Scott v Patterdale Pty Ltd
[2000] QDC 356
•27 November 2000
DISTRICT COURT OF QUEENSLAND
CITATION: Scott v. Patterdale Pty Ltd & Ors [2000] QDC 356 PARTIES: GWENDA MAXINE SCOTT Plaintiff
And
PATTERDALE PTY LTD
ACN 003 996 883 Defendant
And
NOEL JOHN PRENDERGAST AND
COLLEEN MARY PRENDERGAST Third PartyFILE NO/S: D 968 of 1999 DIVISION: Civil jurisdiction PROCEEDING: Proceeding by claim ORIGINATING COURT: Maryborough DELIVERED ON: 27 November 2000 DELIVERED AT: Brisbane HEARING DATE: 8, 9 November 2000 JUDGE: Judge Robin Q.C. ORDER: JUDGMENT FOR PLAINTIFF AGAINST DEFENDANT FOR 70% OF AGREED DAMAGES. THIRD PARTY PROCEEDINGS DISMISSED CATCHWORDS: Torts - negligence - occupier's liability - slippery floor - "slipping case" - plaintiff established she slipped on a small amount of water tracked into the area just inside the main doors of the defendant's shopping centre - day was rainy and it had been raining before the fall - none of the usual wet weather precautions (mopping, absorbent matting or warning devices) had been taken, the defendant and third party (cleaning contractor) contending no need had arisen - court held insufficient vigilance had been applied in checking whether the precautions were required - defendant's system found deficient - third party proceedings dismissed - cleaners not shown to have departed from the system or breached their duty to the plaintiff - contributory negligence found against plaintiff.
Sleiman v. Franklin Food Stores Pty Ltd (1989) ATR 68, 827;
Griffin v. Coles Myer Ltd (1992) 2 QdR 478;
Boyle v. G J Coles & Co. Ltd (1969) QdR 445;
C F Brady v. Girvan Bros Pty Ltd (1986) 7 NSWLR 241;
Drakos v. Woolworths (SA) Ltd (1991) 56 SASR 431;
Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 CLR 479;
Kocis v. S E Dickens Pty Ltd (1996) ATR 63, 292;
Brown v. Target Australia Pty Ltd (1984) 37 SASR 145
Franklins Limited v. Hunter CA 40128/97 (1998) NSWSC 239 (1 May 1998);
Ward v. Tesco Stores Ltd (1976) 1 WLR 810
Mallows v Woolworths (Victoria) Limited, trading as Purity Supermarket (1998) TAS Supreme Court 85 (17 July 1998)COUNSEL: Mr P Goodwin for the plaintiff
Ms R Treston for the defendant
Mr S Lumb for the third partySOLICITORS: Carswell & Co for the plaintiff
Gadens for the defendant
Phillips Fox for the third party
The first heading in the judgment of Kirby P. in Sleiman v. Franklin Food Stores Pty Ltd (1989) Australian Torts Reports 68, 827, a dissenting judgment, was:-
"The perils of slippery floors and their litigation".
Cases at appellate level appear to demonstrate that such litigation brings more than the usual share of pitfalls for trial judges, whether they find for the plaintiff injured in a slip (Griffin v. Coles Myer Ltd (1992) 2 QdR 478; Boyle v. G J Coles & Co. Ltd (1969) QdR 445; cf Brady v. Girvan Bros Pty Ltd (1986) 7 NSWLR 241; Drakos v. Woolworths (SA) Ltd (1991) 56 SASR 431) or dismiss the claim: Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 CLR 479; Eggins v. Broomshead Bowling and Recreational Club Ltd (1986) 5 NSWLR 521; Kocis v. S E Dickens Pty Ltd (1996) Aust Torts Rep 63, 292; cf Sleiman (supra). The successful appeals in the non-Queensland cases (as the unsuccessful one might have) resulted in orders for re-trial. In Brown v. Target Australia Pty Ltd (1984) 37 SASR 145, the Appeal Court gave judgment for the plaintiff for the sum assessed as damages by the trial judge, who had dismissed the claim - the decision is seen as out of line with Australian authorities generally, to the extent it adopts the English approach of cases such as Ward v. Tesco Stores Ltd (1976) 1 WLR 810 in which an onus of proof switches to the defendant occupier. To similar effect to Brown, see Rose v. Abbey Orchard Property Investments Pty Limited (1987) Aust Torts Rep 68, 925.
