Q. Are you saying that on the occasions that you'd been there before, you were not aware that at some stage on the floor surface the carpet would cease and the wooden floor would appear?
A. No what I'm saying is that my vision was impaired by where the stands were placed. They were placed relatively close together and as I was concentrating at looking at the garments which is the prime reason one goes in there and I stepped through I did not know that the floor was changing."
13 It is not in dispute that Mrs Bates failed to take reasonable care for her own safety. She ought not to have entered the David Jones' store wearing her new shoes in the state they were in. The question is whether David Jones breached its duty of care to Mrs Bates.
14 The fundamental principle to be applied is that stated by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40, where his Honour said at pp 47-48:-
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."
15 In applying this general principle, it is necessary to take account of the circumstances in which the breach occurred. In the context of industrial accidents and injuries occurring in schools and hospitals, the duty of care is considered to be a very high duty. That is because of the special nature of the responsibility undertaken. Employers, school authorities and hospital authorities have a non-delegable duty in respect of those in their care. Motor vehicle driving has been said to require a high duty of care: see Stocks v Baldwin (1996) 24 MVR 416. That is because motor vehicles are dangerous and likely to cause injury unless great care is taken.
16 However, at the other end of the spectrum, for example, with respect to the duties of highway authorities, it was held in Ghantous v Hawkesbury City Council [2001] HCA 29, that the duty was to take reasonable care for the safety of persons who are taking reasonable care for their own safety: see Gleeson CJ at [6]-[8], Gaudron, McHugh and Gummow JJ at [163], Kirby J at [248], Hayne J at [339] and Callinan J at [355].
17 In the case of commercial premises, such as retail stores, and in the case of residential premises, the duty is more onerous than that which applies to a highway authority. Nevertheless, it remains a duty to take that care which a reasonable person would take having regard to foreseeable dangers. As Fitzgerald JA said in Rasic v Cruz [2000] NSWCA 66 at [42]:-
"A shopkeeper owes a duty of care even to careless customers. However, a duty of care is not a general duty to protect careless people from the consequences of their own carelessness. The test of reasonable care is not whether the safety of the shop could be improved."
18 Mahoney JA expressed the same view in Phillis v Daly (1988) 15 NSWLR 65, where his Honour said, at p 74:-
"There is, in my opinion, a further matter to be taken into account. A person coming upon another's premises is expected to act reasonably. And this is relevant in deciding what it was reasonable for the occupier to do.
In one of the classic passages in Indermaur v Dames , Willes J (at 288) said:
'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; …'
This passage, and the words 'using reasonable care on his part for his own safety', have been the subject of frequent examination. The words were used, I think, to indicate that the standard of the care expected of an occupier - and therefore what dangers he was expected to deal with - were affected by the law's expectation that the plaintiff would take reasonable care for his own safety. This, in my opinion, is still a matter for consideration."
19 In Dailly v Spot-On Investments Pty Ltd (1995) Aust Torts Reports ¶81-363, Sheller JA, with whom Meagher and Handley JJA agreed, referred, at p 62,709, to "the magnitude of the risk and the degree of probability when combined with the other relevant factors". At the same page, his Honour held:-
"In the present case relevant factors are that display stands are commonplace in shops, the display rack was obvious, the defendant could reasonably expect that people coming into the shop would proceed around the display rack so as to avoid it and the display rack was in such a position as would not appear to a reasonable person to create a situation of danger likely to cause serious injury to a visitor to the shop."
20 In Jones v Bartlett (2000) 75 ALJR 1 at 6, Gleeson CJ referred, with approval, to comments of Mahoney JA in Phillis v Daly and said, at [23]:-
"There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective. Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality."
21 In the present case, Mrs Bates was not taking care for her own safety. She was wearing shoes that she ought not to have been wearing. She was aware that such shoes should be scuffed before use. The fact that she fell cannot be taken as prima facie evidence that the premises were unsafe.
22 Nor was there any evidence that any other person had fallen because of the transition from carpet to timber. If anyone had fallen in circumstances similar to those of Mrs Bates, no evidence of the fall was adduced. Although the trial Judge held that it would have been simple and inexpensive for David Jones to move the clothing racks away from the transition, no evidence was given that the clothing racks had only recently been put in that position or that they had occasioned a problem to any other person.
