Woolworths Ltd v Strong - [2010] NSWCA 282

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Woolworths Limited v Strong & Anor [2010] NSWCA 282

FILE NUMBER(S):
2009/298590

HEARING DATE(S):
2 September 2010

JUDGMENT DATE:
2 November 2010

PARTIES:
Woolworths Limited (Appellant)
Kathryn Strong (First Respondent)
CPT Manager Limited (Second Respondent)

JUDGMENT OF:
Campbell JA Handley AJA Harrison J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
5795/06

LOWER COURT JUDICIAL OFFICER:
Robison J

LOWER COURT DATE OF DECISION:
28 August 2009

COUNSEL:
J E Maconachie QC (Appellant)
M J Cranitch SC; T J Willis (First Respondent)
S J Walsh (Second Respondent)

SOLICITORS:
Bartier Perry (Appellant)
Leitch Hasson Dent (First Respondent)
Thompson Cooper Lawyers Pty Ltd (Second Respondent)

CATCHWORDS:
TORTS - negligence - damage - causation - whether causation established - sections 5D and E, Civil Liability Act 2002 - no basis on which a judge could conclude that taking of reasonable care involved any greater diligence than what was applied

LEGISLATION CITED:
Civil Law (Wrongs) Act 2002 (ACT)
Civil Liability Act 2002
Civil Liability Amendment (Personal Responsibility) Act 2002
Civil Procedure Act 2005
Law Reform (Miscellaneous Provisions) Act 1965
Law Reform (Miscellaneous Provisions) Amendment Act 2000

CATEGORY:
Principal judgment

CASES CITED:
ACQ v Cook (No 2) [2008] NSWCA 306
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Astley v Austrust Ltd (1999) 197 CLR 1
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390
Flounders v Millar [2007] NSWCA 238
Hampton Court Ltd v Crooks (1957) 97 CLR 367
March v EMH Stramare Pty Ltd (1991) 171 CLR 506
Shoeys Pty Ltd v Allan (1991) Aust Torts Reports 81-104
Snorkel Elevating Work Platforms Pty Ltd v Borren Metal Forming Ltd [2010] ACTCA 23

TEXTS CITED:

DECISION:
(1) Appeal allowed.
(2) Set aside the judgment and all orders for costs in the court below.
(3) In lieu thereof order that the proceedings be dismissed and that the First Respondent pay the costs of the Appellant and the Second Respondent in the court below.
(4) Appellant to pay Second Respondent’s costs of the appeal, limited to the costs that would have been incurred in filing an appearance submitting to any order the court might make save an order requiring it to pay costs to any party.
(5) First Respondent to pay the costs of the Appellant of the appeal including the costs the Appellant is ordered to pay to the Second Respondent, but to have a certificate under the Suitors’ Fund Act 1951 if entitled.
(6) Order the First Respondent to pay to the Appellant any amount she has received in payment or partial payment of the judgment in the court below, together with interest at the rate prescribed pursuant to section 101 Civil Procedure Act 2005 from the date the First Respondent received that sum to the date she repays it.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2009/298590
CAMPBELL J
HANDLEY AJA
HARRISON J
2 NOVEMBER 2010

WOOLWORTHS LIMITED v KATHRYN STRONG & ANOR

Judgment

CAMPBELL JA: The sole dispute in this appeal concerns whether the plaintiff in a slip and fall case has established causation of damage.
At the time relevant to this appeal, one level of the Centro Taree Shopping Centre contained two large retail shops that were separated by a common area, part of which operated as a food court. There were also various smaller specialty shops. One of the large retail shops was a Woolworths shop. The other, which was leased to the Appellant, is a Big W shop. On 24 September 2004 at around 12:30pm the First Respondent was at the shopping centre with her friend, Robyn Hurst, and her daughter, Teisha Ford.
The Appellant had an exclusive right under its lease of the Big W shop to conduct “sidewalk sales” within an area that was roughly square and extended 11 metres into the common area towards the food court from the frontage of the leased premises. The lease provided that:
“… After conducting a sidewalk sale the Tenant must restore the Common Areas to a clean and proper condition having regard to its condition before the sidewalk sale.”
On the day in question there were two large plant stands with three or four racks on each of the stands in the common area outside the Big W store. There were pot plants on those racks. The stands themselves were about shoulder height. They were placed so as to create a corridor directly outside the Big W store, and leading directly to that store. The stands had been in that location from around 8am that day.
The First Respondent had undergone an amputation above the right knee decades before the accident now in question occurred. By using crutches, she had been able to achieve a high degree of mobility. On the day in question, she and her two companions were going towards the Big W store. They passed between the two plant stands. The corridor created by the plant stands was wide enough for the three women to walk alongside each other. Ms Ford was on the First Respondent’s left. Ms Hurst was on the First Respondent’s right, and just a little bit in front of her.
The First Respondent was someone who was actively involved in keeping pot plants. She was interested in the pot plants she saw on the stand. She said, “I went to look at the plant stand on my right and just after I’d gone in that’s when I had my fall.” The tip of her right crutch slipped from under her, and she fell heavily. The judge accepted that there was a chip on the floor, that some grease had come from it, and that the First Respondent slipped when the end of her crutch came in contact with either the chip or the grease. It is clear enough that the type of “chip” involved was a french fry, rather than a potato crisp or a small detached piece of flooring. The spot where the First Respondent fell was approximately 4 metres from the entrance to the Big W store.
After her fall, the First Respondent was assisted to a bench just outside the Big W store, where she sat for around 15 minutes. During that time she did not see a cleaner clean anything up. She then made a brief attempt to do the shopping she had been planning to do at Big W, but found she could not continue, and came out of the store to go home. She did not see a cleaner cleaning anything up when she emerged from the store.
The judge found that the place where the First Respondent slipped was within the area where the Appellant conducted “sidewalk sales”, there was a sidewalk sale in progress on the day in question, that area was “at least physically occupied” by the Appellant, and it was within the “occupancy, care and control” of the Appellant.
The shopping centre was owned by the Second Respondent. There was some evidence that what appears to be a related company of the Second Respondent had a role in managing the shopping centre. The evidence was not clear about the precise identity of that company, or its precise responsibilities. One way or another, yet another company was engaged to provide cleaning services at the centre. A document was admitted into evidence without objection that was said to be the cleaning contract specification. It made provision for the centre to be maintained so that “floors are to be free of any rubbish and or spillages”. The maximum cleaning rotation time for “mall/common areas” was stipulated to be 15 minutes. The company to whom the cleaning contract was granted was not a party to the proceedings.
In the proceedings below the First Respondent contended that her fall resulted from negligence of the Second Respondent, or alternatively of the Appellant. The judge below held the Appellant liable in negligence, but dismissed the claim against the Second Respondent. There is no appeal against that dismissal.
Kathryn Walker was employed as a cleaner at the centre at the relevant time. The judge evidently accepted evidence of Ms Walker to the effect that she did not regard it as her responsibility to clean within the area where sidewalk sales were conducted, and that she would not even check within that area if a sidewalk sale was in progress. Ms Walker gave evidence of a general nature, again apparently accepted by the judge, that she used to see Big W people in the area of sidewalk sales and cleaning up.
On the day of the accident two cleaners worked at the centre. Ms Walker worked from 7:30am to 4:00pm. The second cleaner was on duty from 11:00am to 2:00pm. The second cleaner “looked after the food court area, the public toilets and, if there was anything that needed to be cleaned up, she was called to do it”. There were security people who “walked around continuously” who would contact a cleaner by two-way radio if they noticed a spillage.
Ms Walker had a half hour lunch break. She was at lunch at the time of the First Respondent’s fall, but later on the day of the fall she filled out a “cleaner’s report”, by filling in the blanks in a standard form. Part of that form said:

