CASE STUDIES

Mercouris v Westfield Shopping Centre Management Co Pty Ltd (Supreme Courtof New South Wales, 29 March 2000)

·       The Defendant operated the Westfield Shoppingtown at Parramatta.

·       The Plaintiff entered from a car park on an upper level and went down to level 3. On that level were Grace Bros, David Jones and K-Mart stores and about 50 shops around the central common area.

·       As the Plaintiff walked in the common area outside a handbag shop known as Bradmans, she slipped and fell.  She did not see anything on the floor before she fell but it was found that she slipped on a chocolate melted ice-cream or thickshake substance on the floor.

·       The Plaintiff fell at about 3.45pm. The floor had been clean and dry when the cleaner passed Bradmans less than 10 - 15 minutes prior to the fall.  From the footprints in the spillage it appeared that someone had walked through it shortly before the Plaintiff fell.

·       The "looping" of the cleaners, as it was described by the Court took the cleaner about 10 - 15 minutes depending upon the congestion in the shopping centre and whether he or she had to attend to other spills.  The cleaners carried a mop and bucket and two-way radio so that if security staff at the shopping centre found a spill security could call the cleaner to go immediately to the area of the spill.

·       A shop assistant in Bradmans became aware of the spill on which the Plaintiff fell a few minutes before the fall (the time being left imprecise).  The shop assistant did not report it to management because she thought it would be cleaned in the normal course by cleaners who passed by regularly.

·       The trial judge found that there was an adequate system of cleaning and inspection in place.  The Court of Appeal agreed.  The Court of Appeal said:-

"No doubt foodstuffs including ice-creams, thickshakes and milkshakes would be brought to Level 3 from other levels in the shopping centre and to the part of the common area outside Bradmans, for example from the McDonalds outlet, but it was not a situation where constant contamination of the floor would be expected".

·       The Supreme Court agreed with the trial judge's rejection of a submission that it was incumbent on the Defendant to have in place video surveillance of the common areas of the shopping centre.

·       As to the adequacy of the cleaning system the Court of Appeal said:-

"Whether it was adequate or inadequate was a question of fact, decided according to whether it was a reasonable, response to the risk of injury to those visiting a shopping centre. In my opinion it was. The system provided for regular cleaning every 10 - 15 minutes and immediate cleaning on call of a spillage was reported..... The short time between the passages of the cleaner and the facility for calling him to a spillage was a reasonable response to the risk for the area outside Bradmans".

·       Another submission made on behalf of the Plaintiff appellant was that the Defendant ought to have provided a floor surface that was safe when contaminated by spillages.  In this regard evidence was given by an engineer about the type of floor which could be used.  In relation to this, the Court of Appeal said:-

"According to Mr Simpson (the engineer) flooring materials were available whose friction properties were not reduced by contamination by liquids, being ,flooring materials with a grit or. sand like substance within the surface so that even if contaminated they provided a secure footing.  Mr Simpson expressed the view that such a surface was "the only reasonable surface for common areas such as food halls or the like". There was no evidence of cost, aesthetic considerations or other practicality in having flooring materials of this kind.. The relevant area on Level 3 was not in the nature of a food hall, and I do not think that the Plaintiff is really assisted by this opinion... If the Defendant had in place an adequate system of cleaning and inspection I do not think it had to provide a floor surface resistant to the effect of spillages".

Sarantidis v Westfield Shopping Centre Tea Tree Plaza (District Court of South Australia, 29 April 1997)

·       The shopping centre consisted of 2 levels.  Level one consisted of specially shops, a supermarket, a department store and a food court.  Customers had the option of consuming their food and drinks at the tables and chairs in the food court or taking the food and drink away from this area.  The principal or most convenient entry from Level 2 to the food court on Level 1, or exit from the food court on Level 1 up to the shops on Level 2, was by way of an escalator situated in the food court area.

·       After spending some time on Level 1 the Plaintiff took the escalator up to Level 2. At the top of the escalator on Level 2, the Plaintiff stepped off the stairs onto the metal plate and in doing so slipped on what he described as a thickshake or melted ice-cream.

·       The Defendant called evidence of a cleaning system which it said operated in the walkways and other common areas of the shopping centre at the time of the accident.  It contracted out the cleaning to Tempo Cleaning Services.

