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: It does seem to me almost inescapable once I accept that she actually slipped, that there must have been something spilled on that floor and there is no other likely culprit than some member of the defendant's staff. The appellant has contended on appeal that the trial judge's conclusion involved three inferences: (i) The respondent slipped on a greasy solid or some viscous liquid on the floor; (ii) the solid or liquid was spilled upon the floor by a member of the defendant's staff (or was a spillage by some third party at an earlier point which should have been detected and removed by the appellant); and (iii) such spillage was the result of negligence. Each of those conclusions was challenged as being impermissible speculations rather than the drawing of inferences from established facts! It is convenient to deal with each of the three inferences in turn. 1. Jones v Dunkel (1959) 101 CLR 298 at 304-305; West v Government Insurance Office of New South Wales (1981) 148 CLR 62 at 66; Girlock (Sales) Pty Limited v Hurrell (19982) 149 CLR 155 at 162. JOBNAME: No Job Name PAGE: 2 SESS: 1 OUTPUT: Mon Feb 25 18:23:53 2008 /reports/caseml]/case/urj/9708218 UNREPORTED JUDGMENTS The respondent arrived at the restaurant about noon. She entered the restaurant and went to a table about 4 to 5 yards past the passageway where she ultimately fell. There she met a companion. A short time later she left the restaurant crossing through the passage way where she ultimately fell. Outside she met her other companion and together the two returned to the restaurant table again crossing the place where ultimately she fell. She intended, some 10 minutes later, to leave the restaurant to move her car. It was whilst making this fourth traverse of the passageway that she fell. The flooring where she fell was Pirelli rubber matting which was found at the trial to be a matting which provides 'a satisfactory slip resistant grip with practically all common shoe sole materials when clean and dry or when wet with water'. When contaminated with food, or viscous material however, it could become slippery and dangerous. The evidence of the respondent was that on none of her three traverses of the matting did she notice any foreign substances on the floor, and nor did she immediately prior to her fall. After her fall one of her companions looked around the floor where the respondent fell and said: 'I can't imagine how it happened. I can't see anything you might have slipped on'. That statement was recited in a statement made by the respondent about two months after the accident. Neither companion was called at the trial. The place where the respondent slipped was adjacent to a food bar. Whilst there was evidence that there was food on that bar there was no evidence when it was placed there. In particular, there was no evidence that it was placed there between the various traverses of the respondent across the Pirelli flooring. The interval between her first traverse on entering the restaurant and the fourth traverse when she fell was between 10 and 15 minutes. There was no evidence of any staff traversing the passageway where she fell during that interval, and there was evidence that there were no other customers in the restaurant. Subject to the matter to which I will come, there was thus no evidence of how the fall occurred. In chief, the respondent said: A. ... as I came up to where the food bar was my foot, my right — as I put my right foot down it just slipped on the floor. Q. When you say it slipped, could you describe for us as to what occurred? A. I just felt like I have slipped on something on the floor.'2 In her statement made two months after the accident she said: I slipped on the rubber flooring near the food bar. I felt the leather sole of the shoe on my right foot slipping on the very slippery rubber floor.'3 Her statement made no reference to there being food on the floor, as she agreed in cross-examination.4 However in cross-examination she gave the following evidence: Q. Well you're unable to tell us of course that there was anything on the floor of your own knowledge, that right? 50 2. Appeal Book, p.21V-Y. 3. Appeal Book, p.77P-Q. 4. Appeal Book, p.38L. URJ PULLEN t/as FORBES RESTAURANT v DINGLE (Cole JA) 3 A. Unable? Q. Yes? A. Yes that's right. Q. But as I understand it are you asking his Honour to conclude that there must have been food there of some sort? A. There was something on the floor that made my foot slip. Q. How do you know that? A. Because when I felt my foot slip on it, it's just — the floor was not like > © > OPO rPOPO that when I walked across it and when I walked across it to go back out again my foot just slipped on something. Well you see you don't say that in your statement do you? What you say in your statement is I slipped on the rubber flooring near the food bar. I felt the leather sole of the shoe on my