Azzo v Sun; Azzo v Harrington Custodian Pty Ltd, Millennium Hi-Tech Group Pty Ltd and Coles Supermarket Australia Pty Ltd

Case •

[2022] NSWDC 45

•

09 February 2022

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Azzo v Sun; Azzo v Harrington Custodian Pty Ltd, Millennium Hi-Tech Group Pty Ltd and Coles Supermarket Australia Pty Ltd [2022] NSWDC 45
Hearing dates: 27, 28, 29 and 30 September 2021 and 15 October 2021 (for further directions).
Written submissions by the Plaintiff dated 30 September 2021, 15 and 19 October 2021; Defendant (Mr Sun) dated 11 October 2021; Defendant (Millennium) dated 30 September 2021 and Defendant (Coles) dated 30 September 2021.
Date of orders: 09 February 2022
Decision date: 09 February 2022
Jurisdiction:Civil
Before: Hatzistergos DCJ
Decision:

See [359]

Catchwords:

PERSONAL INJURY –– Motor vehicle accident – liability admitted

DAMAGES –– Loss of earning capacity – Where the Defendant seeks to impugn Plaintiff’s tax returns filed after the motor vehicle accident as a basis for calculation of loss of earning capacity such that it was not possible to determine what the Plaintiff’s earnings were – Where Court finds to the contrary – Claim for future domestic assistance on commercial basis not accepted – Claims for past and future out of pocket expenses claimed allowed in part

PERSONAL INJURY –– Slip and fall accident – in the common area of a shopping centre due to liquid substance on the floor proximate to the entrance of the supermarket – Consideration of liability of both the shopping centre cleaner and supermarket – Breach of duty against both Defendants found

CROSS-CLAIM –– Where Defendants in slip and fall case file cross-claim against each other seeking indemnity in respect of any liability – Apportionment of liability against both Defendants – Where the shopping centre cleaners are found to have relatively greater responsibility than the supermarket – Determination of apportionment between Defendants

DAMAGES –– Plaintiff alleges an independent injury to the left shoulder arising from slip and fall and aggravation of injuries occasioned in motor accident –Plaintiff’s claim with regard to the injury to the left shoulder not accepted – Aggravation of neck and back injuries as a result of the slip and fall accepted but the impact found to be relatively minor.

DAMAGES –– Non-economic loss not awarded by the Court – Past out-of-pocket expenses allowed.

Legislation Cited:

Civil Liability Act 2002 (NSW) ss 5B, 5D, 16

District Court (Civil) Practice Note 1

Evidence Act 1995 (NSW) ss 60, 136,

Law Reform (Miscellaneous Provisions) Act 1946 ss 5,

Motor Accidents Compensation Act 1999 (NSW) ss 83, 84A, 126, 141B

Uniform Civil Procedure Rules 2005 (NSW) rr 21.12

Cases Cited:

Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176

Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241

Dyldam Developments Pty Limited v Jones [2008] NSWCA 56

Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65

Miller v Galderisi [2009] NSWCA 353

Morvatju v Moradkhani [2013] NSWCA 157

Mott v Crest Cabinets [2004] QSC 096

MWJ V R [2005] HCA 74; (2005) 80 ALJR 329; 222 ALR 436

Smith v Alone [2017] NSWCA 287

State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 356 Kallouf v Middis [2008] NSWCA 61

State of New South Wales v Skinner [2022] NSWCA 9

Strong v Woolworths [2021] HCA 5; (2012) 246 CLR 182

Wallace v Kam (2013) 250 CLR 375

Watt v Bretag (1982) 41 ALR 597; (1982) 56 ALJR 760

White v Benjamin [2015] NSWCA 75

White v Combridge (1984) 59 ACTR 18

Category:Principal judgment
Parties:

Proceedings 2019/373897
Maurice Azzo (Plaintiff)
Jiamin Sun (Defendant) in

Proceedings 2019/162594
Maurice Azzo (Plaintiff)
Harrington Custodians Pty Ltd (1st Defendant)
Millennium Hi-Tech Group Pty Ltd (2nd Defendant)
Coles Supermarket Australia Pty Ltd (3rd Defendant)
Representation:

Counsel
Proceedings 2019/373897
Mr R Quickenden (Plaintiff)
Mr A Renshaw (Defendant )

Proceedings 2019/162594
Mr R Quickenden (Plaintiff)
Mr J Lee (2nd Defendant)
Mr D Priestley SC (3rd Defendant)

Solicitors
Proceedings 2019/373897
AJB Stevens Lawyers (Plaintiff)
McInnes Wilson Lawyers (Defendant)

Proceedings 2019/162594
AJB Stevens Lawyers (Plaintiff)
McCabe Curwood (1st Defendant)
McCabe Curwood (2nd Defendant)
Gilchrist Connell (3rd Defendant)
File Number(s): First matter: 2019/3738972
Second matter: 2019/162594
Publication restriction: Nil

Judgment

Introduction

  1. Maurice Azzo (the Plaintiff) brings proceedings for damages in respect of a motor vehicle accident that occurred on 20 July 2017 and a slip and fall accident that occurred in the Fairfield Forum Shopping Centre (the Centre) on 16 October 2018.

  2. On 12 March 2020, by consent, this Court ordered that proceedings in the two matters be heard together with evidence in one being evidence in the other.

  3. Jiamin Sun (Mr Sun) was the driver of a Ford utility motor vehicle that was involved in the motor vehicle accident matter.

  4. Harrington Custodian Pty Ltd was the owner of the Centre at 8-36 Station Street Fairfield NSW being the site of the slip and fall accident. [1] Proceedings against it were resolved on 20 July 2020. Millennium Hi-Tech Group Pty Ltd (Millennium) entered into a contract dated 1 July 2016 with the First Defendant to provide cleaning services to the Centre. [2] Coles Supermarkets Australia Pty Limited (Coles) leased an area within the premises at which it operated a supermarket. [3]

    1. Harrington Custodian Pty Ltd’s Defence. ( 9.01,2020) at [2(a)]

    2. Millennium’s Defence dated 17.09.2020 at [4].

    3. Coles Defence dated 29.07.2020 at [6].

  5. Liability, injury loss and damage were admitted in the motor vehicle accident matter. [4] The mechanism of the injury, the nature and extent of the injury, causation and extent of economic loss (including future domestic care and past and future out of pocket expenses) remained in issue. [5]

    4. Mr Sun’s Defence dated 6.01.2020 at [5].

    5. Plaintiff’s Statement of Issues and Mr Sun’s Statement of Issues.

  6. In the slip and fall matter, duty of care, breach of duty, causation and damages were in issue. [6] Millennium and Coles each filed a cross claim against each other seeking indemnity in respect of any liability. [7] Ultimately, the Plaintiff’s claim in the slip and fall matter sought only damages for non-economic loss and past and future out of pocket expenses. [8]

    6. Plaintiff’s Statement of Issues.

    7. First Cross Claim (by Millennium) dated 08.06.2021 and the Second Cross Claim (by Coles) dated 20.09.2021.

    8. T 307.24-.39.

  7. The proceedings were heard over four days.

  8. Despite being advised at the outset that the case was ready to proceed, I was informed on day 4 of the hearing that no agreement had been reached as to out of pocket expenses and nor could the Plaintiff advance his claim in this respect. [9] The parties requested that submissions be finalised on all other matters with out of pocket expenses being deferred. In the event that agreement was not reached on out of pocket expenses then the Plaintiff was to file written submissions and evidence by 5 October 2021 and the Defendants to respond by 6 October 2021.

