IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

NO. AC. 11/2003

BETWEEN:

PETER FRANCIS JOHN CORBETT
Appellant

AND:

SITANI MAFI COMPANY LIMITED
Respondent

Coram: Burchett J
Tompkins J
Salmon J

Counsel: Mr. Niu for the Appellant
Ms Mangisi for the Respondent

Date of Hearing: 21 July 2004
Date of Judgment: 30 July 2004

JUDGMENT OF THE COURT

[1]	The Appellant, as Plaintiff, sued the Respondent for severe personal injuries, which led to a total hip replacement, suffered when he slipped and fell on the painted concrete surface of a verandah at the Respondent’s commercial premises. His action having failed, he appeals to this Court.

[2]	Essentially, the reason the trial judge dismissed the Appellant’s claim was that his Honour did not accept evidence, tendered to establish it, of the presence on the verandah floor of a patch of some greasy substance. He did accept the proposition, maintained by the Plaintiff and his wife, that there was no rain at the time, although other evidence suggested it had been raining earlier, and he held “the verandah in question was completely dry”. That left the possibility that the Plaintiff slipped on some greasy substance, of which the Judge was not satisfied, or that he simply slipped for some unknown reason.

[3]	The only evidence directly pointing to the presence of a greasy substance was the evidence of the Plaintiff’s wife. She arrived about a quarter of an hour or twenty minutes after the accident, when she said the Defendant’s supervisor admitted to her there was grease on the verandah the source of which he did not know. To her observation, there appeared to be “a pool of water”, but on touching it she found it to be greasy. This evidence was denied by the supervisor, although oddly only in cross-examination. In accepting the denial and rejecting Mrs Corbett’s evidence, the trial judge’s judgment would normally be nearly invulnerable because of the rule restraining an appellate court from interfering with findings in respect of the credibility of oral evidence: Jin-Chuan v Li [1999] Tonga LR 140 at 143. But there is a difficulty. The judge’s disbelief of Mrs Corbett seems to have been based to a large extent on a particular consideration. His Honour said:

“If Mr. Kaihea [the supervisor] had really made the statement attributed to him, why was it only Mrs Corbett who appears to have heard it? Mr. Corbett was sitting on the ground close by and their son David was also present. Why didn’t either one of them hear the conversation between Mr. Corbett and Mr. Kaihea? Mr. Corbett impressed me as being the sort of person who would have immediately realised the significance of any remark like that attributed to Mr. Kaihea and I have no doubt that he would have clearly recalled every word if such an admission had been made. Likewise, the plaintiff’s son, David, is a solicitor and he would have been fully aware of the legal significance of any remark like that attributed to Mr. Kaihea, had such a remark, in fact, been made. David was not called as a witness for the plaintiff.

As in any civil case, the onus is on the plaintiff to prove his claim on the balance of probabilities. In the face of Mr. Kaihea’s denials and the absence of any supporting evidence from the plaintiff or his son, I simply have not been persuaded that the remark attributed to Mr. Kaihea and his alleged conversation with Mrs Corbett ever took place.”

[4]	Mr. Niu, in his argument for the Appellant, pointed out the evidence showed Mrs Corbett is Tongan and it did not suggest Mr. Corbett, particularly when distracted by his injuries, would have understood things said in that language. It is likely any conversation between Mrs Corbett and Mr. Kaihea was in Tongan. Nor did the evidence justify the conclusion that Mrs Corbett’s son, if he speaks Tongan, was present, or if present was not wholly occupied in attending to and moving his father, at the particular time his mother was speaking to Mr. Kaihea. There was no evidence he took part in the conversation. In these circumstances, the basis of the finding against the Appellant is open to serious question.