There are other slipping cases in which appeal courts have left standing findings in favour of defendant occupiers (Dulhunty v. J V Young Ltd (1975) 7 ALR 409) or for the plaintiff: Shoeys Pty Ltd v. Allan (1991) Aust Torts Rep 68, 934.
A jury verdict in favour of the plaintiff was overturned in Hampton Court Limited v. Crooks (1957) 97 CLR 367. The plaintiff slipped in a hotel toilet on a slick of discoloured water said by one witness to be "of a greasy nature" a couple of inches wide and about 18 inches long regarding which her case was (quoting the principal judgment at 376):-
"that it was open to the jury to find that, prior to the accident, the appellant should have known about it. It could, of course, have known of it only if a constant vigil has been maintained in the retiring room but, if there was no reason for thinking that the ordinary use of the room might render the floor dangerous, why should this have been done? The appellant was under no absolute duty to ensure the safety of persons using the room; its duty was discharged by the exercise of reasonable care and it is impossible to see why the performance of this duty should oblige it to provide a constant guard against mere chance events which could not be foreseen. And, it may be said, that upon the respondent's evidence not merely is the conclusion open that the greasy or oily substance on the floor might have been the result of some unusual or chance event but that this is the most likely inference."
Referring to the area of wetness, Dixon CJ added at 371:-
"I do not think that proof of this fact was enough to enable the jury to infer negligence on the part of the defendant: proof was necessary of some additional circumstances tending, for example, to raise a probability of its having been there long enough to be seen if reasonable supervision were practised, or to show that so many people were likely to use the lavatory in the preceding hour that closer control was called for, or that the dropping of some such substance was common or inherently likely to occur. But very little might have been enough. For the case is one where the facts can hardly be within the knowledge of the plaintiff and, at all events so far as concerns the case and control of the premises and the precautions taken, must be peculiarly within the knowledge of the defendant: cf. per Isaacs J., Morgan v. Babcock & Wilcox Ltd (1929) 43 CLR, 63, at p. 178 and the cases there cited. But a plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant; all that it means is that slight evidence may be enough unless explained away by the defendant and that the evidence should be weighed according to the power of the party to produce it…"
In my opinion the authority of those passages is unaffected by the important decision in Zaluzna that occupiers of premises are subject to a "general" duty of care under the ordinary principles of negligence. The parties were content to accept the statements of principle by members of the Full Court in Griffin, which is, of course, binding on this court. In judgments agreed in by Shepherdson J., Williams J said at 481:
"The learned trial judge held that the appellant was negligent and assessed damages in the total sum (including interest) of $66,514.46. From that decision an appeal has been argued on the ground that the learned trial judge's finding of negligence was not justified on the evidence."
and at 483:
"… the evidence was not capable of supporting findings of negligence …
There is also the vexed question of causation. This raises the question whether the evidence would support an inference that an appropriate inspection and cleaning system would have avoided the injury (cf. the discussion by Clarke J.A. in Sleiman at 68,834-5). As was pointed out by this Court in Boyle, the risk of injury is often not so great as to require the constant presence through the store - particularly in an apparel section - of a cleaner ready to remove any foreign material immediately it has fallen to the floor. The learned trial judge did not address the question of causation. In my view the evidence does not permit a finding of causation against the appellant."
and of de Jersey J at 484:
"The difficulty ultimately facing the respondent is the absence of any evidence establishing, directly or by inference, for how long the icing had been on the floor before she slipped on it. The accident occurred during a busy period of the store's operation that day. The icing could possibly have been dropped to the floor only moments before the respondent happened upon it. One does not know.
It fell to the respondent to establish an omission by the appellant which contributed to the respondent's injury. Obviously the appellant's obligation to take reasonable care did not require the appellant constant surveillance over every square inch of the floor with facilities for instant removal of anything spilled or dropped (cf. Wyong Shire Council v. Shirt (1980) 146 CLR 40, 47-48). Not knowing how long it was before the respondent fell that the icing came to be on the floor, one cannot determine whether sufficiently regular cleaning would have led to its removal before she came upon the scene. As I have said, it may have fallen to the floor only moments before the respondent fell, and one obviously could not reasonably expect the appellant to have had a cleaning system which would have ensured its detection and removal in such circumstances, especially in view of its being in a drapery section rather than a foodstuffs section.”