    9. T 239.11-244.36.

  9. These directions were not complied with and proceedings were relisted before me on 15 October 2021. On that occasion, I noted that on 7 October 2021, the Court was informed by email that past out of pocket expenses had been agreed with the Defendants in the slip and fall matter in the sum of $845.05. [10] In the motor accident matter by consent, leave was granted for the Plaintiff to tender a schedule of out of pocket expenses [11] and to rely on initial submissions of 15 October 2021. Written submissions had been lodged on behalf of Mr Sun on 11 October 2021 [12] and the Plaintiff responded with written submissions dated 19 October 2021. [13]

    10. MFI 12.

    11. Exhibit AV.

    12. MFI 13.

    13. MF1 14.

  10. On 19 October 2021 yet a further schedule of out of pocket expenses was forwarded by email to my Associate despite the fact that leave to do so was not sought nor granted. [14] Prior to delivery of judgment today the Plaintiff indicated that it would not pursue this latest schedule but rely instead on that tendered on 15 October 2021.

    14. MFI 15

  11. Following receipt of the submissions on out of pocket expenses, clarification was sought as to whether these submissions had been provided to the Defendants in the slip and fall matter and an opportunity given in the event either wished to make further submissions correspondence form the Plaintiff addressed to those Defendants indicated that the submissions were forwarded on 21 February 2022. Ultimately neither Defendant in the slip and fall matter sought to make further submissions. [15]

    15. MFI 15

  12. Despite being largely by consent these arrangements were regrettable and unanticipated. They resulted in fragmentation of the matter, some overlap in argument and a delay in the finalisation. It is necessary to again remind parties that District Court (Civil) Practice Note 1 requires parties to provide reliable time estimates and for matters to proceed to trial properly prepared without adjournment.

Witnesses

  1. The Plaintiff gave evidence. In assessing the Plaintiff’s evidence I found at times particularly in cross examination that he had a poor recollection of details. He also responded to questions when in my view he did not understand what he was being asked. [16] There were also times I sensed a lack of concentration particularly when feeling the need to stand whilst giving his evidence. These factors impacted on his reliability although I did not find him to be deliberately dishonest.

    16. T 52.40 -.50 and 68.6-.11

  2. In respect of the slip and fall matter, the Plaintiff also called Mr Youkhana Keryo being his friend who accompanied him at the time of the slip and Ms Ramzia Sarkis who was employed by Coles as a team member, supervising the assisted checkout area. In relation to damages, the Plaintiff called his cousin once removed, Mr Benjamin Nasser and his accountant Ms Kala Kunaratnam. Generally I found each of these witnesses sought to give accurate evidence as best as they could. However as these reasons will demonstrate I did not accept an estimate given by Mr Keryo as to the time of the slip and fall accident in light of other evidence.

  3. Millennium in its case called Mr Salah Namrood who was a cleaner employed by it at the time of the slip and fall accident. Mr Namrood had no recollection of the slip and fall accident. His evidence was premised on the basis of what he could recall generally about his work.

  4. In addition to oral evidence all parties tendered documentary evidence, the content of which I will later come to.

Background

  1. The Plaintiff arrived in Australia at the age of 16 in 1976. After obtaining the school certificate, he worked in other employment before eventually completing a certificate III in Refrigeration and Air Conditioning at South Western Sydney Institute of TAFE. Thereafter, for close to 30 years he worked in air conditioning and refrigeration. He was involved in two prior accidents being in 1982 when a car ran over his foot and in 2000 when he was involved in a car accident. Neither of these resulted in any proceedings. His evidence was that prior to the circumstances giving rise to the present proceedings he suffered no relevant medical conditions that interfered with his work. [17]

    17. T 17.43-.46.

  2. Although the Plaintiff could not recall it, on 23 June 2017 he saw his local General Practitioner (GP) Dr Nasser Hanna who referred him for an ultra sound to the right elbow for post-traumatic pain of 6 weeks duration. The ultra sound reported by Dr Siroos Nasibi concluded that the Plaintiff had common extensor tendinosis (tennis elbow) and an ultrasound guided cortisone injection could be performed if clinical symptoms persisted. [18]

    18. Exhibit AA, p 800.

  3. On 26 June 2017, Dr Hanna referred the Plaintiff for a cortisone injection in respect of right lateral epicondylitis. [19] There is no evidence that this was followed up.

    19. Exhibit AA, p 546.

  4. On 18 July 2017, the Plaintiff had a Carotid Doppler test following what was described as a history of dizziness. This resulted in a report finding by Dr Nitin Gupta that there was no hemodynamically significant stenosis or plaque deposits identified on either side. [20]

    20. Exhibit Z, p 504.

Motor Vehicle Accident

  1. The Plaintiff gave evidence that on 20 July 2017, he was travelling along the Hume Highway towards the intersection of Frederick Street in Strathfield[21] towards Liverpool to do a quotation for a cool room. As he got to the lights of Frederick Street a vehicle on his right hand side struck him and forced him into the kerb. The Plaintiff described that he was jerked to the left with his neck and whole body and then after hitting the kerb, he was jerked back again before hitting his break and his shoulder hit the panel side of the door and his head hit the window door glass. After hitting the kerb, the Plaintiff described that as his vehicle moved to the right it collided with the other vehicle again. The other vehicle was driven by the Defendant Mr Sun.

    21. The Statement of Claim pleaded that the location was in Ashfield which was consistent with what was stated in the report of Dr Thomas J Gibson at Exhibit B p99 at [5].

  2. According to the report of Dr Thomas Gibson (Biomechanical Engineer):

  1. There is limited evidence available regarding the velocity of the two vehicles in this collision. A conservative estimate of the speed of Sun’s vehicle was that it was travelling at 30 to 40 km/h when it attempted to merge into the kerbside lane. It was described to be travelling at a much higher speed than the Plaintiff’s utility, which appears to have been travelling straight across the intersection, most likely at a speed of 10 to 20 km/h. [22]

  2. As a result of the collision, the Plaintiff’s vehicle rapidly slowed, yawed anti-clockwise and deviated to the left. In effect, the slowing and yaw caused by the lateral impact from the right caused Mr Azzo to be thrown forward and towards the right side of the vehicle, while constrained in his seat by his seatbelt and the interior of the driver door, into following the motion of the vehicle. [23]

Slip and Fall Accident

Plaintiff

22. Exhibit B, p116 at [62].

23. Exhibit B, p116 at [63].

  1. The Plaintiff stated that he attended the Centre at Fairfield on 16 October 2018 in the company of a friend “Korio” which I understand was Mr Keryo. They arrived at around midday. He had rubber sole shoes with leather uppers. He described the Centre as busy at the time. [24] The Plaintiff described that he and Mr Keryo walked towards the entrance of Coles from Ware Street. [25] The Plaintiff stated “I was walking normally. I didn’t see nothing on the floor. I just went up, my left my left leg went up in the air and that’s all I remember, just going backwards and then hit my left, I landed on my left shoulder, my head hit the ground and I felt the whole ground with my head, left, left head, left ear”. [26] As he was on the ground he described noticing “slippery stuff” being under him and some that he landed on. He described this as causing his left leg to go up in the air and described it as clear liquid about 10cm round. [27] The flooring he slipped on was described as beige in colour whilst the tiling near the Coles entrance was white. [28] The Plaintiff described falling about a metre to a metre and a half from the white coloured tiling. A screenshot of the fall from the security camera is reproduced below: [29]