Exact time the area was last cleaned/inspected 12:10pm

How often is the area cleaned? Every 20 minutes

How are the cleaning times/rotations verified? Eg wand reports
20 minutes

There was no exploration in the evidence of the circumstances in which the cleaning times or rotations had come to change from the 15 minutes in the specification to the 20 minutes referred to in this form. In light of Ms Walker’s oral evidence, the reference to “the area” in that form must have been to the common areas beyond the place where the sidewalk sale was in progress, and the First Respondent fell.
Ms Colleen Carle worked as a “people greeter” at the Big W store. Her role was “to welcome people into our store and check bags as they go out of our store, and say goodbye to them.” Her job required her to stand in the vicinity of the Big W doorway. She did not see the First Respondent fall, but observed somebody picking her up.
It was part of Ms Carle’s job description to keep an eye out for spillages within the confines of the sidewalk sales area. Her evidence was:
“Q.Do I take it that you were required just to keep a general eye on the area and if you saw a spillage you’d ring and call the cleaners?
A.           That’s right.
Q.           Is that what happened?
A.           That’s right.
Q.Was it your experience that as soon as you called the cleaners they’d be there within a short period of time?
A.           They would be.
Q.           Within a minute or two?
A.           As soon as they got there.
Q.Would it be about a minute or two by the time they got there?
A.           Not very long, yeah. Not long at all.”
She agreed that, “it’s part of the job training of Big W employees in and around the store to be constantly vigilant for any spillages that are around”. The judge specifically found that there was a cash register in the sidewalk sales area on the day of the accident. He evidently accepted evidence from Ms Carle that it was not her role to keep an eye on goods in that area, but there was always some other Big W employee who was keeping an eye on goods displayed there.
The Appellant answered some interrogatories, as follows:
“If the answer to interrogatory 11 is ‘no’ [as it was] who was the employee of the [Appellant] responsible for the cleanliness of the accident area on 24.9.2004?
Answer:
None
…
Did the [Appellant] direct any employees to carry out an inspection of the area in and around the sidewalk sale on the 24.9.2004 but prior to 12.30pm on 24 September 2004?
Answer:
No.
…
Did any employee have responsibility to inspect the floor in and around the sidewalk sale on 24 September 2004?
Answer:
No.”
With the evidence in this state, Mr Maconachie QC, senior counsel for the Appellant, accepted that the Appellant had no operative system at all, on the day in question, for taking precautions to avoid the risk of people slipping and falling in the sidewalk sales area. He accepted that the evidence of the cleaning system that was employed outside the sidewalk sales area was available to the judge to determine what was a reasonable system to apply in the sidewalk sales area. The appeal proceeded on that basis.
The First Respondent did not see, at the time of her fall, what had caused the fall. Later on, she saw “a grease mark on the floor where my crutches had just gone down, where my right crutch had slipped”. She gave evidence that “the lady that was standing in the door that got me the glass of water” “the Big W lady”, “said it looked like a chip”. After that remark was made to her, the First Respondent specifically looked at the spot she had fallen, saw a grease mark, but could not see a chip.
Ms Carle completed a form on the day of the accident. She ticked a box for “slip (fall caused by slipping on substance on floor)”. She filled in a box marked “how did the injured person say the incident occurred” by writing “Kath was just walking along and just slipped on a chip on the floor”.
Ms Ford gave evidence that immediately after the First Respondent had fallen she noticed there was “a stain, a grease stain on the ground”. She said:
“Q.         How long was the grease stain?
A.           As big as a hand, probably – a bit bigger than mine though.
Q.           What, from the wrist to the end of your fingers?
A.           Yeah.
Q.           When you say grease stain, what appearance did it have?
A.Just like – appearance like something if you have a greasy, greasy kebab, all the grease just fell out of that, something like that.
Q.           Did you notice anything else?
A.           A chip on the end but I didn’t--
Q.           You didn’t take much attention to it?
A.I didn’t pay really attention to that because I was paying attention to Mum.”
Ms Hurst was specifically found to be truthful and reliable. She gave evidence that at the time of the fall “there was definitely like a skid mark on the floor and what appeared to me to be a chip”. She said that the skid mark was at the end of the First Respondent’s crutch, and the chip was at the end of her crutch – “I’m not saying it was stuck to that but it was exactly at the end of it”.
The Reasoning of the Court Below
The primary judge’s reasoning specifically addressed whether there was a duty of care, but he did not specifically address the other two elements, breach of duty and causation of damage. He made a finding of fact that
“… a number of people seemed to keep a lookout for spills generally speaking, firstly, the greeter, the cleaners and the security guards, so it does seem by and large as between the centre and the [Appellant] there were to a degree systems in place to keep a lookout for spills.”
