TORTS – negligence – slip and fall at retail premises – floor recently mopped – mopping not conducted so as to leave dry passageway – no findings by primary judge concerning duty of care and standard of care – such findings essential – appeal court able to make the findings – whether breach of duty of care – if breach, whether it was causative of the damage suffered – contributory negligence – assessment of damages – respective responsibilities of occupier, cleaning contractor and the contractor’s insurer – construction of cleaning contract and insurance contract
Barrett JA with whom Ward JA concurred:
47 The appellant was injured when he fell on stairs in the first respondent’s premises at 600 George Street Sydney in the early hours of the morning of 4 June 2007. The appellant was a qualified chef. He and a companion, Mr Hodson, both restaurant employees, had gone to the McDonald’s outlet after finishing work at Darlinghurst. The counter at which food could be bought was at the back of the McDonald’s premises. Someone entering from the street had to ascend a flight of nine stairs within the premises in order to reach the service counter at the rear. The appellant and his companion walked up the stairs and approached the counter but turned back without buying anything. They retraced their steps towards the street door. The appellant fell and was injured. Cleaning of the floor by mopping had occurred a short time beforehand.
96 In this case, therefore, as in Glad Retail Cleaning Pty Ltd v Alvarenga, there was a foreseeable risk that the shoes worn by someone proceeding from the direction of the counter, who had no choice but to walk across the wet area to reach the stairs and the exit, might retain moisture when the person came to negotiate the stairs.
97 There was a simple precaution that would have prevented persons with wet feet having to negotiate the stairs or, for that matter, any other part of the floor surface. The floor could have been mopped in sections, with each wet section appropriately marked or cordoned so that pedestrians could avoid it and walk on an adjacent dry section. Precautions of that kind are, in the context of this case, the equivalent of the precaution in Glad Retail Cleaning Pty Ltd v Alvarenga of mopping only when the shopping centre was closed to the public.
106It follows, in my view, that if the risk to which the appellant succumbed was that of slipping because of wet soles, the risk was an obvious risk, even though the foregoing analysis does not correspond precisely with that made by the primary judge. But, in the present context, the only consequence, in terms of the defendants’ liability, is that prescribed by s 5H(1) of the Civil Liability Act, that is, that McDonald’s (and, if relevant, Holistic) did not owe the appellant a duty of care to warn of that risk. The finding of obvious risk is thus irrelevant to the breach of a duty of care consisting of failure to mop in sections or otherwise in a way ensuring that there was always available passage for pedestrians across a dry area.
107Failure to ensure that mopping of the floor was carried out in such a way as to ensure the continued availability of a dry section for pedestrians by mopping in sections must, in my opinion, be regarded as a breach of the duty of care owed by McDonald’s as occupier and, if it was Holistic that in fact undertook the particular cleaning activity, by Holistic as well. The judge should have so found.
109 In Strong v Woolworths Ltd  HCA 5; 246 CLR 182, the effect of s 5D(1)(a) was stated thus:
“The determination of factual causation under s 5D(1)(a) is a statutory statement of the ‘but for’ test of causation: the plaintiff would not have suffered the particular harm but for the defendant’s negligence.
Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred. Here, the appellant was required to prove that, had a system of periodic inspection and cleaning of the sidewalk sales area been employed on the day of her fall, it is likely that the chip would have been detected and removed before she approached the entrance to Big W.”
119 The appellant was required to prove on the balance of probabilities that there was water on his shoes and that this caused him to slip. He did not say that he knew that his soles were wet; he merely surmised that they were. Even if it be assumed that there was water on his soles when he slipped on the particular surface, it does not follow, as a matter of “common experience”, that it is more probable than not that he slipped by reason of the wetness of his shoes. The appellant submitted that it was more probable that, if his shoes were wet, he slipped because of the water on them rather than for any other reason. But there is nothing in common experience that tells us that someone with wet shoes who traverses a floor having the particular characteristics of the McDonald’s floor is more likely to slip because of water on their shoes than for any other reason, such as inattention (because engaged in conversation or for any other reason), excessive speed or failing to take advantage of a handrail. People wearing dry shoes walk on wet stairs every day and do not slip. People wearing wet shoes walk on dry stairs every day and do not slip. People wearing dry shoes slip on dry stairs every day. And, as Heydon JA observed in Wilkinson v Law Courts Ltd  NSWCA 196 at , stairs are, in any event, “inherently, but obviously, dangerous”.
