Adrian Michael Lightfoot and Lightington Pty Ltd Can 093 428 758 as Trustee for the Lightfoot Family Trust v Tamworth Shoppingworld Pty Ltd Can 083 770 021 and Byron Clapham

[2016] NSWDC 45

District Court

New South Wales

Medium Neutral Citation:	Adrian Michael Lightfoot and Lightington Pty Ltd CAN 093 428 758 as Trustee for the Lightfoot Family Trust v Tamworth Shoppingworld Pty Ltd CAN 083 770 021 and Byron Clapham [2016] NSWDC 45
Hearing dates:	15-17 February 2016
Decision date:	08 April 2016
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Verdict and judgment for the first plaintiff against the defendants. For orders see [148]
Catchwords:	Slip and fall in shopping centre; occupier’s negligence; contractor’s liability.
Legislation Cited:	Civil Liability Act 2002 (NSW) Corporations Act 2001 (Cth) Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Cases Cited:	Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Graham v Baker (1961) 106 CLR 340 Jennings v Westfield Shopping Centre [2010] ACTSC 11 Jones v Dunkel (1959) 101 CLR 298 Manly Council v Byrne & Or [2004] NSWCA 123 Miller v Galderisi [2009] NSWCA 353 Newcastle Entertainment Security Pty Ltd v Simpson [1999] NSWCA 351 Reece v Reece (1994) 19 MVR 103 Rickards v Australia Telecommunications Commission [1983] 3 NSWLR 155 Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 T & X Co Pty Ltd v Chivasers [2014] NSWCA 235 Varga v Galea [2011] NSWCA 76 Watts v Rake (1960) 108 CLR 158
Category:	Principal judgment
Parties:	Adrian Michael Lightfoot and Lightington Pty Ltd CAN 093 428 758 as Trustee for the Lightfoot Family Trust (1st & 2nd Plaintiffs) Tamworth Shoppingworld Pty Ltd CAN 083 770 021 (1st Defendant) Byron Clapham (2nd Defendant)
Representation:	Counsel: P J Woods (1st & 2nd Plaintiffs) S Glascott (1st Defendant) J Sleight (2nd Defendant)   Solicitors: Bourke Love Lawyers Thompson Cooper Lawyers Holman Webb
File Number(s):	14/47306
Publication restriction:	Nil

Judgment

Introduction

1. By a Further Amended Statement of Claim, filed with leave on 15 February 2016, the first plaintiff, Mr Adrian Lightfoot, claims damages for injuries suffered by him as a result of an incident on 20 February 2011 when he fell at the first defendant’s premises. Those premises were a shopping centre, and Mr Lightfoot was walking through the common area of that centre, when he slipped on a liquid, believed to be vomit, on the floor, thereby injuring himself. The second defendant is the principal of a security firm which provided security guard services at the first defendant’s premises pursuant to a contract for those services. The first plaintiff alleges that an employee of the second defendant was negligent in circumstances referred to below, and that the second defendant is vicariously liable for his negligence.

2. The second plaintiff is a corporation which is the trustee of the first plaintiff’s family trust. The claim pleaded on behalf of the second plaintiff is for damages in accordance with the common law action “per quod servitium amisit”. At the hearing, that claim was abandoned and the court invited to make orders dismissing the second plaintiff’s claim. The costs involved in that claim are to be determined, for the reasons set out, at the conclusion of this judgment. Therefore, the first plaintiff is to be referred to as “the plaintiff” in this judgment. The second plaintiff will be referred to as “Lightington”.

The plaintiff’s claim

3. The plaintiff pleaded his case against the defendants as follows:

“7 On 20 February 2011 the First Plaintiff lawfully entered the premises as a shopping customer.

8 At approximately 2.00pm on the said date, the First Plaintiff walked past a security guard, namely Michael Duxbury (“the security guard”), who at all material times was employed by the Second Defendant and who was standing in the vicinity of a merry-go-round in the thoroughfare area of the premises.

Particulars

(a) The position of the security guard is shown on CCTV footage recorded by the First Defendant, with the said footage recording the precise moment that the First Plaintiff slipped and fell as pleaded at paragraph 10 hereunder.

9 In the premises at or about this time:

(a) There was liquid, believed to be vomit, on the floor in the vicinity of where the security guard was standing (“the liquid”);

(b) The security guard, as an employee, servant and/or agent of the First and/or Second Defendant, had knowledge of the presence of the liquid on the floor, as he had been alerted to the presence of the liquid by an employee of Big W, being a store on the premises;

(c) The security guard was positioned to alert customers to the presence of the liquid on the floor;

(d) The security guard contacted a cleaner, being an employee, servant and/or agent of the First Defendant, to arrange for the liquid to be cleaned up;

(e) The security guard if keeping a proper lookout would have observed the First Plaintiff walking into the area of the hazard;

(f) At no time did the security guard alert the First Plaintiff to the presence of the liquid on the floor;

(g) No barriers were in place to prevent customers including the First Plaintiff from walking through the liquid on the floor;

(h) No signs were placed or erected in the said area of the premises to alert customers including the First Plaintiff to the presence of the liquid on the floor.

The Incident

10 Further and in the premises, at or about this time the First Plaintiff walked through the liquid, slipped and fell heavily to the floor (“the incident”)

Particulars

(a) The First Plaintiff was unaware of the presence of the liquid on the floor;

(b) The First Plaintiff walked onto the liquid, causing his feet to slip forward from underneath him where he thereby then fell onto his buttocks on the floor;

(c) The First Plaintiff attempted to brace his fall by placing his right hand on the floor as he fell.

11 Immediately after the incident the security guard informed the First Plaintiff that a cleaner had been called to clean up the liquid.

12 Shortly thereafter a cleaner, being an employee, servant and/or agent of the First Defendant, attended the scene and placed signs in the area to warn customers of the presence of the liquid and the slippery surface.

13 The incident was caused by the negligence of the First Defendant.

Particulars

(a) Failing to take reasonable care to avoid a foreseeable risk of injury to persons entering upon the premises including the First Plaintiff;

(b) Failing to keep the premises clear of hazards;

(c) Failing to ensure that the thoroughfare areas were safe;

(d) Failing, by its employees, servants and/or agents, and to which included the said security guard, to warn the First Plaintiff of the hazard;

(e) Failing to conduct regular inspections of the thoroughfare areas;

(f) Failing to remove hazards from the thoroughfare areas after the identification of the hazard by its employees, servants and/or agents, and to which included the said security guard;

(g) Failing by itself, and by its employees, servants and/or agents and to which included the said security guard, to take all necessary remedial steps to ameliorate the risk of harm to the First Plaintiff;

(h) Failing to provide adequate instruction and training to its employees, servants and/or agents and to which included the said security guard, in relation to the identification, management, control and supervision of any spill hazard, including the type of spill pleaded at sub-paragraph 9(a) hereof, so as to ensure that the premises remained safe for persons such as the First Plaintiff to traverse, until such time as the said spill hazard was removed and the subject area rendered safe.

14 The incident was caused by the negligence of the security guard, for whose negligence the Second Defendant was at all times material vicariously liable.

(a) Failing to warn the First Plaintiff of the hazard;

(b) Failing to take all necessary remedial steps to ameliorate the risk of harm to the First Plaintiff;

(c) Failing to properly guard the hazard until the arrival of the First Defendant’s cleaners;

(d) Wrongfully permitting the First Plaintiff to traverse the area of the spill when the security guard was aware of its existence.

Particulars

(i) The security guard was aware of the existence of the spill by reason of him:

(a) being so advised of same by an employee of Big W and/or an employee, servant and/or agent of the First Defendant;

(b) attending the subject area as depicted in CCTV footage recorded by the First Defendant;

(c) liaising with the First Defendant’s cleaning staff via hand held radio provided by the First Defendant and/or the Second Defendant;

(d) remaining at the subject area in anticipation of arrival of the said cleaning staff at the time the First Plaintiff slipped and fell on the substance as pleaded at paragraph 10 hereof.

15 Further and in the premises the incident was caused by the negligence of the Second Defendant in that he:

(a) Failed to provide any or any adequate training to the security guard to ensure that reasonable care was taken to avoid a foreseeable risk of injury to persons lawfully at the premises and to which included the First Plaintiff;

(b) Failed to advise and/or instruct the security guard, who at all times was his employee, servant and/or agent, as to what measures he should take whilst performing duties at the premises, including the requirement that the security guard adequately guard any spill hazard so reported and/or identified until such time as same was properly cleaned up;

(c) Failed to liaise with the First Defendant in relation to the implementation of clear protocols to be followed by his employees, including the security guard, when so required to perform duties at the premises, when such duties included the guarding of spill hazards pending such area being made safe by the First Defendant’s cleaning staff.”

