Coles Supermarkets Australia Pty Ltd v Bright

Judgment

1. BASTEN JA: On 1 April 2010, Ms Sharon Bright, the plaintiff, entered Coles Supermarket at Banora Point on the State's North Coast. She slipped and fell, injuring her left ankle.
2. Proceedings were not commenced for some three years perhaps because it was hoped that the injury would subside reasonably quickly. Her claim came to trial in the District Court before Blanch CJDC on 27 February and 3 March 2014. The defendants were the current appellants, namely, Coles Supermarket and Lynch Group, the latter a contractor responsible for stocking a flower stall next to which the plaintiff fell.
3. There was closed circuit television footage of the period immediately prior to and after the plaintiff's fall.
4. The CCTV footage showed Ms Gilmore, an employee of the second appellant, Lynch Group, arranging a flower display over a number of minutes, the activity being completed at 9.45am. The plaintiff's fall occurred approximately ten minutes after that activity was completed. Precisely how the plaintiff came to fall was unclear from the CCTV footage, but her case against the appellants rested on the factual proposition that a puddle of water had been left on the tiled area immediately in front of the flower display, in which the plaintiff had slipped. The flower display extended across the end of an aisle, perhaps some 3 metres across. Immediately in front of the display was a dark floor covering, described as a mat, which protruded perhaps some 30 centimetres, the precise measurements are difficult to tell and were not recorded in the evidence, to the edge of pale coloured tiling. The slip occurred on the tiling adjacent to the edge of the matting. The plaintiff ended up on the ground towards the right hand side of the flower display as viewed by the CCTV.
5. The trial judge treated the case as turning on a single factual issue, namely, whether there was or was not a puddle of water on the ground in front of the flower display. There was no analysis as to whether, if there were a patch or puddle of water on the ground, either of the appellants was negligent in failing to remove it.
6. The grounds of appeal challenged numerous aspects of the findings and reasons of the trial judge. However, it is sufficient to dispose of the appeal by addressing the finding as to the presence of water on the ground prior to the plaintiff's fall. It will be convenient to refer briefly to the finding as to breach of duty on the assumption that there was a wet patch on the ground.
7. It was not in dispute that there was water on the ground immediately following the plaintiff's accident. There was a ready explanation for that, as the CCTV footage showed, the plaintiff's arm struck and overturned one of the buckets containing flowers on the lower level of the display. There was evidence that the buckets contained some 5 centimetres of water so that the tipping of the bucket readily accounted for there being water on the floor in the vicinity of the plaintiff's fall. The second appellant raised the possibility that there was water on the ground from some other source, unrelated to the activities of its employee, Ms Gilmore who arranged the display. Unless the evidence affirmatively established the presence of water, this possibility need not be addressed.
8. The plaintiff gave evidence that, in the language of the trial judge, she "saw a skid mark in the water consistent with her shoe having moved forward in the water." (Her mother gave similar evidence based on what she saw after the plaintiff had pointed it out to her.) That was, in substance, the only evidence to support the view that there was water on the floor before the plaintiff slipped. Its effect was equivocal.
9. In written submissions in this Court, the plaintiff said that "after falling, she was facing back the way she had fallen and could see water on the floor." In cross examination at trial, she expanded on that statement saying: "I didn't see the water when I fell. I saw, when I was propped up and looked back, yes, that there was about the amount of water that was on the floor with my shoe print sliding through it." [1] She then agreed that she had assumed that it was made by her shoe. [2]
10. As the CCTV footage showed, when she fell, she fell forward ending up on her right knee and then on her side. A woman who was wheeling a trolley within 2 or 3 metres of the plaintiff immediately came towards her from the same direction from which the plaintiff had been walking; another member of the public approached from behind and helped her to sit up. Thus, when she was propped up in that way, the woman who had abandoned her shopping trolley to assist was standing approximately where it appears that the slip occurred. These elements took less than five seconds: whatever the plaintiff saw, there was evident room for doubt both as to her interpretation and as to the cause.
11. There was significant evidence inconsistent with the slip being caused by water on the floor. First, the CCTV footage, which was not discussed by the trial judge beyond saying that it captured the whole of the incident, including the setting up of the flower display, did not show any obvious activity which could have led to water falling on the floor. There was a customer apparently taking a bunch of flowers about three and a half minutes before the fall, but at the left hand side of the display, as viewed by the CCTV. (As noted above, the plaintiff ended up on the ground on the right hand side of the display, as so viewed.) Further, the CCTV recorded a significant number of customers walking across the top of the aisle in front of the flower display during the 10 minutes between the time its arrangement was completed and the time when the plaintiff fell. Even the plaintiff walked across the area close to the flower display in the opposite direction to that in which she was walking when she fell only seconds earlier. There is no indication from the CCTV footage that any person noticed any water or reacted when putting their foot in water.
12. Colleen Gilmore, the person responsible for setting up the flower display on the morning in question, provided a statement which was tendered but did not give oral evidence. She said that she was conscientious in making sure the floor was "clean and dry" and that if there had been spillage of water she would have "seen it and cleaned it up." This was admitted as evidence of practice rather than of a recollection as to the events on the day in question.
13. The manager of the store, Mr O'Brien, gave evidence. The trial judge described him as a conscientious manager who ensured that the safety precautions necessary were taken.
14. With the exception of the CCTV footage of people walking across the area for ten minutes prior to the incident, the trial judge identified the relevant evidence and said that he was satisfied on the balance of probabilities "that it was a patch of water which caused the plaintiff to fall." How that conclusion was reached was not explained, although perhaps not much more could have been said.
