Betty Kelly v Lend Lease Retail Pty Limited [1993] ACTSC 34; (1993) 113 FLR 21 (16 April 1993)

SUPREME COURT OF THE ACT

BETTY KELLY v LEND LEASE RETAIL PTY LIMITED
No. SC1150 of 1988
Number of pages - [1993] ACTSC 34; 22
Negligence
(1993) Aust Torts Reports 81-216
(1993) 113 FLR 21

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J(1)

CATCHWORDS

Negligence - Personal injuries claim - "Slippery floor" case - Standard of care - Plaintiff slipping on woodchip in the common area of a shopping centre - Assessment of damages.

Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367

Dulhunty v J B Young Ltd (1975) 7 ALR 409; 50 ALJR 150

Eggins v Brooms Head Bowling and Recreational Club Ltd (1986) 5 NSWLR 521

Brady v Girvan Bros Pty Ltd (t/as Minto Mall) (1986) 7 NSWLR 241

Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479

Rose v Abbey Orchard Property Investments Pty Ltd (1987) Aust. Torts Reports 68,925

Sleiman v Franklin Food Stores Pty Ltd (1989) Aust. Torts Reports 68,827

Shoeys Pty Ltd v Allan (1991) Aust. Torts Reports 68,934

Griffin v Coles Myer Ltd (1991) Aust. Torts Reports 68,997

Drakos v Woolworths (SA) Ltd (1991) Aust. Torts Reports 69,276

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

HEARING

CANBERRA, 16 and 17 February 1993
16:4:1993

Counsel for the Plaintiff: Mr G Clarke

Instructing solicitors: Messrs Maliganis Edwards Johnson

Counsel for the Defendant: Mr R Williams QC with Mr C Curwood

Instructing solicitors: Mr T Clarke

ORDER

THE COURT ORDERS THAT:
1. There be judgement for the plaintiff in the sum of $76,996.29.

DECISION

HIGGINS J On 13 May 1985, the plaintiff, then aged 60 years, went shopping with her daughter and 11 year old grand-daughter at Woden Shopping Square, a shopping mall ("the centre"). She was visiting from Adelaide.

2. They had arrived about 1.00pm. They had walked around the centre over a period of approximately 2 1/4 hours. During that time, the plaintiff had noticed some papers and foodstuffs scattered about, particularly in the common areas between the various shops. It was not disputed that the defendant was responsible for the safety of the public using those common areas.

3. The plaintiff left JB Youngs' store on the ground floor of the centre. The group was intending to leave the centre and return to the plaintiff's daughter's car.

4. As she walked away towards the staircase opposite the Florscheim shop, the plaintiff lifted her left foot, stepping forward as her right foot came down and stopped on something which slipped away underneath her foot, turning it over. The plaintiff fell heavily to her right. She put her right arm out, instinctively, to break her fall. Unfortunately, the arm was pushed up, against her shoulder, with considerable force. This caused severe injury to the right shoulder.

5. As she lay on the ground, in great pain and awaiting treatment, the plaintiff noticed some loose papers in the area.

6. The plaintiff's daughter, Mrs Stallion, saw that her mother had fallen. She went immediately to her aid. She was advised by a bystander not to try and move her, so she waited for expert help.

7. While she waited she looked around for anything which might explain why her mother fell. She noticed a woodchip nearby. It was of a type used around plants in planter boxes. Someone remarked on it. Mrs Stallion pointed to it. Two people looked at it closely. She did not see it thereafter.

8. She estimated that the chip was located about 2 1/2 feet (.76m) away from where the plaintiff fell. She observed other rubbish in the area, including some potato chips, sauce covered tissues, drink cups and cigarette butts. However, none of these items showed any sign of having been implicated in the plaintiff's fall.

9. During the period she had been in the centre, Mrs Stallion said she had not noticed any cleaners at work.

10. In cross-examination, Mrs Stallion agreed that she had said, earlier, that the woodchip was 10 feet (3.04m) away from her mother when she first saw it. She also agreed that she considered the woodchip to be the "likely suspect" as the cause of her mother's fall.

