March 2016


Chicken shop not liable for shopper’s slip

By Kate Tilley, Resolve Editor

An injured shopper has lost an appeal against a finding a retailer was not liable for her slip and fall.

Sanette Els argued the trial judge’s finding Countrywide Nominees Pty Ltd was not liable for her injury was inconsistent with the allegedly “incontrovertible evidence” from CCTV footage of the incident.

But WA Appeal Court Justice Robert Mazza, with whom Justices Michael Buss and Graeme Murphy agreed, rejected the appeal.

Mrs Els and her husband, Nicholas, were at the Gateway Shopping Centre in the southern Perth suburb of Success late on the afternoon of 14 December 2011. Countrywide Nominees was the proprietor of a Lenard's shop at the centre. As the couple walked past the shop, Mrs Els fell and allegedly suffered physical injury.

WA District Court Judge Ronald Birmingham on 12 December 2014 dismissed Mrs Els’s action. She alleged she had slipped on oil deposited on the floor by a portable cooking station used to cook products offered to shoppers as samples as they walked past Lenard’s. She alleged Countrywide was negligent by allowing oil to drop to the floor and failing to properly clean it.

Justice Mazza said demonstrator Jennifer Green, who had been employed by Lenard’s since the shop opened in 2006, had set up a cooking station on 14 December 2011 on a trolley that was enclosed on three sides with Perspex shields. She cooked chicken burgers on the non-enclosed side.

The trolley had a hotplate and a warming oven and sat on a large black mat. It. Ms Green cooked with baking paper rather than cooking oil and the products were not deep fried.

Ms Green’s evidence was that any fat from the burgers stayed on the hotplate and drained into a small container she cleaned after her demonstration. She said the amount of fat was about “a tablespoon, if that”. She said after a cooking demonstration she moved the cooker away, swept up any crumbs, checked the floor and, if necessary, cleaned any areas with a kitchen towel. She said she always checked the floor around where she had cooked.

On 14 December 2011, CCTV footage showed the cooking station was packed away at 5.11pm and many pedestrians walked across the area where it had been, none of whom fell. Mrs Els and her husband walked past at 5.40pm and she fell over.

Justice Mazza said the footage captured Mrs Els’s fall but it was impossible to determine the cause, nor did the footage show oil, or any other substance, on the floor.

Mr Els turned around to look at the floor after the fall and scuffed the area with his foot for four or five seconds.

Daniel Headland, a casual sales assistant at Lenard's, was then seen with a mop and bucket near where Mrs Els fell. He examined the floor but returned to the shop without using the mop and bucket.

Damien Law, Lenard’s then assistant manager, walked from the shop with a safety sign. He scuffed the floor near where Mrs Els slipped with his right shoe, then got on his haunches and looked closely at the area. He remained on his haunches and examined the floor for about 13 seconds. He got up, but again got on his haunches and touched his hand on the area where Mrs Els fell. Justice Mazza said Mr Law did not clean the floor nor did he examine his hand as if there was something on it.

On 15 December 2011, Mr Els reported the incident to centre management and on 24 December 2011, he wrote to centre management, but did not refer to seeing oil on the floor on 14 December 2011. He said when he returned the next day to report the incident, he “went back to the scene … to try and establish a possible cause of the accident”.

Mr Law gave evidence he sent Mr Headland to check the floor; specifically, to see if there was anything on it that could have caused a slip. Mr Headland took a mop and bucket but apparently saw nothing to clean.

Mr Law testified he received a phone call telling him someone had apparently slipped at the front of the store, which was why he did a visual check to see if oil, crumbs or anything else could be seen. He saw nothing that could have caused a slip.

Justice Mazza said Judge Birmingham found Mr Els was “not a very impressive or persuasive witness”. He was prone to exaggeration and his evidence of the incident was “largely reconstructed” from information gained when he visited the shopping centre on 15 December 2011.

Judge Birmingham said Mr Els’s letter to centre management was “significant for what it did not say”; he made no mention of seeing oil on the floor.

Mrs Els’s counsel contended the CCTV footage showed Mr Law wiping clean the floor where Mrs Els had slipped and argued Judge Birmingham should have rejected Mr Law's evidence to the contrary.

But Justice Muzza said the footage was consistent with Mr Law’s oral testimony that he examined the floor, visually and by using his hand to touch it, to see if there was any oil or other substance on the floor. However, he failed to find anything.

“There is no reaction or gesture - certainly no eureka moment – which might indicate the discovery of something that may have caused [Mrs Els] to fall. Mr Law did not come equipped with any cleaning products. If he wiped the floor clean with his bare hand, he does not examine his hand, or wipe whatever was on his hand onto anything, as he might be expected to do if there was oily residue on it,” Judge Mazza said.

Els v Countrywide Nominees Pty Ltd [2016] WASCA 4, judgment 8/1/16
Els v Countrywide Nominees Pty Ltd [2015] WADC 2, published 13/1/2015

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