24. T 33.4-.11.

25. T 34.9-.14.

26. T 34.50-35.3.

27. T 35.26-36.2.

28. T 36.4-.11.

29. Exhibit AP, p1468.

  1. The Plaintiff was not cross-examined about the circumstances of him slipping. He was cross-examined however as to his position in the fall. When it was suggested that he did not land on his left shoulder he stated that he couldn’t remember but that he had fallen backwards. When asked if he could not remember as to what he referred to earlier landing on his left shoulder he stated “because my mate told me that you were on, because I had my head on the floor, the whole ground I hit my, my, it was, I felt the ground whole ground my head” indicating the left side of his head. [30]

    30. T 76.31-.49.

  2. The Plaintiff was then taken to the contents the Incident Report Form completed by security officer Glen Woolsey on “26 September 2018 “(sic). [31]

Incident Report

31. Exhibit AB, p1096.

  1. The incident report indicated that Mr Woolsey received a call from “Pam from Coles” at 12.15pm of 16 October 2018 to attend the accident scene. On arrival he grabbed a chair from Donut King which the Plaintiff used to lean on as he described being in too much pain to move. Mr Woolsey described that the Plaintiff “explained to me that after coming in through the auto doors next to the fruit shop, [he] was headed towards Coles when [he] suddenly slipped over ending up on [his] bum.” Mr Azzo also said “my lower back is really sore & my neck. I suffer from lower back problems with bulging discs in my lower back.” Part D of the said form under the heading “Body Part Injured” records “neck” and “lower back”.

  2. The incident was described as having taken place on terrazzo flooring during a period described as “usual trade.” It confirmed that liquid was present. Photos of the area were taken. A photo of the spillage area is reproduced below. [32]

32. Exhibit AB, p1106

  1. It was put to the Plaintiff that he made no mention to the security guard of landing on his left shoulder. The Plaintiff responded that he could not remember [33] and he didn’t think he spoke to security that day. [34] The Plaintiff stated that he returned to the shopping centre the next day or the third day and was given a form and told “circle where your injury is or your, your pain is.” [35] The Plaintiff acknowledged identifying his neck and lower back in the Incident Report Form. [36]

    33. T 77.35-.45.

    34. T 77.47-.49.

    35. T 78.30-.32.

    36. T 78.43-.48.

  2. It was next put to the Plaintiff that he didn’t tell the ambulance he was having pain in the left shoulder. [37] The Plaintiff responded that he could not remember as he had a lot of pain in the neck and back and could not feel other places and can’t remember pain in the left shoulder. [38]

    37. Exhibit Q, p444.

    38. T 79.3-.32.

  3. Next, the Plaintiff was asked about his attendance at Fairfield Hospital. The hospital notes of 16 October 2018 [39] made a reference to the following:

    39. Exhibit Q, p429.

“He presented with neck and back pain following a mechanical fall. His investigations were found to be normal and sent home on oral analgesics.”

The report further noted:

“Patient was walking in the shopping complex

Slipped and fallen backwards on the wet floor

Has hit the head on the ground

Not sure whether he lost his consciousness

Complain of neck pain and lower back pain following the fall

No headache or vomiting post fall

No external injuries or lacerations

No chest pain or pelvic pain

No history of syncopy or dizziness before fall

Able to move all 4 limbs, no numbness of upper or lower limbs

No numbness of the perineal area

Pain at the lower back when trying to move legs

Able to pass urine without difficulty”

  1. The Plaintiff could not remember if he told anyone at Fairfield Hospital about the pain in the left shoulder. [40]

    40. T 81.16-.19.

  2. The Plaintiff was cross-examined as to the history of the accident that he gave to various medico legal doctors. It was put to him that he did not tell Dr Bodel on two occasions when he saw him that he landed on his left shoulder on 16 October 2018. He responded “I must of”. [41]

    41. T 85.25-.27.

  3. It was next put that when the Plaintiff saw Dr Home he did not mention landing on the left shoulder. He responded “yes I have” but then could not recall the first time that he told any doctor he had developed pain in the left shoulder after the slip and fall. He then added that when he saw Dr Bodel he was asked to do an MRI on his left shoulder. He then stated he discovered pain in his left shoulder when Dr Bodel asked him to raise his left shoulder. [42] He said that prior to that he could not feel pain because he took medication in the form of painkillers. [43]

    42. T 86.6-.8.

    43. T 86.10-.12.

  1. He could not recall undergoing physiotherapy treatment after 16 October 2018 nor massage treatment. When it was put to him that he didn’t have any other form of treatment other than medication the Plaintiff responded “I’ll take your word, yes, whatever”. [44] The Plaintiff could not recall taking medications following 16 October 2018 that he wasn’t taking prior to this date. [45]

Ramiza Sarkis

44. T 86.25-.29.

45. T 86.30-.40.

  1. Ramiza Sarkis worked at Coles from 2005 to August 2021. At the time of the accident she had worked at Fairfield for 8 years mainly working on registers.

  2. Ms Sarkis stated that on 16 October 2018 she worked from around 8am to 5pm on the assisted checkout. She stated she could serve and observe around nine registers. She accepted the assisted checkout area was close to the service area and she would communicate by calling out. [46] She described the layout of the area comprised the assisted checkout and one register next to it and then the service area.

    46. T 141.23-.34.

  3. Ms Sarkis stated that in standing, she had a clear view of people entering Coles from the assisted checkout area. On the day in question, she described an elderly man come and ask her to clean some spillage on the floor which was described as shampoo or liquid detergent. She could not leave the checkout area so she told him to go to the service desk and tell whoever was there so that they could take someone to come and clean. She stated that she was told the spillage was at the entry where they used to have the specials and recalled corn and onions being displayed there. Ms Sarkis recalled a person named “Chantelle” was at the service desk and could page someone. [47] Ms Sarkis stated when she worked on the service desk herself most of the time the person did not leave that area but calls for someone to do the cleaning. [48]

    47. T 145.37-.44.

    48. T 146.31-.40.

  4. Ms Sarkis saw the elderly man go to the service desk and then heard Chantelle paging “call service to front for a spillage to clean”. Thereafter, Ms Sarkis continued doing her job. [49]

    49. T 147.20-.24.

  5. Sometime later Ms Sarkis stated that she heard someone fell on the floor. She came and looked and saw the Plaintiff on the floor. She said “oh, sugar” to herself and “no one cleaned the spill”. She said it took a while because she totally forgot and that she was busy with customers. Ms Sarkis then described “so it was long, long after paging that that incident happened”. She was asked to describe how long it was and she stated “I’m not sure. Maybe 20 minutes, more, less. I’m not sure. But it took a long time”. She stated she didn’t see the Plaintiff slip but saw him already on the floor. [50] She knew the Plaintiff as a customer having seen him in the store before. [51] Later she was asked to clarify how long between the person reporting to her about the spillage and the time the Plaintiff was on the floor stating “more than 20 or less – 25, 20 minutes or less”. [52]

