Scott v Jackson Garden Landscape Supplies Pty Ltd
[2015] QDC 18
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- Unreported Judgment
- Scott v Jackson Garden Landscape Supplies Pty Ltd[2015] QDC 18
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Scott v Jackson Garden Landscape Supplies Pty Ltd[2015] QDC 18
Scott v Jackson Garden Landscape Supplies Pty Ltd[2015] QDC 18
DISTRICT COURT OF QUEENSLAND
CITATION: | Scott v Jackson Garden Landscape Supplies Pty Ltd [2015] QDC 18 |
PARTIES: | JACQUI ANNE SCOTT (plaintiff) v JACKSON GARDEN LANDSCAPE SUPPLIES PTY LTD (ACN 097 859 400) (defendant) |
FILE NO/S: | 1287/12 |
DIVISION: | Civil |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court of Queensland |
DELIVERED ON: | 17 February 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11and 12 February 2015 |
JUDGE: | Andrews SC DCJ |
ORDER: | The claim is dismissed. The plaintiff is to pay the defendant’s costs on a standard basis. |
CATCHWORDS: | TORTS – NEGLIGENCE – CAUSATION – whether breach of duty – whether injury caused by breach |
COUNSEL: | Newton for the plaintiff Howe for the defendant |
SOLICITORS: | Carter Capner Lawyers for the plaintiff DibbsBarker for the defendant |
Issues
- [1]The plaintiff slipped on something while walking outdoors on paved concrete at work in a landscaping supply business. She fell, sustaining a fracture and losing income. The central liability issue was credit.[1] There was no issue about the law. The issue was whether the cleaning system described was overstated by the defendant’s witnesses. The defendant’s four witnesses described an emphasis on cleanliness. Three described checking that there was no debris at relevant times before the fall. One described sweeping the floor about one to two hours before the fall. There was no issue that the system described and steps allegedly taken would have been adequate to discharge the employer’s duties of care to its employee on the date of the accident.[2] The plaintiff’s case was that the cleaning system permitted debris to remain, permitted more to accumulate and prohibited the cleaner from cleaning it for most of the working day. Quantum was resolved by agreement between the parties.
Facts
- [2]In February 2008 the plaintiff was aged 59 when she commenced casual weekend work as a sales assistant with the defendant at Jackson Garden and Landscape Supplies at 349 Brackenridge Road, Brackenridge in Queensland (“the defendant’s premises”). She worked there on Saturdays and Sundays for about the next 11 weeks. She generally worked about 9 hours a day and generally began on Saturdays at 7.00am. The plaintiff’s instructions from the manager who hired her, Mr Hayes, were explained to her in the interview. The plaintiff was to help customers. She was to assist customers to work out how many tiles they needed for their paving area, to give them prices and makes sales. She was to answer phones. When she was not busy with customers or on the phone, the plaintiff was told that she should keep the premises as clean as possible.
- [3]At weekends the plaintiff worked with 3 people. There were 3 regular truck drivers at the premises too but they worked in a different area. The three people with whom the plaintiff worked were Joanne, an employee with tasks similar to the plaintiff’s, Mr Ebert the assistant manager and with Cole Thomson, a young man aged about 16.
- [4]I infer that the parts of the defendant’s premises which the plaintiff was asked to keep clean were inside a building containing the shop and office and toilet and outside that building on a concrete pad at the southern end of the defendant’s premises and west of the building. Customers wanting to inspect laid paving might walk on paving to the west of the building while customers wishing to inspect loose tiles stacked on pallets might walk or drive between rows of pallets on a concrete pad to the south of the building. The plaintiff was instructed not to go “down the back” to the northern end of the defendant’s premises or past a “little box” which was about half way between the southern and northern boundaries. The plaintiff’s duties were to be undertaken in roughly the southern half of the premises.
- [5]The building in which the plaintiff worked contained an office with a refrigerator, a shop and a toilet with an associated basin. Immediately outside the building to the south was a concrete surface where pavers on pallets were on display in rows. The surface where the pallets were displayed was a large part of a larger concrete pad. The pavers were stored on pallets in parallel rows running north south in a section of that large concrete pad on the southern side of the office. The rows were separated by spaces sufficiently wide to allow one car or the defendant’s forklift to pass between them. That width allowed customers to drive between rows, park adjacent to the tiles they had chosen and load them into a car or trailer. The concrete pad was between the building where the plaintiff worked and the southern boundary fence at the footpath of Bracken Ridge Road. Customers and staff also walked on the concrete pad and between the rows of pallets. The pad was generally flat but it did have an incline upwards to the south.
