BELOVUKOVIC v KOTSIPOULOS, t/as WESTFIELD RESTAURANT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MAHONEY and MCHuGH JJA 26 May 1988, 26 May 1988 [1988] NSWCA 16 Appeal from District Court — Plaintiff slipped on slippery floor in restaurant -Judge held area should have been "barricaded" — approach to that question held wrong — Appeal upheld — New trial ordered. ORDERS (1) Appeal upheld. (2) Judgment below set aside. (3) Matter returned to the District Court for a general new trial. (4) Costs of the first trial to abide the result of the second trial. (5) Respondents to pay the appellant's costs of the appeal and are entitled to a certificate under the Suitors' Fund Act. Mahoney JA On 28 January 1986 the plaintiff slipped and fell in the defendant's coffee shop. He was injured. The plaintiff sued the defendant at negligence. The learned trial judge, in a carefully written judgment, found for the defendant. The plaintiff has appealed to this Court against his Honour's judgment. The basic facts are not substantially in dispute. It is accepted that the plaintiff and his friend, Mr Djukic, went into the defendant's coffee shop somewhere between 5 and 6 pm, and went to, as has been described, their favourite table towards the back of the shop. Either then or subsequently (a matter to which I shall refer) the plaintiff slipped on the floor, which was then being washed by the defendants. The plaintiff says that, in fact, he had gone into the shop and sat down or attempted to sit down and then decided to go next door to the Totalisator Agency Board. He went next door and then, on his way back, slipped on the floor, which, as I have said, was being washed. The wife of the defendant, Mrs Kotsipoulos, also says that, in general terms, that was what happened. The plaintiff's witness, Mr Djukic, also says that is what happened. The son of the defendant, who gave evidence, said - I think this is the proper inference from the evidence - that, in fact, it was when the plaintiff and Mr Djukic were coming into the shop on the first occasion that the plaintiff fell. To this point there is substantial agreement upon, as I have described them, the basic facts. The question in difference between the parties, and which has been agitated at length at the trial, was whether the plaintiff was given a warning that the floor of the shop in that area in particular was slippery. It is agreed that the floor in the shop where the plaintiff's table was, was in fact slippery. As the son of the defendant said, it was being washed by him with "hot water and detergent, special floor detergent" and it was certainly slippery if one trod on it. Was the plaintiff warned of the fact? The plaintiff said that he was not. His witness, Mr Djukic, said that he did not hear him being warned and the inference from his evidence is that if he had been warned, as was suggested, it would have been apparent to Mr Djukic. On the other hand, Mrs Kotsipoulos said that she warned the plaintiff on two occasions. On the first occasion when he came into the shop she warned him of the danger of the floor and, when he returned on the second occasion from the Totalisator Agency Board, she said she warned him 2 UNREPORTED JUDGMENTS again to be careful of the danger. Her son, the other witness for the defendant, said that on the occasion he saw the plaintiff come into the shop with Mr Djukic he also warned the plaintiff of the danger from the slippery floor. The learned judge concluded that the evidence to be accepted was the evidence of the son, Angelo Kotsipoulos. He said that he accepted his evidence and, to the extent to which his mother's evidence accorded with the evidence of the son, he accepted her evidence also. It follows, I think, that he rejected the evidence of the plaintiff and Mr Djukic, insofar as that evidence related to warning. Before the learned judge the case for the plaintiff was, essentially, put on two bases: first, that, the floor being slippery, the defendant should have "barricaded" the particular area of the shop to keep the plaintiff out and in not doing this the defendant was relevantly negligent; alternatively, it was put the defendant did not warn the plaintiff of the danger and in relation to the accident that resulted from the danger and the failure to warn, the defendant was negligent accordingly. I shall go first to the learned judge's findings in relation to the issue of "barricading" the particular portion of the shop. The learned judge was disposed to allow a case to be presented on this basis, although, as he said, it had not been or might not have been within the pleading of the case initially. However, he found against the plaintiff on this case. His Honour saw this part of the case as being, as he described it: ".....akin to a system of work count in a master/servant cause of action..." He said that in order to find for the plaintiff on this basis, it would have been necessary for it to have been established to his satisfaction that there was an available alternative to the way in which the shop was operating and that the barricading of the shop was, as he described it, a reasonable alternative; he said that there was a "cost benefit analysis" to be done in this regard which would have to be found an acceptable one. Considering the matter with the benefit of the transcript - a benefit which I suspect the learned judge did not have - and with the benefit of the careful submissions that have been made upon the matter to this Court, I am of opinion that that approach to the issues raised by the "barricade" argument is not the correct approach. The question in issue is whether a defendant was negligent, vis-a-vis the plaintiff, in allowing the plaintiff or, indeed, inviting him as a customer, to be there in the shop when the relevant part of the floor was in the slippery condition that it was. The fact that the floor was slippery raised the question whether the defendant should have taken precautions to prevent that condition of the floor causing injury to the plaintiff. (I am not putting this matter in terms of strict legal principle, but in terms of