The defences to the plaintiff’s claim

4. By its Defence, the first defendant admitted that it contracted with the second defendant for the provision of security services and denies the allegations of negligence pleaded against it. The first defendant neither admitted nor denied that there was liquid on the floor in the vicinity of where the security guard was standing as pleaded by the plaintiff in the particulars at [9] above. The first defendant admits that no barriers were in place to prevent customers from walking through liquid on the floor and that no signs were placed or erected in the said area of the premises to alert customers to the presence of liquid on the floor, prior to the plaintiff’s fall. The first defendant has pleaded a denial of negligence, and has asserted that the security guard was an independent contractor, as was the cleaner, and that a regular system of inspection was implemented by the cleaner in order to ensure the common areas of the shopping centre were safe. The first defendant asserts that its cleaner had implemented a cleaning system whereby spillages were to be eliminated once identified.

5. Further, the first defendant pleads reliance on s 5F of the Civil Liability Act 2002 (NSW) (“CLA”) on the basis that the liquid on the floor was an obvious risk and therefore no duty of care was owed pursuant to s 5H of the CLA.

6. The first defendant has further pleaded that the injury, loss or damages suffered by the plaintiff were caused or contributed by his own contributory negligence. The particulars of contributory negligence pleaded are as follows:

“(a) Failing to keep any or any proper lookout.

(b) Failing to take any or any adequate care for his own safety.

(c) Failing to look where he was walking.

(d) Failing to observe the presence of liquid on the floor.

(e) Failing to avoid the liquid on the floor.”

7. The second defendant has pleaded a denial that he had any responsibility (contractual or otherwise) to identify, report or guard slip hazards.

8. The second defendant has not admitted the mechanism of the plaintiff’s fall and has pleaded that he owed no duty to the plaintiff in respect of:

“(i) Warning the plaintiff;

(ii) Taking remedial steps to ameliorate any risk of harm to the plaintiff.

(iii) Guarding the hazard or spillage until the arrival of cleaners, or at all.

(iv) Permitting or preventing the first plaintiff from entering the area of the hazard or spillage; and

(v) That, irrespective and outside the issue of duty, his guard, Michael Duxbury did attempt to warn the first plaintiff of the spillage, but the first plaintiff ignored or did not otherwise heed the warning.”

9. The second defendant denied that he was negligent within the meaning of s 5B of the CLA and further, that any negligence found to have been occasioned by him (which is denied), was a necessary condition of the occurrence of the plaintiff’s alleged harm, relying on s 5D of the CLA.

10. The second defendant has also pleaded contributory negligence in a similar manner to the first defendant, however, with a further particular, namely:

“(c) Failure to heed the warning issued by Michael Duxbury.”

11. The defendants have filed mutual Cross-Claims claiming indemnity or contribution from each other pursuant to s 5(1)(c) and (d) of the Law Reform (Miscellaneous Provisions) Act 1946.

The evidence as to liability

12. The following summary includes my findings of fact in the matter unless otherwise indicated. With respect to relevant disputed factual issues and the determination thereof, my findings of fact appear later in this judgment.

13. The plaintiff had travelled by car with his wife from Toowoomba to Tamworth a few days before Sunday 20 February 2011, to visit their daughter. On Sunday 20 February 2011, at approximately 2:00pm, the plaintiff visited the first defendant’s premises with his wife and daughter. He gave this evidence as to what occurred:

“A: …so we got there and they decided that they’re going to go looking at dresses and I thought, I’ll go and start find myself a Dick Smith or somewhere. Walking through the shopping centre and on my left hand side, I noticed that there was a gentleman there and he, in a kind of uniform, and I immediately identified him as a security guard and I acknowledged his presence and then continued walking. It was shortly after that, very shortly after that, next thing me feet went from underneath me and down I went and then I crawled over and sat onto a, on a bench that was nearby (sic).”

14. The plaintiff was wearing thongs. He described sitting on a wooden bench and was asked what then happened. The plaintiff gave this evidence:

“A Well, I was sitting there, I thought, just for a few seconds, a couple of seconds. The security guard then was beside me and he sort of looked down at me and he said, ‘Oh’, he said ‘Some people are inconsiderate’, or words to that effect and he’d called the, he had to call the cleaners.”

15. Before walking away from the scene the plaintiff observed a cleaner there mopping something. He then found another bench where he sat waiting for his wife and daughter. Whilst sitting there he felt pain down his right hand side. He described it as “just burning in me shoulder (sic)”, and on the right side of his backside. When his wife arrived, she said to him, “Pooh, you stink”, referring to his clothes.

16. The CCTV disc of the relevant part of the premises was played (Ex A) and ten still photographs from that footage were admitted as Ex A13. The CCTV footage was only from 13:59:58 hours to 14:01:24 hours on the day in question. It clearly showed the plaintiff slipping and his right foot sliding out in front of him before landing heavily on his right side.

17. The plaintiff returned to the centre two days after the incident to report the matter. An incident report completed by Mr Michael Morgan on 20 February 2011, the day of the fall, recorded the time of incident at 2.05pm. The injured person was not named (the plaintiff having left) and the location of the incident was described as “out the front of Big W”. Under the heading “Nature of injury/damage/or notes” was the entry:

“Slipped in vomit landed on right shoulder.” (see Ex 1D1 pg 15)

18. A cleaning inspection record sheet, kept contemporaneously, recorded on 20 February 2011 at 2.05pm the following:

“Male person slipped in vomit near Big W. Accident report made out. Person left of own accord.”

The entry was signed by Mr Morgan (see Ex 1D1 pg 16).

19. The location of the fall accorded with the plaintiff’s evidence, namely, that it was outside Big W. The evidence established that in that area was a sensor which detected the time each occasion that a cleaner passed by that area. The location of that sensor was known as “location 3” and the evidence established that a cleaner was in that area at 1:38:38 hours. The evidence also established that the timer on the sensor differed from the CCTV timer by a factor of some two minutes. However, the inference may be drawn that a cleaner was in the area of the spill on which the plaintiff slipped approximately 20 minutes before that incident, and returned at 1:58:31 hours, or just after the plaintiff fell, to mop up the spill.

20. The evidence also established that occupants of the individual stores within the first defendant’s premises were issued with a manual informing them of certain matters. Section 8 of the manual contained the following:

“Store Housekeeping

We request that you ensure at all times that your shop and adjacent common areas are clean, tidy and free from rubbish.

Centre cleaning staff are responsible for the cleanliness of the common and public areas and may be called to attend a problem by phoning Centre Management. However, if a potentially dangerous spillage or obstruction occurs near your shop, some immediate attention should be given as well as calling for the centre cleaner.” (See Ex 1D1 pg 27).

21. The plaintiff relied on a report from the first defendant to its insurer compiled by Ms Lyn Burrow on 22 February 2011, and signed by the Centre Manager, Mr Derek Flynn, on 23 February 2011. That report recorded the time of incident as 2:00pm on 20 February 2011. It was compiled after the plaintiff reported the matter to Centre Management, and identified that the plaintiff’s fall was caused by spillage, being vomit. The report recorded that Mr Morgan was the cleaner on duty in the area at the time and that there was no wet floor warning signs in place. The report also recorded that the area was inspected at 20 minute intervals during the day, but did not state how long before the incident the area was in fact inspected.

22. The report contained the following comments:

“Security Michael contacted the cleaner when he noticed the vomit, unfortunately he was standing a few metres away from the area and Mr Lightfoot wasn’t aware it was there until he fell.”

23. The report annexed a witness statement from Mr Michael Duxbury, the security guard. It contained the following statement:

“I was walking towards Big W & was called over by a member of Big W staff saying there was vomit on the floor near the carousel, situated next to Cobblers. I called up Mick the cleaner, who was just starting his shift. He was there to clean the area in a very short time, but before he arrived, I saw a man walking towards it, so I yelled to him but he didn’t appear to hear me & I witnessed him fall on his right side. I helped him up & assisted him to sit on the bench chair & asked if he was okay. He said it hurt & I told him he would get his details to do an instant report but he walked away.” (See Ex A10, p 55 of Plaintiff’s tender bundle).

24. Mr Duxbury was not called to give evidence.

25. The plaintiff was not cross-examined as to the circumstances in which he was injured by learned counsel for the first defendant. The only cross-examination by counsel for the second defendant relevant to liability was as follows:

“Q: You said that you gave a nod of acknowledgement to a security guard, do you remember saying that?

A: Yes.

Q: At that stage, were you walking to any particular shop, or where were you going?

A: I was just on the lookout, see if I could find Dick Smiths, or Tandy Electronics or something.

Q: I understand on that day, you were not wearing your hearing aids, is that correct?

A: That’s correct.

Q: Was the security guard you saw, was he walking or standing still?