- [6]On Saturday 10 May 2008 the plaintiff began work at 10.00am. Cole Thomson began at 7.00am, as did Mr Ebert. By this date the plaintiff had worked about 11 weekends at the premises. At about 10.40am the plaintiff was serving a male customer. The plaintiff was walking in a southerly direction on the concrete pad in a thoroughfare between two rows of pavers on display on pallets. The plaintiff walked with the customer on her right between the rows. As she walked up the slight incline to the southern end corner of a row of pavers, the plaintiff started to turn the corner to her left, that being to the east. As she was doing so, she felt an object under her right foot in about the region of her instep. The object felt to her as if it rolled under her foot. As she felt this the plaintiff sensed that her feet shot out in front of her and she fell to the ground heavily onto her right hip. She was wearing joggers. She slipped on the object. It has not been identified.
- [7]As a result of her fall, the plaintiff sustained a sub-capital fracture to the neck of the femur.
- [8]Over the 11 weekends prior to the occasion when she was injured, the plaintiff noticed a number of things. Some were relied upon as circumstantial evidence, tendered to suggest that the defendant was so frugal that its cleaning system was inadequate. When the plaintiff began her employment she found that no tea or coffee was supplied. The toilet cubicle needed cleaning and soap. The broom used for cleaning the office and shop was old and its bristles were deformed. An industrial broom was used for cleaning outside the building and there was no portable blower vacuum available for cleaning outside because it was on loan to someone. There was no kitchen in the building when the plaintiff worked there. There was a kettle in the office. If the plaintiff wished to fill the kettle, she was obliged to step outside the building to access a satisfactory tap.
- [9]The other employee whose duties were similar to the plaintiff’s, Joanne, worked with the plaintiff at weekends. The plaintiff generally divided her time between the office and the outdoors. She would spend between a third and a half of her day outside the office. Joanne tended to spend less time outside. Joanne was not called by either side to give evidence and no relevant inference is drawn from her absence.
- [10]Cole Thomson was hired to work weekends as a yardman. He was aged about 16 at the time of the plaintiff’s fall. Mr Thomson’s job was to maintain cleanliness around the premises. His duties also took him to the northern end of the defendant’s premises where he shovelled and bagged materials for customers.
- [11]The plaintiff formed the impression that the assistant manager who managed the defendant’s premises at weekends, Mr Ebert, behaved offensively to Mr Thomson, using offensive language. If so, this is relevant to the issue of whether the system of cleaning the pad was adequate. The plaintiff’s case was that Mr Thompson would be sent to the northern part of the property when customers appeared on the concrete pad at the southern end. If so, it would mean he was unable to clean any spilled debris on the concrete pad. There was a dispute between the parties as to the extent of Mr Thomson’s duties. It was the plaintiff’s evidence that Mr Thomson’s duties at weekends were limited by oral instructions which she heard given by Mr Ebert. The plaintiff gave evidence that she recalled Mr Ebert to have insisted that Mr Thomson stay away from customers, not serve customers, go down the back when customers were about and instructed Mr Thomson not clean near customers. Mr Ebert denied giving those instructions. Mr Thomson denied receiving those instructions. Both Mr Ebert and Mr Thomson gave evidence that Mr Thomson was permitted to serve customers and to be near customers.
- [12]The credit issues require an assessment of the honesty and the reliability of the recollections of witnesses of mundane events of almost 7 years ago. I have not been persuaded that any witness is dishonest. I expect that each witness has memories impaired by the time that has passed.
- [13]I accept the evidence of Mr Thomson that at the relevant date it was part of his duty to assist customers by loading heavy things into their vehicles. This would have brought him into contact with customers.
