AVNEY v GWYNVILLE CAROUSEL PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope, PRIESTLEY and CLARKE JJA 3 April 1989, 11 May 1989 [1989] NSWCA 15 NEGLIGENCE — plaintiff slips and injures herself on ramp leading out of shopping centre — proceedings against occupier statement of claim alleges occupier-invitee duty — Hackshaw v Shaw (1984) 155 CLR 614; Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 decided after commencement of proceedings and before trial — plaintiff asks trial judge to decide case on general duty of care — he holds difficult to see how breach of duty of care could be demonstrated in terms other than the formula in Indermaur v Dames (1866) LR ICP 274 — does not apply Donoghue v Stevenson (1932) AC 562 duty — enters judgment for defendant. APPEAL — between judgment and hearing of appeal Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479 decided — in Court of Appeal held that on proper findings of fact plaintiff should succeed on liability — (i) on basis of Donoghue v Stevenson duty — (ii) on basis of Indermaur v Dames duty, as understood in light of High Court's statement of principle in Australian Safeway Stores. Priestley JA Mrs Avney ("the plaintiff') claimed in proceedings in the SupremeCourt that she had slipped in premises known as the "Carousel Shopping Centre" and suffered injury as a result. She further claimed that the damage she suffered was caused by the negligence of the occupant of the premises, Gwynville Carousel Pty Limited ("the defendant") and that that company was therefore liable to pay her an appropriate award of damages. Roden J dismissed her claim, and she appealed to this Court. The evidence at the trial. In her evidence in chief the plaintiff said that on 28 May 1980, at about 8.30 in the morning, she parked her car in the car park of the Carousel Shopping Centre and then went up an escalator; after she stepped off the escalator she took two or three steps towards the city level, to the street level; slipped and fell on her knee; this happened "about, before just about at the part where the ramp started sloping towards street level... About three steps away from the escalator as I stepped off the escalator." The plaintiff thought this distance was about one and a half metres. The surface she stepped on to from the escalator was a pebbly-finished concrete, at first level and then "sloping after about one and a half metres". In the course of her re-examination, the plaintiff was shown photographs which became Exhibits H, J1 and J2. Exhibit H was taken in a direction looking towards the top of the escalator and showing, not very clearly, the level part of the pebbly-finished concrete surface, and then more clearly, as it was in the foreground, the sloping part of the surface falling away from the level part. The plaintiff was asked to mark on Exhibit H the point where she fell. She did this with a cross which clearly appears on the photograph as being on the sloping part of the surface. This evidence would in the ordinary course be given in chief. No explanation appears from the transcript why it was given in re-examination. Had an application been made on behalf of the defendant for permission to 2 UNREPORTED JUDGMENTS cross-examine the plaintiff on the evidence she gave concerning the photographs the trial judge would have been obliged to grant it. No application was made and the evidence was left unchallenged. The other evidence given by the plaintiff relevant to her fall was that the surface was "very slippery", she was wearing flat heeled leather shoes, had not fallen on that surface before, that she occasionally parked the car where she had done that morning, for access to her work, (which was outside the shopping centre), that she had been doing so over a period of a few weeks or maybe a few months, that she had seen other persons fall in that area "practically every day" she had "been around" and that what she meant by having seen other persons fall was that they "slipped... slipped and fell". She was not cross-examined about any of the evidence she gave concerning the surface, what she had seen on other occasions or what happened to her when she fell. Mrs V Brown gave evidence that she had seen the plaintiff fall. She said that the area where she fell was where "you are coming out where the escalator was". She was shown Exhibit H and said it assisted her in identifying the area where the plaintiff fell. She described the surface as pebble crete and said that before the plaintiff's fall she had slipped on the same surface that the plaintiff fell on. The following is then recorded: "Q. How long before Mrs Avney's fall did you slide on it? A. I have been in and out of there on many occasions and I think it is not only once that I have slipped. I couldn't tell you when. Q. Where did you slide in relation to the area that Mrs Avney did? A. Just all around in that front area. I mean when it was wet, particularly it was quite - CROSS-EXAMINATION MR CRAWFORD: Q. It was dry this day? A. Yes. Q. The times you have slipped was when it was wet? A. No. (Witness retired and excused.)" Mrs A Kiss, in examination in chief, said she heard a painful scream behind her, turned and saw the plaintiff and she was on the floor. When shown Exhibits H Jl and J2 she said: "A. Yes, that was a very slippery part. Q. Do you recognize what is shown in the photographs? A. Yes. Q. What is it? A. That is a ramp up to the Carousel shopping centre. Q. You are holding in your hand the page with two photographs. Which photograph are you talking about, the one at the top or the one at the bottom? A. Talking about the top one (Ex J1). Q. Was that the appearance of the surface of the Carousel shopping centre as at the time of the accident? A. Yes. Q. What can you tell us about Ex H, that is the single photograph? A. Yes, that was the way up to the shopping centre. Q. Does that photograph show the ramp area where the plaintiff fell? A. Yes. Q. Is that how it appeared at the time of the accident? A. Yes." Mrs Kiss also said that the ramp was "very slippery" and that she had slipped a few times herself before the plaintiff's accident. Mrs Kiss was not cross-examined. Mr AA Jack gave his evidence on the basis that he was an expert in the building industry, both practical and academic. His qualifications were not challenged. During his evidence exhibit M was admitted into evidence. It was a plan showing the