23 In these circumstances, it seems to me that it was not a sufficient basis for a finding of negligence that the safety of the store could have been improved by moving the clothing racks. As Fitzgerald JA said in Rasic v Cruz, "The test of reasonable care is not whether the safety of the shop could be improved". The evidence, as accepted by the trial Judge, did not show that the transition was a danger to persons wearing shoes in a normal state.
24 The question was whether the evidence was such as to disclose a danger which ought to have been remedied. The evidence of Dr Emerson was that there was such a danger. He expressed the view that a store, such as David Jones, should have a consistent floor surface. However, the trial Judge did not accept that view. Dr Cooke, whose report the trial Judge appears to have preferred, expressed the view that it was common and appropriate for retail stores to have more than one type of floor surface and that the floor had "very good slip resistance, well above the minimum requirement". He expressed the view that the timber floor was "suitable for the location". Dr Cooke expressed the view that the variation in the dynamic coefficient of friction between the carpet and the timber was not great and that the difference was insufficient to justify a conclusion that the transition was a potential danger.
25 The trial Judge did not reject these views of Dr Cooke. She made a finding of negligence on the basis that:-
"However, the photograph of the premises shows that the areas of carpeted and timbered flooring were not regular in shape and therefore, in my view, it was unreasonable to expect the plaintiff to know precisely the position of those boundaries and unreasonable to obscure from her view the position of those boundaries."
26 In my opinion, that approach involved an error of law. David Jones did not have to take into account as reasonably foreseeable the fact that a customer would be wearing shoes as slippery as those worn by Mrs Bates. If David Jones had had to take that factor into account, it would have had to provide, at each entrance to its store, a range of footwear suitable for its customers to wear. Walking in the David Jones' store, in the shoes which Mrs Bates was wearing, was a dangerous activity. It seems to me that it was reasonable for David Jones to assume that its customers would be wearing appropriate footwear and that it was not reasonably foreseeable that Mrs Bates would not have done so.
27 I would allow the appeal. I agree with the orders proposed by Young CJ in Eq.
28 YOUNG CJ in Eq: This is an appeal from the District Court which found the appellant liable in damages to the respondent with respect to personal injury suffered by her in an accident in the appellant's Elizabeth Street, Sydney store on 16 March 1998.
29 At the time of the accident, the respondent was 60 years of age: she is now 63. She had recently been discharged from hospital. Although she then permanently resided on the NSW Central Coast, she was staying with her daughter at Kensington.
30 On the day before the accident, the respondent had purchased a pair of leather soled shoes from the appellant. She was wearing those shoes on the day of the accident. On that day, she had an appointment to see a solicitor. Her daughter drove her into the city and left her outside the appellant's Elizabeth Street store. The respondent had a little time before her appointment and decided to use that time shopping.
31 The respondent entered the appellant's store though the doorway in Elizabeth Street. She realized that her shoes were suspect so far as traction was concerned. She made her way carefully across a terrazzo floor to the escalator ascending to the first floor where she intended to do her shopping.
32 The flooring of the relevant part of the first floor was partly carpet and partly timber covered with a gloss plastic film.
33 The respondent was examining clothing on racks. She was taking the clothes from the racks, examining them and replacing them. She was moving in a sideways direction. She did not notice that the surface changed from carpet to timber.
34 The learned judge described what then happened as follows:
"Immediately prior to her fall she was moving between two racks of clothing positioned closely together. She stated the distance to be one to one and a half metres between the rails of each rack. She said she worked her way along the rack to her left, from time to time taking an article from the rack to examine it and replacing it. She did this until, without noticing, she stepped over the transition between the carpeted area of the floor and the timbered area of the floor.
"As she stepped on the timber floor with her right foot she said she felt no grip on the floor. She said she was unsure if the first strike was with her heel or the sole of her shoe but she said she was walking slightly sideways and therefore it was most likely to have been the sole. She fell to the floor as her right foot rolled to the side and moved forward across her body.
35 I must confess, I do not get a good picture of what occurred from this description. Indeed the respondent said (Black 48) that the clothes from one rack were not touching the clothes from an adjoining rack and that there was enough room for her to walk between two racks. She did say the racks were "relatively close together" (Black 50). She said that the racks were on the carpeted section at the start of her examination . She walked sideways examining the clothes and her foot went from under her when it made contact with the timber floor. She also said that her foot went sideways and she fell.
