Australia: Finding of negligence not just about establishing breach of duty of care

Last Updated: 12 January 2015
Article by Melissa Fenton and Jacqueline Haski

In brief - Proving causation crucial in negligence cases

The NSW Court of Appeal's dismissal of an appeal in Jackson v McDonald's Australia Ltd [2014] NSWCA 162 shows that plaintiffs must be able to prove causation when suing for negligence.

Slip on wet floor leads plaintiff to sue for damages

In May 2014, the NSW Court of Appeal dismissed an appeal brought by Mr Jackson against a decision of the District Court, rejecting his claim for damages for an injury he sustained when he fell at a McDonald's store.

After finishing work at 4.30am, Mr Jackson entered McDonald's on George Street in Sydney's CBD. He walked down nine stairs, approached the counter and noticed that the floor was wet, as it had been mopped a short time beforehand by contract cleaners, Holistic. He decided not to purchase anything and, on leaving, walked over the wet floor, fell and sustained an injury.

Contrary to McDonald's protocols, the mopping had not been carried out in sections and the floor was wet across its width. Mr Jackson commenced proceedings against McDonald's and Holistic's insurer was joined to the proceedings, given Holistic was deregistered.

Causal responsibility not proven

The primary judge (Gibson DCJ) in the District Court case dismissed Mr Jackson's claim on the basis that he had not discharged the onus of proving that the negligence of McDonald's and/or Holistic was causally responsible for his injury.

For completeness, and in the event her findings on liability were wrong, Her Honour also commented on the plaintiff's contributory negligence (she found it to be 100%), quantum and extent of the indemnity available to McDonald's under Holistic's public liability insurance.

Mr Jackson appealed Her Honour's decision, maintaining that both defendants had breached their duty of care, as the floor had been mopped so as not to leave a dry passage over which customers could walk. A cross-appeal was also brought by Holistic's insurer regarding the indemnity issue, as the insurer claimed that the primary judge should have found that the policy did not respond to any liability of Holistic.

Court agrees on duty of care, but divided on breach issue

The Court of Appeal (consisting of McColl JA, Barrett JA and Ward JA) agreed with the primary judge that the negligence action was not maintainable against either defendant, but rejected Her Honour's reasoning on the basis that there had been no findings as to the content of the duty of care owed and whether a breach of that duty had occurred.

While the Court of Appeal agreed that both McDonald's and Holistic owed Mr Jackson a duty to take reasonable care to avoid a foreseeable risk of injury, it was divided on whether there had been a breach of that duty.

Mr Jackson's appeal was dismissed with costs.

Judges differ on whether defendants failed to take reasonable precautions

McColl JA found that: "...McDonald's and Holistic discharged their evidential burden of establishing that they did not fail to take reasonable precautions to guard against the foreseeable risk of harm within the meaning of section 5B(1) of the Civil Liability Act 2002 (NSW)..." (at [43]), as there was a cleaning system which involved using non-slip detergent, warnings that the floor was wet, non-slip surfaces on the floor tiles, non-slip bubble at the top of the stairs and handrails.

In contrast, Barrett JA (with Ward JA agreeing) held that both McDonald's and Holistic breached their duty by failing to ensure that the mopping of the floor was carried out in such a way as to ensure the continued availability of a dry section for pedestrians. Barrett JA commented that, "[t]he floor could have been mopped in sections, with each wet section appropriately marked or cordoned so that pedestrians could avoid it and walk on an adjacent dry section" (at [97]).

Ward JA added that mopping the floor in sections was a "...simple precaution that would have prevented any such risk. It was not suggested that this was an onerous precaution to take" (at [185]).

McColl JA further stated that, while the risk of slipping due to wet soles was an obvious risk with no duty to warn, such a finding was irrelevant due to the fact that the defendants beached their duty to ensure that there was always a dry passage for pedestrian access.

Plaintiff fails to discharge onus of proof

Despite the majority accepting that the defendants had breached their duty of care, Mr Jackson bore the onus of proving that, but for the defendants' negligence, he would not have slipped on the stairs.

On the balance of probabilities, Mr Jackson had to establish that there was water on the soles of his shoes when he fell and that the presence of water caused him to fall.

The court unanimously held that Mr Jackson failed to discharge this onus.

The court found that Mr Jackson "merely surmised" his soles were wet. However, even if there was water on his soles when he fell, it did not follow as a matter of "common experience" that he slipped by reason of the wetness.

Barrett JA stated: "People wearing dry shoes walk on wet stairs every day and do not slip. People wearing wet shoes walk on dry stairs every day and do not slip. People wearing dry shoes slip on dry stairs every day..." (at [119]).

No liability for breach of duty of care due to lack of proof

The court was also critical that Mr Jackson did not call any expert evidence on the issue of slip resistance of the particular surfaces and the effect that wetness on soles might be expected to have had, which created an "evidentiary vacuum" (at [32]) and did not support Mr Jackson's causation submissions.

Given the lack of proof of causation, the court reasoned that neither McDonald's nor Holistic incurred liability for any breach of duty of care.

While somewhat of a moot point, the court said that if causation had been established, Mr Jackson would have been 70% contributorily negligent, given that he knew the floor was wet, observed warning signs and was well aware of the risks associated with a wet floor.

No entitlement to indemnity costs in cross-appeal

The cross-appeal was upheld in part. The court held that, on a proper construction of the contract between McDonald's and Holistic and Holistic's public liability insurance policy, McDonald's was not entitled to an indemnity from Holistic's insurer in respect of the legal costs incurred in the proceedings and modified the primary judge's orders.

Plaintiffs must prove causation

This case sends a clear message that even if a breach of duty of care can be established, this does not necessarily translate to a finding of negligence. A plaintiff must also be able to prove causation and cannot simply rely on assumptions of "common knowledge".

Jacqueline Haski Melissa Fenton
Insurance and reinsurance
CBP Lawyers

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Melissa Fenton
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