    50. T 147.39-.45.

    51. T 148.1-.4.

    52. T 149.19-.25.

  6. Ms Sarkis said that most of the time the shopping centre cleaners would hang around in the food court area and had cleaning equipment with them and wore uniforms. [53]

    53. T 149.38-150.10.

  7. In cross-examination by Millennium, Ms Sarkis confirmed she was the only person in the assisted checkout area on the day. [54] She accepted it was a busy job. [55] She described speaking Assyrian and Arabic and that customers would approach her because they didn’t understand or needed assistance. She couldn’t estimate the distance to the service area and conceded that sometimes she could go to the end of the assisted checkout area and call the service attendant to come over when she was not busy but that was not so on this occasion. [56] Ms Sarkis accepted that the paging was of the Coles store and was not Centre wide. [57]

    54. T 150.44-.46.

    55. T 151.8-.16.

    56. 151.44-152.4.

    57. T 154.12-.14.

  8. Ms Sarkis stated that Coles had 2 cleaners who also did trolley collections. Sometimes they were out of the store and when paged they were not there or they could be on their lunch break. If there was a spillage in the common area, she stated sometimes they would contact security or call cleaners in the Centre however most of the time the cleaners were nearby and would clean without having being called because they were standing around. [58] Ms Sarkis accepted that the area where the spillage was indicated was in an area where a lot of people would frequently enter and exit Coles. [59] Ms Sarkis accepted that she was aware that people could slip on spillages they were not able to see which was located at the entrance to the shopping centre. She reiterated that she was not following people if they come and clean as she was busy with her own register. [60]

    58. T 154.39-.49.

    59. T 155.29-.34.

    60. T 155.39-.43.

  9. In further cross-examination by Coles, Ms Sarkis admitted providing a statement to the Plaintiff’s solicitor on 17 October 2019. She stated she responded to questions and she was not asked if she saw the customer go over to the service area and heard the announcement over the “PA.” [61] She recalled what was said over the PA and described it to the effect of “Attention Coles service, can someone come to clean the spill at the front”. [62] When it was put to her that she did not know that the Coles cleaner didn’t go to clean up the spill she stated that she would have noticed if someone cleaned the spill. She reiterated that she was busy and didn’t notice anyone of the cleaners in the area but maintained “I will notice, like if someone come and clean, I will notice that.” [63] When asked if she noticed any Centre cleaners in the area in the 20-25 minute period, she stated that she didn’t but if someone come and clean she would definitely see them. [64]

Salah Namrood

61. T 156.42-.47 – Public Address.

62. T 157.27-.29.

63. T 158.17-.25.

64. T 158.34-.43.

  1. Mr Namrood described his duties as those of a supervisor patrolling the Centre. He stated he did patrolling, checking toilets, checking floors for rubbish and spillage. He described having a broom, dust bin, mop, bucket and a “wet” sign. He described working with a lady and sharing the tasks with her. He said he worked next to Coles and the fruit shop and “Sandra” part that was his part. He stated that the Centre used a wireless WAND tracking system. He had a device on his belt and had an identification number “9454”. The data retrieved would go to Millennium’s computer. He recalled that the WAND’s location had a number 3 near Coles. [65] He stated that if he is working at the Centre and someone identified a spillage he would be informed by security on a walkie talkie. In cross-examination by Coles, Mr Namrood stated that he could not recall the incident in question. [66] He accepted that in 2018 his job included patrolling outside the Ware street entrance besides Coles. He indicated that sometimes he would go past every few minutes and sometimes 15 to 20 minutes if he was checking toilets and then come back to the Centre. [67]

Youkhana Keryo

65. T 221.48-222.7.

66. T 223.41-.44.

67. T 224.38-225.5.

  1. In accompanying the Plaintiff on 16 October 2018, Mr Keryo stated that they entered from “the back of Coles”. [68] He stated that he saw the Plaintiff fall on what was described as a liquid substance. Following the fall, he recalled a cleaner came to clean it. He did not see the substance before the fall. Mr Keryo confirmed there were tables on either side of the entrance to Coles containing fruit. He stated that after the fall, a lady and security came and the security called the ambulance. He stated that they arrived between five to ten minutes after the fall. [69]

    68. T 129.41-.42.

    69. T 134.15-.30.

  2. There is also evidence that Mr Sk Badrujjaman the Store Manager and Ms Pam Eldridge the Service Manager from Coles (who attended the scene for first aid) both advised the insurance investigator for Coles that they recalled the liquid spill was either shampoo or fabric softener or possibly liquid soap. [70] That also accords with the instructions received by Ms Naomi Cezana (Occupational Therapist) who was qualified to prepare a report for the Plaintiff. [71]

    70. Exhibit AM, p 1455.

    71. Exhibit P, p395.

Liability –Slip and Fall Accident

Duty of Care

  1. In Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at p249, Priestly JA (with whom McHugh JA agreed) described the duty of a shopping mall operator as follows:

The duty arises from the following factors: the public nature of the premises; the defendant's interest in encouraging the greatest possible number of people to come there; the likelihood of spillage accidents in the common public part of the premises unless very carefully guarded against and the general expectation which in my judgment exists in the community that the persons in control of areas such as that where the plaintiff slipped will guard very carefully against such dangers. The duty upon the persons in charge to which the foregoing factors give rise is to have such a system of watching for the happening of (inter alia) spillages as will enable them to be removed promptly after their occurrence.

  1. In the instant case, the duty ascribed to Millennium is as the contract cleaning provider contracted to the owner. [72]

    72. Exhibit AC p1107

  2. The Plaintiff and Millennium accepted that the later had a duty to exercise reasonable care to detect and remove potential hazards to patrons in the centre: Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 at [103]. [73]

    73. Millennium’s written submissions at [56] and Millennium’s Defence dated 17.09.2021 at [6(a) and (c)].

  3. The Plaintiff accepted Millennium’s general position on the scope/content of the duty of care being to take reasonable precautions in the performance of its cleaning duties against foreseeable risk(s) of injury to patrons of the Centre. [74] The Plaintiff identified the issue between the parties being the reasonable precautions to be taken in the circumstances.

    74. Millennium’s Defence dated 17.09.2021 at [6(c)].

  4. Against Coles, the Plaintiff pointed to its lease agreement and the admission of a duty of care to persons on the premises. However, the scope and content of the duty was disputed. [75]

    75. Plaintiff’s written submissions at [35]

  5. The Plaintiff noted that Coles occupied part of the common area by its presence of trolleys containing fruit being sold on special. It argued that Coles treated the area as part of its business something that was acquiesced in by the landlord. Furthermore, Ms Sarkis’ evidence indicated that it was part of her duties to facilitate reporting the spillage to a Coles’ employee with a view to having it removed.