When that finding deals with the Appellant and the Second Respondent collectively, (assuming that “the centre” referred to the Second Respondent) and when the finding is not directed to the question of whether there was a system in place, so far as the Appellant is concerned, and so far as the area of the sidewalk sales was concerned, on the day in question, it does not advance matters.
The judge noted that the part of the common area that the Appellant was entitled to use “is not a particularly large area”, and that it was a “relatively compact area”. He made an observation about foreseeability, as follows:
“When it comes to foreseeability it would seem to me that given that there must have been an employee or employees within or close to the area of the sidewalk sale it is clear that it must have been foreseeable insofar as Big W is concerned, that if there was anything on the ground which had not been identified and either removed by a cleaner or by somebody from Big W, him or herself, that, in one way, shape or form an entrant to that particular area would come to grief. I do consider that it was foreseeable when it comes to the duty of care cast upon the second defendant, being effectively the sole occupier of that particular portion of the premises …”
The judge then gave his reasons for finding that there was no contributory negligence on the part of the First Respondent, and continued:
“All in all the evidence really is one way when it comes to the occupancy and the duty cast upon the second defendant when it comes to the factual matters which have clearly emerged on the evidence here as between the plaintiff and the two defendants. The second defendant was the occupier of the relevant portion. The second defendant, through its employees had a duty of care to anyone walking in there. The second defendant ought to have seen something on the ground in the nature of what has been described by the plaintiff and others.
Secondly, and indeed returning to the location of the grease mark and the size of the grease mark, it was not an insignificant grease mark and the size of the grease mark was not an insignificant grease mark. If other people could see it apart from the plaintiff after the event then it begs a serious question as to why it was not seen by an employee of the second defendant in those particular circumstances and it should have been removed either by the second defendant or the second defendant alerting a cleaner to remove it which is entirely open to the second defendant to do and if that had been done the plaintiff simply would not have come to grief. I can put it no more simply than that.
So therefore the second defendant is guilty of negligence.”
First Respondent’s Carefulness Shows No Causation of Damage?
Mr Maconachie makes two separate types of attack on the notion that there was a causal connection between a breach of duty by the Appellant and the damage that the First Respondent suffered arising from her fall. The first attack is dependent upon the First Respondent’s own evidence.
The First Respondent had suffered another fall about six months before the fall that is the subject of this appeal. In a Woolworths supermarket she had accidentally put her crutch tip on a grape at the edge of an aisle, and had fallen. Concerning the circumstances of the first fall, she said:
“Q.You say you were very conscious of obstacles on the floor, were you looking?
A. I am, I always look. For some reason I missed it.”
The earlier fall did not cause her any significant injury, but caused her to become more vigilant:
“Q.As a result of that accident how did your level of vigilance go when you were going to shopping centres such as Big W and Woolworths?
A.Well it makes you more aware of going places and it’s like you’ve got to watch every little step you take. It’s like I was doubly aware of everything, it was like, you know, if I wanted to look at something I’d have to stop to have a look at it because I’m watching where I’m going all the time.”
This evidence, and some other evidence in cross-examination, was the basis of a submission that the plaintiff was more vigilant than the ordinary plaintiff. It is submitted that she examined the area where she was walking with greater care than might be expected from a cleaner or other person having some responsibility to look out for spillages. Mr Maconachie submitted that the judge was not justified, in these circumstances, in concluding that the Appellant “ought to have seen something on the ground in the nature of what has been described by the plaintiff and others.”
The primary judge considered the attentiveness of the First Respondent in the course of considering contributory negligence, but not in the course of considering causation of damage. His factual findings relevant to contributory negligence were:
“It is clear from other evidence of the plaintiff that she has an interest in pot plants. She said there were pot plants on those racks, she was clearly interested in them so she made her way at least to the entrance area, perhaps a few steps, into that area to have a look at those pot plants.
In her evidence-in-chief she said that she did not see any particular hazard when she glanced down, and indeed she paid particular attention to any water hazard that may have been there. I note that the plaintiff had a previous incident, a fall some time previously, not of any serious nature, not one which resulted in any medical treatment, but that clearly would have indicated to her, and perhaps there would have been other matters as well, that there was a need to keep a proper lookout. So I am entirely satisfied that she was keeping a proper lookout as any customer ought to do, or entrant, in that particular area. I accept her evidence that she did not see any hazard when she glanced down. I accept her evidence that she looked for any water hazard, and that is not surprising given what was for sale on those stands, they were pot plants.”