·       Defendant said that from the time the shopping centre opened until it closed there were 3 cleaners on duty in the food court.  The number of cleaners in the food court increased to 6 during the lunch period.

·       The Defendant said that there was a 15 - 20 minutes to complete a circuit of the walkways on that level. The area immediately in front of the exit point at the top of the escalator was part of that walkway.     The Defendant said that the time it took to complete a circuit on Level 2 was an estimate.  There had been no actual timing of a cleaner performing these duties

·       The cleaning supervisor gave evidence that the cleaner on Level 2 would take roughly 15 - 20 minutes to complete a circuit of the walkway ie 15 minutes if there were no spillages and 20 minutes if there were spillages.  He did not say how he estimated the time for completion of a circuit.

·       Defendant submitted that it had discharged its duty of care as a result of the cleaning system it said was in operation at the shopping centre on the day of the accident.

·       The Court saw that it was required to answer the following questions ie did the Defendant have a cleaning system operating on the day the Plaintiff sustained his injury and if so did that cleaning system discharge the Defendant's duty of care?

·       Court said that the food and drink sold in the food court made it likely that from time to time slippery substances would appear, not only on the floor of the food court but also on the escalator, the walkways and other common areas of the shopping centre.  The Court said:-

"Experience in the use of escalators would indicate that a clumsy exit is possible at the point where the moving escalator steps cease and the user steps on to the stationary exit plate ".

·       The cleaner on Level 2 at the relevant time was not called nor was there any direct evidence given about the system in place save for the supervisor's recollection of what was required at the time. The Court found the evidence to be of little assistance to it.  In particular. the Court said:-

"I do not accept the submission by Counsel for the Defendant that, in the circumstances of this case, the giving of evidence of a general nature regarding the cleaning regime is sufficient to establish that there was a cleaning system in operation on the day of the accident and the nature of that system...I am not satisfied that there was on the day of the accident a cleaner performing her duties in the manner described by the general evidence given by witnesses for the Defendant”.

·       The Court concluded:-

"It follows from what 1 have said that I find that there is no evidence of any cleaning system operating in the walkways on Level 2 and in the area where the accident occurred on that day.  In my view, the circumstances here require that the Defendant have an operating cleaning system which included the area of the escalator exit plate.  In the absence of any evidence of a cleaning system operating on the day of the accident I find that the Defendant was in breach of its duty of care to the Plaintiff in that it did not have an inspection and cleaning system operating at all.

Even if I was satisfied that the evidence disclosed that there was a cleaning system operating on the day of the accident in the manner described by the general evidence provided by the Defendant I should indicate that 1 would not have been satisfied that such a system was adequate to discharge the Defendants duty to take reasonable steps for the safety of its customers.  As I said earlier, in my opinion, the area at the top of the escalator was a likely danger point for the spillage of slippery substances being carried from the food court to Level 2. It seems to me that when considering an adequate cleaning system that this point needed to be treated as if it was part of the food court".

Scott v Patterdale Pty Ltd (Queensland District Court, 27 November 2000)

·       The Defendant was the occupier of the Pialba Place Shopping Centre at Hervey Bay.  The Plaintiff slipped not far inside the automatic doors giving entry from the outside car park to the concourse of the shopping centre at about 8.20am on a Monday.  The floor was polished terrazzo of creamy colour which it was agreed would be slippery when wet.  Water was also not easily detectable on this type of floor.

·       No one at the time was able to identify any substance or particularly slippery area on the floor which might have explained the accident.  Ultimately the Court accepted that the Plaintiff had slipped on water which had been walked into the centre.  It was raining outside at the time.

·       The Court said:-

"In wet weather water would get on to the floor inside the automatic doors through which the Plaintiff entered and give rise to a risk of customers slipping, which had to be guarded against.  The precautions available included constant mopping of the floor (to the extent that the Defendant on some days might engage a person over and above the ordinary cleaning staff to attend to it), placement of at least one of the now familiar yellow cones which warn of a slipping hazard, and replacement or supplementation of the usual 1. 2m x 1.7m mat placed to straddle both sides of the automatic door with long runners hired from a local dry-cleaner. The likelihood of water being "tracked" onto the terrazzo floor in all kinds of ways including by shopping trolleys and by dripping ,from customers clothing and umbrellas was well known to the Defendant and furthermore I would think is notorious generally".

