‘Surmise’ is not enough: verdict for defendant in slip and fall claim

Carnemolla by her tutor Carnemolla v Arcadia Funds Management Limited [2020] NSWDC 108

The duty owed by retailers and shopping centre operators to prevent slips and falls is a very high one. However, the recent decision of Carnemolla demonstrates that where a defendant has a good defence supported by a detailed incident report they can still win. If the facts do not stack up for a claimant, a court won’t allow them to fill the gaps with an expert report and arguments that an entire floor needs to be replaced.

The facts

The plaintiff was a 40-year-old disability support pensioner who slipped and fell outside the women’s toilets at the Neeta City Shopping Centre. She fractured her patella.

The Centre delegated cleaning to a contract cleaner, which it required to inspect bathroom areas at least every 20 minutes. At trial, the plaintiff accepted this was a reasonable system and that the area had in fact been inspected 12 minutes beforehand. Proof of facts like this this is usually a ‘slam dunk’ defence for an occupier in claims like this.

The plaintiff’s claim proceeded on the basis that she slipped on water. Further, in reliance on an expert report from a Mr Burn, that the centre should have replaced the terrazzo tiles because they were slippery when wet.

The existence of water was hotly disputed at trial as:

• the detailed incident report stated that, despite the cleaners who attended looking, they were unable to detect any water or skid marks
• the most the plaintiff said at trial was that she ‘felt something’ under her feet.

The decision

The Court found that the plaintiff had not met her onus of proving that she slipped on water. Crucial to this conclusion was that an inference that water was present cannot be drawn merely because someone has slipped. There must be some direct evidence.

The Court then had no problem dismissing the Mr Burns’ report on the following bases:

• His opinion was based on an assumption that the plaintiff had slipped on water, which the Court found to be mere ‘surmise’ on Mr Burns’ part.
• The expert opined that several steps could be taken to ensure a safe surface. These included installing a safe floor that had sufficient slip resistant properties even when wet, and a safe system of cleaning and inspection. However, the reasonableness of the existing system of cleaning and inspection had been conceded and Mr Burns did not say whether one of the steps he recommended would be enough to prevent the risk of injury.
• Mr Burns did not discuss the cost of replacing the terrazzo floors.

Lessons learned

The idea that retailers have an obligation to install flooring that is not slippery when wet is one that retailers may find somewhat confronting.

However, Carnemolla will provide some comfort for retailers. It demonstrates that, where there is either evidence that a reasonable system of cleaning was implemented or a lack of evidence that the incident involved a hazard, courts will reject these claims.

While we expect claimants and their QCs will continue to make novel arguments in slip and fall claims, the case shows that expert evidence or arguments that expensive solutions, such as the complete replacement of flooring, will not defeat the ‘slam dunk’ defence.