The judge’s evaluation of the effect of that evidence was:
“… it is entirely understandable in the circumstances that the plaintiff did not see the spillage. I fail to see how the plaintiff could be guilty of contributory negligence at all in those circumstances. She did what any prudent member of the public would do in her situation, she was extra careful in any event and her focus would have been in the general area, on the pot plants which attracted her attention in the first place but she also looked around for the possibility of any water spillage. She previously had a fall, that alerted her mind to the possibility of a problem. She did not see the chip or the grease and she came to grief.”
Mr Maconachie submitted that the judge understated the nature of the First Respondent’s examination of the surface of the floor by saying that she “glanced down”. He submitted “that was not an expression used in evidence by the First Respondent and is a significantly less rigorous description of her floor examinations [as she described them in cross-examination]”.
The plaintiff’s examination-in-chief included:
“Q.         Were you watching where you were placing your crutches?
A.Yes, because I’m always aware around plants there could be some water, if they water them, and I always watch because water is slippery.
Q.           Did you see any hazard when you glanced down?
A.           No, nothing.”
While it is literally true that the plaintiff did not use in evidence the expression “glanced down” in my view the judge was justified in regarding her as having adopted it, and the leading question in which “glanced down” occurred was not objected to.
The questions for a judge deciding whether a plaintiff has been guilty of contributory negligence arise as a matter of construction of the statute enabling apportionment of damages. Following the Law Reform (Miscellaneous Provisions) Amendment Act 2000, section 9 Law Reform (Miscellaneous Provisions) Act 1965 includes:
“(1)If a person (the claimant) suffers damage as the result partly of the claimant’s failure to take reasonable care (contributory negligence) and partly of the wrong of any other person:
(a)a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant, and
(b)the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.”
The first questions that emerge for a judge to decide are whether the claimant has failed to take reasonable care, and if so, whether that failure to take reasonable care caused the claimant to suffer damage that also is partly the result of the wrong of another person. The relevant type of “failure to take reasonable care” is still that described in Astley v Austrust Ltd (1999) 197 CLR 1 at [30], in explaining the pre-2000 version of the statute, namely: “failing to take reasonable care of his or her person or property.” In the context of the present case, it is the First Respondent failing to take reasonable care for her own safety.
The judge’s finding that there was no contributory negligence on the part of the First Respondent is thus that she did not fail to take reasonable care for her own safety. Even bearing in mind that the type of “reasonable care” that was in question was keeping a lookout for dangers of a type that might make her fall, concluding that the First Respondent did not fail to take reasonable care for her own safety does not, in my view, lead to any conclusion about whether the plaintiff’s degree of attentiveness was equal to or greater than would have been expected from a cleaner or other person having responsibility to look out for spillages. It is possible for a pedestrian in a shopping mall to take reasonable care for their own safety while still paying attention to the goods on display and the other people that are around that person. By contrast, a cleaner whose task it is to look for and clean up spillages, or any other person whose specific responsibility was to look for spillages, would not reasonably be expected to have the sort of divided attention that a shopper often has.
To the extent that Mr Maconachie’s submission invites this Court to draw its own factual conclusion, rather than work through the consequences of the trial judge’s finding of no contributory negligence, I would not draw the conclusion from the evidence that the degree of attention that the First Respondent was paying to potential sources of danger was equal to that that a dedicated cleaner, or other person specifically engaged to look out for spillages, would have paid.
The First Respondent’s cross-examination included the following passages:
“Q.You chose to walk through [the racks] because you wanted to have a look at the pot plants?
A.           Yes.
Q.I think you said that you’re generally pretty vigilant about looking for things on the floor?
A.           Yes.
Q.           So you were looking where you were going?
A.           Yes.
Q.As you approached the pot plants, you were looking where you were going?
A.           Yes.
Q.You stopped for a bit of a look to see what type of pot plants they were, is that right?
A.           Yes.
Q.           Did you pick, up a pot plant?
A.           No.
Q.           You were just stopped, standing there having a quick look?
A.           I was – yes.
Q.           As you went through, is that right?
A.           Yes, yes.
Q.           Just in case there was anything of interest to you?
A.           That – yes.
Q.Whilst you were doing that, is that when you felt your crutch go out from under you, is that right?
A.           Yes, as I was going – yes.
Q.           Yes, that’s what happened, was it?
A.           Yes, my crutch went down from under me.
Q.Yes. You were checking out the pot plants and then your crutch went out from under you?
A.           Yes.
Q.You didn’t see anything yourself which would cause that to happen?
A.           No.”
The First Respondent’s agreement that she had stopped at the time of the fall was qualified by evidence given in later cross-examination:
“Q.Ma’am, I just wanted to clarify one matter in relation to the circumstances of the fall, and it was your practice, certainly before you had your fall, to take particular care as to where you were placing your crutches, because you were vulnerable to accidents such as this. Do you agree with that?
A.           Yes.
