Woolworths (SA) Limited v Drakos

[1992] HCATrans 85

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' 'I

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A28 of 1991

B e t w e e n -

WOOLWORTHS (SOUTH AUSTRALIA)

LIMITED

Applicant

and

GEORGE ANASTASIOS DRAKOS

Respondent

Application for special leave

to appeal

BRENNAN J
TOOHEY J

McHUGH J

Woolworths 1 13/3/92

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 13 MARCH 1992, AT 12.24 PM

Copyright in the High Court of Australia

MR K.R. McCARTHY, QC:  May it please the Court, I appear

with my learned friend, MR R.A. SOULIO, for the

applicant. (instructed by Ross & McCarthy)

MS E.F. NELSON, QC:  May it please the Court, I appear with

my learned friend, MR E.G. REINBOTH, for the

respondent. (instructed by Stanley & Partners)

BRENNAN J: Yes, Mr McCarthy?

MR McCARTHY:  If the Court pleases, there is a conflict in

the approach taken by the supreme courts in the various States in relation to what I might call

these slip cases in commercial premises. The

difference in approach is illustrated by the

judgment of the Full Court of the Supreme Court of

South Australia in Brown v Target Australia Pty

Ltd, (1984) 37 SASR 145, and that appears in my

book of authorities at page 23, and of course the

judgment of the Full Court in the case at bar.

With the decisions of the Court of Appeal in

New South Wales in Brady v Girvan Bros Pty Ltd,

(1986) 7 NSWLR 241 - and that appears in my book of

authorities at page 39 - in Sleiman v Franklin Food

Stores Pty Ltd, (1989) Aust Torts Reports - and

that appears in my appeal book at page 1. I am

sorry, I meant to add to that list the decision of

the Full Court of the Supreme Court of Victoria in

Williamson v GJ Coles & Co Ltd, (1985) VR 59. That

appears in the book of authorities at page 79.	I
will come back to those cases if I may.

If I might just tarry a moment on the

legislation. So far as I can ascertain, if the

Court pleases, three States have enacted legislation in relation to occupier's liability.

That, of course, was done before the decision of

this Court in Zaluzna. I have included in the book

of authorities the South Australian Wrongs Act, and

of course, being subsection (1) directing that the that appears at page 90, and I refer in particular to section 17C(l), (2) and (3), the most important, liability of an occupier be determined in
accordance with the principles of the law of
negligence which is, of course, now the common law.

An enactment to the same effect, in my

submission, is the Wrongs Act of Victoria. That

appears at page 93 and I refer there in particular

to section 14B and, in my submission, that section

of the Victorian Act in effect enacts what is now

the principles of common law.

To the same effect is the Occupier's Liability

Act 1985 of Western Australia, appearing at page 94

Woolworths 2 13/3/92

of the appeal book, and I refer in particular to

sections. That too enacts the principles of

common law.

The point comes about in this way, if the

Court pleases, and it is probably convenient to

refer to the facts set out by Mr Justice Matheson.

The accident occurred at about 3.20 pm on a

weekday, that is at page 48; the respondent slipped on a substance, or was found to have

slipped on a substance, which His Honour found was

oil.	Mr Justice Matheson takes it up at page 50
line 3:

Although his Honour did not accept

Mrs Foti's evidence -

and she was basically the only witness called by

the defendant and she was the floor manager, as it

were -

as to whether there was any oil on the floor,

he did accept her evidence about cleaning and

safety measures. Mrs Foti said she spent most

of her time on what she called "the shop

floor". It was part of her job to keep an eye

on the condition of the floor.

And down at line 30 -

In addition, there was what was called a mixed

function job for one employee, whose duties

would include cleaning up soiled areas during
the day, and who would be directed so to do by

the service or departmental managers when any

of them found such an area.

And, over on page 51, line 3:

Mrs Foti said she had been out on the shop

floor all day on the date of the accident.

where the respondent fell - "maybe ten times She said she probably walked past the area that day, maybe five". On those occasions,

there was no spillage to be seen.

BRENNAN J:  What is the principle that arises out of this

that justifies the grant of special leave?

MR McCARTHY:  If the Court pleases, it is neatly put by

Your Honour Mr Justice McHugh, sitting in the Court

of Appeal in New South Wales, in Brady v Girvin, at

page 50 of my book of authorities - it is page 252

of the New South Wales Law Reports.

Your Honour Mr Justice McHugh there went into

the question of the need for causal connection and,

Woolworths 13/3/92

if I can just emphasize one or two passages. First

of all, at page 253, Your Honour said:

Accordingly, I do not think that proof

that the "dropping of some such substance was

common or inherently likely to occur" is

always sufficient to raise a probability of

negligence.

And then Your Honour went into the decision of the

Full Court of the Supreme Court of South Australia,

commencing just below line D:

The plaintiff also placed strong reliance

on the decision and reasoning of the Full

Court of South Australia in Brown v

Target ..... where the plaintiff who had slipped on cooking oil spilt on the floor of a

supermarket recovered damages against the

occupier although the "evidence did not show

how and when the oil came to be spilled or

leaked on the floor". However, on the shelves

of the supermarket were containers of cooking

oil, and "on the probabilities" the oil "had

in some way spilled or leaked from such a

container". Moreover, the store opened at

8.00 am and the accident occurred at about

8.30 am.

