New South Wales Court of Appeal CITATION : ROBINSON v BAPTIST CHURCHES [1999] NSWCA 226 FILE NUMBER(S) : CA 40281/98 HEARING DATE(S) : 10 March 1999 JUDGMENT DATE : 19 August 1999 PARTIES : Irene Robinson v Baptist Churches of New South Wales Property Trust JUDGMENT OF : Meagher JA at 1; Handley JA at 2; Sheppard AJA at 24 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 187/97 LOWER COURT JUDICIAL OFFICER : Blanch CJ COUNSEL : R R Bartlett SC (Appellant) D F Rofe QC/B Hull (Respondent) SOLICITORS : Stanger & Clarke (Appellant) Malcolm Johns & Co (Respondent) CATCHWORDS : NEGLIGENCE - personal injury - elderly woman falling in church hall - peas spilled on floor - whether inference available as to cause of spillage - whether system for cleaning up ought to have been in place ACTS CITED : The Baptist Churches of NSW Property Trust Act 1984 Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 CASES CITED: Hampton Court Ltd v Crooks (1957) 97 CLR 367 Nicol v Allyacht Spas Pty Ltd (1987) 163 CLR 611 DECISION : Appeal allowed with costs. Orders made. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40281/98 DC 187/97 MEAGHER JA HANDLEY JA SHEPPARD AJA 19 August 1999 IRENE ROBINSON v BAPTIST CHURCHES OF NEW SOUTH WALES PROPERTY TRUST NEGLIGENCE - personal injury - elderly woman falling in church hall - peas spilled on floor - whether inference available as to cause of spillage - whether system for cleaning up ought to have been in place The appellant had sued the respondents as the owners of a church hall. She had slipped on some peas spilled on the floor. The trial Judge was unable to draw an inference as to the cause of the spillage and rejected an allegation that the respondents were negligent in failing to have a system in place for cleaning up food spillages. HELD : Allowing the appeal: (1) The facts enabled an inference to be drawn as to the cause of the spillage. On the balance of probabilities the peas were spilt as a result of the negligence of the helpers who were agents of the organisers of the lunch. (2) The respondent was not negligent in failing to establish a system for cleaning up food spillages. ORDERS (1) Appeal allowed with costs, other than the costs of including in the appeal book material relevant only to the issue of damages; (2) Judgment of the District Court set aside; (3) In lieu thereof order that there be judgment for the plaintiff for damages to be assessed and an order that the defendant pay the costs of the first trial; (4) Remit the proceedings to the District Court for a new trial limited to damages, the costs of the new trial to abide the order of the Judge presiding at that trial; (5) The respondent to have a certificate under the Suitors Fund Act if qualified. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40281/98 DC 187/97 MEAGHER JA HANDLEY JA SHEPPARD AJA 19 August 1999 IRENE ROBINSON v BAPTIST CHURCHES OF NEW SOUTH WALES PROPERTY TRUST JUDGMENT 1 MEAGHER JA: I agree with Handley JA. 2 HANDLEY JA: Mrs Robinson sued the Trust in the District Court to recover damages for injuries she sustained when she fell in the hall at the Wallsend Baptist Church on 14 November 1995 about 12.30. The action was tried by Blanch CJ who entered judgment for the defendant. The Seniors Committee of the Parish had organised a function which involved the provision of lunch, followed by a devotional talk from the minister. The Committee comprised five persons, the plaintiff then aged 72 being the Vice-President. In the absence of the President that day she was in charge, and "had to supervise", open the meeting, make announcements, and lead the singing (black AB 52). 3 After the meal had finished and was cleared away, the plaintiff got up from her table, which was against the wall near the kitchen, and moved around the other tables speaking to those present. She then went to the stage and made some announcements. On her return to the floor of the hall she slipped and fell causing significant injuries. 4 The floor, which had a painted concrete surface, was slippery. The evidence established that the plaintiff fell about 1 metre from the end of one of the tables. She, and a Mr Serjeant, noticed 5 or 6 squashed cooked peas on her shoe and on the floor near where she fell. The Judge found that the peas added to the slipperiness of the floor and caused her fall. 5 The defendant was sued as the owner and occupier which had the care, control and management of the hall. These allegations in the statement of claim were expressly admitted in the statement of defence. The statement of claim also charged the defendant, by its servants and agents, with negligence. These allegations, apart from the allegation of ownership, were pure fiction. The defendant was established by The Baptist Churches of NSW Property Trust Act 1984. It was doubtless the owner of the hall, but the care, control and management of the real estate of the Parish were vested in the Minister and the Parish Committee. The Trust had nothing to do with the function being held that day, and the Minister, the members of the Seniors Committee, and others in charge or responsible for particular tasks were not its servants or agents. 