Q.And at the time when you were proceeding through the alleyway between the two trolleys of plants, had you actually stopped walking at the time when you fell or had you or were you walking slowly looking at the plants?
A.I was just – I’d just got into the plants and I was just walking slowly and that’s when I went down.
Q.           I think you said that you were interested in some plants--
A.           Yes.
Q.--on your right-hand side, but my recollection is that you hadn’t actually turned to look at them or anything of that nature?
A.           No. There was a lot of plants there and I just like to--
Q.Yeah. Certainly as you made your way in between your friend on your right-hand side and your daughter on your left-hand side, as you made your way through the alleyway, you looked down to satisfy yourself that so far as you could see--
A.           Yes.
Q.--there was nothing on the floor that was going to cause you a problem?
A.           Yes.”
In my view, the evidence justifies the conclusion that the First Respondent, while keeping a careful lookout for potential hazards, had her attention also partly engaged by the pot plants.
For these reasons I do not accept that the fact that the First Respondent was paying careful attention to where she walked in itself shows that her fall was not a consequence of the failure of the Appellant to take reasonable care that people entering the sidewalk sales area did not sustain personal injury.
Failure to Discharge Onus of Proof of Causation of Damage
The Present Tests for Causation in Negligence - Section 5D
At common law, a “but for” test had a role (though “subject to certain qualifications”) as a "negative criterion of causation" -- i.e., if one could not conclude (on the balance of probabilities) that the harm would not have happened but for the negligence, then (subject to those qualifications) one could not conclude that the harm was caused by the negligence: March v EMH Stramare Pty Ltd (1991) 171 CLR 506 at 515-516; CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390 at [14].
In New South Wales now, whether the tort of negligence has been made out must be decided in accordance with the Civil Liability Act 2002. Section 5D(1) says:
“(1)A determination that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).”
Before a court makes a finding “that negligence caused particular harm”, section 5D(1)(a) Civil Liability Act identifies, as one of the two elements that must usually be proved, “that the negligence was a necessary condition of the occurrence of the harm.” “Negligence” there has its defined meaning, arising from section 5 Civil Liability Act, of “failure to exercise reasonable care and skill”. The statutory test for causation thus usually requires a decision about whether failure to exercise reasonable care and skill was a necessary condition of the occurrence of the harm. (I say “usually requires” because section 5D(2) recognises that there can be an “exceptional case” in which negligence that cannot be established as a necessary condition of the occurrence of the harm should nonetheless be accepted as establishing factual causation. However, it is not contended that the present is an “exceptional case” within the meaning of section 5D(2).) The test for causation under section 5D(1)(a) has some measure of continuity with the previous common law, because if A is a necessary condition for the occurrence of B, one can always say that B would not happen but for A.
When causation was decided according to the common law, it was held that a defendant having materially increased the risk of an injury of a particular type occurring is not the same as the defendant having materially contributed to (and thus, according to the common law, caused) a particular injury of that type that has occurred: Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 316 per Mason P.
Now, apart from the “exceptional case” that section 5D(2) recognises, section 5D(1) sets out what must be established to conclude that negligence caused particular harm. That emerges from the words “comprises the following elements” in the chapeau to section 5D(1). “Material contribution”, and notions of increase in risk, have no role to play in section 5D(1). It well may be that many actions or omissions that the common law would have recognised as making a material contribution to the harm that a plaintiff suffered will fall within section 5D(1), but that does not alter the fact that the concepts of material contribution and increase in risk have no role to play in deciding whether section 5D(1) is satisfied in any particular case.
It is only if the “necessary condition” test in section 5D(1)(a) is satisfied that there can be causation within the meaning of section 5D(1). That is because section 5D(1)(b) poses a further test (ie, that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused), that is to be applied even if the “necessary condition” test is satisfied. In other words, section 5D(1)(b) operates as a means by which causation might not be found, even if the “necessary condition” test of section 5D(1)(a) were to be satisfied.
The expression “the harm” in section 5D(1)(a) refers back to the phrase “particular harm” in the chapeau of section 5D(1). Application of the section requires the court to consider the particular harm that the plaintiff in the proceedings has suffered. Thus, if, for example, a case involves an allegation that the plaintiff has sustained a broken wrist through falling on a slippery substance in a shop, it is not to the point to realise that a person can just as effectively break their wrist in circumstances that involve negligence on the part of no one, such as in a skiing accident. As the skiing accident example shows, there is a legitimate sense in which one can say that a person can suffer the harm of breaking their wrist without failure to exercise reasonable care and skill on the part of anyone being a necessary condition of that unfortunate situation arising. However, because of the focus of section 5D on “particular harm”, that sense, which is concerned with how broken wrists in general might come about, is not the sense that is relevant to section 5D(1).
