JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : STONE -v- BERKELEY CHALLENGE PTY LTD & ANOR [2003] WADC 94 CORAM : FRENCH DCJ HEARD : 17-19 MARCH 2003 DELIVERED : 16 APRIL 2003 PUBLISHED : 29 APRIL 2003 FILE NO/S : CIV 2305 of 2000 BETWEEN : SHIRLEY STONE Plaintiff
AND
BERKELEY CHALLENGE PTY LTD
First Defendant
WOOLWORTHS (WA) PTY LTD
Second Defendant
Catchwords: Negligence - Occupier's liability - Contribution proceedings between defendants in respect of damage suffered by the plaintiff - Turns on own facts
Legislation: Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 WA, s 7
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Result:
Judgment for First Defendant Representation:
Counsel:
Plaintiff : No appearance
First Defendant : Mr D R Clyne
Second Defendant : Mr M L Greenland
Solicitors:
Plaintiff : No appearance
First Defendant : Pynt & Partners
Second Defendant : Greenland Brooksby
Case(s) referred to in judgment(s):
Blair v Curran (1939) 62 CLR 464
Dhu v Total Corrosion Control Pty Ltd & Anor [2002] WASCA 173
Schellenberg v Tunnel Holdings (2000) 200 CLR 121
Case(s) also cited:
Achron Pty Ltd v Serco Water (WA) Pty Ltd [2001] WASCA 141
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Boral Resources (SA) Ltd v Byrnecut Mining Pty Ltd [2001] WASCA 408
Brodie v Singleton Shire Countil (2001) 206 CLR 512
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Gondoline Pty Ltd v Hansford [2002] WASCA 214
Kondis v State Transport Authority (1984) 154 CLR 672
March v E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506
McLachlan v Purchas & Ors, unreported; FCt SCt of WA; Library No 980749; 21 December 1998
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Road Traffic Authority v McGuinness (2003) Aust Torts Rep 81-688
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Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Sault v City of Melville [2002] WASCA 84
Stevens v Brodribb Sawmilling Company Pty Ltd (1985) 160 CLR 16
The Council of the Shire of Wyong v Shirt & Ors (1980) 146 CLR 40
Tollos v ABC, unreported; DCt of WA; Library No 1125; 15 July 1985
Union International (WA) Pty Ltd v Mazurak & Anor [1999] WASCA 272
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1 FRENCH DCJ: In a statement of claim filed 13 June 2001 the plaintiff sought damages from the first and second defendants for injuries alleged to have been sustained when she slipped on a wet lunch room floor at her employer's premises at the Woolworths Supermarket in Bentley. The plaintiff claimed that the first defendant (the cleaners contracted to clean the store and staff areas) was negligent in failing to warn her of the wet floor and of failing to ensure that the floor was dry before she went into the room. The plaintiff also claims her injuries were caused by the negligence of the second defendant on the same grounds.
2 Both the first and second defendants denied the alleged negligence. On 30 April 2002 the second defendant consented to judgment against it and the plaintiff's claim against the first defendant was discontinued.
The contribution proceedings 3 On 26 March 2002 the second defendant filed a Notice of Contribution against the first defendant claiming contribution from the first defendant for damages paid by the second defendant to the plaintiff in the sum of $339,018.16 plus costs (including workers' compensation payments) pursuant to s 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947. 4 In an amended defence to the contribution claim the first defendant denies that the plaintiff suffered injury after slipping on a wet lunch room floor and denies the allegations of negligence. In addition, the defence to the contribution proceedings claims that the second defendant was precluded from making a plea or running a case that was inconsistent with the plaintiff's claim that the accident occurred on 20 June 1995. 5 When the matter came before the Court on 17 March 2003 the parties advised that an agreement as to quantum in the contribution proceedings had been reached leaving only the issue of the first defendant's liability to make contribution to the damages paid by the second defendant. The significance of the first defendant's claim that the second defendant was bound by the date of 20 June 1995 is that the first defendant claims that its cleaners did not wash the floor on that date which was a Tuesday. 6 It appears that there is an issue that has arisen that the date pleaded by the plaintiff and dealt with as the accident date in the determination proceedings before the Conciliation and Review Directorate may not be accurate. Although the second defendant disputes that the first defendant did not clean the floor on that day as it claims the contract required daily
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washing, the parties agreed that this point should be ruled on before the contribution proceedings commenced. 7 After hearing argument on 17 March I ruled on 18 March that the second defendant was not confined to the date of 20 June 1995 as the only date of the accident for the purposes of claiming contribution against the first defendant. The second defendant can only claim contribution from the first defendant for the injuries arising from the same accident and, therefore, the same claim from the plaintiff. There is no principle or doctrine of estoppel that operates so that no contribution could be sought if the evidence established that the accident occurred on another date. What is important is that the contribution claim related to the same accident whatever the date that may be. There was no suggestion that the plaintiff suffered another accident in the lunch room in and around the relevant time. In any event, the date of the accident is not a fundamental element of the plaintiff's cause of action. It is not an issue that has been determined by another Tribunal, either in the course of the Review Directorate determination, or as part of the consent judgment in this Court between the plaintiff and the second defendant. It was not a fact that was fundamental either to the determination or the consent judgment. (See Blair v Curran (1939) 62 CLR 464 at 532). Only the fact of the accident was fundamental – not the date as long as it was the same accident. Therefore the second defendant's plea that the accident occurred "on a date in June" is the basis on which the contribution proceedings proceeded.