11. It was not clear from Mrs Stallion's prior statement whether the estimate of the distance she then gave between her mother, as she lay on the floor, and the woodchip was taken from her mother's feet or head.

12. Miss Janelle Stallion, the plaintiff's grand-daughter, also observed her fall over. She noticed the woodchip "just where she'd slipped". There was paper and some food scraps in the general floor area. She noticed only the woodchip near the plaintiff.

13. In cross-examination, Miss Stallion estimated the distance of the woodchip at about 30cm-50cm from the plaintiff's feet. She conceded that estimate of distance could be an under-estimate.

14. There is not much other evidence supporting or disputing this account of the plaintiff's fall.

15. Mr Edward Francis, who had then been employed by the defendant for about eight years, was called to assist the plaintiff. He had First-aid qualifications. He was told that the plaintiff had fallen on something. He looked but could not see anything on the floor to explain the fall.

16. He did confirm that there were, in the area, a number of planter boxes covered with woodchips. The nearest was about 3-4 metres from where the plaintiff fell.

17. In cross-examination, he described the state of the floor area generally as "quite clean". He was aware that the defendant employed three cleaners and a maintenance crew at that time. They had instructions to clean up anything they noticed on the floor.

18. A report to the defendant dated 13 May 1985 noted that the plaintiff had "slipped on what looked like a woodchip". That information was provided by the plaintiff's daughter, Mrs Stallion by telephone. Nothing was located in the area.

19. Mr Drago Brozinic, manager of Berkeley Challenge, the cleaning contractor, gave evidence for the defendant. In some respects, his evidence was not entirely satisfactory. This, no doubt, was, for the most part, because he had not been asked to provide any details of cleaning arrangements as at May 1985 until 1 February 1993. He had no records from that time to draw on. Indeed, he could not recall what position he had, in May 1985, with Berkeley Challenge. Thus, though Mr Brozinic purported clearly to remember that what he had written on 1 February 1993 as his recollection of the relevant cleaning arrangements, that did vary from his initial evidence-in-chief in some material respects.

20. He said that during the day there were two female cleaners and one male cleaner employed. Their duties were to check toilets and floors. They were to clean up spillages. One female cleaner was assigned to each of the two levels. Their hours were from 10.00am to 3.00pm. He had written that the concluding time was 4.00pm. When his attention was drawn to that variation, he asserted that the later time was the more accurate.

21. The male cleaner's duties were to look after the dock area, empty bins and keep an eye on the rubbish compactor unit.

22. There were 12 cleaners employed after shopping hours from 6.00pm to 10.00pm (save on late shopping nights, I assume). The male cleaner worked from 6.30am to 5.30pm (close time). Mr Brozinic also said that the latter worked an eight hour shift. However, if the shift was worked according to the stated hours, it would span 11 hours. That seems, on the face of it, unlikely.

23. It was conceded by Mr Brozinic that, sometimes, a cleaner might not report for duty. There was no evidence that any relief cleaner was available to be called to duty.

24. The evidence as to the presence or absence of cleaning staff, the general likelihood that cleaners were engaged in reasonable numbers and were carrying out their duties with reasonable diligence, is quite unsatisfactory.

25. The only other evidence relevant to liability emanated from Dr Neil Adams and reports he had prepared.

26. Dr Adams is a consultant in ergonomics and occupational safety management. Much of his report, dealing with how and why people slip, was either irrelevant or obvious. It is obvious that, if the plaintiff's foot hit a woodchip and she fell as she described, that she slipped on the woodchip.

27. Dr Adams did, however, inspect the area of the accident on 5 November 1992. It had not changed substantially since May 1985, it seems. He noticed a number of planter boxes with plants in soil or potting mix covered by a fibrous material. There were no woodchips covering the soil or potting mix. There were a few planter boxes elsewhere in the centre with broken bark and woodchips covering the surface of them.

28. It seems to be likely, therefore, that at the time the plaintiff fell, there were planter boxes, the surfaces of which were piled with woodchips. It is probable that the plaintiff slipped on a woodchip dislodged from a nearby planter box. It seems to me highly likely that there was a woodchip on the floor upon which the plaintiff slipped and fell as she walked from J B Young's store towards the exit from the centre. There was no other explanation for her fall. Spontaneous collapse is, to my mind, a quite fanciful explanation. It is not likely that, if the plaintiff had slipped on some other object, its presence would have escaped Mrs Stallion's scrutiny.