120The appellant, having walked through a wet area of the floor, stepped back over the pile of rubbish and then traversed either about one metre or about two to three metres of dry surface which included the white bubble tiled area at the top of the stairs. He lost his footing either at the top of the stairs (where the white bubble tiles were installed) or on the second or third stair of the nine stairs equipped with handrails which had slip preventing strips along their outer edges. The McDonald’s employees who gave evidence referred to non-slip qualities of the floor tiles themselves, the white bubble tiles and the strips on the edges of the stairs. Mr Shalen, who was involved in the renovation of the premises some three years earlier, gave evidence that the particular flooring materials had been chosen because of their slip-resistant qualities.
121It was for the appellant to prove that water on his shoes, if present, would have caused, on the particular floor surfaces, slipping that would not have occurred if no water had been present. The task of proof was facilitated, if at all, only by s 144 of the Evidence Act 1995 (NSW) which, as the High Court recognised in Gattellaro v Westpac Banking Corporation  HCA 6; 78 ALJR 394 at , dispenses with the need for proof only as to matters which are “common knowledge”. The need to prove the effects of wetness on one’s soles when traversing flooring materials of the particular kinds would therefore be avoided if those effects were “common knowledge”. It cannot be said that “common knowledge” provides an answer to the question whether a person wearing shoes of the particular kind the appellant was wearing is more likely to slip on flooring materials of the particular kinds within the McDonald’s premises when the soles of the shoes are wet than when they are dry.
122 The appellant did not call any evidence from persons qualified to express an opinion on the issue of slip resistance of the particular surfaces and the effect that wetness on soles might be expected to have had: compare the plaintiffs in, for example, Cherry v Jaymardo Pty Ltd (above), Glad Retail Cleaning Pty Ltd v Alvarenga (above) and Riley v The Owners – Strata Plan 73817  NSWCA 410. Nor did the appellant call any expert evidence as to the likely state of a sole of the kind he was wearing after it had traversed a wet area and then a dry area of between one and three metres consisting of the particular surface in fact installed at the top of the stairs. He thus chose to leave an evidentiary vacuum on the issue of, first, the extent to which soles of the particular kind, having encountered wetness on the floor surface, were likely still to be wet at the time of his fall and, second, the propensity of soles of the particular kind, if wet, to cause slipping to a greater degree than if dry when traversing surfaces of the particular kinds.
123 Even taken at its highest, the appellant’s evidence cannot support the inference that he asks this court to draw. The appellant’s submissions on causation must fail accordingly.
124 The judge found that the appellant fell because of “inattention or misstep” while talking to his companion, holding his skateboard and not holding on to the handrail. This finding as to causation is, in reality, speculation. There was, of course, no need for the judge to speculate as to cause. Her task was to decide whether the appellant had proved that the effects of the breach of duty (that is, the effects of mopping of the floor in a way that made walking on the wet area unavoidable) were causative of the fall. On the evidence the appellant chose to present, any such conclusion would have been as speculative as that her Honour in fact expressed. The judge did not err by failing to find that the appellant’s foot slipped by reason of a residue of water and cleaning agent on the sole of his shoe.
Conclusions on liability
125 It follows from what I have said about lack of proof of causation that neither McDonald’s nor Holistic incurred liability for any breach of duty of care on its part.
126 I have already said that McDonald’s, as occupier, owed the appellant a duty of care and that Holistic (if it had performed the mopping) also owed him such a duty; and that there was a breach of duty. The conclusion that causation was not established means that the result on liability reached by the primary judge was correct, even though the process by which her Honour arrived at that result was not.
127 In light of this outcome, it is unnecessary that this Court decide the other matters canvassed on appeal. I nevertheless deal with them for the sake of completeness. In doing so, I proceed on the hypothesis that the appellant proved that breach of duty on the part of McDonald’s and, if relevant, Holistic caused the injury he suffered.
David Cormack – Brisbane Barrister & Mediator