escalator in question, the level part of the surface and the URJ AVNEY v GWYNVILLE CAROUSEL PTY LTD (Priestley JA) 3 sloping part of the surface, which was captioned "Pebbled entrance way". This plan showed that at the top of the escalator coming up from the car park, a rubber mat stretched over the surface for a short distance. The distance from the edge of the rubber mat closer to the point where the level surface ended and the sloping surface began was shown as 1.95 metres. The slope of the sloping part of the surface was shown on the plan as being different at different parts. Looking at the ramp from the point of view of the person coming up the escalator the slope at the far left of the ramp was | in 6, the slope at the middle of the ramp, quite close to where someone walking straight off the up escalator would go, was 1 in 7.3 and the slope on the far right was | in 7.85. The plan is dated 14 May 1981. Mr Jack inspected the surface area of the premises on 9 February 1981. He took the three photographs, Exhibits H J1 and J2 during that inspection. Mrs Kiss gave clear evidence that the photographs showed the appearance of the surface as it had been at the time of the accident. The plaintiff and Mrs Brown gave evidence to the same effect, but not so clearly. No questions were asked of any of the witnesses in cross-examination about this identification of the accident scene as it was in May 1980 with that shown in the photographs of February 1981. Counsel for the defendant told the trial judge his instructions were that the shopping centre underwent a major renovation at a time subsequent to the plaintiffs injury, believed to be towards the end of 1981. After Mr Jack said that the photographs accurately depicted what he saw on his inspection, further evidence from him was as follows: "Q. Were you, at the time you examined this particular area, familiar with the design specification of public areas such as this that is, designed for use by pedestrian traffic - including taking into account particular building materials to be used in such areas? A. Yes. Q. What can you tell us about the design of this particular area, from the escalators down to the Exford Street level, as a pedestrian access? A. Well, coming up off the escalators there was a level area, which was about ten feet or just under three metres in length, then the ramp started and went out to the footpath. A. As one alighted from the escalator, there was a level area, which as I recall was about ten feet or three metres in length. HIS HONOUR: That is an estimate and not a measurement, is it? A. In my case it was an estimate, your Honour - and then the paving, then the ramp down towards the footpath, which I calculated to be about 10 degrees. MR LEVY: Q. What can you tell us of the surface area that you examined, so far as its texture was concerned? A. It was exposed aggregate finish." He next described the composition of the surface in some detail. Then: "Q. What can you tell us about the wearing or friction properties of that particular material as it is used in a public thoroughfare? A. Well, the problem with the movement - with hard shoes, particularly leather shoes, you are only walking on the tops of the pebbles so that you have a very reduced traction. Over a period these become more polished by walking on them and they become very slippery. Rubber shoes, of course, tend to grip and you get a mechanical grip but leather shoes do not and you are riding on the points of the aggregate. 4 UNREPORTED JUDGMENTS MR LEVY: Q. Would you regard this particular material which you saw as an appropriate method of construction and finish for this sort of area that you examined? A. For public areas, based on my experience, I would find it to be totally the wrong material to use and once, of course, you go on to a grade the thing sort of, it becomes absolutely hazardous. Q. In connection with that grade, do you have any view to offer as to what proportions, if any, could have been adopted by the occupiers of those premises to assist people traversing that grade from the escalator down to street level? A. Well, firstly it is a bad design that the grade should have existed at all and, secondly, they have selected the wrong materials for the surfacing of that. Hard materials would either be cement, mortar, those aggregates or tiles, all of which are unsuitable for a grading and so the only appropriate material available, now and then, is dimpled rubber sheeting." He then described the dimpled rubber alternative, said that a balustrading or railing on the sloping area would not have been a good solution because the surface could still be slippery and that it was not generally normal to have it on a ramp "because a ramp should not be dangerous to the point where you need one." The last question and answer of his evidence in chief were: "Q. Finally, was there any alternative in the design process, so far as you could see, to having that ramp constructed there? A. Yes, it could have been level and then stairs at the footpath and, maybe, because they need ramps for strollers and so on, they could have had a narrow section of ramp. I would have to say that it was bad design." Mr Jack, in cross-examination, was asked about the use of surfaces such as that on which the plaintiff had slipped. "Q. In fact, it is used around swimming pools, is it not? A. Yes. Q. And it is used both in private swimming pool areas and in public swimming pool areas? A. Yes, correct. Q. And it is also used on ramps? A. Yes, correct. Q. In public areas? A. Yes. Q. That has been so for many years, has it not? A. Yes, correct. Q. And it remains the case today? A. Not so much today, although it is still used." In regard to his suggestion that stairs would have been safer than a ramp of the kind used, he was asked whether stairs might not cut across the object of shopping centres to encourage people to come in from the street. He assented to this and was then asked: "Q. And that in practical terms a shopping centre proprietor would be ill advised commercially to have a shopping centre which involved access by stair off the street, would he not? (Objected to) A. Not necessarily. Not necessarily. I give you the point that ramps are inviting, but not if they are unsafe." In re-examination when asked about the use of the surface in building generally, he remarked, "Providing it is level it is reasonably satisfactory. It is when