29. I am satisfied, therefore, that the woodchip is not only the most likely suspect, but was the cause of the plaintiff's fall. Its subsequent absence gives me no cause to doubt this. I believe that bystanders, noting the plaintiff's fall and drawing the same connection with the plaintiff's fall as did Mrs Stallion, would have removed the woodchip to avoid further falls or stumbles by others. The last thing anyone would have had in mind was preservation of evidence for court proceedings.

30. The defendant, however, submits that, in the absence of evidence as to the length of time the woodchip was present, it could not be inferred that the defendant had no adequate cleaning or inspection system. Indeed, the system was, it was submitted, adequate. In any event, it is not demonstrated, it submits, that any inadequacy in the system caused the fall suggested by the plaintiff.

"Slippery floor" cases
31. Australia has not, as yet, embraced a res ipsa loquitur approach to such cases. The hazard posed by slippery floors, whether inherently so or rendered so by substances placed or spilt thereon, is well-recognised. There is a duty to take reasonable care to avoid floors becoming slippery. It must, however, also appear from the evidence that but for a failure to take reasonable care on the part of the person having responsibility for the state of the floor, the injury to the plaintiff would probably have been avoided.

32. The difficulty for a plaintiff is that, often, there is no direct evidence of the time during which a foreign substance or object has been on the relevant floor area before a plaintiff falls as a result of its presence.

33. The Australian approach to this issue commences with Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367.

34. In that case, the plaintiff slipped and fell on the floor of a washroom in the defendant's hotel. There was some greasy water on the floor on which it was assumed she fell. There was evidence that the floor had been thoroughly washed about an hour before. There was no evidence of any additional circumstance from which it could have been inferred that the defendant knew or ought to have known of the presence of the water or the likelihood of its appearance.

35. The statement of principle is usually taken to be that of Dixon CJ.,
(371) "... proof was necessary of some additional

circumstances tending, for example, to raise a probability of its
having been there long enough to be seen if reasonable
supervision were practised, or to show that so many people were
likely to use the lavatory in the preceding hour that closer
control was called for, or that the dropping of some such
substance was common or inherently likely to occur. But very
little might have been enough. For the case is one where the
facts can hardly be within the knowledge of the plaintiff and, at
all events so far as concerns the care and control of the
premises and the precautions taken, must be peculiarly within the
knowledge of the defendant."

36. It should be observed, however, that his Honour did not suggest that a defendant will be liable if and only if the plaintiff shows that a proper inspection and cleaning regime would have detected the foreign matter before it causes a fall.

37. A defendant must seek to eliminate likely causes of "spillage". Defendants would do this by, for example, fixing a leaking tap, covering or securing items inherently likely to be dislodged or to fall on the floor. Additionally, his Honour's statement of principle refers to a defendant being required to take account of particular circumstances rendering greater care appropriate than might usually be the case.

38. Dulhunty v J B Young Ltd (1975) 7 ALR 409; 50 ALJR 150 is, perhaps, an example of the first situation mentioned. The plaintiff slipped on a grape which had fallen on the floor. It was not from the defendant's stock but, probably, from persons eating whilst walking in the aisles of the store.

39. Jacobs J noted,

(411) "I think that it is important to state that in
circumstances such as those appearing in the present case the
plaintiff need only produce slight evidence of negligence before
a factual onus may shift to a defendant ...
The plaintiff had to show by evidence, however slight, that some
omission or some act on the part of the defendant contributed to
the injury."

40. Unfortunately for the plaintiff in that case, the trial judge could not find any evidence, even slight, to tip the evidentiary balance in her favour.

41. Eggins v Brooms Head Bowling and Recreational Club Ltd (1986) 5 NSWLR 521 was an example of slipping which was "inherently likely to occur". It involved a floor kept highly polished as a dance floor.