  6. The Plaintiff characterised Coles as owing a duty of care to patrons who entered upon the Centre to ensure that all reasonable steps were taken to ensure their safety which included ensuring that reported spills adjacent to the Coles supermarket were reported on, cleaned and or warned of in a timely manner. [76]

    76. Plaintiff’s Further Amended Statement of Claim dated 29.05.2020 at [8].

  7. Coles accepted that it owed a duty of care to the Plaintiff if only on the basis that he was a prospective customer. [77] Coles accepted that at that time it may have been displaying produce in displays which encroached upon the common area although there was no suggestion that the spill came from these displays.

    77. Coles’ written submissions at [1] and Coles’ Defence dated 29.07.2020 at [8].

  8. Coles submitted that its duty of care cannot extend to taking particular measures to monitor the condition of the floor which was the responsibility of Millennium pursuant to its contract with the Centre Managers for comprehensive and regular cleaning and inspection services. [78] Coles submitted that its limited duty can only have required it to take reasonable steps to address risks of harm to its customers entering its store of which was or for some particular reason ought to have been aware. It accepted that the terrazzo floor surface in the common area was slippery when wet and therefore there was a risk of harm that pedestrians walking on the surface and encountering liquid contaminants might slip, fall and sustain injury. [79]

    78. Exhibit AC, p1107.

    79. Coles’ written submissions at [5]-[6].

  9. I accept that Coles’ duty included taking reasonable care to prevent harm to prospective entrants to its supermarket funnelled through a section of the common area marked by the placement of trolleys with sale items on either side. The evidence of Ms Sarkis establishes that it had assumed some responsibility in that area after the spillage was brought to her attention. The Plaintiff did not specifically contend that the content of the duty required Coles to monitor the area. That matter can be put to one side in circumstances where actual knowledge on the part of Coles is relied on.

Breach

  1. The Plaintiff characterised the risk of harm for the purposes of s 5B of the Civil Liability Act 2002 (NSW) (the 2002 Act) as the “risk of a pedestrian slipping and injuring themselves on spilt liquid on a terrazzo floor”[80] and that “a pedestrian would fail to see and slip in a spillage on the shopping centre floor and fall and sustain injury.” [81]

    80. Plaintiff’s written submissions at [37].

    81. T 246.6-.9.

  2. Millennium characterised the risk of harm as being “that the Plaintiff may slip and fall if the cleaner did not devise and implement a system to adequately detect and remove hazards in the Centre.”[82]

    82. Millennium’s written submissions at [57].

  3. Coles submitted that the risk of harm was that of pedestrians walking on the surface and encountering liquid contaminants might slip, fall and sustain injury. [83]

    83. Coles’ written submissions at [6].

  4. I would accept that the risk of harm in both cases is best described as the risk of pedestrians walking on the surface and encountering liquid contaminants might slip, fall and sustain injury on the terrazzo floor in the area in question. I accept that that risk was foreseeable and not insignificant. [84]

    84. Coles accepted this to be the case at T 246.5-.10. Millennium mentioned this at [69] of it’s written submissions but did not submit otherwise.

  5. Whether a breach of duty of care arises requires further consideration of the factual circumstances.

Time of the Fall

  1. There was some dispute between the parties as to the timing of the spillage and the Plaintiff’s fall.

  2. The Plaintiff submitted that the time of the fall was known as being 12:14.1 or 12:13.59, from the CCTV footage obtained from Coles [85] . It relied on the evidence of Ms Sarkis who maintained her position that when she was notified of the spill it would have been at least 20 minutes before the fall at 12:14.

    85. Exhibit AQ

  3. Millennium submitted that the finding that should be made is that the Plaintiff fell over between 12:08pm and 12:13pm. This was based on Mr Keryo’s evidence that the security guard who called the ambulance came over between 5 and 10 minutes after the Plaintiff’s fall. [86] The call was logged to the ambulance at 12:18.44pm. Five or ten minutes before 12:18.44pm would have been between 12:08pm and 12:13pm. Coles accepted that the accident occurred at 12:13.58 whilst submitting that the clocks (CCTV) may not have been synchronised.

    86. T 134.7-.30.

  4. The evidence was that the fall occurred at 12.15pm according to incident report [87] or at 12:14 by reference to the still image screenshot, [88] and the CCTV footage. [89] I do not accept Mr Namrood’s evidence that the accident happened 5 or 10 minutes before the ambulance was called. The time on the CCTV recording is far more reliable than Mr Namrood’s approximation as recalled at trial or what was recorded on the incident report.

Time of the Spillage

87. Exhibit AB.

88. Exhibit AO, p1466.

89. Exhibit AQ.

  1. The location of the WAND stations in the Centre are depicted in the diagram below:

  1. From the still shot photographs and CCTV evidence it can be accepted that the location of the accident was somewhere between location K5 (WAND station 02) and location 41 (WAND station 03). So much did not appear to be in issue.

  2. Mr Namrood’s last WAND reading at station 02 was at 11:55.22 and thereafter at 11:55.58 at 03 being the entrance of Ware Street to Coles. The Plaintiff contended that the location where the cleaner would have seen the spillage would have been at station 02 as 03 was closer to the Ware Street. [90]

    90. T 301.32-.39.

  3. The evidence indicates that after 11:55.58, Mr Namrood left the entrance of Ware Street and made his way to the entrance at Station Street at the other side of the complex. At 12:37:22 minutes he registered at the Station Street entrance (WAND station 01). The Plaintiff contended that the spillage had occurred about 22 minutes prior to the fall being a midpoint between 20 to 25 minutes described by Ms Sarkis.

  4. On this basis, it was argued that there was a casual act of negligence in that Mr Namrood did not notice the spillage at the location marked by WAND station 02 titled “Coles mall.”

  5. Millennium challenged reliance on Ms Sarkis’ time estimate contending that she was working in a busy area and was not able to precisely and accurately recall the sequence of events in relation to the time period between when the elderly gentlemen reported the spillage to her and when she observed the Plaintiff had fallen. [91] Ms Sarkis conceded that she did not have the means to check the time. [92]

    91. T 149.20.

    92. T 147.13-.35.

  6. Millennium relied on other parts of Ms Sarkis’ evidence to establish that the spillage occurred after Mr Namrood’s last WAND reading and prior to the Plaintiff’s fall. Ms Sarkis stated that after being advised of the spillage she didn’t notice any shopping centre cleaner and if they had been there she would have noticed them. The majority of the questioning relating to observing cleaners after the spillage related to any cleaners from Coles attending to clean up the spill. When challenged as to her observations in cross examination she stated “I will notice like if someone come and clean, I will notice that.” When she was later questioned as to observing shopping centre cleaners come past in the 20 to 25 minute period after being advised of the spillage she stated “Definitely if someone come and clean that area I will definitely see them.” That is to be contrasted to an observation of seeing a cleaner routinely passing and not cleaning the area. In the circumstances, I see no inconsistency in Ms Sarkis’ evidence in not seeing anyone come past and clean the area in the time that elapsed after being notified of the spillage and Millennium’s cleaners passing and failing to observe the spillage. Ms Sarkis in chief conceded that there were times where Centre cleaners would be far from her area and across her view. [93]

    93. T 154.39-.49.

  7. Millennium submitted whether having inspected the area at 11:55am, Mr Namrood committed a casual act of negligence in not detecting and cleaning up the spillage requires a finding on the balance of probabilities that the spillage was present at the time of the inspection at 11:55am. In this respect, it claimed that the Plaintiff had not discharged his onus of proof. This was because where the competing possibilities are of equal likelihood or choice between them can only be resolved by conjecture such that the allegation is not proved. Secondly, where there is no direct proof as to what occurred, conflicting inferences of equal degrees of probability are not sufficient to discharge the onus of proof and thirdly, a finding on the balance of probabilities involves a finding of a probability greater than 50 per cent. It was submitted whether or not a Court is so satisfied will depend upon the whole of the evidence.

