ADAMS v HAKOAH CLUB LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COLE, BEAZLEY and STEIN JJA 4 September 1997, 4 September 1997 [1997] NSWCA 8 Negligence — Occupiers duty of care — Appellant injured in fall at respondents premises — Causation — Whether no evidence that appellant had slipped on something — Rule in Hampton Court v Crooks — "Slight evidence" — Jones v Dunkel — Preconditions for Jones v Dunkel submission. Evidence — Admission of statement as business record — Discretion to exclude — Unavailability of witness — Evidence Act 1995 (NSW) s69, s135. Beazley JA This is a plaintiff's appeal from a decision of Newton ADCJ whereby verdict was entered for the respondent/defendant on her claim for damages for injury sustained in a fall at the respondent's premises. Issues on Appeal Three or possibly four points were raised on the appeal: (i) that the statement of a witness was wrongly admitted; (ii) that his Honour failed to have regard to the elementary principle that where relevant evidence is peculiarly within the knowledge of the defendant, slight evidence may be enough for the plaintiff to discharge the onus which at all times remains upon the party bringing the case: Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371. (iii) that his Honour failed to correctly apply the principle in Jones v Dunkel (1959) 101 CLR 298. (iv) that his Honour wrongly concluded that there was no evidence that the appellant had slipped on anything. It was submitted that this error was relevant to the Jones v Dunkel ground, in that had his Honour correctly understood the evidence that the appellant had slipped on something, he ought, in this case, to have drawn an appropriate inference either giving weight to the plaintiff's case that she had slipped or, alternatively, drawing an inference that witnesses who were not called would not have given evidence to assist the respondent's case. Background Facts The appellant fell and injured herself in the Hakoah Club restaurant on 31 May 1991, sustaining injuries to her hand, knees, shoulder, arm and neck. She alleged that she "slipped or fell" as she was walking across the tiled floor from the servery to the cashier, and that her fall was due to the respondent's negligence. Particulars of negligence included that the respondent had allowed or permitted foodstuffs or oily or slippery substances on the area where the appellant walked. After her fall she was quickly assisted by a security guard at the club, referred to in the evidence as Devi, and her husband. Neither of those two persons gave evidence. She said that when she stood up she observed "a glossy patch on the ball of her shoe". 2 UNREPORTED JUDGMENTS She was taken to the office where she was attended to by Mrs Ward, an administrative manager. Mrs Ward gave her some rudimentary first aid and took details of the accident and prepared a report which she showed to the appellant. It recorded the accident as having occurred as follows: "Mrs Toni Adams was carrying a tray (put a line through the tray as if it is crossed out) three glasses. She "slipped or fell" and fell on to the broken glasses. I treated her cut hand, which appeared to have no glass in, and the bleeding stopped once pressure was applied, I bandaged her hand and Mrs Adams said she would further treat her injury when she got home". As is apparent, the report made no reference to the spot on the appellant's shoe. The appellant, in conceding that she had not said anything about it to Mrs Ward, explained her failure to do so by asserting that the spot would have dried by time she got to the office as she had walked across some carpet. Some short time later, Mrs Ward added the following to her report: "Apparently the floor had just been cleaned but was dry. Shana Sugerman (bar attendant) said she (Mrs Adams) seemed to trip over her own feet. (see attached)." This section of the report was not shown to the appellant nor was the attached report. Mrs Ward's report, without the attachment was tendered by the appellant. The attachment was a signed report made by Shana Sugerman, a bar attendant, who witnessed the fall. Admission of Witness Statement Ms Sugerman's statement was admitted into evidence under the provisions of s69 of the Evidence Act 1995 (NSW) as a business record. The statement was taken very shortly after the fall. Ms Sugerman described the accident as occurring when the appellant's "feet sort of buckled over each other causing her to drop the tray". Ms Sugerman was no longer working for the respondent at the time of trial and evidence was given by Mrs Ward the she believed that she had returned to Canada, although there was no evidence of her actual whereabouts. It was submitted that the trial judge should have rejected the statement under the discretionary provisions of s135 of the Evidence Act. It was submitted the statement contained material relevant to the critical issue in the case - namely how the appellant fell. Therefore, it should not have been admitted unless the witness was available to give evidence. The difficulty with this submission is that the appellant, in her own case, had tendered a summary of the statement, which though in someone's else's terms was not different in any essential way from the original statement of Ms Sugerman's. For that reason alone I can see no error