Case Reference Number:

A1231/04

 

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT KIRKCALDY

 

JUDGEMENT OF SHERIFF WILLIAM HOLLIGAN

 

in causa

 

 

PURSUER LINDA BLACK, residing at 60 Garvock Hill, Dunfermline, Fife KY12 7UU

against

 

DEFENDERS C B RICHARD ELLIS MANAGEMENT SERVICES LTD, a company incorporated under the Companies Acts and having its registered office at St Martin's Court, 10 Paternoster Row, London EC4M 7HP and having a place of business at Mercat Shopping Centre, High Street, Kirkcaldy, Fife KY1 1NJ

 

 

ACT: Mr Conway; ALT: Miss Bennett.

 

 

KIRKCALDY 17 January 2006. The Sheriff, having resumed consideration of the cause, FINDS IN FACT:-

 

1.       The Pursuer resides at 60 Garvock Hill, Dunfermline. She is aged 47. The Defenders are a company incorporated under the Companies Acts and have a place of business at Mercat Shopping Centre, High Street, Kirkcaldy ("the Mercat Centre").

 

2.       The Mercat Centre is a shopping centre of approximately 440,000 square feet of which approximately 190,000 square feet comprises retail space. It is approximately 37 years old. There are approximately 47 retail units within the Mercat Centre. The retail units are on the ground floor. The Mercat Centre has a flat roof. Number 5/2 of process are photographs of certain views within the Mercat Centre.

 

3.       The retail units are served by walkways used by members of the public. The retail units and walkways are all under cover. Marks and Spencers is one of the retail units. The walkway outside Marks and Spencer's is laid with marble tiles ("the tiles"). On 3 February 2004 ("the relevant date") the surface of the tiles, when dry, had a low potential for slipping. The surface of the tiles had a dangerous or high potential for slipping when wet. The Defenders knew the floor was slippery when wet. The Mercat Centre is a busy retail shopping centre. It is used by members of the public. In one part of the Mercat Centre the passageway was treated with material to reduce the risk of slippage on the floor.

 

4.       On the relevant date the Defenders were occupiers of the Mercat Centre within the meaning of the Occupiers Liability (Scotland) Act 1960. On the relevant date the Defenders employed security officers who worked shifts at the Mercat Centre. Number 6/2 of process sets out the duties of a security officer. The duties include, but are not limited to, identifying and reporting potential hazards and, if possible, removing them. The number of security officers working at the Mercat Centre varied during the week. One of the duties of a security officer was to patrol the Mercat Centre. It takes approximately five to ten minutes to walk from one end of the Mercat Centre to the other. Hazards on tiles are common. They can be spillages or water.

 

5.       On the relevant date the Defenders had a system for dealing with spillages and other hazards present on the tiles. If a security officer patrolling the Mercat Centre noticed such a hazard on the tiles, he would use his radio and call for cleaning staff to attend. The Defenders used the services of independent cleaning contractors in the Mercat Centre. There were cleaners present in the passageways and also elsewhere in the Mercat Centre. The security officer would stand by the hazard until the cleaner arrived. The security officer might place barriers or other warning signs around the hazard. The security officers knew to keep a careful lookout for hazards in wet weather. Cleaners were under instructions to clean up any hazards on the tiles which they noticed when in the passageway area.

 

6.       To the knowledge of the Defenders the roof of the Mercat Centre leaks. It has leaked for at least the last seven years. The leaks arise because of deficiencies in the roof, wind blowing water through the guttering underneath the roof line or coming in via the air-conditioning system on the roof. The leaks have led to water getting onto the tiles below.

 

7.       Prior to the relevant date there had not been a leak from the roof in the place where the Pursuer suffered the accident referred to below. In places where there were leaks from the roof, the Defenders placed buckets on the tiles or in the ceiling void above. Where buckets were placed on the tiles they were surrounded by barriers. The Defenders had instructed inspection of and repairs to be carried out on the roof from time to time.

 

8.       On the relevant date the Pursuer visited the Mercat Centre. She was familiar with the Mercat Centre and had visited it regularly. On the relevant date the weather was overcast. It had been raining the day before. The Pursuer intended to visit Marks and Spencer and TK Maxx.

 

9.       On exiting Marks and Spencer the Pursuer slipped. Her right foot went out and she fell on her left side. She suffered injury to her right ankle. She slipped on a puddle of water which lay upon the tiles. The puddle of water was approximately the size of an A4 piece of paper ("the puddle"). Her trousers were wet from the puddle. The Pursuer did not see the puddle before she fell. It is difficult to see water present on the tiles. It is not known how long the puddle had been present on the floor.

 

10.   After she fell the Pursuer was attended by three members of the public. One of the members of the public spoke to one of the security officers and stated that the Pursuer had fallen because of the presence of water on the tiles. The Pursuer spoke briefly to the manager of the Mercat Centre, Steven Roberts, and then to a security guard, Mr Nicol. She gave her personal details to Mr Nicol. A security officer, William Steven, prepared an incident report form from information given to him by Mr Nicol and the supervisor, James Dryburgh. 6/1 is a copy of the typed version of the incident report written by Mr Steven. During his patrol of the area where the Pursuer fell, Mr James Dryburgh did not notice any water.

 

11.   Immediately after the incident the Pursuer felt pain. She also felt embarrassment. She was sick. She went to hospital later the same day. The amount of the Pursuer's loss as at 16 August 2005 is agreed in the sum of £2,888.08.

 

12.   After the Pursuer's fall, the area where the Pursuer fell was surrounded by barriers behind which buckets were placed. Steven Roberts caused investigations to identify the source of ingress of the water onto the tiles. The water was found to come from the roof via the air-conditioning system. It was rain water.

 

 

FINDS IN FACT AND IN LAW that the Pursuer, having suffered injury through the breach of statutory duty of the Defenders as condescended upon is entitled to reparation.

