive Zone. His Honour, addressing the submission that if there had been a requirement for periodic inspection by Target of the Target Passive Zone, and compliance with that requirement, the liquid would have been detectable, suggested that if Target had been required to have a periodic inspection that requirement would be no greater than that of QIC (i.e., for inspection at 20 minute intervals) and that this fall had occurred within a twenty minute period. The appellant contends that his Honour erred in failing to find that Target's duty of care "required an almost constant system of inspection and monitoring of the passive zone", having regard to the size of the area of that zone; that Target had an employee stationed there; and that Target did not prohibit customers bringing drinks into the store.

7. I have referred above to the evidence of Mr Mazzullo as to the duties of Target employees in relation to monitoring of potential hazards. The conclusion by his Honour that it would be onerous to expect Target to fulfil, in effect, the same task as employed by QIC's contract cleaners in the Target Passive Zone is not surprising. In circumstances where there was no criticism of the system of cleaning and inspection put in place by QIC, and his Honour found that Ms Billows was not in a position from which she could have seen the spillage, his Honour did not err in rejecting the proposition that Target should have implemented a system of constant monitoring of the area. The submission made for Mrs Reid was that it would not have been onerous for Ms Billows to look over the relevant entrance area, at the floor, every 30 seconds or so. Had she done so, on his Honour's findings, she would not have seen the liquid on the floor. Whether she could have seen the actual spillage occurring is pure speculation, since it is not known how it occurred. Criticism was made as to the way his Honour postulated it might have occurred, but his Honour was there illustrating the difficulties of speculation of this kind. Ultimately, his Honour's conclusion was that a reasonable person in the position of Target would not have taken any other precautions against a customer slipping on liquid in the Target Passive Zone. I see no error in such a conclusion.

8. The appellant also submitted that the placement of a store greeter would of itself create an expectation or assumption of safety on behalf of the customers approaching the store, which would of itself give rise to a duty of care. However, no such duty of care was pleaded nor is it clear how it is said that there was any breach of that duty in the circumstances as found by his Honour.

9. Finally, insofar as the appellant contended that the negligence lay in Target allowing customers with liquids that could spill and create a hazard for other customers to take those liquids into the Target Passive Zone, it was not established that the spillage was by a customer that Target had permitted to enter its store carrying a beverage, nor was it clear that Target had any ability under its lease to control the movement of persons in the Target Passive Zone.

10. I am not persuaded that his Honour erred as contended for in grounds 5-8.

    Ground 9 - failing to draw inferences as to length of time the spillage was likely to have been on the floor

11. It is contended that his Honour erred in failing to draw an inference that there had been a significant passage of time since the spillage. The appellant submits that evidence as to the quantity of, and the presence of ice in, the liquid meant that it must have taken "some time" to have melted.

12. Mrs Reid said that there was ice in the liquid and that it was melting. Mr Mazzullo described the liquid variously as "in one space spreading"; as spreading or flowing; as "one consistent area of spillage" that was spreading; and that it was running towards the basket. Whether it did so before, or as a result of displacement caused by, Mrs Reid's fall, Mr Mazzullo observed that the liquid was in front of and under the basket and had gone all the way back under the basket in the direction of the window. There was no suggestion that the liquid was to the right-hand side of the portable wire basket when one was facing the store, that being the side where the store greeter was.

13. The appellant noted that in Brady v Girvan the Court was prepared to draw inferences as to the time the substance (there, spilt jelly) had been on the floor. It was submitted that his Honour should have been prepared to draw such inferences in the present case.

14. In Brady, the most likely source of the jelly had been identified as a nearby Mr Whippy outlet; in the present case, while there was some evidence as to the sale of bottled refreshments from the Jamaica Blue café and of juice from a "Boost Juice" store some distance from the Target store, there was no basis for assuming that the "slurpee" was purchased from the nearby café.

