The plaintiff was injured when he slipped and fell on stairs at a McDonalds restaurant.  To access the counter at the restaurant, customers had to walk up a set of stairs at the entrance.  The counter was located at the back of the restaurant.

The plaintiff and his friend arrived at McDonalds at about 4.30am.   At the time of the incident, the restaurant was being cleaned.  There was a pile of rubbish on the floor about one to three metres from the top of the stairs.  The floor between the rubbish and the counter had recently been mopped.  The plaintiff saw a thin film of water on the floor and smelled cleaning chemicals.  He stepped over the rubbish and walked along the wet floor to the counter.  Finding the counter unattended, the plaintiff walked back across the wet floor, stepped over the rubbish and walked back along the dry section of floor to the stairs.  He slipped as he began walking down the stairs.  At the time, he was talking to his friend, was carrying his skateboard under his arm and was not holding on to the side handrails.

McDonalds engaged Holistic Cleaning Services to clean the restaurant.  The store was open 24 hours a day.  McDonalds required Holistic to carry out cleaning between the hours of 4am and 7am. McDonalds supplied the equipment and instructed Holistic to dry mop the floor, which involved mopping the floor with a mixture of water and slip resistant detergent, which was supplied in controlled portions by McDonalds. 

McDonalds instructed Holistic to mop the dining area in four sections, allowing one section to dry before moving on to the next, so that customers would always have a dry section on which to walk.  However, at the time of the incident, the entire section of floor between the pile of rubbish and the counter was wet. 

McDonalds also instructed Holistic to use a minimum of three ‘cleaning in progress’ signs – one at the entrance of the restaurant, one near the counter and at least one near the area actually being cleaned.  At the time of the incident, there was one, possibly two signs at the counter, but none at the entrance of the restaurant or top of the stairs, or on the area that had been recently cleaned.  So by the time the plaintiff encountered a sign, he had already walked across the wet floor.

None of the parties relied on any expert evidence in relation to the stairs.  The evidence from McDonalds’ employees was that ceramic non-slip tiles were used on the floor and stairs, that there was a strip of bubble-tiles across the top of the flight of stairs and there was a strip of abrasive material on the edge of each stair.  Beyond that, there was no evidence about the slip resistance of the tiles when wet or of the effect of residual moisture on the plaintiff’s shoes.

On appeal, the New South Wales Court of Appeal unanimously found that neither McDonalds nor Holistic were liable for the plaintiff’s injuries. The majority of judges held that McDonalds and Holistic had breached their duty of care by not mopping the floor in sections and by not cordoning off a section of dry floor for customers to use as a walkway.  The judges considered that both of these precautions were simple and caused no inconvenience to McDonalds or Holistic.

However, the plaintiff’s claim failed because he could not establish that the wetness from the floor actually caused him to slip and fall. In the absence of any evidence from the plaintiff, lay or expert, on the effect of moisture on the floor and on his shoes, the judges were not satisfied that it was more probable than not that the wet floor caused the fall. Nor was the Court willing to make an inference that as a matter of common experience it is more probable than not that the plaintiff slipped by reason of wetness on his shoes rather than because of any other reason such as inattention, excessive speed or failing to take advantage of a handrail.

Jackson v McDonalds Australia Limited 

Although expert evidence is sometimes overused, this is a case where the Court was not prepared to make an assumption about a relatively simple factual issue without the benefit of expert evidence.