you get off the level, if you have got any fall on it." At the end of the plaintiff's case, she was recalled and further examined in chief, on a question relating to damages, namely, how long, before her accident, she had intended to work. She was cross-examined on this matter, but on nothing else. The case for the defendant consisted of the tender of two medical reports. No evidence was tendered concerning the state of the premises. The Plaintiff's claim as originally pleaded. URJ AVNEY v GWYNVILLE CAROUSEL PTY LTD (Priestley JA) 5 The plaintiff filed her statement of claim early in 1981. She alleged that the defendant was the occupier of the shopping centre and "as occupier owed a duty to persons coming on to its premises to warn them of unusual dangers which were known to the defendant or alternatively, of such dangers of which the defendant ought to have known" (par 2). The plaintiff then alleged that in breach of that duty the defendant failed to warn persons such as herself that there was present on the premises "an unusual danger so that when the plaintiff entered upon the said premises... the plaintiff slipped upon the slippery surface of the ramp..." (par 3). Paragraph 3 also contained particulars of negligence, such as failure to warn of the danger, failure to provide sufficient abrasive material on the ramp, failure to provide an adequate handrail, failure to ensure the ramp was constructed safely etc. Paragraph 4 alleged that the plaintiff's accident "was caused by the negligence of the defendant and as a result of such negligence the plaintiff sustained injury, loss and damage." The plaintiffs claim as argued at the trial. The plaintiff's proceedings came on for hearing before Roden J in November 1985. In the interval between the filing of the statement of claim and the hearing, Hackshaw v Shaw, (1984) 155 CLR 614 and Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 had been decided. Roden J noted in his reasons for judgment that counsel for the plaintiff, basing himself upon some of the things said in these cases, relied, in addition to the duty alleged in the statement of claim, upon a general duty arising from the law of negligence pursuant to the proximity or neighbourhood principle. He recorded counsel as arguing that such a general duty existed as something separate and apart from the duty owed by occupiers and commonly expressed in terms of the formula in Indermaur v Dames (1866) LR ICP 274. It does not appear whether any amendment to the pleadings was sought to accord with this argument; certainly none was formally made. However, from the way in which Roden J's reasons were expressed, it seems reasonably plain that he allowed the argument to be put, as being open to the plaintiff. There is no sign in the appeal papers of any protest by the defendant against this course being followed. (Neither of the counsel who appeared at the trial appeared in the appeal in this Court.) Trial judge's findings and reasons. 1. On the legal question raised by the plaintiff's counsel in submitting that the defendant was subject to a general duty, the trial judge, after considering Hackshaw and Papatonakis concluded that when, as in the case before him, the only relationship between the plaintiff and the defendant was between the former as invitee or licensee and the latter as occupier, it was difficult to see that there would be circumstances in which a breach of duty of care could be demonstrated in terms other than the formula in Indermaur v Dames. In such a case, he said a little later, "the matters necessary to establish liability pursuant to the 'proximity' or 'neighbourhood' principle, are the same as those necessary to establish liability based upon the relationship between occupier and person entering. For that relationship is the only basis upon which the relevant duty of care can be said to arise." 2. In regard to liability his Honour appears to have accepted the facts as put before him in the evidence of the plaintiff, Mrs Brown and Mrs Kiss. He was virtually bound to do this because of the defendant's approach to their evidence. Nevertheless he made some comments, the exact significance of which is hard to gauge. In regard to the evidence given by the witnesses that the floor was slippery, he said it was hard to know on what basis they reached that conclusion. 6 UNREPORTED JUDGMENTS He also said: there was no direct evidence as to the cause of the plaintiff's fall, that is, whether it may have been caused by some substance or object either on the surface itself or on the plaintiff's shoe; and that the various incidents of people slipping, of which the witnesses had spoken, all seemed to be isolated incidents for which there was no direct evidence as to the cause. 3. After noting that Mr Jack had described the use of the surface as "bad design', the trial judge pointed out that the action was not brought against the defendant as being responsible for the design or the construction of the floor. 4. Turning to the question of "unusual danger", he found that the effect of Mr Jack's evidence was that the defendant used a type of flooring which for many years had been used in similar areas and which remained in use today. 5. His most important finding was stated this way: "Bearing in mind that the plaintiff is referring to an incident which occurred in 1980, and that Mr Jack was giving his evidence more than five years later, it is difficult to regard such danger as may have been involved in the use of that particular surfacing as 'unusual", nor was there any evidence which in my view is capable of establishing, on balance of probabilities, that the defendant knew or ought to have known of such danger as was involved." 6. Somewhat later in his reasons, and I think also with reference to the "unusual danger" question he said: "Tt is significant, I believe, that even though Mr Jack inspected the flooring in question, he gave no evidence of any shortcoming in it, that is, in the actual area upon which the plaintiff slipped. His evidence was limited to his opinion as to that method of flooring in general. Although he said that with use over the years, such flooring becomes more slippery, he expressed no opinion as to the condition of this particular area of this particular flooring, so far as slipperiness or wear is concerned." 