Kirpalani's Ltd v Hoyte
| Jurisdiction | Trinidad & Tobago |
| Judge | Corbin, J.A.,Rees, J.A.,Hyatali, C.J. |
| Judgment Date | 25 March 1977 |
| Neutral Citation | TT 1977 CA 16 |
| Docket Number | Civil Appeal No. 77 of 1971 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 25 March 1977 |
Court of Appeal
Hyatali, C.J.; Corbin, J.A.; Rees, J.A.
Civil Appeal No. 77 of 1971
A. Wharton Q.C, and V. Alcala for the appellants.
E. Thorne Q.C, and D. Patrick for the respondent.
Tort - Negligence — Liability.
Tort - Damages — Personal injury.
This is an appeal by the defendants from a judgment of des Iles, J. whereby he adjudged that the plaintiff should recover against the defendants $4,554.00 and her costs for personal injuries said to have been caused by the negligence of the defendants in the maintenance of the floor in their store.
The negligence was particularised in the Statement of Claim as follows:
“(a) Failing to take any or any sufficient steps to prevent the floor of the said premises from being slippery and/ or dangerous.
(b) Causing or permitting to be or to remain on the said floor a substance which rendered it dangerous.
(c) Failing to give the plaintiff any or any adequate warning that the said floor was slippery and/or dangerous.
(d) The plaintiff will further rely upon the matters sot out in paragraph 2 hereof as evidence of negligence”.
It is to be noted, however, that paragraph 2 referred to does not allege negligence for it reads: “2. On or about 28 th February 1967, the plaintiff, having made a purchase at the said store was walking therein when she slipped on the floor thereof and fell”.
At the trial counsel for the plaintiff contended, as he did in this Court, that on the pleadings and the facts he could establish his claim relying on the principles enunciated in Indermaur v. Dames (1866) L.R. 1 C.P. 274 and the trial proceeded on that footing. (In that case Willes, J, considered it settled law that a visitor, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent unusual danger of which he knows, or ought to know.
In order for the plaintiff to mount her case on those principles it would be necessary for her to plead that the negligence alleged created an unusual danger of which the defendants were aware or ought to have been aware and to show that the pleadings gave notice to the defendants that they would have to meet such a case. It is now well settled that a plaintiff cannot plead in one way and prove in another Lloyd v. West Midland Gas Board [1917] 2 All E.R. 1240. The mere fact that there was a substance on the floor would not in itself be negligence.
Counsel for the defendants submitted that the pleading had not clearly alleged these matters. He conceded that there is no set formula for making the allegation, but argued that it must be made in words sufficiently clear to direct the defendants' attention to what is being alleged. Paragraph 3(b) of the Statement of Claim, he said, imputed knowledge on the part of the defendants that the substance was on the floor but fell short of imputing knowledge that that substance was dangerous.
He submitted that this defect in the pleadings could have misled the defendants into thinking that they had to meet a case based on the doctrine of ‘ res ipsa loquitur’. There was nothing to put them on their guard that a breach of the principles enunciated in Indermaur v. Dames was being, alleged, and, he contended failure to placed knowledge of the danger was fatal.
Counsel for the plaintiff, however, argued that the Statement of Claim as drawn up was adequate for agitating the liability of the defendants assessed by these principles, and that he was entitled to prove a breach thereof. It is to be noted that at the trial he conceded in his address that he was not relying on the doctrine of ‘ res ipsa loquitur’ and indeed he informed this Court that he had done so because otherwise an amendment to the pleading would have been necessary since it was not enough to say that the plaintiff's falling showed negligence on the part of the defendants.
The point is, of course, one of substance because on this will turn the question of where the onus of proof lies, v (It is true that it is not necessary to plead ‘res ipsa loquitur’ if the accident was proved to have happened in such a way that ‘prima facie’ it could not have happened without negligence on the part of the defendants.
In the circumstances of this case, however, it cannot be said that the mere fact that the plaintiff fell necessarily showed negligence in the defendants and it has been held that a plaintiff cannot rely on an inference of negligence unless he has alleged in the pleading and proved at the trial the facts upon which the inference is to be drawn (vide: Esso Petroleum Co. Ltd. v. Southport Corporation [1955] 3 All E.R. 864
In my judgment although para. 3(b) of the Statement of Claim alleged that the defendants knew the substance was on the floor it does not allege that they knew it to be dangerous. (See Atkins Forms 1 st Ed. Precedents Nos. 29 and 31).