·       The Court found against the Defendant shopping centre owner.

·       The Defendant issued third party proceedings against the cleaners asserting a failure by the cleaners to comply with their contractual obligations as cleaners of the Centre to keep the Centre in such condition as to be safe for the use of members of the public.

·       With regard to the third party claim the Court said:-

“It seems to me to have been established that during the relevant day shift, only one cleaner was to be provided.  What he or she could achieve was necessarily limited, given the large size of the Pialba Centre.  While there might have been an expectation that cleaning staff would get to the Hunter Street entrance roughly every 15 minutes, the exigencies of the job, such as spills or messes elsewhere, might preclude this.  I do not think the third party was in any sense guaranteeing or committed to achieving a Pialba Centre which was safe for the public. 1 think the deficiency which leads to the Defendants  liability was in its system and that it, and not the third party, bears responsibility for the deficiencies".

George v  AMP Shopping Centre (South Australian District Court, 15 May 1997)

·       The Plaintiff alleged that she slipped and fell outside of the Centre near the "southern entrance".  The Plaintiff said that she exited the shopping centre through one of the sets of sliding doors and was walking on the pavement which consisted of brick paving when her legs went from underneath her as a result of which she fell to the ground.  The Plaintiff said that she noticed some reddish brown coloured dirt on the pavers which she says was the reason that she slipped and fell.

·       It was the Defendant's case that there was no dirt present, of whatever colour, at or near the point where the Plaintiff slipped and fell.  The Defendant pleaded in the alternative that, even if dirt had been present and the Plaintiff had slipped on such dirt, the Defendant had not been negligent as alleged by the Plaintiff or at all.  In particular, the Defendant asserted that it had in place a system whereby all walkway areas open to the public were checked at least every 20 minutes for the presence of dirt or other material upon which a member of the public might slip and that if such substance were detected, it was removed.

·       Ultimately the Court rejected the Plaintiffs evidence that there was dirt on the brick paving upon which she slipped.  This was due to the weight of evidence provided by other witnesses who said that they saw nothing on the ground.

·       The Defendant occupier had joined the cleaner as a third party.  The Court said that.-

"All that the evidence discloses is that the Plaintiff slipped and fell on the brick paving outside the southern entrance of the shopping centre for some unexplained reason.  It is the absence of that explanation which must exonerate the Defendant. if the Defendant is exonerated so is the third party ... Even if it is assumed that there was dirt present on the paved area where the Plaintiff slipped and fel1, that does not mean that the Defendant was necessarily negligent".

·       The Court went on to say:-

"The Defendant... required its cleaning contractors to ensure that all public areas if the shopping centre were inspected at least once every 20 minutes for the presence of substances on the floor or paving on which the members of the public might slip and to remove same if detected.  Indeed all members of' the Defendant’s staff engaged in running the shopping centre including security personnel were made aware of the need for vigilance to ensure that the floor, and walking surfaces are kept clean... 1 am satisfied that the Defendant took reasonable precautions for the protection of members of the public and provided adequately for the "due and careful implementation of those precautions ".

Allcorp Cleaning Services Pty Ltd v Fairweather & Anor (New South Wales Court of Appeal, 29 June 1998)

·       'The Plaintiff was injured when she slipped on a potato chip in the Ashfield Shopping Mall.  It was a busy Saturday lunchtime where there were about 80 tables and 200 people using the area.  The tables were located in a central area between a number of food outlets.  The floor was of a terrazzo type.

·       The centre was owned by Queensland Investment Corporation. it settled the claim made by the Plaintiff.  The Defendant then pursued its cleaning contractor for tile money it paid to the Plaintiff.

·       There was a cleaner who was required to attend exclusively to the food court area.  The evidence was that had he done so, he would have been covering each part. of the area approximately every 15 minutes.  There was however no evidence regarding the presence of the cleaner on site at the time and the contrary witnesses said that they had not seen a cleaner for some time prior to the fall.  The cleaner was unable to be contacted or at least did not give evidence.  The trial judge said there was a clear inference on the evidence that there was no cleaner in the area for a substantial period of time. The Court of Appeal accepted that the evidence supported this inference being made.