 

THEREFORE sustains the 2^nd and 3^rd pleas-in-law for the Pursuer and repels the Defenders' pleas-in-law; DECERNS against the Defenders for payment to the Pursuer of the sum of TWO THOUSAND EIGHT HUNDRED AND EIGHTY EIGHT POUNDS AND EIGHT PENCE (£2,888.08) STERLING with interest thereon at the rate of eight per cent per annum from 16 August 2005 until payment; RESERVES all questions of expenses and APPONTS parties to be heard thereon on Thursday, 2 February 2005 at 10.00 am within the Sheriff Court House, Whytescauseway, Kirkcaldy.

 

 

 

 

 

 

NOTE

 

This is an action of reparation in which the Pursuer seeks damages from the Defenders for an injury suffered by her on 3 February 2004.

 

The witnesses for the Pursuer were the Pursuer herself, her husband David Black, Marie Tillier and Lenford Greasley. The witnesses for the Defenders were William Steven, Steven Roberts and James Dryburgh.

 

I found all the witnesses to be largely credible and reliable. Indeed, with the exception of one small issue, there is no significant dispute between the parties as to the relevant facts. The real issue, it seems to me, is the legal conclusion which arises from the facts.

 

This action concerns an accident which took place at the Mercat Centre, Kirkcaldy. Mr Roberts is the manager of the Mercat Centre and has been for the last seven years. William Steven is a security officer employed by the Defenders who works at the Mercat Centre. James Dryburgh is a recently retired security officer, formerly employed by the Defenders as a supervisor. There was no issue taken that, on the relevant date, namely 3 February 2004, the Mercat Centre was managed by the Defenders and that they were occupiers for the purposes of the Occupiers Liability (Scotland) Act 1960 ("the 1960 Act").

 

From the evidence of the Defenders' witnesses the following is established.

 

The Mercat Centre is approximately 37 years old. There are approximately 47 retail units. The Centre comprises 440,000 square feet of which 190,000 square feet comprise retail space. It is a major retail centre attended by many members of the public. The centre is covered by a flat roof. Access to the shops is gained by public areas or passageways. The area immediately outside Marks and Spencer is covered by marble tiles.

 

The Defenders employ security officers. The number of security officers on duty varies throughout the week. In general, the busier the day, such as a Saturday, the more security officers will be on duty. Their duties include undertaking foot patrols throughout the centre. The evidence of Mr Steven and Mr Dryburgh establishes that, in general, it takes between five to ten minutes to walk from one end of the centre to the other. The security officers have a number of duties, more particularly set out in 6/2 of process. For present purposes it is only necessary for me to say that it includes the identifying and reporting of potential hazards. The security officers are issued with radios. The practice at the relevant time was that, if a security officer found a hazard, such as a spillage on the floor, he would then radio the control room for a cleaner to attend, unless there was a cleaner in the immediate vicinity. The security officer would then stay with the hazard until the cleaner arrived. I understand from the evidence that there was also a practice of erecting barriers around the hazard with warning signs. I assume this could only have been done by someone other than the security officer standing by the hazard or after the cleaner had arrived. The Defenders have a contract with independent contractors who provide cleaning services. 5/3 is a document which states the responsibilities of the cleaner. There was some discussion in evidence as to whether the word "daily" meant on one occasion or more than one occasion. I am satisfied from Mr Roberts' evidence that, in the context of this case, the obligation to keep the floors tidy and free of litter and spillage would not have been satisfied by a cleaner on one single occasion but was a continuing obligation upon the cleaner. I also accept the evidence from the Defenders' witnesses that the security officers did have a responsibility to be alert to spillages and to call for a cleaner. It would appear from the evidence of the Defenders' witnesses that spillages were far from uncommon.

 

There are two aspects of the Mercat Centre itself which are of particular relevance to this case, namely the tiles and the roof.

 

In relation to the tiles, I heard evidence from Mr Lenford Greasley, an expert witness for the Pursuer. Mr Greasley prepared a report which is 5/4 of process. Mr Greasley was asked to provide an opinion as to the properties of the tiles.

 

I intend no disservice to Mr Greasley's report and evidence if I summarise it as follows. Mr Greasley undertook a test of the tiles using a Wessex slip resistance tester. The tester gives an estimate of the slip resistance of hard floors. Mr Greasley undertook the test when the tiles were wet and when the tiles were dry. As his conclusions were not seriously challenged, I think all I need to say is that the conclusion Mr Greasley reached, undertaking this and other tests, was that, when dry, the tile surface had a safe or low potential for slipping but when wet would cause a high or dangerous slip risk. Mr Greasley suggested that one way to address the risk was to increase the surface roughness of the tiles by using certain proprietary applications available on the market. Given the source of the ingress of the water was traced to the roof, another step would have been to ensure that the water did not penetrate through the roof and get onto the floor. Thirdly, the Defenders could also have instituted a frequent inspection regime to ensure that the floor did not become contaminated with water. I do not think that the Defenders, in their evidence, seriously challenged Mr Greasley's conclusion that, when wet, the tiles were slippery and presented a risk. Mr Roberts did comment in his evidence that, in another part of the Mercat Centre, near an entrance, a proprietary brand of roughner had been applied to reduce the risk of slippage but that Mr Roberts was not convinced as to the efficacy of this particular step.

 

It is also clear from the evidence that, for some time, there has been a problem with the roof of the Mercat Centre. It is flat. All of the Defenders' witnesses accepted that the roof leaks. Precisely how long it had been like that is not clear but Mr Roberts accepted it had been a problem throughout his tenure as a manager, which is seven years. The Pursuer and her husband also spoke to seeing barriers and buckets present. Mr Black stated that, after the accident, he saw buckets in the ceiling void catching water from the roof.

 

From Mr Roberts' evidence, the water ingress has three main causes, namely deficiencies in the roof itself, wind blowing water through the guttering underneath the roof lining and water coming in via the air-conditioning system on the roof. In relation to the last item, there was some uncertainty in my mind as to whether Mr Roberts meant that water was coming in from the air-conditioning system itself or whether it was rainwater which came from the roof onto the tiles via the air-conditioning system. Parties were agreed that I should proceed upon the basis that it is the latter, not the former.

