Australian Safeway Stores Pty Ltd v Zaluzna

Australian Safeway Stores Pty Ltd v Zaluzna - [1987] HCA 7 - HCA 1979 case summary — Zoe

[18]

These judgments raise important issues. Does a theory of concurrent general and special duties, giving rise as it does to complications that raise "some intricate and possibly confusing arguments" (the Judicial Committee in Southern Portland Cement Ltd. v. Cooper [22] ) serve any useful purpose as the law of negligence is now understood? Is there anything to be gained by striving to perpetuate a distinction between the static condition of the land and dynamic situations affecting the land as a basis for deciding whether the special duty is more appropriate to the circumstances than the general duty? The present case illustrates the neat issue that such a question can raise: on the one hand, the appellant argues that because the condition of the floor was caused by wet weather it was unrelated to any activity of the appellant and therefore the special duty supplied the relevant test; on the other hand, it was the activity of conducting a commercial operation on the premises that provided the context for the accident and what could be more dynamic than the constant movement of rain-soaked shoppers over the floor of a supermarket on a Saturday morning? If it was always the case that the formulations of an occupier's duty in specific terms contributed to the easy ascertainment of the law there would be a case for their retention, as Wilson J. acknowledged in Papatonakis [23] , but the pursuit of certainty in this way loses its attraction if its attainment depends on the resolution of difficult questions based on artificial distinctions. It seems to us that the utility of the theory of concurrent duties could be accepted only if a situation could arise in which it was possible to establish a cause of action in reliance upon Indermaur v. Dames which could not be pursued by reference to the general duty of care postulated in Donoghue v. Stevenson. And yet case after case affirms, as the reviews to which we have referred demonstrate, that the special duties do not travel beyond the general law of negligence. They are no more than an expression of the general law in terms appropriate to the particular situation it was designed to address.

[25]

I am not talking about a situation where shoppers are sloshing about in a considerable amount of water. I am speaking of the kind of dampness or moisture which one commonly finds and, as I would think expects to find, when large numbers of people with wet feet and clothes and umbrellas and shopping buggies, come indoors and walk around an area which is covered with some impervious flooring. If that was the extent of the moisture, and in my opinion the evidence does not really indicate that it was greater, then assuming its source was as I have supposed, I should not be prepared to find that it constituted an unusual danger to the plaintiff. That day an employee had been directed to mop up excess water carried in by customers, but his Honour was unable to find whether or not the moisture on the part of the floor on which Mrs. Zaluzna slipped had been mopped over. On the hypothesis that the moisture on the floor was an unusual danger - an hypothesis which his Honour's earlier finding had rejected - he made further findings. First, that the appellant knew of the moisture but, secondly, that no failure to take reasonable care to prevent damage from the moisture had been established against the appellant. Accordingly, he dismissed Mrs. Zaluzna's action for damages for negligence. The duty of care which his Honour held the appellant to owe to Mrs. Zaluzna was the duty of care owed by an invitor to an invitee. The classical statement of that duty is to be found in the judgment of Willes J. in Indermaur v. Dames [28] : And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as matter of fact. 1. (1866) L.R. 1 C.P. 274, at p. 288.

[40]

Subject to one exception, it appears that there were no circumstances which might have established any relationship between the appellant and Mrs. Zaluzna other than the relationship of invitor and invitee. The injury which Mrs. Zaluzna sustained was caused solely by her slipping on the moist floor; she entered on the floor of the appellant's supermarket to buy cheese and for no other reason; apart from mopping the floor, the appellant did nothing which might have created or increased the risk of her slipping; it was merely the occupier of the supermarket. No act or omission on the part of any employee (apart, possibly, from mopping the floor) caused or contributed to Mrs. Zaluzna's injury. Mopping a floor on which Mrs. Zaluzna would foreseeably walk is an act which creates a relationship giving rise to a general duty of care if careless mopping would enhance the risk of slipping. That act apart, there are no facts which tend to establish a relationship giving rise to a general duty of care different from the duty imposed on an invitor in conformity with Indermaur v. Dames. As his Honour found that there was no want of reasonable care in mopping, it was unnecessary to consider whether the undertaking of the mopping gave rise to a general duty of care. If his Honour's finding were set aside and the Full Court substituted a finding that carelessness in mopping caused or contributed to the risk of injury, it would be open to the Full Court (assuming the issue was raised by the pleadings or in the conduct of the litigation) to enter judgment for Mrs. Zaluzna. The failure of the trial judge to consider the general duty presents no impediment to relief on the issues as they would be determined by the Full Court. If the finding stood, the judge's failure to consider the general duty is irrelevant to the result. Whether the finding stands or whether it is set aside, there is no need for a retrial. Leaving aside the possibility that a relevant general duty of care may have arisen from undertaking the mopping of the floor, there are no findings which point to evidence of any other circumstances establishing or tending to establish some further relationship. On that footing, the duty of care imposed by law on the appellant towards Mrs. Zaluzna was imposed by reason only of the relationship of invitor and invitee. I turn then to the question as to the formulation of an invitor's duty of care.