·       The trial judge concluded that the third party (cleaner) was as between the Defendant and third party the negligent one and that the accident was totally the fault of the third party 

·       Whether or not the Court accepted the 15 minute coverage (which it was argued would have been the coverage if the cleaner had been there) is unclear.  Justice Stein says:-

" The inference drawn by His Honour, the Trial Judge, that there was no cleaner in the food hall for up to three quarters of an hour was one which was open to him. If the system had been followed, the probabilities would have been that the chip would have been detected and removed".

Justice Priestley said.-

"On the facts as found by the Trial Judge, if that cleaning system had been functioning as it should have been, it is my opinion more probable than not that the chip which caused the fall, would have been seen and moved before the accident ".

Kelly v Lend Lease Retail Pty Ltd (ACT Supreme Court, 16 April 1993)

·       The Plaintiff, a 60 year old lady slipped on a woodchip in the common area of the Woden Shopping Square. Tile Plaintiff was walking in the general area of the shopping centre outside the Florscheim shop when she says that she stepped on the woodchip as a result of which she fell and injured herself.  The Plaintiff says that she also noticed other rubbish in the area including potato chips, drink clips and cigarette butts.

·       The Defendant said that it had engaged 3 cleaners and a maintenance crew who had instructions to clean up anything they noticed on the floor.

·       With regard to the evidence given by the cleaner the Court said:-

"Mr Drago Brozininic, Manager of Berkeley Challenge,, the cleaning contractor, gave evidence for the Defendant. In some respects, his evidence was not entirely satisfactory. This, no doubt, was, for the most part, because he had not been asked to provide timely details of cleaning arrangements (as at May 1985 until 1 February 1993.  He had no records from that time to draw on... The evidence as to the presence or absence of cleaning staff, the general likelihood that cleaners were engaged in reasonable numbers and were carrying out their duties with reasonable diligence, is quite unsatisfactory".

·       The Court went on to say:-

"In any event, it seems to me that, given it was the summer holidays, the number of small but active children was likely to have been greater.  They were likely, more than usually, to dislodge the woodchips or bark pieces, They were also more likely and more frequently than usual to spill and drop things onto the .floor.. Increased vigilance was called for... The absence of evidence of the cleaning done on that day is significant.  The only evidence of the cleaning arrangements was that of Mr Brozininic and Mr Francis.  Evidence was of general practice.  No records were produced as to who was actually doing the cleaning on that day.  It is not even clear whether the assigned cleaner was on duty at the time of the fall".

·       The Court found in favour of the Plaintiff.

Wilson v Yeperenye Pty Ltd (Northern Territory Supreme Court, 24 May 1996)

·       The Plaintiff was walking with her husband through the shopping centre when she fell and injured herself in a common area as a result of slipping on a cherry.

·       Woolworths had a sale on cherries at the time.

·       The system employed by the occupier required the cleaner to conduct circuits of the public areas of the Centre to sweep and spot mop.  Each circuit took approximately 5 minutes to complete.  The system also required the cleaner to leave the floor of the premises to clean the toilets at the time when the cleaner felt that it was safe and expedient to do so.  This would take a maximum of 15 minutes.

·       Approximately 15 minutes before the accident the cleaner had conducted his rounds through the area where the Appellant fell.  The cherry was not there at that time.  He then left the floor to clean the toilets and was away for a maximum of 15 minutes.  The premises were not crowded or in heavy use at the time.  The specially shops in the Centre had all closed at 5.30pm.

·       The trial judge found that the Respondent had provided an adequate system of cleaning and that the fall was not caused by the Respondent's negligence.

·       One of the grounds of the appeal was that the occupier knew of the cherry sale which constituted a special known risk for which the Respondent failed to provide an adequate response.

·       The other grounds of appeal went to the system of cleaning including the absence of the cleaner whilst cleaning the toilets.

·       In finding in favour of the occupier and cleaner. the Supreme Court said:-

“There was no evidence which mandated a finding that slipping on cherries was more likely to occur at this time and in this area than, say, slipping on dropped grapes, or that the consequences of slipping on cherries were likely to be more drastic than slipping on other dropped foods such as grapes or ice-cream, requiring special precautions over and above that taken by the Respondent in respect to the general risk of slipping on something on the floor.

