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Garrett v North Rockhampton Sports & Recreation Club Inc


[2002] QCA 493


Garrett v North Rockhampton Sports & Recreation Club Inc [2002] QCA 493








Appeal No 2581 of 2002

SC No 405 of 2000

Court of Appeal


General Civil Appeal


Supreme Court at Rockhampton


15 November 2002




11 November 2002


McMurdo P, McPherson and Davies JJA

Separate reasons for judgment of each member of the court, each concurring as to the order made


Appeal dismissed with costs


EVIDENCE – SUFFICIENCY OF EVIDENCE – GENERALLY – WHERE FACTS ARE PARTICULARLY WITH KNOWLEDGE OF ONE PARTY – primary judge declined to draw inference – whether circumstances do more than give rise to inferences of legal probability – whether judge can choose between guesses

Jones v Dunkel (1959) 101 CLR 298, considered


G F Crow for the plaintiff/appellant J A McDougall for the defendant/respondent


Kenny & Partners for the plaintiff/appellant Quinlan Miller & Treston for the defendant/respondent

[1]  McMURDO P:  I agree that the appeal should be dismissed with costs for the reasons given by McPherson JA.

[2]  McPHERSON JA: On the night of 29 May 1999 a surprise party was held for Mr Angus Gooda on the occasion of his 50th birthday. The venue was the North Rockhampton Rugby League Football Club at the premises of the defendant in Rockhampton, and more especially a room in those premises which has a dance floor. The guests were provided with food to which they helped themselves from dishes warmed in a bainmarie that was located on a table on the side or edge of the dance floor, which was about 12 ft wide. Some 80 or 90 guests were present at the function.

[3]  The dance band started playing at about 9.00 pm. The plaintiff did not participate in the first bracket of dances, but did so when the second round started. By that time, the bain-marie had been moved off the floor. Mrs Garrett was dancing with her long time dance partner Mr Doyle.  She danced with him again about half an hour later. When she got up to do so once more at between 10 and 10.30 pm, the dance floor was more crowded. In order to execute their turns, she and her partner moved to the outer edge of the dance floor in order to avoid couples who were dancing in more modern styles.

[4]  While dancing there, she suddenly slipped and fell on her back. It happened in an area of the floor about where the bain-maire had been.  In falling, the plaintiff broke her wrist, which has resulted in a serious disability of her right hand and arm. The learned trial judge assessed her damages at $189,502.96; but he gave judgment for the defendant. He did so because he considered that the plaintiff had not proved that any negligence on the part of the defendant Club had caused or contributed to her injuries.

[5]  The plaintiff’s case at trial was: (1) that there was something slippery on the floor where she fell; (2) that it had spilled from the bain-marie at a time when it had been located on the side of the dance floor; (3) that it was the substance on which she had slipped; and (4) that the defendant had been negligent in failing to have in place a system to avoid such spillage or to clean it up promptly.

[6] His Honour expressed himself satisfied with respect to the fourth of these  elements. He said:


“… I am satisfied that there was no system in place at all. The placement of a bain-marie on a dance floor seems to me to lead inevitably to a risk of spillage on to an already slippery surface and a real risk of injury.”

He nevertheless rejected the plaintiff’s claim in a passage which appears in para 11 of his reasons for judgment:


“In this case, however, the evidence does not permit of a finding that Mrs Garrett fell because of something spilled on the dance floor. The only evidence of a spillage comes from Mrs Saltner and is in relation to a period of one to one and a half hours before the fall. The dance floor was relatively crowded by the time Mrs Garrett had got up for the final time. The area where the spillage was said to have been must have been traversed by many people. No dancer appears to have seen it. There is no evidence of any other actual or threatened mishap. If the spillage had in fact been present earlier there is no evidence that there was any trace of it left on the dance floor at the relevant time. If some other spillage had occurred during the dancing I am not persuaded any reasonable system would necessarily have picked it up or allowed it to be removed. It would depend to some extent on when it occurred and how crowded the dance floor was at the time. These issues were not addressed in the evidence.”

[7] The plaintiff appeals against the judgment dismissing her claim, and asks the Court to reverse the judgment, submitting, as is correct in a case like this where nothing in the findings turned on credibility, that this Court is in as good a position as the primary judge to draw inferences from the facts as found or facts that were not contradicted at the trial.

[8] The real problem for the plaintiff, and the issue on which she failed at the trial, was proof that she did in fact slip on something on the floor (as distinct from simply having slipped), and, if so, that it was spillage from the bain-marie. As such, it seems to have been assumed that it was or would have been food or liquid from that source; it might equally well have been water used in heating the bain-marie that was not spilled but leaked out of it. There is in evidence a photograph of the bain-marie (ex 10), but nothing much of a description of how it works or what was inside it. Perhaps, in the end, it does not matter much except that it may make it more difficult to identify the substance, if any, or its source, on which the plaintiff claims to have slipped.

