In brief - Slip and fall case provides defendants with some important lessons

Soma-Devan v SCentre Shopping Centre Management Pty Ltd t/as Westfield Hurstville [2020] NSWSC 125 deals with a plaintiff who alleges she slipped on the floor of a Hurstville shopping centre managed by the first defendant (shopping centre manager). The plaintiff, Ms Soma-Devan, alleged the floor was contaminated with ice cream, which the third defendant cleaner had failed to remove.

Shopping centre manager opposes plaintiff's notice of motion seeking permission for site inspection

In the course of these proceedings, Ms Soma-Devan sought access to the Hurstville shopping centre, together with her liability experts and lawyers, to conduct a site inspection and carry out slip testing. The shopping centre manager was of the view that the plaintiff's statement of claim and the particulars provided inadequately specified the claim to be made out against it, and therefore refused access.

As a result, the plaintiff sought an order by notice of motion, relying on Uniform Civil Procedure Rule (UCPR) 23.8(1). The shopping centre manager opposed the motion on the basis that “the Court can only be confident of [the just, quick and cheap resolution of the real issues in the proceedings] if the real issues in the proceedings have been raised and defined by the pleadings”.

Pursuant to UCPR 23.8(1), the court may make orders for the inspection of any property for the purpose of enabling the proper determination of any matter in question in any proceedings. The shopping centre manager submitted that no site inspection should be ordered unless the pleadings gave rise to a question that required a site inspection to answer it. 

Decision

His Honour Justice Harrison considered:

  1. at least one of the "real issues" in the proceedings was whether the floor was slippery when the plaintiff tripped and fell

  2. the plaintiff had raised the issue of the slippery floor in her pleadings 

  3. the plaintiff was entitled to inspect the premises with her expert in order to assist her with that case

Whilst Harrison J understood the shopping centre manager's concern that the plaintiff had not adequately particularised her claim against it, he disagreed that the plaintiff's obligation to particularise her claim ought to amount to "a disqualifying precondition attaching to her right to relief." 

Orders were made for Ms Soma-Devan to inspect the Hurstville premises with experts and legal representatives. 

Lessons for defendants in public liability cases

This case demonstrates that defendants in public liability cases, and all litigation, ought to be measured in their opposition to plaintiffs' requests made, and notices of motions brought. Opposition to a request for a view on an academic or principled basis is evidently unlikely to succeed, and parties must bear in mind the overarching principles of the litigation process. The court is seemingly unlikely to refuse a plaintiff the opportunity to carry out a site inspection in order to assist his/her case.

Further, this case establishes that the question of whether a floor is slippery remains a real issue in public liability cases, which must be dealt with and addressed by the parties. Whilst a plaintiff may choose not to engage a liability expert upon receipt of a concession from the defendant regarding the slipperiness of the floor, the making of any such concession does not vitiate the plaintiff's entitlement to carry out testing of its own and obtain expert liability evidence. 

These are important takeaway points to bear in mind, not only in "slip and fall" public liability matters, but generally in the drafting of pleadings and formulating your client's position with respect to conducting a view.

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 2020.

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