In my opinion it was open to the learned Magistrate to find that a system which permitted the cleaner to leave the floor at times when he thought it safe to do so, because there were not many customers around, for up to 15 minutes, to enable him to clean the toilets, was an adequate response to the risk".

Morgan v Sherton Pty Ltd (1999) 116 NSWLR 141

In Morgan v Sherton Pty Ltd, the NSW Court of Appeal considered whether the owner of a shopping centre should be held liable for an injury suffered by a shopper. The shopper had attempted a running leap over a garden bed that divided sections of a car park. In the process, he caught his foot on a dead branch of a scrub in the garden bed. He argued that the risk of injury from the branch was not far fetched and it was reasonable to expect the shopping centre to have pruned the branch to prevent him from catching his foot on it. The NSW Court of Appeal disagreed and found against the plaintiff for his own recklessness.

In another case, Lambert v Warwick Credit Union, (unrep Qld CA 10/12/99) the plaintiff sought to blame the defendant for a fall outside the Credit Union. The defendant had arranged for a non-slip coating to be applied to the floor surface six weeks prior to the plaintiff’s fall. There was no evidence that the area where the plaintiff fell was slippery, or that the contractor who carried out the non-slip treatment did so negligently. The plaintiff failed at trial and on appeal.

The Court held that there had to be proof of negligence and it was not enough to hold a defendant liable simply because a plaintiff fell on a surface wearing rubber soled shoes.

Conclusion

Cases such as these confirm the need for a plaintiff to prove that it was reasonable to expect a defendant to take some action to prevent the risk that a plaintiff may be injured. In this regard, the appeal courts are following the High Court’s finding in Romeo’s case [1998] 192 CLR 431, that occupiers are entitled to assume that the public will take reasonable care for their own safety. Where the risk is obvious to the plaintiff, and he or she has experience of the terrain, a claim in negligence is unlikely to succeed.

Daly -v- Spot-On-Investment Pty Ltd trading as Spot–On-Photos, unreported, NSWCA no. 40273 of 1993, 30 August 1995.

This case concerned a claim by a 79 year old woman who had fallen over a rack displaying picture frames in the defendant's shop. The rack stood on the floor against the service counter.

The plaintiff alleged that the defendant was negligent for unsafely cluttering the shop floor by having the rack where it was, that the rack was an unusual danger because it was below eye level and that a person sufficiently distracted by the act of proceeding from the display cabinet to the counter could not be expected to notice the rack of frames between the cabinet and the counter.

The Court of Appeal referred to the Phillis -v- Daly decision and reaffirmed the statement by Mahoney JA that "a person coming upon another's premises is expected to act reasonably".

The Court of Appeal unanimously found that display stands are common place in shops and that the display rack was obvious. Therefore, the defendant could reasonably expect that people coming into the shop would act reasonably in moving around the shop and avoiding the display rack. Sheller JA again referred to the Phillis -v- Daly case and stated:-

"Like the example given by Mahoney JA in Phillis –v- Daly at 74, a shopkeeper might place a chair at the counter for the convenience of persons like the plaintiff. It is reasonably foreseeable that a customer, whose attention is distracted by looking to the shop assistant or at an article displayed on the shelves, may fall over the chair and suffer the sort of injuries that the plaintiff suffered. It does not follow there must have been a breach of duty by the occupier of the shop, notwithstanding that shopkeepers may trade in shops without chairs or display racks and these may be easily removed".

Therefore, although the Court of Appeal found that the risk of injury of a person tripping over the display rack was foreseeable and not far fetched or fanciful, where the display rack was an obvious feature of shops, the magnitude of risk and the degree of probability lead to the conclusion that there was no breach of duty of care by the defendant.

Bowtell -v- Hovan & anor, (unreported), NSWCA 53, 10 March 1999

This case involved a claim by the plaintiff for damages for personal injuries which he sustained when he slipped and fell while standing on a raised brick hearth surrounding an open fireplace in a hotel. The plaintiff claimed damages against the defendants alleging negligence on the basis that the floor was uneven and unsafe and for the failure to warn of such.

