FRANKLINS LTD v HUNTER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, SHELLER and POWELL JJA 1 May 1998, 1 May 1998 [1998] NSWCA 85 Priestley JA Mrs Hunter and her husband were shopping in the Franklins Supermarket at Macquarie Fields on 10 March 1994 when she slipped and fell. In proceedings she brought in the District Court against Franklins for damages, his Honour Judge Wall gave judgment in her favour for $16,920. Franklins appealed to this Court. Judge Wall carefully considered the evidence before him. He thought all the witnesses were honest. Differences between them were due to the defects, in human memory. On the evidence Judge Wall made the following findings: "a, That on the morning of 10" March 1994 the plaintiff while shopping in the supermarket store of the defendant slipped and fell on the floor in the circumstances outlined by her in her evidence. b. That the cause of her slipping on the floor was the presence on the floor of a fluid light green and transparent in colour and probably a cleaning fluid which had leaked from a container of cleaning fluid known by the brand name of Mr Muscles. c. That there was a spillage of this cleaner in the area of aisle 1 near where the plaintiff fell and extending into aisle 2 as outlined in the evidence of the plaintiff and her husband. d. That on the probabilities the spillage occurred at a time when a container of the cleaning fluid in question was taken by another customer from a stock shelf and placed in a trolley which was then wheeled along in the aisle - aisle 1 and aisle 2. e. That the plaintiff did not notice the spillage of fluid. on the floor before she fell. f. That Halloran and Gibson [who were Franklin employees] did not notice the spillage on the floor at the time they were in the relevant area before the plaintiff fell. That it is open on the evidence that the spillage was on the floor at the time they had walked past the cheese refrigerator and neither of them noted the spillage in that area. g. That Tolley did not notice the spillage on the floor at the time she was working near the area where the plaintiff fell before she became aware of the plaintiff falling. That it is open on the evidence that the spillage in question was on the floor a short time before the plaintiff fell and Tolley [a Franklin employee] did not notice it. h. That the defendant's store was a large and busy shopping supermarket and that on this day them were many customers in the store at or about the time the plaintiff fell. i. That spillage of fluids on the floor from containers of stock was not unusual and frequently occurred in the defendant's supermarket. There was an inherent likelihood of the floors of the Defendant's supermarket becoming slippery in consequence of spillages from time to time. 2 UNREPORTED JUDGMENTS j. That the cleaning fluid was greasy in nature and its presence on the floor was a significant hazard to shoppers because of the likelihood of causing a shopper to slip and fall. k. That the defendant knew or ought to have known of this risk. 1. That I am unable to determine the point of time the spillage occurred and hence the length of time the spillage was on the floor prior to the plaintiff slipping and falling. It is an open question whether the spillage was present on the floor minutes before or only moments before the plaintiff slipped and fell. There was no evidence that the spillage had been on the floor for any particular length of time and no reasonable inferences could be drawn, one could only speculate about the matter. m. That the cleaning system in place at the defendant's store at the relevant time did not provide for any procedure for monitoring and inspecting the floor at regular intervals during shopping hours. The system in place during shopping hours was to the effect that if and when a staff employee either noticed or had reported the presence of a spillage on the floor steps would be taken to clean up the spillage with a mop and bucket and place a warning notice at the site. There was no reasonable and effective system for inspection and cleaning of the floor at regular intervals in place in shopping hours having regard to expected hazards of spillage on the floor. n. That if the defendant had had a system of monitoring an inspection of the floors by an employee specifically assigned that task at regular intervals of not less than five minutes it is an open question whether the existence of such a system would have probably prevented the plaintiff from falling and injuring herself. o. That as a result of the fall the plaintiff suffered personal injuries of the kind set out in the Pt12 r4A particulars. p. That the plaintiff did not fail to take reasonable care for her safety in the manner in which she conducted herself in the defendant's store and her failure to notice the spillage on the floor at or about the time she slipped and fell did not cause or contribute to the injuries suffered by her." On these findings the trial judge first held the plaintiff not to have been guilty of contributory negligence as Franklins had charged. Then he referred to a number of the authorities dealing with "slipping" cases. He relied in particular on an analysis of the relevant rules made by Higgins J in Kelly v Lend Lease Retail Pty Ltd (1993) 113 FLR 21. Higgins J had identified three categories of circumstances in which plaintiffs had established liability in slipping cases. The second of these was: "Tf it appears that no reasonable system for regular monitoring inspection and cleaning of the floor was in place having regard to expected hazards, it may be inferred that it is probable that if such a system had been in place then the fall would have been avoided." (at 28) One possible source of ambiguity in e way in which Higgins J described this category lies in the word "may" which appears in it. That "may" is not the sort of "may" that means "must" or "shall". It simply means there "it will be open to a court if in its view on the facts it is appropriate to do so to draw the inference there referred to". Judge Wall took the view that the case before him fell into the above category. He then said: URJ FRANKLINS LTD v HUNTER (Priestley JA) 3 "Accordingly...I infer negligence on the part of the defendant ie breach of the duty of care owed by the defendant to the plaintiff and that the negligence caused or contributed to the plaintiff's fall. The fall could have been avoided by the exercise of reasonable care." Judge Wall's use of the word "accordingly" could give rise to the thought that his Honour had interpreted the word "may" in the passage cited above from Higgins J as meaning "shall". I would not have read that sentence that way in any event but I mention the point because it could conceivably be read that way. However I think it is made quite plain by the second and final sentence in the quoted passage that Judge Wall had understood the word "may" in the way in which I have indicated I think is correct, that he took the view that the facts in the case before him