McDONALDS AUSTRALIA LIMITED v SALAMEH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY and STEIN JJA, and BROWNIE AJA 22 May 1997, 22 May 1997 [1997] NSWCA 198 NEGLIGENCE — APPEAL AGAINST FINDING OF NEGLIGENCE NEGLIGENCE — APPEAL AGAINST FINDING OF NEGLIGENCE — On appeal the appellant argued: (1) the trial judge erred in finding that the appellant was negligent in the way that it positioned a soap dispenser in the toilet of its premises; and, (2) there was no causative link between the positioning of the soap dispenser and the respondent's injury. Held: (1) on the evidence before him, and on the basis of common experience, the trial judge was entitled to make the findings which he did with respect to the negligence of the appellant; and, (2) along with his reference to the positioning of the dispenser, the trial judge clearly had in mind that it was the combination of circumstances, including the cramped layout of the toilet, which constituted negligence on the part of the appellant. Priestley JA This appeal is one brought against a judgement given by his Honour Judge Kirkham in the District Court on 2 July 1996 in favour of the plaintiff in the sum of $73,643.62 for damages for negligence. The judge rejected a claim by the appellant that the plaintiff had been guilty of contributory negligence. The appeal is against the finding of negligence only, not the amount of damages and nor, as the matter has been argued orally today, against the judge's conclusion concerning contributory negligence. The plaintiff was injured in the appellant's restaurant at Hurlstone Park at 9.30am on Sunday, 17 July 1994. She had gone there with her three children. The restaurant was busy. There were many other children. After some time in the restaurant, the plaintiff went to the female toilet. She washed her hands at one of two hand-basins. She then entered the toilet cubicle nearest the hand-basins to take some toilet paper from the dispenser there to dry her hands. While she was doing this, Mrs Small entered the toilet and began to use the washbasin nearest the toilet cubicle the plaintiff was using. Space in the toilet was quite cramped. The dimensions of the toilet were contained in a report tendered in evidence which had been prepared by Mr Simpson who was described as a Forensic Engineer. From the dimensions that he gave it is possible to construct a sketch of the toilet showing the positions of the two toilet cubicles, two hand-basins, the soap dispenser above the right hand of the two basins as you look at the unit that contains those two basins and the hand dryers on the opposite wall. There are two photographs in evidence (exhibit A) which, once this sketch has been constructed, make intelligible the layout of the overall toilet and which fully justify the trial judge's description of it as very cramped. The plaintiff in seeking to move out of the cubicle towards the door of the toilet, had to squeeze behind Mrs Small. In doing this she slipped and fell. In her evidence she said she then noticed a substance which was a creamish colour on her clothing from her left hip down the thigh to the leg and on her shoes. 2 UNREPORTED JUDGMENTS The evidence of Mrs Small who was called in the plaintiffs case was that she recalled wiping a liquid substance, which she described as sticky stuff, from the plaintiffs shoe and also from the floor. There was a difference in the evidence of the plaintiff and Mrs Small about the extent of the material on the floor. The trial judge preferred the evidence of Mrs Small which was to the effect that the area of the floor upon which the plaintiff fell was affected by a film about twelve inches in diameter; there was insufficient liquid to constitute a pool on the floor. Both the plaintiff and Mrs Small agreed that the position of the substance on the floor was as indicated by an arrow drawn by the plaintiff on exhibit A, photograph 2 and approximately twelve inches out from the partition between the two toilet cubicles shown in that photograph. It is much easier to follow the accounts of events when you have in your hands both the photograph I have just referred to and the constructed sketch I mentioned earlier. The trial judge found as to the substance on the floor that: "There is little doubt that the substance had found its way from the liquid soap dispenser situated over the right hand wash basin to that part of the floor where the plaintiff slipped and fell." The plaintiff described the substance as: "Creamy, I can't remember quite specifically but it seemed to have been creamish colour." Mrs Small's evidence was: "T don't recall it having a particular colour just a fairly bland innocuous substance that comes out of those dispensers, so I don't recall it having a particular colour, it may have but it had the consistency of liquid soap or that hand wash that you put in dispensers." Mr Simpson, the expert witness earlier referred to, gave evidence in the plaintiffs case. His earlier mentioned report was dated 1 September 1995. He had inspected the appellant's restaurant on 8 August 1995 together with the plaintiff. She described to him a "pearly white/light blue liquid substance" on the floor. In his report he said: "Tt was noted from the description of the contaminant found on the floor by the plaintiff following the accident that the contaminant was a pearly white (light blue) material