Mullen v Quinnsworth Ltd (No. 2)

• Jurisdiction: Ireland
• Judge: McCarthy J.,GRIFFIN J.
• Judgment Date: 25 February 1991
• Neutral Citation: 1991 WJSC-SC 956
• Docket Number: (199/90,[S.C. No. 12 of 1988]
• Court: Supreme Court
• Date: 25 February 1991

MULLEN v. QUINSWORTH LTD

VERA MULLEN

Plaintiff/Appellant

v.

QUINNSWORTH LIMITED T/A CRAZY PRICES

Defendants/Respondents

1991 WJSC-SC 956

Griffin J.

Hederman J.

McCarthy J.

(199/90

THE SUPREME COURT

Synopsis:

EVIDENCE

Hearsay

Exclusion - Shop - Floor - Oil - Spillage - Cause - Customer's description - Customer not called as witness - Manager's testimony concerning information supplied by customer - Plaintiff injured by fall - Manager's testimony excluded at trial of plaintiff's action - (199/90 - Supreme Court - 25/2/91)1991 ILRM 439

|Mullen v. Quinnsworth Ltd.|

NEGLIGENCE

Shopkeeper

Oil - Spillage - Floor - Cleanliness - System - Adequacy - Supermarket - Self service by customers - Vegetable oil contained in brittle plastic bottles - Plaintiff injured by fall caused by cooking oil on floor - Plaintiff's claim dismissed on retrial - Hearsay evidence - Appellate court drawing different inference from established facts - (199/90 - Supreme Court - 25/2/91)

|Mullen v. Quinnsworth Ltd.|

SUPREME COURT

Appeal

Facts - Inferences - Trial court - Facts - Findings - Different inferences drawn by appellate court - Principles applicable - (199/90 - Supreme Court - 25/2/91) - [1991] ILRM 439

|Mullen v. Quinnsworth|

Citations:

NORTHERN BANK FINANCE CORPORATION LTD V CHARLTON 1979 IR 149

BENMAX V AUSTIN MOTOR CO LTD 1955 AC 370

SS GAIRLOCH 1899 2 IR 1

RYLANDS V FLETCHER 1868 LR 3 HL 330

1 JUDGMENT delivered the 25th day of February 1991by GRIFFIN J. [Hederman J. conc.]

2 The defendants are the proprietors of a large super-market at Stapleton Place, Dundalk, Co. Louth. What may be called the grocery section of the premises is seventy yards long and thirty yards wide. The main aisles run lengthwise, and there are thirteen transverse aisles which are open at both ends. At the beginning of June 1986 there was what was called a big "end display" of cooking oil in one of the aisles. The plaintiff wished to purchase a cake and asked a member of the staff where the cake stand was. He directed her to it telling her to go down the main aisle on which she was and turn left in tothe relevant transverse aisle. She did so, and having taken only a few steps in the transverse aisle she slipped and fell heavily suffering in consequence reasonably serious injuries for a person of her age. The cause of her fall was a quantity of cooking oil which was not visible on the floor as it was the same colour as the floor. When she was lying on the floor, as she put it covered with oil, she saw a bottle lying by the shelves and it is accepted that the oil on the floor had escaped from that bottle. She was assisted to her feet by a member of the staff and some customers and brought to a chair which was nearby and there attended to. She asked that her husband, who was waiting in the car in the car park, and who suffered from a heart condition, should be notified diplomatically. She estimated that approximately twenty minutes elapsed between the time of the accident and the arrival of her husband. She said (Q. 39) that nothing was done to the floor during the time she was awaiting her husband. She was not challenged on this matter nor was any evidence to the contrary called on behalf of the defendants. Whenherhusband arrived she was taken upstairs and looked after by the management and staff of the supermarket.

3 Mr. Peter MacMahon, a local solicitor, arrived in the premises after the accident had occurred. He learned from a member of the staff that the Plaintiff, whom he saw sitting on a chair, had fallen some time previously. He saw the place where he was informed the accident had happened. There was a pool of oil on the floor, the oil being the same colour as the floor. At that time no person, either of the staff or otherwise, was in attendance at the oil. He made the purchases he had required, and as he was leaving the check-out he met the plaintiff's husband, whom he knew, coming in to the premises. He himself was in the premises some three to four minutes. When he was leaving he saw "some lad" with a mop approaching the place where the oil was. Prior to that there was no one in attendance at the oil to prevent other persons from stepping on it.