15. In this Court the plaintiff submitted that there was no basis to conclude "that there are compelling inferences and objectively established facts contrary to the finding made by [the trial judge]." That language appeared to assume that the relevant test was that for evaluating credit findings in Fox v Percy. [3] However, this case did not depend on credibility findings; it depended on assessment of probabilities in the absence of any direct evidence as to the existence of a patch of water prior to the accident. As the plaintiff acknowledged in her submissions, she did not see the water on the floor until after the fall, that being "an incontrovertible fact."
16. The plaintiff had some difficulty in establishing precisely where the slip occurred. The importance of the location related to whether the water in which she was undoubtedly sitting after she fell and was propped up had come from the upset bucket or whether there was other water which had separately fallen on the floor in which she slipped. If there were a second puddle on the floor, it would have been closer, it was submitted, to the left hand side of the flower display rather than the point at which she ended up when she fell. If in fact she had slipped at an earlier point towards the left hand side of the display, it is quite possible that the water could have been dripped by the woman who selected a bunch before the fall. That, however, would not have supported a claim in negligence against the appellants, as was conceded. The case was run at trial on the basis that it was Ms Gilmore's actions, and the omission of Mr O'Brien caused the slip and the fall.
17. A finding of fact essential to a conclusion as to liability must be established on the balance of probabilities and not merely by guesswork or speculation where the evidence is effectively silent, as explained by Dixon DJ in Jones v Dunkel. [4] There is no bright line distinction to be drawn between inferences based on common experience and guesswork or speculation, but the distinction depends upon the plaintiff's obligation to establish an affirmative satisfaction as to the fact based on probabilities.
18. Given the nature of the evidence, the trial judge in this case had very limited advantages over an assessment which might be made by this Court. Further, the reasoning provided in the judgment is of limited assistance. Apart from the supposed slip mark on the ground in the vicinity of the water, there was nothing at all beyond the fact of the fall to support the view that the floor was wet. The CCTV footage did not demonstrate that the plaintiff had any opportunity to inspect the floor where she thought she had slipped before she was surrounded by people offering assistance. Her evidence alone established no more than the possibility that there was water there before she fell. The other evidence referred to above suggests the contrary. The Court could not be satisfied on the balance of probabilities that there was water on the floor before the plaintiff slipped. Accordingly, her claim should have been rejected.
19. The appellants' second major complaint concerned the failure of the trial judge to do more than state that if there were water on the floor both appellants must be liable. Having noted that Coles had "a perfectly adequate system of inspection" and that Mr O'Brien was "a conscientious manager" and that he came past the display and spoke to Ms Gilmore, the judge said: "His evidence was that if he had seen the patch of water, then he would have done something about making sure that it was cleared up. I come back then to the conclusion that there was a patch of water, and if there was a patch of water, then Mr O'Brien did not see the patch of water. There is a statement from the lady who put the display together, and she of course indicated that she took care not to spill water. But again, if the conclusion is that the patch of water existed, then the only conclusion is that she must have been responsible for the water being there. In those circumstances, both the defendants are liable."
20. Unfortunately that reasoning does not come to grips with the principles necessary to be considered in determining whether there has been a breach of duty. The obligation is to take reasonable precautions to avoid injury to a class of persons who may be affected by particular conduct; it does not involve a guarantee that no risks will arise. On one view, the assessment required by s 5B of the Civil Liability Act 2002 (NSW), to determine whether each appellant took the precautions against a risk of harm that a reasonable person would have taken, was not expressly addressed because the finding was that both Mr O'Brien and Ms Gilmore acted reasonably and carefully. There was no finding that they failed to take reasonable care: the judge accepted the evidence of each, that the risk of spillage was well understood and that they were conscientious in identifying and clearing up such spillage if it occurred. Coles had a system for identifying and clearing spillages which he described as perfectly adequate. The mere fact of a spillage of a small quantity of water did not necessarily entail a failure to take reasonable care. Some further reasoning was required to establish the nature of the negligence, particularly as there was negligence, it was said, on the part of both appellants. To say that Ms Gilmore was "responsible for the water being there" appears to be no more than a statement that it must have been her act which caused it to be there.
21. It is, perhaps, unprofitable to follow the line of reasoning further. Acceptance that each was conscientious and careful weighed strongly against a finding that there was water on the floor at all. The finding was also incompatible with a conclusion that there had been a failure to take reasonable care. Some further reasoning was required: it is not apparent in what respect there was a lack of care in any event.
22. The finding that there was water on the floor cannot be sustained. Accordingly, the appeal should be upheld and the judgment in the District Court set aside. It is not necessary to deal with other issues raised by the appellants, including the challenge to that part of the award relating to future commercial assistance or apportionment.
23. The Court, in my view, should make the following orders: (1) With respect to each of the appeals filed by Coles Supermarkets Australia Pty Ltd and Lynch Group Australia Pty Ltd: (a) allow the appeal and set aside the orders made in the District Court on 3 March 2014; (b) give judgment for the defendants against the plaintiff; (c) order that the plaintiff pay the costs of the defendants; (d) dismiss Coles Supermarkets Australia Pty Ltd's cross-claim with no order as to costs. (2) Order that the respondent pay the costs of the appellants in each appeal. (3) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of each appeal.
24. HOEBEN JA: I agree with Basten JA.
25. WARD JA: I agree with Basten JA.
26. [The parties were directed to bring in short minutes, to include an order for repayment of such amount as had already been paid.]

Endnotes

1. Tcpt, 27/02/14, p 59.
2. Tcpt, pp 60-61.
3. [2003] HCA 22; 214 CLR 118 at [29].
4. [1959] HCA 8; 101 CLR 298 at 304-305. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 February 2015