Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ryland v QBE Insurance (Australia) Ltd [2013] NSWCA 120 Hearing dates: 3 May 2013 Decision date: 03 May 2013 Before: Basten JA at [1], [29]; Meagher JA at [24]; Gleeson JA at [28] Decision: (1) Dismiss the application for leave to appeal. (2) Order that the applicant pay the respondent's costs. (3) Direct the respondent to file any notice of motion it wishes to make with respect to costs by 5pm today. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - civil - whether fairness of trial compromised by intervention of trial judge in questioning of witnesses - whether questioning by trial judge excessive - where trial judge did not suggest any answers to witness - where trial judge clarifying points of uncertainty TORTS - negligence - breach - whether occupier of retail store breached duty of care - failure to implement formal system of inspection and cleaning of spills - where informal detection system in place - where store selling clothing - where store took steps to prevent entry of food and beverage into store - where no amenities in store Legislation Cited: Civil Liability Act 2002 (NSW), s 5B Supreme Court Act 1970 (NSW), s 101 Category: Principal judgment Parties: Pamela Ryland (Applicant) QBE Insurance (Australia) Ltd (Respondent) Representation: Counsel: M N Thompson (Applicant) M T McCulloch SC/T A Berberian (Respondent) Solicitors: Gerard Malouf & Partners (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2012/192868 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-05-28 00:00:00 Before: Neilson DCJ File Number(s): 2010/424935 Judgment 1BASTEN JA: On 31 October 2009, Ms Ryland ("the applicant") visited a shop occupied by G Trad Pty Ltd in a shopping mall known as "Direct Factory Outlets" in Homebush. The store, known as Table Eight, sold both men's and women's clothing. 2The floor of the store was partly carpeted and partly surfaced with mock wood tile vinyl. Whilst walking down one of the aisles, which had a vinyl cover, the applicant stepped in a puddle of what was described as a sweet smelling "milky substance about the size of a saucer": Tcpt, 22/05/12, p 10(3). She said she had arrived at the store with her husband at about 5pm: Tcpt, pp 11-12. She fell on her left elbow and hand and suffered a fracture through the left olecranon on the elbow, either aggravated or exacerbated a pre-existing fracture of the same bone in the right elbow and suffered some soft tissue injury to her left knee: Judgment p 35. 3She brought proceedings for damages in the District Court. Since the date of her visit, the store has gone into liquidation, as a result of which QBE Insurance (Australia) Ltd ("the respondent"), was joined as the defendant in the proceedings in the District Court. 4On 28 May 2012, the trial judge, Neilson DCJ, gave judgment for the defendant, finding there was no breach of duty on the part of the occupier of the premises. Despite that finding and quite properly, his Honour considered whether, had he found negligence, he would have attributed part of the responsibility to the plaintiff and the amount in which he would have assessed damages. With respect to the former issue there was a finding of 30% contributory negligence: Judgment, p 35. With respect to damages and without reduction for contributory negligence he assessed an amount a little over $81,000. (As is usual, though quite inappropriate, the amount was assessed to the nearest cent.) 5The applicant has sought leave to appeal. In these simple circumstances the draft notice of appeal nevertheless included 24 grounds. Of these, seven grounds related solely to the assessment of damages and one related to the assessment of contributory negligence, although no particular error was identified in the latter respect. Despite these challenges, the applicant did not seek to contend that the amount in dispute was in excess of $100,000 so as to obviate the need for leave to appeal, as required by s 101(2)(r) of the Supreme Court Act 1970 (NSW). 6Although the application for leave to appeal and the appeal had been listed for concurrent hearing, the respondent contended that the matter should properly be dealt with by refusing leave. In my view the Court should deal with the matter on that basis and dismiss the application. Content and breach of duty 7The trial judge noted that there was no dispute that the occupier of the shop owed a duty to take reasonable care for the safety of persons going into its store: Judgment, p 30. He also found that spillages were foreseeable while holding that "the frequency of spillages in this store and stores of this nature has not been established in the evidence, nor is there any direct evidence of what a reasonable system would be for the inspection and cleaning of the premises": Judgment, p 31. 8The trial judge accepted that there was no formal system of inspection for and removal of spillages. However, he held that there was no need for a "formal" cleaning system and that staff, including in particular the assistant manager, Ms Dennaoui, were on the lookout for spillages and that Ms Dennaoui passed up and down the main aisle of the shop, where the slip occurred "at least ten times in an hour": Tcpt, 23/05/12, p 140(14) and Judgment, p 16. He also found that Ms Dennaoui had been in the area where the accident occurred about ten minutes earlier: Tcpt, p 142(33)-(43) and Judgment, p 16. He stated at p 17: "I also accept that Ms Dennaoui was a diligent employee and that had she noticed any spillage she would have cleaned it up. I therefore can infer that this spillage occurred only in the period of no more than ten minutes between when Ms Dennaoui left the area in question to the time of the plaintiff's fall. There are other items of evidence, which point in the same direction. There is no evidence, for example, of this spill having been earlier reported to anybody at Table Eight or of there having been any earlier fall. Indeed, there is no evidence of there having been any earlier spillage or any earlier fall at anytime between 31 October 2010 and when Ms Dennaoui started working there in 2003." 