Expert evidence was relied on by both sides, although much of the plaintiff's expert evidence was found to be irrelevant as the "hazards" he referred to did not concern the area where the plaintiff fell.

At first instance, the trial judge found in favour of the defendants holding that:-

"The problem that I have with the plaintiff's case is that while I think it is foreseeable that somebody could stand on the hearth, I have difficulty seeing that a reasonable person would have foreseen that there was a real risk of serious injury likely to occur by virtue of a slip from the hearth. There could not be said to be an unusual danger or trap … ".

The trial judge cited Daly -v- Spot-On-Investments Pty Ltd and Phillis -v- Daly, with respect to the magnitude of risk and the degree of probability of its occurrence. On the facts he found that the plaintiff was a regular patron of the hotel he was acquainted with that particular part of the hotel where the accident occurred and he was aware that there was a raised hearth and a wooden surround.

In conclusion the trial judge stated:-

"In a negligence situation, there are two sides of the equation, the duty of care one owes to another and the duty the other has to act reasonably for their own safety. In my view the magnitude of the risk and the degree of probability when combined with the other relevant facts such as the plaintiff's failure to look out for his own safety was such as to lead to the conclusion that there was no breach of the defendant's duty of care to the plaintiff".

Wednesday 29 March 2000 - MERCOURIS v WESTFIELD CENTRE MANAGEMENT COMPANY PTY LTD

1    GILES JA: This is an appeal from a judgment for the defendant in a slipping case. It seems to have been common ground that the plaintiff's injuries and economic loss would have brought damages of more than $100,000 and leave to appeal has not been mentioned. The primary issue is whether the defendant had in place an adequate system of cleaning and inspection. A secondary issue appears in the written submissions, namely, whether there should have been a different flooring material.

2    The defendant conducted Westfield Shopping Town at Parramatta, a major centre with shops of different kinds on a number of levels.

3    The plaintiff went to the Centre on the afternoon of Sunday, 4 August 1996. She entered from a car park at an upper level and went down to level 3. On that level were Grace Bros, David Jones and K-Mart stores and about 50 shops around a central common area. The dimensions of the common area were not established with precision, although it was described as large but not as long as a football field. The flooring of the common area was matt or semi-glazed ceramic floor tiles.

4    As the plaintiff walked in the common area outside a handbag shop known as Bradmans, she slipped and fell. She did not see anything on the floor before she fell, but it was found that she slipped in a chocolaty melted icecream or thickshake substance on the floor. The floor tiles provided a firm footing when dry, but were slippery and dangerous if there was spillage from a milk based contaminant such as icecream, thickshake or milkshake.

5    The plaintiff fell at about 3.45pm. The floor had been clean and dry when the cleaner shortly to be mentioned passed Bradmans less than 10 to 15 minutes prior to her fall. From footprints in the spillage at least some other persons in the centre had walked through it before the plaintiff fell.

6    The defendant had a cleaning contract calling for cleaning, which included attention to spillages, on a rotational basis. The route of one of the cleaners on duty on level 3 at the time took in the common area outside Bradmans, the area at that point being also a meeting place with the route of another cleaner. The "looping" of the cleaner's area, as it was described, took the cleaner about 10 to 15 minutes depending on the congestion of the centre and other matters. Apart from other cleaning gear, he carried with him a mop and bucket to clean the floor. The cleaner also had a two-way radio, and if the security staff at the centre found a spillage he would be called and would go immediately to clean it up.

7    A shop assistant in Bradmans became aware of the spillage in which the plaintiff fell a few minutes before the fall, the time being left imprecise. She did not report it to the entre management because she thought it would be cleaned in the normal course by the cleaners who passed regularly. The cleaner on duty had almost completed his loop and would have been back at Bradmans, as the trial judge found, within two to five minutes. After the plaintiff's fall he received a call to clean up the spillage on which the plaintiff had slipped.

8    It is apparent that an interesting question of causation would arise if it were found that the defendant did not have in place an adequate system of cleaning and inspection. However, the trial judge found that it did.