A: Standing.

Q: You walked past him, is that correct?

A: Correct.

Q: If he had shouted a warning to you, it’s possible, isn’t it, that you did not hear that warning?

A: No, not unless he whispered it.

Q: Sir, I’m not suggesting if he gave you the warning as you passed him, but say you were 5 metres away from him in the shopping area, it’s possible, isn’t it, that if he shouted a warning at you, you didn’t hear it?

A: No.

Q: You’re saying that’s not possible at all?

A: No.

Q: The shopping centre has background noise, does it not?

A: Not that much.

Q: I suggest to you that it would be possible without your hearing aid, that you might not have heard any warning?

A: No, not correct.”

26. The second defendant, Mr Byron Clapham, gave evidence of a contract between his company and the first defendant for the provision of security services. In the first meeting in 2004 with the Centre Manager of the first defendant, a Mr Hines, he spoke about the duties that were required of the security services. He gave this evidence:

“A: Yes – the duties would be to enforce the no smoking policy in the shopping centre; no alcohol in the grounds or inside the shopping centre; no animals in the shopping centre other than guide dogs or therapy animals; anti-social behaviour; also, he spoke to me about skateboards and so forth in the centre, and the issue of banning notices that they had issued, enforcement of those on the Inclosed Lands Act.”

27. Mr Clapham gave evidence that Mr Duxbury had left his employment in 2014, but he had an address for him. Counsel for the second defendant properly conceded that the second defendant knew the whereabouts of Mr Duxbury.

28. Mr Clapham was cross-examined by learned counsel for the plaintiff as to the contractual arrangements for provision of security guards at the first defendant’s premises. He was also cross-examined about the health and safety management plan issued by Farrar Security Service, which became Ex B. Mr Clapham gave this evidence in cross-examination about his instructions to Mr Duxbury when he commenced working as a security guard at the first defendant’s premises:

“Q: What instructions did you provide him regarding the performance of his duties at the centre?

A: On-site brief.

Q: What was the on-site brief?

A: He was to walk through the centre. I explained what he had to do and what was wanted by the client.

Q: Did you speak to him regarding what he ought to do in the event of a spill being identified by him?

A: No.

Q: Not touched on at all?

A: No. He only touched on the security role which we were asked to do.

Q: And you didn’t touch on, if a spill was reported to him, that he should guard it until it’s cleaned up?

A: No.

Q: You were aware that he was provided with a hand-held radio?

A: That’s correct.

Q: Did that come from the centre?

A: Yes.

Q: Was that like a walkie-talkie or two-way radio?

A: Yes.

Q: And that of course to facilitate communications between him and whoever else had been issued with a corresponding radio at the centre?

A: And centre management.

Q: It would include cleaning contractors?

A: They had a radio as well but it was for centre management.”

There was no re-examination.

29. The first defendant called Mr Flynn, the Centre Manager, of its premises, known as Tamworth Shoppingworld. He identified the floor plan of the shopping centre (Ex 1D1, pg 1) and the contractual documents concerning Farrar Security Service. He gave this evidence:

“Q: What were the static guard services that Farrar Security Services were to supply?

A: Security services to ensure the safety and maintain customer care as in prevent theft being number one and also car park patrols to avoid any incidents.

Q: What sort of incidents?

A: Well, they vary from domestic issues to car prangs and various items.

Q: We’ve heard that the security guards had two-way radios. Is that correct?

A: Yes.

Q: Who were they able to contact with the two-way radio?

A: The two-way radio system is – had a centre office base for our cleaners and security so they can liaise with each other and liaise with the office if needed.”

30. The evidence established that the Centre Management office was below the trading floor level. It was not open on the day of the plaintiff’s fall, which was a Sunday.

31. Mr Flynn gave evidence about the 20 minute cleaning cycle from 10:00am each morning in the centre until the end of each trading day. He also gave evidence of a Wand System Report and a manual written sheet for cleaners to sign off. Any inspection intervals exceeding 20 minutes had to be explained in a column marked “Comments” on that record.

32. Mr Flynn identified the signature of Mr Morgan on the relevant entry for 20 February 2011. The Wand system was a computerised tracking system whereby the cleaner carried a sensor located on his belt which tracked the time and recorded the time he passed a particular sensor. The sensor located at location 3 was the relevant sensor recording the cleaner’s location near the site where the plaintiff fell.

33. The hand-held radios were provided to the cleaners and the security staff by the first defendant.

34. In cross-examination by learned counsel for the second defendant, Mr Flynn gave evidence that the cleaning company installed the sensors and the Wand system. He agreed that there was no requirement on the security guard to conduct rigid patrols, like the cleaners.

35. Mr Flynn gave evidence that there was an approved procedure for retailers in the event of a spillage in the common areas to contact Centre Management to get a cleaner. Records were kept by Centre Management of any such contact, but not on this occasion.

36. In cross-examination by counsel for the Plaintiff, Mr Flynn gave evidence that the centre cleaner would generally have a mop only. He was asked about the Incident Form he signed on 23 February 2011, that had been prepared by Ms Burrow on the previous day. He was unable to explain to the court why the CCTV footage of the relevant events commenced at 13:59:59 hours and concluded one and half minutes later. The recording of the CCTV was carried out by the receptionist employed by the first defendant. Mr Flynn had seen the footage before it had been recorded, but could not remember when. He gave this evidence:

“Q: The video or CCTV recording of the 20 minutes before the fall. Do you remember viewing that?

A: No, I don’t remember. The first thing we checked was the Wand report to see – because we couldn’t tell how long – because the person who reported the incident of the vomit, we didn’t have the details, we’re not sure of the exact time, but we do know that a cleaner passed by there within the 20 minutes.

Q: Did you have cause to interview the cleaner, Morgan, to ascertain that particular matter?

A: No.”

37. Mr Flynn agreed that in accordance with the report made by the first defendant to its insurer, the spill in this case, being vomitus, was in fact reported by an employee of the Big W store to the security guard, Mr Duxbury. Mr Flynn agreed that the communication by hand-held two-way radio between the security officer, the Centre Management and the cleaner, would include the scenario that arose where a tenant reported a spill to the security officer who then radioed the cleaning contractor to notify them that it needed to be cleaned up. He agreed that would be an open communication. He gave this evidence:

“Q: You agree that there is this obvious period in time between when the spill is created to the time that it was cleaned up in that particular scenario?

A: Yes.

Q: In February 2011, there was no directive by the centre to the security company regarding the guarding of spills in the period between identification to cleaning up?

A: Correct.

Q: Sir, absent a spill being guarded in the period between notification to cleaning, there could be a possibility of a shopper walking through it and falling?

A: Possibly.

Q: The responsible thing to do would be to try to prevent that?

A: If possible.”

38. Mr Flynn gave evidence that on a Sunday, the security guard would collect the hand-held radio from the cleaning office, as the management office was closed.

39. In re-examination, Mr Flynn gave evidence that trading on a Sunday was carried out by 70% of the stores in the centre between 10:00am and 2:00pm. It was not a peak trading period.

The first defendant’s submissions as to liability

40. The first defendant submitted that it could not be vicariously liable for any negligence of the security guard as its “employee, servant or agent”. Rather, the security guard was the employee of an independent contractor and therefore the first defendant could not be responsible for any negligence on his part, relying on Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161. It was submitted that the first defendant owed a duty of care as owner and occupier of the centre to exercise reasonable care, and that the retainer of an independent cleaning contractor to carry out floor inspections at 20 minute intervals was reasonable to discharge that duty.

41. The contract between the first defendant and the cleaning contractor required records of inspection sheets to be kept, and the evidence supported that in fact occurred. The first defendant had therefore discharged its duty of care to the plaintiff, relying on Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 at [53] where the Court of Appeal held:

“53 There is no doubt also that this occupier’s duty of care is “delegable”, in the sense that it may be discharged in whole or in part by the occupier’s exercise of reasonable skill and care in engaging someone else to take steps to keep the property safe either generally or in particular respects. Discharge of the duty in this way requires reasonable skill and care in the selection of the other person, in arranging the terms of engagement of that person, and in confirming that the person does take appropriate steps. If it is reasonable for an occupier to seek to discharge or partly discharge the occupier’s duty in this way, and the occupier does exercise reasonable skill and care in all these respects, then if a person coming on to the property is injured due to the failure of the other person engaged to exercise reasonable skill and care to keep the property safe, the occupier may escape liability.”

42. Counsel for the first defendant characterised the substance of the allegation against his client as being a failure to conduct regular inspections of the thoroughfare areas, referring to paragraphs 13(d), (h) and (e) of the Further Amended Statement of Claim set out above. It was submitted that in the absence of the cleaning contractor as a party to the proceedings, there was simply no evidence supporting an allegation that a different system of inspection should have been implemented by the first defendant.