- [14]Mr Thomson denied that he was treated disrespectfully by Mr Ebert. The plaintiff’s counsel emphasised this credit issue because a finding against the defendant’s witnesses might lead to a rejection of their evidence more generally. The offensive language was not better described. The circumstances of its use were not described. Occasional offensive language from the weekend manager to the 16 year old weekend yardman at a landscape supply business, if proved, would not lead to the inference that either the weekend manager or the 16 year old would remember it 7 years later if their relationship was generally a good one. They described a generally good working relationship. I draw no inferences about the credibility of Mr Ebert or Mr Thomson from the plaintiff’s recollections of offensive language or the men’s failure to recall it.
- [15]Where two women were employed as sales assistants and where Mr Thomson was employed to work outside cleaning, shovelling and lifting, it would be unsurprising if the site manager had given instructions to Mr Thomson, from time to time, to give priority to those manual tasks and to leave the relative comfort of customer service to the two women employed for that purpose. That may explain the inconsistency between the plaintiff’s recollections and the recollections of the two male employees. In any event, where the plaintiff’s evidence was that Mr Thomson was instructed by Mr Ebert not to clean the concrete pad if customers were present, I do not accept that it was an accurate recollection. I accept Mr Thomson’s and Mr Ebert’s evidence that Mr Thomson was permitted to make sales to customers, that Mr Thomson was permitted to clean near customers and was not required to remain at the northern end of the premises once customers arrived on the concrete pad.
- [16]The plaintiff did regularly see Mr Thomson sweeping outside the building. However, the plaintiff recalled seeing Mr Thomson sweep only that part of the concrete pad which was immediately to the south of the building. She gave evidence that she did not ever notice him to sweep further south between the rows of pallets or at the southern end of the pallets at the place where she slipped. She believed that Mr Thomson did not ever sweep at the southern end of the pallets where she slipped. Mr Thomson and Mr Ebert each gave evidence that Mr Thomson did so. Counsel for the plaintiff did not ask for a finding that he did not ever do so.[3]
- [17]I am not satisfied that the plaintiff’s recollection was correct. I accept the evidence of Mr Thompson and Mr Ebert that Mr Thompson would sweep between rows of pallets and at the southern end of the pad on each day of a weekend.
- [18]While Mr Hayes did not work at the defendant’s premises on weekends, the plaintiff does remember a couple of occasions when he attended at weekends for a few minutes. Mr Hays did not routinely work at weekends but as the defendant’s manager he would sometimes visit at weekends. He worked full days from Monday to Friday. On those days Mr Hayes regarded it as the responsibility of everyone including himself to make the thoroughfares on the concrete pad very clean. Mr Hayes gave evidence that before he finished work on the Friday afternoon, he would check to ensure that the concrete pad was clean. It was submitted for the plaintiff that I should not accept this evidence because of some inconsistencies in Mr Hayes evidence related to other topics and inconsistencies between Mr Hayes evidence and the evidence of other witnesses. One example relied upon was Mr Hayes evidence that the defendant used to sell blower vacs. There was inconsistent evidence from another witness. Inconsistencies in Mr Hayes evidence do not persuade me that he was unreliable on this or other portions of his evidence about his concern for a tidiness. In any event, I regarded Mr Hayes as reliable on the issue of whether the defendant had sold blower vacs. Working 5 days a week at the premises and having worked for the defendant from a time prior to its move to the premises, he is better placed to know if blower vacs were ever offered for sale than any other witness. The fact that the plaintiff recalled occasions when parts of the pad contained debris does not persuade me that Mr Hayes was unreliable about his concern and his habit of checking the pad on Friday afternoons. Because Mr Hayes lived three to five minutes from the defendant’s premises, Mr Hayes would often call in at weekends to ensure that the yard was generally clean and the employees performing their duties.
