In brief - Carnemolla v Arcadia Funds Management Ltd  NSWCA 308 affirms decision that a shopping centre did not breach its duty of care in a slip and fall case where the centre could demonstrate an adequate cleaning regime and the plaintiff could not establish there was water on the terrazzo floor
The duty owed by retailers and shopping centre operators to prevent slips and falls remains a high one. However, the recent affirmed decision of Carnemolla demonstrates that where a defendant has a good defence supported by a detailed incident report, they can succeed. If the facts do not support the position of the claimant, the court won't allow them to rely on expert opinion that goes too far, in this case - that an entire floor needs to be replaced.
Plaintiff claims she slipped on water but existence of water contested by incident report
The plaintiff/applicant was a 40-year-old disability support pensioner who slipped and fell outside the women's toilets at the Neeta City Shopping Centre, fracturing her patella.
The Centre delegated cleaning to a contract cleaner, which it required to inspect bathroom areas at least every 20 minutes. At trial, the plaintiff accepted this was a reasonable system and that the area had in fact been inspected 12 minutes beforehand. The plaintiff's claim proceeded on the basis that she slipped on water. Further, in reliance on an expert report, that the centre should have replaced the terrazzo tiles because they were slippery when wet.
The existence of water was contested where a detailed incident report stated that, despite the cleaners who attended, they were unable to detect any water or skid marks indicating the fall.
New South Wales Court of Appeal upholds decision and dismisses appeal
The trial judge found that the plaintiff had not met her onus of proving that she slipped on water, noting that she presented no direct evidence of the same. The Court made it clear that an inference that water was present cannot be drawn merely because someone has slipped.
The Court dismissed the expert's opinion on the following bases:
His opinion was based on an assumption that the plaintiff had slipped on water, which the Court found to be mere "surmise" on his part;
The expert opined that several steps could be taken to ensure a safe surface. These included installing a safe floor that had sufficient slip resistant properties even when wet; and
The expert did not discuss the cost of replacing the terrazzo floors.
The Court of Appeal upheld the lower Court's decision and dismissed the appeal, confirming the trial judge's alternative findings of fact on the principal issue of fact - that either (i) there was no water present or, (ii) that she was not satisfied the plaintiff slipped on water.
The Court also noted that had there been water on the floor, it would have demonstrated that the system of cleaning had failed; not that the system itself was not appropriate and adequate as a means of fulfilling the duty of care. There was no expert evidence which said that it was inadequate.
The decision as affirmed in Carnemolla will provide some comfort for retailers: it demonstrates that, where there is either:
evidence that a reasonable system of cleaning was implemented; or
a lack of evidence that the incident involved a hazard,
courts will reject these claims.
While we anticipate claimants will continue to make such arguments in slip and fall claims, the case shows that expert evidence or arguments for expensive solutions, such as the complete replacement of flooring, will not defeat a defence supported by an adequate system of cleaning and a lack of evidence as to the hazardous mechanism of the plaintiff's fall.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.