Court of Appeal: €83,000 award upheld for woman who slipped on supermarket floor

About this case:

• Citation:
  [2022] IECA 133
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Seamus Noonan

The defendant argued that the trial judge erred by making inferences that there was any contaminant on the floor based on the CCTV and witness evidence in the case. It was therefore said that the trial judge’s findings were based on speculation. However, the Court of Appeal determined that the trial judge was entitled to infer that there was a slippery substance on the ground having regard to the evidence as a whole.

Background

In 2013, the plaintiff was walking along a food aisle in the Dunnes Stores in Walkinstown, Dublin. She was wearing shoes with a wedge heel. Suddenly, she slipped and fell, causing significant injury to her knees. He handbag had the contents strewn across the floor and her phone smashed into pieces. Further, her shoes came off her feet during the fall.

The plaintiff was attended by two employees immediately falling the accident, who were alleged to have stated that the floor was “like glass.” The store manager retrieved the plaintiff’s items from the floor and spoke to a cleaner who was doing a routine sweep of the store. The cleaner later came back to the scene and wiped two distinct areas (A and B) with blue paper towel for 40 seconds in total.

CCTV footage captured the events, although slippery liquid was not apparent on the video. Other people were seen walking in the vicinity of the plaintiff’s accident locus (area B) without difficult prior to the fall. Approximately four minutes before the accident, a shelf stacker was seen to stop his trolley at area B and look down at the ground.

The store manager was adamant that there was no spillage of any kind on the floor and stated that he inspected the area at least five times. It was also denied that they said that the floor was like a mirror or glass. It was argued that the plaintiff’s ill-fitting shoes were the cause of the accident.

A joint engineering inspection did not identify that the cleaner was wiping the floor after the accident. A new report issued days before the trial from the plaintiff’s expert and concluded that it was likely that there was oily substance on the floor.

The plaintiff’s case until just before trial was that she had slipped on an overly-polished floor. However, her particulars of negligence and replies to particulars made specific allegations that there was a slippery substance on the floor. The plaintiff agreed that her clothes were not contaminated after the accident but said that she may have slipped on a substance that could not be seen.

The trial judge delivered an ex tempore judgment in which the court held in favour of the plaintiff. It was significant that the cleaner came back to the area and cleaned it vigorously, the court held. It was also noted that the accident report form recorded the plaintiff as having slipped.

The court accepted that the plaintiff’s case had evolved in the lead-up to the trial, but held that she was a genuine and honest historian who did not seek any tactical change in her evidence. Further, the court took the view that the spillage may have been very small, so the fact that others traversed the area did not disprove the plaintiff’s case.

The court noted that the shelf-stacker and the cleaner were not called to given evidence. The court held that it was “disquieting” that the cleaner was not called, as he was in the defendant’s schedule of witnesses and it was consistently suggested during the trial that he would give evidence.

The court did not find the store manager to be a credible witness, stating that he was “unduly and unhelpfully partisan,” particularly on the issue of instructing the cleaner to wipe the accident locus.

The court held that the plaintiff likely slipped on an oily substance which had emanated from the shelf-stackers trolley. The court was persuaded on the balance of probabilities that the cleaner was sent by the store manager to wipe the floor due to the presence of a contaminant. As such, Dunnes Stores was liable for the accident and awarded the plaintiff €83,250.

Court of Appeal

The decision was appealed to the Court of Appeal, with Dunnes Stores claiming that there was no evidence of any substance on the floor and the decision was based on speculation. The grounds of appeal claimed that improper weight was given to the defendant’s witness evidence and that the plaintiff had pleaded a new case at the trial.

Mr Justice Seamus Noonan began the judgment by noting that counsel for Dunnes Stores engaged in a “specific and targeted attack on the judge’s impartiality.” This was a repeated allegation in the appeal. It was held that any suggestion that a trial judge could not express a critical view of the evidence was untenable.

It was noted that the trial judge was asked to accept an “absurd” proposition that a cleaner was asked to clean something which never existed. Having read the transcript, the court held that the trial judge acted entirely appropriately and the allegations were unwarranted and regrettable.

The court held that the plaintiff had in fact pleaded in the statement of claim and replies to particulars that she had slipped on a substance on the floor. Accordingly, the court was not satisfied that the plaintiff advanced a different case at trial from her pleadings (see Nemeth v Topaz Energy Group Limited [2021] IECA 252; Morgan v Electricity Supply Board [2021] IECA 29). It was not the fault of anyone that the case changed late in the day due to the new evidence of the cleaning just before the trial.

The court was satisfied that the trial judge dealt with the issue correctly, particularly on the lack of opportunism by the plaintiff. Further the court noted that the Dunnes Stores did not apply for an adjournment despite claiming to be prejudiced by the change in case.

Turning to the trial judge’s assessment of the evidence, it was “abundantly clear” that the store manager was not found to be a reliable witness and his evidence was rejected. The security guard who assisted the store manager was “less assertive” and had been focused on retrieving the plaintiff’s items.

The court said that it was “misconceived” that the trial judge could not infer that there was a slippery substance on the floor. Rather, when considering the evidence as a whole, the inference was reasonably open to the court. Mr Justice Noonan’s assessment of the fact allowed him to “draw precisely the same inferences” as the trial judge.

It was held that Dunnes Stores acted improperly and in abuse of process by indicating an intention to call the cleaner when they knew he was not available. The trial judge was entitled to criticise this, the court said.

On quantum, Mr Justice Noonan noted the plaintiff’s injuries to her knees and that she required a knee replacement. It was “surprising” that Dunnes Stores criticised the level of damages where neither party made submissions on the application of the Book of Quantum. This was despite a request from the trial judge on the issue (see McKeown v Crosby [2020] IECA 242).

Applying the Book of Quantum, the court was not satisfied that any error had been reached by the trial judge based on the severity of the injury and likely revision surgery in future.

Conclusion

The court upheld the trial judge’s ruling and dismissed Dunnes Stores’ appeal.

Whelan v. Dunnes Stores [2022] IECA 133