 

I accept Mr Roberts' evidence that the roof has been the subject of work done over the years. Mr Roberts got assistance from surveyors and external contractors to identify the problem areas and carry out repairs. It is clear that there were several problem areas but all of the Defenders' witnesses were clear that the place where the Pursuer had her accident was not one of them. Having said that, I do not think it was in dispute that the Pursuer slipped on a puddle of water and not a spillage, such as juice or other liquid product. It was also not disputed that water is particularly difficult to see on the tiles.

 

As to the incident itself, I accept the Pursuer's evidence that she exited from Marks and Spencer and slipped on a puddle of water which was lying on the tiles. The puddle was approximately the size of a piece of A4 paper and she did not see it before she fell. Her right foot went out and she fell on her left side injuring her ankle. The only point of controversy is what happened immediately after the accident. I accept the Pursuer's evidence that she was attended by three elderly members of the public, two female and one male. She said she was spoken to by staff at the Mercat Centre only after the elderly man remonstrated with one of them as to the state of the floor. From the evidence of the Defenders' witnesses, the security officer to whom she spoke must have been Mr Nicol (who did not give evidence). Mr Roberts said he thought he did speak briefly to the Pursuer and he thought he had asked her whether she needed assistance. She must have given sufficient details to someone, most likely Mr Nicol, to enable them to include sufficient details about her and the incident in the incident report form which is 6/1 of Process. The Pursuer denied she was offered any first aid and, on balance, I accept her evidence that, so far as she was concerned, she was not offered first aid. Whereas it does not affect the outcome of this case, given that I accept the Pursuer's evidence that she was, at the time, in some pain and was subsequently sick and indeed went to hospital that day, I can understand why it is a feature which remains in her recollection of events.

 

The parties have agreed the amount of damages payable to the Pursuer in the event that liability is established in terms of the Joint Minute.

 

Mr Conway produced written submissions upon which he expanded. His written submissions were to the following effect. There were three allegations made against the Defenders, namely: (1) the admitted occurrence of a leak of external rainwater onto the centre floor sets up a prima facie inference of negligence which it is for the Defenders to negative by explaining how it could happen without negligence; (2) separately, the presence of water on the floor sets up a prima facie inference of negligence which places an evidential burden of explanation on the Defenders, which they have failed to discharge; and (3) separately, in the circumstances of ongoing problems with rainwater penetration and their failure to address with a comprehensive solution, the Defenders should have installed non-slip flooring in the Mercat Centre.

 

In support of his submissions I was referred by Mr Conway to the following authorities: Milne v Rank City Wall Limited 1987 GWD 14-525; Hall v Fairfield Shipbuilding & Engineering Company Limited 1964 SLT 97; Binnie v Rederij Theodoro BV 1993 SC 71; Devine v Colvilles Limited 1967 SLT 89; 1968 SLT 294; 1969 SLT 154; McDyer v Celtic Football & Athletic Company Limited 2000 SLT 736; Ward v Tesco Stores Limited [1976] 1 All ER 219; Jacobs v Tesco Stores plc (unreported) 19 November 1998; Laverton v Kiapasha (trading as Takeaway Supreme) 19 November 2002 (unreported); Gloag and Henderson: The Law of Scotland 10^th Edition paragraph 32.13.

 

 

As I have him noted, Mr Conway's final position was as follows. He argued that the maxim res ipsa loquitur applies to this case. The res in this case was the water on the floor. The presence of the water on the floor was something which would not have occurred if ordinary management and care had been undertaken by the Defenders. That calls for an explanation. The maxim imposes an evidential burden. It was therefore up to the Defenders to provide an explanation which was consonant with an absence of negligence on their part. This onus was not discharged by the leading of evidence as to repair. Mr Conway illustrated the point by reference to the case of Devine v Colvilles Limited. In that case, as Lord Guest commented, although the Defenders had provided some explanation, it took them only half the way to success because it was not consistent with the absence of any negligence. Similarly, in this case the Defenders had provided an explanation as to how the water got onto the floor but that only took them half way. From the evidence there was a consistent problem with the roof and there had been a number of previous incidents.

 

Mr Conway's case is based upon the 1960 Act and, so far as section 2 thereof is concerned, he relied upon the state of the premises. He submitted that all that section 2 really does is to put into statutory form the obligation of reasonable care.

 

He further submitted that, on the evidence and, in particular, that of Mr Greasley, the premises were in a dangerous state when wet. There was an obligation upon the Defenders to install a non-slip floor. In this context he particularly referred to the case of Laverton v Kiapasha. In this case it was clearly foreseeable that somebody might slip on the floor and there was therefore an obligation upon the Defenders to take steps to deal with that. Mr Greasley had identified a number of areas in which action could have been taken.

 

So far as contributory negligence was concerned, Mr Conway pointed out that the evidence was to the effect that water was hard to see on the tiles and therefore if I were minded to make a finding of contributory negligence it should be no higher than five or ten per cent. He invited me to reserve expenses.

 

In reply, Miss Bennett dealt first with the application of the maxim res ipsa loquitur. In her submission, the maxim did not assist the Pursuer because, on the facts of this case, the Defenders had provided an explanation and therefore the evidential value of the maxim was no longer of any effect. Miss Bennett pointed out that the reported cases, which dealt with the application of the maxim, related to cases in which there were fairly unusual factual circumstances such as in Devine.

 

Her principal submission was to the effect that the Pursuer came to court offering to prove the application of section 2 of the 1960 Act and in that she had failed. The obligation was one of reasonable care. Miss Bennett referred me to the case of Wallace v The City of Glasgow District Council 1985 SLT 23. In Miss Bennett's submission, the Pursuer said she had an accident when she slipped outside Marks and Spencer. The Defenders accepted that the floor, when wet, is slippery. However, the Pursuer had to go further than that. She must firstly prove the Defenders should have been aware of ingress of water outside Marks and Spencer where she had her fall; secondly, that it was reasonably foreseeable that there would be water at that point outside Marks and Spencer; and, thirdly, that the system of inspection and maintenance fell short or failed and was inadequate to discharge the duty of reasonable care in the circumstances. There was no evidence to show that there had been water ingress on a previous occasion at the point where the Pursuer fell. Mr Greasely did comment that there should be a frequent system of inspection but he did not say how frequent that should be. Furthermore, there was no evidence that the puddle of water had been present for any length of time prior to the accident and there was no evidence of ingress of water from the roof prior to the accident. Although Mr Dryburgh had been asked in evidence how long he thought the water might take to accumulate and had said an hour, he was no expert and there was no evidence from any other source.

