Judgment in the matter of Ryland v QBE Insurance (Australia) Limited [2013] NSWCA 120 was handed down on 3 May 2013. The Plaintiff in this matter, Pamela Ryland stepped in a puddle the size of a saucer of what she described as a milky substance on 31 October 2009 whilst at Direct Factory Outlets at Homebush shopping at a store called Table Eight. The surface of the floor was described as mock wood tile vinyl.

The Plaintiff fell on her left elbow and hand and suffered a fracture through the left olecranon on the elbow, and in addition she either aggravated or exacerbated a pre-existing fracture of the same bone in the right elbow and suffered a soft tissue injury to her left knee.

The Plaintiff brought proceedings for damages in the District Court. Since the date of her accident the store had gone into liquidation as a result of which QBE Insurance (Australia) Ltd were joined as a Defendant to the District Court proceedings.

The trial Judge, Neilsen DCJ gave judgment for the Defendant finding there was no breach of duty on the part of the occupier of the premises. His Honour found that had he considered the Defendant to be negligent he would have made a finding of 30% with respect to contributory negligence. His Honour assessed damages without a reduction for contributory negligence at just over $81,000.

The Plaintiff sought leave to appeal on 24 different grounds.

The Court of Appeal considered the occupier’s breach of duty. The Trial Judge had accepted that there was no formal system of inspection for a removal of spillages however he thought there was no need for a “formal” cleaning system and that staff including the assistant manager were on lookout for spillages. He noted that the assistant manager had passed up and down the main aisle of the shop where the slip occurred at least 10 times an hour including 10 minutes prior to the incident.

He stated:

“I also accept that Ms Dennaoui was a diligent employee and that had she noticed any spillage she would have cleaned it up. I therefore can infer that this spillage occurred only in the period of no more than 10 minutes between Ms Dennaoui left the area in question to the time of the Plaintiff’s fall.

There are other items of evidence which point in the same direction. There was no evidence, for example, of the spill having been earlier reported to anybody at Table Eight or of there having been any earlier falls. Indeed there is no evidence of there having been any earlier spillage or any earlier fall.”

The Plaintiff challenged the finding that Ms Dennaoui had been in the area where the spillage had occurred no more than 10 minutes earlier on the basis that the evidence did not expressly support it. The Court of Appeal found the inference was readily available to the Trial Judge.

In the course of his judgment the Trial Judge referred to a number of cases where similar assessments have been made of the adequacy of cleaning systems in shops where there were spillages and slips. He placed an emphasis on the fact it was a store selling clothes to members of the public and that the store did not have any lavatories or wash rooms, nor did it sell food or beverages. He considered whether the failure to have a “system” of inspection for, warning of and cleaning up spillages constituted negligence.

He stated:

“Any slip and fall can be prevented by implementing a system of inspection and cleaning that removes contamination as soon as it occurs. However, the cost of such a system might be intolerable… the occupier of the premises must take reasonable care… there is no evidence before me as to what system of inspection and cleaning this occupier ought to have adopted. For all I know it is the same system of inspection and cleaning adopted by every other retailer of that in women’s clothing. The system may have been informal but there is no evidence that this informal system of inspection and cleaning had failed in the past.”

The Plaintiff contended that Ms Dennaoui’s evidence as to how often she traversed the length of the shop was imprecise. The Court of Appeal found that it was true that there was variation in the timings but the variations in timing were not great and the Court of Appeal considered the conclusion reached by the Trial Judge was an appropriate one.

The Court of Appeal found that no basis had been identified on which the Plaintiff would have reasonable prospects of success in challenging the finding with respect to the content of the duty of care and breach of that duty and they dismissed the Application for leave with an order that the Plaintiff pay the Defendant’s costs.

This case should give some occupiers confidence that that occupiers of shops will not necessarily be required to have a formal system of cleaning and inspection in place that follows 15 minute cleaning rotations and that the appropriate cleaning regime may differ depending on how hazardous the shop may be for example food courts would require a more intensive inspection and cleaning system than a clothing store as is the case in this instance.