6 However Mr Rofe QC for the respondent informed the Court that he was instructed not to take the point that the wrong defendant had been sued, and that the Trust was not liable for any breach of the duty of care of the occupier or occupiers. The Wallsend Parish was an unincorporated voluntary association, and but for the conventional basis on which the trial and the appeal have been conducted, the persons responsible for the breach of any duty of care would have been the Seniors Committee, as the organisers, and the Parish Committee and the Minister as the persons with the care, control and management of the hall. The Court however should accept the conventional basis on which the proceedings have been conducted. 7 There was evidence that the hall had been cleaned earlier that day prior to the function, and that peas had been on the menu for the lunch. The Judge considered that there were three explanations for the presence of the peas on the floor, that they were spilled by someone while serving the meals, that they were spilled in the course of clearing away, or that they were spilled by one or more of the guests seated at the nearby table. The system for clearing away after the meal was that helpers wheeled a trolley from table to table collecting the dirty plates. Any remaining food was scraped into a plastic ice cream container and the dirty plates and cutlery were stacked on the trolley. At the end of this process the trolley was wheeled back into the kitchen. 8 The first two explanations would have involved some negligence on the part of the person waiting on the tables or clearing away after the meal. Those persons would have been agents of the organisers and, as a result of the convention, of the Trust. On the other hand, spillage by one or more of the guests would not involve negligence by agents of the organisers. 9 The plaintiff also alleged negligence by the organisers in failing to have in place a system for cleaning up food spillages from the trafficable areas of the hall. 10 The Judge felt unable to draw any inference as to the cause of the spillage, holding that this would be mere conjecture. He also rejected the negligent system claim on the ground that there was no reasonable course of action which could be expected of the defendant "bearing in mind the nature of the organisation of the committee which was running the function". 11 In my judgment the facts do enable an inference as to the cause of the spillage to be drawn on the balance of probabilities. The known slipperiness of the floor, the age of those present and their vulnerability, and the sense of responsibility of those actively involved, are also relevant. The persons serving the meals would be trying to keep the plates level, and could be expected to become aware if they tilted and food slipped off. The guests could also be expected to be paying attention to the arrival of their meals and to notice any spillage. 12 On the other hand clearing away involved tilting the plates and scraping food scraps into the plastic container. Any peas left on the plate would be highly mobile and could miss the container and spill onto the floor. The guests would not be paying attention, and if the helper was distracted by conversation with a guest or another helper, he or she might fail to notice the spillage. The location of a group of peas about a metre from the end of the table places them close to the position of a trolley being used for clearing the table (91-2). 13 Any food spilled by the guests could be expected to fall onto their laps or the floor close to or under the table where they were sitting. Any food on their laps could be expected to fall in the same general area when the guests got up from the table and would be scattered in the process. The guests were seated along both sides of the tables, but not at the end projecting into the body of the hall. The presence of peas in a group near the end of a table in a position at right angles to the nearest guests makes the inference that they were spilled by those guests during the meal, or when getting up from the table, quite improbable. 14 In my judgment therefore the Court can infer that more probably than not the peas were spilled during clearing away as a result of negligence by one of the helpers who was an agent of the organisers. On this basis the appellant is entitled to succeed against the Trust. 15 Functions such as this were organised "weekly" (78) and the plaintiff had been attending them for 8 years by the time of the trial. She had not seen anyone else fall but had heard that "some had fallen" (ibid). There was no other evidence of a previous fall, and there was no evidence that the falls the plaintiff had heard about were due to the presence of spilled food. If anybody saw a spillage of food they would stop and pick it up (ibid). The whole of the hall was cleaned after the meeting had finished and there was "quite often" food spilt on the floor, mainly under the tables. 