 

Miss Bennett took me in detail through the evidence of the various witnesses. In short, the evidence showed that the Defenders' witnesses were constantly on the lookout for hazards and slippages and, indeed, Mr Roberts' evidence was to the effect that hazards arose more from slippages than water ingress. She accepted Mr Roberts had said he was not comfortable with the number of leaks in the roof, but it was unduly onerous to expect the Defenders to anticipate where the next ingress of water might come from. Mr Dryburgh had walked past the point at which the accident took place and had not noticed any water there, but one could not infer it had only become present within the last ten minutes. The Pursuer had failed to prove that the puddle had been there for any time prior to the accident. Nor was there any evidence as to what was an appropriate system of inspection and maintenance for parties such as the Defenders. In other words, the Pursuer had failed to prove that the system of inspection fell short of what they had to do to take reasonable care for the Pursuer's safety. Miss Bennett then referred me to the case of Cordiner v British Railways Board 1986 SLT 209 and she said that the reasoning of that case applied with equal force to any duty under section 2 of the 1960 Act. The Defenders had led evidence as to their system of inspection and the Pursuer had done nothing to rebut that.

 

If I were against Miss Bennett in her principal submission, then I ought to find contributory negligence and Miss Bennett suggested a figure of 25 per cent. She also invited me to reserve expenses.

 

I issued an interlocutor on 28 October 2005, along with a short note. There were certain issues which I raised in my note upon which I invited parties to make further representations to me. Both did so in writing and I am grateful to Mr Conway and Miss Bennett for their representations. For the Pursuer, Mr Conway made reference to further authority: Elliot v Youngs Bus Service, 1945 SC 445; Love v Motherwell District Council, 1994 SCLR 761; Morton v West Lothian Council, 3 November 2005 (the Opinion of Lord Glennie); Lister v Hesley Hall Limited, [2001] at 2 All ER 769; Ragnelli v David Jones (Adelaide) Pty. Limited, 2 December 2004, Supreme Court of South Australia; Kocis v SE Dickens Pty. Limited, [1998] 3 VR 408; Franklins Limited v Hunter, 1 May 1998, Supreme Court of New South Wales; Kartinyeri v Woolworth (South Australia) Pty. Limited, 9 June 2004, Supreme Court of South Australia; Mullen v Quinnsworth, [1990] 1 IR 59 (Supreme Court of Ireland); Jones on Torts, Eighth Edition, pages 218-221.

 

For the Defenders, Miss Bennett referred me to Ballard v North British Railway Company, 1923 SC (HL) 43; Milne v Townsend (1892) 19 R 830; McQueen v Ballater Golf Club 1975 SLT 160.

 

The authorities to which I have been referred fall into two categories: those dealing with the application of the principal res ipsa loquitur; those dealing with slipping cases generally.

 

I will return to the supplementary submissions made by Mr Conway and Miss Bennett. At this stage I propose to look at some of the authorities to which I have been referred on the issue of slipping.

 

I deal firstly with the two Scottish cases to which Miss Bennett referred, namely Wallace v City of Glasgow District Council and Cordiner v British Railways Board.

 

The case of Wallace was a reclaiming motion against the opinion of the Lord Ordinary after a procedure roll debate. The case was founded upon section 2 of the 1960 Act. As I read the report the Pursuer's pleadings were drafted in such a way as to constitute an averment that the relevant danger existed on the premises over which the defenders had control and that as a result of that danger the accident had occurred. That, said the Pursuer, was enough. Both the Lord Ordinary and the Inner House were of the view that was not enough and dismissed the action. I do not think there is anything in that decision which is particularly helpful. It turned on a question of pleadings.

 

The case of Cordiner involved an accident on a railway platform in which a railway guard slipped and suffered injury. The cause of him slipping was held to be a slimy, greasy substance on the platform. The case was brought by the employee against his employer. It is not particularly clear from the report as to the legal basis upon which this was done, but there is nothing in the report to suggest there was any reference to the 1960 Act. The Lord Ordinary described the Pursuer's pleadings as "jejune in the extreme". There also appears to have been a deficiency in the Pursuer's proof. The Lord Ordinary said that he would have expected the Pursuer to set forth and desiderate a system of regular inspection, maintenance and cleaning of a kind that would on a balance of probabilities have discovered and removed the slimy, greasy green substance before the Pursuer had an opportunity to slip in it. The Pursuer made no such averments and led no such evidence.

 

