Woolworths (SA) Limited v Santina Savaglia No. SCGRG 94/224 Judgment No. 4648 Number of Pages 8 Negligence Occupiers Liability

[1994] SASC 4648

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON J

CWDS
Negligence - occupiers liability - customer slipping on shampoo in aisle of supermarket - shampoo leaking from container on shelf on to the floor - no regular system of cleaning aisles - Wrongs Act Part IB s.17(c)-(e) - finding of negligence upheld - plaintiff 37 year old unemployed woman suffering back sprain - awarded $14,169 including interest - amounts for past pain and suffering, special damages and future loss of earning capacity manifestly excessive - total award reduced by $3,700. Australian Safeway Stores Pty Ltd v Zalusna (1987) 162 CLR 479, applied. Brown v Target Australia Pty Ltd
(1984) 37 SASR 145, distinguished.

HRNG ADELAIDE, 7 April 1994 #DATE 7:7:1994

Counsel for appellant:     Mr G D Coppola

Solicitors for appellant:    Kelly and Co

Counsel for respondent:     Mr A H Meegan

Solicitors for respondent: Hume Taylor and Co

ORDER
Appeal allowed.

JUDGE1 MATHESON J On 19 March, 1992, whilst shopping in an aisle in a supermarket occupied by the appellant at Parabanks, the respondent slipped on a pool of shampoo on the floor. She did not fall to the ground, but in the course of saving herself from falling, she ricked and injured her back. She sued the appellant in the Adelaide Magistrates Court. Her claim was heard by His Honour Mr Prescott SM. He found that the appellant had been negligent and entered judgment for the respondent against the appellant for $14,169 made up as follows:
    "Pain and suffering to date of trial $7500.00 Future
    pain and suffering 1500.00 Special damages 3419.00
    Future medical expenses 250.00 Future loss of earning
    capacity 1000.00 Interest 500.00 $14169.00"

2. The appellant has appealed against both his Honour's finding of negligence, and so much his assessment of damages that related to past pain and suffering, special damages and future loss of earning capacity.

3. The learned Magistrate was very critical of the respondent as a witness, but I think his criticisms bore on the issue of damages rather than on the issue of liability. I will refer to the various witnesses on the latter issue first. His Honour actually made very few findings of fact. He found that the respondent was wearing thongs and not shoes as she claimed, and that finding was really only relevant to credit. The evidence established that the shampoo had dripped through to the floor from a broken 375 ml container on the fourth shelf up from the ground. At least half the bottle was left after the incident. There was no evidence as to when it spread over that part of the floor negotiable by shoppers and staff. The incident occurred between about noon and 1 p.m. There was a conflict of opinion as to the shampoo's colour, or indeed as to whether it was coloured at all, and his Honour made no finding on that issue. There was a conflict as to the distance the pool of shampoo extended beyond the shelf, the evidence varying from five centimetres to two feet. His Honour made no finding on that issue. There is no evidence of earlier spillages or falls by shoppers. The respondent said that after the incident the employee who came to her aid - it was Rosa Lobasso who gave evidence at the trial for the appellant - said to her: "I am sorry this happened. I did report it (the shampoo spill), but they have obviously forgotten". Mrs Lobasso denied in the witness box that she said this. His Honour made no finding on that issue either.

4. In addition to giving evidence herself, the respondent called a friend, Janice Basa, who was shopping nearby in the same supermarket at the time of the incident. She said that the respondent was seated on a chair when she first saw her after the incident. She gave some evidence about the colour of the shampoo and the distance it extended beyond the shelf. Finally, the respondent called an orthopaedic surgeon, Mr Graeme Sorby-Adams, and I will refer to his evidence on the issue of damages. The appellant did not submit that there was no case to answer. The appellant called two witnesses, the shop assistant, Ms. Lobasso and a cleaner, Daniel Pol. Lobasso said she did not know that there was any spillage before the incident. If she had known, she would - in accordance with her usual practice - have put a trolley over the spill, called a supervisor and asked her to organise for the spill to be cleaned up. She had been in that aisle for half an hour before the incident, but had not checked the floor and could not say how long the shampoo had been on the floor. Lobasso was able to catch the respondent before she fell to the floor, and then went to get her a chair. The witness Pol said his duties included "basically taking care of the whole floor". He said he was called to clean up any spills. After the incident in question, he was called on the PA and cleaned up the spillage with a mop and bucket. The following passage occurred during this witness' cross examination (my underlining):
    "Q. In your job you were only called out when there
    was a spill, is that correct.
    A. Yes.
    Q. You didn't have to check the floors.
    A. At one stage yes I did.
    Q. But on that particular day.
    A. Not at that period, no.
    Q. You didn't know how long that shampoo was on the
    floor for prior to Mrs Savaglia's accident.
    A. I can't tell you that.
    Q. But you certainly hadn't checked that aisle prior
    to the accident to clean it up, would that be correct.
    A. No I had not."