7. His second last finding went, I think, again to the question of "unusual danger": "To conclude that this defendant was negligent, it would necessarily involve a finding that in May 1980 it constituted a breach of a duty of care owed to persons using or passing through shopping centres, to allow those centres to have exposed aggregate concrete floors. The evidence in my view does not permit such finding." 8. His last finding was I think directed to the question whether the defendant knew or should have known of the alleged danger. He said there was no evidence of general awareness of such a danger, no evidence even that Mr Jack was of that opinion in 1980; on the contrary he thought Mr Jack's evidence showed the surface was then in use and at the date of trial remained in use "in similar public places". Amendment to statement of claim at hearing of appeal. The plaintiff's primary submission in this Court was that the trial judge had not considered whether the defendant had taken reasonable care to avoid a foreseeable risk of injury to the plaintiff, and that this was what the law required him to do (Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479 at 488) and what he had been asked to do. A question then arose whether, looked at formally, the statement of claim permitted this argument. Counsel for the appellant submitted that it did, but for reasons of prudence, sought leave to amend the statement of claim to ensure that it presented the issue he wished to argue. His application was opposed. Reliance was placed by the defendant on Eggins v Brooms Head Bowling and Recreation Club Limited [1984] 5 NSWLR URJ AVNEY v GWYNVILLE CAROUSEL PTY LTD (Priestley JA) 7 521. In that case, similarly to the present, the trial had been fought on pleadings alleging a breach of duty owed by the occupier of the premises to an invitee, and again, as in the present case, application was made at the appeal to include in the statement of claim a cause of action based on a breach of a general duty of care owed by the defendant to the plaintiff. The Court in Eggins refused the application, on the authority of Piening v Wanless (1968) 117 CLR 498. In Eggins however, Piening was taken as deciding that a litigant cannot obtain a new trial because of a change in the law after the trial unless he has taken objection to the application of the old law at the trial. That had not been done in Eggins, which was the reason for the refusal of the application to amend. In the present case, the relevant point was taken at the trial, argued, and considered. In these circumstances the Court thought it appropriate in the present case to grant the application. Pursuant to the leave granted, the statement of claim was amended by the insertion of pars 3A, 3B and 3C. Paragraphs 3A and 3B alleged the defendant's occupation of the premises and the plaintiffs entry as the defendant knew or should have known; par 3C continued "Whereupon the defendant was so negligent in and about the care, control, management, maintenance, inspection and supervision of the floor and footpaths of the said premises that the plaintiff slipped and fell and sustained the injuries hereinafter described." The same particulars of negligence were then given as contained in the original statement of claim. The Plaintiffs general ground of appeal. The plaintiffs simplest ground of appeal is one which, if correct, entitles her to a new trial. Her counsel submitted that the trial judge, in refusing to decide the case by reference to the question whether the defendant was in breach of the general duty of care of the Donoghue v Stevenson [1932] AC 562 type, deprived the plaintiff of her entitlement to have her case considered by reference to the proper legal principles. As his principal authority for this submission he relied on what was said by the High Court in Australian Safeway Stores. The full strength of this submission is best understood upon consideration of the course of events in that case. The plaintiff in Australian Safeway Stores slipped and fell on the floor of a supermarket in January 1979. In her statement of claim she alleged both that the defendant owed her a duty as an invitee and also a duty to take reasonable care. After a trial judgment was entered against her by Tadgell J on 30 September 1983. He took the view that the authorities were against the proposition that the defendant owed a general duty of care to the plaintiff based on the principles of Donoghue v Stevenson. He decided the case by reference to the formulas deriving from Indermaur v Dames and London Graving Dock Co Ltd v Horton [1951] AC 737. He therefore directed himself in accordance with the exposition of the invitor's duty to his invitee stated in those cases. Notwithstanding his opinion that he was bound to take that approach, he nevertheless also indicated (somewhat indirectly, but I think clearly) that in the case before him an application of Donoghue v Stevenson principles would not be likely to produce a different result from that following from the application of Indermaur v Dames. He found that the evidence did not establish that the plaintiff's damage was caused by an unusual danger, that if contrary to his opinion there had been an unusual danger in the circumstances, then the defendant knew of it or ought to have known of it and finally, and again on the assumption contrary to his opinion that there was an unusual danger, the plaintiff had not shown that the defendant did not take reasonable care to prevent damage from that unusual danger. 8 UNREPORTED JUDGMENTS The plaintiff appealed to the Full Court of the Supreme Court of Victoria who delivered judgment on 28 February 1985. The grounds of appeal originally filed were that the trial judge had made a number of findings wrong in law based upon an erroneous view of the evidence. Leave was granted to add a ground, that the trial judge was wrong in law in finding that the defendant did not owe the plaintiff a general duty of care. This was the only ground with which the Full Court dealt. Starke J gave his reasons first. He referred to Hackshaw and to Papatonakis the judgment in which had been delivered on 5 February 1985. Starke J considered the latter case conclusive of the appeal. After citing passages from the joint reasons of Brennan and Dawson JJ and the reasons of Deane J, which have since become familiar, he stated his opinion that the case was binding authority for the view "that the principles laid down in Donoghue v Stevenson must be