NICOLAOU v SMITH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SAMUELS and CLARKE JJA 6 March 1989, 7 March 1989 [1989] NSWCA 154 NEGLIGENCE — the duty of care owed to customers by the occupier of a modest fruit market does not entail "constant supervision" to detect the presence of vegetable matter on the floor — new trial ordered limited to liability. ORDERS 1. Appeal allowed; 2. Judgment of Judge Walsh set aside; 3. In lieu thereof, order that there be a new trial had in the District Court limited to the issue of liability 4. Order that the assessment of damages, subject to re-adjustments for interest, stand as the amount of any judgment which the plaintiff/respondent might recover hereafter; 5. Order that the costs of the first trial abide the costs of the second. 6. Order the Respondent to pay the Appellant's costs of the appeal but to have in respect thereof a certificate under the Suitors' Fund Act 1951. Samuels JA On 17 January 1980 the plaintiff, then a sixty eight year old pensioner and part-time tea person, bought a pineapple in a fruit and vegetable shop occupied by the defendants in the Eastlakes Shopping Centre. Having selected her pineapple she took it in her right hand to the cash register, or to one of two cash registers, with her purse and her money in her other hand. According to her own account of the incident, she was standing firmly planted, stationary and upright when she skidded and fell on her hip, sustaining a fracture of the neck of her right femur. She felt, as she said in evidence, that she stepped on something but was unable to identify what it was. However, her husband, who was behind her and who saw her fall, saw a piece of green vegetable material close by her. He did not draw any attention to it or examine it but it may be inferred, since the learned Judge, Judge Walsh, accepted his evidence, that it was upon that piece of green vegetable matter that the plaintiff stepped and skidded. One of the defendants, Stephos Nicolaou, the owner of an adjoining shop, a Mr Rotas, and a brother Stephos, one Pantelakis, gave evidence. They said that the plaintiff fell in the corridor outside the shop and not in the shop itself. Mr Stephos Nicolaou said that the entire shop was clean; that is to say, as I understand it, that the floor was free of any vegetable matter or other material likely to present a hazard to those using the shop. He also gave evidence about a system of cleaning which involved a man called Steve (who had fortuitously recently returned to Greece and was not available to give evidence for that reason), who opened the shop, maintaining surveillance of the floor during the day until about three o'clock in the afternoon. From that time until the shop closed school children, a total of thirty in the squad, maintained a patrol to see that the floor was clean. The issues therefore which the learned Judge had to decide were these. First of all, did the plaintiff fall inside the shop? If she did, did she slip on some vegetable matter and did the defendants take reasonable care to prevent accidents of that kind? If not, was there a causal connection between a breach of that duty 2 UNREPORTED JUDGMENTS and the plaintiff's fall and injuries? As I have said, Judge Walsh heard the case and found for the plaintiff, awarding her damages somewhat in excess of $26,000, including interest. He was impressed by the plaintiff's evidence and very impressed by her husband. He accepted their evidence and found that the accident had occurred in the shop; that the plaintiff had slipped on some green vegetable material. He rejected the evidence of Mr Stephos Nicolaou and found at the time there was failure by the defendants to take reasonable care as occupiers of the premises for the safety of those resorting to them. When he came to deal with the standard of care required - that is to say, with the acts, the precautions, necessary to satisfy the law's requirement that an occupier of premises must now use reasonable care to prevent injury to those who come there - he, if I may say so, pitched the standard very high. He said in the first place that the spot where he found the plaintiff to have fallen - that is, in front of the cash register - was a spot which in all the circumstances needed very great care and he expressed the view that in "such a fruit shop and fruit market where there is a busy trade throughout the day" the performance of the occupier's duty requires "constant supervision", "a constant requirement" for supervision and cleaning and "a constant supervisory system of cleaning and preserving the floor from being accumulated with any one single piece of vegetable matter." I might add that references to "constant supervision" are repeated and ultimately the finding was that there was in existence at the time "no effective or reasonable cleaning and maintenance procedure." On