Then Your Honour discussed the judgment of the

Chief Justice. If I can move to page 254, line B -

Although I think that the actual decision

of the Full Court in Brown v Target Australia
Pty Ltd was correct, I cannot accept the whole
train of reasoning which led to the decision
in that case. Whether or not the defendant
had an efficient cleaning system, the critical
issue was whether on the probabilities the
existence of a proper system would have
removed the spilt oil before the plaintiff's

of the time that the oil had been there and a	fall. That issue necessitated an estimation	judgment as to what sort of a cleaning system
was required. In particular it was necessary
to make an assessment as to how regularly the
floors should have been inspected and cleaned. care required as a minimum that the floor should be clean at the commencement of
business. I think that the occurrence of the
accident within half an hour of the store
opening gave rise to a prima facie inference
that the oil was on the floor at the
commencement of the business.

Woolworths 4 13/3/92

BRENNAN J:  Mr McCarthy, we will adjourn at some suitable

time to your argument, so is this a suitable

moment?

MR McCARTHY:  Yes. I was moving to the next case, if

Your Honour pleases.

BRENNAN J:  We will adjourn now until 2 pm South Australian

time.

AT 12.35 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 1.39 PM:

BRENNAN J: Yes, Mr McCarthy.

MR McCARTHY:  If the Court pleases, before we adjourned for

lunch I dealt with what Your Honour

Mr Justice McHugh had had to say in Brady. Might I now turn to the dictum of the president of the New

South Wales Court of Appeal in Sleiman v Franklin

Foods, and that appears at page 3 of the book of

authorities, the second column, about point 3,

where His Honour said this:

But then the claimant must also show that

the breach of the duty which is established is

what caused the injury and damage sued for.

Here is the rock upon which many a claim has

foundered. There is much to be said, in my

view, for the approach which the English

courts have taken. This is effectively, to reverse the onus of proof where an accident

occurs as a result of a spillage and where the

occupier does not show ttthat the accident did	not arise from any want of care on its parttt.
Although the English approach has been
reflected in at least one Australian decision,
namely in the Full Court of the Supreme Court
of South Australia (see Brown v Target Australia Pty Ltd), the orthodox rule in
Australia has set its face against the
shifting of the onus from the plaintiff. See
Brady ..... and cases there mentioned. The
reasoning in Brown was criticised by
McHugh J.A. in Brady -

His Honour then refers to the English cases.

Woolworths 13/3/92

and His Honour there refers to the passage to which

I have already referred the Court.

If the Court pleases, the decision of this

Court in Fredrichberg, the last I suppose of the

res ipsa loquitur cases, is about all I need to

refer to, in addition to those referred to in the

cases I have just cited. In the present case there

was simply no evidence as to how the oil came to be

on the floor. There was no evidence as to the time

at which it had been present. There is no evidence

of the size of the patch or its viscosity from

which an inference could legitimately be drawn as

to the length of time it had been present, and

indeed, no such inference was drawn by the trial

judge, he having simply found that a failure to

exercise reasonable care on the basis that there

was oil on the floor and he effectively reversed

of the appeal book, that there was nothing to defeat the conclusion of lack of reasonable care.	the onus of proof by finding, as he did, at page 22 drew no inferences from any of the evidence before
him.

The substance in the present case was not

readily visible; it was indeed almost impossible to

see, unlike the green vegetable matter in Shoeys, another case in the book of authorities, and our

submission is that it is crucial to confirm the

correct approach that courts ought to take in these

cases. Our submission is that the approach adopted

by the Honourable Mr Justice Matheson was indeed

the correct approach and that there is no basis for

the finding on causation made by the majority of the Full Court of the Supreme Court. His Honour

Mr Justice Olsson referred to the recent decision

of this Court in March v Stramare, but that is, of
course, distinguishable because there the danger
created by the defendant's unlawful and negligent

act had continued up to the time when it, the

negligent act, caused the damage to the plaintiff.

Similarly, the other case to which His Honour

referred, Bircholz v Gilbertson - that was a case

where the potential contact with brucellosis was an

integral part of the employment and the defendant's

failure to provide preventative measures was

clearly causative, to the same effect in McGhee v

The National Coal Board.

Our case is that no inference could possibly

have been drawn on the evidence before His Honour

the trial judge. It is not legitimate to bridge

the evidential gap by making such an inference.

Our submission is that this is not a case where an

inference of causation is open on the basis that

Woolworths 6 13/3/92

there is no practical difference between materially

contributing to the risk of harm and materially

contributing to the harm itself.

What the plaintiff has to prove, in our submission, contrary to the decision of the Full

Court of the Supreme Court in Brown v Target, is

that the negligence of the defendant caused the

injury to the plaintiff. They are the submissions

for the applicant, if the Court pleases.

BRENNAN J:  Thank you, Mr McCarthy. We need not trouble

you, Ms Nelson. The attack which the applicant

seeks to mount against the finding of the trial

judge and the majority of the Court of Appeal is

that the onus of proof was reversed and the

defendant was required to disprove negligence.

Examination of Their Honours' reasons shows

that that is not what was decided. Rather,

their Honours were prepared in the circumstances of

the particular case, including the number of

customers who frequented the store, the absence of

any system of regular floor inspection and the

absence of any evidence as to any inspection of the

relevant area of floor in any period before the
accident, to draw an inference that the defendant's
failure to clean up the oil on the floor, and

thereby to expose the plaintiff to the risk of

slipping, was due to a failure to take reasonable

care.

The question whether there was sufficient

evidence	to support that inference is not a
question	justifying the grant of special leave to
appeal.	Accordingly, special leave to appeal is
refused.

MS NELSON:  May it please the Court, I seek an order for

costs.

BRENNAN J:	What do you have to say to that, Mr McCarthy?
MR McCARTHY:	I have no submission to make, Your Honour.
BRENNAN J:	The application will be refused with costs.

AT 1.47 PM THE MATTER WAS ADJOURNED SINE DIE

Woolworths 7 13/3/92