  8. Coles submitted that the WAND reports revealed:

  1. It was some 18 and a half minutes before this incident that a cleaner last passed by the WAND point nearest to the incident; or

  2. The cleaner passed WAND point at 03 at 12:13.44 only moments before the fall, and missed the spill altogether. Coles noted that the cleaner was not seen in the CCTV in the minute or so after the fall, and there was no evidence suggesting Centre staff appeared soon afterwards. [94]

    94. Coles’ written submissions at [15].

  1. I accept Mrs Sarkis’ evidence. In my view, she sought to give an accurate account that acknowledged what she perceived was a failure to remove the contaminant. Though providing a time range it was accompanied by a description that there was a long time interval. That description is also consistent with her reaction to the fall after she was advised of it.

  2. Applying probabilistic reasoning consistent with Strong v Woolworths [2021] HCA 5; (2012) 246 CLR 182 at [34], I accept that it is more probable than not that Ms Sarkis had been advised of the spillage by 11:54am. Accepting that Mr Namrood passed WAND station 02 at 11:55.22 he did not notice it. To the extent the spillage could have been observed at the entrance at Ware Street being station 03, cleaner 5064 passed it at 12:13:44 and there is no evidence of any observation.

Detection

  1. Millennium questioned whether assuming there was a 10cm spillage which was clear and which, at least according to the Plaintiff, couldn’t be readily seen, its failure to detect was negligent involving a departure from the exercise of reasonable care. Millennium contended that to do so would impose an undue burden on cleaners generally. Reliance was placed upon the finding in Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 at [128]. Millennium submitted that although the evidence in that case didn’t permit a precise finding as to the quantity of the spillage, it can be readily assumed and inferred that it was greater than the amount involved in the instant case of 10cm.

  2. The Plaintiff and Coles both accepted that the evidence did not suggest that the spill was particularly difficult to discern such that the failure to observe it might not amount to negligence. [95]

    95. Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 at [129].

  3. Argo was a case where a cleaner was held not to be negligent in failing to detect what was found on appeal to be a “wet patch extending over a small area” on a terrazzo floor which was difficult to detect because of the design of that floor. The liquid was water. Further, the Plaintiff there failed to adduce evidence that a reasonably diligent cleaner should have detected the wet patch and removed it.

  4. I do not accept that the spillage would not have been observable to a reasonable cleaner performing duties on the occasion in question. That submission was disavowed by Coles and photos of the spillage attached to the incident report clearly show its presence. It was described in the evidence as comprising either of a soap based product or fabric softener. [96] Moreover, it was such that the elderly gentleman was able to bring its presence to the attention of Coles’ staff.

System of Inspection and Cleaning

96. Exhibit AB, p1106.

  1. The second basis on which the Plaintiff advanced its case was a failure by Millennium to implement the system of inspection and cleaning from 11:55:22.

  2. The Plaintiff noted that Mr Namrood gave some evidence of a system of patrolling for rubbish and spillages in the common areas of the Centre. There was no documentation or evidence from a supervisor or manager stating what system was to clean up spillages or other rubbish that could be productive of a slip and fall. [97] It is accepted that there was no evidence that Millennium was informed of the materialisation of the risk of harm and Mr Namrood himself could not remember the day and Millennium had no incident report. Business records of Millennium indicate Mr Namrood was on duty at the relevant time although it was not clear whether or not he was on a break and whether anyone took over from him.

    97. Plaintiff’s written submissions at [49].

  3. There is evidence that Mr Namrood had a 40 minute lunch break although the time of it was not recorded. [98] Mr Namrood gave oral evidence that he didn’t have a lunch break until 2:30pm. That may be correct as the WAND readings indicate that Mr Namrood left the entrance of Ware Street at 14:29.29 and re-registered at 15:10.21 at the same entrance.

    98. Exhibit AE, p1188.

  4. In any event, the Plaintiff drew attention that the other cleaner on duty was not called notwithstanding the Plaintiff was on the ground before the ambulance arrived for about 40 minutes. [99]

    99. Plaintiff’s written submissions at [51].

  5. Based on the WAND readings, the Plaintiff submitted that Millennium had a system of inspection in the area where the accident occurred that involved inspections on an average between 7 and 15 minutes or on average something like 10 minutes; however in this instance there had been no inspection in the area for 44 minutes between 11:55 and 12:39. [100]

    100. T 305.28-.49.

  6. Millennium submitted that Mr Namrood inspected the area where the spillage occurred at 11:55am and having regard to the evidence given by Mr Keryo that was within 20 minutes of the Plaintiff’s fall. [101] It was argued that this was consistent with the evidence of Mr Namrood that he inspected the areas, at most, every 20 minutes. [102]

    101. See Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 at [38].

    102. T 224.50-225.3.

  7. Millennium nonetheless accepted that the WAND records for 16 October 2018 demonstrated that the system of inspection, including the area in question, was for inspections to be carried out less than every 20 minutes and, indeed, significantly less. [103] Millennium accepted that the WAND reports indicated that on average, locations were inspected under ten minutes. [104]

    103. Exhibit AD, p1148-1184.

    104. T 254.1-.5

  8. However, Millennium relied on the evidence of Mr Namrood that occasionally it was up to 20 minutes because he had to attend to the toilets. Mr Namrood’s evidence was that occasionally the inspection was every 15 to 20 minutes. To the extent that Strong v Woolworths found a reasonable system of inspection was every 20 minutes, Millennium accepted that judgments are authority for propositions of law not fact. [105] Millennium accepted that the actual inquiry is as to the outside parameter of a reasonable system of cleaning and inspection. [106]

    105. T 253.31-.47 and Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65 at [81].

    106. T 260.10-.11.

  9. Coles pointed out that Millennium’s WAND reports reveal that its cleaners could and generally did conduct rotations through the area in something in the order of roughly every 5 to 10 minutes. [107]

    107. Exhibit AD, p1172 and 1175.

  10. Coles submitted that on the balance of probabilities, if this was the same spill it appears likely it was in place for longer than 18 minutes suggesting that either way the relevant cleaner negligently failed to observe or to attend to the spill and possibly twice.

  11. Coles submitted that if the liquid on which the Plaintiff slipped was the same spill reported by the customer to Ms Sarkis and if she was correct in her time estimate between the spill being reported and observing Plaintiff on the floor outside the store, then applying probabilistic reasoning in the manner explained in Strong v Woolworths, the risk of harm existed for a unreasonable period of time and on the balance of probabilities the implementation of an adequate system would have prevented the injury.

  12. Coles submitted that on the balance of probabilities, Millennium’s employees negligently failed to detect and address the spill and, in any event, failed to conduct rotations in that area within a reasonable time, of say 10-15 minutes, and had they done so competently the accident likely would have been avoided.