the practical issues as they arose in this case). The significance of the suggestion of a barricade was, I think, broadly this. If the defendant had, indeed, warned the plaintiff of the danger from the slippery floor, it was still necessary to determine whether such a warning sufficiently discharged the obligation which arose from the facts of the case. It was necessary to determine whether, notwithstanding the obvious danger of the slippery floor, the giving of a warning to the plaintiff, who was going to move across it, was a sufficient discharge of the defendant's duty of care. To talk about reasonable alternatives in the way the learned judge did was, in my respectful view, to direct attention in the wrong direction. The question in the end was (to put the matter as it was put in argument) whether, the warning having been given, that was sufficient, or whether the danger as it remained was such that what the defendant had done was not a reasonable discharge of the duty of care URBELOVUKOVIC v KOTSIPOULOS, t/as WESTFIELD RESTAURANT (Samuels JA) 3 which had fallen upon the defendant. In my opinion, therefore, the learned judge approached this question in the wrong way. In these circumstances it is, therefore, necessary for this Court to reconsider the matter as on a rehearing. This raises the issue to which I have referred, namely, whether, if the floor was slippery, as it was agreed it was, and if it be assumed that the plaintiff was warned in the manner suggested by the defendant's witnesses, this yet discharged the duty of care which fell upon the defendant in the circumstances. In putting the matter this way I have, of course, assumed in favour of the defendant that a warning was given. The plaintiff has submitted that his Honour was, in fact, wrong, and wrong to the extent that he should be corrected by this Court in finding that in fact a warning was given. It was pointed out that there were substantial and important differences between the evidence of the son, Angelo Kostipoulos, and the evidence of his mother in relation to what happened, and that, except in relation to whether a warning was given, the broader account of what happened on the afternoon given by Mrs Kotsipoulos approximated more to the evidence of the plaintiff and his witness than to the evidence of the son. It was then suggested that to accept the son in preference to the mother and the other two witnesses showed error which, notwithstanding the learned judge's advantages in having seen the witnesses and heard the evidence before him, was such that his finding in this regard should be put aside. I do not think that it is necessary to decide either this question, that is, the question whether the learned judge's finding that a warning was given was correct, or to determine whether, if a warning was given, that was sufficient to discharge the duty which, in a practical sense, arose from the condition of the floor when the plaintiff came into it. Mr Toomey QC said at the opening of the appeal that it was common to the parties that if the appeal was upheld the matter should go back for a retrial. I think the matter ought to be dealt with in that way. As I have said, if there was a warning, the issue remains whether that was a sufficient discharge of the defendant's duty of care arising from the factual situation (the slippery floor) which existed. In order to determine this, it would be necessary to know more about the state of the floor and the degree of the slipperiness of it than is possible to infer from the evidence as it was before this Court. Whether, if the matter had to be determined by this Court, the result would be a verdict one way or another is not a matter of which I have formed any conclusion. It is a determination which would involve some difficult analysis of weighing of the facts. I think that the better course is that the matter go back for a new trial as the parties have agreed. In my opinion, therefore, the order to be made by this Court should be that the learned judge's judgment be set aside, that the matter be returned to the District Court for a full retrial and that the respondent should pay the costs of the appeal to this Court. It would appear on the face of the matter that it is an appropriate matter for the giving of a certificate under the Suitors' Fund Act, but that is a matter on which the parties may address, if necessary. Samuels JA I agree. I would add only this: to my mind the principal error in Mahoney J's judgment lies in the way in which he approached the effect of the warning which he found had been given. Notwithstanding that a warning was given in the terms to which the son Angelo deposed, it was still a question to be determined whether that warning was, in the circumstances, adequate to protect the plaintiff, that is to say whether it was an adequate performance of the defendant's duty of care. It is clear that a plaintiff may have knowledge of a 4 UNREPORTED JUDGMENTS danger on premises and still recover if the knowledge of the condition does not import fully appreciation of the extent of the danger (see Edmonds v Commonwealth of Australia 61 SR 527). His Honour posed the issue as being whether or not a warning was given and did not formulate for himself the question of the extent or the quality or the effect of the warning. That was, in my opinion, with all respect, an error of law and in the consequences this Court is bound to intervene. I agree with Mahoney JA that the matter should go back for a new trial. McHugh JA I agree with the judgments given by Samuels JA and Mahoney JA. SAMUELS JA: We make the following orders: (1) The appeal is upheld. (2) The judgment below is set aside. (3) The matter is returned to the District Court for a general new trial. (4) The costs of the first trial are to abide the result of the second trial. (5) The respondents must pay the appellant's costs of the appeal and are entitled to a certificate under the Suitors' Fund Act. COUNSEL: Appellant - B M J TOOMEY QC with R C TONNER Respondent - D G T NOCK SOLICITORS: Appellant - FLANNERY MURA & COSTELLO Respondent - ELKEANORA G SCARPARO