Often in slip and fall cases, claimants allege they must have slipped on a spillage, relying on nothing more than the fact they have slipped.
In Kalache v Secureclean Pty Ltd (No. 2)  NSWDC 717, the New South Wales District Court confirmed that claimants have an onus to prove more than supposition.
The claimant was shopping at the Stockland Wetherill Park Shopping Mall, where she fell and fractured her ankle. She alleged that she slipped on a spillage and that the cleaning contractor would have detected it if they had complied with a reasonable system of cleaning and inspection.
The focus of the case was not the standard of the cleaning system but, more fundamentally, the reason for the fall. Judge Neilson's assessment of the evidence on this issue serves as a useful checklist for retailers, cleaning contractors and other defendants in defending slip and fall claims where there may not have been a spillage to detect.
In finding that the claimant did not slip on a hazard, his Honour noted that:
- in the claimant's evidence in chief, the most she could say is that she 'felt something slippery' under her foot
- she conceded in cross-examination that she did not know what that was
- a security guard, who attended on the claimant after the incident, provided a contemporaneous statement and gave evidence at trial that he both inspected the area immediately after the incident and did not find a hazard and that the claimant had told him she slipped and twisted her ankle on a metal joint
- CCTV footage showed two security guards and a cleaner inspected the area after the incident, none of whom reacted to a hazard
- CCTV footage from before the incident, showed 384 other customers pass over the area where the claimant fell without one of them reacting to the possible presence of a contaminant
- the claimant did not present the boots she was wearing for inspection to ascertain whether they had adequate slip resistance
- the claimant did not tell any of the three people that recorded notes at the Liverpool Hospital or either of the two GPs she attended that she slipped on a substance.
The only evidence in the claimant's favour was a submission from her counsel that the mechanism was so obvious on viewing the CCTV footage such that the court should take judicial notice that the cause of the slip was likely to be a hazard. The claimant's daughter also gave evidence at trial that, when she saw her mother at the Liverpool hospital four hours afterwards, her mother's leg was wet.
In finding for the defendant, his Honour stated that he had been asked to infer from the mere fact the claimant fell that she must have slipped on something and that something was related to the wet patch noted by her daughter four hours after the incident. Unsurprisingly, his Honour was not persuaded by this evidence and entered verdict for the cleaning contractor.
Slip and fall cases where claimants assert that they must have fallen on 'something', but where the contemporaneous reports do not identify anything, are not uncommon. Kalache is a reminder to defendants that people can just slip or trip and that the onus is on the claimant to show they slipped on a hazard that the defendant should reasonably have detected. In all cases, the contemporaneous documents and CCTV footage should be carefully considered to ascertain whether there is a good argument that there was no hazard.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
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