fell into the second category, and on consideration of those particular facts in the circumstances of the case, it was right to draw the inference that he did leading to his conclusion that the fall could have been avoided by the exercise of reasonable care. Before us the submissions for the appellant were directed to his Honour's findings of fact. As to the law, some discussion was directed to Kocis v S E Dickens Pty Ltd (1996) ATR 81-382 p63292. This was a decision of the Victorian Court of Appeal in which the current state of the law concerning cases of this kind was thoroughly examined and stated, most particularly in the reasons of Phillips JA with whom Ormiston JA agreed generally as he did also with the reasons of the other member of the bench, Hayne JA of the Court of Appeal (as he then was). The reasons of Phillips JA support inter alia the validity of Higgins J's second category of liability. Before us counsel for the appellant accepted that the trial judge had been entitled to act on the footing that this was a legally valid category. The question of the correctness of the view thus became something this Court did not need to consider in the present case but I think I should indicate that in my opinion counsels concession was correctly made. The issue in the appeal thus became whether the trial judge had made any appellable mistakes in his fact finding. A further possible issue is whether the trial judge's factual findings, if they remained undisturbed, justified the conclusion that the case fell within the category the judge relied on. However I do not understand this issue to have been the subject of argument by the appellant's counsel no doubt because he told the view as I do that the findings did make the category appropriate for consideration. The factual findings of the trial judge which were criticised by the appellant's counsel were f., h., 1, m. and n. I will deal with them all, although some quite briefly because the real argument centred about only one of them. As to f. [need say no more than that the evidence fully justifies what the judge said in the first sentence of this two sentence finding. Counsel was concerned about the second sentence because of the possibility that particular inferences might be drawn from it by this Court on appeal. However I do not think his concern was justified. The sentence is one which does not harm the appellant's position. It simply makes clear as the judge did at various other points that he was deciding the case on the footing that there was no material before him which enables him to draw any legitimate inference about when it was that the spillage occurred. The criticism directed at finding h. was a minor one. It merely made the point that the evidence showed that there were about twenty customers in the store at the time. This is not a material matter. 4 UNREPORTED JUDGMENTS Finding 1. was the subject of submission for the same reason as finding f. and for the same reason was not a finding doing any harm to the appellant's position. It was the judge again making clear that he was considering the case on the basis that the timing of the spillage could not be the subject of any firm finding of fact. Finding m. was the one about which the main argument centred. In the course of counsel's submissions, the Court looked at the evidence upon which he relied for his submission that the first sentence of the finding was wrong. The evidence in my opinion upon full examination shows that the fact as states in that first sentence is quite correct. In the second sentence I think the trial judge had in mind what had been said by Zelling J in Drakos v Woolworths (SA) Ltd (1991) 56 SASR 431, a case which appears to have had many factual similarities with the present. Zelling J had said of the supermarket in that case: "Here you have a busy supermarket. It has a high incidence of slippery substances on the floor. It is only cleaned professionally at the beginning of each day. Detection of spillages occurring during the day is left to the observation and action of the supervisor and the staff As the judge observed everybody's responsibility was nobody's responsibility." (at 453). In the present case what Zelling J referred to as "professional cleaning" took place less frequently than in the case before him. Contract cleaners cleaned Franklins premises three times a week on Mondays, Tuesdays and Fridays. The accident in the present case took place on a Thursday. The final sentence in finding m. notwithstanding the efforts of counsel to persuade us to the contrary seems to me to have been fully justified. In saying that there was no reasonable and effective system for inspection and cleaning of the floor, the trial judge stressed that what he was talking about was such a system at regular intervals in place in shopping hours having regard to expected hazards and the evidence before him showed that the hazards of spillage could occur at any time during the hours when the supermarket was open. In my view the criticism of finding m. fails. The last criticism was made of finding n. but this finding falls in the same category as f. and k. in that it was another one in which the judge was making clear the basis upon which he was reaching his ultimate legal conclusions. In summary then the position is that the trial judge found that Franklins did not have in place in its supermarket a system of inspection for and removal of spillage which was reasonably safe in the circumstances of that supermarket and further found that it was more likely than not that had such a system been in place, Mrs Hunter would not have slipped and suffered her injuries. The legal standard he used in deciding the case was not in question in the appeal. The evidence justified the trial judge in making factual findings meeting that left standard The appellant's criticism of the trial judge's fact finding has been unsuccessful. In my opinion the appeal should be dismissed with costs. Sheller JA I agree. Powell JA Although I am inclined to think that if I had been the trial judge I might have reached a conclusion contrary to that reached by Wall J, that fact falls far short of establishing that his Honour fell into appellable error. On the contrary as Mr Justice Priestley has demonstrated the material which was before his Honour rendered it open to his Honour to conclude that the appellant had failed to take all reasonable steps to prevent the occurrence of accidents such as URJ FRANKLINS LTD v HUNTER (Priestley JA) 5 occurred in this case and to infer from that fact that if it had taken such steps the respondent more probably than not would not have sustained the injury which she did. I agree with the orders that have been proposed by Mr Justice Priestley. Priestley JA The orders of the Court therefore are the appeal is dismissed with costs. Appeal dismissed with costs Counsel for the appellant: J Morahan Solicitors for the appellant: Glover & Glover Counsel for the respondent: G J Graham Solicitors for the respondent: Firths Solicitors