Mercouris v Westfield Shopping Centre Management Company Pty Ltd [2000] NSWCA 79

New South Wales Court of Appeal

CITATION : Mercouris v Westfield Shopping Centre Management Company Pty Ltd [2000] NSWCA 79 FILE NUMBER(S) : CA 40670/98 HEARING DATE(S) : 29 March 2000 JUDGMENT DATE : 29 March 2000

PARTIES : Sofia Mercouris - Appellant Westfield Shopping Centre Management Company Pty Ltd - Respondent JUDGMENT OF : Sheller JA at 17; Giles JA at 1; Foster AJA at 18

LOWER COURT JURISDICTION : District Court LOWER COURT DC1054/98 FILE NUMBER(S) : LOWER COURT Kuner ADCJ JUDICIAL OFFICER :

COUNSEL : P W Neil SC & T D F Hughes - Appellant M W Robinson - Respondent SOLICITORS : Teakle Ormsby George, Parramatta McCulloch & Buggy, Sydney CATCHWORDS : NEGLIGENCE - slipping case - whether shopping centre had adequate system of cleaning and inspection (yes) - whether should have had different flooring material (no) - no question of principle. ND DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40670/98 SHELLER JA GILES JA FOSTER JA Wednesday 29 March 2000 MERCOURIS v WESTFIELD SHOPPING CENTRE MANAGEMENT COMPANY PTY LTD

JUDGMENT

1 GILES JA: This is an appeal from a judgment for the defendant in a slipping case. It seems to have been common ground that the plaintiff's injuries and economic loss would have brought damages of more than $100,000 and leave to appeal has not been mentioned. The primary issue is whether the defendant had in place an adequate system of cleaning and inspection. A secondary issue appears in the written submissions, namely, whether there should have been a different flooring material. 2 The defendant conducted Westfield Shopping Town at Parramatta, a major shopping centre with shops of different kinds on a number of levels. 3 The plaintiff went to the shopping centre on the afternoon of Sunday, 4 August 1996. She entered from a car park at an upper level and went down to level 3. On that level were Grace Bros, David Jones and K-Mart stores and about 50 shops around a central common area. The dimensions of the common area were not established with precision, although it was described as large but not as long as a football field. The flooring of the common area was matt or semi-glazed ceramic floor tiles. 4 As the plaintiff walked in the common area outside a handbag shop known as Bradmans, she slipped and fell. She did not see anything on the floor before she fell, but it was found that she slipped in a chocolaty melted icecream or thickshake substance on the floor. The floor tiles provided a firm footing when dry, but were slippery and dangerous if there was spillage from a milk based contaminant such as icecream, thickshake or milkshake. 5 The plaintiff fell at about 3.45pm. The floor had been clean and dry when the cleaner shortly to be mentioned passed Bradmans less than 10 to 15 minutes prior to her fall. From footprints in the spillage at least some other persons in the shopping centre had walked through it before the plaintiff fell. 6 The defendant had a cleaning contract calling for cleaning, which included attention to spillages, on a rotational basis. The route of one of the cleaners on duty on level 3 at the time took in the common area outside Bradmans, the area at that point being also a meeting place with the route of another cleaner. The "looping" of the cleaner's area, as it was described, took the cleaner about 10 to 15 minutes depending on the congestion of the shopping centre and other matters. Apart from other cleaning gear, he carried with him a mop and bucket to clean the floor. The cleaner also had a two-way radio, and if the security staff at the shopping centre found a spillage he would be called and would go immediately to clean it up. 7 A shop assistant in Bradmans became aware of the spillage in which the plaintiff fell a few minutes before the fall, the time being left imprecise. She did not report it to the shopping centre management because she thought it would be cleaned in the normal course by the cleaners who passed regularly. The cleaner on duty had almost completed his loop and would have been back at Bradmans, as the trial judge found, within two to five minutes. After the plaintiff's fall he received a call to clean up the spillage on which the plaintiff had slipped. 8 It is apparent that an interesting question of causation would arise if it were found that the defendant did not have in place an adequate system of cleaning and inspection. However, the trial judge found that it did. 9 There was evidence that there had been several occasions on which the cleaner had had to clean up icecream, thickshake or milkshake spillages on level 3, although it was not clear whether the spillages were in the same area as that looped by the cleaner on the day the plaintiff fell. There was a McDonald's outlet on level 3, at the other end of the level from Bradmans and not on the route of the cleaner in question, but there was no clear evidence of other takeaway food outlets on level 3 from which might come spillages on that level. No doubt foodstuffs, including icecreams, thickshakes and milkshakes, would be brought to level 3 from other levels in the shopping centre and to the part of the common area outside Bradmans, for example from the McDonald's outlet, but it was not a situation where constant contamination of the floor would be expected. 10 The trial judge concluded that the system in place was adequate to discharge the defendant's obligation to take reasonable care for the safety of visitors to the shopping centre. He rejected the submission that it was incumbent on the defendant to have in place video surveillance of the common areas of the shopping centre, and that submission was not repeated on appeal. 11 The first submission on appeal was that the trial judge should have found that the system of cleaning and inspection in place was inadequate. Whether it was adequate or inadequate was a question of fact, decided according to whether it was a reasonable response to the risk of injury to those visiting a shopping centre. 12 In my opinion it was. The system provided for regular cleaning every 10 to 15 minutes and immediate cleaning on call if a spillage was reported. Its operation is indicated by the shop assistant's belief that the spillage in which the plaintiff fell would soon be attended to in the course of the regular cleaning. The system was in operation at the time. While a spillage in the relevant area such as the spillage in which the plaintiff slipped could be foreseen, and spillages had occurred on level 3 on previous occasions, the area covered by the cleaner's route was not shown to encompass takeaway food outlets. The short time between the passages of the cleaner and the facility for calling him to a spillage was a reasonable response to the risk for the area outside Bradmans. I do not think that the first submission should be accepted. 13 The second submission, principally in the written submissions although indirectly taken up orally, was that the trial judge should have found that the defendant was negligent in not providing a floor surface that was safe when contaminated by spillages. The plaintiff relied on evidence in a report of Mr Colin Simpson, an engineer. Mr Simpson was not cross-examined, and there was no evidence called by the defendant on the same subject. 14 According to Mr Simpson, flooring materials were available whose friction properties were not reduced by contamination by liquids, being flooring materials with a grit or sand like substance within the surface so that even if contaminated they provided a secure footing. Mr Simpson expressed the view that such a surface was "the only reasonable surface for common areas such as food halls or the like." There was no evidence of cost, aesthetic considerations or other practicality in having flooring materials of this kind. The relevant area on level 3 was not in the nature of a food hall, and I do not think that the plaintiff is really assisted by this opinion. 15 Apart from what he said about a food hall or the like, Mr Simpson expressed the view that either the flooring material should be made to tolerate an expected contaminant or a constant cleaning system should be utilised so that spillages were cleaned up virtually immediately. The trial judge was not obliged to act on the evidence of Mr Simpson, especially when it trespassed into what was reasonable. But it does not matter, because in what he said in this respect Mr Simpson gave alternatives. If the defendant had in place an adequate system of cleaning and inspection, I do not think it had to provided a floor surface resistant to the effect of spillages. 16 The argument in support of the submissions was put fully, and all that could be said in support of the appeal was said. Unfortunately for the plaintiff, in my opinion the appeal should be dismissed with costs. 17 SHELLER JA: I agree. 18 FOSTER AJA I also agree. 19 SHELLER JA: The order of the Court is that the appeal be dismissed with costs. __________