IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

C 220/2002

Corbett

v

Sitani Mafi Company Ltd

Ford J
28-30 April 2003; 19 June 2003

Negligence – statutory duty of care – supermarket – no evidence of failure

On the morning of Saturday 15 July 2000, the plaintiff, Peter Corbett, purchased a $10.50 bottle of red wine from the liquor store at the Kinikinilau shopping centre, Ma'ufanga. As he walked across a concrete verandah walkway from the liquor store to the car park, he slipped and fell sustaining severe injuries to his right hip which necessitated a total hip replacement operation. Corbett brought a personal injury action against the owners of the shopping centre based on negligence and breach of statutory duty under the (UK) Occupiers' Liability Act 1957. He claimed damages totalling $106,634.29, including $31,584.29 for itemised special damages. The defendant company admitted ownership of the shopping centre, including the liquor store and the verandah in question, but otherwise denied liability.

Held:

1. The plaintiff failed to prove his claim to the standard required in civil cases. The Court was not persuaded that there was grease or any other such substance on the verandah floor that caused the plaintiff's fall.

2. The plaintiff's claim failed and the defendant was entitled to costs.

Cases considered:
Egan v Morris Hedstrom Tonga Ltd [1998] Tonga LR 99 (CA)

Statutes considered:
Occupiers' Liability Act 1957 (UK)

Counsel for plaintiff: Mr Niu
Counsel for defendant: Ms Mangisi

Judgment

On the morning of Saturday 15 July 2000, the plaintiff, Peter Corbett, purchased a $10.50 bottle of red wine from the liquor store at the Kinikinilau shopping centre, Ma'ufanga. As he walked across a concrete verandah walkway from the liquor store to the car park, he slipped and fell sustaining severe injuries to his right hip which necessitated a total hip replacement operation.

The plaintiff brings this personal injury action against the owners of the shopping centre based on negligence and breach of statutory duty under the (UK) Occupiers' Liability Act 1957. He claims damages totalling $106,634.29, including $31,584.29 for itemised special damages. The defendant company, for its part, admits ownership of the shopping centre, including the liquor store and the verandah in question, but otherwise denies liability.

The plaintiff told the court that he is an 80-year-old semi-retired company director. He first came to Tonga in 1967 on a three-year contract as Assistant Marine Superintendent. After he left the Kingdom in 1970 he worked for a shipping company in Fiji and then with the United Nations for a period before joining the merchant firm, Burns Philp. In 1983 he retired as general manager of Burns Philp and moved back to the United Kingdom to live but, as he explained, his wife is Tongan and he returned to the Kingdom in 1987 where he has remained ever since. He is a former secretary of a number of companies and of the Chamber of Commerce. He currently acts in a financial advisory role to a local company.

Mr Corbett said in evidence that on the morning of Saturday 15 July 2000 he drove to the Kinikinilau shopping centre to purchase a bottle of red wine for his Sunday evening meal. He regularly purchased his liquor supplies from the liquor store at the centre. The liquor store is located next to a bakery shop in the same complex but across the other side of the car park from the supermarket. Mr Corbett entered the liquor store by way of a ramp leading up off the car park but he exited through an alternative route walking along a covered verandah walkway. His car was parked in the car park at the far end of the verandah from the liquor store.

Helpful photographs were produced by the plaintiffs. They show the verandah as a covered painted concrete walkway but it is exposed at the sides and rain can enter. No measurements were provided but it would appear from the photographs that the verandah is raised about six inches above the car park. A low wooden picket fence runs along the side of the verandah supported by uprights some 4 ft apart made from what appears to be metal pipes. The picket fence finishes at the far end of the verandah from the liquor store and there is then a six inch step down from the verandah onto the car park. Mr Corbett was heading towards that open area when he suddenly slipped and fell heavily on his right side. He said that he had "the impression" that his foot slipped. Earlier in evidence in chief he said he felt that it could only have been grease or some substance that he had slipped on.

Mr Corbett explained that when he fell, the bottle of red wine that he had been carrying in a plastic bag hit the ground and broke. The wine spilt out over the verandah but the broken glass from the bottle was contained within the plastic bag. At the same time, his cheque-book fell out of his left trouser pocket. A man picked up the cheque-book and handed it back to him. Later that day when he was at the hospital, he gave the cheque-book to his son, David, for safe keeping and he said that at that point he observed a stain on the cheque-book which he believed was from oil or grease. The cheque-book was produced as an exhibit. The stain, now dry, appears to have penetrated through the back cover and several unused cheques. At one point it is evident about halfway up the side of the used butts.