[5]	Furthermore, it should be pointed out that, while the absence of the son David Corbett from the witness box was not as significant as the judgment below suggests, the Respondent’s case itself was liable to criticism arising from a failure to call the shop assistant who cleaned up the mess caused by the breakage of a bottle of red wine in the Appellant’s fall. Plainly, she might have been able to throw light on the question whether there was anything else (such as a patch of grease) on the floor in the vicinity of the spilled wine. Concerning both of these witnesses, the only explanation of their absence was that they were overseas – Mr. David Corbett in Fiji, not Samoa, and the shop assistant in New Zealand.

[6]	But there seems to us to be an insuperable obstacle to the Appellant’s case. If the judge’s finding were reversed, and the Appellant were held to have slipped on some greasy substance present on the verandah floor at the relevant time, how could that establish a breach of duty on the part of the Respondent? It was not shown how long the substance had been there, what its nature was or what caused it to be there. There was nothing to suggest its presence should have been anticipated so that the Respondent ought to have guarded against it. In Hampton Court Limited v Crooks [1957] 97 CLR 367, it not being open, in very similar circumstances, to a jury to conclude concerning a substance that had caused a plaintiff to slip in the wash-room of a hotel what that substance was or how it got there, the High Court of Australia held it was also not open to the jury to find negligence on the part of the owner of the hotel. Dixon CJ said (at 371):

“[O]n the assumption, which I accept, that the jury might reasonably find the cause of the plaintiff’s injuries to be the presence on the floor of a wet substance of a greasy nature covering an area of eighteen inches by two or three inches, I do not think that proof of this fact was enough to enable the jury to infer negligence on the part of the defendant: proof was necessary of some additional circumstances tending, for example, to raise a probability of its having been there long enough to be seen if reasonable supervision were practised, or to show that so many people were likely to use the lavatory in the preceding hour that closer control was called for, or that the dropping of some such substance was common or inherently likely to occur.” 

[7]	Not only are the remarks of Dixon CJ applicable in principle here, but the conclusion of the joint judgment of McTiernan, Fullagar, Kitto and Taylor JJ is the conclusion to which the present facts point. Their Honours said (at 375 – 376):

“Her [ie. the Plaintiff’s in that case] complaint is not that the floor was itself unsafe or dangerous or, indeed, that it might be made so in the ordinary course of its use by people resorting to it; her complaint is that it was made so by the presence of some ‘greasy’ or ‘oily’ substance the character and origin of which remain unidentified. The evidence does not support the inference that it was of such a character as to be deposited on the floor in the ordinary use of the room or that it remained there as a residue after the completion of washing operations. Consequently, both the character of the ‘greasy or oily base’ and how it came to be there remains in obscurity. Yet the respondent maintains that it was open to the jury to find that, prior to the accident, the appellant should have known about it. It could, of course, have known of it only if a constant vigil had been maintained in the retiring room but, if there was no reason for thinking that the ordinary use of the room might render the floor dangerous, why should this have been done? The appellant was under no absolute duty to ensure the safety of persons using the room; its duty was discharged by the exercise of reasonable care and it is impossible to see why the performance of this duty should oblige it to provide a constant guard against mere chance events which could not be foreseen. And, it may be said, that upon the respondent’s evidence not merely is the conclusion open that the greasy or oily substance on the floor might have been the result of some unusual or chance event but that that is the most likely inference.”

[8]	This Court, without referring to Hampton Court Limited v Crooks, expressed itself in similar language in Egan v Morris Hedstrom Tonga Ltd [1998] Tonga LR 99 at 101 – 103, a decision which the trial judge cited.

[9]	In the alternative, Mr. Niu sought to rely on certain evidence given by witnesses for the Respondent to the effect there may have been rainwater on the verandah. But the Appellant’s own evidence and that of his wife presented to the Court a case depending on the presence of a greasy substance, not rainwater, and the trial judge, as we have already noted, expressly preferred the Appellant to the Respondent’s witnesses on the question whether the verandah was partially covered by rainwater at the relevant time. Accordingly, the alternative argument is of no avail to the Appellant.

[10]	The appeal must be dismissed with costs.

Burchett J
Tompkins J
Salmon J