applied whether or not the principles laid down in Indermaur v Dames are also considered". He concluded that the learned trial judge had been in error in that while he considered the application of Indermaur v Dames he did not consider whether or not the circumstances justified the application of Donoghue v Stevenson. He then made a comment relevant to the situation that has arisen in the present case. He referred to a submission by counsel for the defendant that the trial judge could not have found there was negligence on the part of the defendant even if he had applied the correct test. With regard to this Starke J said: "Tt would be a bold course for this Court to take it that if a test were applied, which was expressly rejected, to the facts which we have not heard given from the witness box, the learned judge would inevitably have come to the same conclusion... It must be borne in mind that the learned judge was considering the question of negligence in the context of any unusual danger." Murphy J agreed and, again relevantly for present purposes, said: "T am not altogether clear myself that his Honour would have reached any different conclusion had he appreciated and found the law to be that in a case of this kind, circumstances can give rise to a general duty to take care for the safety of an entrant such as the plaintiff. However, it does appear likely to me that his Honour's overall approach to the negligence issues may well have been influenced and possibly clouded by his initial conclusion that the principles expressed in Horton's case represented the law in the State of Victoria. The plaintiff was in my opinion entitled to have the evidence of the facts, considered against the backdrop of the proper legal principles to be applied, as enunciated in what I have referred to as the more recent decisions of the High Court." Beach J agreed with the reasons of Starke and Murphy JJ. The result of the appeal was that a new trial was ordered. An appeal to the High Court was dismissed. Judgment was delivered on 10 March 1987. Joint reasons were given by Mason CJ, Wilson, Deane and Dawson JJ. The other judge, Brennan J, dissented. The appellant put three arguments: 1, that the only duty of care owed by the appellant to the respondent was that described in Indermaur v Dames; 2, that Tadgell J had considered whether the circumstances of the case gave rise to a general duty of care; 3, that if the appellant did owe a general duty of care to the respondent, the content of that duty was, in the circumstances of the case, the same as that considered by Tadgell J, that is, that the respondent had in effect lost at the trial on the general duty of care basis. URJ AVNEY v GWYNVILLE CAROUSEL PTY LTD (Priestley JA) 9 Each of these arguments was rejected by the majority in the High Court. The majority indicated that there might have been something in the third argument, but were of opinion that what had happened in the Full Court precluded consideration of it. This was because the findings of fact made by Tadgell J had been put in issue by various grounds appearing in the appellant's notice of appeal to the Full Court, but had not been dealt with there, the appeal having been decided solely on the ground, added by leave of the Full Court, based on Tadgell J's rejection of the submission that the appellant owed the respondent a general duty of care. In those circumstances the majority said they agreed with what had been said by Murphy J in the passage set out above, and his conclusion that it was appropriate to order a new trial. In this Court counsel for the appellant relied upon the same arguments as had succeeded in obtaining a new trial for the plaintiff in Australian Safeway Stores. In my opinion, those arguments are sound, and apply with the same force in the present case as they did in the other. The appellant in the present case is therefore, at the least, entitled to a new trial in which the evidence in the case can be considered in the light of the proper legal principle, without the distraction caused by focusing upon Indermaur v Dames. However, it was submitted on behalf of the appellant that the Court should go further. This submission was based upon criticism of some of the trial judge's findings and upon a further submission based upon Australian Safeway Stores and the way in which the majority in the High Court dealt with the first two arguments relied upon by the appellant in that appeal. I will deal first with the factual matters and then return to the submission about the position reached by the High Court in Australian Safeway Stores. Appellant's criticisms of trial judge's findings. In regard to the matters collected in finding 2 above, it was submitted for the appellant that the only conclusions available to the trial judge were that the plaintiff had fallen on the ramp, just after it began to slope downwards, and that she had fallen because the ramp there was slippery. I agree with this. The trial judge's suggestion that the fall may have been caused by some substance or object either on the ramp or the plaintiff's shoe does not seem to me to be supportable in the circumstances of this case, where the plaintiff said she slipped, there was evidence that the surface on which she slipped was slippery, no evidence was called by the defendant to dispute the slipperiness of the surface and counsel for the defendant asked the plaintiff no questions about how she came to fall. The trial judge's findings numbered 4 to 7 all concerned the question of "unusual danger", in the sense used in Indermaur v Dames and Horton. Finding 4 was criticised on the specific ground that upon a close reading of Mr Jack's evidence, it did not support what the judge said about it. That may be so, but what seems to me to be more significant is that in both findings Nos 4 and 7 the trial judge was referring to exposed aggregate concrete floors in general, whereas Mr Jack's evidence was directed to the danger of such surfaces when sloping. In passages from his evidence, both in examination in chief and in re-examination, already set out, it appears quite clearly that his opinion was that the surface in question was reasonably satisfactory when level, but hazardous "once... you go on to a grade", or, "have got any fall on it". The trial judge was of course entitled to put his own construction upon Mr Jack's evidence, within the bounds of reasonableness, and