9The applicant challenged the finding that Ms Dennaoui had been in the area where the spillage had occurred no more than ten minutes earlier on the basis that the evidence did not expressly support it. The inference was, however, readily available and the challenge was without substance. 10The trial judge was also satisfied that the area would have been traversed regularly by another shop assistant, Ms Sarah Slattery: Judgment, p 19. That finding was challenged on the basis that Ms Slattery was not called. There was evidence before the trial judge as to Ms Slattery's duties and where those duties might be performed. It was open to the judge to draw an inference and make a finding of the kind that he did. The challenge is without merit. 11In the course of a discursive judgment, the trial judge referred to a number of cases in which similar assessments have been made of the adequacy of cleaning systems in shops where there were spillages and slips. However the trial judge placed emphasis on the fact that this was a store selling clothes to members of the public. He noted that there was a notice on the front of the shop instructing customers not to enter with food or drink. He stated at p 31: "This store did not contain any amenities, that is any lavatories or washrooms. This store did not sell food or beverages. This store did not offer food or beverages to those who entered it. This store sought to prevent persons carrying food and beverages entering into it. However no system is fool proof, and members of the public often ignore requests made of them to comply with rules." 12In those circumstances he considered whether the failure to have a "system" of inspection for, warning of and cleaning up spillages constituted negligence. He stated at p 32-33: "Any slip and fall can be prevented by implementing a system of inspection and cleaning that removes contamination as soon as it occurs. However, the cost of such a system might be intolerable. ... The occupier of premises must take reasonable care. ... As I have pointed out, even then, in shopping malls some areas are more hazardous than others, for example, food courts and require an even more intensive supervision and cleaning regime than other parts of a mall. However there is no evidence before me as to what system of inspection and cleaning this occupier ought to have adopted. For all I know it is the same system of inspection and cleaning adopted by every other retailer of men's and women's clothing. The system may have been informal, but there is no evidence that this informal system of inspection and cleaning had failed in the past. ...[A]ll the evidence tells me is that some 10 minutes previously, a member of staff, Ms Dennaoui, had been in the area and detected no spillage when part of her traversing the area was to inspect for spillages, amongst other duties." 13The applicant complained that the trial judge did not address the content of the duty, or breach, in accordance with the principles stated in s 5B of the Civil Liability Act 2002 (NSW). However, the passages I have referred to demonstrate that each of the relevant factors was addressed, although in some cases the trial judge noted that there was a lack of evidence upon which to make a finding. The criticism is without substance. 14The applicant contended that Ms Dennaoui's evidence as to how often she traversed the length of the shop was imprecise and did not warrant the finding made by the primary judge. It is true that she described the timing of her trips up and down the store in different terms in different passages in the evidence. However, the variations in timing were not great and the conclusion reached by the trial judge was the appropriate one. 15The applicant's written submissions stated in very broad terms (par 18): "It would have been adequate discharge of the respondent's duty to persons such as the applicant if an inspection of those areas of the store traversed by the public was periodically undertaken and with sufficient frequency to promptly detect casual spills." 16The trial judge in fact adopted a more precise standard, but broadly accepted that approach, although there is a question as to what was meant by the word "promptly". The approach adopted was not erroneous. An assumption which appeared to underlie the applicant's submissions was that the inadequacy of the system was demonstrated by the accident. In a sense that may be so; but the legal duty was to exercise reasonable care, not to guarantee safety. 17Subject to one further matter, the challenge to the findings with respect to the content of the duty and breach is without substance and should be rejected. 18The additional matter which could affect that conclusion is the assertion that the trial judge compromised the fairness of the trial by excessive intervention in questioning of witnesses. In support of that submission, the applicant relied upon an analysis of a number of questions asked in respect of each witness, separately identified with respect to examination, cross-examination and re-examination and the percentage of total questions asked. 