- [19]Mr Ebert visited the plaintiff in hospital about two days after her fall. Another attack on credit was based upon the plaintiff’s allegation that she told Mr Ebert during his visit that she was going to sue the defendant. The inference her counsel urged was that Mr Ebert reported the impending litigation to staff and management immediately and they became defensive and reconstructed events and the owner of the defendant, Mrs Jackson deliberately chose not to retain video footage of the premises from the day of the fall. There was video footage of the premises which was made routinely by 9 cameras allowing Mrs Jackson, at home with her young children, to keep an eye on activities. Only she and Mr Hayes were aware of her doing so. Video footage was captured routinely and retained for 5 to 7 days before it was erased routinely. Footage was not disclosed. I accept the evidence of Mr Ebert that he was not told at hospital that the plaintiff intended to sue and that he did not return to report to anyone that she intended to sue. I accept the evidence of Mrs Jackson that before the footage was erased she was not aware that the plaintiff was seriously injured or that she intended to sue. I draw no adverse inference against Mrs Jackson. I accept that the first occasion when the defendant learned anything relevant about the plaintiff’s intentions was about 5 days after the slip, when the plaintiff’s daughter called at the premises to ask for compensation claim forms. There was no evidence of whether the footage would have revealed anything relevant about the state of the debris. Mr Hayes was not cross-examined about the footage because the plaintiff was then unaware of its existence. No application was made to recall him to put allegations of improper concealment of footage. I draw no inference against Mr Hayes. I draw no inference against the defendant arising from its failure to disclose the video or its failure to retain it. There is no evidence that it would have shown the state of debris.
- [20]The plaintiff remembered that with big trucks moving past the shop all the time, it was a fairly “dusty place”. I infer that the big trucks which went past the shop were driven from the Bracken Ridge Road entry at the southern boundary, along the bitumen driveway past the eastern side of the building containing the shop and office and on to the northern end of the premises where loose landscaping materials were stored ready for loading onto trucks. Those trucks would not drive onto the concrete pad. The plaintiff also observed that there were times when cars, as opposed to trucks, would drive off the bitumen driveway and onto the concrete pad “up the top” and then “drive down and then come out the bottom part”. I infer that cars would drive from the bitumen driveway at the east of the concrete pad and turn from the driveway onto the southern end of the concrete pad before driving in a northerly direction between the rows of tiles stored on pallets. Such cars would drive in a northerly direction, between the rows, in the direction of the office building before turning to the east in front of the office building where such cars would exit onto the bitumen driveway which was at the east of the building. There were about five double sided rows of pallets on the concrete pad storing various tiles. It meant that there were about six thoroughfares running north south along which a car could drive or customers could walk beside pallets. A car could tow a trailer between the rows. The bitumen driveway sometimes had potholes and regularly had loose stones on its surface.
- [21]The plaintiff did not clean in the office area but she would sweep in the shop area where the products were displayed and sold and she would sometimes dust the shelves there.
- [22]The plaintiff gave evidence that in the first two or three weekends of working at the defendant’s premises she asked Mr Ebert why there was no blower vacuum to use on the concrete pad. She gave evidence that she said to Mr Ebert “it’s really bad out there. Why don’t we have a blower vac?” She gave later evidence that she said to Mr Ebert “it’s a mess” and “well, you know, we need a blower vac because Cole’s not doing up there” implying that “up there” was the southern end of the concrete pad. The conversation with Mr Ebert was one of two alleged complaints about the state of the pad. When the alleged conversation is considered, even if accepted, it is not an admission against the defendant’s interest. The plaintiff gave evidence that Mr Ebert responded that it was Cole’s job. It was the defendant’s case and there was ample evidence that it was Cole Thomson’s job to clean the pad and that he would use an industrial broom at least first thing in the morning and return with the broom if necessary during the day. Mr Thomson gave evidence that he preferred an industrial broom and regarded a blower vac as likely to blow dust onto customers. The plaintiff does not argue that the failure to use a blower vac was a breach of duty.
- [23]The plaintiff did not initially suggest in her evidence that she told Mr Ebert that there were bits of rubble and stone lying about. She explained in her evidence “there was a lot of, like, you know, different sized bits of rubble and stones and just stuff all over”. It was left for inference as to whether she told Mr Ebert whether there was rubble as opposed to mess. It was left for inference as to whether the rubble she saw was cleaned up on the day she saw it or remained and was added to in later days. During cross-examination the plaintiff expressed her strongest criticism saying “I felt it was dangerous – dangerous. It wasn’t being cleaned properly.”
- [24]Without explaining the precise words of her conversations or expressly describing the effect of them, the plaintiff gave evidence that she spoke with Mr Ebert at least twice about the state of the pad. She gave evidence that it seemed to her that the pad was getting worse, that she could see that it had not been cleaned and that it had more rubble with stones of different sizes which were of an orange colour and were likely to have been chipped pieces from pavers. The plaintiff did not identify the place where this orange rubble was, or how long before the date of her fall she saw the orange rubble or how long before the date of the fall she told Mr Ebert about it, or whether the worsening state was on one day or one weekend or over several weekends or generally throughout the concrete pad. The orange rubble was not implicated in the fall. I accept that she honestly recalled an occasion when she saw orange debris. It is not particularly useful to her case.