5. The learned trial Judge was clearly influenced by the decision of the Full Court in Brown v. Target Australia Pty. Ltd. (1984) 37 SASR 145, a case where a customer slipped on cooking oil spilled in a supermarket, but that was a decision based on the old law of occupier's liability, and in particular the law relating to the duty of an occupier to an invitee. All three judges in that case proceeded on the basis that the presence of the oil on the floor was "an unusual danger". The case was decided before the law on occupier's liability was simplified by the High Court in several cases, including Australian Safeway Stores Pty. Ltd. v. Zaluzna (1987) 162 CLR 479, a change which was recognised by the South Australian Parliament in enacting Part IB of the Wrongs Act, which commenced on 5 July, 1987, (See Government Gazette 28 May, 1987, p.1384). The learned Magistrate did refer to this enactment notwithstanding his preoccupation with the case of Brown v. Target Australia (supra). The enactment included the following provisions:
    "17c.(1) Subject to this Part, the liability of the
    occupier of premises for injury, damage or loss
    attributable to the dangerous state or condition of the
    premises shall be determined in accordance with the
    principles of the law of negligence.

(2) In determining the standard of care to be exercised
    by the occupier of premises, a court shall take into
    account -
    (a) the nature and extent of the premises;
    (b) the nature and extent of the danger arising from
    the state or condition of the premises;
    (c) the circumstances in which the person alleged to
    have suffered injury, damage or loss, or the property
    of that person, became exposed to that danger;
    (d) the age of the person alleged to have suffered
    injury, damage or loss, and the ability of that person
    to appreciate the danger;
    (e) the extent (if at all) to which the occupier was
    aware, or ought to have been aware, of -
     (i) the danger; and
     (ii) the entry of persons onto the premises;
    (f) the measures (if any) taken to eliminate, reduce or
    warn against the danger;
    (g) the extent (if at all) to which it would have been
    reasonable and practicable for the occupier to take
    measures to eliminate, reduce or warn against the
    danger;
    and
    (h) any other matter that the court thinks relevant.

(3) The fact that an occupier has not taken any
    measures to eliminate, reduce or warn against a danger
    arising from the state or condition of premises does
    not necessarily show that the occupier has failed to
    exercise a reasonable standard of care.

(4) - (6) ...

...

17e.(1) ... this Part operates to the exclusion of any
    other principles on which liability for injury, damage
    or loss attributable to the state or condition of
    premises would, but for this Part, be determined in
    tort."

6. In the course of his reasons, the learned Magistrate said:
    "There is no evidence before me of the system of
    cleaning ... It is the presence or the absence of a
    system of checking that in my view is the critical
    thing ... I think that the evidence in this case or
    rather the lack of evidence is the critical feature
    here. The position of course is that the plaintiff is
    invited on to premises, in general terms the premises
    ought to be made as safe as practicable. That duty may
    be discharged in a number of ways; the regular
    inspection and cleaning of floor surfaces is one of
    these. There is no evidence that that was done and so
    it is that Mr Coppola was ultimately forced to make a
    submission that there was no evidence that a reasonable
    inspection system would have discovered the existence
    of the spillage. I am afraid the view I have about
    that is that it is a 'cart before the horse' argument.
    The responsibility it seems to me vested on the
    occupier here is to have a system in place for
    inspection of the surfaces and/or cleaning of the
    surfaces by calling some evidence about the state of
    the surface, for instance at the time of the opening of
    the shop that morning and, for instance, at various
    periods during the day, not necessarily every quarter
    of an hour or 10 minutes or 5 minutes but perhaps even
    every one and a half hours or hour over and above
    complaints by customers about spillages. It is
    possible to discharge the onus that the Full Court says
    falls here on the occupier. Now in this instance there
    was a substance on the floor. There were witnesses who
    assert that it was the same colour as the floor tiles.
    Mr Pol is not inclined to agree with that and, even if
    Mr Pol is right on that, I do not have the view that it
    makes any difference on the topic of liability. If
    there is present then on the floor surface a slippery
    substance then given the fact that the people invited
    on to the premises are likely to be examining items on
    the shelving as distinct from items on the floor
    surface, one can see that a dangerous situation can
    readily develop. That is the common feature of all of
    these supermarket slipping cases in this country and
    elsewhere. The colour, I think, of the substance makes
    no difference. The extent of the damage is the only
    issue and the absence of forewarning on the part of the
    plaintiff. Here there was no forewarning. In some of
    the reported cases the plaintiffs have been aware of
    the presence of a slippery or some other mass on the
    surface of the floor but in the absence of forewarning
    I do not have the view that there is any obstacle in
    the path of the plaintiff either on the case by the
    Full Court in Brown v. Target or by virtue of the
    requirements of Sections 17c(2)(a) through to (g). I
    do not pause to consider those matters individually; it
    is sufficient to indicate that I have considered them
    in a general way ... So in my view the plaintiff has
    established liability. The defendant has in my opinion
    been negligent."

7. I do not agree with all that his Honour there said, and certainly not what he said in regard to onus, but after giving the matter lengthy consideration, I think it was open to him to find and, moreover, that he was right to find, that the appellant was negligent and that its negligence caused the respondent's injury. What has finally persuaded me was the evidence of Pol that there was in fact no cleaning system at all. Whilst the spillage of the shampoo was not the usual sort of supermarket spillage resulting from a customer dropping or spilling something, I consider that the risk of this sort of spillage occurring was nevertheless reasonably foreseeable. It must also be remembered that customers are preoccupied by looking at what is on the shelves, and not at what is on the floor, and I consider that a proper inference is that the absence of any cleaning system was causative of the respondent's injury.

