Woolworths Ltd v Arnold [2005] NSWCA 21

New South Wales Court of Appeal

CITATION: Woolworths Ltd v Arnold [2005] NSWCA 21

HEARING DATE(S): 15/02/2005

JUDGMENT DATE: 25 February 2005

JUDGMENT OF: Hodgson JA at 1; Brownie AJA at 2; Hunt AJA at 3

DECISION: 1. Leave to appeal granted 2. Appeal dismissed 3. The claimant to pay the opponent's costs of the whole appeal 4. The claimant to file a formal Notice of Appeal within 28 days.

CATCHWORDS: Claim for damages following fall in defendant's supermarket on chicken fluids on floor - whether plaintiff guilty of contributory negligence - whether damages excessive - disputed diagnosis of reflex sympathetic dystrophy developed as a complication of injuries to the plaintiff's ankle in the fall - judge's criticism of defendant's medical witness as being "more into polemics than a desire to objectively reach the truth of the matter".

LEGISLATION CITED: Motor Accidents Act 1988

Jones v Dunkel (1959) 10 CLR 298 CASES CITED: Hadid v Redpath [2001] NSWCA 416

Woolworths Ltd PARTIES: Tracey Arnold

FILE NUMBER(S): CA 40193/2004

M Bozic SC Claimant COUNSEL: P Webb QC / N Canosa Opponent

Herbert Geer & Rundle Claimant SOLICITORS: Philip Lewis Opponent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 340/2001