43. Counsel submitted that the statement of the security guard, Mr Duxbury, was evidence that a member of the staff of Big W had identified the vomit on the floor and had advised Mr Duxbury, who called the cleaner. Further, the cleaner arrived, according to that statement, “in a very short time”. On that evidence, it was submitted that the system had “kicked in”. Counsel submitted that the evidence showed that the spill occurred after 1.38pm and that prior to 1.58pm, the cleaner had been contacted. The CCTV evidence demonstrated that one minute and 20 seconds elapsed after the plaintiff slipped for the cleaner to attend. Counsel then submitted:

“So there must have been a short period of time between the security guard noticing the slipping event back towards when he was informed by the Big W employee, who then contacted the cleaner. We must be talking, we would submit, in the matter of seconds or a minute, or in any event, that scenario doesn’t impugn the system which had been implemented by my client and even if there had been some neglect on the part of the cleaner, that doesn’t fall at my client’s feet.”

44. Counsel submitted that there was no breach of duty of care pursuant to ss 5B and 5C of the CLA and also that, in the plaintiff’s case, based on a precaution of requiring the first defendant to implement a more frequent system of inspection, then causation was not made out pursuant to s 5D of the CLA, relying on Rickards v Aust Telecommunications Commission [1983] 3 NSWLR 155 at [158] per Priestley JA.

Submissions of the second defendant as to liability

45. Counsel for the second defendant submitted that Mr Duxbury did all that could be reasonably expected of him in the circumstances. When notified of the vomit on the floor by an employee of Big W, he called the cleaner, and, according to his statement, when he identified the plaintiff walking towards the vomit he “yelled to him”.

46. It was submitted that no inference could be drawn against the second defendant pursuant to Jones v Dunkel (1959) 101 CLR 298. Rather, the plaintiff had adduced Mr Duxbury’s statement as part of its case (Ex A10). The plaintiff had given no evidence in chief about a warning from Mr Duxbury. The second defendant did not call evidence to explain or contradict Mr Duxbury’s statement, as there was nothing that required explanation or contradiction. No inference could therefore arise that Mr Duxbury would have given evidence adverse to the second defendant’s interests.

47. Counsel for the second defendant submitted that the particulars of negligence pleaded by the plaintiff against the second defendant had not been made out on the evidence. It was submitted that the security guard was at the shopping centre at the behest of the first defendant and could only do what he was told to do by the first defendant. The duty owed by the first defendant to members of the public had not been delegated to the security company or its employee, Mr Duxbury. The case particularised by the plaintiff (Ex 2D1, pg 9) was that:

“the plaintiffs allege that there was a duty owed by the first and second defendants to take all reasonable steps to prevent the risk of harm to visitors to the premises. It is implied that the first defendant was engaged by the second defendant to fulfil this obligation.”

Counsel submitted that only if the second defendant was in breach of its contractual obligations to the first defendant can he be in breach of his duty of care to the first plaintiff, as his duty to the plaintiff must be informed by his engagement by the first defendant. The contract for security services on which the second defendant was engaged did not form part of the system of the first defendant to inspect, identify, barricade, warn of the presence of and remove foreign substances from the floor of the shopping centre. That was the cleaning contractor’s task. It was submitted that the content of the duty that the second defendant owed the plaintiff ought not be determined by what he did or attempted to do to discharge that duty, relying on Newcastle Entertainment Security Pty Ltd v Simpson [1999] NSWCA 351 per Mason P at [14]:

“Nevertheless, the nature and scope of the duty towards a patron cannot be governed, in the final analysis, by what steps it takes to discharge it. That would involve the “fatal circularity” of which Beazley JA speaks in her judgment. The duty stems from the relationship between the defendant (in this case the centre manager and the promoter) and the plaintiff.”

48. The second defendant also relied on the Court of Appeal’s decision of Bevillesta, supra, as to the delegation of the occupier’s duty of care to an independent contractor. It was suggested that the scope of the duty owed to a visitor by a contractor may be somewhat less than the contractual duty owed to the occupier, referring to Bevillesta at [68].

49. It was further submitted that no implied term could be read into the contract for provision of security services here. Both parties to that contract knew that there were cleaners engaged at the shopping centre and the duties of the security staff were clearly defined, relying on the High Court’s decision in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337.

50. Counsel submitted that merely because the security officer notified the cleaner of the spill, this did not impose a duty upon him to take reasonable care to avoid risk of injury to the plaintiff. Counsel submitted that where liability is dependent upon delegation, the terms of the engagement need to be carefully scrutinised, relying on Jennings v Westfield Shopping Centre [2010] ACTSC 11.

51. Counsel submitted that the duty imposed on the second defendant here depended on the instructions given to it by the first defendant, relying on Bevillesta, supra.

52. Finally, it was submitted that the security guards were there at certain times of high anti-social risk to members of the public. They were no part of the system of cleaning the premises and although Mr Duxbury notified the cleaner of the spill by means of his radio, the second defendant was not part of the system of cleaning such spills implemented by the first defendant. There could therefore be no liability attached to the second defendant.

Plaintiff’s submissions as to liability

53. Counsel for the plaintiff also relied on Bevillesta, supra, as lending support to the plaintiff’s claim against the second defendant. Counsel submitted that the duty of the first defendant was to take reasonable care by avoiding a foreseeable risk of injury to persons lawfully entering the premises. It was submitted that the duty was to use reasonable care to prevent injury to the invitee from an unusual danger of which the occupier knew or ought to have known, relying on Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241.

54. It was submitted that the risk of injury to the plaintiff was both foreseeable and not insignificant, pursuant to s 5B(1) of the CLA. It was further submitted that a reasonable person in the position of the first defendant ought to have taken adequate steps to ensure that in circumstances where its security contractor was notified as to the existence of the spill by an employee of Big W, that that person guard the spill in between his reporting to the cleaning contractor via hand-held radio and the time when the spill was cleaned up. This was especially so given that the spill was in a main thoroughfare for shoppers.

55. It was submitted that the burden of taking precautions, by properly guarding the spill, was very low, either by the guard simply standing in front of it, or moving a nearby bench chair over it.

56. Counsel further submitted that s 5D of the CLA was satisfied here, in that the court would find that the first defendant’s failure to exercise reasonable care was a necessary condition of the occurrence of the harm, as was the failure by the second defendant to exercise reasonable care. In relation to the second defendant, although the hazard was created by somebody else, the contractor could be liable for breaching a duty of care to persons coming onto the property by failure to deal with that hazard. It was submitted that the second defendant’s submissions to the effect that the security guard had no duty to guard against someone walking through a spill would lead to an absurdity, having regard to the modern law of negligence.

Further factual findings relevant to liability

57. Having regard to the whole of the evidence, I make the following findings of fact on the balance of probabilities:

1. That the plaintiff slipped and fell heavily onto his right side in the common area of the first defendant’s premises, adjacent to Big W’s premises.

2. That the plaintiff slipped on vomit that had been deposited on that floor sometime after 1:38pm and before 2:00pm.

3. That the vomit was identified by an employee of Big W, who notified Mr Duxbury, the security guard employed by the second defendant.

4. It being a Sunday, the Centre Management Office was closed, and Mr Duxbury had obtained his hand-held radio from the cleaner’s office at the start of his shift.

1. That Mr Duxbury notified the cleaner by his hand-held radio that the spill had occurred, and required cleaning.

2. That after notifying the cleaner, Mr Duxbury moved away from the spill in the direction of the entrance to the premises.

3. Upon entry to the premises, the plaintiff walked past Mr Duxbury, acknowledging his presence.

4. I accept the plaintiff’s evidence that he did not hear any warning from Mr Duxbury as to the presence of vomit on the shopping centre floor. I do not accept the unsworn statement of Mr Duxbury that he yelled to the plaintiff, untested as it was by cross-examination.

5. At the time the plaintiff fell, Mr Duxbury was at a distance of approximately 10 metres from the site of the spill. Whilst imprecise, this measurement is based on the observation made from the CCTV footage that the security guard made some 13 paces to attend to the plaintiff after he fell.

6. There was no signage in place warning of the presence of the spillage; nor was it barricaded.

7. Mr Morgan, the cleaner, arrived within two minutes thereafter to mop up the spillage.

Determination of liability

58. The evidence establishes that the first defendant implemented a system whereby its contracted cleaning personnel were required to inspect the relevant part of the premises every 20 minutes. Further, according to section 8 of the manual issued to store owners, referred to in [20] above, that system involved identification by staff of the individual shops of any “potentially dangerous spillage or obstruction” occurring near their shop. That situation “required some immediate attention” as well as calling for the centre cleaner. The manual did not define what action was required in giving a spillage “some immediate attention.”