- [25]The plaintiff’s recollections of rubble on the pad and its worsening condition were in stark contrast with the defendant’s witnesses of the general state of the pad. As Mr Ebert did not recall the occasion of the plaintiff’s alleged complaint or complaints, he would have been unable to contradict the plaintiff’s recollection that there was debris present on that occasion or on those occasions.
- [26]Mr Ebert denied that the plaintiff ever complained to him that the paved area contained debris, rocks and was unclean and dangerous. Apart from denying that the plaintiff made such complaints, Mr Ebert also denied that the paving area was in such a state on any relevant weekend.
- [27]Mr Thomson was employed as the primary cleaner at weekends. Mr Thomson would use an industrial broom to sweep the concrete pad in preference to a blower vac because he believed that the blower vac would blow dust to the discomfort of customers. He worked only at weekends but would begin at 7.00 am with cleaning. It was his duty to clean the pad and to sweep the office. He was to ensure that stock was put away. He claimed to have regularly cleaned the shelves in the office and shop. He would sweep the paver yard including between the rows of pavers. When on the concrete pad he would begin his sweeping at the southern end. That was the end where the plaintiff believed Mr Thomson would never sweep. I accept that Mr Thomson would sweep in that area. Mr Thomson would take about two hours to clean the southern section of the premises involving the shop and office and concrete pad. He could occasionally be interrupted to assist in other places. However, he would return to continue to clean the pad several times a day. He did not regard rock or debris from the driveway as creating a problem on the pad. I accept that evidence.
- [28]Mr Thomson gave evidence that he started his weekend work by cleaning and that he did this from 7.00 am on 10 May 2008. He gave evidence that he had cleaned the area where the plaintiff fell at a time which he estimated to have been somewhere between 8.00 am and 9.00 am and that he did not notice any debris, rubble, rocks or pebbles. No witness contradicted this evidence. Mr Ebert gave evidence that before Mr Thomson cleaned the area he had checked it, that it was Mr Ebert’s habit to check it every morning that he worked and that it looked quite good on the morning of the plaintiff’s fall.
- [29]The plaintiff did not suggest that she ever complained to Mr Thomson or to Mr Hayes about the state of the concrete pad. Her alleged remarks made about the pad were remarks made to Mr Ebert. Mr Thomson and Mr Hayes gave evidence, which I accept, that the plaintiff did not complain to them about either debris or danger arising from the state of the concrete pad. If the plaintiff complained about the state of the pad to Mr Ebert on a date when there was debris present, that complaint was not on the day of the fall and that evidence, even if accepted, does not satisfy me that the cleaning system was unreasonable on the day of the alleged complaint or on 10 May 2008. I make that observation because debris observed on a thoroughfare on one or more than one occasion does not inevitably lead to the inference that there has been less than reasonable care taken to provide a proper cleaning system.
- [30]The concrete pad, in a clean condition, appears in photographs in Exhibit 8. Those photographs were on some unspecified date and after the fall. The pallets in the photographs are arranged in a different shape from the way they were arranged at the time of the plaintiff’s fall. Apart from the cleanliness and the position of the pallets, the photographs reasonably represent the condition of the pad as it was at the date of the plaintiff’s fall. However, the photographs reveal that the concrete was capable of being cleaned by broom and was of a colour which was likely to show dark debris if it was present. As the material upon which the plaintiff slipped has not been identified there is no way to determine its colour.
- [31]Mr Ebert gave an opinion that it would take four hours to clean the building, the paved area and the pad. Mr Thompson gave a somewhat inconsistent opinion that he could clean those places in two hours. The inconsistency does not lead me to doubt that Mr Thompson could sweep any relevant debris off the pad by 9.00am on the morning of the plaintiff’s fall.