  13. Whatever may have been the experience of Mr Namrood, the task he performed was shared such that it could not be assumed that in attending to the toilets it was envisaged that the area would not be inspected by the co-worker. The WAND identifiers 5064 and 5267 in fact attended WAND stations 03 and 02 during Mr Namrood’s absence although there were no visits to station 02 for between 11:55:22 and 12:18:14 and at station 03 between 11: 55:58 and 12:13:44. [108] This was a busy shopping centre as is evident from Exhibit AQ, the evidence of Ms Sarkis and the contents of the incident report.

    108. Exhibit AD.

  14. On the evidence, I accept the submission of the Plaintiff and Coles that the system adopted by Millennium embraced inspection at each WAND station of up to 15 minutes apart and further that such a system was reasonable.

  15. I accept that the evidence supports a failure to detect the spillage either in the inspections that were undertaken or the implementation of Millennium’s system of inspection after 11:55:22 and prior to the Plaintiff’s fall. Accepting these findings, consideration turns to the precautions identified by the Plaintiff that a reasonable person in Millennium’s position ought to have taken for the purposes of s 5B(1) of the 2002 Act.

  16. Effectively, these were to detect the spillage and attend to its removal and failure to implement a reasonable system of cleaning and inspection. I accept that the probability that harm would occur if care were not taken was high and the likely seriousness of the harm was also high. I do not accept Millennium’s submission that there was difficulty in detection of the spillage. The burden of the precaution was minimal and no question of social utility arises. It follows that having regard to the matters is s 5B(2) of the 2002 Act, I am satisfied within the terms of s 5B(1)(c) of the 2002 Act that a reasonable person in Millennium’s position would have taken the precautions identified.

  17. Coles submitted that the only reasonable basis which could be advanced for a finding of a breach of duty of care on the part of Coles was evidence of Ms Sarkis. Bearing in mind Ms Sarkis recalled a message being relayed on the Coles PA system it cannot be determined what, if anything was done on Ms Sarkis’ evidence alone.

  18. Coles argued that it was possible that Coles did take some further step or precaution in satisfactory discharge of its duty. It accepted that such evidence would be within its control and it carried the evidentiary burden. However, the weight attributed to that must be considered in light of the fact that there would not appear to have been any reason for Coles to go looking for such evidence until well after the event and the probability of such evidence in those circumstances must be accepted as remote.

  19. Coles argued the reasonable precaution that should have been taken (accepting Ms Sarkis’ evidence) was doing what she did.

  20. The Plaintiff pointed to evidence that Ms Sarkis did nothing other than ask the elderly gentleman to approach the service desk. Ms Sarkis saw the approach and heard the loudspeaker announcement and thereafter no signs were placed, no cleaners from Coles or the shopping centre arrived and 20 to 25 minutes later the Plaintiff fell. It noted that there was no evidence called by Coles that the area was out of their responsibility and no evidence that someone from Coles rang Millennium’s cleaners to attend to the spill.

  21. Coles’ submissions as to there being no reason to look for evidence until well after the event cannot be accepted. There is correspondence that it was aware of the potential claim by the Plaintiff at least from 5 November 2018. [109] Moreover, Arrow Insurance Adjusting were engaged to investigate the claim reporting on 4 November 2019. [110] There is nothing to suggest that there was a second spillage in the area subsequent to that reported to Ms Sarkis. Nor is there any evidence of anything being done by Coles apart from referral of the elderly gentleman to customer service and the call on the Coles PA system to its cleaners.

    109. Exhibit AM, p1460.

    110. Exhibit AM, p1454.

  22. Again, the probability that harm would occur if care were not taken and the likely seriousness of the harm were both high. The burden of taking precautions to place signage to warn of the spillage, and to respond either by cleaning up the spillage or calling Millennium’s cleaners after being informed of it was hardly burdensome. No question of social utility arises. Accordingly, having regard to the matters in s 5B(2) of the 2002 Act, I am satisfied that within the terms of s 5B(1)(c) of the 2002 Act that a reasonable person in CoIes’ position would have taken those precautions particularly bearing in mind the location of the spillage. It follows that breach has been established.

Causation

  1. Causation is to be determined in accordance with s 5D of the 2002 Act requiring both factual and scope of liability causation to be established.

  2. Millennium conceded that if breach of duty in relation to the casual act of negligence is found then causation would follow as the spillage would have been removed. It made such admission in relation to the breach of system case.

  3. Coles and the Plaintiff submitted that in either case involving Millennium causation pursuant to s 5D of the 2002 Act would be established. [111]

    111. Plaintiff’s submissions at T 306.44-307.8; Coles’ written submissions at [18].

  4. I accept that but for the failure to properly inspect and remove the spillage and but for the failure to implement the described system of regular inspection and cleaning the Plaintiff’s fall would not have occurred. It follows causation has been established.

  5. In terms of its liability, Coles submitted that in terms of causation it was unclear what would have happened had Coles taken some other precautions and factual causation under s 5D of the 2002 Act is not established. I do not accept this submission which appears to be at variance with what was stated by the plurality in Strong v Woolworths at [20].

Under the statute, factual causation requires proof that the defendant's negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant's negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(a). In such a case, the defendant's conduct may be described as contributing to the occurrence of the harm. (footnotes omitted)

  1. Coles further submitted that liability under s 5D(1)(b) of the 2002 Act should not extend to the Plaintiff’s injury when other parties, Centre management and Millennium were directly responsible for considering and addressing precisely this risk of harm at this place.

  2. Coles did not elaborate on this submission which overlooks its own duty of care and the principles discussed in Wallace v Kam (2013) 250 CLR 375 at [24]-[26]. Moreover, in the somewhat analogous factual circumstance in Strong v Woolworths the Defendant was held liable for spillage in a sidewalk sales area outside of it store with the scope of liability determination held to present little difficulty. [112]

    112. Strong v Woolworths (2012) 246 CLR 182 at [19].

  3. In each instance, I am satisfied of factual and the scope of liability causation within the terms of section 5D of the 2002 Act is established.

Apportionment

  1. Millennium submitted that this should be 90% to Coles and 10% to Millennium as Coles had actual notice of the spillage and failed to take any step to remove the hazard. On the other hand, even if there was casual negligence by Mr Namrood in failing to detect the 10cm spillage, he had no actual notice of it and the system devised and implemented did not involve a departure from the exercise of reasonable care.

  2. Coles submitted that Millennium’s employees failed to detect and address the spill and failed to conduct rotations within a reasonable time for say 10 to 15 minutes. It was a busy shopping Centre with a floor surface with a high risk of slipping when wet that if both Defendants were liable then having regard to their relative responsibilities for risk of harm at this place; an appropriate apportionment should be 25% to Coles and 75% to Millennium.

  3. Section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 provides that contribution can be recovered from joint tortfeasors to such extent "as may be found by the court to be just and equitable" and even to the extent of a complete indemnity. This requires the Court to "evaluate comparatively the degree of each party's departure from the standard of care of the reasonable man": Watt v Bretag (1982) 41 ALR 597; (1982) 56 ALJR 760 at 761.