Having considered all of the evidence in the present case carefully, I have concluded that the plaintiff establishes a case in negligence against the defendant. It is sued as the occupier of a shopping centre at Hervey Bay known as Pialba Place. Of the abovementioned authorities, Zaluzna is the closest one in its facts. The plaintiff slipped not far inside the automatic doors giving entry from the outside car park to the concourse of the shopping centre at about 8.20 am. on a Monday. The floor was polished terrazzo of a creamy colour, which (it was common ground) would be slippery when wet, quite apart from the effect the court was told of , of the water-based polish "dissolving" if water were allowed to remain on it for a long period of time - there was no suggestion that this occurred; water on that floor would not be easily seen by a person not looking out for it. The plaintiff was intending to do grocery shopping at the Coles Supermarket located in the shopping centre, according to her wont, when she slipped and fell, breaking her wrist. No-one at the time was able to identify any substance or particularly slippery area on the floor which might have explained the accident. I accept the plaintiff's evidence that she noticed wetness on her clothing at the bottom of her back when there was pressure from the seat in the ambulance which conveyed her to hospital. I am satisfied the explanation of this wetness is that it was water on which the plaintiff slipped and which was soaked up by her clothing once she was on the ground. When others came to her assistance after her fall, she was seated on a bench without a back, a satisfactory explanation, to my mind, for the wetness of clothing not being noticed sooner. I regard the submission that the moisture came from the ambulance seat as fanciful.
The plaintiff was 60 when she had her fall on 28 June 1999. To all appearances, she was a sensible, fit and healthy woman. There was no suggestion she was hurrying or that she might fall over for some reason having nothing whatever to do with the condition of the floor. Mr Goodwin, for the plaintiff, referred me to a passage in Betty Kelly v. Lend Lease Retail Pty Limited SC1150 of 1998, (1993) ATR 81-216, (1993) 113 FLR 21, (1993) ACTSC 43 (16 April 1993) in which Higgins J. said:-
"28. It seems to be likely, therefore, that at the time the plaintiff fell, there were planter boxes, the surfaces of which were piled with woodchips. It is probable that the plaintiff slipped on a woodchip dislodged from a nearby planter box. It seems to me highly likely that there was a woodchip on the floor upon which the plaintiff slipped and fell as she walked from J B Young's store towards the exit from the centre. There was no other explanation for her fall. Spontaneous collapse is, to my mind, a quite fanciful explanation. It is not likely that, if the plaintiff had slipped on some other object, its presence would have escaped Mrs Stallion's scrutiny."
(Mrs Stallion was the plaintiff's daughter, who was close by her when she fell.) All of these cases depend on their own facts, and is his Honour's statement can in no way be regarded as an authoritative statement of principle. I agree with him, however, in his general approach to a slip by a shopper behaving normally on an even, flat floor. In a supplementary written submission dated 17 November 2000, Mr Lumb referred to Mallows v Woolworths (Victoria) Limited, trading as Purity Supermarket (1998) TAS SC 85 (17 July 1998), in which Cox CJ found the plaintiff's constitutional soundness of no avail to her. She slipped and broke her wrist while being led by the defendant's employer along a corridor behind the public area of its supermarket to a job interview. Griffin was applied.
The present case seems to me a very different one from Griffin, where the icing-like substance on which the plaintiff slipped, if it came from the defendant's store at all, came from a remote section, and was something most unlikely to be encountered in the women's drapery section. This is not a case of presence on the floor of water on which the plaintiff slipped being unexplained. Here, on the evidence (and also as a matter of common experience) there was an expectation that, in wet weather, water would get onto the floor inside the automatic doors through which the plaintiff entered, and give rise to a risk of customers slipping, which had to be guarded against. The precautions available included constant mopping of the floor (to the extent that the defendant on some days might engage a person over and above the ordinary cleaning staff to attend to it), placement of at least one of the now familiar yellow cones which warn of a slipping hazard, and replacement or supplementation of the usual 1.2m by 1.7m mat placed to straddle both sides of the automatic door with longer runners hired (and especially got in on the defendant's request from time to time) from a local dry cleaner. The likelihood of water being "tracked" onto the terrazzo floor in all kinds of ways, including by shopping trolleys and by dripping from customers' clothing and umbrellas was well known to the defendant and, furthermore, I would think is notorious generally.