42. Brady v Girvan Bros Pty Ltd (t/as Minto Mall) (1986) 7 NSWLR 241 is closer to the present circumstances. It also involved a large and busy shopping mall. As was the case here, it was school holidays. The plaintiff slipped on a melted jelly confection on the floor of a common passageway. The Court of Appeal agreed that the plaintiff could succeed.

43. It was accepted that whether an inference of negligence could be drawn depended on all the circumstances of the case, including the nature of the premises, that is, whether public or private, the number of people using the premises, the frequency with which spillages occur, the existence or extent of any cleaning system, the gravity of the danger, the size of the area to be supervised, the importance to the community of accident prevention and any explanation (or the absence thereof) by the occupier.

44. Kirby P supported the view that an inference of negligence could be drawn on the basis of following facts: First, the confection clearly came from a nearby shop. Second, it was the summer school holidays, and melting and spillage of such confections was the more likely as a result. Third, there would be, concurrently a greater demand for such confections. His Honour also had regard to the greater likelihood of small children carelessly dropping such substances on the floor. Thus his Honour categorised this spillage as one "inherently likely to occur". In the absence of explanation from the defendant an inference of negligence could be drawn.

45. Priestley JA supported the availability of an inference of negligence on a different basis. His Honour stressed the legitimate expectation that floors would be free of hazardous substances. Even without any evidence as to the time for which the jelly had been on the floor, his Honour was prepared, from the absence of evidence of any effective cleaning system, to infer that it was more probable than not that such a system would have averted the accident.

46. McHugh JA considered that the physical state of the jelly supported an inference that it had been there for some substantial period of time. It was thus open to conclude that a proper system for inspection and cleaning would have removed the jelly before it caused the plaintiff to fall.

47. Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, marking a shift as it does in the law relating to occupiers' liability, was also a "slippery floor" case.

48. The floor was made damp as a result of water being trekked in from the rainy conditions outside. The defendant simply contended that the onus was on customers to notice that the foyer was wet and slippery. It was open to conclude that the mopping up efforts were insufficient to discharge the general duty of care.

49. Clearly that was a case, however, where the foreign substance could be anticipated to be present and the issue was as to whether sufficient steps had been taken to reduce or eliminate the known risk.

50. Rose v Abbey Orchard Property Investments Pty Ltd (1987) Aust. Torts Reports 68,925 was a different case. The plaintiff slipped on oil spilt in a carpark area. The defendant did not know it was there. The fall occurred at 3.00pm. The carpark floor was cleaned each night. It was recognised as a risk that oil or similar substances would fall on the floor. From 6.30am to 3.00pm there was a regular inspection system. Each part of the floor was inspected every 20 minutes. The final inspection had been at 2.30pm. After that, there was some evidence of foot patrols from time to time not more frequently than each half hour. Setting aside a verdict for the defendant, the Court of Appeal concluded that the inspection system was inadequate. An inference that the inadequacy of the system caused the fall was available on the basis that there was twice the chance that the spillage had occurred after the last inspection that was in fact made and before the last inspection that ought to have been made before the plaintiff fell. That approach was very similar to the reasoning of Priestley JA in Brady (supra).

51. However, Rose was a case where spillages were to be expected.

52. Sleiman v Franklin Food Stores Pty Ltd (1989) Aust. Torts Reports 68,827 provides a reminder that the mere fact that a spillage has happened will not necessarily enable such an inference to be drawn. It was another case of water on the floor but not in any area where spillages might, more than usually, be expected.

53. The inferences available from the apparent effectiveness of any cleaning system or the lack of it is illustrated by Shoeys Pty Ltd v Allan (1991) Aust. Torts Reports 68,934. The plaintiff slipped and fell on a cauliflower leaf. It was located in the vegetable area, a place where such an item might reasonably be expected. There was no particular evidence to indicate how long the leaf had been on the floor. The accident had happened in the afternoon. The New South Wales Court of Appeal was able to conclude, in the absence of any evidence of a satisfactory monitoring and cleaning system that, (per Handley JA),

(68,944) "... there is a greater probability of the material
having been dropped at some time during that day earlier than
half an hour before the accident."

