GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v GATTO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY, BEAZLEY and STEIN JJA 16 April 1997 [1997] NSWCA 128 NEGLIGENCE — occupiers liability — reasonableness of trial judges acceptance of plaintiff's evidence on one matter and disbelief of her evidence on another — no error in trial judge's finding of negligence through breakdown in system of cleaning. Stein JA This is a liability appeal from a verdict and judgment for the respondent (plaintiff) delivered on 21 June 1996 by Blanch J, the Chief Judge of the District Court. His Honour found the appellant (defendant) negligent and assessed contributory negligence by the plaintiff of 20%. After making the reduction in damages, he gave judgment for the plaintiff in the sum of $110,495. The grounds of appeal may be summarised as follows: Grounds | and 2 - there was no or insufficient evidence for his Honour to find the appellant defendant negligent. Ground 4 - there was no or insufficient evidence for his Honour to have found that the plaintiff complained of slipping on fruit peelings at the time of her injury. Ground 5 - that there was no or insufficient evidence for his Honour to find that the plaintiff slipped on fruit peelings or other substances at the time of her injury, and, Ground 3 - that his Honour failed to adequately address the reasonableness of the defendant's system of cleaning the area where the plaintiff fell. On 12 November 1991, the plaintiff was employed by Mr Gabe Meyer as a machinist at a shopping centre known as the Wallaceway at Chatswood. Her employer was a tenant of the centre of which the appellant was the occupier. She had worked for Mr Meyer for around 25 years and was 61 years of age at the time of the accident. Her evidence was that she arrived at work shortly before 7am, had some coffee and started work at 7.30am. Between 8 and 8.30am, she went to the toilet area in the premises, which were toilets which were open to the public from around 9am. It is convenient to continue by quoting some of his Honour's findings of fact. Referring to the plaintiff, His Honour said: She said that the toilets were usually clean but she had noticed that they were dirty on some other occasion and she described walking into the toilet area and her left leg slipped out from underneath her. She said she was wearing rubber soled shoes with a good grip at the time. She said that after she fell, she noticed some orange peels, folly papers and tissues on the floor a short distance from where she fell. In cross-examination she said that there was a significant amount of this sort of rubbish on the floor and she felt something soft under her shoe which caused her slipping. It was something solid. She felt pain in her leg and she realised she had a problem with her left knee and prior to the accident, she had no problem with her knee at all. She said she pulled herself up on the door and then went upstairs to report the accident. That report was made to Helga Kastropil who subsequently gave evidence.(AB153N-154C) 2 UNREPORTED JUDGMENTS The Court also noted that it was being asked to draw the inference circumstantially that what the plaintiff fell over was a piece of fruit peel which was on the toilet floor'. The person to whom the plaintiff reported the accident, the centre manager, Helga Kastropil, completed an investigation report. This report to be found at AB 137N-P, was quoted in part by his Honour at AB154. The portion quoted states: The reason lady described was that she was walking out of toilets, slipped and fell on her side and hurt her knees. She could not see anything on the floor. Blanch J found this report of limited evidentiary value for reasons he gave but nonetheless relevant to be taken into account on the question of the plaintiffs credibility. Ms Kastropil also gave evidence of a system of cleaning the toilets by Swan Cleaning Company on the evening before, between 6 and 9pm and of Mr Michael Jakich, a cleaner with Swan, checking them early the next morning. After the accident was reported to Ms Kastropil by the plaintiff, she says she instructed Mr Jakich to check the toilets and see if they were clean. Mr Jakich stated in evidence that he had checked the toilets about a half an hour after he commenced work at 7am and they were clean and in order. After being asked by Ms Kastropil, he checked them again and observed no rubbish on the floor. His Honour noted that one aspect of Mr Jakich's evidence was unusual. (AB 155P) This was that in cross-examination, he had volunteered that Ms Kastropil told him that the plaintiff had fallen over some peel, orange, banana or fruit peel. This was at odds with Ms Kastropil's report mentioned earlier. In re-examination of Mr Jakich, he agreed his memory was a little clouded on the point but either the plaintiff or Ms Kastropil told him about some kind of fruit peel on the floor'. (AB155U) His Honour concluded that it was plain that the plaintiff had complained either to Mr Jakich or to Ms Kastropil that she fell over in the toilets and that the cause was some sort of fruit peel on the toilet floor. With reference to this evidence, his Honour said: If nothing else, it demonstrates an immediate complaint about that matter by the plaintiff and a consistency thereafter in her version that that is what occurred. (AbI55Y-156C). The case essentially revolved around the plaintiff's credibility and her account of the circumstances of the accident were very much in issue. His Honour found that the plaintiff was clearly attempting to conceal the fact that she had been engaged in paid employment after her accident, see AB 156 F to I. He posed the question whether this meant that what she said about any aspect of the case was tainted, including her evidence that there was fruit peel all over the floor of the toilet which caused her fall. Indeed, His Honour acknowledged that the credit issue was the most difficult aspect of the case. His assessment of this issue was as follows: Having seen the plaintiff give her evidence and made an attempt to evaluate her genuineness in this regard, having seen and heard the other witnesses and the evidence they have given, I am satisfied on the balance of probabilities that in spite of the criticisms which can be made of the plaintiff as to her evidence about her earning capacity, that nonetheless she is telling the truth about the incident itself. It is a version she has apparently given from the time