15. In Brady, the inference as to time was drawn by reference to the existence of several patches together containing solids and liquids. In the present case, without knowing the state of the liquid when it was spilt (i.e., whether it was in a solid frozen state or whether, and to what extent, it had thawed), or the size of the receptacle it was in when it was spilt, it is difficult to see how his Honour could fairly have been expected to draw any inference as to how long it had been on the floor based only on the fact that after the fall it was described as a big puddle of liquid that was spreading and that had some ice in it. Moreover, the evidence as to the volume of the liquid was imprecise in the sense that Mrs Reid could not say how big the spillage was; Mrs Reid seems to have referred to another area (from that where she had fallen) where there was a spillage that she said looked "more like a splash" about 10 cm in diameter; and Mrs Reid said that there was more of the spillage under the basket.

16. His Honour's comments as to how the spillage might have occurred were clearly not findings. Rather, as noted earlier, they were indications by his Honour as to the difficulty of drawing an inference, from the evidence before him, that the spillage had been on the floor for more than a short period of time.

17. The appellant also submitted that his Honour had erred in failing to consider inferences in favour of Mrs Reid of the kind that it was accepted in Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 could be available, in the absence of evidence of a system of cleaning and inspection, based upon probabilities as to the time during which the spillage may have been present. In the present case, there was, however, evidence of QIC's system of cleaning and inspection of the area where the spillage had occurred and his Honour found that a cleaner present in the vicinity of the area where Mrs Reid slipped at about 10:09:34 (between one and six minutes before the time his Honour found that the incident had probably occurred). Those findings do not favour the probability of the spillage having occurred prior to 10:09:34.

18. In those circumstances, it cannot be inferred that, had there been a separate system of inspection of the Target Passive Zone by Target employees at intervals of 10-15 minutes, the spillage would have been detected in time to prevent Mrs Reid's fall.

19. His Honour did not err in not drawing the inference, based solely on the volume of liquid and presence of ice in the liquid, that the spillage had been on the floor for a substantial passage of time. Nor does the fact that there was no evidence from the C3 warrant the drawing of a positive inference that the spillage had been there for other than a short period of time.

    Ground 10 - finding that Target did not have constructive notice of the spillage

20. The bases on which it is contended that his Honour erred in this finding have been canvassed in dealing with the preceding grounds of appeal. For the reasons given above, this ground has not been made out.

21. No error has been shown in the findings of fact that were challenged. Although his Honour appears to have had a misrecollection or misunderstanding of Mrs Reid's evidence as to whether Ms Billows was, at the time of the incident, standing and actively welcoming customers and checking their bags, nothing turned on that error, in light of the critical evidence that one had to be about one metre from the spillage in order to be able to see it. Ms Billows could not have seen it from where she was positioned. Similarly, there was no error in the inferences that were drawn by his Honour and his Honour did not fail to draw inferences that should have been drawn. Hence, ground 10 is not made out.

Conclusion

1. For the reasons set out above, I am of the opinion that the appeal should be dismissed with costs.

2. EMMETT JA: This appeal is concerned with an injury suffered by the appellant, Ms Trina Reid, when she slipped and fell at the Castle Towers Shopping Centre at Castle Hill, New South Wales (the Shopping Centre). The respondent, Target Australia Pty Limited (Target), is the tenant of one of the stores in the Shopping Centre. On 27 September 2008, Ms Reid suffered injury when she slipped and fell near the entrance to the store occupied by Target. She sued Target in the District Court for damages in respect of her injuries.

3. On 13 July 2012, for reasons published on that day, the District Court gave verdict and judgment for Target against Ms Reid. However, the District Court found that, had there been a finding in Ms Reid's favour, there would have been judgment for her in the sum of $296,034. Ms Reid appealed to this Court from the orders of the District Court, as was her right under s 127 of the District Court Act 1973, given the District Court's alternative finding on damages.