right foot slipping in the very slippery rubber floor. That's what you said two months later? Yes I meant where I walked at that time it just slipped on something as I put my foot down. But you see you didn't say anything like that did you? I think that's how I described it. You said in this statement that what caused you to slip was the slippery rubber floor? What I meant like was as I put my foot down it was slippery underneath my foot, that's how I meant it to sound. Well was it a slippery substance or a slippery liquid or what was it? It felt like as if it was something like oil or something like that? Oil? It just felt something slippery. I can't say what it is, it was just something that made my foot slip.'5 The trial judge accepted the respondent as a witness of truth.6 Notwithstanding the significant absence of any evidence prior to the passage I have just quoted of there being any substance on the floor causing her to slip, in my view the passage I have quoted constitutes evidence sufficient to enable the trial judge to accept that she slipped on a substance on the floor which made the floor slippery. It is not entirely plain that the trial judge rested himself on the evidence I have quoted. His Honour said: If indeed she slipped, rather than tripping or overbalancing as was suggested to her in cross-examination, then it seems that the most probable explanation is that it was not the matting upon which she slipped because the matting per se is not slippery but that she must have slipped on something else either an actual greasy solid or some viscous liquid which would render the matting slippery.'7 Later, in the passage I have quoted, his Honour said: once I accept that she actually slipped, that there must have been something spilled on that floor ... '8 5. Appeal Book, p.41F-V. 6. Appeal Book, p.105Y-106B. 7. Appeal Book, p.104M-R. 8. Appeal Book, p.105H-I. 4 UNREPORTED JUDGMENTS With some hesitation I have come to the view that the trial judge was entitled on the evidence to hold that she slipped on some foreign substance on the floor. The challenge to the first step in the judge's reasoning process thus fails. However, in my view, there was no evidence from which his Honour could infer or hold that the substance on which she slipped originated from either the food bar, or a member of the staff of the restaurant. Assuming the finding that she slipped on a foreign substance, its nature is not known. There is nothing which permits an inference that it was food, nor that it came to be on the floor as a result of any activity of a member of the appellant's staff. There was no evidence that any member of the staff traversed the area where she slipped at any time between her initial entry to the restaurant and her falling on her fourth traverse. There is no evidence that any member of the staff at that time placed food on the food bar. Absent that evidence, and in particular evidence of the nature of the substance on which the trial judge found she slipped, it cannot be inferred in my view either that the substance was spillage from the food bar, or was otherwise spillage by a member of the appellant's staff. Assuming there was a substance there, how it came to be there and when it came to be there or when it came to be there is simply unknown. It could, as counsel for the appellant suggested, have been walked in on the sole of the shoe of the respondent or one of her companions. There is no evidence of its size or dimension, and thus no evidence regarding whether such substance ought to have been visible. Nor was there evidence concerning the time that the substance had been there so as to enable an inference that it was a breach of duty not to have removed the substance in the interval between it arriving in the passageway and the respondent's fall. In my view there is no basis for assuming that the substance was there from the previous evening. For these reasons, in my view, the second and third steps in the trial judge's process of reasoning were impermissible speculation. There was thus no evidence of negligence. I would propose that the appeal be upheld, the judgment of Judge Bell set aside and a verdict entered for the defendant. The respondent should pay the appellant's costs of the trial and of the appeal but should have, if qualified, a certificate under the Suitors Fund Act 1951. Handley JA. I have the misfortune to differ from the other members of the Court, but, in my opinion, the appeal should be dismissed. If one accepts, as I think the Court must, the Judge's finding that the respondent slipped on "something on the floor', and not merely on the floor itself, then it seems to me, with respect, that there was an available inference that the appellant's negligence was responsible for the presence of that 'something'. There are a number of possible explanations for the presence of that 'something'. However, it seems to me that any explanation which