I turn now to the English cases. The first of these is Ward v Tesco Stores Limited. This is a decision of the Court of Appeal comprising Megaw, Lawton and Ormrod LJJ. The case involved a case by a plaintiff who suffered injury when she was shopping in the defendants' store, slipping on some yoghurt which had been spilt on the floor. She brought an action against the defendants claiming damages for personal injury, allegedly caused by the defendants' negligence in the maintenance of the floor. At first instance, she succeeded in her claim against the defendants. By a majority (Ormrod LJ dissenting) the appeal was refused. The reasons for judgment are relatively brief. I do not detect in the reports any reference to the Occupiers Liability Act 1957, the English equivalent to the 1960 Act. The plaintiff in that case was not in a position to show how long the yoghurt had been present on the floor. It was argued that it was for the plaintiff to show that the spillage had been on the floor for an unduly long time and that there had been opportunities to clean it up, opportunities which not been taken. Reference was made to a decision of Devlin J (as he then was) in the case of Richards v W F White and Co [1957] 1 Lloyd's Reports 367 which suggested that Devlin J was of the view that, in the case in which he had to decide, also a slipping case, there had to be some evidence to show how long, in that case, the oil had been present and some evidence from which it could be inferred that a prudent occupier of the premises who had a reasonable system of inspection ought to have noticed it. The majority of the Court of Appeal did not accept that Devlin J had intended to make any general statement of principle. Lawton LJ referred to the principle of res ipsa loquitur in the classic formulation of Earle CJ in Scott v London and St. Katherine Docks Co [1865] 3H & C 596 at 601. Lawton LJ held that the supermarket was under the management of the defendants and their servants, and the accident which had occurred was such as in the ordinary course of things does not happen if floors are kept clean and spillages dealt with as soon as they occur, therefore it required some explanation from the defendants to show that the accident did not arise from any want of care on their part. It followed that there was an evidential burden on the defendants. Lawton LJ held that the trial judge was justified in taking the view that, prima facie, the accident would not have happened had the defendants taken reasonable care and the probabilities were that the spillage had been on the floor long enough for it to have been cleaned up by a member of staff. Megaw LJ agreed with Lawton LJ. He rejected the proposition that because the plaintiff could not prove that the spillage did not take place within a matter of a few seconds before she slipped and fell on it (i.e. however perfect a system the defendants had had, it would not have enabled them to prevent this accident) she must therefore fail. Megaw LJ took the view that it was for the plaintiff to show that there had occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendants than the absence of fault. There was slippery liquid on the floor of the supermarket. The defendants should have known that it was not an uncommon occurrence and that if it should happen and was not promptly attended to it would cause a serious risk to customers. That was consistent with fault on the part of the defendants. The defendants could escape from liability if they could show that the accident must have happened, or even on a balance of probabilities would have been likely to have happened, irrespective of the existence of a proper and adequate system to provide for the safety of customers but if the defendants wanted to put forward such a case it was for them to show that on a balance of probabilities the accident would have been at least likely to have happened despite a proper system designed to give reasonable protection to customers. He also distinguished the case of Richards v W F White and Co. Although Megaw LJ agreed with the reasons of Lawton LJ he did not make any express reference to the principle of res ipsa loquitur. Ormrod LJ dissented. He did not accept the application of res ipsa loquitur because the accident could have happened without any want of care on the part of the defendants. He took the view that the crucial question was how long before the accident the yoghurt had been on the floor. It was not sufficient in his opinion for the plaintiff to say that she had slipped on some yoghurt.

 

The case of Jacob v Tesco Stores plc is, in my opinion, of little assistance. The judgement does not with respect, advance any of the conclusions reached in Ward. Reliance was also made upon Section 16 of the Offices, Shops and Railway Premises Act 1963, which is clearly not applicable here.

 

The case of Laverton v Kiapasha is also a judgement of the Court of Appeal in England. That case involved a claim by a plaintiff who slipped on a wet floor in a takeaway shop. The water was walked in by customers coming in during a wet night. The case was pled upon section 2 of the Occupiers Liability Act 1957. It is clear from the reasons of Hale LJ (as she then was) that the crucial issue was whether the defendant shopkeeper had taken reasonable care to see that his visitors were reasonably safe. The trial judge found it unnecessary to resort to the principle in Ward v Tesco and pointed out that the issue was what it is reasonable to expect a shopkeeper to do about a wet floor. There was a distinction between particular dangers such as greasy spillages which it is reasonable to expect a shopkeeper to deal with straightaway and the general problem posed by walked in water on a wet night which can never be completely avoided. The question was what was reasonable to expect of the defendant in the particular circumstances in the case and whether anything else would have made a difference. The trial judge found for the plaintiff but, by majority, the Court of Appeal set aside the judge's order. For present purposes, it is important to note that this was not a case of a leaking building, but a plaintiff slipping on water which had been brought in by customers on a wet night. The Court of Appeal held that it could not be shown that the defendant had failed to take reasonable care in looking after his customers.

 

I now turn to some of the Australian authorities to which Mr Conway referred me. I do not propose to go over all of the Australian judgements in detail. It is sufficient for me to refer to two, namely Kocis v S E Dickens Pty. Limited and Ragnelli v David Jones (Adelaide) Pty. Limited. In my respectful opinion, these two cases deal extensively, and in detail, with the issues raised by slipping cases.

 

The case of Kocis involved a claim by the plaintiff who slipped and fell in a pool of liquid in the aisle of a supermarket when she was shopping. The supermarket had a system of checking for spillages every half an hour or so but the system had not been in operation for one to one and a half hours before the accident. It was not established precisely when the spillage occurred, only that it had happened at least five minutes before the accident. The trial judge directed a verdict for the defendant on the ground that the plaintiff could not prove that the defendant's failure to provide inspection at least every five or six minutes was a failure to take reasonable care. The plaintiff appealed to the Court of Appeal. The appeal was allowed and a retrial ordered.

 

The plaintiff's claim proceeded upon the Victorian equivalent of the 1960 Act. In my view, Mr Conway was correct to say that the general principles behind both pieces of legislation are the same. In any event, of particular importance here is the chain of reasoning of the Court of Appeal which comprised Ormiston, Phillips and Hayne JJ.A. In the course of his reasons for judgement, Phillips JA reviewed all of the main Australian authorities on this area. I summarise what I understand the chain of reasoning of the Court of Appeal to be.