59. That policy was implemented by the provision of hand-held radios to the cleaners, security guards and Centre Management as a means of open communications. What occurred on this occasion was that a staff member of Big W informed Mr Duxbury, the security guard, who then informed Mr Morgan, the contract cleaner, of the spill.

60. The system of inspection was a reasonable system to implement. However, in my view, the system failed to implement a protocol for what was to happen on a Sunday (when the Centre Management Office was closed), once a spillage had occurred and had been identified, namely, between the notification to the cleaner of the spill and the cleaner arriving to rectify the situation. What was required was a system that identified the area of the spill for members of the public using the shopping centre and to warn persons approaching of the presence of a dangerous surface. In 2011, with the ubiquitous use of CCTV, plastic warning signs and other devices, this was not a heavy burden. The system failed to identify what should happen once the cleaner had been notified, and whether the person notifying (in this case either the employee of Big W or the security guard notified) should remain at the scene to warn members of the public. That did not happen.

61. The risk of harm here was that a member of the public entering the premises would slip on the vomit, and thereby fall and injure him or herself. Applying ss 5B and 5C of the CLA, that risk was not insignificant and was foreseeable. It occurred because of the failure of the first defendant to implement a reasonably safe system, and that breach was a necessary condition leading to the plaintiff’s injury. Pursuant to s 5D of the CLA, but for the first defendant’s breach of its duty of care to members of the public, the plaintiff would not have been injured. It was both a necessary condition of the injury and within the scope of the first defendant’s liability.

62. The defence of obvious risk pleaded by the first defendant has not been made out. Having viewed the CCTV film, the spillage was not obvious and I find the plaintiff was taking reasonable care for his own safety.

63. I therefore find that the first defendant was negligent in failing to implement a system of inspection, identification of spills (including warning of, and barricading spills), and cleaning, that avoided foreseeable risk of harm to members of the public, including the plaintiff, upon entering its premises. The first defendant could not avoid its liability by delegating to the cleaning contractor a system that was defective.

64. Whether the second defendant was negligent is more problematic. The second defendant was an independent contractor and, according to the evidence, the duties of employees of the second defendant were confined to attending to anti-social behaviour within the premises and the car park. None of those duties concerned the identification of spills, or cleaning the premises. Those matters were the subject of a contractual arrangement between the first defendant and its cleaning contractor, who was not a party to the litigation. The submission was made on behalf of the second defendant that any duty of care owed by it to the plaintiff was reliant upon the terms of the contract between the first and second defendants. However, what was unexplained by the contract and the evidence in relation to it was the purpose of the provision by the first defendant to the second defendant’s employees of hand-held radios to communicate openly with Centre Management and the cleaning contractors.

65. The question to be determined therefore is; whether by, having been informed of the spill by an employee of Big W, Mr Duxbury, having notified the cleaner of the spill, assumed a duty to take reasonable care to ensure that the plaintiff, as a member of the public, would not be exposed to an unnecessary risk of injury by remaining at the site of the spill and warning customers, including the plaintiff, to avoid it.

66. I do not accept the second defendant’s submission that no inference can be drawn adverse to the second defendant’s interest by its failure to call Mr Duxbury as a witness at the hearing. As counsel conceded, Mr Duxbury was available to give evidence and his absence from the witness box was unexplained. Once the plaintiff denied that the security guard had shouted a warning to him (see [25] above) and denied there was a possibility that he did not hear him, it was for the second defendant to call evidence to rebut those denials. Mr Duxbury was clearly a witness in the second defendant’s camp, and the plaintiff’s reliance upon his statement arose from the onus on the plaintiff to prove the circumstances of his fall. The principle in Jones v Dunkel (1959) 101 CLR 298 therefore applies as follows. First, an inference arises that the evidence of Mr Duxbury, if called, would not have assisted the second defendant. Secondly, I am able to draw with greater confidence any inference unfavourable to the second defendant, namely, that the plaintiff was not warned – see Manly Council v Byrne & Or [2004] NSWCA 123 at [46] – [54], per Campbell J (with whom Beazley JA, as she then was, and Pearlman AJA agreed).

67. There was no evidence of any instruction being given to security personnel as to what was expected of them in that situation. The OH&S manual issued by the second defendant to its employees is not relevant to that issue (Ex B). The evidence of the second defendant made it clear that no such instruction was given (see [26] and [28] above). The Centre Manager, Mr Flynn, confirmed it was no part of the security guard services provided at the centre to guard such a spill until it was cleaned up (see [29] above).

68. The Court of Appeal’s decision in Bevillesta, supra, concerned the contractual relationship between the owner and occupier of the shopping centre and a cleaning company contracted by it. The issues determined by the court included what, if any, duty of care did the cleaning company owe to members of the public such as the plaintiff, and whether the cleaning company was in breach of any such duty of care or any contractual duty. The court held that the cleaning company owed a duty of reasonable care to members of the public in relation to the creation of the risk of injury, and further that such a duty could extend to a duty to deal with hazards created by others. Hodgson JA referred to the discharge of an owner and occupier of its delegable duty of care by contracting out to a cleaning company. His Honour said at [53]:

“53… If it is reasonable for an occupier to seek to discharge or partly discharge the occupier’s duty in this way, and the occupier does exercise reasonable skill and care in all these respects, then if a person coming on to the property is injured due to the failure of the other person engaged to exercise reasonable skill and care to keep the property safe, the occupier may escape liability.

54 In my opinion, a corollary of this is that a person engaged in this way may come under a duty of care to persons coming on to the property. If that person knows or reasonably should know that he or she has been engaged to keep the property safe for persons coming on to it (and the exercise of reasonable skill and care by the occupier would require that this be conveyed to that person), then in my opinion the person so engaged would appreciate that if he or she does not exercise reasonable skill and care, there is a risk of injury to persons coming on to the property; and the person’s understanding of that engagement and risk gives rise to a relationship with persons coming on to the property sufficient to support a duty of care.”

69. His Honour went on to state:

70. “56 …Certainly a cleaner would be liable if it creates a hazard, for example, by leaving the floor wet and unguarded; see Woolworths (WA) Pty Limited v The Berkeley Challenge Pty Limited [2004] WASCA 196, (2004) 28 WAR 540 at [56]-[57].

71. 57 Even when a hazard is created by someone else, and a cleaner fails to deal with it, it seems clear that the cleaner can be liable for breaching a duty of care to persons coming onto the property. This was assumed without being discussed in cases such as Allcorp Cleaning Services Pty Limited v Fairweather (New South Wales Court of Appeal, 29 June 2008, unreported) and P & H Property Services Pty Limited v Branigan [2008] NSWCA 195. See also Cairns v Woolworths Limited [2005] ACTSC 95 at [135].”

72. Because of an absence of evidence in that case as to the instructions given to cleaners and security personnel, and the absence of evidence as to actual practice, the court was unable to find that the cleaning company had breached its duty of care owed to persons coming onto the premises, including the plaintiff. Therefore, the owner and occupier were liable but the cleaner was not. Nicholas J agreed with Hodgson JA (as did Gyles AJA, who declined to consider whether a cleaning contractor might be directly liable in tort to an entrant to a premises for other than a negligent act causing a foreseeable risk of injury).

73. Here, it is the security contractor, not the cleaning contractor who is alleged to have breached his duty of care to the plaintiff. The evidence established that it was for the cleaning contractor to implement the system of inspection of the first defendant and, as outlined above, that system was deficient in terms of what was to happen once a spillage had been identified. The contract by which the second defendant was employed to provide security services to the centre had nothing to do with that system. However, the plaintiff contends that by provision of the hand-held radio to the security guard, Mr Duxbury, and by implementation of the system whereby shop owners were asked to contact centre management, or give “some immediate attention” to such a spillage “as well as calling for the centre cleaner”, the security guard assumed a duty to take reasonable care to members of the public who came onto the premises.

74. The reasoning of Hodgson JA in Bevillesta at [54] applies here. According to the evidence of Mr Flynn at [29] above, one of the purposes of having security services was “to ensure safety and maintain customer care…” Once he had reported the spill, Mr Duxbury should have known that if he did not exercise reasonable care, that there would be a risk of injury to persons coming on to the property. His understanding of that risk gave rise to a relationship with entrants to the property sufficient to support a duty to take reasonable care.

75. There was risk of harm to members of the public resulting from the security guard walking away from the site. The risk was that a member of the public may fall and injure themselves, and that risk was both foreseeable and not insignificant (see ss 5B and 5C of the CLA). By walking a distance from the site of the spill of approximately 13 paces, his conduct may be characterised as a causal act of negligence, and it was causative of the plaintiff’s injuries pursuant to s 5D of the CLA (i.e. “but for” his breach the plaintiff would not have been injured). Both factual causation and scope of liability are made out here, where a failure to exercise reasonable care would clearly expose members of the public, including the plaintiff, to a significant risk of injury.In all of the circumstances, I find that the second defendant was negligent.