provided he did not misunderstand it. However, Mr Jack's evidence was not, in the circumstances of 10 UNREPORTED JUDGMENTS this case, of the kind that gives a trial judge any significant advantage over an appellate court, in its assessment. Further, in finding 6 his Honour does appear to me to have misstated the effect of Mr Jack's evidence in a significant respect. The trial judge said that Mr Jack's evidence was limited to his opinion as to the method of flooring in general and he gave no evidence of any shortcoming in the actual area upon which the plaintiff slipped. The portions of Mr Jack's evidence which I have set out earlier show that he inspected the actual area and gave his opinion evidence directly by reference to it. His evidence of bad design and hazardousness was directed the particular surface at its particular angle of slope, although, naturally enough as it seems to me, this evidence was intermingled with his opinions concerning the particular kind of flooring in general terms. In these circumstances, it seems to me that this Court should decide for itself, on the materials before the trial judge, whether the state of the ramp amounted to an "unusual danger', in the relevant sense, to the plaintiff. This will have to be postponed until I have discussed the appropriate meaning to be given to the term "unusual danger", which is particularly relevant to finding 5. The trial judge's finding 8, directed to the question whether the defendant knew or should have known of the state of the ramp, seems to me to be flawed in two ways. One is that the judge said there was no evidence that Mr Jack thought the surface dangerous in 1980, although Mr Jack quite clearly was expressing his opinion about it in 1981. This seems to me to have been too fine a distinction for the judge to make. The other consideration is that the judge, in saying that he thought Mr Jack's evidence showed the surface was in use both in 1980 and at the date of trial in similar public places, was not directing his attention to whether that evidence was referring to the surface when level as distinct from when it was sloping. Again, it seems to me that this Court should form its own factual conclusion on this question, and I will state my own view after later dealing with the question mentioned in the preceding paragraph. The law Pursuant to Australian Safeway Stores. The joint reasons of the majority in Australian Safeway Stores made plain a position concerning the liability of occupiers of premises, which some judges in Australia had hesitated to adopt. The question regarded by the Court as the principal issue in the case was whether an occupier of land was concurrently (i) under a general duty of care to a person entering on the land where there were circumstances giving rise to a general duty and (ii) a special duty owed by the occupier to a person lawfully upon the land. On this aspect of the case, the majority said; (at 484): "We return, then, to the principal issue. The recent review of relevant authority undertaken by Deane J in Hackshaw (1984) 155 CLR at 642663, and by Mason J in Papatonakis (1985) 156 CLR at 14-20, prepares the way for a more definitive statement on this aspect of the law of negligence in Australia. In Papatonakis Deane J referred to the reasons which he gave in Hackshaw and continued: "...Ut should now be again accepted in this country that the so-called "special duty" which an occupier of land owes to an invitee is, on analysis, properly to be seen as the ordinary common law duty to take reasonable care: "The duty is a duty to take reasonable care. The standard is the standard of the reasonable man", per Fullagar J, Commissioner for Railways (NSW) v Anderson (1961) 105 CLR 42, at 56. In that regard, the dissenting judgments of Lord Macdermott and Lord Reid in London Graving Dock Co Ltd v Horton [1951] AC 737, accord better with subsequent developments in the law of negligence and are to be preferred, at least in this country, to the judgments of the majority of their Lordships which URJ AVNEY v GWYNVILLE CAROUSEL PTY LTD (Priestley JA) 11 were largely rendered inoperative in England by subsequent statutory provision: see Occupiers' Liability Act 1957 (UK), s2(4)(a)." Mason J in Papatonakis said: 'In relation at least to a person in the position of an invitee, Anderson and Voli (1963) 110 CLR 74, must be taken as settling that the duty of an occupier, even as it is expressed in the Indermaur v Dames formulation, is no more and no less than the ordinary duty of reasonable care.'" Then, after referring to discussion in earlier cases of the concurrent duty idea, and mentioning the difficulties caused by such an approach, the majority concluded that there was no reason to maintain any distinction "between the so-called special duty enunciated by Willes J and the general duty established by Donoghue v Stevenson" (at 487). A little later they said: "Tt is a mistake to think that the failure of an occupier of dangerous premises to take reasonable care does not encompass an act or omission on the part of the occupier which suffices to attract the general duty. What is reasonable, of course, will vary with the circumstances of the plaintiff's entry upon the premises. We think it is wholly consistent with the trend of recent decisions of this Court touching the law of negligence, both in this area of an occupier's liability towards entrants on his land and in the areas which were the subject of consideration in San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 and Cook v Cook (1986) 162 CLR 376, to simplify the operation of the law to accord with the statement of Deane J in Hackshaw (1984) 155 CLR at 662-663: "\.it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk." In the circumstances of the present case, the fact that the respondent was a lawful entrant upon the land of the appellant establishes a relationship between them which of itself suffices to give rise to a duty on the part of the appellant to take reasonable care to avoid a foreseeable risk of injury to the respondent." (at 487-8) This decision among other things enables courts in this country to make use of what was said by Lord Macdermott and Lord Reid in Horton. Parts of their reasons are helpful in considering the present case. Lord Macdermott regarded the critical issue in Horton as involving a choice between the following competing views; which are set out at 761: 1. The invitor owes no duty to an invitee who has knowledge or due notice of the relevant danger. 