 

The mere fact that someone slips on something on the floor does not of itself amount to negligence. However, if the slippage occurs on something that has been spilt on the floor in one of the aisles around the shelves and in an area where such spillages are to be expected from time to time during the day, the plaintiff will ordinarily be able to rely upon the obligation imposed upon the defendant to take reasonable care for the safety of its customers and to that end have in place some sort of system for cleaning the floor from time to time in order to overcome the risks of slipping created by such spillages. The standard of care, and therefore the actual steps that will be sufficient to discharge that obligation, will however depend upon particular circumstances of the case. It is the likelihood of slippery substances falling from time to time to the floor of the supermarket in areas where customers are regularly passing and re-passing that serves to attract in the defendant operator the obligation of taking reasonable measures for the safety of its customers and to look to the cleaning of the floors to protect against the risks otherwise arising. There may be cases in which it is unnecessary to guard against the risk. His Honour made reference to the case of Dulhunty, a decision of the High Court, to which I drew parties' attention in an earlier note. His Honour distinguished Dulhunty from the case of Kocis because in the case of the former, there was a grape present on the floor in the clothing part of a store. That was clearly different from a situation in which there might be food present on the floor in a part of the shop where food is sold. Once it is shown that spillages of slippery substances can be expected the operator of the supermarket is under some obligation, in taking reasonable measures for the safety of its customers, to look to the cleaning of the floors in the course of the day in order to protect against the risk otherwise arising from spillages. The question is what particular steps will serve to discharge that obligation and each case will turn upon its own facts. As was said in another case referred to by his Honour (Brady v Girvan Brothers Pty. Limited [1986] 7 NSWLR 241), the number of people who use the premises, the frequency with which spillages occur, the gravity of the danger, and the area to be supervised are also relevant circumstances in determining what standard of care is reasonably required to avoid risk of injury. If it is established that there should be a system of cleaning then it is up to (in that case) the jury to decide whether the defendant has discharged the duty at the time of the fall.

 

Once it has been established that there is negligence then the next issue is one of causation. In his Honour's opinion, the crucial question was whether the particular conduct or omission caused the injury and that has to be determined on a balance of probabilities. His Honour made reference to a number of Australian authorities to illustrate his chain of reasoning. It is, I think, useful to make reference to a number of these. In one case a plaintiff had fallen when she slipped on a grape near the defendant's fruit and vegetable counter. It was found that fruit and vegetable matter constantly found its way onto the floor but the floor was swept frequently and whenever such material was noticed it was promptly removed. In that case negligence had not been established. In another case, a plaintiff slipped on pink icing on the floor of the dress department of a large store. The likelihood of such spills was not great in that department. It was not shown how the icing came to be there or how long it had been there. It was again held that such system of cleaning as was in operation was appropriate to the dress department and that nothing in the circumstances required any more effective systems for cleaning the floor. There was no negligence. In another case, plaintiff slipped on cooking oil spilt on the floor of the defendant's supermarket. There was evidence as to a system of cleaning in place but it was held that negligence was established because the defendant did not produce evidence that the floor had been cleaned on the day in question. In another case the plaintiff slipped on some green jelly in the common area of a shopping mall of which the defendant was the occupier. The court was of the opinion that reasonable care in the circumstances required a system of continuous inspection and cleaning of the common areas and hence, in the absence of such continuous surveillance, there was negligence. In another case a plaintiff slipped on an oily patch in a car park. The court took the view that a proper system of inspection required intervals of not more than twenty minutes and there was negligence in the defendants' failing to inspect for about an hour. In a further case a plaintiff slipped on vegetable oil in a supermarket in one of the aisles. The defendant had professional cleaners engaged to clean the supermarket each morning but otherwise employees were instructed to clean up spillages as and when noticed. The court there held for plaintiff, deciding that the defendant's system was inadequate and therefore the defendant was negligent.

 

His Honour then turned to the question as to whether it was fatal to the plaintiff succeeding if the plaintiff failed to show how long the substance had been lying on the floor of the accident. The argument was that in the absence of such evidence the plaintiff cannot succeed as the plaintiff has not then established that had the defendant taken all reasonable measures for the safety of its customers the accident would not have occurred. As this point is of some importance I think it is helpful if I were to set out his Honour's reasons in dealing with that issue:-

 

"Suppose that the operator of a fairly busy supermarket chooses to arrange for the cleaning of the floors only once a week and for that purpose closes the supermarket on Sundays. Spillages occur with such frequency that by the end of each week the floor is a mess. Spillages have occurred and been left lying, sometimes for days. Suppose the customer, who has entered the store on a Saturday, sustains injury by slipping on something that has been spilled in one of the aisles between the shelves. In an action by the customer against the supermarket operator, the first question for the jury would be whether, in the circumstances of the case, it is satisfied that the defendant failed to take reasonable care for the protection of its customers; no doubt it would be so satisfied if it considers that the defendant ought to have had in place some system of periodic inspection and cleaning of floors during the week in order to guard against the risks attendant upon such spillages. The second question would remain: was there a causal link between the defendant's negligence in that regard and the plaintiff's injury on this particular occasion? If the jury considered that reasonable measures for the protection of the customers required the defendant to have in place a system for inspection and cleaning the floors at regular intervals of say, thirty minutes, throughout the week, I should have thought that it could fairly readily conclude that the defendant's failure to clean more than once a week was more probably than not the cause of the plaintiff's injury. It would be enough that the defendant had not cleaned at all for almost a week; and the fact that the last periodic inspection should have occurred, if there had been some reasonable system for cleaning, no more than thirty minutes before the plaintiff's accident would be of no direct relevance in identifying the causal link between the negligence and injury. Where the defendant has not cleaned the floor for a week, that failure to clean - for a week, and not every thirty minutes, might fairly be seen on the balance of probabilities to be a cause (if not indeed the cause) of the plaintiff's slipping; it then becomes more probable than not that the plaintiff has slipped in something that would have been cleaned up had it not been for the defendant's negligence.

 

If this be correct, it follows that a plaintiff can succeed in a "slipping case" without first having to establish for how long the spillage was on the floor before the plaintiff slipped. As already mentioned, however, there is some support in the cases for the view that without such a finding (which in my hypothetical example means a finding that the spillage had fallen to the floor at least thirty minutes previously) the plaintiff does not establish that reasonable measures for inspection and cleaning would have prevented the accident, and so fails to establish the necessary causal link. But why should that be so? It would not ordinarily be possible to exclude the possibility that the substance on the floor was spilt only moments before the plaintiff slipped in it; and yet that mere possibility does not, I think, affect the probability. Secondly, and more importantly, where the regime of inspection and cleaning which is required by way of reasonable measures is an ambulatory affair, occurring only a periodic intervals, it will ordinarily not be possible to fix the time at which such inspections and cleaning should last have occurred at the very spot where the plaintiff fell. Yet unless that is known, that last such inspection and cleaning might have taken place (had it been carried out) only, say three minutes, not thirty minutes before the plaintiff's accident. So why should the plaintiff fail if it cannot be shown that the spillage was on the floor for at least thirty minutes (which seems altogether too favourable to the defendant)?