Assuming, however, that the Statement of Claim could be said to have imputed such knowledge, it is necessary to consider what onus is placed on the plaintiff to prove her case and to determine what duty is owed to leer by the occupier - the defendants.
The effect of the plaintiff's evidence is as follows: On 28 February 1967 she went to the defendants' store at about 8.15 a.m., remained there only a short while, made a purchase and was leaving. As she was walking towards the door she slipped and fell heavily. She was helped up by a passer-by and noticed a substance on the floor where she had fallen. She made a complaint to the manager and showed him a slip mark on the floor where the substance lay. He expressed surprise that the floor had not been swept.
In any judgment, this is not enough to establish liability on the part of the defendants. A slip is quite a common incident of life and usually no harm is done, so it was incumbent on the plaintiff to show: (1) that the substance on the floor caused her to slip; (2) that the substance on the floor constituted an unusual danger; and (3) that the defendants knew it to be dangerous.
I do not think the plaintiff has succeeded in proving any of these matters. Her evidence was: “I felt no tendency to slip on the floor not until that time when I got into that substance. It looked something like sawdust – the sort of stuff you see them putting on floors in stores. I became aware of what was on the floor after the man had stood me up. I did not notice the stuff on the floor before I fell. I was looking ahead not down on the floor, I did not notice the stuff anywhere in the store that morning”. The plaintiff his not said that there was no substance on the floor except where she fell and it may be that she had walked through it without noticing, because the defendants' evidence is that only part of the store had been swept and it must be remembered an injured person must have due regard for his own safety. The fact that she slipped where the substance was would not in itself give rise to an inference that it caused the slip, because the substance in question was not oily fat or yogurt but a gritty substance.
The plaintiff said that it looked like sawdust. In referring to it her counsel used the word ‘grit’, and her solicitor ‘abrasive’. None of these items has an intrinsic tendency to slip and there was no evidence that the substance on the floor was in fact slippery as was the case in Ward v. Tesco [1976] 1, All E. R. 219. Nor was there evidence that the defendants knew it to be a danger:
On the contrary the defendants' evidence, not challenged, was that it had been the practice for 15 years to put the stuff on the floor in the morning for about 10 - 15 minutes and again about half an hour before closing time, and that thousands of people walked on it without mishaps of the kind which befell the plaintiff. The plaintiff admitted that she had seen it used in stores. It cannot be said in those circumstances that the defendants knew, or should have known that the stuff on the floor created an unusual dander which would cause customers to fall. “The duty of the occupier is nowadays simply to tape reasonable care to see that the premises are reasonably safe for people lawfully coming on to them”: per Denning, L.J, in Slater v. Clay Crass Co. Ltd. [1956] 2 All E.R. at p. 627.
Since the plaintiff has not shown that these premises were rendered unsafe by reason of a slippery substance which the defendants put on the floor, she has not established that the accident was caused by any want of care on the part of the defendants and her case must fail.
I would allow the appeal, set aside the order of the learned trial judges and enter judgment for the defendant with costs here and in the court below.
I have the misfortune to disagree with the conclusion of my brothers about the result of this appeal which has to do with an action brought by Dr. Wilma Hoyte, a medical practitioner (hereinafter referred to as “the respondent”) for damages for personal injuries arising out of the alleged negligence of Kirpalani's Ltd., (hereinafter referred to as “the appellants”) the owners of a department store at 18 - 21 Frederick Street, Port-of-Spain. The short facts which gave rise to the litigation are as follows:
Some time between 8.00 and 8.30 o'clock on the morning of February 28, 1970 the respondent entered the appellants' store and purchased an article. On her way out she stepped on to a substance looking like saw-dust which was spread in a definite area on the floor by the servants of the appellants, slipped and fell very heavily in a sitting position. She had felt no tendency to slip until she stepped on to that substance. She reported the accident to Mr. Ram Kirpalani, the managing director of the firm and pointed out the skid mark of her shoe in the substance. He expressed surprise...
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