2. The invitor's duty is to take reasonable care to protect the invitee from the relevant danger. Lord Macdermott's opinion was that the second statement accurately expressed the law. Australian Safeway Stores makes it plain that that is the position in Australia. In reaching his conclusion Lord Macdermott explained what he understood Willes J had meant by "unusual danger" in Indermaur v 12 UNREPORTED JUDGMENTS Dames. It had been contended in argument in Horton that a danger cannot be unusual for the particular invitee if known to that invitee. Lord Macdermott's opinion was that knowledge could not always be a decisive criterion. He gave as an example a worker going to catch a train home after work, needing to buy a ticket and finding that the only way he can get to the ticket office is by walking underneath a dangerous roof. The railway authority has posted a notice warning of the danger but has not taken the further simple step of placing a temporary screen under the defective part. The worker, reading the notice and hurrying to get his ticket, is hurt by a piece of falling glass. Lord MacDermott was plainly of the opinion that in this example the danger was an unusual danger in the sense used by Willes J and that the worker could establish a cause of action in negligence against the railway authority (at 764-5). When speaking of the invitor's liability being in respect of danger of which the invitor "knows or ought to know" Lord Macdermott said the invitor "is at least under an obligation to use reasonable care to make himself aware of defects that may injure [his] invitee" (at 766). Lord Reid was of opinion that the facts of the case were such as to place the invitor "under a duty to take care to make his premises reasonably safe for the use which he invites his invitee to make of them" (at 774). Later he stated the duty in somewhat different words: "\..the duty of an invitor is not merely to take care that his invitee knows of unusual dangers; it is that so long as he holds out his invitation he shall take reasonable care for the safety of his invitee unless the invitee has relieved him of that duty by accepting the risk." (at 784) Having stated the duty in that way, Lord Reid did not afterwards need to retain the words "unusual danger" in his consideration of the case. The question which remained after stating the duty in the way he did was whether, on the facts, the plaintiff accepted the risk and relieved the defendant of the duty. Lord Reid did not doubt that it was possible for an invitee to accept the risk of injury from a known danger thus bringing to an end the invitor's duty to him with regard to that danger. He did not think that was the position in the instant case. Application of the general duty in this appeal. Ihave now reached the point where, in light of Australian Safeway Stores, and the dissenting opinions in Horton, I can state my conclusions in the case presently under appeal, using two different formulations which, as I understand them, are really the same in substance. The first way of stating my conclusions is by saying that the plaintiff was an invitee of the defendant/occupier, she slipped and fell on a slippery part of the defendant's ramp; at least that part of the ramp was an unusual danger (in saying this I am expressing the view that the same reasoning as was applicable in Lord Macdermott's example of the worker at the railway station is applicable to the plaintiff); and that the defendant ought to have known of the danger. In the last conclusion I am finding, by reference to Lord Macdermott's words, that the defendant did not fulfil its obligation to use reasonable care to make itself aware of the hazardous nature of the ramp. This conclusion seems to me to be the proper one in light of the evidence of persons slipping on the ramp on a number of occasions before the plaintiff's accident and Mr Jack's opinions, which although expressed in regard to the position in 1981, seem to me to be reasonably applicable to the position a year earlier. I thus reach conclusions contrary to those of Roden J summarised in findings 5, 7 and 8. URJ AVNEY v GWYNVILLE CAROUSEL PTY LTD (Priestley JA) 13 The other way of stating my views is by reference to what Lord Reid said in Horton at 784; the plaintiff was an invitee; she did slip on the slippery ramp; she had not relieved the defendant of the duty to take reasonable care for her safety; and the fact of the ramp being slippery in the circumstances showed the defendant had not taken reasonable care for the safety of the plaintiff. The last conclusion is based on the same material as relied upon for the last conclusion in the preceding paragraph. The defendant's submissions. Although I have not set out the respondent/defendant's submissions in terms, what I have so far said in fact deals with the greater part of them. Some particular submissions should be recorded. One was that on the evidence the plaintiff was probably a licensee rather than an invitee. I do not think it is necessary to consider this. The plaintiff's case was pleaded on the footing that she was an invitee; no question ever appears to have been raised at the trial about her status; and the judge dealt with the matter throughout on the footing that she was an invitee. Had the question whether she was a licensee rather than an invitee been put in issue at the trial it seems plain that the trial would have been conducted differently in various respects. It does not seem to me that this point is open at this stage. A further submission made by the defendant was that if the Court were minded to uphold the appeal, the only proper order would be that there should be a new trial both on liability and damages. On any view of the case, it seems to me that there must be a new trial, at least as to damages. The plaintiff's case on damages, unlike that on liability, involves the making of factual assessments and evaluations which this Court would not attempt to make simply from a reading of the appeal papers, without the benefit of the trial judge's views. Because of his decision on liability it was not necessary for him to deal with damages and he did not. For the defendant, in opposing the contention that the new trial should limited to damages, it was submitted that the matter was not litigated before