One of the contests at the trial concerned the extent of rain on the morning. I would reject the proffered readings from Hervey Bay airport, 9 kilometres away by road, 7 kilometres as the crow flies, as quite unhelpful. Mrs Scott does not say it was raining when she parked her vehicle close to the automatic doors on arrival in the car park; she kept her umbrella in her bag. I accept her evidence that she had driven through rain and that at her home, there had been a heavy shower around 8 am. I accept the evidence of the Scotts' neighbour, Mr Graf (who happens to have a keen interest in rainfall and keeps his own records and a diary of comments) as to the raininess of the day. The weather was indubitably showery. The defendant's "surprise" witness, called after closing addresses, Mr Fenech said it has been raining that morning before he left home (page 211). (The trial was adjourned to Brisbane from Maryborough after the conclusion of Mr Fenech's evidence to give the plaintiff an opportunity to consider calling rebuttal evidence. There was no further evidence, but written submissions were put in on behalf of the plaintiff and the third parties.)
The centre manager, Mr Ash he said on the day of the accident, he wrote a report about it (exhibit 11). In it he said :-
"I (Ian Ash) was alerted by the duty cleaner Ian Anson at around 8.35 am and I immediately went to the seat in front of the Butcher shop. Gary Richards and Trudy Bendell were with Mrs Scott and Trudy told me it looked like her arm was broken. I immediately went to the phone in Bookshop 17 and called the Ambulance.
Both myself and Trudy Bendell stayed with Mrs Scott until the Ambulance arrived around 10 minutes later. I also called Ian Anson, the duty cleaner and we both scanned the floor area for anything that would make it slippery. Whilst we found a couple (2 or 3 only) drops of water, they were not broken or disturbed drops and the area around was dry. It was raining outside and these couple of drops had come from someone's clothing that had walked into the mall. This could have been after Mrs Scott had fallen or before.”
None of the precautions in the three categories mentioned above had been taken before the plaintiff's fall, but the court was told some were after it. Ignoring any service entrance normally used only by tenants of the shopping centre and their staff, there were two entrance for the general public, a south-eastern one (known as Hunter Street) and a northern one (known as Main Street); the Hunter Street entrance, which is the one where the plaintiff had her accident, was busier, and, at least in the relevant season of the year, the one that presented (by a considerable margin) the more serious problem of a wet floor in rainy weather. There was a kind of division of responsibility between the shopping centre management (represented by Mr Ash) and the cleaning contractors (the third parties, effectively represented by Mr Anson, who was working the "day shift" at the time, owing to Mr Prendergast's suffering from a protracted health problem) in relation to implementation of the wet weather measures. Expenditure had to be authorised by Mr Ash, whether for hiring of runner mats or calling in of additional staff to man the mop at the Hunter Street entrance area. (There was an interesting conflict of evidence, tending to cast some doubt on the defendant's case, as to whether the mopping activity was conducted by use of a "dry mop" or a "mop and bucket"). Mr Ash said that at times, the sound of rain on the roof above his internal office would lead him to authorise the hiring of mats; otherwise, he would act on a request by the cleaner. The cleaner appears to have had responsibility for putting out the yellow conical warning devices and, over and above scheduled professional cleaning (presumably when the shopping centre was free of customers) conducting "rounds" through the centre, which would see the cleaner always on the move, and taking about a quarter of an hour or so, depending on what had to be done; these rounds provided the occasion for inspecting floors. Mr Anson's duties included activating the automatic doors at Main Street and Hunter Street just before 8 am, when customers were admitted. The doors were unlocked much earlier in the morning and could be opened by simply pulling them apart, which people working in the centre, and perhaps others "in the know," would do; such people might track in water. Mr Anson was unable to say that he had got back to the Hunter Street entrance between his 8 am visit and the plaintiff's fall. It is not possible to find that he had done so and I think the probability is that he had not. He said (p. 135) he came upon the incident not long after the fall (I would infer on his first round after activating the doors). One would expect him to have recalled an inspection of the floor not long before. He appended his signature to Mr Ash's statement, Exhibit 11.
Mr Goodwin relied on Kocis (supra) and Franklins Limited v. Hunter CA 40128/97 (1998) NSWSC 239 (1 May 1998) as indications that (quoting the headnote in Kocis):
"evidence showing how long a spillage was on the floor may assist in answering that question (whether, on the balance of probabilities, the defendant's neglect … was the cause of the plaintiff's slipping) in some cases but such evidence (is) not essential to the plaintiff's success."