These aspects of section 5D are illustrated by the way section 5D was applied in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [53]. French CJ, Gummow, Hayne, Heydon and Crennan JJ identified the reason why causation of damage was not established as being because “[i]t was not shown to be more probable than not that, but for the absence of security personnel (whether at the door or even on the floor of the restaurant), the shootings would not have taken place”. In that case, it was the absence of security personnel that was contended to be the specific breach of a duty of care that had occurred, and being shot was the particular harm that the plaintiffs had suffered. In the present case, the critical question for deciding whether section 5D(1)(a) is satisfied is whether it is established that the First Respondent would not have slipped if the Appellant had been exercising care to the minimum extent at which it would have been performing its duty to take reasonable care.
Was Section 5D Applied?
The reasons of the judge set out at para [26] above do not engage in a process of deciding what it was that the Appellant failed to do that the taking of reasonable care required it to do, and then whether that failure to take reasonable care was a necessary condition of the occurrence of the particular harm that the First Respondent sustained. Thus, the judge has not decided the case in the way the statute requires. To say that the “second defendant ought to have seen something on the ground in the nature of what has been described by the plaintiff and others” does not consider either of those matters. That the chip was able to be seen after the accident says nothing about whether the presence of one or more Woolworths employees in the area, whose task was not a dedicated one of looking for and removing potential slipping material was adequate for the taking of reasonable care. To say “it should have been removed” is to express a conclusion, but not one arrived at by the type of reasoning the statute requires. When the judge has not addressed the questions the statute requires to be addressed, his conclusion cannot stand. This Court must examine the question of causation of damage for itself.
The Present Tests for Causation in Negligence - Section 5E
Section 5E Civil Liability Act 2002 provides:
“In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”
In that provision, “negligence” has the meaning given to it by section 5 Civil Liability Act, namely “failure to exercise reasonable care and skill”. Thus, section 5E makes clear that the plaintiff has the onus of proving, on the balance of probabilities, those matters that section 5D identifies as necessary for proof of causation.
Shoeys v Allan No Longer Applicable?
Shoeys Pty Ltd v Allan (1991) Aust Torts Reports ¶81-104 bore some factual similarities to the present case, in that a storekeeper was held liable when a customer slipped in the fruit and vegetable section of the shop on some dropped vegetable matter, in circumstances where the shop had no real system for locating and removing spillages. Mr Maconachie contended that the type of reasoning by which this Court upheld the finding of liability in Shoeys could not now be justified, because of section 5E.
He seeks to draw support for that contention from the fact that, apart from the introductory phrase “in determining liability for negligence”, section 5E is in identical terms to recommendation 29(a) of the final report of the Review of the Law of Negligence (September 2002) (“the Ipp Report”). I accept that the introductory phrase does not make any change of substance to the recommendation of the report. It does no more than make explicit what had been implicit in the recommendation.
The reasons given in that report for making the recommendation appear at pages 111-112:
“7.34Another way in which it has sometimes been suggested that the problem of evidentiary gaps might be dealt with is by shifting the onus of proof on the issue of factual causation from the plaintiff to the defendant once the plaintiff has established that the defendant was under a duty to take reasonable care to avoid the risk in question and failed to take the required care. In the Panel’s opinion, this approach is undesirable because it does not squarely address the issue of the evidentiary gap but rather hides it. This is because in practice, the onus of proof that is shifted to the defendant will be impossible to discharge precisely because there is an evidentiary gap. For this reason, the Panel believes that it would be valuable to state legislatively that the onus of proof on any fact relevant to causation always rests on the plaintiff.
7.34The Panel believes that this recommendation has a wider significance. In Bennett v Minister for Community Welfare (1992) 176 CLR 408, 420-421 Gaudron J said:
‘…generally speaking, if an injury occurs within an area of foreseeable risk then, in the absence of evidence that the breach had no effect or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty of care caused or materially contributed to the injury.”
7.36The effect of this approach is to cast the onus of proof on the issue of causation onto the defendant, once it has been established that the defendant owed the plaintiff a duty of care and breached that duty, and that the plaintiff has suffered a foreseeable injury. This principle, which has been referred to with approval by various courts in recent cases, represents a fundamental change in the traditional law about causation and proof of causation, and has the potential significantly to expand liability for negligence. The objection to the principle is that it applies regardless of whether there is an evidentiary gap, and without requiring consideration of whether there is any good reason (over and above the existence of duty, breach and damage) to relieve the plaintiff of the requirement to prove factual causation. A legislative restatement of the basic rule that the onus of proof of any fact relevant to causation always rests on the plaintiff may discourage courts from adopting this approach.”
Section 5E was introduced by the Civil Liability Amendment (Personal Responsibility) Act 2002. In the course of the Second Reading Speech for the Bill that led to that Act, the relevant Minister, Mr Carr, stated, “[w]e have adopted the approach in the Ipp Report to the duty of care and causation” (Hansard, Legislative Assembly, 23 October 2002, page 5764). A remark in identical terms was made when the Bill was introduced in the Legislative Council by the relevant Minister, the Hon Michael Egan (Hansard, Legislative Council, 19 November 2002, page 6896).

