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Egan v Morris Hedstrom Tonga Ltd [1998] TOLawRp 11; [1998] Tonga LR 77 (22 May 1998)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku’alofa

C 504/97

Egan

v

Morris Hedstrom Tonga Ltd

Lewis CJ
18, 19 May 1998; 22 May 1998

Negligence ⎯ statutory duty of care ⎯supermarket ⎯ no evidence of failure

The plaintiff went to shop at the defendant company’s supermarket. As she went to leave she fell over and hurt her ankle. She sued in negligence for damages for personal injury. The plaintiff claimed that the defendant negligently permitted a greasy surface to be present in the public area of the supermarket and that caused her to fall and be injured. There was no evidence of any substance which could cause a greasy surface. At various times there were spills suffered in the supermarket. The store employed a person to mop up spillages as a precaution.

Held:

1. It was a vast leap in the process of reasoning to suggest that because there were spillages in the store on a regular basis the plaintiff's fall could be said to probably be a consequence of her encountering a slippery spot caused by a spillage.

2. It was the duty of the defendant company to ensure that the floors were kept clean and free from spillages so that accidents did not occur. The evidence was that the defendant employed a person to clean up spillages.

3. The doctrine of res ipsa loquitur may be resorted to by the Court though it had neither been pleaded nor made the subject of submissions. The claim was not based upon the doctrine of res ipsa loquitur but in negligence and must therefore be determined that way. That approach excluded the doctrine of res ipsa loquitur.

4. There could be no probable inference drawn in the circumstances of the paucity of evidence surrounding the cause of the fall that the defendant failed in its statutory duty of care to the plaintiff.

5. The plaintiff’s claim was dismissed.

NOTE: The plaintiff's appeal to the Court of Appeal was dismissed. The Court of Appeal judgment appears at page 99.

Cases considered:

Bennett v Chemical Construction (GB) Ltd [1971] 1 WLR 1571; [1971] 3 All ER 822

Reaney v Thomas Lyddon and Sons Limited [1957] Ir Rep 1,3

Roles v Nathan [1963] EWCA Civ 6; [1963] 1 WLR 1117; [1963] 2 All ER 908 (CA)

Simons v Winslade [1938] 3 All ER 774 (CA)

Turner v Arding and Hobbs Ltd [1949] 2 All ER 911

Ward v Tesco Stores [1976] 1 All ER 219; [1976] 1 WLR 810 (CA)

Statutes considered:

Civil Law Act Cap 25

Occupiers Liability Act 1957 (UK)

Occupiers Liability Act 1984 (UK)

Counsel for plaintiff: Mr Appleby
Counsel for defendant: Ms Foliaki

Judgment

The plaintiff is a self employed business woman and artist of Nuku’alofa. The defendant company is a grocery retailer and owner of the Morris Hedstrom Supermarket in Nuku’alofa Tonga. The plaintiff sues in negligence for damages for personal injury which she sustained in a fall at the defendant’s Nuku’alofa supermarket.

The plaintiff carries the onus of proof of all material facts on the balance of probabilities. The following narrative represents the facts as I find them to be having heard the witnesses and having considered the documentary evidence tendered.

On the 28th May, 1996 the plaintiff went to shop at the defendant’s supermarket. She completed her shopping and made her way to the front of the store to pay for her purchases at a ‘check-out’ counter — one of a number of counters and situated at the front of the store. The plaintiff says that her payment was made at the 1st check-out counter. The Plan P1 sets out the layout of the store at the material time.

The witness ‘Elitisi Fanguna remembers the occasion. I accept ‘Elitisi when she says that she was stationed at the counter no. 2 and that the first counter was not open at the material time. That being the case the reference by the plaintiff to ‘going to the first counter’ is consistent with the evidence of ‘Elitisi. ‘Elitisi was the first checkout operator. I so find.

Thereafter the plaintiff went to telephone a taxi company. The call was made at her request in the office of the witness Lili Maleini Moala, a shop supervisor. Following the call the plaintiff made her way back to the front of the shop. It is during the plaintiff’s passage to the front of the store the evidence of the plaintiff and the evidence of ‘Elitisi parts company.