8. I turn now to the issue of damages. In the "Personal Injury Particulars" filed in the Magistrates Court by the respondent, she said that she "sustained sprains to both of my ankles and a sprain to my back". There is no dispute that she sprained her back. She called Mr Sorby-Adams to give evidence, and the appellant tendered by consent the reports of another orthopaedic surgeon, Mr Geoffrey Jose. She did not call any of her general practitioners. She was actually examined by a total of thirteen medical practitioners.

9. His Honour said:
    "Now the plaintiff says that following the twisting
    activity on this day ... she suffered considerable
    back pain for a period; that the back pain has reduced
    in its intensity but it is now present at a very low
    level; that it continues to affect her in a minor way.
    ... I adopt the approach that is contended for by Dr
    Jose. I find that by April 1993 the plaintiff had
    largely recovered; her symptoms had largely resolved by
    September and October 1992 and thereafter she is left
    with a low level of pain and that has had some affect
    upon her ability to carry out her domestic and other
    duties..."

10. His Honour did not refer to her alleged ankle sprains at all. She had referred to spraining both ankles in her "Particulars" (supra). When she saw Mr Sorby-Adams on 19 May, 1992, she complained about her right ankle only. An X-ray did not reveal any bone injury. When she saw Mr Jose early in 1993 she referred to her left foot only. He did not find any objective evidence of injury. I am not altogether surprised that his Honour did not mention those alleged injuries.

11. Counsel for the appellant contended that the respondent's evidence as to pain and disabilities is unreliable. The learned trial Judge never said that he actually thought the respondent was a liar. However, he said a number of critical things about her evidence. He said:
    "... in general, the plaintiff was not a very good
    witness. It is clear that her level of education is
    very poor indeed. She attended school but very
    briefly. She cannot read or write and she has what the
    transcript, if it is ever typed, must reveal as an
    absolutely appalling memory to many questions in chief
    and in cross examination. She was simply giving the
    answer that she could not remember, in many instances
    those responses were less than satisfactory."

12. Later, he expressly disbelieved her evidence that she was wearing shoes at the time of the incident, and found that she was wearing thongs. Much later in his judgment, he said:
    "On the issue of damages the plaintiff ... is a poor
    witness; it was very difficult to try and separate the
    actual complaints and very little detail was given and
    I am really left having regard to the contents of the
    medical reports. Not all of that of course is the
    plaintiff's fault or her advisers. Sometimes
    plaintiffs simply are not able to articulate."

13. Counsel for the appellant pointed to the fact that the respondent only consulted a medical practitioner once after 1992, and having regard to the very large number of such visits in 1992, that fact strongly indicates a substantial recovery by the end of that year.

14. I have reached the conclusion that the award of $7,500 for past pain and suffering was manifestly excessive. I would reduce the award to $5,000.

15. As far as Special Damages are concerned, the respondent originally claimed $5,132.85. With the exception of the fee of $32 for a visit to the Europa Clinic on 22 June, 1993, that extraordinarily large sum covered fees incurred for the period 19 March - 10 December, 1992, and did not even include in-patient hospital fees. His Honour reduced it to $3,419.00, but the appellant strongly contended that many more items should have been excluded. None of the providers of the treatment or services were called. I have reached the firm conclusion that some fees were not reasonably incurred. That is the test, not whether they were incurred, as his Honour appeared to consider, "entirely unnecessarily". It is quite impossible to approach this aspect with any precision. On a broad axe basis, I would reduce the figure by $700 to $2,719.

16. As far as the claim for future loss of earning capacity is concerned, in her Particulars the respondent said:
    "I had not worked for approximately 3 years prior to
    the accident. I believe because of the injuries I
    would have difficulties obtaining a job with bending
    and lifting. I also believe I would have difficulties
    passing a medical examination."

17. His Honour said:
    "There is no(sic) evidence that the plaintiff was
    endeavouring to get into the work force and had been
    admitted to get work with the Aboriginal Child Care
    Agency and there is, certainly on Dr Jose's assessment
    of matters, potential for some future economical loss
    ... I should though make a small allowance, as I say
    given the paucity of material before me, to having
    regard to the possibility that some work might become
    available and the plaintiff might be precluded or
    restricted in her future prospects. I say that against
    the background here where the plaintiff has had a
    rather poor working career. In any event, I make an
    allowance but in my view it should be quite moderate.
    I fix 1000.00"

18. The respondent was 37 years of age at trial and had two children, the younger of whom was a nine year old daughter who was living at home with her. I think it was reasonable to award her something for the future, but I am not persuaded that an award of $1,000 in all the circumstances was justified. I would substitute a nominal figure of $500.

19. The appeal is allowed and the respondent's damages reduced by $3,700 ($2,500 + $700 + $500). I would not interfere with the award of interest.