There is a pertinent discussion in Fleming, The Law of Torts (9th) at 505-06:-
"Supermarkets
Responding to strong community expectations of safety in public malls, supermarkets and the like, has been a tendency to demand a very high standard of safety precautions, in effect straddling negligence and strict liability. In the traditional view, when a shopper slips and falls on a spilt substance, the burden is on him to prove that the defendant's inadequate maintenance and supervision of the area cause his injury. But courts have become increasingly sensitive to the plaintiff's difficulty of proving the cause issue of how long the substance has been lying around. The English are apparently prepared to reverse the onus of proof; Australian courts, precluded by precedent from following this line, have sometimes, though not always, reached the same result by postulating that reasonable care in the circumstances required a system of constant inspection and cleaning-up. In particular, the absence of any system of periodical inspection permits an inference of causality, without concentrating on the time the substance might have been spilt. The public nature of the premises, the defendant's interest in encouraging the greatest number of people to come there, the likelihood of spillage and the general expectation of safety precautions anchor this high standard of care. The spillage of foodstuffs at or near food centres calls for special vigilance. Where, in contrast, the risk of injury is slight and fewer people use the area, reasonable care may require no more than inspection at regular intervals, when a plaintiff would not be relieved from proving the time interval between spillage and accident."
In my opinion, the system devised by the defendant to deal with the appreciated risk to customers traversing the Pialba Place Shopping Centre in the area inside the Hunter Street doors of slipping on water that might get onto the floor there fell short of the standard of reasonable care required in the circumstances. The entrance was regarded as a problem one. The centre's clientele was said to include a high proportion of older people. On a morning which had started out wet, I consider that wet weather precautions ought to have been implemented, or, at the least, that there ought to have been more frequent checking and assessment of the situation than the single cleaner's "rounds", which might or might nor have occurred at regular intervals, would offer.
One of the issues to which the parties devoted attention was just how far inside the doors Mrs Scott had moved when she fell. She places her fall much closer to the doors than other witnesses - who did not actually see the fall, but saw Mrs Scott on the ground. The defendant's "surprise" witness Mr Fenech, who operated the cobbler's shop in the centre, and who may have given evidence ignorant of that "issue" said he saw the lady he thinks was Mrs Scott on the floor some 5 feet inside the entrance - strongly supporting Mrs Scott. I think Mr Goodwin is right that if there had been additional mats (which Mr Ash said at page 78 "increased the mattage size 3-fold") or a similar matting arrangement apparently adopted at a nearby shopping centre at Urangan, the water on which I find Mrs Scott slipped would have been absorbed. The mat usually in place is relatively small, covering only part of the door opening, and would not be traversed by everyone entering the centre who might track water in. The strong probability is that the water on which the plaintiff slipped had been tracked in from outside. Having concluded that the defendant, by adopting an inadequate system, was in breach of its duty to the plaintiff and "negligent", I resolve the difficult causation issue in her favour. The probability is that had there been closer attention to the condition of the floor in the area where she fell, or extra matting, or the placement of the warning cone, the fall would not have happened. In the circumstances, I do not regard it as incumbent on the plaintiff to prove how long the water on which I find she fell was there.
Contributory negligence was pleaded against the plaintiff in the form of her failure to notice the water on which she fell. When Mr Fenech's availability as a witness was discovered at the very end of the trial, that contributory negligence claim was treated as amended to add an allegation that Mrs Scott was wearing inappropriate footwear, to wit, shoes having a heels of 1½ to 2 inches, which were worn in the sense of damaged by use, to boot. Notwithstanding Mr Fenech's confidence, based on his ability to identify shoes, rather than people, that Mrs Scott had taken those shoes to him for a quote for repair a couple of weeks before her fall, in light of her stout denials, I do not accept that evidence. She had asserted she was wearing flat lace-up shoes without any heel, which were brought to court and tendered after Mr Fenech gave his evidence. In this respect, I am unable to make a finding in line with Mrs Scott's evidence. The reason is the number of witnesses ranged against her, all of whom were prepared to swear that she was wearing footwear with a substantial heel, although there was considerable variation among them as to other detail, such as colour.
It was an unusual feature of the case that Mrs Scott had ranged against her a coalition of witnesses associated with the centre: the manager, the cleaner, the manager of the bookshop, the butcher and finally, the cobbler. The thought might have been open that these people had (or felt they had) some common interest in defeating the plaintiff's claim, but no assertion to that effect was made by Mr Goodwin, or put to them for their comment. I treat each of them as an honest witness (likewise the plaintiff and her witnesses) - which was, indeed, the impression they created while giving their evidence. I think each of them was proud of the Pialba Centre and of the part he or she played there, an observation I would extend to cover Mr Prendergast, and that this approach has resulted in an unwillingness to acknowledge flaw in the systems that have been devised and put in operation there, after a good deal of thought about it.