The Plaintiff marks her route from the office of Lili Maleini to the front of the shop on the plan D1. The route curves around an ice chest marked on the plan “ice”. The plaintiff marks with an ‘x’ the point at which she fell. ‘Elitisi marks the point as ‘x1’ by an entrance turnstile and alongside a depot of shopping trolleys. Although the plaintiff says that the point of her fall indicated by ‘Elitisi is ‘not that far away from where I said -it was’, ‘x1’ is indeed some way away. The two women are not speaking of the same place at all.

The plaintiff’s account of the fall I noted with care. She said “I slipped on something greasy and fell forward ... I put my arm out straight in front and hit my foot on one of the shelves I bruised my left foot and my ankle.”

‘Elitisi says “after she left Maleini’s room I saw her as she returned. She was exiting the supermarket she was trying to push the turnstile out. So she turned to go back in where the trolleys are. She (then) was slowly falling down to the floor. As I saw her falling she tried with one hand to hold the trolley that’s when I ran to her. I asked her what happened she did not speak to me ... I saw no water there. The eggs were there and cracked but did not flow. I noticed no liquid which may have caused her to slip.”

Dr Helga Schaeffer Macdonald is the Doctor called to the scene. As to where she found the plaintiff she says in her affidavit evidence (admitted by consent), “I found the plaintiff on the left of the store premises, sitting on the floor to the left of the check out counters near where the shopping trolleys are stored, and near one of the freezers, I believe the ice cream freezer.”

It was not suggested to the plaintiff in cross examination that she had ‘slowly fallen down to the floor’. The witness Dr Taniela Palu gave evidence that the “plaintiff’s fall may be cause by a faint cannot be the case” since the plaintiff’s injuries are “inconsistent with a faint ... the injuries described and observed by Dr Helga Schaeffer Macdonald are consistent with a forceful fall and I believe that the injuries were caused by the impact of the plaintiff hitting the floor quite hard.”

I conclude that the plaintiff fell as she described it by slipping on something greasy. The nature and degree of the injuries sustained by Mrs Egan persuade me that she indeed slipped and that the fall was sudden and the impact forceful. But where was it that she slipped?

I accept that it was in the vicinity of the trolleys and on the balance of probabilities I am satisfied that it was in the vicinity of point ‘x’ marked by the plaintiff on D1 rather than at point “x1” described by ‘Elitisi. I find ‘Elitisi is mistaken in her recollection of the events when she says that the fall was near the turnstile and the trolleys as she marked the place. Nor do I accept ‘Elitisi’s account of the plaintiff slowly falling.

I am satisfied that no witness was able to give an account of any substance which probably caused the fall. Perhaps it was the slippery floor itself. I cannot say. There is no evidence about it.

In applying the law appropriate to the facts of the present case I refer to the Civil Law Act Cap 25 sections 3 & 4 and I refer to the common law and the statutes of general application of England for the law appropriate to this case.

A shop owner owes customers a duty to take reasonable care to ensure they are reasonably safe when on his premises. This applies not only to dangers of which he has knowledge but also of those of which he ought to know. This may include dangers created by the actions of third parties. A shopper’s knowledge of a particular danger does not of itself mean that the shop owner’s liability is at an end. A shopper is entitled to assume that a shop is safe for him or her to enter. If injured a shopper may recover for personal injuries, damage to his property and/or for future financial losses.

English Law in the area of issue in this case is controlled by the provisions of the Occupiers Liability Act 1957 and 1984. The duty owed to a lawful visitor is “... to take reasonable care to ensure visitors are reasonably safe when on the premises”.

Common law principles are to be used to determine what is reasonable in the circumstance: s 2(2) and (3) Occupier’s Liability Act.

• It is the visitor who must be safe and not necessarily the premises Roles v Nathan [1963] EWCA Civ 6; [1963] 1 WLR 1117; [1963] 2 130 All ER 908 (CA).

• An invitee is entitled to assume that the premises are fit for him to enter Reaney v Thomas Lyddon and Sons Limited [1957] Ir Rep 1,3.

