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Egan v Morris Hedstrom Tonga Ltd [1998] TOLawRp 25; [1998] Tonga LR 99 (8 August 1998)

IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku’alofa

CA 18/98

Egan

v

Morris Hedstrom Tonga Ltd

Burchett, Tompkins, Beaumont JJ
27 July 1998; 8 August 1998

Res ipsa loquitur ⎯ requirements not met ⎯ respondent not responsible

The appellant, the plaintiff in the Supreme Court, brought proceedings against the respondent for damages for personal injuries claimed to have been suffered on 28 May 1996, when she was grocery shopping at the respondent’s supermarket in Nuku’alofa. She claimed special damages of $7,962.30 and general damages of $20,000.00. In a judgment delivered on 22 May 1998 the Chief Justice dismissed the appellant’s claim. On 27 May 1998 a formal judgment was entered dismissing the appellant’s claim and awarding costs in favour of the respondent. From that judgment the appellant appealed.

Held:

1. The true principle of res ipsa loquitur is not that the plaintiff must show any positive control in the defendant, but rather that outside interference was unlikely. The appellant was not able to show that outside interference in the events leading to the accident was unlikely.

2. The second requirement of res ipsa loquitur was that the accident must be such as could not in the ordinary course of things have happened without negligence. It was well within common experience and knowledge for a person to slip on the floor of the supermarket without negligence on the part of the occupier.

3. The Chief Justice was correct (however different reasoning) in finding that the doctrine of res ipsa loquitur did not apply.

4. The Court of Appeal agreed with the conclusion of the Chief Justice that, in the absence of any evidence of what, if anything, caused the appellant to slip, it was not possible to make a finding that the respondent was responsible for the appellant’s injuries.

5. The appeal was dismissed with costs.

Cases considered:

Scott v London & St Katherine Docks Co [1865] EngR 220; (1865) 3 H & C 596

Turner v Arding and Hobbs Ltd [1949] 2 All ER 911

Walsh v Holst & Co Ltd [1958] 1 WLR 800; [1958] 3 All ER 33 (CA)

Ward v Tesco Stores [1976] 1 All ER 219; [1976] 1 WLR 810 (CA)

Statutes considered:

Occupiers Liability Act 1957 (UK)

Counsel for appellant: Mr Appleby
Counsel for respondent: Mr Foliaki

Judgment

The appellant, the plaintiff in the Supreme Court, brought proceedings against the respondent for damages for personal injuries claimed to have been suffered on 28 May 1996, when she was grocery shopping at the respondent’s supermarket in Nuku’alofa. She claimed special damages of $7,962.30 and general damages of $20,000.00. In a judgment delivered on 22 May 1998 the Chief Justice dismissed the appellant’s claim. On 27 May 1998 a formal judgment was entered dismissing the appellant’s claim and awarding costs in favour of the respondent. From that judgment the appellant has appealed.

The factual background

The Chief Justice found that on 28 May 1996 the appellant, having completed her shopping at the respondent’s supermarket, made her way to the front of the supermarket to pay for her purchases at a checkout counter. A shop supervisor, at the request of the appellant, called a taxi. Following the call, the appellant made her way to the front of the shop. It was while she was doing so that she fell. The Chief Justice did not accept the evidence of ‘Elitisi Fanguna, the operator at the checkout counter through which the appellant had passed. Her evidence was to the effect that the appellant had fainted, the witness saying that she saw the appellant slowly falling down to the floor. The Chief Justice said the appellant fell as she described by slipping on something greasy. The nature and degree of the injuries sustained by the appellant persuaded the Chief Justice that she slipped, and that the fall was sudden, and the impact forceful. He found that the fall occurred in the vicinity of some trolleys at a point marked by the appellant on a plan produced in evidence.

As a result of the fall, the appellant suffered a broken right arm, bruising of the right arm, a grazed right knee, and a sprain of the left fore foot and ankle.

The reasons for judgment

The Chief Justice accepted that the shop owner owes customers a duty to take reasonable care to ensure that they are reasonably safe when on his premises. It applies not only to dangers of which he has knowledge but also to those of which he ought to know. He also referred to the statutory duty owed to a lawful visitor under the Occupiers Liability Act 1957 (UK) (check this reference) to take reasonable care to ensure that visitors are reasonably safe when on the premises.

The Chief Justice considered whether the doctrine res ipsa loquitur applied in the circumstances of this case. He accepted that the plaintiff was entitled to rely on the doctrine despite it not having been pleaded. But he concluded that the plaintiff had based her claim in negligence, and that the approach adopted excluded the doctrine.

He then considered the allegations of negligence relied on by the plaintiff. He held that the substance that caused the greasy surface had never been identified, and that where it was had also never been identified. He referred to the evidence of the respondent’s operations manager that he had no knowledge of any spillage which caused the appellant to fall, that there was regularly a spillage of some kind in the store, and that as a precaution the store employed a person to mop up spillages. The appellant’s counsel had acknowledged in her submissions that there was no evidence of the actual condition of the floor at the time the appellant fell.