9    There was evidence that there had been several occasions on which the cleaner had had to clean up icecream, thickshake or milkshake spillages on level 3, although it was not clear whether the spillages were in the same area as that looped by the cleaner on the day the plaintiff fell. There was a McDonald's outlet on level 3, at the other end of the level from Bradmans and not on the route of the cleaner in question, but there was no clear evidence of other takeaway food outlets on level 3 from which might come spillages on that level. No doubt foodstuffs, including icecreams, thickshakes and milkshakes, would be brought to level 3 from other levels in the centre and to the part of the common area outside Bradmans, for example from the McDonald's outlet, but it was not a situation where constant contamination of the floor would be expected.

10    The trial judge concluded that the system in place was adequate to discharge the defendant's obligation to take reasonable care for the safety of visitors to the centre. He rejected the submission that it was incumbent on the defendant to have in place video surveillance of the common areas of the centre, and that submission was not repeated on appeal.

11    The first submission on appeal was that the trial judge should have found that the system of cleaning and inspection in place was inadequate. Whether it was adequate or inadequate was a question of fact, decided according to whether it was a reasonable response to the risk of injury to those visiting a centre.

12    In my opinion it was. The system provided for regular cleaning every 10 to 15 minutes and immediate cleaning on call if a spillage was reported. Its operation is indicated by the shop assistant's belief that the spillage in which the plaintiff fell would soon be attended to in the course of the regular cleaning. The system was in operation at the time. While a spillage in the relevant area such as the spillage in which the plaintiff slipped could be foreseen, and spillages had occurred on level 3 on previous occasions, the area covered by the cleaner's route was not shown to encompass takeaway food outlets. The short time between the passages of the cleaner and the facility for calling him to a spillage was a reasonable response to the risk for the area outside Bradmans. I do not think that the first submission should be accepted.

13    The second submission, principally in the written submissions although indirectly taken up orally, was that the trial judge should have found that the defendant was negligent in not providing a floor surface that was safe when contaminated by spillages. The plaintiff relied on evidence in a report of Mr Colin Simpson, an engineer. Mr Simpson was not cross-examined, and there was no evidence called by the defendant on the same subject.

14    According to Mr Simpson, flooring materials were available whose friction properties were not reduced by contamination by liquids, being flooring materials with a grit or sand like substance within the surface so that even if contaminated they provided a secure footing. Mr Simpson expressed the view that such a surface was "the only reasonable surface for common areas such as food halls or the like." There was no evidence of cost, aesthetic considerations or other practicality in having flooring materials of this kind. The relevant area on level 3 was not in the nature of a food hall, and I do not think that the plaintiff is really assisted by this opinion.

15    Apart from what he said about a food hall or the like, Mr Simpson expressed the view that either the flooring material should be made to tolerate an expected contaminant or a constant cleaning system should be utilised so that spillages were cleaned up virtually immediately. The trial judge was not obliged to act on the evidence of Mr Simpson, especially when it trespassed into what was reasonable. But it does not matter, because in what he said in this respect Mr Simpson gave alternatives. If the defendant had in place an adequate system of cleaning and inspection, I do not think it had to provided a floor surface resistant to the effect of spillages.

16    The argument in support of the submissions was put fully, and all that could be said in support of the appeal was said. Unfortunately for the plaintiff, in my opinion the appeal should be dismissed with costs.
17    SHELLER JA: I agree.
18    FOSTER AJA I also agree.
19    SHELLER JA: The order of the Court is that the appeal be dismissed with costs

Sarantidis v Westfield Shopping Centre Tea Tree Plaza (District Court of South Australia, 29 April 1997)

·       The shopping centre consisted of 2 levels.  Level one consisted of specially shops, a supermarket, a department store and a food court.  Customers had the option of consuming their food and drinks at the tables and chairs in the food court or taking the food and drink away from this area.  The principal or most convenient entry from Level 2 to the food court on Level 1, or exit from the food court on Level 1 up to the shops on Level 2, was by way of an escalator situated in the food court area.

·       After spending some time on Level 1 the Plaintiff took the escalator up to Level 2. At the top of the escalator on Level 2, the Plaintiff stepped off the stairs onto the metal plate and in doing so slipped on what he described as a thickshake or melted ice-cream.

·       The Defendant called evidence of a cleaning system which it said operated in the walkways and other common areas of the shopping centre at the time of the accident.  It contracted out the cleaning to Tempo Cleaning Service