• At common law the occupier as the person best able to control and supervise activities upon the land may be held liable for the actions of third parties. This will be limited to situations where risk created by third parties is of a type which could reasonably be foreseen. Simons v Winslade [1938] 3 All ER 774 (CA).

The plaintiff does not plead the doctrine of res ipsa loquitur as being the basis of her claim against the defendant company. She is not compelled by law to do so. The doctrine may be resorted to by the Court though it has neither been pleaded nor made the subject of submissions  Bennett v Chemical Construction (GB) Ltd [1971] 1 WLR 1571; [1971] 3 All ER 822.

As Davies LJ said at page 825 of the Judgment,

“... in my view it is not necessary for that doctrine ... to be pleaded. If the accident is proved to have happened in such a way that prima facie it could not have happened without negligence on the part of the Defendants, then it is for the Defendants to explain and show how the accident could have happened without negligence.”

The requirements of the doctrine are that:

• There is reasonable evidence of the negligence of the defendant

• The plaintiff must prove the ‘thing’ to be under the control of the defendant

• The accident be of a kind in which in the ordinary course of events does not happen without negligence.

It is for the Court from the whole of the evidence to determine whether the plaintiff has proved the allegation of negligence she makes. Here, the claim is not based upon the doctrine of res ipsa loquitur but in negligence and must therefore be determined that way. That approach excludes the doctrine of res ipsa loquitur.

What is the plaintiff’s allegation? It is that she slipped on ‘something greasy.’ She must demonstrate that the ‘something greasy’ was something which the defendant company ought to have reasonably foreseen to have been likely to cause an invitee to be injured. To prove the negligence of the defendant she must also demonstrate that it was not her own misadventure which caused her fall — a twisted ankle — an awkward placement of her foot for example.

The plaintiff’s case is that the defendant negligently permitted a greasy surface to be present in the public area of the supermarket thereby causing her to fall and be injured.

The evidence about the substance which caused the greasy surface can be fairly summarised as being: that it was the cause of the fall of the plaintiff, that what it was has never been identified, that where it was has never been identified.

The witnesses called by the defendant, Lili Maleini Moala and ‘Elitisi Fanguna both say they looked for the presence of the substance and found nothing. In cross examination the plaintiff herself said [tscpt 3.5] that she did not know what caused her to fall save that it was a ‘slippery spot’ and that she saw neither water nor oil spilled on the floor.

Steven Aldridge the Operations Manager of the defendant company (whom I accept as an honest witness), gave evidence that he had no knowledge of any spillage which caused Mrs Egan to fall, that there is regularly a spillage of some kind in the store and that as a precaution the store employs a person to mop up spillages.

The plaintiff in her submission through counsel acknowledges that there is no evidence of the ‘actual condition of the floor at the time the plaintiff fell’ ... but all the employees of the supermarket admitted that at various times there were spills suffered in the supermarket from produce falling off shelves and that ‘on occasions the freezers leaked water.’

It is a vast leap in the process of reasoning to suggest that because there are spillages in the store on a regular basis the fall of the plaintiff can be said to probably be a consequence of her encountering a slippery spot caused by a spillage.

It was the duty of the defendant company to ensure that the floors were kept clean and free from spillages so that accidents did not occur. The evidence is that the defendant employed a person to clean up spillages. The present case is factually distinguishable from Ward v Tesco Stores [1976] 1 All ER 219; [1976] 1 WLR 810 (CA) and from the decision in Turner v Arding and Hobbs Ltd [1949] 2 All ER 911 the yoghurt in Ward or the vegetable matter in Turner. While the principles in those cases bind this Court they are factually distinguishable.

The evidence of the cause of the incident of the fall of the plaintiff is so weak as to render any finding that the defendant is probably responsible for the plaintiff’s injuries impossible. There can be no probable inference drawn in the circumstances of the paucity of evidence surrounding the cause of the fall that the defendant failed in its statutory duty of care to the plaintiff.

The plaintiff’s claim is dismissed. I refrain from making any assessment of damages.