Evidence in the contribution proceeding 8 The second defendant called evidence from the plaintiff, Shirley Anne Stone, as to the circumstances of the accident. At the time of the accident in June 1995 the plaintiff was employed at the first defendant's store in Bentley as a service supervisor. In June 1995 she described arriving at work at approximately 7.20 am and going to the staff lunch room on the second floor of the premises to place her lunch in the fridge. She was walking across the room when she slipped and landed on the floor on a flexed knee. She was wearing enclosed shoes with a low heel and rubber soles for traction because of the nature of her job. After she fell she noticed that the floor was wet. She said she did not know that the floor was not wet before she walked on it although she was aware that the cleaners cleaned the second level of the store at that time of the day. She stated that she was
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"aware that somewhere the floor up there would be wet because he cleaned the floor at that time that I came through in the morning so you were very conscious of the possibility of the floor being wet or somewhere the floor would be wet." 9 She stated that there were no warning signs anywhere and that there were never warning signs placed by the cleaners when they mopped the floor. 10 She stated that she did not know that the lunch room floor was wet until she fell. She explained that the tiles were white and shining and you could not see at first glance that the floor was wet because the lighting was not good. 11 In cross-examination she said that the room was poorly lit at that time of the day because the lights were turned on by management at 8.30. Prior to then the lighting was only partial or dim. This was the first time that the issue of poor lighting was raised. It was not referred to at all in the pleadings. Despite an objection from the second defendant I allowed questions relating to the lighting to be put to the plaintiff. On being further pressed in cross-examination the plaintiff stated that she had complained to management about the danger of the poor lighting but nothing had been done. She inferred in her evidence that the light switches or controls for the lunch room were located elsewhere, that is, not inside the room but in an office elsewhere on the premises. 12 Mrs Stone agreed that in a workers' compensation claim completed by her on 1 August 1995, she described her actions as "stepping over the wet floor which the cleaner had just washed". She disagreed that that comment suggested that she was aware the floor was wet before she walked on it. 13 Mrs Stone is unaware as to the precise date of the accident as she had been unable to enter the incident in the Accident Report Book maintained by the second defendant as it could not be located on that day. She made an entry into a personal diary she maintained at work but that had been thrown out at the end of 1995. She advised the Store Manager, Mr Crowle, of her accident later that morning. She did not seek assistance from a doctor until approximately six weeks after the accident so there was no information from a medical source as to the date of the accident. The only contemporaneous note - apart from her missing diary – was in the Accident Report Book by means of an entry made by Mr Crowle. After seeing her doctor approximately six weeks after the accident she
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rang and advised him that the accident date was 20 June 1995 and that was the date that appeared in the Accident Report Book. At the time she gave her evidence she did not have a precise recollection of the date of the accident other than it occurred on a date in June. She had assumed that 20 June was the correct date because that was the date recorded in the Accident Report Book. She denied that she now said that she is unsure of the date because she is aware that there is information that the cleaner may not have washed the floor on 20 June as that was a Tuesday. 14 Mr Peter Crowle is a supermarket manager employed by the second defendant. He was Manager of the Bentley Supermarket in June 1995 and recalls the plaintiff advising him that she had slipped on the lunch room floor because it was wet. The entry that he made in the Accident Report Book places the date of that accident on 20 June 1995. Mr Crowle conceded that it appears that the entry was made at a later date because it is out of chronological order with entries made on 21 , 25 and 26 June. He was not able to offer any explanation for that. 15 Mr Crowle gave evidence that the floor was mopped every day from Monday to Saturday. He stated that he had never received a complaint from the plaintiff in relation to the lighting in the lunch room. He confirmed that an entry in the Employer's Report of Injury form dated 1 August 1995 contained the following comment: "Anne slipped on the floor in the lunch room. The cleaner had just mopped the floor. Anne was aware the floor was wet and was walking carefully but still slipped." 16 Mr Crowle said that that information came from the plaintiff although he no longer had a present recollection of her making that statement to him. 17 Mr Crowle advised that the light switch in the lunch room was on the lunch room wall and that there was no set procedure for turning on lights in the lunch room at that time. As far as he knew the first person in the management team to arrive in the store would turn the lights on as the areas got used. Following this evidence photographs of the lunch room were tendered in evidence and they clearly showed a set of light switches just inside the doorway of that room. 18 Evidence from Mr Peter Witten who was a regional maintenance coordinator for the second defendant at the relevant time, established that the specifications for the cleaning contract with the first defendant
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stipulated that the staff areas on the second level including the lunch room were to be washed daily.
