Ali v Holdmark Developers

[2009] NSWDC 75

CITATION:	Ali v Holdmark Developers [2009] NSWDC 75
HEARING DATE(S):	11/12/08 - 30/1/09
JUDGMENT DATE:	27 April 2009
JURISDICTION:	Civil
JUDGMENT OF:	Murrell SC DCJ
CATCHWORDS:	TORTS - negligence - dangerous and injurious premises - slip and fall.
PARTIES:	Samina Ali Holdmark Developers Pty Ltd T/as Auburn Shopping Centre Glad Cleaning Services Pty Ltd
FILE NUMBER(S):	4084/07
COUNSEL:	Mr W Ward for the Plaintiff Mr J Turnbull for the First Defendant Mr J McDonald for the Second Defendant
SOLICITORS:	Mr R Gajic for the Plaintiff Mr A Oag for the First Defendant Mr S O'Connor for the Second Defendant.

1 On 8 April 2006, Mrs Ali and her husband walked down a travelator towards the car park of the Auburn Central Shopping Centre. At the foot of the travelator, Mrs Ali slipped and fell on the concrete floor, injuring her left shoulder and right ankle/heel. The incident was captured on closed circuit television (CCTV).

2 Mrs Ali sues the Shopping Centre (inter alia, claiming that the cleaning system was inadequate and that the concrete floor should have been carpeted) and the Shopping Centre's cleaners (claiming that the area was inadequately cleaned and inspected).

Issues

(1) The cause of Mrs Ali's fall.
(2) The extent of Mrs Ali’s injuries.
(3) The need for domestic assistance.
(4) The extent of economic loss.

The Cause of the Fall

3 Mr and Mrs Ali said that, immediately after the fall, they saw a wet area near where Mrs Ali slipped. Mr Crepaz, a shopper who stopped to render assistance after the accident, said that, after Mrs Ali fell, he saw a thick, sticky, green substance under her feet.

4 I accept the evidence of Mrs Ali and her witnesses that there was a wet or sticky substance on the ground where she fell. Mrs and Mr Ali impressed me as generally truthful witnesses (although Mrs Ali exaggerated her injuries). Mr Crepaz was an independent witness. The CCTV footage did not show a wet or sticky area, but the quality of the footage (even when enhanced) was poor.

5 The CCTV footage showed that, 13 seconds before Mrs Ali’s fall, a small, rectangular object appeared on the ribbed metal plate between the end of the travelator and the concrete floor. The object must have been solid because, just before Mrs Ali fell, it was pushed forward onto the concrete. Mrs Ali stepped onto the object and fell. Mrs Ali’s witnesses did not see the object but Mr Adams, an ergonomist called by Mrs Ali, said that the object was probably pushed away when Mrs Ali fell.

6 I find that, when the rectangular object was pushed onto the concrete, it landed on the wet/ sticky substance. Mrs Ali stepped onto the object and her foot slipped because one or both of the contaminants reduced the friction/ slip resistance otherwise afforded by the concrete floor.

7 Having regard to the high risk of contaminants, and the heavy, complex pedestrian movements in the area of the fall, Mr Adams categorized the area as Pendulum Class “W” under Australian Standard HB 197:1999. Floors categorized as Pendulum Class “W” require a surface resistance with a British Pendulum Number in the range 45 – 54. Mr Adams said that the floor where Mrs Ali fell should have had a BPN of at least 45. It had a BPN of 43.

8 I prefer the approach of the Shopping Centre’s ergonomist, Mr Strautins. I agree with his view that, having regard to Table 3 in HB 197, the appropriate category was Pendulum Class “X”, the category applicable to the food court of a shopping centre or the fruit and vegetable area of a supermarket. For Class “X”, the required BPN is 35 – 44. Further, as Mr Stautins said, there is a negligible difference between a BPN of 43 and one of 45.

9 Mr Adams said that, had the concrete floor been carpeted with industrial carpet, the carpet may have absorbed the liquid or held the object, and the accident may have been avoided. However, he conceded that, without more information concerning the object and the wet/ sticky substance, one could not say whether industrial carpet would have reduced the risk. Further, I accept the defendants’ submission that the installation of industrial carpet may have created another risk, ie that, when a shopping trolley was pushed from the metal plate onto the significantly more resistant carpet, it slowed or stopped, causing a pedestrian collision.

10 I am satisfied neither that the slip resistance of the concrete floor was unreasonably low nor that industrial carpet was more appropriate flooring. I am not satisfied that Class “W” flooring or industrial carpeting would, on the probabilities, have prevented the accident.

