Cleaner ‘caused worker's fall'
By John Reynolds and Kate Tilley, KT Journalism
A NSW commercial cleaning firm has failed to have a restaurant manager found at fault for her injuries after she slipped on a wet, newly cleaned floor.
Kellys Property Management Services Pty Ltd (KPMS) asked the NSW Appeal Court to overturn NSW District Court Judge Sharron Norton's finding McDonald's assistant manager Susan Muller fell because a KPMS cleaner had not put "wet floor" signs in the area.
The court heard Muller was working at McDonald's in BP's Chinderah, northern NSW, roadhouse when the incident occurred about 3.25am on 14 March 2011. She left the restaurant to go to the bathroom at the end of a corridor, saw it was closed and turned towards a disabled toilet. Her foot slipped on wet tiles and she fell, sustaining injuries.
The court heard Muller had seen a cleaner wash the food court floor earlier but gave evidence the usual practice was for him to put "wet floor" signs in cleaned areas when completed. There were no signs leading to the toilets, she said.
McDonald's franchisee Anjoshco Pty Ltd paid Muller $117,918 in workers' compensation and sued KPMS for indemnity.
Consultant architect Dr John Cooke tested the tiled floor under wet conditions in accordance with procedures specified in the Australian/New Zealand standard 4663: 2004, Slip resistance measurement of existing pedestrian surfaces, and viewed CCTV footage of the incident.
He said a dynamic coefficient of friction test on the floor found it posed a "very high slip hazard when wet". He said the slip hazard was most severe if a pedestrian walked from the dry floor to the wet floor without being aware of the presence of water or moisture, and therefore did not attempt to minimise the risk of slipping by avoiding the wet area or walking across it in a guarded gait.
Dr Cooke said a pedestrian's ability to take evasive action depended on visual cues to the existence of water on the floor and, in the present case, water was not easily seen on the light-coloured tile surface. The ceramic tiled floor on which Muller slipped had adequate slip resistance when dry.
Dr Cooke said it would have been good practice for cleaners to "barricade floor areas while they are wet and/or put up effective warning signs (yellow plastic warning cones, yellow plastic pyramidal slippery floor signs and the like)".
On 3 November 2015, Judge Norton found a reasonable person could not have known the toilet corridor floor was wet. The cleaner had put warning signs in the food court but they were not obvious and he had not put any in or near the wet corridor.
KPMS's appeal argued Judge Norton had misinterpreted the facts to blame KPMS's cleaner or should have found contributory negligence because Muller ignored an "obvious risk". It argued Muller admitted noticing cleaning in progress earlier and was familiar with KPMS procedures, including putting chairs on food court tables to indicate the floor was wet.
But on 6 December 2016, NSW Appeal Court Justice Fabian Gleeson, with whom Justices Anthony Meagher and Natalie Adams agreed, rejected KPMS's appeal. He said no evidence was called to support KPMS's argument Muller should have noticed chairs on tables and seen food court warning signs through her peripheral vision.
KPMS's lawyers had offered no stronger assertion than "you would have thought" Muller would have seen the cleaning activities. There was no evidence Muller did or should have seen the signs or should have realised the corridor floor was wet because food court chairs were on tables.
"Importantly, Muller had proceeded without incident [through the food court] before turning right into the corridor," Justice Gleeson said. Judge Norton found the tiles' appearance in each area was not so different to make the risk they posed obvious.
Justice Gleeson said: "The evidence does not establish Muller ought to have been aware, acting reasonably, the floor where she slipped was wet." CCTV footage showed Muller was walking responsibly when she fell.
Based on her actions and Judge Norton's findings, KPMS's claim for contributory negligence also failed.
Justice Gleeson ordered KPMS to pay Anjoshco's appeal costs.
Kellys Property Management Services Pty Ltd v Anjoshco Pty Ltd trading as McDonalds BP Chinderah , NSWCA 341, 06/12/2016