76. Having regard to the findings of fact set out above, and my analysis of the application of legal principles to those facts, each defendant contributed equally to the plaintiff’s injuries. For that reason, I intend to find for the cross-claimant on both cross-claims.

Contributory Negligence

77. Section 5R of the CLA provides as follows:

“5R Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a) The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) The matter is to be determined on the basis of what person knew or ought to have known at the time.”

78. It is well settled that the statutory test for contributory negligence is an objective one. On its terms, s 5R requires consideration of whether a reasonable person would have taken precaution against a risk of harm. Therefore, it has been held that the court must consider:

1. “The probability that the harm would occur if care were not taken;

2. The likely seriousness of the harm;

3. The burden of taking precautions to avoid the risk of harm, and

4. The social utility of the activity that creates the risk of harm.”

See T & X Co Pty Ltd v Chivasers [2014] NSWCA 235 per Beazley P at [12].

79. In considering those matters, I find that the plaintiff would not take precautions against a risk of harm of which he was unaware.

80. Having regard to the findings of fact outlined above, and by finding that the plaintiff was taking reasonable care for his own safety, I do not find that the plaintiff contributed to his own injuries by failing to take care for his own safety. None of the particulars of contributory negligence pleaded by the first defendant (see [6] above) are made out. I have held that the presence of the spillage was not an obvious risk. I have also preferred the evidence of the plaintiff to the untested statement of Mr Duxbury that he yelled a warning to the plaintiff, and therefore the second defendant’s additional pleading in respect of contributory negligence (set out in [10] above) has not been made out. There will therefore be no deduction from any judgment sum for the plaintiff’s own contributory negligence.

The plaintiff’s case on damages

81. The plaintiff was born on 14 October 1946 and commenced working at age 12 doing part-time labouring work. At 14 he commenced an apprenticeship as a motor mechanic which he completed at age 22.

82. The plaintiff undertook business management studies and at age 40 commenced work as a sales person working for an agricultural service in Toowoomba. After two years, he then commenced selling motor vehicles until he commenced his own business in 1989. The plaintiff’s business was known as Procare Mechanical Service. His business was general repairs and servicing of motor vehicles.

83. In 2004, the plaintiff underwent a fusion operation of his neck, for which he required three months off work. He had taken on an employee, Mr Scott Errington, who became his son-in-law. In 2007, the company structure behind Procare was changed and Mr Errington and his wife were brought in as partners.

84. The plaintiff developed a specialty in the business, namely, restoring old motor vehicles and converting vehicles from left to right hand drive.

85. In January 2011, just before this incident, the plaintiff was volunteering to clean up in the Grantham area of the Lockyer Valley following a flood. He slipped on loose ground on an embankment, following which, he had pain in the lower back. However, he continued to work up until 20 February 2011.

86. The plaintiff gave evidence that, at that time, he was working about four days a week, perhaps a little less. He was aged 64 and in addition to his business he had a mechanical workshop at his home, where he did some work on vehicles.

87. Following the accident, the plaintiff gave evidence that when he walked away from the scene he started to feel pain down his right side and burning in his right shoulder. He felt pain from the top of his backside going down.

88. The plaintiff’s wife was a nurse and together they decided to travel back to Toowoomba before seeing a doctor. He reported the matter to the Tamworth Shoppingworld Centre two days after the incident. His wife drove most of the way back to Toowoomba from Tamworth because the plaintiff was in pain on his right side and he could not sit squarely on the seat because of that pain.

89. At first the plaintiff sought treatment from a physiotherapist, but on 14 March 2011 he saw his GP, Dr Julie Crozier. Before that he had taken Panadol as required for pain.

90. The plaintiff returned to work almost immediately; however, he gave evidence that his pain impacted on his ability to work. He could not reach over the bonnet, nor could he lift his hands above head height. He was unable to complete a proper day’s work.

91. An ultra-sound revealed a tear to the supraspinatus tendon in the right shoulder and he underwent an MRI scan on 27 April 2011.

92. The plaintiff was admitted to hospital on 23 May 2011 for surgery to repair a right rotator cuff injury and to repair a tear of the right bicep. He was discharged after three days; however, his right arm was strapped to his chest and he was not allowed to move it for six weeks. After a time, he commenced physiotherapy treatment.

93. Approximately two weeks after the surgery the plaintiff returned to work; however, he had to call on other staff members to assist him. He gave this evidence:

“Q: What jobs did you have difficulty doing upon your return?

A: Lifting things on and off an engine. We were very particular what sort of work I tried to attempt so there was nothing above my head, no lying down, no crawling around on the ground or crouching down. It was all stand up work and I had difficulty actually reaching over the bar where I had to use two hands. So if I worked with my left hand I would but, then I had to call other people in to help me do certain jobs.

Q: What part of your body caused you the most difficulty when attempting to work upon your return?

A: The shoulder.”

94. The plaintiff stopped work shortly thereafter. He had received complaints from customers about the quality of work and said he was in pain and could not keep his mind on the job. His injuries also affected the pace at which he could work. At the end of the working day he would have burning pain in his right shoulder and back ache down the right hand side around his buttocks.

95. The plaintiff gave evidence that he intended to work for as long as he was physically and mentally able to, and although he had no set age in mind, he would probably have worked into his seventies or early eighties.

94. The plaintiff has done no paid work since he left. In March 2013 he was prescribed anti-depressants for depression.

95. Notwithstanding his injuries, the plaintiff was certified in February 2014 to update his race car driver’s licence. That had been a life-long interest for him. Because of his injuries, the vehicle he drove had been modified, for example, a new gear lever had been fitted for him. He gave evidence of competing in races thereafter, notwithstanding difficulties with changing gear and steering.

96. The plaintiff continued to suffer back pain and in November 2014 underwent a CT scan. He was referred to a neurosurgeon, Dr J Webster, and had a facet block injection to the lower back which improved his condition for a few weeks.

97. Procare ceased trading in December 2014. The plaintiff has continued to suffer back pain throughout 2015 and has had physiotherapy from time to time. In November 2015 a further CT scan of his lumbar spine was taken. He continued to suffer low back pain and right shoulder burning type pain up to the date of trial. For that pain he took Panadol and Brufen three times a day.

98. The plaintiff gave evidence that as a result of his injuries he had difficulty gardening, and his wife had taken over those tasks. He had returned to mowing lawns with the assistance of his children and grandchildren.

99. The plaintiff had a number of motor vehicles which he looked after in his home workshop as a hobby. He gave evidence that he had not done any paid work from that workshop.

100. In cross-examination, the plaintiff agreed that he had had a fall down stairs in 2003, following which, he had an x-ray of his lumbar spine. He agreed that he had had a low back problem for some years prior to 2011. In 2009, he had suffered tension type headaches, however, he could not recall the detail of it.

101. The plaintiff agreed that he had worn a neck brace in May 2010, but said he did not use it for long as it was useless. He did agree that he was treated for depression in 2010 with Zoloft medication.

102. The plaintiff denied suffering ongoing pain as a result of slipping in January 2011, however, he saw Dr Crozier on 8 February 2011 and had physiotherapy treatment on 10 and 17 February 2011 for symptoms arising from the January fall.

103. It was put to the plaintiff that before his fall in Tamworth he was not working four days a week but about two days per week. His evidence was that the work varied according to what work was actually in the shop. He did not agree that his work had been “sporadic”. It was put to the plaintiff that his solicitors had provided particulars that, prior to the accident, he had been working approximately 15 hours per week. He described that as a minimum.

104. In a statement dated 18 April 2011 he stated:

“I’m the principal director of Procare in Toowoomba, I’ve wound back my on‑site working hours in recent years, however, I estimate that I average approximately two days of work per week either in the shop or at my home working on projects for the shop.”

On the basis of that statement, it was put to him that he was only working two days per week, to which he answered “approximately”. He would not concede that his evidence in chief about working four days per week was wrong because he did some work on his own vehicles at home.

107. The plaintiff was cross-examined about his involvement in car racing. In 2014 and 2015 he agreed that he had been capable of racing his car and had competed in various championships. One series had comprised 13 races. In 2015 he raced in 19 races in two different series.

108. The plaintiff agreed that he would be able to do administrative work in his business Procare. That business was sold in December 2014 for $45,000.00, and the plaintiff’s son-in-law has since been pursuing his own business.

109. The plaintiff agreed that the gross and net income of Procare was increasing up until the date it was sold. He also agreed that he would have continued to work up until it was sold if he was able to. The plaintiff agreed that he was not really losing any income up until the time the company was sold, but said he was losing “business income”.