  4. Millennium had primary responsibility for the common area, dedicated staff responsible, engaged in casual negligence and a failure to conduct rotations within a reasonable time. Coles had had actual knowledge of the spillage, and did nothing to warn customers of it, failed to remove the contaminant or contact centre management notwithstanding the area’s proximity to the entrance to the store. Nevertheless, I am of the view that Millennium’s responsibility is relatively greater bearing in mind the significance of the matters I have referred to.

  5. Overall, I would find Millennium 60% responsible and Coles 40%.

DAMAGES

Treatment following Motor Accident

  1. Following the accident, the Plaintiff described that he had pain in his neck, shoulders and could not feel his feet as they were numb. He stated that his legs were shaking and he never experienced these feelings before. [113] After exchanging particulars with Mr Sun, the Plaintiff described driving home and not going to the quotation job that he was travelling to and feeling uncomfortable as well as a bit of pain as well. Specifically, he described not being able to place his right leg on the accelerator or brake and used his left foot instead. [114] When he got home, he stated that he felt mostly pain in the neck and back a little and then sat down and took some Panadol. [115] The following day, the Plaintiff said that he felt a little bit worse. [116] He still experienced pain and numbness and shaking in the same areas and rubbed deep heat on his neck. He could not recall if he went to work that day. [117]

    113. T 20.46-.48.

    114. T 22.22-.38.

    115. T 22.43-.50.

    116. T 23.5-.6.

    117. T 23.27.

  2. On 3 August 2017, the Plaintiff came to see Dr Nasser Hanna complaining of a sore neck with pain. He was prescribed Panadeine Forte and Augmentin Duo Forte and referred for an x-ray. The Plaintiff described that this was the first medical help that he sought after the accident. [118] He stated that he never thought that it would be that bad.

    118. T 23.40-.44.

  3. A cervical x-ray was carried out on 3 August 2017 which was reported on by Dr Christopher Jones as follows:

CERVICAL SPINE X-RAY

Clinical notes:

Neck pain. Injured two weeks ago.

Still sore.

Findings:

No acute fracture, vertebral body compression or significant malalignment is evident. Facet joint alignment and appearances are normal.

At the posterior margin of the T1 spinous process, there is a small corticated/ longstanding bone density, possibly associated with prior fracture.

There is mild diffuse endplate osteophytic lipping in the mid and lower cervical spine, greatest at C5/6. Disc spaces are generally well maintained, only mildly reduced at C6/7.

There is normal atlanto-axial alignment.

On the left side, there is moderate bony foraminal stenosis at the C7 nerve root exit canal with potential for nerve root compromise.

The other left foramen do not show significant bony stenosis.

There is no significant right bony foraminal stenonsis and only minor encroachment at the C7 level. [119]

  1. I would allow items 242-243 for Dr Darwish, item 244 for Dr Pillay, item 245 for Dr Gupta, items 248-261 for Dr Mohammad, items 268-271 for Mr Caballero (physiotherapist), item 272 for Dr Nasibi being satisfied that they are all reasonable and necessary and causally related. I would not allow item 273 for Dr Gacs being not satisfied that it is causally related and reasonable and necessary.

  2. In respect of Mr Khairallah, physiotherapist items 273 and 274 are allowed as agreed. As there is no evidence of the remaining consultations and no evidence that they are agreed arithmetically I would not allow items 275-293.

  3. With respect to medication, the Plaintiff gave unchallenged evidence that he took no additional medication to that taken prior to the slip and fall. In those circumstances and noting my other finding, the Defendant Mr Sun should bear the cost of the medications I would allow all pharmaceuticals claimed except those for incontinence pads, zinc cream (item 387) antibiotic cream (item 397) Viagra (item 418) Vesicare (item 434), and Elastoplast (item446) being not satisfied that they are casually related. I would also not allow the stick (441) being not satisfied that it has been established that it is reasonable and necessary.

Future Treatment

  1. The Plaintiff had particularised a claim for future out of pocket expenses of $74,682.98 of future GP and specialist appointments as well as medication and a contingency for surgery and psychiatric and psychological care. No claim was made for physiotherapy or occupational therapy despite the report of Ms Crezana and Dr Arnold recommending it. Ultimately, the Plaintiff advanced a claim for a buffer of $35,000. Counsel for the Defendant Mr Sun submitted that there should be a nil allowance for future out of pocket expenses.

  2. Dr Darveniza opined that apart from medications and physiotherapy, he did not think any other treatments would be helpful although an orthopaedic surgeon recommended operative intervention to the right shoulder. [351] Dr Bodel estimated the cost of future surgery to be $10,000 to $12,000 if required [352] although he did not see a need for surgery. The Plaintiff expressed no desire to undertake any surgery. Dr Keller also was of the view that injuries did not require current or future treatment or paid assistance.

    351. Exhibit L, p381.

    352. Exhibit K, p363.

  3. Dr Teoh indicated that the Plaintiff would require ongoing treatment of the psychologist every 6 months and a psychiatrist every 2 months for 12 months. He would also need to be on medication for two years. The cost of the psychologist would be $250 per session and the psychiatrist would be $350 per session this would come to a figure of $2600.

  4. In the motor vehicle accident matter, I am of the view that an allowance should be made for GP visits, medication and the treatment recommended by Dr Teoh. Doing the best I can, I would allow a buffer of $12,000 in respect of future out of pocket expenses arising out of the motor vehicle accident.

  5. In respect of the slip and fall accident, the Plaintiff claimed $5,000 for future out of pocket expenses. No substantive submissions were furnished to support this. Millennium and Coles submitted that no award should be made and that any further treatment the Plaintiff requires would have been required in any event as a result of the motor vehicle accident. Consistent with earlier expressed findings as to the effect of the slip and fall, there should be no allowance for future out of pocket expenses in respect of this accident

ORDERS:

  1. For these reasons I would order:

  1. There will be a verdict and judgment in favour of the Plaintiff against the Defendant in matter 2019/00373897 in a sum to be calculated.

  2. The parties are to confer and advise as to any agreed credits in favour of the Defendant (Mr Sun) in 2019/00373897 for payments made pursuant to s 83 and 84 A (3) of the 1999 Act.

  3. There will be a verdict and judgment in favour of the Plaintiff against the Second Defendant (Millennium) and Third Defendant (Coles) in matter 2019/162594 in the sum of $845.05.

  4. There will be a verdict and judgment in favour of the Cross Claimant (Millennium) against the Cross Defendant (Coles) on the First Cross Claim in the sum of $338.02.

  5. There will be a verdict and judgment in favour of the Cross Claimant (Coles) against the Cross Defendant (Millennium) on the Second Cross Claim in the sum of $507.03.

  6. I defer entry of final orders to enable the parties to confer, check calculations, with a view to presenting proposed Consent Orders that accord with this judgment and any agreement as to costs within 14 days.

  7. Parties have liberty to lodge with my Associate in Chambers any agreed Consent Order.

  8. In the event of any disagreement, the parties are to:

  1. Approach my Associate with a view to relist the matter for further argument as to proposed final orders within 14 days.

  2. Submit to my Associate within the period referred to in (8)(a) their proposed orders, and any documents and written submissions proposed to be relied upon.

**********

Endnotes

Amendments

04 March 2022 - corrected paragraph numbering and orientation of image.

Decision last updated: 04 March 2022

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Statutory Material Cited

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Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176
Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419
Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419