the evidence, this was only a modest establishment catering only to a modest clientele, staffed by Mr Nicolaou, his wife, his sister, perhaps another employee (it may be the man called Steve) and also possibly a brother who, being unemployed at the time, lent a hand in the shop. In my opinion, a constant supervision, as his Honour appears to regard it, is not entailed in these circumstances by the occupier's duty to exercise reasonable care. If, as seems to have been the case, the learned Judge found that it was failure to exercise constant supervision in the sense that there should have been an employee constantly patrolling the shop to detect the presence of any piece of vegetable matter on the floor and to remove it which constituted negligence, such a requirement represents a higher standard than the circumstances demanded and imposed too heavy a burden on the defendants. With all respect, it is not easy to perceive exactly what the learned Judge did find upon this aspect. It is impossible to say whether the presence of vegetable matter on the floor and thus, I infer, the plaintiff's fall were causally connected with any failure to take reasonable care, unless there are precise findings about the nature of the system of cleaning and supervision which the defendants had established and maintained and about the extent of the system which the dictates of reasonable care entailed in the circumstances of the case. It is only then that the court can answer the question whether the provision of a proper system would probably have averted the damage. See, for example, Rose v Abbey Orchard Property Investments Pty Ltd (1987) ATR 80-121. As I have said, I take Judge Walsh to have determined that a proper system required constant supervision and was not provided. He was, in my opinion, in error in imposing this requirement and this is so notwithstanding that Mr Nicolaou attested that that was in fact the system he had adopted. The Judge rejected that evidence on the ground, it would seem, that it was a rather colourful account of what in fact was done in this respect. URJ NICOLAOU v SMITH (Kirby P) 3 Accordingly, the finding of negligence cannot stand. There must therefore be a new trial because this Court, in my opinion, cannot determine for itself a question which evidently depends to a significant degree upon the credit of witnesses which the appellate court has not seen and will not see. I do not consider that any purpose will be served by reopening the issue of damages, which does not appear to have involved any question of credibility. Accordingly, in my opinion, the appeal should be allowed, the judgment below set aside and a new trial ordered limited to the issue of liability. This Court should direct that the assessment of damages, subject to readjustments for interest, should stand as the amount of any judgment which the plaintiff/respondent might recover hereafter. The costs of the first trial should abide the event of the new trial. The respondent must pay the appellants' costs of the appeal and should have a certificate under the Suitors Fund Act on the footing that there is no evidence to support the standard of care adopted by the learned Judge and thus an error of law. Kirby P I agree. Recent authority, including of the High Court of Australia and of this Court, lays emphasis on the need for persons in charge of premises to which the public has resort to attend to the obligations of accident prevention. It is not enough for the occupier to react to disasters after they occur. Nevertheless, the standard of care remains one of reasonableness. Furthermore, what can be expected depends on the nature of the premises in each case. Thus, the necessities of supervision will be greater in a large public supermarket (as in Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241) or in a public hospital (as in Western Suburbs Hospital v Currie (1987) 9 NSWLR 511) or in a public car parking station (as in Rose v Abbey Orchard Properties Pty Ltd (1987) A Torts R80-121 (68, 925)) when compared to the necessities in a suburban shop, as was the case here. Furthermore, it is a necessity in each case to establish that a causal relationship exists between the defective premises and the inadequate supervision of the condition of those premises (on the one hand) and the plaintiff's injuries (on the other). This last point appears to have had inadequate attention at the first trial in this case. A fresh trial will permit the matter to be considered as the law requires. I agree with the orders which Samuels JA has proposed. Appeal allowed and judgment below set aside. New trial ordered limited to the issue of liability. Counsel for the Appellant: B Gross QC and D Ronzani Counsel for the Respondent: A L Mitchell Solicitors for the Appellant: White, Murray and Carew Solicitors for the Respondent: Hickson Lakeman and Holcombe