110. In cross-examination by counsel for the second defendant, the plaintiff gave evidence that Mr Errington had developed his own business whilst working at Procare. On the restoration work, the plaintiff gave evidence that he would not give a quote for each job, but rather an estimate. He usually valued his time at around $60.00 per hour in such estimates. He would do four or five restoration jobs in one year.

111. Counsel for the second defendant cross-examined the plaintiff on records contained in Dr Crozier’s notes, referring to left hand buttock pain, which the plaintiff denied.

112. It was put to the plaintiff that when he saw Dr Gillett in October 2012 his back was good, to which he responded “I don’t think so”. He would not agree at that time that he did not have any referred pain in his legs.

113. In re-examination, the plaintiff confirmed that his wife cleaned the interior of their cars. His best recollection of how much time he took off in 2009 following neck surgery was a matter of days, not months. The plaintiff was also asked why he did not request provision of medication for pain when he saw the doctor. He said he did not take medication unless it was absolutely necessary, “and then it’s under duress”.

The medical evidence

114. The medical evidence relied on by both parties is of fairly narrow compass. The plaintiff consulted his local medical officer, Dr Crozier, following his return to Toowoomba. She referred him to Dr Leslie Goff for physiotherapy. Dr Goff reported that the plaintiff felt immediate increase in left buttock pain and shin pain, but also developed left groin pain, neck pain and right upper arm pain. Physiotherapy treatment provided transient relief. A CT scan of the lumbar spine conducted on 14 March 2011 revealed degenerative changes:

“Maximal at L4/5 where there is a grade 1 spondylolisthesis secondary to facet joint degeneration … compromise of the exiting left L4 nerve root in the foramen is demonstrated.”

115. An x-ray of the lumbar spine of the same date concluded:

“CT better demonstrates the anterolisthesis of L4 upon L5 of 0.7 cms. A broad based disc protrusion as present at this level and there is bilateral L4 nerve root compression.

At the superior end plate of L2 there is a compression fracture with around 15% loss of vertebral body height from the superior end plate. Around 15% loss of vertebral body height is also present at L1. These fractures both appear recent.”

116. An ultrasound of the right shoulder dated 23 March 2011 revealed the following findings:

“The biceps tendon is subluxed medially. There is a minimal amount of fluid surrounding the biceps tendon sheaf. Biceps tendon itself is obviously intact. The subscapularis tendon and supraspinatous tendon show full thickness tear. An incomplete full thickness tear of the infraspinatous is also observed. Fluid is seen in the sub-deltoid and subacromial bursa. The acromioclavicular joint shows hypertrophy of the superior capsule.”

117. A CT scan of the cervical spine performed on 23 September 2014 showed minor disc changes at three levels in the cervical spine. At C5/6 level the study showed hypertrophic changes compromising the foramina bilaterally and at C6/C7 level there was evidence of fusion with the vertebral bodies and partial fusion of the facet joints. The study concluded:

“Changes of cervical spondylosis as described.”

118. On 23 May 2011, the plaintiff underwent a rotator cuff repair and biceps tendon repair carried out by Dr Robert Ivers, orthopaedic surgeon, at St Vincent’s Hospital in Toowoomba. He was off work for two months after his surgery and then returned to work, however, he had problems with working in awkward positions, lifting loads and working above shoulder height. When examined by Dr Greg Gillett, orthopaedic surgeon, on 16 October 2012, he had a burning sensation in his right shoulder and numbness on the surgical scarring. He suffered a dull ache upon change of weather and had weakness, particularly in relation to using his right dominant arm away from his body, above shoulder height.

119. Dr Gillett referred to his race car being a problem because it was left-hand drive and he had to change gears with his right hand. He reported that he raced “once every couple of months” and, “the races are usually 10 laps but he’s only good for the first three, then he lets people pass him because he can competitively race through the gears with his right arm” (sic). Dr Gillett recorded some discomfort in the right buttock with no referred pain to the legs.

120. Dr Gillett diagnosed an injury to the right shoulder associated with a tear of the rotator cuff and aggravation of pre-existing degenerative changes of the lumbar spine. There were limitations in his ability to work reflecting his limited use of the right upper limb, and he was restricted to lighter duties. The impact of these injuries on his recreational pursuits was limited to changes that he had to make in using his race car.

121. In a report dated 18 December 2014, Dr Gillett recorded a history that he had ceased employment as a motor mechanic 18 months previously, and noted symptoms relating to his right arm and shoulder and involving his right buttock and hip region. He also had ongoing issues with his lumbar spine and symptoms including pain shooting into the right buttock and occasionally the right thigh. Dr Gillett adhered to his earlier opinions, and opined that there was no distinct injury to the hip joint; rather, symptomology associated with the hip was more likely than not a reflection of either the ageing process or referred symptoms from the lumbar spine.

122. In a report dated 5 December 2014, Dr Webster, neurosurgeon, reported that on examination on 3 November 2014 the plaintiff was really tender over the facet joints around L5/S1, L4 and L5. He underwent a bilateral L4/5 facet block with good relief over one to two weeks.

123. The defendant’s medical case relied on documents that pre-dated the accident, which established that the plaintiff had suffered neck and lumbar spine pain and received treatment for those conditions in 2003. He had been referred for physiotherapy treatment following a fall on 18 May 2003. In 2009, the plaintiff had been sent for assessment and management of cervicogenic headaches by Dr Crozier. The physiotherapy notes recorded that by 8 April 2010 he was “going well – improving generally and going to the gym”. They also recorded the following entry on 4 May 2010:

“Flew to NZ with neck brace.

Didn’t wear it on return flight and felt it aggravated ++.”

124. The defendant also relied on a referral from Dr Crozier dated 21 December 2010 to a psychologist for management of the plaintiff’s depression, “resulting from long-standing stress related to legal dealings with BSA and builder.” He had been treated for a short time for that condition with Zoloft.

The plaintiff’s submissions as to damages

125. The plaintiff relied on the following schedule of damages:

Non-economic Loss – 28% of a most extreme case	$83,000.00
Past treatment expenses Treatment including physiotherapy Medication Repayment to Medicare Repayment to Medibank Private Travel Total for Treatment expenses	$4,885.85 $1,456.00 $3,469.80 $7,147.10 $356.40	$17,315.15
Future treatment expenses – Medication - $5.60 per week x 412.9 (5% multiplied for 10 years) Future massage treatment allowance Future general practitioner and orthopaedic surgeon, and physiotherapy allowance Total future treatment expenses	$2,312.24 $2,500.00 $5,000.00	$9,812.24
Past economic loss $200 per week from 31 December 2014 (closure of business) to 15 February 2016 411 days = 58.71 weeks x 200	$11,742.00
Future economic loss $200 per week from 15 February 2016 to 75 years 268 days = 295.43 weeks x $200 per week	$59,086.00
Future care – the plaintiff claims future domestic assistance on a global basis for the remainder of his life	$20,000.00
Total	$200,955.39

126. In his submissions in relation to the plaintiff’s claim for damages, counsel for the plaintiff referred to the reports of Dr Gillett and submitted that the court would accept the plaintiff’s evidence to the effect that despite undergoing surgical repair to his rotator cuff and bicep, his right upper limb continued to be problematic for him. It impacted upon all of his domestic and recreational activities and he was left with a burning sensation in his right shoulder. Further, with respect to economic loss, his ability to work was limited to lighter duties or duties that involved him not working with his right upper limb extended or above head height. It was submitted that the plaintiff would have continued to work to the age of 75 years, but not on a full time basis. The claim at $200.00 per week represented three and half hours at the plaintiff’s bill-out rate of $60.00 per hour.

127. The plaintiff made no claim for past gratuitous care or domestic assistance. The claim for future care was characterised as modest, noting the difficulties with the right shoulder in carrying out household chores which required lifting. The evidence established that the plaintiff’s wife continues to do the gardening and the claim for future care was based on the prospect that it would fall upon the plaintiff if something happened to his wife.

First and second defendant’s submissions as to damages

128. The first defendant submitted that the appropriate range for damages for non‑economic loss was between 20% and 25% of a most extreme case pursuant to s 16 of the CLA. Learned counsel for the first defendant referred the court to a number of judgments pursuant to s 17A of the CLA as comparable verdicts. Whilst of some limited utility, each case falls to be determined on its own facts as established on the evidence. The range of damages advocated for non-economic loss was therefore $21,000.00 to $38,500.00.

129. The first defendant advocated that there was no past loss of earnings established by the plaintiff. The earnings of the plaintiff through Procare had increased following the accident and in any event, he had reported to Dr Gillett that he had ceased his employment 18 months prior to December 2014.