- [32]Where could debris come from? Loose stones, gravel and soils were not stored on the concrete pad. An exception to this proposition may have arisen on the eastern border of the pad where rocks were stored. The rocks stored there were large enough for landscaping. They were not pebbles. They would have been some distance from the row of pallets where the plaintiff slipped and fell. The plaintiff drew a sketch suggesting that there were five relevant rows of pallets when she fell and that she had walked between the second and third rows from the eastern side. The rows of pallets were each two pallets wide. It follows that, if her recollection was correct, the plaintiff was separated from the row of garden rocks by no less than two empty rows wide enough to fit a car and two rows of pallets which were each two pallets wide. The place of her fall was marginally further from the bitumen driveway. It is very unlikely that a vehicle passing on that driveway would have thrown debris sideways so far as the place where the plaintiff slipped. It is less likely that a landscaping rock or fragment would fall from the row of garden rocks and tumble to where the plaintiff slipped.
- [33]The debris which caused the plaintiff to fall was large enough for her to feel it under her jogging shoe. No material of that size was deliberately stored on the concrete pad. It might have fallen onto the concrete pad if it was chipped from a paver. It might have come accidentally onto the pad if it was somehow thrown or carried in by a car tyre or otherwise from the bitumen driveway or if it fell from a car or trailer which was driven onto the pad.
- [34]After her fall the plaintiff asked a staff member to look for the object on which she had slipped. It was not found. The plaintiff could not see anything likely to have caused her to slip. Mr Ebert looked and found nothing. Mr Thomson looked after the plaintiff had been taken away by ambulance and found nothing. Mr Hayes looked and found nothing. The fact that no-one could see any possible piece of debris capable of being slipped on suggests that the area was generally clean. It is consistent with the descriptions of the defendant’s witnesses. It is not consistent with the description that the plaintiff gave of some unidentified portion of the concrete pad on an unidentified earlier date which had “different sized bits of rubble and stones and just stuff all over” or stones of different sizes of an orange colour.
- [35]The degree of probability of the plaintiff encountering debris or rubble on the concrete pad was not the subject of direct evidence. I bear in mind that no pebbles or gravel were stored on the pad and rubble should have appeared only by accident. The frequency of such appearances was not the subject of evidence. It is reasonable to anticipate that relevantly large debris capable of inducing a slip would appear by accident. Its frequency is difficult to predict and was not the subject of evidence. One can contrast a fruit section in a busy supermarket food hall. There, one would reasonably infer litter to be frequently dropped on the floor with a much higher volume of pedestrian traffic.
- [36]A reasonable employer would require the concrete pad to be checked for debris regularly and to have the debris removed promptly. Was the frequency for checks for debris unreasonable? At the defendant’s premises the system involved Mr Hayes checking the pad when he departed work on Friday afternoons, Mr Ebert checking the pad on Saturday mornings before Mr Thomson went to clean it and Mr Thomson beginning his cleaning of the pad shortly after 7.00 am on Saturday mornings with an industrial broom at the southern end. Otherwise, employees were to keep a lookout for debris and remove it.
- [37]Counsel for the plaintiff did not submit that those checks would be insufficiently frequent to be reasonable. The attack for the plaintiff was instead an attack on the credit of the defendant’s witnesses with a view to achieving a finding that the pad was not inspected by Mr Hayes, Mr Ebert or Mr Thomson before the plaintiff’s slip, was not observed by them to be clean as they suggested and was not swept in the relevant southern section on the morning of 10 May 2008, because Mr Thomson confined his sweeping to an area further north and immediately outside the building.
The cleaning system
- [38]The pad was kept and left generally clean Monday to Friday. Mr Hayes would inspect it on Friday afternoons at the end of the day.
- [39]Mr Ebert would check the pad on weekend mornings before Mr Thomson began his cleaning on the pad.
- [40]Mr Thomson would take an industrial broom to the cleaning pad on Saturday and Sunday mornings and, despite interruptions, would return to complete his sweep of the pad including the southern end.
- [41]Employees other than Mr Thomson, including the plaintiff, were asked to keep the pad free of debris.