the incident itself occurred through to the present time. I see no real substance in criticisms of minor discrepancies which have occurred in the accounts she might have apparently given to her solicitor in the first instance. (AB156R-157C) URGDVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v GATTO (Stein JA) 3 The appellant submits that given that his Honour accepted that the plaintiff misstated her case and attempted to conceal her post-accident employment, it was logically not possible to make a positive finding based on demeanour. For my part, I do not accept this submission. His Honour was very well aware of the credit issue, indeed he revisited it in his reasons for judgment on the issue of damage. He said that this was a case where the plaintiff suffered an accident and puffed up' her claim by exaggerating her inability to work. (AB 162 V to W) However, in examining the totality of the evidence, in part uncontradicted, the plaintiff was a simple hard working migrant woman who worked as a machinist for 25 to 30 years and was a valued employee who lost her employment at the age of 56 years because of the accident. These were his Honour's findings. Blanch J concluded that the plaintiff was telling the truth about the incident itself, as well as certain other aspects of the claim. This was a finding which in my view he was entitled to arrive at. The appellant submits that the case is not really a demeanour case because the plaintiff had no credibility. However, his Honour did not accept this, as I have just made clear from his findings. He did not conclude that she had no credibility at all, rather that her credibility was damaged on the limited issue of post-accident employment. One thing is manifestly clear from the plaintiff's evidence. That is her account of the circumstances of the accident, given repeatedly in examination in chief and cross-examination. It is an account which is more or less consistent. The transcript is littered with her accounts of the circumstances in which she slipped. So too are her instructions given on 14 February 1992 to her solicitor consistent,(Ex G). It is also common ground that the plaintiff reported the accident promptly to Ms Kastropil and either told her or Mr Jakich that she slipped on some kind of fruit peel. In this respect, there is the evidence of the plaintiff as well as Mr Jakich on at least three occasions in his testimony. As Blanch J said, this at least demonstrates an immediate complaint and a consistency in the plaintiff's version of the incident. In re-examination of Mr Jakich, it may be noted that he said that he was either told of the fruit peel incident by the plaintiff or by Helga Kastropil. The appellant's submission is that even if Mr Jakich or Helga Kastropil was told by the plaintiff that she slipped on fruit peel, the assertion does not prove the fact. This is obviously correct and his Honour did not suggest to the contrary. He utilised the evidence only to note an immediate complaint and the consistency of the evidence regarding the circumstances of the accident. In other words, the evidence was used not to prove the fact but to make it safer to accept the plaintiff's evidence where her credit was very much under attack. His Honour's findings in relation to Mr Jakich's evidence of the statement by Ms Kastropil or the plaintiff to him about the fruit peel is attacked. However, it seems to me on an examination of the transcript of the evidence that it was one which was open to his Honour to make. The essence of the appellant's attack on the judgment is the claim that his Honour's findings are insufficient to support a finding of negligence. It is submitted that his Honour needed to determine when the offensive material was deposited on the toilet floor and then to examine the appropriateness of the adopted cleaning system. It is said that he should also have addressed whether the system failed and whether an appropriate system would have averted the injury. 4 UNREPORTED JUDGMENTS However, it seems to me that his Honour did address the issues required to be addressed. It is of note that after an intervention from the plaintiffs counsel that his Honour added a rider to his reasons to be found at AB168 G to M. He said: My finding is that there was negligence on the part of the occupier in the fact that the material was there on the floor in the mornings,(sic) the evidence being that it was not usually there and that if the material was there, then there was a failure of the system put in place by the defendant and that failure of the system created a danger to the plaintiff. It was that danger which ultimately gave rise to the fall which caused the damage. The appellant submits that this doesn't establish negligence. In my opinion, however, these findings (together with his Honour's clear acceptance of the plaintiffs version of events as to the accident) are sufficient findings on liability, or at least by clear inference on the probabilities. It is patent that by inference, if not expressly, the Court rejected the defendant's contention that there was a proper system of cleaning and/or inspection in place for the toilets. Once the Court accepted that there was fruit peel on the toilet floor at the time the plaintiff slipped, it was open to his Honour to find that the system had broken down. There was also before the Court evidence of Mr Jakich of his limited check in the mornings, principally to check for toilet paper; that at the time of the accident no one came into the centre and that the public were not admitted until 9am. There was also the evidence of the plaintiff (in chief) that the toilets were sometimes dirty, especially in the mornings. There was, in my opinion, evidence upon which his Honour could properly infer that the material on the floor of the toilet had been there since the night before, evidencing a lack of care in the cleaning system. The appellant has failed to demonstrate that there was any relevant error in his Honour's approach to the issue of liability or his findings. There was, in my opinion, sufficient evidence available to his Honour, which he clearly accepted, to find that the defendant was negligent in that its system of cleaning and/or inspection of the toilets failed on the day in question. I would propose that the appeal be dismissed with costs. Handley JA I agree. Beazley JA I agree. Handley JA: The orders of the Court therefore will be as proposed by Stein J. Appeal dismissed with costs.