in colour. The texture was that of a 'liquid" soap. This corresponds precisely to the soap used by the defendant and which is dispensed from the soap dispenser above the wash basis and immediately adjacent to the accident site. " No expert evidence or other evidence was called on behalf of the appellant to contradict this conclusion of Mr Simpson. The liquid soap dispenser was shown in exhibit A, photograph 1, apparently close to the right hand edge of the dual washbasins. His Honour found this placement was "highly inappropriate" given the cramped dimensions of the female toilet area. He found on the balance of probabilities that the substance upon which the plaintiff slipped was soap from the soap dispenser. He thought it relevant that the restaurant was very busy and particularly popular with children and therefore liable to have considerable traffic through the female toilet. His Honour did not make a particular finding as to the means by which the soap upon which the plaintiff slipped found its way from the soap dispenser to the floor. There was no evidence of any eye witness to the spillage. His Honour found that the position of the liquid soap dispenser was such that spillage onto the floor, by one means or another, was so likely that no system of cleaning or vigilance could accommodate the ongoing potential for accident and/or injury. URJ McDONALDS AUSTRALIA LIMITED v SALAMEH (Priestley JA) 3 Considerable evidence at the trial concerned the appellant's system of cleaning the restaurant premises, including the female toilet and the various protocols required to be observed by the appellant's employees. However, the way his Honour decided the case made it unnecessary for him to find whether the system of cleaning was adequate or inadequate. This was because he found that it was the inappropriate positioning of the liquid soap dispenser which led directly to the plaintiffs accident. In his view the appellant should have positioned the dispenser at a place central over the two hand-basins so that any spillage or dripping from the dispenser or the hands of persons using it, would most likely fall into the basins or upon the bench top around them. He said: "A simple solution would have been to move the liquid soap dispenser from its present position so that it sat over the washbasins rather than at the edge of them. It was reasonably foreseeable the liquid soap could very easily, particularly when used by children, find its way to the floor and not amount of mop and bucket patrolling, even with very short intervals, would remove that on-going risk." Otherwise the only means by which the plaintiffs accident might have been prevented were by some person being stationed in the toilet area continually monitoring the use of the dispenser or by the placement of matting, the nature and type of which was described by Mr Simpson in his report and oral evidence. In regard to contributory negligence his Honour found, given Mrs Small's description of the soap on the floor as not much more than a "film", the plaintiff could not have been expected to see it and avoid it even if she had room to manoeuvre behind Mrs Small which she did not. Indeed, Mrs Small did not see the substance on the floor before the plaintiff fell, either. In the appellant's notice of grounds of appeal, a number of matters were raised under ten grounds. Nine related to the liability found against the appellant by the trial judge and the tenth to contributory negligence, which as earlier mentioned has not been pursued today. In very detailed written submissions, the liability grounds were dealt with by the appellant's counsel broadly under the headings of breach and causation. Under breach it was argued that A) the evidence did not permit the trial judge to conclude that the substance upon which the plaintiff slipped was soap which came in one way or another from the dispenser and B) the trial judge erred in finding that the appellant was negligent in the way in which it positioned the dispenser in the toilet. As to A), my understanding is that that particular submission was not pursued today in the oral submissions and in any event I would not have thought that the appellant could possibly succeed on that argument; although in view of the way the argument was presented today, it is not necessary to point it out, I may as well say why it appears to be pretty clear and that is: the substance was identified by the plaintiff as soap; it was identified with greater precision by Mrs Small as soap of a type which would be found in a liquid soap dispenser; Mr Simpson, having obtained a description of the substance from the plaintiff, concluded that it was identical with liquid soap contained within the dispenser in question; no evidence was led by the appellant to contradict any of the foregoing evidence, nor did any of the witnesses in their cross-examination give any foothold for a contrary finding. 