[46]

In Rich v. Commissioner for Railways (N.S.W.) [53] his Honour referred to Mummery v. Irvings Pty. Ltd. [54] as pointing out that the duty "which the occupier of premises, as such, owes to invitees or licensees present on the premises is a separate and distinct duty, which arises from the mere fact of the occupation of the premises, and relates only to the condition of the premises". The special duty does not necessarily depend on an act done by an occupier or an omission made by him; occupancy of dangerous premises is itself sufficient to found the duty of care to persons entering by invitation or permission. Occupancy is not merely one of the circumstances establishing a neighbour relationship founding a general duty of care to persons who enter or who might foreseeably enter on the premises. At the time when Indermaur v. Dames was decided, the occupancy of dangerous premises had been held to be insufficient by itself to impose on the occupier a duty of care to every entrant: see Gautret v. Egerton. It may be that occupation of dangerous premises would be regarded by a modern court as a more significant factor in establishing a neighbour relationship sufficient to attract a general duty of care to persons who might foreseeably enter the premises, but the law has not left the existence of a duty of care to an invitee to be assessed in all the circumstances according to contemporary ways of thought. The special duties are imposed by law on an occupier of land in virtue of his occupation although, as Fullagar J. said in Cardy , the law holds that the occupier ought to be held liable only "in some cases" [55] . The rule which imposes the special duty supplies, so far as it extends, the principles governing the invitor-invitee relationship. Nevertheless, the rule is consistent with, and does not lie outside, the general law of negligence. Although it prescribes a standard of care, the prescribed standard does not fall outside the general standard laid down by Alderson B. The prescribing of the standard, however, makes it unnecessary to speculate whether a jury, directed in accordance with the speech of Lord Atkin and the judgment of Alderson B., would apply to an invitor the same criterion of liability as it would apply when it is directed in terms of the rule prescribing the invitor's special duty.

[52]

even without the aid of a statute such as now exists in England, the trend of judicial authority has been to treat the liability of an occupier for mishaps upon his premises as governed by a duty of care arising from the general principles of the law of negligence. The special rules concerning invitees, licensees and others are ultimately subservient to those general principles. Instead of first looking at the capacity in which the plaintiff comes upon the premises, and putting him into a category by which his rights are measured, the tendency now is to look at all the circumstances of the case, including the activities of the occupier upon, or in respect of, the premises, and to measure his liability against the conduct that would be expected of a reasonably careful man in such circumstances. His Honour thought that the judgments in Cardy provided "recent illustrations of this tendency". But, with great respect to his Honour, the judgments in this Court up to that time had maintained the rules defining the special duties of an occupier as the rules applicable to the particular relationships of occupier of premises and the various classes of persons entering on them. What this Court had done was to assert that that relationship did not necessarily exclude the existence of another relationship giving rise to a general duty. In cases where the only relevant relationship was that of occupier and invitee, the authority of Indermaur v. Dames remained undiminished. In Commissioner for Railways (N.S.W.) v. Anderson [58] , Fullagar J. delivered a judgment which, though in dissent on the facts, commanded the concurrence of Kitto J. (in the majority) as an exposition of the law. His Honour said [59] : In cases of this type juries in this country are, I think, invariably directed in accordance with the exposition of Willes J. in Indermaur v. Dames, and it is on a correct understanding of that exposition that the present case, in my opinion, depends. He went on to say [60] of the statement of Willes J.: The statement does not lay down a special rule outside and apart from the general law of negligence. Nor does it, within the general law of negligence, prescribe a special standard of care. The duty is a duty to take reasonable care. The standard is the standard of the reasonable man. The gravamen of the whole passage lies in its statement of what may fairly be regarded as reasonable care in cases where a visitor enters on premises as an invitee of the occupier. It ought not to be read as requiring of the occupier something more than reasonable care. However, far from subsuming the formulation of the special duty as laid down in Indermaur v. Dames in the formulation of a general duty, his Honour's judgment turned on the elements of the special duty as Willes J. had laid them down. He held that there was no evidence that the Commissioner or any of his servants knew or ought to have known that the wooden bar on which the plaintiff had struck his head possessed the character of an unusual danger [61] . That was the very ground of his dissent. In his Honour's judgment, I do not detect any want of recognition of the applicability of the formulation of the special duty by Willes J. in Indermaur v. Dames. 1. (1963) 110 C.L.R. 74, at p. 89. 2. (1961) 105 C.L.R. 42. 3. (1961) 105 C.L.R., at p. 55. 4. (1961) 105 C.L.R., at p. 56. 5. (1961) 105 C.L.R., at p. 57.

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