LOWER COURT JUDICIAL OFFICER: Phelan DCJ

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40193/04

HODGSON JA BROWNIE A-JA HUNT A-JA

Friday, 25 February 2005 WOOLWORTHS LTD v ARNOLD Judgment 1 HODGSON JA: I agree with Hunt A-JA. 2 BROWNIE A-JA: I agree with Hunt A-JA. 3 HUNT A-JA: Woolworths Ltd was the defendant in the District Court in an action brought by Tracey Arnold for damages which, she claimed, resulted from her slipping on the floor of the defendant's supermarket at Shoalhaven on 10 March 2001. The defendant ultimately admitted lability for negligence, but alleged that the plaintiff was guilty of contributory negligence and continued to dispute the damages claimed. 4 The hearing took place before Judge J B Phelan over three days in August 2002 and February 2003. Judgment was not given until February 2004. The judge held that there had been no contributory negligence on the part of the plaintiff and that damages should be awarded to her in accordance with various assessments he made totalling $511,231.70, plus a sum for the plaintiff's loss of superannuation benefits which was left to the parties to agree. (I refer at pars 62-63 to the error made by the judge when he stated the total to be $517,133.) 5 The defendant, as the claimant in this Court, has sought leave to appeal on the basis that the difference between the amount awarded and the amount which should have been awarded cannot confidently be assessed as being at least $100,000. The plaintiff, as the opponent in this Court, has opposed the grant of leave to appeal (notwithstanding that she originally submitted to the orders of the Court). The application for leave has been determined concurrently with the argument on the appeal itself. 6 The plaintiff gave evidence that, in the company of her two children, she purchased some chicken at the delicatessen counter in the defendant's store and then saw some more chicken and bacon along the same counter. She was facing towards the place where these items were at the counter, she took one step forward to move up to them, and she slid on chicken fluids on the floor and fell. One of her children also slid but did not fall because she was holding the shopping trolley being pushed in front of the plaintiff and her children. 7 The chicken fluids, which were greasy, were near to the edge of the counter. The plaintiff had not seen this substance on the floor. There was marking on the substance to show where her shoe had slid through it. The substance on the floor was identified to her as oily chicken fluids by the defendant's employee who had served her and who came to her assistance. The employee also told the plaintiff that she had reported the spillage earlier about four times but no-one had yet cleaned it up. The plaintiff said that the substance was spread over a distance of 70 cm to a metre. 8 The plaintiff said that, after she fell, she noticed for the first time a single yellow hazard sign warning "Caution – wet floor". It was nowhere near the spillage. It was pushed in amongst some boxes near a display involving a motor vehicle, opposite the counter on the far side of the aisle or passage where the delicatessen counter was situated. 9 The store manager subsequently spoke to the plaintiff some time after she fell. According to her evidence, she told him that there was something slippery on the floor. He replied that someone had been called a dozen times to clean it up, and he apologised that no-one had done so. The plaintiff said that there was no mention of the hazard sign by the store manager in their conversation. In cross-examination, she agreed that a hazard sign means that something is wrong and that you should look around in that particular area. If she had seen the sign before she slipped, she said, she would have walked around it. She had denied in that conversation that there were two (or possibly three) hazard signs in the vicinity of the spillage. 10 A storeman who had since left his employment with the defendant gave evidence that such spillages on the floor occurred every time a pallet of chicken stock was brought into the store to be stacked in the freezer section in the storeroom. (The entrance to the storeroom is near the end of the delicatessen counter where the spillage in this case was located.) The chickens were packed in yellow tubs and left in pallets in the loading dock to thaw out. A build up of fluid in this process leaked out of holes in the tubs on to the floor of the store as the pallet was wheeled in. As a result, it was a common occurrence for there to be chicken fluids on the floor in the public area of the store. The pallets were normally wheeled into the store on Saturdays and Sundays. The plaintiff's accident occurred on a Saturday. 11 The store manager gave evidence that, after he arrived at the scene of the plaintiff's fall, he saw some three or four spots on the floor of drippings from chickens (each no more than a bit larger than a fifty cent piece) in an area he described as being "in front of the delicatessen counter", and that these spots would have been over the area of a pallet (which he identified as being four feet long and four feet wide). He said that there were two signs there in the immediate vicinity of the spots, one at each end of the area of the spillage, because (he said) people normally walk along the length of the cabinet. He said that the system was that the signs are put in place before the pallets are removed. It was the duty of the delicatessen staff to put the hazard signs in place. He saw on his arrival at the scene that one of the hazard signs was a matter of only a few feet away from the skid marks on the spot where the plaintiff fell. 12 The manager also gave evidence of the conversation which he had with the plaintiff. His version was very different to that of the plaintiff. He said that the plaintiff admitted to him that she had seen that the floor was wet and that either one or both hazard signs were there but that, because she wanted to get to the counter, she had proceeded to walk through the area keeping an eye on the floor to avoid spillages when she unfortunately missed the one on which she slipped. A customer inquiry report was completed by him the same day, but he did not show it to the plaintiff or ask her to sign it. 13 In cross-examination, the store manager agreed that there had been a display involving a motor vehicle very close to the delicatessen counter on that day, and he offered the suggestion that one of the hazard signs may have been behind the vehicle. (This appears to suggest that such hazard sign was a long way from the spillage, rather than in its immediate vicinity.) The manager also conceded that there may also have been another hazard sign on the edge of the motor vehicle display, but he claimed that there were two signs in the vicinity of the spillage. 14 The two descriptions of the process of moving the chickens on a pallet and being brought into the store to be parked at the end of the delicatessen counter near the entrance to the storeroom, as given by the defendant's store manager and the storeman, differed slightly in detail but the differences are immaterial for the purposes of this case. The store manager agreed that the pallets could stay parked inside the store (that is, at the end of the delicatessen counter) for up to half an hour or forty-five minutes, but he denied that the drippings from the thawing chickens he saw could have been more than the three or four spots each no more than the size of a fifty cent piece. 15 The defendant did not call as witnesses either its employees at the delicatessen counter whose duty it had been that day to put the hazard signs in place before the pallet was removed from where it had been parked, or those employees (such as the woman who had spoken to the plaintiff after the accident) who must have seen whether the hazard signs were or were not in place at the time when the plaintiff fell. 16 Liability for negligence was admitted following the store manager's evidence. There remained disputed issues in relation to contributory negligence as to (i) the amount of chicken fluid there was on the floor; (ii) whether there were any hazard signs in place in the vicinity of this particular spill at the time when the plaintiff fell; (iii) whether the plaintiff saw such a sign or signs before she took the step forward; and (iv) whether the plaintiff was guilty of contributory negligence. 17 The defendant has challenged the judge's finding of no contributory negligence on the basis that he adopted an erroneous process of reasoning. It has submitted that the judge reached that decision merely by inferring that the plaintiff had a reasonable excuse for not observing the hazard signs and then making a finding that: …in those circumstances the defendant, having the onus of proof, I am not satisfied that it has been discharged and I accept the plaintiff's evidence. 18 This challenge misstates the approach taken by the judge in relation to these issues by taking the quoted passage out of its proper context, and it ignores the process of reasoning which the judge did in fact adopt. He first determined the issues of fact relevant to contributory negligence. He said that there was a clear conflict between the plaintiff and the defendant's store manager. He expressed a favourable view of the testimony of each of them (apparently referring to their demeanour). Notwithstanding this apparent reference to the witnesses' demeanour, however, the judge did not decide the factual issues by expressing any preference for the evidence of the plaintiff over that of the defendant's manager by reference to demeanour. Instead, he proceeded to determine the disputed factual issues on the basis that the defendant's failure to call its employees who could have given direct evidence in relation to at least two of those issues entitled him more readily to accept the plaintiff's evidence on those issues as to whether the scene had changed before the manager arrived. As the defendant bore the onus of proof in relation to contributory negligence, the judge was entitled to do so: Jones v Dunkel (1959) 10 CLR 298 at 308, 312, 320-321. There was no error in the process of reasoning which the judge adopted. 19 (i) As to the amount of chicken fluid on the floor, the judge pointed out that the manager's evidence of there being only three or four drops the size of fifty cent pieces was contradicted by the evidence of the plaintiff. There was undisputed evidence from the plaintiff that, before the manager arrived, the person who had served the plaintiff and who had gone to her assistance had asked one of the boys behind the counter to wipe up the spillage, and that this had been done before the manager was called to the scene. The unexplained failure by the defendant to call any of those who were present at the time (particularly the woman who had served the plaintiff and who came to the plaintiff's aid) enabled the judge more readily to accept the plaintiff's evidence on this issue as to amount of liquid on the floor before the manager arrived on the scene. The defendant has shown no basis on which this finding of fact should be reversed.