Finding 19 The evidence of the plaintiff renders the issue of the date of the accident irrelevant. I am satisfied that her account of the circumstances of her fall, together with the description of the accident in the workers' compensation claim form, establishes that her accident was not caused by any breach of a duty of care owed to her by the first defendant. On her evidence in court the plaintiff said that she knew that the cleaners mopped that area at that time in the morning. She explained that depending on whether the toilets were in use, either the lunch room floor, or the toilet could be wet at that time. Even on that evidence alone I consider that the plaintiff was well aware of the possibility of a wet floor in the lunch room and of a need to take care in walking across the floor. I do not accept her explanation that the comments in the workers' compensation claim form that she "was stepping over the wet floor that the cleaner had just washed" did not strongly suggest that she knew the floor was wet when she was walking on it. It does not otherwise make sense in the circumstances. The natural and more likely inference is that she was aware it was wet. This is confirmed in the description of the incident in the Employer's Accident Report form completed by Mr Crowle on the information from the plaintiff. 20 The plaintiff's attempt to explain her failure to see the wet floor in terms of the poor lighting was a transparent attempt to find some other way to avoid the consequences of this evidence. The picture of the lunch room clearly shows a light switch (as would be expected) just inside the door. The reason that Mr Crowle did not recall the plaintiff making any complaint in relation to the lighting is because no such complaint was made. 21 I am satisfied that the absence of any signage warning of a wet floor did not constitute any breach of the duty of care owed to the plaintiff nor was it causative of her accident in circumstances where she was well aware that the area may have just been washed and would therefore be wet at that time of the day. Moreover, her descriptions in the forms completed soon after the accident indicate that she was not only aware that the floor might be wet but was aware that it was wet when she went to walk across it.
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22 I am also satisfied that the duty of care owed by the first defendant did not extend to ensuring that no-one had access to the floor when it was wet or taking steps to wash the floor when nobody was on the premises in the circumstances of this case. The first defendant was required to mop the floor on a daily basis under the contract. The suggestion that a wet floor constituted such a dangerous situation that the first defendant should have taken the aforementioned steps is not reasonable in the circumstances. That borders on a claim of strict liability. The first defendant is only required to take "reasonable" care to avoid exposing those who could be expected to be in the room at the relevant time to a foreseeable risk of injury. (See Dhu v Total Corrosion Control Pty Ltd & Anor [2002] WASCA 173; Schellenberg v Tunnel Holdings (2000) 200 CLR 121). What is reasonable care will depend on the nature of the risk, and the difficulty in eradicating the risk in the prevailing circumstances.
23 The floor needs to be washed frequently, if not daily, to ensure the surface is clean and free from food spills. The people who use the floor know it is washed at that time of the morning and that it may be wet. In these circumstances it is not reasonable to require the first defendant to prevent access to the area before it dries naturally or to dry it before someone walks on it or to wash it late at night or in the early hours of the morning before the staff attend the premises. 24 I am satisfied that there was no negligence on the part of the first defendant that contributed to the plaintiff's injuries so I am therefore satisfied that the first defendant is not liable to make any contribution to the second defendant. It is also difficult to see in the light of the plaintiff's evidence that the second defendant breached any duty it owed to the plaintiff as her employer. The floor was washed daily (on the second defendant's evidence – because the lunch room was used frequently by the staff). There was an obvious need to ensure that it was clean and free of spills that may cause accidents. The cleaning was conducted early in the morning in a routine well known to the plaintiff. She was well aware that the lunch room floor was wet or may be wet and in those circumstances no amount of signs would have avoided the accident. The plaintiff's claim that the lighting was poor was first mentioned in her evidence in court but in any event was not a relevant issue as there was clearly a light switch just inside the door. If the lighting was not good the plaintiff simply had to turn more lights on. I consider that the plaintiff's fall occurred because she slipped on the floor even though she knew that it was or could have been wet. It may be that she simply did not take sufficient care when walking. People sometimes stumble or trip without any intervention or external cause. In this case the evidence establishes that there was no
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negligence on the part of the first defendant and it seems most likely without any negligence on the part of the second defendant. It was for this kind of situation that the workers' compensation scheme was established, that is, where an accident occurred during the course of a worker's employment independent of any fault on the part of an employer. 25 There will be judgment for the first defendant in the contribution proceedings with an order that the second defendant pay the first defendant's costs to be taxed.
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