I do not find the statutory background to section 5E useful in interpreting it. Its words are quite clear, and do not change the pre-existing law. That the Ipp Report makes clear that the reason for including the recommendation that became section 5E was to remind courts that they ought not overlook an important part of the law of negligence does not, it seems to me, have any bearing upon its meaning.
I do not agree that section 5E shows that the type of reasoning in Shoeys case is no longer open. It was uncontentious in Shoeys that it was the plaintiff’s task to prove causation of damage (68,940 col 2 per Mahoney J, 68,944 col 1 per Handley JA, with whom Priestley JA agreed). Section 5E makes no difference to that. But it was, and still is, possible for a plaintiff to satisfy its onus of proving causation if the court can infer that it is more likely than not that the failure to exercise reasonable care and skill was a necessary condition of the particular harm that the plaintiff suffered. In Shoeys there was no evidence of precisely what the plaintiff had slipped on, merely that it caused “a wet spot” on the heel of her shoe, and that there were some type of green leaves like cauliflower or cabbage on the floor near where the plaintiff fell. Nor was there any evidence of how long the substance on which the plaintiff slipped had been there. It was purely a question of the inferences open, on the facts of that case, whether the plaintiff had discharged her onus of proof of causation. As Ipp JA showed in Flounders v Millar [2007] NSWCA 238 at [30]-[35], this is an acceptable method of establishing causation of damage under the common law.
In Shoeys Handley JA assumed without deciding that the duty to take reasonable care would have required inspections not less frequently than every 30 minutes. He left open the possibility that performance of the duty might have required more frequent inspections than that. The question for the Court of Appeal in Shoeys was whether it should reverse a judgment that the plaintiff had obtained in the court below. There was no precise finding about what interval between inspections would have been reasonable, and the ultimate conclusion of the court was that it should not reverse the conclusion of the court below. In those circumstances it was appropriate for the Court to frame its reasons by reference to the longest of the range of intervals between inspections that was open on the evidence as being a satisfaction of the duty to take reasonable care. The fact that the accident occurred in the afternoon, that the floor had not been inspected all day, that there was no evidence that the shop as a whole or the fruit and vegetable section were particularly busy at the time, and (I would infer) that the purchasing of vegetables and the dropping of the vegetable matter were the sorts of thing that there was no reason to believe was more likely to occur at any particular time during the day all enabled an inference, in that case, to be drawn that it was more likely than not that it had been dropped more than 30 minutes before the fall occurred. Thus, one could infer that it was more likely than not that, if reasonable care had been exercised, the plaintiff would not have been injured.
I see nothing in section 5E that prevents such a method of reasoning from continuing to be adopted. However, the inferences that are open in the present case are dependent upon the facts that have been established in the present case. In my view, the fact that the item slipped on was a chip (a type of food some people eat for lunch), and that the fall occurred quite close to a food court and at lunchtime, distinguish the present case from Shoeys.
Causation of Damage in the Present Case
In circumstances where the Appellant had no relevant cleaning system at all, it is easy to conclude that it breached its duty of care to the First Respondent. However, it is not possible to decide whether the breach of duty was a necessary condition of the particular harm without giving consideration to what the minimum content of the obligation to take reasonable care to prevent patrons from slipping would have been.
Hampton Court Ltd v Crooks (1957) 97 CLR 367, to which Mr Maconachie referred us, had as its focus breach of duty rather than causation of damage. However, it has some bearing upon causation of damage. The majority judgment of McTiernan, Fullagar, Kitto and Taylor JJ recognised, at 374, that a slipping case can succeed if the danger complained of “would have been known but for the failure of the appellant to exercise reasonable care and skill”. While of course their Honours were not addressing the test of causation in section 5D, one can say that under section 5D if but for the failure of a defendant to exercise reasonable care and skill the source of danger that caused the plaintiff the particular harm for which he or she sues would have been known and removed, then the “necessary condition” test of section 5D(1)(a) is satisfied.
Their Honours noted, at 375, that it was not established:
“… that the retiring room was, at that time, in constant or frequent use or … that the exercise of reasonable care required the continuous attendance of an employee in the room at that hour to ensure the safety of those who used it.”
Their Honours there seem to be recognising that in a situation where the taking of reasonable care requires the constant attendance of a dedicated employee, it may be possible to infer that if reasonable care, involving that degree of close attention, had been taken, a particular source of danger would have been promptly removed, and hence that the slipping would not have occurred. Such a possibility was also adverted to by Dixon CJ, at 371, where he recognised that a plaintiff in a slipping case might succeed if there was proof, beyond the presence of the slippery substance:
“… of 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.” (emphasis added)
The present is not, however, a case in which proof of breach of duty in itself makes likely that, had the duty been performed, the damage would not have been caused. That is because there is no evidence that would justify a conclusion that taking reasonable care, in the present case, required the continuous presence of someone always on the lookout for potential slippery substances. Periodical inspections and cleanings were all that reasonable care required. That gives rise to the possibility that, even if periodical inspections and cleaning had been carried out, with the minimum frequency required for the Appellant to be taking reasonable care, the chip fell between the last such inspection and the time the First Respondent encountered it. The present is not a case in which one can infer that if the steps involved in taking reasonable care had been taken, the plaintiff’s harm was more likely than not to have not arisen. In this case, the particular hazard that the First Respondent encountered was not one with an approximately equal likelihood of occurrence throughout the day. She slipped on a chip near a food court at lunch time, and the reasonableness of a cleaning system depends on the range of items it is foreseeable might be dropped rather than just on the particular hazard a particular plaintiff encountered. Because of those aspects of the facts, I am not prepared to draw that inference.
In my view, there is no basis for concluding, in the present case, that the chip had been on the ground for long enough for it to be detected and removed by the operation of a reasonable cleaning system. There was no evidence of there being anything about the physical appearance of the chip, such as it being dirty, that might provide the ground for an inference that it had been there for some time. There was no basis for any conclusion that the area was less busy in the time immediately before the accident than it usually was (indeed, one would ordinarily expect an area in which people sold prepared food, including take-away food, to be busier around lunch time than at many other times of the day). There was no basis for concluding that the chip could have been dropped at any time of the day, or at least for concluding that it was more likely than not that it was not dropped comparatively soon before the First Respondent slipped. There was no basis for inferring whether the “grease stain” was something that had spontaneously oozed from the chip as it lay on the ground, or had fallen with it (in either case existing and being visible before the fall), rather than that it had been squeezed out of the chip as the crutch compressed and moved it. Ms Hurst gave evidence in cross-examination:
