Ms Warren alleged that on 27 December 2015 she slipped and fell on water while shopping at the Bunnings warehouse in Mittagong, NSW. Bunnings provided a liability concession that the floor would be slippery if it were established by Ms Warren that there was a liquid substance on the floor. The source of the water and the length of time it had remained on the floor, was in dispute.
As a result of the incident, Ms Warren alleged that she sustained injury to various body parts, in particular to her left knee and left shoulder. She claimed damages including non-economic loss, past and future out of pocket expenses and past and future domestic care and assistance.
The proceedings proceeded to Hearing before his Honour Judge Robison of the NSW District Court on 23 August 2018. Judgment was delivered on 27 August 2018. The Court found in favour of Bunnings and ordered Ms Warren pay Bunnings’ costs on an ordinary basis up to and including 29 May 2018, and indemnity costs thereafter.
The Court accepted Ms Warren did slip and fall, however the source of the water and length of time it had been on the floor remained open for dispute by the parties. Ms Warren gave evidence that her daughter and great grandson (who were shopping with her) had walked some distance ahead of her and is was not until she was slipping, that she observed a large puddle of water. Inconsistently, Ms Warren’s daughter gave evidence that she was only about 1-1.5 metres in front of the plaintiff at the time Ms Warren fell. However, the daughter did provide evidence that there was a large puddle of water on the floor.
Ms Warren’s credibility was tested to a considerable extent on both liability and damages. In relation to damages, Ms Warren denied having any issues with her knees or shoulder prior to the incident, despite the medical evidence tendered by Bunnings that overwhelmingly contradicted Ms Warren’s evidence.
Bunnings called three witnesses to give evidence, including a manager and two team members. Each of the witnesses gave evidence that when they arrived to Ms Warren’s aid, they observed a small puddle of water, smaller than the palm of a hand. Further, all three witnesses gave evidence that they observed a child next to Ms Warren (found to be her great grandson), to be holding a small drink. Bunnings submitted the small drink may have been the source of the liquid observed on the floor.
The Court considered the collective evidence of the plaintiff (being Ms Warren and her daughter) and the collective evidence of the three Bunnings witnesses. In light of Ms Warren’s credibility issues, which arose under cross-examination, the Court preferred the evidence of the Bunnings when it came to the likely source of the water on the floor. His Honour found the Bunnings’ employees to be witnesses of truth and reliability and could find no reason to reject their evidence.
His Honour accepted Bunnings’ had a system of cleaning and inspection in place, and that all employees were at all times, required to keep a proper look out for anything hazardous on the floor. The Court was satisfied the Bunnings had reasonable precautions in place that were deployed at all material times. The Court was not satisfied that Ms Warren had established that Bunnings’ had breached its duty of care owed to her, particularly in the event that it was more likely than not, that the water emanated from a child in Ms Warren’s company.
In the alternative, the Court went onto assess damages. His Honour was critical of the plaintiff’s medico-legal report, as that Doctor was not provided with the plaintiff’s pre-incident medical history. His Honour assessed damages totalling $16,383.20, limited to damages for non-economic loss and past and future out of pocket expenses only.
This decision serves as a reminder of two issues in particular:
- The onus of establishing certain factual circumstances and a breach of duty of care, rests with the plaintiff. To simply fall over as a result of water on the floor, does not evidence a breach of duty by a would-be defendant; and
- The credibility of a plaintiff will significantly influence the outcome of the proceedings. The Court is required to weigh up the evidence before it and in the absence of a credible, reliable and accurate plaintiff, the risk of an adverse finding against an occupier is reduced.