Scott v Jackson Garden Landscape Supplies Pty Ltd QDC 018

The issue on trial was limited to whether the defendant employer ‘overstated’ the system of cleaning and did not use the system. The plaintiff was not assisted by 7 years having transpired and not being able to isolate the item on the pathway, which caused her to fall.

Whilst the finding was driven by credibility issues, not adverse findings were made having regard to the time since the incident.

Judge Andrews SC DCJ found:

[52] I accept that Mr Thomson inspected and swept the pad by 9.00 am on Saturday 10 May 2008 about one to two hours before the plaintiff slipped. I accept that he swept the southern end of the pad in the area where the plaintiff fell and did so between 8.00am and 9.00am.

[53] I accept that by 10.20am the relevant part of the pad where the plaintiff fell was clean of relevant debris except for the one piece upon which the plaintiff slipped. Two possibilities are that Mr Thomson missed that one piece of debris or that some debris appeared after 9.00 am and before the plaintiff slipped at 10.20am. The case was not fought as one of negligent brooming by Mr Thomson causing him to unreasonably overlook a piece of debris. Counsel for the plaintiff accepted that if the defendant’s system of cleaning required the pad to be cleaned by 9.00 am he would have difficulty suggesting that the system was inadequate for failure to clean again before 10.20am.

[54] The system for presenting a clean pad on Saturdays did not rely solely upon Mr Thomson’s inspection and sweep. It depended also upon the inspections of Mr Hayes the day before, the inspection of Mr Ebert at about 7.00am. Mr Ebert, Mr Thomson and the others working that day understood their duty to pick up any rubbish that appeared. Mr Thomson was to return to the pad throughout the day to check for debris.

[55] I am not satisfied that the defendant breached its duty of care by failing to provide an adequate cleaning system.

David Cormack – Brisbane Barrister & Mediator

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