[9] The only direct evidence about there being some foreign matter on the floor came from a Mrs Saltner. She was another guest at the party, who arrived there at about 8.00 pm. Some time later she saw the bain-marie on the floor in the position shown on the diagram ex 12.  On the floor under the bain-maire near the leg of what must have been the supporting table, she said she saw what she described as greasy fluid extending over an area of about six inches or so in diameter, and she thought it looked dangerous. She did not dance and left the party at about 9.30 or 9.45 pm, which was some 20 minutes after the dancing started.  That, she said, was when she saw the puddle on the floor next to the leg of the table; but she must have been mistaken about that matter, because by then the bain-marie had already been removed from the dance floor. His Honour evidently did not accept this aspect of her evidence, but, as we have seen, he found that Mrs Saltner had seen the puddle or liquid approximately one to one and a half hours before the plaintiff fell.

[10]  The only other evidence came from the plaintiff herself. When she returned home and took her stockings off that night, she found a stain on the back of the right leg. The stain had not been there before when she put the stockings on to go out that night; she knew that it was not there before because the stockings were brand new when she put them on.  The problem with this evidence was, as his Honour observed, that the stain was not identified. It was, he said, as likely to have come from one of the seats on which she sat during the evening as from something on the floor where she fell. She had moved at one stage from a seat near the kitchen to one nearer the dance floor.

[11]  The evidence relied on to prove that something from the bain-marie caused the plaintiff to slip is therefore reduced to these circumstances; namely that a pool of fluid was seen under the bain-marie inside the leg of the table some 1 to 1½ hours before the plaintiff slipped; that the place where she slipped was on the dance floor near where the bain-marie had been; and that the plaintiff later found a recent stain on the back of her right stocking that night. From this evidence his Honour was invited, but declined, to draw the inference that the plaintiff slipped on some kind of fluid or substance on the dance floor that had come from the bain-marie. As appears from para 11 of his reasons, however, he pointed out that the place where the spillage (if that is what it was) was said to have been must have been traversed by many people in the period that had elapsed from the time when the dancing began because the floor was relatively crowded when the plaintiff got up to dance for the last time. None of the other dancers had seen it. Dance floors are slippery and “the reality is that people sometimes slip on dance floors”. His Honour said he was not able to find that any foreign substance contributed to the fall.

[12]  I am unable to fault his Honour’s reasoning on the critical question at issue. The plaintiff was, it is true, bound to prove her case only on a balance of probability. In that regard, she was not limited to direct evidence of what caused her to slip, but was entitled to rely on circumstantial evidence to support the requisite inference or inferences. As Dixon CJ said in Jones v Dunkel (1959) 101 CLR 298, 304-305, “you need only circumstances raising a more probable inference in favour of what is alleged”; but, his Honour went on, those circumstances “must do more than give rise to inferences of equal degree of probability so that the choice between them is a mere matter of conjecture the law does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or others”.

[13]  In the present case the circumstances I have referred to were not enough to make it more probable than not that the plaintiff fell because she slipped on fluid that came from the bain-maire, rather than on some other and unidentified substance from another source, or from nothing more than a dance floor that was slippery as by nature dance floors commonly are. To find otherwise is to engage in conjecture.  The plaintiff was an experienced dancer, and was dancing with her usual partner at the time of the mishap, but it does not follow that she did not simply slip in the course of dancing. Such a hypothesis is as likely as any other. It was said that the clearest description of the plaintiff’s fall that was given at the trial was that of her sister Mrs Lea, who said “it was as if her legs went out from underneath her and she fell down …”.  There is nothing in this, or in the plaintiff’s own evidence, that suggests that her slipping was due to her having stood on any foreign substance on the floor.

[14]  Mr Crow of counsel in his well prepared submissions for the appellant referred us to a number of decisions in one, or perhaps some, of which an inference that a plaintiff has slipped on something has been drawn from the fact that it was a place in which (1) slippery substances were or were likely to be present, and (2) there was no system of continual inspection and cleaning to eliminate accidents. The present is not a case of that kind; or, if it is, it is one in which there is an equally plausible explanation for the plaintiff’s slipping, which is that she was dancing on a floor which, being intended for dancing, was designed to be and in fact was as slippery as those floors often are.

[15]  In the result I do not consider that his Honour’s reasoning discloses any error of law or fact. I reach this conclusion with regret having regard to Mrs Garrett’s injury and the expense that she has been exposed to. However, in my opinion the appeal should be dismissed with costs.

[16]  DAVIES JA: I agree with the reasons for judgment of McPherson JA and with the order he proposes.


Editorial Notes

  • Published Case Name:

    Garrett v North Rockhampton Sports & Recreation Club Inc

  • Shortened Case Name:

    Garrett v North Rockhampton Sports & Recreation Club Inc

  • MNC:

    [2002] QCA 493

  • Court:


  • Judge(s):

    McMurdo P, McPherson JA, Davies JA

  • Date:

    15 Nov 2002

Litigation History

No Litigation History

Appeal Status

No Status