ATHANASOPOULOS v McDONALDS AUSTRALIA LTD [1997] NSWCA 27

ATHANASOPOULOS v McDONALDS AUSTRALIA LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL, COLE and BEAZLEY JJA 22 October 1997, 22 October 1997

[1997] NSWCA 27

CLAIM for damages in negligence — no basis shown for disturbing the trial judge's findings of fact.

Cole JA The appellant, Michael Athanasopoulos was unsuccessful in a claim which he brought against the respondent McDonalds Australia Ltd for damages grounded in negligence and in an implied contract in respect of injuries which he said he suffered as a result of a fall in the toilet of the respondent's restaurant at Hurlstone Park at about 6.30am on 26 January 1992. By its defence McDonalds alleged that the appellant's claim was fraudulent, but the trial judge, Sidis DCJ, made no finding in that respect.

The relevant facts as found by the trial judge were that at about 4.45am Mr Gomes, a cleaner, arrived to clean the premises, including the toilet. He cleaned the toilet as one of his first tasks. At about 5.30am the manager Mr Cozzubbo, inspected the totality of the premises including the toilets. At 5.30am the toilet floor was damp but was clean and clear of any deposits.! The floor was again inspected by Mr Gomes at 5.57am, some three minutes before the store opened. He saw no dirt or detergent on the floor of the toilets, and the floors were dry. The trial judge accepted that the liquid soap upon which Mr Athanasopoulos says he slipped "did not exist at 5.57am'"'.2

Liquid soap is provided in the toilets in a sealed dispenser. The dispenser is changed approximately monthly. It was not changed on the day of the accident.

The appellant's account was that, having arrived at the restaurant, he ordered and ate breakfast and then went to the toilet. He said that as he entered the toilet a male cleaner of Asian appearance left the facility dragging a cleaning trolley about two feet long. The appellant said he saw this Asian cleaner from about two metres away. The trial judge rejected that evidence being satisfied that there was, in truth, no Asian cleaner on the premises that day, the only cleaner being Mr Gomes. The appellant said that he took a couple steps into the toilet and slipped falling onto his back. After the fall he noticed a greasy substance on the floor. He said he then left the toilet and went to sit at a table in the restaurant and some three to five minutes later reported the incident to the manager, Mr Cozzubbo. Together they went to the toilet and saw a spot of liquid soap on the floor which Mr Cozzubbo arranged to have Mr Gomes remove. The trial judge found that there were no scuffmarks through the spot of liquid soap, or adjacent to it, and there were no marks on the appellant's clothing. The spot of liquid soap was apparently undisturbed.