 

The short answer is that which I gave earlier. The inquiry whether the spillage was on the floor for at least thirty minutes stems from an undue concentration on the interval between periodic inspections which should have been, but which were not, carried out. In my view, the proper inquiry focuses on the whole of the period during which the defendant failed to carry out any inspection at all. In other words, the inquiry is not about one particular default with the defendant, albeit the last before the accident; it is about the defendant's default overall, for the question is whether that default was the cause of the injury. An inquiry which concentrates upon the last default, occurring no more than thirty minutes before the accident, may be appropriate if the last default was the only default of the defendants; but that is not the case in my hypothetical example nor is it here. Otherwise a defendant might be better off for having failed to carry out any inspection or cleaning at all than for failing only to carry out the last that was due before the accident, and at the time of which might perhaps be pinpointed with some accuracy." ( at page 420/1)

 

 

Although his Honour said that evidence of the time during which the spillage was lying on the floor before the plaintiff spilled on is not a necessary pre-requisite to the defendant's success, that is not to say that such evidence may never have a part to play. If it is available, it may be relied upon by either party. The defendant may seek to establish that the spillage occasioning the fall had been lying on the floor for too brief a period to have been picked up by any reasonable measures on the part of the defendant for the safety of the customer (thus denying any negligence) or the plaintiff may seek to establish that the spillage had been on the floor for such a time that it was only the defendant's neglect of such reasonable measures that caused the plaintiff's fall.

 

The next case to which I propose to refer is that of Ragnelli. That is a decision of the Full Court of the Supreme Court of South Australia. In that case the plaintiff fell on a small patch of clear, oily liquid on a landing between two flights of stairs in a large department store in a shopping mall in the centre of Adelaide. For present purposes, there is no material difference as to the legislation in force in South Australia and the 1960 Act. In the opinion of the Chief Justice (Doyle CJ) the plaintiff succeeded in showing that the defendants' failed to maintain an adequate inspection system. His Honour noted that it would usually be impossible for the plaintiff to establish how long the substance which caused the plaintiff to slip or fall was on the ground or on the floor before she fell. In his Honour's opinion common sense suggested that one should not adopt an approach that requires the plaintiff to establish how long the substance in question was present before the plaintiff fell and then to establish when, in the course of an adequate inspection system, the very area in question would have last been inspected, leading to the substance being detected and removed. His Honour held that was too precise and too demanding. Even if one were to postulate an adequate inspection, the system called for inspection of an area every thirty minutes and it would be going too far to say that the area always had to be inspected in exactly the same way and in exactly the same sequence so that each point of the area would be checked at regular thirty minute intervals. His Honour held that an adequate system of inspection called for more frequent and closer inspections. The other members of the court agreed. In the course of his opinion, Gray J, made reference to the reasons for judgement by Kirby P (as he then was) in the case of Brady to which I have referred and to which Mr Conway made reference in his submission. In that case (which involved an injury in a large shopping mall) Kirby P observed that the owners of the mall were in charge of a large commercial enterprise. It invited members of the public to do business in that enterprise and therefore derived an economic advantage from their presence in the mall. It must anticipate the presence there of members of the public of all ages, inclinations and capacities.

 

I return to the supplementary written submissions submitted by Mr Conway and Miss Bennett.

 

Mr Conway accepted that in certain cases it was said that for the doctrine of res ipsa loquitur to apply the cause of action must be unexplained. However in his submission the modern approach is to see whether the facts adduced provide a prima facie inference of negligence and that this will apply where an assertion can be made that the facts proved would not have arisen if ordinary care had been shown by persons in control. As I have said, Mr Conway relied upon the cases to which I have already referred. As I understand him, Mr Conway did not resile from the application of the principle of res ipsa loquitur but he went on to examine its application in Ward and also upon the approach taken in the Australian authorities, some of which I have referred to in detail.

 

In short, the Defenders' failure to prevent water ingress to the premises was negligent. Frequent inspection was necessary having regard to the likelihood of water reaching the floor of the premises. The system of the Defenders was not an effective cleaning system and if it was not reasonably practicable to have more persons specifically on the lookout for spillages there should have been a complete non-slip treatment of the flooring. The content of the duty to take reasonable care depends upon the circumstances of the occupation, control and invitation. In Mr Conway's submission the trend of judicial opinion on this issue is for a high degree of consumer protection. In Mr Conway's submission the cases to which he had referred only addressed the second branch of the Pursuer's argument namely what should have been done once the water is on the floor. They were not required to address the primary submission by the Pursuer namely that the presence of the water on the floor from an ingress via the roof (which has happened on a repeated basis) constitutes a clear prima facie case of negligence.

 

Miss Bennett submitted that the doctrine of res ipsa loquitur does not apply in this case. In her submission it was clear that the cause was known. It was a leak in the roof. It was accepted that the Defenders' have control and management of the premises and indeed were occupiers of the premises. By reference to the supplementary authorities to which Miss Bennett referred, the doctrine of res ipsa loquitur has no application where the cause of the accident is explained. In this case there was a pool of water on the floor of the shopping centre and that had formed from the water dripping through a leak in the ceiling. The maxim only applies to cases where extraordinary events occur. In this case, roofs leak, particularly flat roofs. It was not possible to anticipate where the water ingress will come from until it appears. There was a continual inspection of the mall and if a leak is identified it is dealt with. Esto the maxim did apply, the Defenders had provided an explanation. There was an ingress of water from the roof and they took reasonable care as occupiers of the property. The Pursuer had not proved that the steps taken by the Defenders fall short to what is to be expected of an occupier of property taking reasonable care.