“Q.I don’t suppose you touched the chip to see if it was still warm did you?
A. No I didn’t.”
There was no evidence concerning the temperature of the chip from any other witness. The fact that the cleaning contractor engaged a second cleaner, with special duties that included (but were not confined to) attending to the food court area from 11:00am to 2:00pm provides some basis for believing that there was an increased risk of things being dropped in that area during the time period. The site of the accident was very close to the food court. The time the accident occurred, at 12:30pm, fits comfortably within the range of time at which people ordinarily eat lunch. Given that it was the tip of the First Respondent’s crutch that encountered the chip, and that Ms Hurst was walking to the First Respondent’s right in the corridor between the pot plant stand, one can conclude that the chip was not lying at the very edge of the corridor. However, that fact does not assist in concluding how long it was likely to have been there.
There was no evidence on the basis of which a judge could conclude that the taking of reasonable care to prevent physical injury to people within the sidewalk sales area involved any higher degree of diligence or vigilance than was applied immediately outside the perimeter of the sidewalk sales area. Even if one took the possibility most favourable to the First Respondent, namely that that system required periodical cleaning every 15 minutes (as the contract called for) rather than every 20 minutes (as Ms Walker in fact carried out her duties) it cannot be concluded that it was more likely than not that if there had been dedicated cleaning of the area every 15 minutes, supplemented by employees who happened to see a danger either removing it themselves, or calling a cleaner, it is more likely than not that the First Respondent would not have fallen.
In the present case, if one were to ask whether the First Respondent would not have been injured if the Appellant had in place a reasonable system for detecting and removing potentially slippery substances, one can answer “maybe”. In my view the evidence does not enable the answer “more likely than not” to be given. In the circumstances, the First Respondent did not establish causation of damage.
Second Respondent’s Costs
I have earlier mentioned that the judge below dismissed the claim against the Second Respondent. The First and Second Respondents had cross-claims against each other in the court below. The primary judge dismissed each of those cross-claims. He ordered the First Respondent to pay the costs of the Second Respondent, but also ordered the Appellant to pay those costs directly to the Second Respondent. (That is neither a Bullock order, nor a Sanderson order – see ACQ v Cook (No 2) [2008] NSWCA 306 at [31], [52] – but is the order the judge made. Presumably once the Appellant had paid the Second Respondent its costs, the rule against double recovery would prevent the Second Respondent from enforcing the order that the First Respondent pay those costs.)
The Second Respondent was joined to the appeal. The orders that the Appellant sought on the appeal included orders that the judgment of the court below be set aside, and vacation of the costs orders made in the court below.
It was appropriate for the Second Respondent to be joined to the appeal as, if the orders sought were made, the Second Respondent would lose the benefit of the order that the Appellant pay directly to it the costs it had incurred in the court below.
Counsel for the Second Respondent, other than counsel who appeared on the appeal, prepared some written submissions, that were included in the Orange Book. On the hearing of the appeal the Second Respondent, now appearing by a different counsel, withdrew the submissions that had been filed, and handed us some brief additional written submissions. Those submissions contended that if the Appellant is successful, the original judgment in favour of the Second Respondent would stand, but there may be a variation of the costs orders below. They contended that regardless of whether the Appellant was successful in its appeal, the Appellant should be ordered to pay the Second Respondent’s costs of the appeal. No argument was advanced against the Second Respondent losing the benefit of the order that the Appellant pay it its costs in the court below direct, if the appeal succeeded. On the hearing of the appeal, counsel for the Second Respondent did nothing beyond referring to these written submissions.
In these circumstances, I see no reason why the Second Respondent should receive any order for costs in its favour concerning the appeal, beyond the amount of costs it would have incurred in submitting to any order that the court might make other than an order requiring it to pay the costs of any party. It is appropriate to order the Appellant pay its costs to that extent, and for the costs the Appellant is so ordered to pay to be part of the costs that the First Respondent is to pay to the Appellant.
Restitution
One of the orders made in the court below was that there be a stay of the judgment provided that the Appellant paid 50% of the verdict money to the First Respondent within 28 days. One of the orders sought by the Notice of Appeal is for restitution with interest of the amount of the verdict paid. It is appropriate to make such an order. However the court has not been informed of the amount actually paid, or when it was paid, so it is not at present possible to make an order for repayment of a precise sum.
If any greater formality is required than the order for restitution as proposed below, and the parties agree on Short Minutes to effect that change and submit them to me in chambers within 10 days of the handing down of these reasons for judgment, I indicate that I would be prepared to exercise the powers under Part 36 rule 36.16(3B) Uniform Civil Procedure Rules to vary the order for restitution in accordance with the agreement of the parties. If the parties do not so agree, and the Appellant wishes to achieve greater formality in the order for restitution, Part 36 rule 36.16(3A) UCPR would require such a change to be sought by filing a Notice of Motion and any affidavits within 14 days of the handing down of these reasons for judgment.
Addendum
After judgment in the present appeal was reserved, the ACT Court of Appeal delivered judgment in Snorkel Elevating Work Platforms Pty Ltd v Borren Metal Forming Ltd [2010] ACTCA 23. Mr Maconachie sent a note referring the court to it. It related to an injury sustained in 1997, before the coming into effect of the Civil Law (Wrongs) Act 2002 (ACT). Thus, although sections 45 and 46 of that Act are analogues of section 5D and 5E of the New South Wales legislation, they did not apply to the determination of the liability in that case. Rather, it was decided in accordance with of common law. For that reason it cannot be directly applied in the present case.
Orders
I propose the following orders:
(1) Appeal allowed.
(2)Set aside the judgment and all orders for costs in the court below.
(3)In lieu thereof order that the proceedings be dismissed and that the First Respondent pay the costs of the Appellant and the Second Respondent in the court below.
(4)Appellant to pay Second Respondent’s costs of the appeal, limited to the costs that would have been incurred in filing an appearance submitting to any order the court might make save an order requiring it to pay costs to any party.
(5)First Respondent to pay the costs of the Appellant of the appeal including the costs the Appellant is ordered to pay to the Second Respondent, but to have a certificate under the Suitors’ Fund Act 1951 if entitled.
(6)Order the First Respondent to pay to the Appellant any amount she has received in payment or partial payment of the judgment in the court below, together with interest at the rate prescribed pursuant to section 101 Civil Procedure Act 2005 from the date the First Respondent received that sum to the date she repays it.
HANDLEY AJA: I agree with Campbell JA.
HARRISON J: I agree with Campbell JA.
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LAST UPDATED:
2 November 2010

Exact time the area was last cleaned/inspected	12:10pm
How often is the area cleaned?	Every 20 minutes
How are the cleaning times/rotations verified? Eg wand reports	20 minutes