The Chief Justice expressed his conclusion in this way:

“The evidence of the cause of the incident of the fall of the plaintiff is so weak as to render any finding that the defendant is probably responsible for the plaintiff’s injuries impossible. There can be no probable inference drawn in the circumstances of the paucity of evidence surrounding the cause of the fall that the defendant failed in its statutory duty of care to the plaintiff”.

The application of the doctrine of res ipsa loquitur

The principal submission advanced by Mr Appleby in support of the appeal was that the Chief Justice erred in not applying the doctrine in the circumstances of this case, and that the reason the Chief Justice gave for not applying the doctrine was an erroneous view of the law.

The classic statement of the doctrine is that of Sir William Erle CJ, delivering the judgment of the Court of Exchequer Chamber in the leading case of Scott v 100 London & St Katherine Docks Co [1865] EngR 220; (1865) 3 H & C 596 at 601:

“There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”

The first requirement is that the “thing” causing the accident must be under the control of the defendant. If the events leading up to the accident were, or might well have been, under the control of others besides the defendant, then the mere happening of the accident is insufficient evidence against the defendant. The true principle appears to be not that the plaintiff must show any positive control in the defendant, but rather that outside interference is unlikely: Walsh v Holst & Co Ltd [1958] 1 WLR 800; [1958] 3 All ER 33 (CA), Winfield & Jolowicz on Tort 12th Edition 110.

We do not consider that the appellant has fulfilled this requirement. The “thing” causing the accident is unknown. It may have been, as the appellant said in her evidence, something greasy, although later in cross examination she accepted that she did not know what caused her to fall, and that after the accident she did not see anything on the floor. The Chief Justice was unable to make any positive finding. He said that he was satisfied “... that no witness was able to give an account of any substance which probably caused the fall. Perhaps it was the slippery floor itself. I cannot say. There is no evidence about it.” When the accident happened in a part of the supermarket to which the public had unrestricted access, it is not possible to say that whatever caused the appellant to slip, assuming it was something that caused her to slip, not simply a slip on a normal floor, was under the control of the respondent. It could just as well have been dropped on to the floor moments before by another customer. In these circumstances the appellant is not able to show that outside interference in the events leading to the accident is unlikely.

This lack of any evidence about what, if anything, caused the appellant to slip distinguishes the case from the two supermarket cases relied on by the appellant. In Turner v Arding and Hobbs Ltd [1949] 2 All ER 911 the plaintiff slipped on a piece of vegetable matter. The court held that the piece of vegetable matter was an unusual danger which would not be expected and ought not to be present, and the burden was on the defendants either to explain how it came to be on the floor or to adduce evidence to show that reasonable steps had been taken to avoid the accident. In Ward v Tesco Stores [1976] 1 All ER 219; [1976] 1 WLR 810 (CA) it was some yoghurt on the floor that caused the plaintiff to slip. The Court of Appeal held, by a majority, that since the probabilities were that, by the time of the accident, the spillage had been on the floor long enough for it to have been cleared up, the judge was entitled to conclude that the accident had occurred because the defendant had failed to take reasonable care. No such conclusion can be reached in the present case. There is no evidence of an unusual danger. There is no evidence of something being on the floor that should have been cleared up. There is simply no evidence.

The second requirement is that the accident must be such as could not in the ordinary course of things have happened without negligence. Mr Appleby submitted that a person slipping comes within this requirement. We do not accept that submission. It is well within common experience and knowledge for a person to slip on the floor of a supermarket without negligence on the part of the occupier. A person can slip for a number of reasons, such as the loss of balance, or something dropped on the floor by another customer a short time before, which can occur without any negligence on the part of the occupier. The mere fact that a person slips, for no reason that can be identified, is not in itself evidence that the occupier of the premises where the slip has occurred has been negligent.

For these reasons, which differ somewhat from the reasons of the Chief Justice, we conclude that he was correct to find that the doctrine of res ipsa loquitur does not apply in the circumstances of this case.

Evidence of negligence

Mr Appleby submitted that, quite apart from the doctrine, the Chief Justice was wrong not to find negligence on the part of the respondent. He invited the court to infer that there was negligence from the circumstances of the accident. He relied on the finding that the appellant slipped on something greasy, submitting that it was negligent for the respondent to allow something greasy to be on the floor where the public had access. But, even if this were so, we do not consider that the Chief Justice made such a finding. The comment that she slipped on something greasy appears to be a statement of her explanation of falling that she had given in her evidence, not a finding of fact. This is clear from the observation he makes shortly afterwards, to which we have already referred, that he cannot say what it was that caused her to fall. We agree with the conclusion of the Chief Justice set out above that, in the absence of any evidence of what, if anything, caused the appellant to slip, it is not possible to make a finding that the respondent was responsible for the appellant’s injuries.

Conclusion

For the reasons we have expressed, the appeal is dismissed with costs.