 

Decision

 

In my opinion the starting point in determining this issue is section 2(1) of the 1960 Act which provides as follows:-

 

"the care which an occupier of premises is required, by reason of his occupation or control of the premises, to show towards a person entering thereon in respect of dangers which are due to the state of the premises ... shall ... be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger."

 

 

It is the Pursuer's position that the Defenders' failed to take reasonable care. The Pursuer relies upon section 2. I do not understand the Defenders to dispute that the Pursuer fell and suffered injury as a result of water on the tiles. The two fundamental points which the Defenders advance are that the Pursuer failed to prove that the Defenders' system of inspection/maintenance fell short of what it should be in order for them to discharge their duties to take reasonable care for her and failed to prove the length of time that the danger had been in existence. Both of these are fatal to the Pursuer's case.

 

The practical difficulty which seems often to arise in these cases is determining what a claimant has to prove to establish liability on the part of the occupier. The mere fact that someone slips is not enough in itself. Rarely will the Pursuer be able to prove exactly how and when the material which caused the fall got there. Doubtless that is why resort has been made to the maxim res ipsa loquitur. I confess I have some difficulty in seeing the application of the maxim on the facts of this case. In my view it is clear from the authorities that the maxim does not apply where the cause of the event is known. In this case the cause is known - water on the tiles caused by a leak in the roof, the water coming in via the air conditioning system. In some cases, the maxim has been applied but in other cases not. It was used by the majority in Ward (no one knew how the yoghurt got there) but not in Laverton (it was clear how the water got there) and not, so far as I can detect, in the Australian cases, cases relied on by Mr Conway. However, I do not think that the application of the maxim is crucial in this case. It is evidential not probative. Evidence has been led and Mr Conway was careful not to peril his case on the application, or otherwise, of the maxim. The real issue is whether the Defenders have failed in their statutory duty to take reasonable care.

 

Kocis is useful as it illustrates the point that each slipping case turns upon its own facts. The authorities to which Phillips JA referred show cases falling on each side of the line. In some cases, the plaintiff succeeded in showing a breach of the obligation to take reasonable care and in other cases not. The inquiry as to what constitutes reasonable care will depend upon the facts of each case but it seems to me that it involves examining the relevant circumstances such as: the nature of the premises; who uses them; the state of the premises; the Defender's knowledge or likelihood of the hazard; the Defender's conduct in relation to known hazards. It is clear that the mere fact that someone has slipped is not of itself enough to prove want of reasonable care. Persons can slip for all kinds of reasons. Some of them may indeed have nothing to do with the state of the premises at all. What the Pursuer has to do is put in issue material to show a want of reasonable care on the part of the Defender. In some cases there is evidence of the occurrence of an unusual event e.g. yoghurt on the floor (Ward) or oily substances on the landing of the stairs (Ragnelli). The Pursuer may show that the premises are designed to encourage members of the public to enter them and that spillages are frequent. Either or both may impose a higher obligation on the Defender to take reasonable care. The Defender may offer to show that there was no want of reasonable care by reference to a system of inspection and maintenance which is designed for, and actually does, address the particular hazards faced by the Pursuer. There may be no system or a system that is unsatisfactory having regard to the known risks. In many cases it may never be known how long the hazard was present on the floor. For the reasons advanced by Phillips JA I do not think it is fatal. On the other hand, it may be that the precise moment of the spillage is known and, if it happened shortly before the accident, the Defender may succeed in showing that there was no negligence because it was impossible to remove the spillage in the time available.

 

The above shows that each case is fact specific. It seems to me that Miss Bennett can only succeed in her two propositions if either or both are central to the Pursuer's proof. I do not accept that either or both are essential in every case. The real issue is whether they are essential for the Pursuer to prove in the facts of this case. I do not think they are.

 

The defenders are the occupiers of the premises. The premises comprise retail units. By their very nature members of the public are encouraged to enter the premises indeed the defenders would be disadvantaged if they did not attend. The defenders knew that the roof leaked and had done so for a number of years. They also knew that when water got onto them, the tiles became slippery. In another part of the premises the floor had been at least partially covered with a less slippery surface. Water on the tiles is difficult to see. In my judgement the standard of care incumbent upon the defenders was a high one (see Lord McCluskey in Cordiner at 214K-L; the reasons of the Full Court in Ragnelli, including reference to the reasons of Kirby P in Brady quoted therein). The response of the Defenders was to have the roof examined and some repairs carried out. It did not solve the problem. The roof continued to leak. Both cleaners and security staff were under instructions to keep a look out for water but, as I have said, water on the tiles is difficult to see. I do not think that the Defenders' response to the known hazard was sufficient to discharge their duty to take reasonable care to members of the public who were using the premises. The solution was to repair the roof properly and/or alter the floor to stop it becoming slippery when the roof leaked. The system of inspection was not an adequate response. The system was clearly ambulatory and reactive. It was not an adequate response to a leaking roof. The security officers had other responsibilities to undertake and I do not think the evidence as to the cleaners goes very far. It seems to me that the system of inspection and the frequency, or otherwise, of inspection is but one feature in determining whether there has been a breach of statutory duty on the part of the Defenders. As the majority in Ward pointed out (by reference to the case of Richards) and as the cases of Kocis and Ragnelli show, a system of inspection is not always a cardinal element in cases such as this. By that I mean the argument that the Pursuer fails if she does not prove how long the material was there and precisely when it should have been removed by a system of inspection. In my view the system in place here was not enough to satisfy the obligation to take reasonable care. The breach of the obligation to take care was, in my opinion, the cause of the pursuer's injury.

 

I do not think there is any basis for a finding of contributory negligence. The water was difficult to see. As the Full Court observed in Ragnelli, by their very nature, shopping centres are designed to attract and distract members of the public whose attendance is actively pursued. I do not think the pursuer failed to take care for her own safety.

 

I shall therefore grant decree in favour of the Pursuer. I shall fix a further hearing on the question of expenses.