1. Ms Reid's fall occurred in an area of the Shopping Centre described in the lease to Target of its store premises as the "Target Passive Zone". The Target Passive Zone is an area adjacent to the entrance to the Target store. Target's lease provided that Target may use the Target Passive Zone for casual retailing, with the permission of the landlord, and that the landlord may use the Target Passive Zone for casual retailing, with the permission of Target. The primary judge concluded that Target was an occupier of the Target Passive Zone. There has been no challenge to that finding.

2. Ms Reid's claim against Target was based on the fact that Target was an occupier of the Target Passive Zone and on the presence, at the entrance to the Target store, of an employee of Target described as a "Customer Greeter". The role of the Customer Greeter was two-fold. First, the Customer Greeter was required to welcome customers and provide service to them. Equally important was the role of "minimising loss" by conducting bag checks, responding to alarms and working with management to identify and report potential incidents of theft. At the time in question, the Customer Greeter was Ms Toni Billows.

3. On the day in question, Ms Reid was driven to the Shopping Centre by her husband. He parked their car in a car park on a level below the Target store. Ms Reid walked for about two minutes from the car to the Target store. She walked ahead of her husband, who was pushing a stroller with their child. As she approached the entrance to the Target store, she observed Ms Billows and a wire basket display on the left-hand side of the entrance to the Target store. She had that view in sight for a few seconds and then slipped on something wet and fell to the floor. Her right leg went forward and her left leg went sideways. She tried to hold onto the wire basket display to stop herself from falling and, in so doing, she hurt one of her fingers on the display.

4. Ms Reid was extremely frightened and upset because of the fall. She looked at her hand after she had fallen and observed that it was sticky and wet with a yellow substance. The backside of her pants was wet, indicating that she had landed on her buttocks in a spillage that extended underneath the display. Ms Reid thought that the spillage was a children's drink. Another witness described the spillage as "a big puddle". The hearing before the primary judge proceeded on the basis that the original spillage was in the area where Ms Reid slipped and fell, but that it subsequently made its way underneath the wire basket display.

5. The primary judge concluded that Ms Billows had not seen the spillage and that it had not been reported to her. His Honour concluded that the fact that the spillage had not been noticed by her could be explained in several ways. First, the spill was so recent that she had not had time to observe it. Secondly, she was a distance of some five metres from the spill and one had to be no more than one metre from it to observe it. Thus, his Honour concluded that there was no evidence that Target knew of the existence of the hazard or risk constituted by the spillage prior to Ms Reid's fall. Further, his Honour was not persuaded on the balance of probabilities that Target had the requisite constructive knowledge of the hazard. Therefore, he was not persuaded that there was a foreseeable risk of injury.

6. Ms Reid relied on a number of grounds of appeal, asserting that the primary judge made several errors in his fact-finding process. They might be summarised as follows:

   ·making findings of fact against the weight of the evidence;

   ·drawing inferences about Target's system of cleaning and inspection in the absence of evidence;

   ·failing to draw an inference in favour of Ms Reid from the failure of Target to call Ms Billows;

   ·drawing inferences on an assumption of an absence of negligence in Target's system of cleaning, in the absence of evidence;

   ·excluding from explanations as to why the Customer Greeter did not notice the spillage the possibility that the failure was the result of her negligence;

   ·finding that it would be onerous for a Customer Greeter such as Ms Billows to observe those carrying beverages in or about the Target Passive Zone in the absence of evidence to that effect;

   ·finding that Target had no greater obligation of periodic inspection than the occupiers of the Shopping Centre; namely, once every 20 minutes;

   ·failing to find that Target was under a duty of almost constant inspection and monitoring of the Target Passive Zone;

   ·failing to draw inferences concerning the length of time that the spillage was likely to have been on the floor, where the evidence permitted such inferences to be drawn;

   ·finding that Target did not have constructive notice of the spillage.

7. I have had the advantage of reading in draft form the proposed reasons of Ward JA dealing with all of the grounds in detail. I agree with her Honour's conclusions in relation to each of the grounds of appeal. Accordingly, I agree with her Honour that the appeal should be dismissed with costs.

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