11 The solid object was on the floor for 13 seconds. A reasonable inspection and cleaning system would not have detected and removed contaminants within that period. As there was no evidence about the length of time for which the liquid was on the floor, and there were no circumstances from which the Court could infer that the liquid was present for a significant period, the same observation applies to that contaminant.

12 I am not satisfied that either defendant breached its duty of care to Mrs Ali.

Injuries

13 During April 2006, Mrs Ali complained to medical practitioners of injury to her left shoulder and right hip, knee and foot.

14 Mrs Ali fell heavily. I accept that the fall caused soft tissue injury to the right hip, knee and foot and that associated pain continued for some months. Mrs Ali said that her right hip pain has worsened over the last six months. She has received no treatment for the condition. I am not satisfied on the probabilities that any current hip condition was caused by the fall.

15 I accept that Mrs Ali suffers from back pain. However, it was not until February 2007 that she complained to her general practitioner about back pain. I am not satisfied that the accident contributed to her back problem. Mrs Ali’s hip pain may be associated with her back problem.

16 In May 2006, an ultrasound of Mrs Ali’s left shoulder revealed a small tear, tendonitis and degenerative change. Dr Schutz, who provided a report to the Shopping Centre, accepted that the fall may have caused the tear and tendonitis. I am satisfied that the fall caused the tear and precipitated pain in the left shoulder. I am satisfied that Mrs Ali experiences ongoing pain and restricted movement in the left shoulder, although she exaggerated her symptoms. As she continues to experience pain after 3 years, it is likely that she will experience a low-level permanent disability in the left shoulder. There is a possibility of surgery to correct the tear. She is left-handed, and the pain means that her activities are significantly restricted. She takes pain-killing medication.

17 I assess non-economic loss as 20% of a most extreme case.

Domestic Assistance

18 I accept the evidence of Mrs Ajiz, Mrs Ali’s sister that, from the time of the accident until March 2007, she assisted Mrs Ali with domestic chores such as washing, cooking, shopping and ironing. She said that the level of assistance was more than six hours a day until March 2007, when she went overseas. Mrs Feryal, Mrs Ajiz’s daughter-in-law, often accompanied Mrs Ajiz to Mrs Ali’s home. The evidence of Mrs Feryal is reasonably consistent with that of Mrs Ajiz and is to the effect that significant assistance was rendered in the first two or three weeks after the accident. Thereafter, until Mrs Ajiz went overseas, more than six hours assistance was provided each week.

19 Mr Ali provides limited help around the home. He suffers from a psychiatric condition that affects his motivation to support his wife.

20 I accept that Mrs Ali required significant assistance for several weeks after the accident and then required at least six hours assistance a week until early 2007. Thereafter, the picture is somewhat obscured by the facts that Mrs Ali developed a back problem and her sister became unavailable because she went overseas and then developed a serious illness.

21 I accept the approach of the occupational therapist engaged by the defendants. She said that Mrs Ali’s left shoulder problems interfere with her ability to hang out laundry, iron, clean the bathroom and vacuum. However, with the provision of equipment and an education program, Mrs Ali will be able to maximize her independence in the activities of daily living.

Economic Loss

22 At the time of the accident, Mrs Ali worked from home, ironing for Iron Man. She earned approximately $90 per week net.

23 Ironing involves heavy use of the dominant arm. It is most efficiently undertaken when standing. I accept that, since the accident, Mrs Ali has been unable to resume her former employment because of her left shoulder injury. It would be unreasonable to expect her to iron for prolonged periods using her right arm. Initially, the right leg/ ankle injury was also a contributing factor as it prevented Mrs Ali standing for long periods.

24 The defendants’ Dr Schutz considered that Mrs Ali was fit to iron, possibly taking rest breaks, but his view was based on the misapprehension that Mrs Ali was right hand dominant.

25 I am satisfied that, since the accident, Mrs Ali has suffered economic loss of $90 per week and that the loss is continuing. Because of her age, cultural background and left shoulder injury, she is unsuited to other work. Because of Mrs Ali’s other ailments, it is appropriate to discount future economic loss by 20% for vicissitudes.

Damages

26 Had I found a breach of duty of care by either defendant, I would have awarded damages on the following basis.
Non-economic loss (20% of a most extreme case)

Past out-of-pocket expenses $4,900

Future out-of-pocket expenses $5,000

Past economic loss ($90 per week since 8.4.2006)

Future economic loss ($90 per week until 65years of age,
discounted 5% and 20% for vicissitudes)

Attendant care at $22 per hour
10 hours per week from 8.4.2006 to 22.4.2006
6 hours per week from 23.4.2006 to 1.3 2007
2 hours per week from 1.3.2007 to 30.9.2007

27 Because Mrs Ali’s case has not been made out, I award no damages.