New South Wales Court of Appeal CITATION : FRANKLINS LIMITED v. BROWN [2000] NSWCA 177 FILE NUMBER(S) : CA CA 40390/99 HEARING DATE(S) : 11/07/00 JUDGMENT DATE : 11 July 2000 PARTIES : FRANKLINS LIMITED (Appellant) BETTY BROWN (Respondent) JUDGMENT OF : Powell JA at 1; Heydon JA at 12; Brownie AJA at 13 LOWER COURT JURISDICTION : District Court LOWER COURT DC 206/97 (Newcastle) FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER : COUNSEL : R.S. Sheldon (Applicant) C.R.R. Hoeben SC/P. Biggins (Respondent) SOLICITORS : Glover & Glover (Appellant) Whitelaw McDonald (Kotara) (Respondent) CATCHWORDS : NEGLIGENCE - Dangerous premises - Injury to entrant - Customer slipping on lettuce leaf on floor of supermarket - Whether breach of duty of care - ND DECISION : Appeal dismissed IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40390/99 DC 206/97 (Newcastle) POWELL JA HEYDON JA BROWNIE AJA 12 JULY 2000 FRANKLINS LIMITED v. BROWN JUDGMENT 1 POWELL JA: This is an appeal by an unsuccessful defendant from a judgment delivered and orders made by Delaney DCJ when sitting in the District Court at Newcastle on 7 May 1999. 2 In the proceedings with which his Honour was concerned to deal the plaintiff sought to recover damages in respect of injuries which she had sustained when she fell in the "Big Fresh" supermarket which was operated by the defendant at Glendale, which I understand to be either a suburb of, or in a location close to, Newcastle. 3 A "Big Fresh" supermarket is a special type of supermarket which, in contrast to what used once to be the style of trading of the defendant, now sells a wide variety of produce, meat and other items of foodstuffs. 4 The accident in which the plaintiff sustained her injuries occurred as she was passing through the fresh fruit and vegetable produce area which was towards the front of the store. As she moved along one of the aisles the plaintiff slipped and fell and injured herself. It is clear, and is not disputed, that what caused the plaintiff's fall was her stepping on a loose lettuce leaf which was on the vinyl floor. 5 The case which the plaintiff sought to make at trial was that the defendant had failed to take reasonable care to prevent injuries to those patronising its store being caused by loose materials that were on the floor. A number of particulars of ways in which the plaintiff sought to assert that the defendant had failed to carry out its duty in that respect were put forward, but the principal one was that the defendant had failed to institute and maintain a system of cleaning the floors to prevent injuries being caused in the way the plaintiff had sustained hers. 6 The defendant's case was framed in two ways: either, that there had been no shortcoming on its part in the system of cleaning which it had set up: or that, even if there were such a shortcoming it was not the failure of the defendant in that respect, which caused the injury that was sustained. 7 To support the case which it sought to advance the defendant called a Miss Barrett who was one of the shop assistants working in the area in question. The burden of her evidence, as I understand it, was twofold. First, it seemed to have been suggested that Miss Barrett had seen the area of the floor on which the plaintiff had fallen but a very short time prior to the accident occurring, and that at that time the floor was clean, and in particular, did not have on it any such material such as the lettuce leaf on which the plaintiff had fallen. The second part of Miss Barrett's evidence was evidence directed to showing, or, at least, leading the Court to infer, that, just before the accident occurred, a patron of the store other than the plaintiff had passed in front of Miss Barrett, taken a lettuce, or lettuce leaves, from a display counter in front of her, put it on top of the shopping trolley which she was pushing and then passed behind her towards the area where the plaintiff was later found to have fallen. 8 As his Honour pointed out, the clear object of that evidence was to raise the suggestion that what happened was that the lady in question had dropped a lettuce leaf in the area where the plaintiff had fallen and at a time when there would have been no opportunity for anyone on the part of the defendant to have retrieved it from the floor before the accident occurred. 9 It is quite clear, as I read the evidence, that, although the defendant had in place a system for regularly cleaning the floors in the area of the fruit and vegetable produce area of the store, the system did not cover a period of half an hour between two and two-thirty in the afternoon, in which period the plaintiff had fallen. 10 The defendant's evidence sought to suggest that during that period shop assistants working in that part of the store were required to keep their eyes open for materials which had fallen on the floor, and if such material was seen to be on the floor, either to have removed it themselves or to have it removed by others. This system, in my view, was clearly inadequate and his Honour was perfectly entitled to say that that system was not good enough. 11 When he came to deal with the evidence of Miss Barrett, his Honour recited in quite an extended way, the evidence which she had given. The evidence, when analysed as it has been analysed today by Mr Hoeben, who appears with Mr Biggins for the plaintiff respondent was, if I may say so, vague in the extreme and extraordinarily general. It was open to his Honour, so it seems to me, not to accept the burden of the first part of Miss Barrett's evidence as to the observations which she claimed to have made at the time as to the cleanliness of the floor at the time. If in fact his Honour found, as he did, that Miss Barrett's ability to see the aisles was obstructed, then it was open to him then to hold, as he did, that it had not been demonstrated that immediately prior to the accident the floor in question was clean and free of loose material such as the lettuce leaf which caused the plaintiff's accident. This in reality disposes of the whole case in my view, and I would propose that the appeal be dismissed with costs. 12 HEYDON JA: I agree 13 BROWNIE AJA: I generally agree. I do not think that the evidence of Miss Barrett is sufficiently clear and cogent to warrant interference by this Court. 14 POWELL JA: The order of the Court thus is the appeal is dismissed with costs. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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