PULLEN t/as FORBES RESTAURANT v DINGLE [1997] NSWCA 253

PULLEN t/as FORBES RESTAURANT v DINGLE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA, POWELL JA and COLE JA 4 November 1997

[1997] NSWCA 253 NEGLIGENCE — occupier's liability — whether inference of negligence available

The appellant conducted a restaurant. The floor consisted of Pirelli rubber matting which provides satisfactory grip for all shoes when dry or wet with water, but which, when contaminated by a greasy solid or viscous liquid, would become slippery and dangerous. The respondent's evidence was that she slipped but did not know or see what she slipped on. There was no evidence of any residue on her shoe or on the floor. The trial Judge found that she had slipped on "something" on the floor and entered judgment in her favour.

HELD: Per Cole and Powell JJA, Handley JA dissenting (allowing the appeal): There was sufficient evidence on which the Judge could conclude that there was material on the floor on which the plaintiff could have slipped. However, there was no evidence that the substance was food or that it was allowed to remain there by the negligence of the defendant. In so finding, the trial Judge was in error. There was no evidence of negligence.

Per Handley JA dissenting: Given the finding that the plaintiff slipped on "something" an inference was available that this something was food or a food residue which was deposited on the floor during the stocking of the adjacent "food bar'. A further inference was also available that the "something" had been deposited or allowed to remain as a result of some negligence by restaurant staff.

Cole JA. On 8 April 1988 the respondent Jillian Lorna Dingle fell in a restaurant conducted by the appellant, Peter Pullen. Judge Bell held on 7 August 1995 that her fall was due to the negligence of the appellant, finding that she slipped on something that had been spilled by a member of the appellant's staff. His Honour said that the case was one of res ipsa loquitur holding: