Cains v Mathers Shoes Pty Ltd [1993] QCA 193

THE COURT OF APPEAL [1993] QCA 193 SUPREME COURT OF QUEENSLAND Appeal No. 7 of 1993 Brisbane Before The President Mr Justice McPherson Mr Justice Pincus [Cains v. Mathers Shoes P/L.] BETWEEN THELMA MAY CAINS (Plaintiff) Appellant AND MATHERS SHOES PTY LTD (Defendant) Respondent JOINT REASONS FOR JUDGMENT - FITZGERALD P. & McPHERSON J.A. Judgment delivered 1/06/1993 Mrs Thelma Cains, who is both the appellant and the plaintiff in this action, was visiting Toowoomba in September 1985 when she sustained the injury that gave rise to these proceedings. She had come from Coffs Harbour with friends on a bus trip to see the flowers, and was staying at a local motel. On the morning of 24 September she and her room mate went for an early morning walk through the shopping centre. In Ruthven Street they walked along the footpath looking in the shop windows. The plaintiff wished to find a place where she could buy a pair of shoes. At the trial she gave the following account of what happened when she came to the Mathers shoe store belonging to the defendant: "Did you continue walking forward for any particular purpose ? -- No, from one shop to the next. And when I saw Mathers shoe shop I decided to turn in. -- 1 of 18 -- 2 Well, just tell the Court then in your own words what happened when you saw the Mathers store; what you did? -- Well, it's a long shaped entrance to the shop and I turned right to move in and tripped over the little - I wasn't sure what it was, a little rise - tripped over and ended falling down with my head, my shoulder and my hip and that's the extent of me. Are you able to say which of your feet you tripped on? -- My right one. Where was your attention directed to just before your right foot tripped? -- I think there's a glass window at the front of the shop and I could see shoes through the window to the back of Mathers display, of the shop - of the shoes and I was deliberately --." A photograph forming part of ex.13 shows the front of the defendant's shoe shop in Ruthven Street. Leading in from the footpath to the shop entrance is a tiled floor area, which was referred to in the evidence as the entrance foyer. It is bounded on both sides by glass display windows containing displays of shoes. The windows reach out to where the shop fronts on to the footpath. The Mathers shop is on the eastern side of Ruthven Street, which falls away across the road toward the western side. The result is, as ex.13 shows, that the surface slopes from the shop entrance down to and across the footpath to the street alignment itself. At the junction of the tiled entrance foyer with the footpath there is a small rise or step up from the footpath level to the foyer level. Facing the shop, the difference between the two levels at the right hand end is 19 mm., and at the left hand end 59 mm., which indicates there is a downward gradient from right to left in the footpath along the front of the shop. The plaintiff's case is that she tripped on the rise or step up from the footpath as she was entering the foyer for the purpose of viewing the display. An allegation to that effect -- 2 of 18 -- 3 in para.3 of the plaint was formally denied in the defence; but it was not contested at the trial. On behalf of the defendant on appeal, Mr Dickson of counsel candidly acknowledged that he had not cross-examined or addressed at the trial to the effect that the plaintiff had not tripped. The thrust of his cross- examination had been that the plaintiff was, after the time lapse since the accident, mistaken about the identity of the premises where she fell. This makes it all the more surprising that, in dismissing the plaintiff's action, his Honour rejected her statement that she tripped at the entrance to the foyer. He had found her to be "an essentially truthful witness". His remark to that effect appears in the reasons for judgment, delivered some time after the decision dismissing the action, in the course of recording findings with respect to quantum of damages; but it was plainly not intended that the observation be confined to that topic, because his Honour went on to say: "Indeed, it was her basic honesty which led me to doubt she tripped when she seemed far more comfortable saying she slipped." The result is that his Honour found the plaintiff to be a truthful witness, but rejected her evidence on a matter critical to her case even though it was not challenged at the trial. It is this that forms the first of the three grounds in the amended notice of appeal. The plaintiff's initial statement in evidence in chief that she tripped over a little rise at the entrance has been set out. She confirmed it in her evidence shortly afterwards by identifying the mark in the form of a cross on a photograph -- 3 of 18 -- 4 (ex.1) as the place "where I tripped over". The cross on ex.1 marks a point on the rise or step close to the right hand shop window, where the height of the rise is 19 mm. or perhaps a little more. She said she was moving or turning into the foyer area and "caught my right foot, hit my knee, and landed on my hip". Taken with the earlier passage from the testimony, there was thus direct evidence before his Honour that she tripped over at the place marked by a cross on ex.1. The first reference in the plaintiff's evidence to having slipped appears in the course of her cross-examination. When asked to describe "what was contained in the vertical drop ...", she said she was sorry, "I wouldn't be able to tell you because I turned and slipped over and I was in pain". Thereafter there are at least two further references in her evidence to her having "slipped over", as well as two others to her having "tripped over". The expression "slipped" or "slipped over" also occurs in medical reports that recount the history of the incident. It was evidently these references in her testimony and, it may be, the reports that led his Honour to doubt her word on this matter. In his Honour's reasons for judgment there are several explanations of why, despite his finding that the plaintiff was "an essentially truthful witness", he rejected her evidence that she tripped. In particular, there was his Honour's observation, made in conjunction with the finding about her honesty, that what led him to doubt she tripped was that she seemed "far more comfortable" saying she slipped. That is a conclusion apparently based, at least in part, upon the -- 4 of 18 -- 5 demeanour of the witness, as to which a trial judge has an advantage over an appellate court in the resolution of matters of credibility. Here, however, some other explanations for rejecting the plaintiff's evidence that she tripped were also given by the trial judge. First, in referring to her use of the words "tripped" and "slipped", the trial judge said that "in ordinary language" those two words "describe quite different human movements". Whether that is always so may be open to question; but in any event, it is difficult to be sure that the plaintiff herself was using those words according to their precise meanings, rather than indiscriminately to mean "tripped". Indeed, to say "slipped over" rather than plain "slipped", itself tends to suggest that what she meant was "tripped over". In relation to the plaintiff's use of the two words, it is a cause for concern that something that might well have been an innocent slip of the tongue proved, in the end, to be fatal to her credibility and her case. If it was intended to base a decisive finding on the difference between "tripped over" and "slipped over", the proper course - at least in the case of a witness otherwise seen as truthful - would surely have been to give her an opportunity of explaining why she used two apparently different words to describe what had happened. Her attention was, however, never drawn to the discrepancy. For the reasons already mentioned, defence counsel was not interested in pursuing this matter, and the difference in language evidently did not strike him as so profound as to prompt a change of tactics. Moreover, in the context of what -- 5 of 18 -- 6 he said in his reasons on this subject, his Honour also remarked that the plaintiff had said nothing in cross-examination "which could amount to an assertion that, in some way, the existence of the small rise" caused her fall. Again, however, it is difficult to understand why this should have weighed against her credit in any way. It is not a function of cross-examination to provide a witness with an opportunity for advancing his or her own case; and, unless the plaintiff was asked about the matter (which she was not), she would rightly have been considered an unresponsive witness if, while undergoing cross-examination, she had insisted on making some such "assertion" as that suggested by his Honour. Having, as it seems, concluded that the words "slipped" or "slipped over" revealed what might really have happened, his Honour went on to say that the plaintiff "could equally be describing a slip of a foot on the entrance tiling, and after the rise was crossed". Apart from her use of the expression "slipped over", there is nothing to suggest that the plaintiff was describing the slip of a foot, whether on the tiling or elsewhere, and no evidence at all to suggest that her foot slipped after crossing the rise. To regard it as explaining what really happened therefore involves a degree of impermissible speculation. Finally, there is the judge's observation that "Mrs Gaba's evidence contains nothing that would resolve this question ...". Mrs Gaba (her name is in fact Caba) was the plaintiff's room mate at the motel, and a companion on the walk that day. She helped the plaintiff after she fell, but did not in fact -- 6 of 18 -- 7 see the fall take place. To that extent it may be said that her evidence contains nothing helpful on the point; but it is not accurate to speak of its failing to resolve "this question". Except of the judge's own making, there was no "question" of this kind to be resolved between the parties because none had been raised by counsel for the defendant about the manner in which the plaintiff came to fall over. Of course, it remained for the plaintiff to prove her case; but her evidence on the point was uncontradicted, and itself bore no inherent improbability. In those circumstances the trial judge was bound to accept it unless there was a reasonable ground for rejecting it or for not acting upon it : see Mitchell v. Wachter [1961] V.R. 537, 539. In the end, the only ground that was identified for rejecting it was the plaintiff's use in cross-examination of the words "slipped over" in place of "tripped over" in describing her fall. In the circumstances, his Honour should not have treated an ambiguity of that kind as affecting her credibility on this critical aspect of the plaintiff's case where he had not been invited to do so by counsel for the defence, and the plaintiff had not been afforded an opportunity to explain it. It is an obvious possibility that she might in ordinary language use "tripped" and "slipped" with less precision or discrimination than some other people do. It would not be right to allow such an unfavourable finding on so critical a matter as credibility to rest on such a slender basis. The appeal is, we think, one in which, although credibility is involved, it can fairly be said that the trial judge has mistaken an important part of the -- 7 of 18 -- 8 evidence (cf. S.S. Hontestroom v. S.S. Sagaporack [1927] A.C. 37, 50); with the consequence that any advantage he derived from seeing and hearing the plaintiff is not sufficient to justify the finding he made against her on this point : cf. Abalos v. Australian Postal Commission (1990) 65 A.L.J.R. 11, 16. A conclusion on appeal to that effect would often, perhaps ordinarily, result in a new trial. However, in finding the plaintiff in this case to be "an essentially truthful witness", his Honour plainly accepted her evidence except in the particular mentioned. If, as we consider, he ought not to have rejected her testimony that her fall happened when she tripped over the small rise or step at the point marked on ex.1, then it follows that she succeeded in proving the allegation she set up in para.3 of the plaint. It remains to be decided whether she also established negligence entitling her to recover damages against the defendant. On the question of negligence, the trial judge found that the plaintiff accepted the defendant's "tacit invitation" to walk into the entrance foyer to examine the goods displayed. He was nevertheless not persuaded that a careful, reasonable shopkeeper would view the small rise at the 19 mm. end as posing a real risk to an ordinary person entering that foyer. In arriving at that conclusion (or want of it), his Honour was plainly influenced, first, by evidence given by Mr Evans that during his five years as manager of the shop from 1984, he never became aware of any falls or difficulties experienced by anyone entering the foyer of the shop; and, secondly, by the -- 8 of 18 -- 9 fact that the plaintiff did not see the rise or step "because she was not looking where she was walking". As regards the first of these matters, it seems to us that the fact that there had not previously been a reported fall of any degree of seriousness because of the rise, does little to acquit the defendant of responsibility for the plaintiff's fall. There was evidence at the trial of the dangers associated with a step of those dimensions; and it is common experience that a small but definite rise of the kind involved here is potentially more likely to cause stumbling or tripping than a substantial step that is easy to see. When there is also coupled with the smallness of the step the presence above it of the allurement formed by the shoe display, it would not be at all surprising to anyone if a prospective customer tripped over the step while moving along from the footpath in order to obtain a better view of that merchandise. It is precisely because it encourages people to come into the premises that shop fronts are designed with display windows on the footpath leading along an entrance foyer to the shop entrance itself. In those circumstances, where the very intention of the defendant was that the display should attract attention, the plaintiff's conduct in moving along without watching her feet was both predictable on her part and reasonably foreseeable by the defendant as a shopkeeper occupying those premises. The fact that the plaintiff did not look down at her feet when moving along in those circumstances is not evidence of fault on her part. It has been said that pedestrians using the footpath -- 9 of 18 -- 10 are, as a general rule, not obliged to watch their feet in order to avoid unexpected obstructions as they walk. In directing the jury in de Teyron v. Waring (1889) 1 T.L.R. 414, 415, Lord Coleridge C.J. said that a man walking along "might if he pleased look up at the stars as he walked, and his doing so was not contributory negligence which should preclude him from recovering". He was referring there to someone walking on the footpath. The plaintiff here was moving into the entrance foyer of the shop; but, for reasons explained, there was even more reason for someone in her position to be looking up at the display rather than down at the floor as she moved in that direction. In these circumstances the tripping that occurred was, as we think, a risk that was reasonably foreseeable. In Abalos v. Australian Postal Commission (1990) 65 A.L.J.R. 11, 16, the High Court said it was "the risk of injury arising from the defendant's operations which was required to be reasonably foreseeable, not the risk of injury arising from failure to adopt any particular alternative". Their Honours went on to quote from Wyong Shire Council v. Shirt (1980) 146 C.L.R. 40, 47-48, where Mason J. said that, if the question of foreseeability was answered in the affirmative, "it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk". In that context, his Honour mentioned factors like the magnitude of the risk, the degree of probability of its occurrence, and the difficulty, expense and inconvenience of taking alleviating action. Having considered these matters in the light of the -- 10 of 18 -- 11 evidence, the trial judge here decided this question, as he also had the other two, against the plaintiff. A Mr Smolakovs gave expert evidence of what could have been done to prevent an accident of this sort. Among other matters he suggested exhibiting warning signs, or painting distinctive markings at or around the step to increase the chances of its being seen. His Honour was not favourably impressed with these ideas, and it is difficult to disagree with that assessment. An alternative solution was to completely eliminate the step, which serves no useful function of any kind. One method of doing so that was suggested by Smolakovs was to build a sloping ramp from the entrance foyer out into the footpath area. That would involve a protrusion, by some 6 to 12 inches, of the ramp into the footpath, and might create problems of its own. It is a solution of a kind to which the local authority is for obvious reasons not likely to agree, and his Honour cannot be criticised for rejecting it. On the other hand, the objection disappears if Mr Smolakovs's other recommendation is adopted. It is to eliminate the rise or step by restructuring the entrance foyer internally so that it slopes down to meet the edge of the footpath at the same level along the length of the entrance foyer. Mr Smolakovs said this would involve removing the tiles laid on the foyer, lowering it to or below the footpath level, and then providing an appropriately sloping surface to the foyer. At about $3000 as against $300, it would be more costly than providing a ramp; but considerably less than the amount of the damages that might awarded to persons sustaining injuries -- 11 of 18 -- 12 because of the existing state of the premises. His Honour dismissed this proposal, along with the other suggestions from Mr Smolakovs, as unimpressive; his reasons for judgment do not explain why he rejected this particular recommendation. However, once he had decided to dismiss the action on other grounds, there was really no occasion for him to examine it in any detail. On the face of it, the solution of restructuring the entrance foyer internally so as to provide an appropriate slope is one that is not disproportionately expensive having regard to the risks of injury involved in retaining the existing rise or step in its present condition. It is a precaution that the defendant could and should reasonably have taken to avoid the foreseeable risk of injury to persons like the plaintiff in the present case. Had it been done the plaintiff would not have tripped over the rise as she did. The result is that the appeal should be allowed with costs, and the judgment below set aside. There is no dispute about his Honour's assessment of damages. There will therefore be judgment for the plaintiff in the action against the defendant for $34,790.85 together with the costs of the action. -- 12 of 18 -- 1 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 7 of 1993 Brisbane [Cains v. Mathers Shoes P/L.] BETWEEN THELMA MAY CAINS (Plaintiff) Appellant AND MATHERS SHOES PTY LTD (Defendant) Respondent The President Mr Justice McPherson Mr Justice Pincus Judgment delivered 1/06/93 Joint Reasons for judgment by the President and McPherson J.A. Separate Reasons by Pincus J.A. dissenting. APPEAL ALLOWED WITH COSTS. JUDGMENT BELOW SET ASIDE. IN LIEU THEREOF JUDGMENT FOR THE PLAINTIFF AGAINST THE DEFENDANT FOR $34,790.85 TOGETHER WITH THE COSTS OF THE ACTION CATCHWORDSPERSONAL INJURY - Occupier's liability - Negligence - Credibility of plaintiff - Whether plaintiff "tripped" or "slipped". Counsel: K.D. Dorney Q.C., with him M.E. Eliadis, for the appellant R.B. Dickson for the respondent Solicitors: Poteri & Woods for the appellant Gadens Ridgeway for the respondent Hearing Date: 24 May 1993 -- 13 of 18 -- 2 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND App. No. 7 of 1993 Brisbane Before The President Mr Justice Pincus Mr Justice McPherson [Cains v. Mathers Shoes] BETWEEN THELMA MAY CAINS (Plaintiff) (Appellant) - and - MATHERS SHOES PTY LTD (Defendant) (Respondent) REASONS FOR JUDGMENT - C.W. PINCUS Judgment delivered 1 June 1993 -- 14 of 18 -- I have read the joint reasons of the President and McPherson J.A. and agree that the primary judge's finding on the question whether the appellant tripped over something at the entrance to the shop or merely slipped cannot stand. It is my respectful opinion, however, that the judge's conclusion that there was no negligence proved on the part of the respondent should be upheld. His Honour's reasoning on the matter was, in substance, as follows. A difference between the level of the footpath and that of an adjoining shop is a commonplace feature in shops. The plaintiff was a lawful entrant upon, or a person in the process of lawfully entering upon, the defendant's foyer and there was a duty to take reasonable care to avoid injury to her. The law required the defendant only to act as a reasonable person, to take reasonable care for her safety. The expert witness Smolakovs' recommendation was that there should have been a warning sign in the vicinity, or alteration of the relevant surface or surfaces so as to eliminate the step. Smolakovs, however, admitted that there were other premises in Toowoomba with similar entrances, in none of which had he seen any warning sign, and he gave similar answers with respect to Queen Street, Brisbane. The judge implied that he thought the contrast between -- 15 of 18 -- the black of the bitumen and the off-white tiles of the foyer was able to provide a warning of sorts and that special signs were not appropriate. The alteration in levels which Smolakovs recommended would have to extend up to 12 inches onto the footpath, and Smolakovs had never seen that in a strip shopping centre. The judge remarked: "Overall, I was unimpressed by Mr Smolakovs' suggestions and his explanations.". He accepted that the defendant's officers did not know of any other similar incident occurring at their entrance. His Honour was not satisfied on the evidence that a careful, reasonable shopkeeper would perceive the situation as posing a real risk to the ordinary person entering the foyer. He rejected the idea of a ramp built on the footpath as impractical, and considered that the reconstruction of the foyer, to overcome the problem, was not warranted. Senior counsel for the appellant, Mr Dorney QC, criticised the language used by the judge in the discussion which I have summarised, and it is true that in some respects it is open to objection. But the general thrust of it is legally correct, in my respectful opinion. Having regard to what was found to be the magnitude of the risk, i.e. "not great", the judge was not satisfied that the defendant's failure to take steps to eliminate or reduce it was unreasonable. Mr Dorney's contention was in substance that the Court should reconsider the evidence on the question and come to its own conclusion, being of course one contrary to -- 16 of 18 -- that of the primary judge. The case appears to me to involve a purely factual issue. There are obstacles in the way of an appellate court which is invited to interfere with factual findings and they are illustrated in a number of decisions of high authority, a recent example being Abalos v. Australian Postal Commission (1990) 171 C.L.R. 167, mentioned by McPherson J.A.; another is Devries v. Australian National Railways Commission, High Court, unreported, 6 May 1993. In Abalos the trial judge based her decision, on the question of negligence, on the evidence of an expert which was in relevant respects in conflict with that of another expert. It was pointed out in the reasons of McHugh J. that the absence of reference to the demeanour or credibility of those witnesses did not show that demeanour or credibility played no part in the judge's findings on the relevant issue. The reasons relied on the now familiar statement in S.S. Hontestroom v. S.S. Sagaporack [1927] A.C. 37 at 47. This case is stronger, in a sense, for the respondent than Abalos; here the judge expressed himself to be unimpressed by Smolakovs' suggestions and explanations. In my opinion the conclusion which his Honour drew, as to the quality of the expert evidence, was reasonably open to him; he was not obliged to accept Smolakovs. I should add that one of Smolakovs' suggestions, that the occupier should have torn up part of the foyer and relaid it, would have more force if the lack of continuity between footpath and foyer were particularly difficult to discern. This is not to say that a -- 17 of 18 -- customer who failed to discern it would be guilty of negligence, in the legal sense. It remains to be considered whether, ignoring Smolakovs' evidence, the judge's conclusion that there was no negligence can be supported. In my opinion it can be, keeping in mind the accepted evidence that the situation at the entrance to the respondent's shop was not uncommon; that no-one, as far as the respondent's officers knew, had had any similar difficulty with the entrance previously and that, as the photographs in evidence show, the line of division between the floor of the shop premises and the footpath seems to have been easy to see. To allow the appeal, one would have to say that for an occupier of a shop to cause there to be a small step up between the footpath and the shop entrance, or to allow such a step to remain, is necessarily negligent. In my view the appeal should be dismissed. -- 18 of 18 --