Mr Corbett said that after the fall, he was able to drag himself up against a fence post and he sat there waiting while a man contacted his wife. Mrs Corbett and their son David arrived on the scene some 20 minutes later. Mr Corbett was taken to his doctor, Dr Heinz Betz, and then to Vaiola hospital. In the early hours of the following morning he, together with his son David and Dr Betz, flew to Auckland, New Zealand, and he was admitted to Mercy hospital at 4:30am on the Sunday. On the following Tuesday afternoon he underwent the hip replacement operation. He remained in hospital for the next three weeks and then underwent a course of physiotherapy treatment in Auckland. He eventually returned, on 18 August 2000.

The plaintiff's wife, 52-year-old Siueli Corbett told the court that she has been married to the plaintiff for over 30 years. She said that she was at home on the morning of his accident but she recalled receiving the telephone call and she and her son David had then immediately driven to the Kinikinilau shopping centre. She said that when she saw Peter he was sitting on the concrete verandah with his back leaning against a fence post. There were two other men standing about 3 meters away. Peter told her that he was in pain and he could not get up. Mrs Corbett said that as she was wondering if they would be able to carry him to the car, she heard one of the men say, "he does not know who did this stupid thing by pouring the greasy substance on the verandah." Mrs Corbett identified in court the man who spoke those words as Falakiko Kaihea, the supervisor from the liquor store.

The witness was then asked in evidence in chief whether there was such a substance on the verandah. She replied in the affirmative and she identified in the photographs where it was. She was then asked:

" Q. What was spread across the floor as you indicated?

A. As I heard the man saying that, I then stood up and I could see it. It's like a pool of water across the verandah and I then came and touched it and it felt greasy. I then asked him because I could see that there was a lot of grease on the verandah and then I asked him and he said the answer of he does not know who might have did something stupid as to pour the container of grease onto that part."

The witness then went on to explain how she and her son had managed to take Mr Corbett to his doctor and then to Vaiola hospital.

Mrs Corbett also gave evidence about her husband's cheque-book. She said that her son David had wrapped up the cheque-book in a piece of paper and had given it to her on the evening of the accident. She did not look at it but placed it in an envelope and put it in a drawer. Some two weeks later she needed to use the cheque-book and when she unwrapped it she saw that it was stained in "grease". In cross-examination she said that when she touched it, she thought that it felt greasy.

In paragraph 14 of his statement of claim, Mr Corbett alleges that the defendant had breached its duty of care to the plaintiff: "by allowing the grease or fat to remain on the floor of the verandah or by failing to check that the floor of the verandah was clear of such danger."

During the hearing, the plaintiff was granted leave to amend his statement of claim so as to include an allegation that the defendant, as occupier of the premises, was in breach of a statutory duty of care under section 2(2) of the (UK) Occupiers' Liability Act 1957. The breach identified in the amendment reads: 

"(The defendant) breached that duty by failing to check and remove water, grease or slippery substance which was on the floor . . . ."

The inclusion of the reference to "water" was no doubt prompted by evidence from some of the defence witnesses that, it was raining on the morning or at about the time of the incident. I must say that I found the defence evidence on this point conflicting and unreliable. The plaintiff, on the other hand, was adamant, and his evidence in this regard was supported by his wife, that it had not been raining on the morning of the accident and the verandah in question was completely dry. I accept the plaintiff's evidence in this regard.

The real issue in the case, therefore, is whether Mr Corbett slipped on grease or some similar substance. He did not see any grease. Although there was evidence of wine stains on his trousers, there was no evidence of any grease stains on his trousers. He produced the leather soled shoes that he had been wearing at the time but there was no evidence of any grease having been found on the shoes.

I believe that the plaintiff was being perfectly frank in his evidence to the court when he said, in chief, that it was only "an assumption" on his part that he had slipped on something slippery. Because of its importance, I set out that section of the transcript in full:

To counsel:

"Because I frequently use the covered verandah, I walked back that way. Just towards the southern entrance to it I slipped on some grease or some other substance. My feet went from under me. I fell heavily on my right side with my head close to a short steel post. I pulled myself up to the fence post just to get my head up.

Q. You said that you slipped on some grease or some substance. How did you know that?

A. I walk freely and well all the time. I exercised every day up to that point in time and my feet literally sort of slipped. I had also in my right hand a bottle of wine in the plastic bag and I instinctively, to break my fall if I could, the bottle fell from my hand and broke and at about the same time my cheque-book must have fallen out of my pocket. I feel it could only have been grease or some substance that I slipped on because I've used that covered verandah walkway both directions many, many times over the years and it was always clean and clear.

Q. I'm just asking, did you know that it was grease or were you only told that it was grease? You know of any evidence that it was grease? 

A. Your Honour, it's an assumption on my part that there was something slippery there otherwise I would not have slipped."

In view of the plaintiff's admission that he did not see any grease or other such substance, Mrs Corbett's evidence about what she heard Mr Kaihea say, and, for that matter, the whole of her evidence relating to the mysterious substance she claims she saw and touched, assumes significant importance in the plaintiff's case.