54. Mahoney JA, in the same case noted that if there was evidence that a particular hazard had remained on the floor for a long time (say, several hours) that would itself support a conclusion that there had been a breach of duty.

55. Two recent cases tend to suggest that "length of time" evidence is not always necessary.

56. In Griffin v Coles Myer Ltd (1991) Aust. Torts Reports 68,997, there was icing on the floor in the drapery section of a department store. There was no evidence of prior food spillages. Whilst accepting that mere presence of an item on the floor rendering it hazardous will not suffice to support liability, Williams J noted that "length of time" evidence will not always be necessary.

(69,000) "If the occupier has under his control a substance,
such as cooking oil, which is known to be highly slippery and
dangerous if it should get on to a floor in a public part of the
store, then he may well be negligent in allowing that substance
to get onto the floor irrespective of any evidence as to the
length of time it was there."

57. The fact that the slippery substance is present may well, in the circumstances, support the view that there had been inadequate supervision. Drakos v Woolworths (SA) Ltd (1991) Aust. Torts Reports 69,276 illustrates that consideration. The plaintiff slipped upon a spillage of vegetable oil. Employees were instructed to look out for and clean up any spillages. There was no routine inspection undertaken.

58. Olsson J observed,

(69,290) "... the evidence established an inherent
likelihood of the floor becoming slippery in consequence of
spillages from time to time and reasonable care demanded a
considerable degree of supervision of the floor areas. The
system adopted by the appellant (defendant) was plainly
inadequate. The fact that the oily substance was present is an
indication of inadequate supervision and prima facie evidence of
a failure to exercise reasonable care leading to the incident
which occurred."

59. I conclude from those decisions that, whilst the mere presence of a hazard on a floor, rending it slippery will not per se support liability, there is a duty on an occupier to be conscious of and take reasonable steps to avert injury by slipping and falling to those the occupier knows or ought to know will use the floor.

60. That duty will be relevantly breached and liability established in one of three categories of circumstances:-

. If it appears by evidence, however slight, that the foreign
matter in question had been on the floor in question for a
greater time, on the balance of probabilities, than is reasonable
before it ought to have been seen and removed.
. If it appears that no reasonable system for inspection and
cleaning of the floor was in place having regard to expected
hazards, it may be inferred that it is probable that if such a
system had been in place then the fall would have been avoided.
. If the substance was one which ought not to have been allowed
on the floor in the first place then the defendant will be liable
whether or not the cleaning system is reasonable and however long
it had been there.

61. In the present case, it seems to me that it was foreseeable that, if the centre chose to have planter boxes in public areas covered with woodchips and/or bark pieces, some of them would be dislodged. They would inevitably find their way onto the floor where members of the public would walk.

62. It was very simple to avoid that risk. Management could have used fibre instead. It was possible not to use such material. The surface above the potting mix or soil could have been covered by netting or the like to ensure chips or pieces, even if used, could not be dislodged.

63. In any event, it seems to me that, given it was the summer holidays, the number of small but active children was likely to have been greater. They were likely, more than usually, to dislodge the woodchips or bark pieces. They were also more likely and more frequently than usual to spill and drop things onto the floor. Increased vigilance was called for. One patrol every 30 minutes, assuming that was occurring, was, in my view, inadequate. A more adequate supervision, particularly in an area with many nearby food outlets, should have ensured, not only that food scraps and papers were removed but that any dislodged woodchips or pieces of bark would also be removed.

64. In any event, I accept the evidence of the plaintiff and her daughter that over the two hours or so they were at the centre, they saw no cleaning taking place. They saw food wrappers and other similar rubbish littering the floor. Whilst Mr Francis noticed no foreign objects and was satisfied with the standard of the floor, it is clear he arrived at least six minutes after the fall. He conceded it could have been 20 minutes after. I think that his attention was focussed on an object that could have caused the fall rather than on the general state of the floor area. The absence of evidence of the cleaning done on that day is significant. The only evidence of the cleaning arrangements was that of Mr Brozinic and Mr Francis. Their evidence was of general practice. No records were produced as to who was actually doing the cleaning on that day. It is not even clear whether the assigned cleaner was on duty at the time of the fall. The reported state of the common areas over the time Mrs Stallion and the plaintiff were there seems to support the view that no cleaner had been attending to the cleaning of the common floor areas over the time they were there.

