By Jeff Salton

The Court of Appeal in the Supreme Court of NSW has rejected an appeal from the cleaners of a roadhouse that they should not have to pay the total costs for a McDonald’s worker who slipped, fell and injured herself on a floor left wet by one of the cleaner’s employees. The figure awarded to the injured worker was $117,918.

As at 14 March 2011, BP Australia Pty Ltd (BP) was the owner of a service centre roadhouse known as BP Chinderah. Under a contract with BP, Kellys provided cleaning services at BP Chinderah. Anjoshco, a tenant in the complex, operated a McDonald’s store within the roadhouse and employed Ms Muller as an assistant manager.

The primary judge heard that at about 3.25am on 14 March 2011, Ms Muller left the McDonald’s store to use the women’s toilets. She walked along the grey tiled walkway in front of the counter of the McDonald’s store and the KFC store. As she walked towards the toilets, she noticed a sign outside them indicating they were closed. As she turned right to proceed into the corridor leading to the disabled toilets, she slipped and fell, sustaining injuries.

Ms Muller gave evidence, which the primary judge accepted, that after she fell she noticed that the floor surface was wet where she was laying, and the water extended “a bit down the corridor”.

A roadhouse worker, Ms Bourke, gave evidence that she did not see any ‘wet floor’ signs on the ground in the area of the fall. Another worker could not recall passing or stepping over any ‘wet floor’ sign as he came to Ms Muller’s aid.

The accident was captured on CCTV footage.

The still photographs from the CCTV footage showed that there were four yellow ‘wet floor’ signs placed near the tables in the food court and chairs were up on the tables in that area.

In the area opposite, the chairs were also on the tables, however, there were no yellow ‘wet floor’ signs marking the perimeter of that area. There was a single yellow ‘wet floor’ sign behind a rubbish bin, near the open booth area adjacent to the KFC store. There was another yellow ‘wet floor’ sign in the alcove outside the entrances to the men’s and women’s toilets.

Placement of signs

Under its contract, Kellys was required to place ‘Caution: wet floor’ signs near the area being cleaned.

At trial, Kellys pointed to the absence of any express contractual obligation to place ‘wet floor’ signs near the area being cleaned, except where a spill was being mopped. However, the primary judge found the usual system of cleaning involved cleaning the roadhouse in sections and delineating those sections by the placing of signs.

An expert witness tested the tiled floor at the location of the accident under wet conditions and found that when wet, the tiles posed a ‘very high slip hazard’. He explained that the slip hazard was most severe if a pedestrian walked from the dry floor to the wet floor without being aware of the presence of water or moisture, and therefore did not attempt to minimise the risk of slipping by avoiding the wet area or by walking across it in a guarded gait.

He also testified that water was not easily seen on the light coloured tile surface where Ms Muller slipped and fell.

The expert concluded that unobserved water on the floor posed a very high slip risk which could have been eliminated or minimised by the provision of clear warning signs and/or barricades when the floor was wet.

Should have known better

Her Honour found that Kellys had specialist skills in the area of cleaning and that the cleaner must have known that the cleaning machine left the floor damp and was aware that it had actually deposited moisture in the area where the worker fell.

Her Honour found that Kellys created a hazard by making the floors wet and thus had a duty to take reasonable care not to leave the wet slippery floors “unguarded”.

Her Honour noted that it was common ground that the risk of a person slipping and falling on a wet floor was foreseeable, and was not insignificant.

She concluded that a reasonable person in Kellys position would not have left the area which had been cleaned “unguarded” and would have placed signs delineating that area.

She rejected Kellys’ contention that the risk of harm (of a slip and fall if the floor was left wet) was an obvious risk within the meaning of s 5F(1) of the Civil Liability Act so that pursuant to s 5G(1) any person who suffers harm is presumed to be aware of that risk.

This contention had been relied upon by Kellys for the argument that it did not have a duty of care to warn Ms Muller of the risks associated with stepping onto the wet floor because such risks ought to have been obvious to her at the time: s 5H(1) of the Civil Liability Act.

Appeal

The cleaning company appealed the decision, arguing that Ms Muller failed to take precautions to guard against the risk by not keeping a proper lookout and not taking care for her own safety. The argument advanced by Kellys was that Ms Muller should have noticed the floor was wet and proceeded with more caution.

On appeal it was determined Ms Muller slipped and fell because:

• she did not see such signs except for the sign between the toilets;
• the appearance of the tiles was not so different as to render it obvious they were wet and therefore slippery;
• the presence of chairs on tables in an adjoining area were insufficient to render the risk obvious.

Therefore, the Court of Appeal determined that Kellys failed to demonstrate that her Honour should have found that Ms Muller ought to have been aware, acting reasonably, that the floor where she slipped was wet. The appeal having failed, there is no reason why costs should not follow the event. There should be no reduction for contributory negligence.

The appeal was dismissed.

Your duty of care

Practically every workplace in Australia will, at one point or another, need to clean floors and, therefore, make them slippery. You have a duty of care to your workers and visitors to your business to make the workplace safe while cleaning takes place, especially if your company is undertaking the cleaning.