19This challenge fails for a number of reasons. First, the number of questions as such is of little, if any, relevance. Many of the questions of Ms Dennaoui for example were directed to clarifying aspects of the documentary evidence, including locating where particular things or events were to be found on plans or photographs and ensuring that photographs were marked by the witness in a manner which revealed their location. 20Secondly, to the extent that it was suggested that the interventions of the judge may have affected the evidence, the examples given were without substance. The strongest example of the kind of intervention complained of occurred in the cross-examination of Ms Dennaoui, the first question being asked by counsel for the applicant, at p 154(25): "Q. It's not possible is it to reach Table Eight from the main entrance without going past one of those two takeaway food areas, is it? A. You'd have to pass them, yes. HIS HONOUR: Well I can answer that question looking at the map, the answer to that question is yes. THOMPSON: Well the witness says no your Honour." 21Whether the trial judge was disagreeing with the witness is unclear. More importantly, the intervention did not suggest an answer, the answer had already been given. The trial judge then asked a number of further questions seeking to relate the evidence to the plan before him. The end note of the examination by the trial judge was to ask the question, "So you don't have to pass through a food court area to get to Table Eight," to which the answer was, "No." That of course was a different question from that which counsel had asked at the outset of the interchange, about going past one of the takeaway food areas. The answer given by Ms Dennaoui in respect of each question was correct. The intervention demonstrated no unfairness in respect of the cross-examination. 22A reading of the whole transcript demonstrates that the trial judge was closely attentive to the evidence being given; that he wished to understand the oral testimony by reference to the documentary material; that he was anxious to clarify points of uncertainty as the evidence unfolded and was alert to the need to focus on the real issues in dispute. In these circumstances, an attack based solely on the number of questions asked of the witnesses by the trial judge was misconceived. An objective reading of the transcript reveals no inappropriate level of intervention and, in particular, no unfairness to the conduct of the trial on behalf of the applicant. The challenge has no prospects of success. 23No basis having been identified on which the applicant would have reasonable prospects of success in challenging the finding with respect to the content of the duty of care and breach of that duty, the application should be dismissed. The applicant must pay the respondent's costs. 24MEAGHER JA: I agree for the reasons given by Basten JA that leave to appeal should be refused. There is one further consideration which in my view leads to that conclusion. The primary judge found that Ms Dennaoui was in the area in which the accident occurred about ten minutes earlier, that she would have noticed any spillage had it been present at that time and that it followed that the spillage must have occurred not more than ten minutes before the applicant's fall. 25Unless those findings were overturned on appeal, the applicant could only have established factual causation in accordance with s 5D(1)(a) of the Civil Liability Act if the occupier's duty of care required that the pathway area be inspected at regular intervals of less than ten minutes. The evidence did not justify such a conclusion as to the content of the duty of care and the applicant does not contend for such a system of inspection. In my view Ms Dennaoui's evidence justified the primary judge's finding. The critical question was whether the witness' reference to "that" area, (Tcpt 22/05/12 p 142) was to the pathway where the applicant had fallen, or to some other area in the store. A reading of the transcript indicates that the primary judge's conclusion that the witness was referring to the pathway was justified and did not involve error. 26The area where the accident happened was the only area to which the witness was likely to be referring in the context in which the question was asked and answered. It was also the area to which the witness' attention earlier had been drawn by taking her to exhibit 3 - a photograph of the pathway - which appears to have remained before the witness at the time she gave this evidence. Finally, Ms Dennaoui's statement that she had been on the pathway, or in the pathway area, immediately before she had gone to the cash register, was also consistent with her evidence that she walked the pathway at least ten times in an hour. 27For this reason and the reasons given by Basten JA, the applicant has not established that she has reasonable prospects of succeeding on any appeal. I also would refuse leave to appeal with costs. 28GLEESON JA: I agree with the reasons of Basten JA and the additional reasons of Meagher JA. I agree with the orders proposed by Basten JA. 29BASTEN JA: The orders of the Court are: (1) Dismiss the application for leave to appeal. (2) Order that the applicant pay the respondent's costs. (3) Direct that if the respondent seeks a special order for costs it is to file a notice of motion by 5pm today. ********** Amendments 03 June 2013 - Correcting spelling of Neilson DCJ Amended paragraphs: 4 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. Decision last updated: 03 June 2013