36 The claim as pleaded and argued centred on three issues; firstly it was alleged that the floor was slippery and dangerous; secondly it was claimed that the defendant displayed goods so as to obscure the point of transition between the carpeted and timbered areas of the floor; and thirdly it was argued that the condition of the shoes worn by the plaintiff was such that they were defective for the purposes of common law and pursuant to the provisions of the Trade Practices Act 1974 and that they were slippery and dangerous to the point where the defendant was negligent in failing to warn her of their condition or failing to provide instruction to her as to the safe way of first wearing those shoes.
37 Her Honour rejected the first and third claims. She found that the allegation that the floor was slippery and dangerous had not been made out. She also rejected the third claim. No appeal was filed in relation to the first claim. A cross appeal was filed with respect to the rejection of the third claim, but this was abandoned at the hearing of the appeal.
38 However, her Honour found for the respondent on the second claim. She said:
"I find therefore that the plaintiff's injury was caused by the obscuring of her view of the transition from carpeted to timbered floor so that she did not have the opportunity to take the extra care she knew she needed to take when negotiating the timber floor in her slippery new shoes."
39 Her Honour found that the respondent was guilty of 30% contributory negligence. She entered a verdict for the respondent for $183,503.60.
40 The appellant says that her Honour should have dismissed the proceedings. Although, at one stage there was also an appeal on foot as to the quantum of the damages awarded by her Honour, that part of the appeal was not pursued.
41 The basal submission of the appellant is that whilst Her Honour could have found and did find that the scenario presented a reasonably foreseeable risk of injury, she should not have determined that the appellant had breached its duty of care to the respondent. There was nothing more in the circumstances that the appellant should have done in order to fulfil its obligations to its customers including the respondent. Indeed, Mr Kearns SC, who appeared with Mr O'Dowd for the appellant, put that her Honour did not actually find that there was something that the appellant should have done: all she found is what it could have done.
42 Her Honour said:
"In this situation it would have been a simple solution to the problem without any expense to the defendant to ensure that it displayed goods in positions where the transition areas were not obscured. This was not done on this occasion."
43 On the other hand, Mr Semmler QC and Mr Locke for the respondent, put that her Honour had quite plainly said that this was a situation where the foreseeable risk could be averted in a very simple and cost free manner and it was implicit that such a course should have been taken.
44 Expert evidence was called on both sides at the trial as to propensity of floors of different varieties to aid or retard slipping. Dr Emerson gave evidence for the respondent and Dr Cooke for the appellant. Her Honour appears to have preferred the latter, though, with respect, she does not always cite him accurately. It matters little for present purposes as the basic facts were agreed by both experts.
45 Both experts considered that the timber floor had a co-efficient of friction of 0.67, whilst the carpet had a co-efficient of 0.8. Although Mr Semmler QC said that this was a 20% difference, that is a quite useless statistic. The relevant fact is that both surfaces were well above the required standard of 0.4. As her Honour found, the timber floor, although glossy, was not slippery. As Dr Cooke said, "The timber floor has a shiny surface, imparted by a polyurethane finish. It is a common misconception that a surface sheen or gloss automatically indicates an inadequate level of slip resistance."(Blue 240J).
46 There is no doubt that had the respondent been looking at the floor, she would have perceived that the carpet stopped at a certain point. She made the point in cross-examination that a shopper is looking at the goods and not the floor as she did. Mr Semmler QC added to this by saying that the shopkeeper's whole purpose is to allure the customer into looking at its goods for sale and never intends that customers should be looking at anything else including the floor. Mr Semmler QC noted passages from reported judgments where something like this had been said; eg Ward v Tesco Stores Ltd [1976] 1 WLR 810, 814; Brown v Target Australia Pty Ltd (1984) 37 SASR 145,154.
47 Mr Semmler QC cited a passage from the judgment of Gibbs CJ in Turner v South Australia (1982) 56 ALJR 839, 840:
"Where it is possible to guard against a foreseeable risk which, although perhaps not great, nevertheless cannot be called remote or fanciful, by adopting a means which involves little difficulty or expense, the failure to adopt such means will in general be negligent."