The law
- [42]It is an employer’s duty to take reasonable care for an employee’s safety. An employer need not safeguard an employee from all perils.[4]
- [43]A reasonable employer in the defendant’s position should have foreseen that pebbles and debris on the concrete involved a risk of injury to employees walking on that pad. This court must determine what a reasonable employer would do by way of response to that risk considering the magnitude of the risk and the degree of the probability of the plaintiff being injured by debris or rubble, along with the expense difficulty and inconvenience of removing debris and rubble.[5]
- [44]The plaintiff has the onus of proof that the defendant’s cleaning system was less than a reasonable employer would have provided considering the magnitude of the risk and the degree of the probability of the plaintiff being injured by debris or rubble, along with the expense difficulty and inconvenience of removing debris and rubble. The plaintiff’s case was that the defendant provided a deficient cleaning system. It was not the plaintiff’s case that Mr Thomson negligently missed a piece of debris while sweeping the southern end of the pad. If the plaintiff satisfies her onus she must also establish that her slip was caused by the defendant’s breach of duty.
Analysis
- [45]The plaintiff’s counsel accepts that the cleaning system described by the defendant’s witnesses was adequate but submits that the defendant’s witnesses have overstated matters and should be rejected. He submits that I should find that the defendant’s employees did not use the system they described.
- [46]The plaintiff gave evidence that she could not remember how clean or messy the pad was on the day of her fall. She remembered she did not notice anything where she fell. That does not assist the plaintiff in satisfying her onus.
- [47]The occasions when the plaintiff recalled debris were at some unspecified time of day, on an occasion when she brought up the possibility of using a blower vac 8 or 9 weeks before and on another occasion on an unspecified day. Debris was to be expected. Debris which posed a danger unless it was cleaned up was to be expected. Its presence on one or two occasions for unspecified lengths of time revealed little about the adequacy of the defendant’s cleaning system on the days when those alleged complaints occurred, or generally, or on the day of the slip.
- [48]The plaintiff was absent on Friday 9 May 2008 and in the three hours from 7.00am until 10.00am on 10 May 2008, during which Mr Ebert allegedly inspected and Mr Thomson allegedly swept and cleaned. There was no evidence of any general debris on the concrete pad on the day of the fall on 10 May 2008. The evidence was of a concrete pad which was clean and had been swept.
- [49]I was asked to reject Mr Thompson’s evidence and Mr Ebert’s as to their activities and recollections of the pad on 10 May 2008 before the fall. I am not satisfied on the balance of probabilities that I should. The fact that there was a piece of debris on which the plaintiff slipped is insufficient evidence in itself to satisfy the plaintiff’s onus that the cleaning system was not followed that morning. The debris may have been deposited after the clean or may have been missed during the clean.
- [50]Mr Hayes inspected the pad at the close of business on 9 May 2008 and it was then generally clean.
- [51]Mr Ebert inspected and concluded the pad was clean on the morning of 10 May 2008 before Mr Thompson performed cleaning on it.
- [52]I accept that Mr Thomson inspected and swept the pad by 9.00 am on Saturday 10 May 2008 about one to two hours before the plaintiff slipped. I accept that he swept the southern end of the pad in the area where the plaintiff fell and did so between 8.00am and 9.00am.
- [53]I accept that by 10.20am the relevant part of the pad where the plaintiff fell was clean of relevant debris except for the one piece upon which the plaintiff slipped. Two possibilities are that Mr Thomson missed that one piece of debris or that some debris appeared after 9.00 am and before the plaintiff slipped at 10.20am. The case was not fought as one of negligent brooming by Mr Thomson causing him to unreasonably overlook a piece of debris. Counsel for the plaintiff accepted that if the defendant’s system of cleaning required the pad to be cleaned by 9.00 am he would have difficulty suggesting that the system was inadequate for failure to clean again before 10.20am.[6]
- [54]The system for presenting a clean pad on Saturdays did not rely solely upon Mr Thomson’s inspection and sweep. It depended also upon the inspections of Mr Hayes the day before, the inspection of Mr Ebert at about 7.00am. Mr Ebert, Mr Thomson and the others working that day understood their duty to pick up any rubbish that appeared.[7]Mr Thomson was to return to the pad throughout the day to check for debris.
- [55]I am not satisfied that the defendant breached its duty of care by failing to provide an adequate cleaning system.
- [56]I am not satisfied that the plaintiff’s fall was caused by a failure to take reasonable care to provide a safe place of work or an adequate cleaning system.
- [57]The plaintiff has failed to establish that her injuries were caused by breach of duty on 10 May 2008.