Roden J in the light of what the High Court later held in Australian Safeway Stores was the proper legal criterion. This submission carries with it a suggestion that had the defendant at the time of the trial foreseen what the High Court would say in Australian Safeway Stores, it may have conducted its case differently. I do not see how this can be right. Putting the matter in the light least favourable to the plaintiff, it seems clear that both an Indermaur v Dames case and a Donoghue v Stevenson case were argued at the trial. Indeed, it seems to me the trial judge rather indicated that if a Donoghue v Stevenson case were open to the plaintiff, on the material before him, he was against her. Whether that be so or not, at the very least the defendant was on notice that the plaintiff was asserting that she should succeed, on the case she was then making, on the Donoghue v Stevenson basis. That left the defendant in the position where it could stake everything on the correctness of the view that the plaintiff should in law be confined to an Indermaur v Dames case or, more cautiously, put everything before the Court that was within its power to do in regard to the Donoghue v Stevenson case. I have the impression that the defendant in fact took the latter course. If that is right, there can be no objection to this Court dealing fully with the matter of liability on appeal. If the defendant took the former course, in face of the plaintiff's pressing her Donoghue v Stevenson claim, then it seems to me the defendant is bound by its then election. Conclusion. 14 UNREPORTED JUDGMENTS In my opinion, on the material before the trial judge, the plaintiff established a case of negligence against the defendant. The judgment for the defendant should therefore be set aside and there should be a new trial, limited to the question of damages. The defendant should bear the plaintiff's costs of the trial and of the appeal. Clarke JA The facts and the course of the trial have been set out in the judgment of Priestley JA. I agree with his Honour that in the light of the course taken at the trial it was open to the appellant to argue that the decision in the appeal fell to be determined in a accordance with the statement of the law to be found in Australian Safeways Stores Pty Ltd v Zaluzna, 162 CLR 479, particularly at 488. I also concur that the appeal should be upheld for reasons which can be shortly stated. The evidence established that the appellant was a lawful entrant in the Bondi shopping mall of which the respondent was the occupier. Accordingly, the question whether the respondent owed to the appellant a duty of care depended upon whether there was a reasonably foreseeable risk of injury to persons who lawfully entered the mall. There can be no question in this case that, given the high level of abstraction at which the question of foreseeability is viewed in the context of determining whether a duty of care arises (Shirt v Wyong Shire Council [1978] 1 NSWLR 631, at 639), the respondent owed a duty of care to the appellant. That duty imposed upon the respondent an obligation to take reasonable care to avoid a foreseeable risk of injury to the appellant (Zaluzna, p488). In this case the respondent led no evidence on the issue of liability and the evidence was all one way. The area in question, which was part of the passageway of the mall, had a concrete floor which was surfaced with exposed aggregate, sometimes called pebblecrete. This was a surface commonly found on the surrounds of private swimming pools and, in some instances, in public buildings. Mr Jack, an expert in the building industry, gave evidence that pebblecrete provided an adequate surfacing for level floors but said that if it was used on a grade or slope it became absolutely hazardous. This was powerful evidence in support of the appellant's case for in the area in which the appellant fell the floor sloped quite markedly. This evidence was consistent with the uncontradicted lay evidence in the case. The appellant said that in her experience the floor of the mall was very slippery. Mrs Kiss, who was present on the occasion of but did not see the actual fall, said that she regarded the area of the floor upon which the appellant fell as very slippery. Finally, Mrs V Brown attested that she had slipped in the area in which the appellant fell on a number of occasions. This evidence established that there was a real risk of injury to persons who walked upon that area of the mall and insofar as it was unchallenged and uncontradicted no reason appears why it should not be accepted. On the contrary, in my opinion, it would be quite wrong to fail to act upon it in these circumstances. The appellant also led evidence of the alternatives which were available to the respondent to minimise that risk of injury. These alternatives included the placing of appropriate warning notices, the substitution of a dimpled rubber alternative floor surfacing or a levelling of the floor with stairs provided to take account of the change of levels. The third of these alternatives seems to me a trifle unrealistic as it would have involved reconstruction of a number of the shops. On the other hand no evidence was led to show that either of the other two was URJ AVNEY v GWYNVILLE CAROUSEL PTY LTD (Clarke JA) 15 impractical. Nor was any endeavour made to establish that there was any reason why those steps could not have been carried out. In these circumstances, one is left with the existence of a sloping floor surface which was slippery and hazardous and which gave rise to a clearly foreseeable risk of injury to users of the mall. Nothing was done on the part of the respondent, according to the evidence, to minimise or avoid that foreseeable risk although practical measures were available. It follows, in my opinion, that the trial judge ought to have found that the appellant had established her case. In my opinion, on the material before the trial judge, the plaintiff established a case of negligence against the defendant. The judgment for the defendant should therefore be set aside and there should be a new trial, limited to the question of damages. The defendant should bear the plaintiff's costs of the trial and of the appeal. Counsel for the Appellant: CA Evatt Solicitors for the Appellant: Barkell and Peacock Counsel for the Respondent: J Campbell QC and RAP Gray Solicitors for the Respondent: Dunhill Morgan