4 UNREPORTED JUDGMENTS As to B) the appellant raised a point as to the exact position of the film of soap on which the plaintiff fell; it was also submitted that the trial judge's understanding of the location of the dispenser was inaccurate and that his factual finding that it was likely that soap from the dispenser would get on the floor, should not be accepted. l agree with the contention advanced by the plaintiff in her written submissions that in the circumstances and in the light of the evidence of the plaintiff and Mrs Small, it was not of great importance to locate the distance of the film from the dispenser more precisely than the trial judge did. In regard to what the trial judge said about the location of the dispenser, it seems to me that there may have been some inaccuracy, although to my mind slight inaccuracy, in the trial judge's description of precisely where it was in relation to the side of the right hand washbasin. When the photographs are inspected and the dimensions given by Mr Simpson in his report borne in mind, his Honour may have been one or two or three inches out in what he said in regard to the point in the dispenser machine from which the soap actually issued. In the circumstances of the overall case, however, this does not seem to me to be a matter of any particular significance. Ground nine in the notice of appeal asserted that his Honour erred in accepting the plaintiffs version of where and how the accident occurred in that such a finding was "against the weight of evidence". I am not sure whether counsel today was maintaining that contention. The way the argument went, it really did not become necessary to deal with it. In any event, in my view, his Honour was entitled to make those findings of fact. Also under the breach heading the appellant sought to rely on the evidence concerning the appellant's system of cleaning. His Honour did not find that the system of cleaning actually in use at the restaurant was adequate or inadequate. It was unnecessary for him to make a finding on that issue in view of his way of stating what he found the relevant negligence to be. Also I think he was justified in finding that no system of inspection or mop and bucket cleaning would have been sufficient to eliminate the risk of injury such as that suffered by the plaintiff haying regard to the volume of use of the toilet and the positioning of the liquid soap dispenser. The appellant's second argument under the heading of breach overlaps with its causality argument. It was submitted that if it were correct that the plaintiff slipped on soap from the dispenser, nevertheless the position of the dispenser had nothing to do with the plaintiff's fall. However, it seems clear the judge took the view that liquid soap being liable to drip from the hands of a person as it is being used may, sometimes when combined with water, drip on the floor in the course of hand washing and that this possibility is foreseeably increased the closer the source of the liquid soap is to the side of the hand-basin. It seems to me that on the evidence before him, combined with common experience which he was entitled to take into account, these findings were fully justified. Under the causation heading complaint was made that the judge had used the idea that the position of the dispenser created an inherent danger. It was this approach on the trial judge's part which was the chief subject of the appellant's submissions today. It was said that, first, the way the case had been conducted indicated that a principal issue fought before the trial judge was the question of the adequacy of the cleaning system. From my reading of the appeal papers that seems to be a sound observation, but also from my reading of the appeal papers it seems quite clear that this was not the only basis on which the plaintiff was presenting her case below. The way in which the judge decided the case was in URJ McDONALDS AUSTRALIA LIMITED v SALAMEH (Stein JA) 5 line with the pleadings and from some of his remarks in his reasons, it seems fairly clear that arguments along the line upon which he decided the case were put to him. The central part of the submissions today was that the judge had linked his view about the inherent danger with the actual position of the dispenser in the toilet and that it was an impermissible line of reasoning to say that it was its position in the toilet which was the central foundation for the inherent danger situation. To an extent there seems to be a slight illogicality in the trial judge having placed the emphasis that he did on the dispenser having been in the particular position in which it was, but I do not think that slight illogicality, if it is indeed fair to call it that, undermines what seems to me to have been the substantial approach made by the trial judge to the question of the inherent danger. As I would read his reasons, along with his reference to the position of the dispenser, he clearly had in mind that the cramped general layout of the toilet made it likely that no matter where the dispenser was located, slippery liquid soap would get on the floor from time to time in places where foreseeably people could slip and that non-slip flooring should have been provided as the only practical way of eliminating danger. A submission was made in criticism of this approach to the effect that it is not customary nor is it industry practice to have matting on toilets such as those in this restaurant. I am not proceeding on the footing that I doubt that observation as a generality, it fits in with my own experience of establishments such as this, but if one is to refer to one's own experience, as I think counsel did to some extent today, I might add to his observation that in such establishments as this I do not think I have ever encountered one so cramped. I am assuming in