16 The frequency of these meetings, and the length of time the plaintiff had been attending them before the accident, and afterwards before the trial, indicates that the presence of undetected spilt food on the floor of the hall in areas subject to traffic was a rarity. There were 65-70 present on this occasion, and it was not suggested that this was unusual. The members volunteered to work on a roster to cook, serve, and clean up. The members of the committee, including the plaintiff, came from the group and attended the functions. It may be inferred that the committee and the volunteers were responsible people, conscious of the risks of a fall, and of the need for care. 17 There was no suggestion that it had ever occurred to the plaintiff, or to the other committee members, before this accident that a different system was needed to reduce or eliminate the risk of accidents due to the presence of undetected spilt food. Moreover there was no suggestion that a different system had been introduced after this accident. 18 In Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at 252 McHugh JA referred to passages from the judgments of Dixon CJ and the other members of the High Court in Hampton Court Ltd v Crooks (1957) 97 CLR 367. Dixon CJ said at 371 that: "… proof was necessary of some additional circumstances tending, for example, to raise a probability of [the greasy substance] having been there long enough to be seen if reasonable supervision were practised, or to show that so many people were likely to use the lavatory in the preceding hour that closer control was called for, or that the dropping of some such substance was common or inherently likely to occur". 19 The passage from the joint judgment of the other members of the Court at 376 stated that the occupier: "… was under no absolute duty to ensure the safety of persons using the room; its duty was discharged by the exercise of reasonable care and it is impossible to see why the performance of this duty should oblige it to provide a constant guard against mere chance events which could not be foreseen". 20 In that case the occupier was not responsible for the spillage, but only for its removal. In the present case the responsibility of the organisers covered both the initial spillage, which I have found occurred as a result of negligence during clearing away, and the failure to detect and remove the peas before the accident. However the evidence did not establish that "the dropping of some such substance was common or inherently likely to occur" at this part of the hall, or that the presence of these peas, undetected, was more than "a mere chance event which could not be foreseen". In my judgment therefore the organisers, in failing to establish and maintain a system for the trafficable parts of the hall to be inspected and cleaned at the end of the meals before the guests started to move about, were not negligent and the appellant is not entitled to succeed against the Trust on this basis. 21 The Trust contended that the appellant had been guilty of contributory negligence and sought an apportionment of responsibility. There was no contributory negligence on the part of the plaintiff in failing to notice the peas on the floor. In the light of my conclusions it is not necessary to consider the consequences for contributory negligence of a finding that the committee, of which the plaintiff was a member, had been guilty of negligence. Compare Nicol v Allyacht Spas Pty Ltd (1987) 163 CLR 611. 22 The appeal book included medical reports and other evidence relevant only to the issue of damages. The Judge did not assess the plaintiff's damages or make the findings which would have been necessary to enable this Court to do so. In these circumstances an order for a new trial limited to damages was inevitable if the appeal on liability succeeded and the cost of including material relevant only to damages has been wasted. 23 The following orders should be made: (1) Appeal allowed with costs, other than the costs of including in the appeal book material relevant only to the issue of damages; (2) Judgment of the District Court set aside; (3) In lieu thereof order that there be judgment for the plaintiff for damages to be assessed and an order that the defendant pay the costs of the first trial; (4) Remit the proceedings to the District Court for a new trial limited to damages, the costs of the new trial to abide the order of the Judge presiding at that trial; (5) The respondent to have a certificate under the Suitors Fund Act if qualified. 24 SHEPPARD AJA: In this matter I have had the advantage of reading the judgment to be delivered by Handley JA. I am in agreement with his reasons and conclusions and with the orders which he proposes. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.