On 29 September 2016, the plaintiff, Ms Carnemolla, slipped and fell, injuring her left knee, in a common area at Neeta City Shopping Centre in Fairfield. Ms Carnemolla, by her mother as litigation tutor brought a claim against Arcadia Funds Management Ltd who was the manager and occupier of the premises. Ms Carnemolla sought damages, for negligence on the part of Arcadia.
Ms Carnemolla alleged that she had slipped on water outside the public bathroom at about midday and that the duty of Arcadia as occupier of the premises extended to keeping that area dry. It was an essential element of Ms Carnemolla’s case that the surface where she slipped was wet. Arcadia disputed the claim that she slipped in water, and argued that, even if she did, it had in place a cleaning regime, which satisfied its duty of care. The plaintiff admitted that the cleaning system, which required the area to be inspected every 15 minutes, was adequate.
The claim was dismissed by the District Court as the trial judge was satisfied that Ms Carnemolla did not slip on water or, at least that the plaintiff did not prove that she did.
Ms Carnemolla appealed to the NSW Court of Appeal but on 27 November 2020 the Court dismissed the appeal from the District Court.
At paragraph 34, Leeming JA stated the following:
“I am unpersuaded that there is any appellable error in the positive finding that there was no water. In many respects the best evidence of the state of the floor at around 12.20pm that day is what was noted by Mr Mudgil, who recorded that the appellant had said she had slipped on water, but who also recorded that the floor was dry. The form and detail of the note suggests it was made on the spot, before the ambulance arrived, and no submission to the contrary was advanced. The note may have been incorrect, because of human error, but in circumstances where Mr Mudgil must have been thinking of water, not merely because of the way in which the form was generated but also because that was what he had been told by the appellant, this seems unlikely. In circumstances where there was no testimonial evidence that water was present, it was amply open to the primary judge to find that there was no water, consistently with the best contemporaneous evidence on that issue.”
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