130. The first defendant further submitted that there should be no award of damages for future loss of earning capacity on the basis of Dr Gillett’s opinion that the plaintiff’s dominant pathology reflects the pre-existing pathology at L4/5, which was asymptomatic. Dr Gillett opined it was “more likely than not as he aged (probably three to five years from the date of the fall in early 2011), he would have become symptomatic much at the level he is at present.” In relying on that opinion, it was submitted that the first defendant had discharged the evidentiary onus placed upon it pursuant to Watts v Rake (1960) 108 CLR 158. It was submitted that there was no causal connection between the accident and the plaintiff’s current limitations.

131. In respect of future care, it was submitted that the plaintiff had not passed the threshold in s 15 of the CLA, and there was no evidence supporting a claim for future paid care. In respect of the evidence concerning his wife doing gardening, learned counsel referred to Dr Gillett’s report where he recorded “he enjoys gardening … at his own pace”.

132. For past treatment expenses, the first defendant submitted that the total of $15,502.75 should be reduced by 30% for the prospect of alternate causes and advocated an award of $10,000.00. It was submitted that there should be no award of damages for future treatment.

133. The second defendant submitted that in respect of the plaintiff’s claim for economic loss, there was no evidence demonstrating that the plaintiff’s injuries were productive of financial loss, relying on Graham v Baker (1961) 106 CLR 340. It was submitted that the plaintiff had a succession plan in place, namely, to hand the family business to his son-in-law, and that the sale of the business was a decision made by the son-in-law, and the plaintiff, in any event, had his own shed at home to carry on his interest in motor racing. Otherwise, the second defendant adopted all of the submissions of the first defendant, except that in respect of future treatment expenses, it was submitted that the plaintiff had not sought treatment for his right shoulder for a very long time.

Determination

134. I find that the plaintiff was a generally impressive witness and I accept his evidence as to the circumstances of the fall at the first defendant’s premises. He was 64 years of age at the date of the accident and is now 70 years of age. I find that the plaintiff had a number of pre-existing conditions affecting his neck and that he had underlying degenerative changes in his spine which had been aggravated in a fall less than a month prior to the incident. He suffered a further aggravation in the fall on 20 February 2011 to his lumbar spine which became symptomatic. He also suffered a frank injury to his right shoulder, being a rotator cuff injury and a biceps injury, for which he required surgical intervention by Dr Ivers in May 2011.

135. Whilst the plaintiff made a reasonable recovery from that surgery, he was off work for some time following it. He then had restrictions on the work that he was able to carry out, albeit work that he was, at the time of the accident, carrying out on a part-time basis. I find that the plaintiff was in fact working two days per week on average prior to the injury, but that when he returned to work following his surgery he was limited in terms of lifting and working with his right upper limb raised.

136. In respect of the plaintiff’s lumbar spine, I accept the opinion of Dr Gillett that the pre-existing pathology at L4/5 would have become symptomatic in a period of between 3-5 years following the falls in 2011.

137. The plaintiff returned to his recreational pursuit of racing motor vehicles following his accident and the evidence established that he did so regularly, albeit with a minor modification to his own motor vehicle to enable him to change gears more easily with his right hand.

138. In assessing damages for non-economic loss pursuant to s 16 of the CLA, I have had regard to the whole of the evidence, and to the plaintiff’s age, which I must take into account – see Reece v Reece (1994) 19 MVR 103 and Varga v Galea [2011] NSWCA 76 at [72]. Having regard to the need for surgical intervention to his shoulder, I propose to award damages pursuant to s 16 of the CLA at 25% of a most extreme case, in the sum of $38,500.00.

139. For past treatment expenses, I allow the sum of $17,315.00. I do not accept the first defendant’s submission that that sum should be discounted for the prospect of alternate causes for the plaintiff’s ongoing symptoms. All of the treatment took place within the first 18 months following the injury, and the plaintiff disavowed any ongoing reliance on painkilling medication.

140. I do not accept that the plaintiff has made out a claim for future treatment. There is no medical evidence supporting any such treatment, as stated above, and the plaintiff disavowed reliance on analgesic medication.

141. I accept that the plaintiff has established that he suffered loss of earning capacity as a result of his injuries, but not since December 2014 when the family business Procare was sold by his son-in-law. Notwithstanding that, following the injury, the earnings of that business continued to prosper and the plaintiff in fact received increased monies from the business, he was unable to work for a substantial period of time following the injury and following his surgery; however, he was working only two days per week at the time of his injury as I have outlined above. The assessment is not capable of arithmetic calculation and I allow the sum of $10,000.00 for his diminished earning capacity during this period.

142. I am not satisfied that the plaintiff has established a loss of $200.00 per week to the age of 75 years on 14 October 2021. However, his injuries have impacted on his ability to earn any income from restoration of cars and his most likely future circumstances, but for the injury, would have been to go on carrying out such work which he had pursued through his family business. Once that business was sold, he had the wherewithal to pursue that interest at his home workshop. Again, the loss is not capable of arithmetic calculation, however, it is appropriate to award the plaintiff a lump sum for that loss in the sum of $25,000.00.

134. I am not satisfied that the plaintiff has made out a claim for future paid care for the remainder of his life. There was no evidence establishing the need for such award of damages – see Miller v Galderisi [2009] NSWCA 353. I reject the plaintiff’s submission that he will require assistance upon something happening to his wife as being entirely speculative. The claim has not been made out on the evidence and I decline to award damages in respect of it.

Summary of the award of damages

144. I therefore award the plaintiff damages as follows:

Non-economic loss	$38,500.00
Past out of pocket expenses	$17,315.00
Past wage loss	$10,000.00
Future loss of earning capacity	$25,000.00
Total	$90,815.00

Costs in relation to the second plaintiff’s claim

145. In accordance with directions made by me, the plaintiff and his solicitor filed affidavits sworn on 22 February 2016 outlining the circumstances in which the second plaintiff became deregistered and the circumstances in which the plaintiff’s legal representatives became aware of that fact. On 25 February 2016 further directions were made for the defendants to submit written submissions in respect of the costs orders to be made following dismissal of the second plaintiff’s claim. The plaintiff was to file any written submissions in reply on or before 24 March 2016.

146. Lightington was deregistered on 20 January 2016. The plaintiff was a director and company secretary at the time of deregistration and informed his solicitor and counsel of the fact of deregistration on the last day of the hearing, namely, 17 February 2016. Counsel for the plaintiff immediately brought the matter to the attention of the court, and no criticism has been made, or could be made, of the plaintiff’s legal advisers. An application was made to re‑register the corporation and it was reinstated on 24 March 2016.

147. The first defendant submitted that in the event reinstatement had not occurred, then the plaintiff should be personally liable for any costs incurred by Lightington, relying on s 601AD(1) of the Corporations Act 2001 (Cth) (“CA”).

148. The second defendant submitted that the reinstatement of Lightington will not cure the position that a cost liability was incurred when the corporation did not exist from 20 January 2016 to the date of reinstatement. It was submitted that Lightington prosecuted the proceedings in its capacity as a trustee company on behalf of the family trust, of which the plaintiff was a beneficiary. As company secretary, the plaintiff “must bear the culpability for the voluntary application for deregistration of Lightington and failing to advise the defendants’ solicitors”. It was submitted that the appropriate costs orders in respect of Lightington’s claim would be that the plaintiff pay to the defendants the costs of the proceedings.

149. The plaintiff relies on s 601AH(5) of the CA, which relevantly provides as follows:

“If a company is reinstated, the company is taken to have continued in existence as if it had not been deregistered …”

150. The plaintiffs here have brought separate and distinct actions. The appropriate order for costs on each action is the usual order that costs will follow the event. For that reason, the defendants will be ordered to pay the plaintiff’s costs of his proceedings and Lightington will be ordered to pay the defendants’ costs of its proceedings.

Orders

151. I therefore make the following orders:

1. Verdict and Judgment in favour of the first plaintiff against the defendants in the sum of $90,815.00.

2. I order the defendants to pay the first plaintiff’s costs of the proceedings.

3. Verdict for the First Cross-Claimant on the First Cross‑Claim in favour of the First Cross-Claimant in the sum of $44,500.00.

4. The Cross-Defendant to pay the costs of the First Cross-Claimant.

5. Verdict for the Second Cross-Claimant against the Cross-Defendant in the sum of $44,500.00.

6. The Cross-Defendant is to pay the Second Cross-Claimant’s costs of the Second Cross-Claim.

7. The Second Plaintiff’s claim is dismissed.

8. The Second Plaintiff is to pay the defendants’ costs of its claim against them.

9. The exhibits are to be returned forthwith.

10. If there is to be any application for a special costs order, the parties are to have liberty to apply on 7 days’ notice by way of Notice of Motion.

**********

Decision last updated: 08 April 2016