In the end, Mrs Scott having failed to persuade me she was wearing the eminently "sensible" footwear she recalled, and in the light of observations of judges in many of the cases noted above, with which I agree, that it is generally known in the community that floors of the kind in question may be hazardous when wet, a scenario likely to arise on a rainy day (see e.g. the view of Tadgell J in Zaluzna, noted by the High Court at 482), I think Mrs Scott must be found to have failed to exercise reasonable care for her own safety. I assess her responsibility in the matter at 30% - an assessment which coincides with (but which was reached by me before I became aware of) a case noted in the CCH Australian Torts Reporter at 16,851:-
".40 Slippery floor on rainy day.
The plaintiff slipped on a vinyl floor as she entered the defendant's supermarket. The floor was polished and kept buffed by the cleaners. Water had been brought on to the floor by the feet of shoppers and their umbrellas, and by shopping trolleys which were returned via this passageway. There was no mat or matting on the floor to absorb the water that was brought in. The defendant had a system of mopping up spillages which depended on whether the spillage was noticed and when a member of staff was free to mop it up. The plaintiff was wearing shoes with a smooth sole. Sadleir J. in the WA District Court, held the defendant liable for the plaintiff's injuries. He held that the wet floor constituted a "danger". Given that the defendant had a commercial interest in the entry of the plaintiff and that there was a real likelihood of injury on the day in question, the defendant should have taken steps to eliminate the build-up of water on a rainy day such as the one in question. The plaintiff's damages were reduced by 30% on account of contributory negligence. She had seen the water on the floor. The suddenness and force of her fall indicated that she was not treading as gingerly as she ought to have in the circumstances, and she should have been aware of the additional risks due to the fact that she was wearing shoes with a smooth sole and a minimal area of contact with the floor at the heels: White v. Action Food Barns (WA) Pty Ltd (13 September 1989) WA District Court, Sadlier J No. 5533 of 1998)."
The parties agreed the quantum of the plaintiff's damages (inclusive of interest) at $38,000. She should have judgment for 70% of that sum against the defendant.
The defendant instituted third party proceedings against Mr and Mrs Prendergast based on an asserted failure by them to comply with their contractual obligation as cleaners of the Pialba Centre to keep them in such a condition as to be safe for use by members of the public. This claim was rather at odds with the accolades Mr Prendergast and Mr Anson were accorded by Mr Ash from the witness box. What was required of the cleaning staff in the event depended less on contractual terms than on what evolved in the course of a co-operative exercise by centre management and the cleaners. Mr Prendergast assumed, on Mr Ash's request, various functions which had nothing whatever to do with cleaning or safety but involved him or his staff in checking the centre at least on a daily basis in scores of details relevant to its being maintained and presented to the shopping public in "spic-and-span" or sparkling condition as opposed to something more dilapidated or more run-down. It seems to me to have been established that during (the relevant) day shift, only one cleaner was to be provided. What he or she could achieve was necessarily limited, given the large size of the Pialba Centre. While there might have been an expectation that cleaning staff would get to the Hunter Street entrance roughly every 15 minutes, the exigencies of the job, such as spills or messes elsewhere, might preclude this. I do not think the third party was in any sense guaranteeing or committed to achieving a Pialba Centre which was safe for the public. I think the deficiency which leads to the defendant's liability was in its system, and that it, and not the said party, bears responsibility for the deficiencies.
Nothing has been placed before the court to indicate that the Prendergasts (or Mr Anson on the day) had acted unreasonably or in breach of duties that they undoubtedly owed to members of the public under the "neighbour" principle. The available resources would stretch only so far, and it cannot be suggested that the rain on the day or its effects were so dramatic as to have required Mr Anson to devote more of his attention and limited time to the Hunter Street entrance. The defendant, however, owed it to members of the public such as the plaintiff who might resort to the Pialba Centre on rainy days like the one in question, to devise a better system. The third party proceedings will be dismissed with costs to be assessed.
It appears there should be judgment in the action for the plaintiff for $26,600 with costs to be assessed on the District Court scale appropriate to a judgment sum under $50,000. The parties will be allowed the opportunity to submit for other orders.
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