The liquor store supervisor, Mr Kaihea, was called as a witness for the defence. He was not asked about the allegation in evidence in chief but under cross-examination he denied having made the statement. His denial, however, did not appear to come under any serious challenge from the plaintiff's counsel. The transcript reads:

"Q, You heard what Siueli (Mrs Corbett) said yesterday that there was something that looked like water on the floor but when she touched it, it was like grease or fat, did you hear her say that?

A. Yes.

Q. Was there such a thing on the floor?

A. No.

Q. You heard her say that you said or somebody said to her, one of the workers said, who could have been so stupid as to spill or pour this fat on the floor. Did you hear her say that?

A. Yes.

Q. Did you hear anybody say that?

A. No."

If Mr Kaihea 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 Mrs 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.

Again, when it comes to the substance which Mrs Corbett says she observed that looked like water but felt greasy, I again ask myself why did Mr Corbett or David not notice the same thing and give evidence about it? At the end of her evidence, the following exchange took place between the court and Mrs Corbett:

Q. "Did it cross your mind that this (the substance she had seen on the verandah) may have caused the accident?

A. Yes.

Q. Did you mention that to your husband? Did you tell him that?

A. No.

Q. Did you tell your son that?

A. Yes, I did.

Q. You did tell your son. And did he have a look at it?

A. Yes, I called him but he did not really interest my call (sic), he said Mum, hurry, we have to take Dad."

As I have noted, David Corbett, as a solicitor, could have been expected to have appreciated the legal significance of any such evidence if it existed. The fact that he was not called as a witness did nothing to assist the plaintiff's case. Mrs Corbett's evidence alone falls short of establishing to my satisfaction that the plaintiff slipped on grease or some similar substance. She was not, of course, present at the time of the fall. The evidence was that she and David did not arrive on the scene until some 20 minutes after the accident had occurred.

There was evidence from the liquor store supervisor, Falakiko Kaihea, which I accept, that immediately after the accident, he arranged for a girl from the liquor store to mop up the spilt red wine and replace Mr Corbett's broken bottle with a new bottle of red wine. The girl did that and she threw the broken glass into the rubbish container. The evidence was that these things were attended to by the liquor store assistant before Mrs Corbett arrived on the scene.

The girl was not called as a witness. She is now in New Zealand. So, although the matter was not explored in evidence before me, it seems that one plausible explanation for what Mrs Corbett claims she observed was that it may have been the residue of the watery mix resulting from the mopping up of the red wine. Perhaps it included some soap powder or cleansing agent. The mixture may even have appeared to be sticky.

I stress, however, that if this hypothesis, which provides a possible innocent explanation for what Mrs Corbett alleges she saw, is not correct, the position is that I have still not been persuaded that there was grease or other similar substance on the verandah floor which caused Mr Corbett's fall.

There is another significant practical problem the plaintiff faces in establishing liability on the evidence before the court. Mrs Corbett marked on one of the photographs the area where she said she had observed the watery substance that felt greasy. The point marked was close to the step at the edge of the verandah. The plaintiff, however, was adamant that he did not slip close to the step. The place he marked on the photographs indicates that he slipped some distance away from the area where Mrs Corbett claims she saw the liquid substance.

In summary, it simply has not been proven to my satisfaction that the fall was caused by grease or some similar substance on the verandah floor. I find the evidence relating to the stains on the cheque book inconclusive. No expert evidence was called to say that the stains on the cheque book were grease stains and I did not find the evidence of either the plaintiff or Mrs Corbett convincing on this point. It appears to me more likely that they are faded red wine stains.

The plaintiff said that he believed the stains were from oil or grease but he admitted that he did not even notice them until he had arrived at the hospital. He had had the cheque book in his left trouser pocket up until that point in time and there was no evidence of grease or oil stains having been found inside the trouser pocket.

Again, the plaintiff's case has not been helped by the absence of his solicitor son as a witness. After all, it was he who wrapped the cheque book in a piece of paper at the hospital after the accident. David Corbett is said to be presently in Samoa but it is up to the plaintiff to prove his case and there appears to be no sound reason as to why he could not have been called as a witness in support of his father's claim.

The end result is that the plaintiff has failed to prove his claim to the standard required in civil cases. I have not been persuaded that there was grease or any other such substance on the verandah floor that caused the plaintiff's fall. In certain respects, the case appears to have remarkable similarities with the facts of another decision, Egan v Morris Hedstrom Tonga Ltd [1998] Tonga LR 99 (CA). In that case, the Court of Appeal concluded: "In the absence of any acceptable evidence of what, if anything, caused the plaintiff to slip, it is not possible to make a finding that the defendant is responsible for the plaintiff's injuries." With respect, that passage succinctly sums up my own conclusions in the present case.

The plaintiff's claim, therefore, fails. The defendant is entitled to costs to be agreed or taxed.