JEDRYCHOWSKI v VASILIOV TRADING AS NICK'S TAKE AWAY FOOD BAR [1996] NSWCA 275

JEDRYCHOWSKI v VASILIOV TRADING AS NICK'S TAKE AWAY FOOD BAR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and COLE JJA 3 July 1996, 3 July 1996

[1996] NSWCA 275 NEGLIGENCE — onus — no question of principle.

Cole JA Cooper DCJ rejected a claim for damages by the appellant grounded upon the negligence of the respondent. The appellant slipped and fell in the respondent's shop shortly after 8am on 20 November 1987 when he was delivering bread. He contended that he slipped on a wet patch on the tiled floor. The existence of the wet patch was said to found negligence in the respondent because any reasonable inspection would have disclosed its presence and it readily could have been removed.

The claim failed before Cooper DCJ for two reasons. First, the appellant, bearing the onus of establishing the cause of his slipping, failed to satisfy the judge that in truth he slipped on the wet patch. The trial judge was not satisfied that here was any wet substance on the floor as the appellant contended. Second, Cooper DCJ was of the view that the evidence resulted in it being equally probable that the fall was due to either the manner in which the plaintiff walked or turned as he entered the respondent's shop or the presence of some material on the floor. Thus the appellant failed on the onus.

In addition Cooper DCJ was not satisfied that if, contrary to his finding that it had not been established there was a wet patch on the floor, it had been found that such a patch existed, there was no evidence regarding the nature of that material or the extent to which it would have been visible on reasonable inspection. This was a third basis upon which the appellant failed.

At the trial there was a factual contest regarding whether the wet patch existed. As I have said the trial judge was not satisfied that it did. His Honour, in my opinion, gave cogent reasons for that finding. First, neither the plaintiff nor the defendant said that they saw any wet patch. Second, the defendant gave evidence that he had observed the area as he entered the shop and again subsequently after the fall and had not observed any wet patch. Third, although the appellant contended that the cause of his slipping was in truth a wet patch because he felt a wet patch on his trouser leg after the fall, he did not then refer to that circumstances or indicate it to the respondent even though he spent some half hour with the respondent after the fall. The appellant sought to explain this by saying that he was in pain but, as his Honour validly pointed out, pain had not stopped him observing the supposed wet patch on his trousers and in those circumstances one might reasonably have expected that if he observed that he might have referred to it in his discussion with the respondent but he did not do so. Fourth, his Honour indicated that the appellant, having given a different account, which was recorded by a private investigator, had not in that account made any reference to the existence of a wet patch on his trousers.