in his Honour not acceding to any application under s135. The document was in my opinion properly admitted. Application of the Rule in Hampton Court Ltd v Crooks (1957) CLR 367 at The appellant's case at trial was that there was a wet substance on the floor, which caused her to slip. In support of this case she gave evidence that after having got to her feet after the fall, she noticed a "glossy patch on the ball of her shoe", that "it looked wet on the sole". She also said that she: "turned back to see what [she] could have slipped on... and under the salad bar [she] could see bits of corn and things like that and there seemed to be a few you know bits of things on the floor as you see around a salad bar but I was not able to identify anything in particular that I had slipped on". URJ ADAMS v HAKOAH CLUB LTD (Beazley JA) 3 Leaving aside the experts evidence, which did not appear to have any importance in the final outcome of the case, the only other witness called to give oral evidence was Mrs Ward. She gave evidence of the cleaning system. She said that there was a night cleaner and that staff were instructed to be constantly on the lookout for spillages on the floor. She said staff were constantly in the area of the salad bar. There was, as I have already indicated the evidence in Mrs Ward's report and in Ms Sugerman's statement that the floor had been cleaned shortly before the accident, and was dry at the time of the accident. The trial judge held that there was no evidence of any liquid or other substances being on the floor and causing the plaintiff to slip or fall. He also rejected her evidence that she had observed a wet or glossy spot on her shoe when she first stood up after the fall. The appellant submits that his Honour erred in reaching this conclusion. The appellant had given evidence that she had "slipped on something". It was submitted that, notwithstanding this evidence, he had resolved this factual issue in favour of the respondent but in doing so had failed to adequately address the principles in Jones v Dunkel. The effect of this submission was that had his Honour done so he would have, indeed was bound to find, that there was evidence from which he could draw inferences in favour of the appellant's case sufficient to find a verdict in her favour. I consider that submission to have been made with a little of the advocate's flourish. Should it really be necessary to restate the matter, I will comment in passing that Jones v Dunkel does no more than entitle a trial judge to draw inferences. There is no requirement to do so even if the preconditions for the application of the principle are made out. It was submitted that evidence relevant to the question of whether the appellant had slipped on a wet substance on the floor could have been called from Devi, the security guard who assisted the appellant to her feet, and the cleaner who cleaned up after the accident. As Handley JA and I stated in Commonwealth of Australia v McLean (unreported NSW Court of Appeal, 31 December 1996): "A Jones v Dunkel submission is available for the purpose of increasing the weight of proofs of the party in default. The rule typically applies to strengthen or weaken an inference otherwise available on the evidence for the party not in default". See also Payne v Parker [1976] 1 NSWLR 191. Three pre-conditions must be satisfied before a Jones v Dunkel submission is available: (i) that the missing witness would be expected to be called by one party rather than the other; (ii) that the witness' evidence would elucidate a particular matter; and (iii) that the absence of the witness is unexplained. The second of these three preconditions is sometimes referred to in terms that it must be apparent that the witness has relevant knowledge to put before the court. The rule does not apply to fill in gaps in the evidence. That is the problem which the appellant had here. Apart from the wet spot on her shoe, there was no evidence in the appellant's case that she slipped on anything, apart from her statements that she slipped on something. Indeed, she said she looked to see what she had slipped on and saw nothing. His Honour disbelieved the appellant in respect of the spot on her shoe. He had reasonable grounds for so doing. That evidence was undoubtedly directed to supporting her case that she had slipped on 4 UNREPORTED JUDGMENTS something. Having rejected the evidence in respect of the shoe, it followed, almost inevitably that her evidence that she slipped on something would be rejected. But his Honour had other bases for also rejecting that evidence as he clearly did. She looked but did not see anything on which she had fallen. The foodstuffs of which she complained was under the salad bar, not where she fell. She reported to Mrs Ward immediately after the accident that "she slipped or fell" not that she "slipped and fell". Ms Sugerman reported to Mrs Ward almost immediately after the accident that she saw accident and that the appellant's "feet sought of buckled over each other'. Thus the appellant found herself in a position where she had not satisfied the trial judge that she had slipped on something. That being so, no deficiency in the respondent's case, such as a failure to call witnesses, could assist the appellant to fill in that gap in her evidence. In any