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. There were at the time approximately six people in the restaurant, four being employees of McDonalds. The regime for inspection was that the manager, in his discretion, would inspect the toilets at intervals of between one and two hours, 1. Appeal Book, p354S. 2. Appeal Book, p354U. 2 UNREPORTED JUDGMENTS depending upon how busy the store was. The trial judge thought that a more frequent inspection, namely half hourly, would have been more appropriate but, as she found that the spot of liquid soap was not there at 5.57am, and as the accident happened about 6.30am, any more frequent inspection would have been unlikely to have avoided the accident. Her Honour held: "T accept that as a matter of commercial reality it is reasonable in periods where business is very slow, for instance when there are between 2 and 5 patrons on the premises, to reduce the level of inspection and monitoring."3 It is implicit in the reasons for judgment that the trial judge did not accept the appellant as a witness of truth although she did not make any finding of fraud. Her Honour found that Mr Athanasopoulos did not discharge the onus of proof lying upon him of establishing how the accident occurred. Critical to her rejection of his account of the accident is the following finding: "There is evidence that there were no skid or scuff marks on the floor of the toilet immediately after the accident. The small patch of soap on the floor had not been smeared or otherwise disturbed. It would be inevitable if Mr Athanasopoulos stepped into the soap, slid forward and fell so as to land on his back in the way he described, that the patch of soap would have been disturbed in some way."4 Thus the trial judge was not satisfied that the accident occurred in the manner alleged by the appellant. Her Honour found that: "Liquid soap on the floor of the men s toilet in an area which he had to walk over to use the facilities of the toilet could have caused Mr Athanasopoulos to slip and suffer injury. The soap was in a concentrated form. It was not diluted by water as one might expect if a patron had washed his hands with soap and water and shaken his hands afterwards rather than using the electric hand drier. Nor was there a trail of water or soap from the dispensers above the hand basins. There were no wet or damp patches on the floor."5(emphasis added) It seems implicit that, whilst not prepared to make a finding of fraud, the trial judge was not prepared to find that slipping on the undisturbed spot of liquid soap in fact caused the appellant to fall. The cause of any fall was thus unexplained to the satisfaction of the trial judge, although the existence of an undisturbed spot of liquid soap plainly was accepted. On these bases the appellant failed as not having discharged the onus of satisfying the Court that the injuries were due to a failure by the respondent to take reasonable care for the prevention of such a slipping accident, and thus for the safety of the appellant. The trial judge did not find, explicitly, that the appellant in fact slipped. However, in addressing the question of damages, undoubtedly against the possibility that her decision on liability might be reversed, she said: 'I have already dealt with the evidentiary problems faced by Mr Athanasopoulos. They lead me to the finding that the real cause of Mr Athanasopoulos' current condition is the work related injury and that the accident caused a temporary aggravation of that injury."6 The appellant had suffered a prior work injury and her Honour was of the view that, if a fall occurred, it caused an "aggravation of that injury". This was seized upon by the appellant to argue that her Honour must have found that he in fact 3. Appeal Book, p355 4. Appeal Book, p351. 5. Appeal Book, p353. 6. Appeal Book, p356. URJ ATHANASOPOULOS v McDONALDS AUSTRALIA LTD (Powell JA) 3 fell. Even if that be so, it does not assist the appellant for he bears the onus of establishing both the manner in which the fall occurred, and that it occurred in circumstances constituting negligence. Further, it was said that it was not open to the trial judge to find that the spot of liquid soap was undisturbed, without expert evidence. I would reject that contention. In my view common experience would indicate that, if there was slipping on a spot of liquid soap, the spot would be disturbed. Next it was contended that the trial judge was too precise in finding that, as the spot was not there at 5.57am, and as the accident happened at about 6.30am, a half hourly inspection which she thought was appropriate, would not have prevented the accident. The argument was that the appellant's evidence that he arrived just before 6.30am, and then had breakfast before proceeding to the toilet, meant that the accident must have happened at a time other than 6.30am. However, it was not put, during the trial, that the accident happened other than at about 6.30am. In my opinion no basis has been shown for disturbing the trial judge's findings of fact. It follows that the appeal should be dismissed with costs. Powell JA Mr Morrison has said all that could possibly be said on behalf of his client in what is, undoubtedly, a very difficult case for the appellant. Thus notwithstanding, I am not persuaded that any valid ground for attacking her Honour's judgment was made out and I agree with the orders proposed by Justice Cole. Beazley JA I also agree. Powell JA The orders of the Court thus are that the appeal be dismissed with costs. Appeal dismissed with costs Counsel for the appellant: A Morrison SC/R Page Solicitors for the appellant: Peter Erman Counsel for the respondent: C Leahy Solicitors for the respondent: McCabes