involves that 'something' having come in from the street or been brought in from the street by someone who was not an employee of the restaurant is highly improbable and, on the evidence, totally speculative. The only persons who came in from the street in the period immediately before the fall were the plaintiff and her two companions. The plaintiff made more than one journey across this particular passageway without incident. There was also movement in the passageway by restaurant staff, and there is no suggestion that they had gone out into the street. URJ PULLEN t/as FORBES RESTAURANT v DINGLE (Powell JA) 5 If either the plaintiff or one of her companions had walked the material in from the street, then it would be reasonable to suppose that that person would have suffered the mishap later suffered by the plaintiff. It would be also reasonable to suppose that if this was the plaintiff, there would have been some residue visible on the heels or soles of her shoes. The fall occurred in the immediate vicinity of a food bar. The plaintiff gave evidence that when she arrived for her luncheon appointment, the food bar was stocked with food which she described as: 'Plates of antipasta, hot dishes, salads, various things like that'. Although this evidence was challenged in cross-examination, it was not contradicted and no reason appears for rejecting it. Given that the accident occurred in a restaurant, given that it occurred in the immediate vicinity of a food bar which one may reasonably infer had been stocked up shortly before the accident in readiness for the lunch hour trade, it seems to me that this proximity sufficiently grounds an inference that some food or food residue was the cause of the fall. The particular mechanism by which the food got on the floor and the nature of the food are matters of speculation, but the source of the problem, in my view, is not. If there was any food or food residue on the floor in this area, then it seems to me that it probably got there shortly before the accident. I would not be prepared to infer that the material had remained there from trading the previous evening. A proper system ought to have resulted in the floor being properly cleaned either before closing the night before orbefore opening for trading on the day of the accident. There is very little evidence on these matters, but the proximity between the site of the fall and the food bar suggests that some food or food residue had become deposited on the floor in the course of stocking the food bar. In that event, it had either been dropped by a waiter in the course of loading the food bar or had fallen in the course of that operation. In either event the waiter ought to have been aware of the fall and ought to have taken steps to ensure that the area was thoroughly cleaned up. I acknowledge that there is an inference that the plaintiff simply fell because of some clumsiness or speed in her movements, but, given the Judge's finding that there was something on the floor, it seems to me that an inference of negligence is open. I, therefore, propose that the appeal should be dismissed with costs. Powell JA. Although I am disposed to think that, if I had been the trial judge, I would not have been prepared to conclude that, at the relevant time, there was some foreign substance on the relevant part of the restaurant floor, I must accept that the passage from the respondent's cross-examination to which Cole JA has referred in the course of his judgment provides a basis, thin though it might be, upon which Judge Bell might legitimately have inferred that there was a foreign substance on the floor at the relevant time. This notwithstanding, and notwithstanding one's sympathy for the nasty accident which the respondent undoubtedly suffered, it seems to me that, in proceeding as he appears to have done, to find that the foreign substance, whatever it may have been, came to be upon the floor as the result of somenegligent act or omission on the part of the appellant or some member of his staff, or that the continuance of that substance on the floor was the result of some negligent omission on the part of the appellant or a member of his staff, Judge Bell proceeded beyond the realm of legitimate inference into the realm of impermissible speculation. 6 UNREPORTED JUDGMENTS This being so, it seems to me that the orders proposed by Cole JA are those proper to be made by this court. Handley JA. The order of the Court will be as proposed by Cole JA. 5 (1) Appeal upheld. (2) Judgment of Bell DCJ set aside. (3) Enter verdict for the defendant. (4) The respondent to pay the appellant's costs of the trial and of the appeal 10 but should have, if qualified, a certificate under the Suitors Fund Act 1951. Appearances for the appellant: J D Hislop QC Solicitors for the appellant: McCulloch and Buggy 15 Appearances for the respondent: L King SC Solicitors for the respondent: Jones Staff and Co