65. That concatenation of evidence, given the time at which the fall occurred, raises the probability that the usual system, even if adequate, was not being observed at the time of the plaintiff's fall at about 3.30pm. The failure of the system supports an inference that, had it been in operation, an inspection between 3.00pm and 3.30pm would have removed the loose woodchip. The defendant had a duty to ensure the cleaning system was adequate and had adequate "back-up" capacity.

66. For the reasons explained above, the defendant was negligent, that negligence caused or contributed to the plaintiff's fall. The fall could have been avoided by the exercise of reasonable care.

67. The risk created was not one it would be reasonable to expect the plaintiff to notice and avoid. I am satisfied that no contributory negligence has been demonstrated.

68. I proceed to the assessment of damages.

Damages
69. The plaintiff's right arm was forced up. The cervical neck of the right humerus was fractured. It caused considerable pain and loss of use of the right arm and shoulder, from the outset.

70. She is right-handed and, when hurt, was a resident of Adelaide. Her shoulder was immobilised in the hope that it would recover. However, when Dr Ravindran, an Adelaide consultant surgeon, saw the plaintiff on 6 June 1985, he found the shoulder movement to be "grossly restricted". There was pain on movement and a constant dull ache.

71. Exercise was prescribed. By 20 June 1985 it appeared to be resulting in some improvement. However, by 29 August 1985 movement had deteriorated. Necrosis of the head of the humerus was evident.

72. As at 27 May 1987, Dr Ravindran noted that the plaintiff was still suffering continuous pain and was considerably restricted in household tasks. He thought the disability was permanent and about 60% of the use of the right upper limb.

73. Initially, before returning to Adelaide, the plaintiff had been treated at Woden Valley Hospital. She was seen by Dr Coyle.

74. The plaintiff moved to Canberra in February 1988, She had needed household assistance in Adelaide. A move to Canberra enabled her to be closer to immediate family.

75. Dr Coyle reviewed her on 6 July 1989. The plaintiff was then seriously disabled, she felt that her condition had deteriorated. She was virtually a one handed person.

76. Dr Coyle found severe degenerative arthritis. He recommended total shoulder replacement.

77. Ultimately, on 28 March 1990, a shoulder replacement was performed by Dr Coyle. He was not confident of greater movement but was hopeful of relieving pain. As at 30 May 1990, Dr Coyle was satisfied with reported pain reduction. There was little functional improvement.

78. The plaintiff stayed with her daughter in Melbourne (she had moved there with her husband) for two months.

79. She is still significantly disabled. She gets occasional shoulder pain. That situation will be permanent. Her disability greatly limits the plaintiff in her day to day activities.

80. In my view, an award of $45,000.00 is appropriate for general damages.

81. I would attribute $30,000 to the past. I award $4,600.00 for interest thereon.

82. Out-of-pocket expenses are not in dispute. They total $10,473.49. $1,293.45 was paid but I do not know when it was paid. Accordingly, I do not award interest thereon.

83. The evidence of future out-of-pocket expenses is not clear. I accept a continuing use of analgesics. A lump sum of $3,000.00 seems appropriate.

84. There was a claim for household assistance. It was accepted that between 7 April 1990 and 28 May 1990 (post-operation) an award of $2,152.80 was reasonable. There is no claim before 7 April 1990 which has been particularised. I think, however, that the claim subsequent to May 1990 and up to hearing can be averaged at one hour per week.

85. I estimate the amount to be allowed for that latter period at $2,270.00. I award $9,500.00 for the future.

86. The total sum to be awarded is as follows:-

. General Damages $45,000.00
. Interest thereon 4,600.00
. Out-of-pocket expenses 10,473.49
. Future out-of-pocket expenses 3,000.00
. Griffiths v Kerkemeyer - past 4,422.80
- future 9,500.00
Total $76,996.29

87. The result is $76,996.29. I regard that figure as appropriate in a global sense and I direct judgment for the plaintiff accordingly.

88. I will hear the parties as to costs.