saying that that there is a rough correspondence between the size of male and female toilets. In any event, it does not seem to me to follow from the fact there may be a general industry practice not to use matting in washrooms that it was not open to the Court to find that on the specific facts of this case, what had been created in this washroom was a situation where it is likely that slippery soap would get on the floor from time to time in places likely to cause injury to people using the washroom, and that the only practical method of avoiding this foreseeable danger was by providing some non-slip flooring, whether by matting or by some other means. The trial judge also mentioned the possibility spoken of in Mr Simpson's report of an employee being continually stationed in the toilet to mop up any spillages as they occurred. The trial judge obviously did not regard that as a practical remedy, so that, as the evidence stood before him the matting was left as the only practical method of dealing with what otherwise would be a potentially dangerous situation. In the written submissions it was argued that a conclusion such as that which I have just expressed was inconsistent with what this Court said in Sleiman v Franklin Food Stores (1989) AustTortR 80-266 at 68835. I do not agree. In that case the fall occurred in a shopping area where conditions were quite different from the cramped conditions in the toilet in the present case where the likelihood of soap getting on the floor was significantly greater than the analogous danger in Sleiman. My conclusion is that the appeal should be dismissed with costs. Stein JA I agree. 6 UNREPORTED JUDGMENTS Brownie AJA I also agree. It seems to me what takes this case out of the ordinary is the combination of circumstances. The position of the soap dispenser was not, by itself, negligent nor was the absence of matting, by itself, negligent. It was those matters combined with all the other circumstances to which Priestley JA has referred that constituted negligence in the circumstances of this case. I agree with the orders proposed. REWELL: Might I be heard on the basis upon which costs should be allowed? PRIESTLEY JA: Yes. REWELL: Your Honours, in this matter a offer of compromise was served by the respondent's solicitors on 23 August 1996 offering to compromise the matter on a basis more favourable than that which will now follow. PRIESTLEY JA: Significantly so, or one of those very marginally so? REWELL: I could not say significantly so. The difference or the favour that was offered was the sum of $43.62. PRIESTLEY JA: What order do you ask for? REWELL: That the appellant pay the respondent's costs of the appeal on an indemnity basis. PRIESTLEY JA: What do you say, Mr King? KING: As my learned friend has conceded, it's not a significant difference and in the absence of that the ordinary order ought to stay. PRIESTLEY JA: We've had a few of these, I think there have been decisions given on this, ''m not sure whether I remember accurately but I seem to remember that in cases where the substances of the offer is as small as you' ve just indicated, Mr Rewell, that the Court simply makes the ordinary order. Are you able to tell whether that recollection's right or wrong? REWELL: No, I'm not, your Honour, it is, of course, a matter of discretion but there is no basis in the Supreme Court Rules as such that why the amount of the compromise offered, in other words, the amount of the discount offered should be relevant. It is a result, nevertheless, more favourable to the appellant than that which has fallen from the Court which was offered. PRIESTLEY JA: You said $43? You're getting to a de minimis situation really aren't you there? REWELL: Yes. I suppose the opportunity was open to the appellant to make a similar offer in the reverse situation but that is the way the Supreme Court Rules read and there is no reason why the parties ought not have the benefit of making an offer in accordance with the rules, however minimal the compromise offered was. PRIESTLEY JA: If they'd done that and things had fallen out as they have today, then the ordinary order for costs would have been made, would it? You'd be submitting it, should have been. REWELL: If the appellant had made an offer of say $1 and had succeeded in overturning totally his Honour's judgment, the appellant would have been equally entitled to apply. PRIESTLEY JA: What I just said involved a misunderstanding on my part; if the appellant had made such an offer, it wouldn't have had any effect on what order we make in the circumstances of the appellant's appeal being dismissed. REWELL: No but it would have affected the basis upon which the appellant might have the costs of the appeal. So the opportunity was there for both sides to apply the rules as they were formulated. The respondent made an offer which complies with the rules it ought to have the benefit of it. URJ McDONALDS AUSTRALIA LIMITED v SALAMEH (Brownie AJA) 7 PRIESTLEY JA: Whatever we've done in the past, we've decided today we' ll refuse your application, Mr Rewell. We think the amount in question is not such as falls within the spirit of the rule. 5 The orders of the Court are that the appeal is dismissed with costs. Counsel for appellant: L King SC Counsel for respondent: K Rewell 10 Solicitors for appellant: Henry Davis York Solicitors for respondent: Keddies