event, I am not satisfied that his Honour failed to adequately deal with the principle. He referred to the submission made in relation to the failure to call the security guard. He observed that it was not necessarily clear to him that the witness could not have been called by the appellant, nor that he would be able to give relevant evidence. There was no evidence that he noticed the floor at the time he assisted the appellant or shortly thereafter. Thus, his Honour was not satisfied of two of the three pre-conditions necessary for the rule to be invoked. In my opinion, that was open to his Honour. Finally, his Honour found that even if the pre-conditions had been satisfied, the failure to call him would "not appear... to permit a positive inference that he could have given evidence supporting the plaintiff or diminishing the case of the defendant'. In so stating his Honour appears to have been asserting, correctly in this case, to the principle to which I referred earlier, namely, that the rule in Jones v Dunkel does not apply to fill in gaps in the evidence. His Honour made no reference to the failure to call the cleaner, although counsel informed the Court that a Jones v Dunkel submission was made in respect the cleaner. However, it seems the same result would ensue in relation to the failure to call her or him. If the appellant had not seen anything on the floor where she slipped, it is unlikely that the cleaner, given the task of cleaning up glass and possibly blood from the floor, presumably with a degree of urgency, would have seen anything. It follows from what I have said that there was no error in his Honour's judgment in respect of his factual findings or his application of the principle in Jones v Dunkel. That makes it unnecessary for the court to deal with the second aspect of the appellant's case, that his Honour should have held that the respondent breached its duty of care in having no or no adequate cleaning system. I will observe, however, that Mrs Ward did give evidence of the respondent's cleaning system. Therefore there was no Jones v Dunkel point to be made in respect of the failure to examine her on this issue: see Commercial Union Assurance Co of Australia v Ferrcom Pty Ltd (1991) 22 NSWLR 389 per Handley JA at 418. Had there been a point to make in respect of that issue it would have been in respect of the adequacy of the cleaning system. During the course of argument some reliance was placed upon the judgment of this court in Shoeys Pty Ltd v Allan [1991] Aust Torts Reports 81-104, a decision of this Court of 3 March 1991. Reliance was placed on this case both in relation to the cleaning system and the extent to which there needed to be evidence as to the substance upon which the plaintiff slipped. Dealing first with the question of the cleaning system, Shoey's case does not lay down any convenient principle as URJ ADAMS v HAKOAH CLUB LTD (Stein JA) 5 to the frequency of cleaning or the extent of monitoring which needs to be undertaken for an occupier to discharge its duty of care. Every case must depend upon its own facts. As to the second of the points to which we were referred in Shoeys, and relied upon here, this seems to have been a reference to the case sought to be made in the written submissions, that his Honour failed to apply the principles in Hampton Court Ltd v Crooks, that only slight evidence may be enough unless explained away by the defendant and that the evidence should be weighed according to the power of the party to produce it. In my opinion this principle does not assist the appellant in this case. The appellant was in the position that, his Honour having rejected her evidence as to the spot on the shoe and that she slipped on something, she had not called any other evidence to establish negligence. She had not therefore satisfied the requirement referred to in Hampton Court of having adduced "slight evidence". There was therefore, nothing to be explained away by the respondent. It follows that the appellant must also fail on this issue with the result that the appeal in its entirety should be dismissed with costs. Cole JA The trial judge rejected the plaintiff's evidence of observation of a glossy spot on her shoe. His Honour held that there was no evidence that the plaintiff slipped on anything on the floor - vegetable, liquid or otherwise. Thus the appellant did not establish to the trial judge's satisfaction the cause of her fall. The appellant sought to have this Court disturb the finding of fact by reaching a different view of the acceptability of the plaintiff/appellant's evidence and by the drawing of inferences regarding the cause of her fall, which the trial judge was not prepared to draw. No satisfactory basis was advanced in accordance with established principles for this Court to so intervene. I agree with the judgment delivered by Beazley JA and with the orders which she has proposed. Stein JA I agree that the appeal should be dismissed with costs. That will be the order of the Court. It follows that the appellant must also fail on this issue with the result that the appeal in its entirety should be dismissed with costs. Counsel for the appellant: P M Hall QC/D Stewart Solicitor for the appellant: Hunt & Hunt Counsel for the respondent: G Bateman Solicitor for the respondent: Leitch Hasson & Dent