4 These proceedings were instituted by the plaintiff and came for hearing at Dundalk before Barrington J. and a jury.At the close of the defendants" case the learned trial Judge, on the application of counsel for the defendants, withdrew the case from the jury as the plaintiff had, he found, failed to establish negligence that could safely be let go to a jury. From that decision the plaintiff appealed to this Court and this Court, on the 28th February, 1990, allowed the appeal and directed a re-trial. It is not necessary to repeat what was said in the judgments in that case - it is sufficient for the purpose of this appeal to state that the Court held that the maxim "res ipsa loquitur" applied, i.e. that the circumstances of the accident raises sufficient presumption of negligence on the part of the occupier of the premises and that the onus is, therefore, on the defendants of establishing that, in all the circumstances, they took reasonable care to see that the premises were reasonably safe for the plaintiff.

5 The action was retried by Lynch J. On the issue of liability, evidence was given by the plaintiff and Mr. MacMahon along the lines already set out in this judgment. In addition, Mr. Joseph Osborne, a consulting engineer, whohad inspected the premises and the relevant goods in October, 1986, and who had given evidence in the first trial, also gave evidence at this trial. In his opinion, oil spilled on this floor would make the floor extremely dangerous for customers. He had three main criticisms of the defendants in relation to (1) the quality of plastic bottles; (2) the manner in which the bottles were stacked: and (3) the system of keeping the floor clean on the premises.

6 As to (1), he said the plastic bottles in which the oil was supplied were unsuitable for their purpose. The plastic was extremely thin, was not strong enough for normal handling, and can burst (not break like a glass bottle) if a bottle falls to the ground. He was aware from the evidence in the first trial that 99 per cent of all these plastic bottles of oil which fall burst in the same way as did the bottle on this occasion. He produced a plastic bottle readily available on the market in respect of which he had carried out some tests. He had let this bottle fall from a height of ten feet on to a concrete path, and it did notburst or break or let any oil escape.

(2) The stacking of the bottles

7 The bottles were not displayed on a shelf as is ordinarily to be expected in a supermarket. Instead, they were stacked in a form of pyramid in partly open cartons with the bottom of the bottle facing towards the customer. This, he said, increases the instability of the whole system - if a customer takes a bottle lower than the one at the apex of the pyramid, pressure is carried from the top right down to the bottom and the stability of the whole system is undermined.

8 (3) The system in operation for cleaning the floor in this area was that what was called a "floater", a boy with a brush cleaning the entire area (70 yards x 30 yards), would take between ten and fifteen minutes to traverse the area in question and would walk approximately 500 yards in the course of each of his travels around the aisles. In his opinion, with the knowledge of the defendants that regular spillages of oil occur and that the plastic bottles will burst 99 per cent of the times on which they fall, afloater in this area would be wholly inadequate.

9 The only witness called on behalf of the defendants was Mr. Redmond Galvin who was assistant manager of the premises in Dundalk in June of 1986. He had four months experience on the premises prior to the accident and he left this premises and went elsewhere a short time afterwards. He witnessed the accident and he also described the system in operation for cleaning the premises during the day. In direct evidence he was asked a total of twenty five questions, fourteen being in reference to the facts of the accident and eleven in relation to thedefendants" practice in keeping the premises clean and free from debris. On the day of the accident he was in an aisle close to where the accident happened. A customer approached him and spoke to him. Counsel for the plaintiff objected to his stating what was said to him by the customer (Qs. 568-570) and in consequence he said that as a result of what was said to him he walked around to the end display of oil. Questions 571 and 572 are as follows:-

"571.	Q.	Why did you walk around to the end display of oil?
	A.	Well she told me ....
572.	Q.	Well you cannot tell us what she said to you. But what was your purpose for going round?
	A.	There was oil spilt on the floor; she told me there was oil spilled on the floor."

10 As he turned around the corner of the display he saw the plaintiff falling, with her feet going from under her, and he saw her fall on herback.

11 With regard to the cleaning system in operation in June of 1986 he said there is constant maintenance in the day time supplied by three persons. One looks after the check-out area, one is in the "Fruit and Veg" (described as the "high risk" areas in the first trial) "and one going around the Store and the whole front, continuously." In addition, if there are some problems on the floor, a staff member stands over the problem until another staff member arrives and somebody else gets certain equipment for cleaning it up and they remain and are not allowedleave until it is cleaned up. On the day in question, if the accident had not taken place he himself was going to stand over it to make sure nobody else stepped into the oil. He said this bottle splits on thebottom.

12 In cross-examination it was put to him that on the...