Cairns v Woolworths Limited

ELIZABETH CAIRNS v WOOLWORTHS LTD T/AS BIG W AND ORS
[2005] ACTSC 95 (30 September 2005)

NEGLIGENCE – personal injury – liability of employer – failure to provide safe system of work.
NEGLIGENCE – personal injury – shopping centre slip and fall – adequacy of cleaning system – liability of occupier – liability of cleaning contractor.
DAMAGES – personal injury – consecutive injuries caused by negligence of unrelated defendants – approach to assessment.
DAMAGES – personal injury – lumbar spine – tear to annulus of disc – psychological consequences – prospects of future employment – no question of principle.

Law Reform (Miscellaneous Provisions) Act 1955

Civil Law (Wrongs) Act 2002, s21

Brady v Girvan Bros Pty Ltd (t/a Minto Mall) (1986) 7 NSWLR 241

Kelly v Lend Lease Retail Pty Ltd (1993) 113 FLR 21

Kocis v SE Dickens Pty Ltd (t/a Coles New World Supermarket) [1998] 3 VR 408

Allcorp Cleaning Services Pty Ltd v Fairweather & Anor [1998] NSWSC 291
Mercouris v Westfield Shopping Centre Management Company Pty Ltd [2000] NSWCA 79
State Government Insurance Commission v Oakley (1990) Aust Torts Reports 81-003

No. SC 261 of 2000

Judge: Master Harper
Supreme Court of the ACT

Date: 30 September 2005

IN THE SUPREME COURT OF THE       )
  )          No. SC 261 of 2000
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:ELIZABETH CAIRNS
Plaintiff

AND:WOOLWORTHS LTD t/as BIG W
First Defendant

AND:PERPETUAL TRUSTEE CO LIMITED
Second Defendant

AND:LEND LEASE PROPERTY MANAGEMENT AUSTRALIA PTY LIMITED
Third Defendant

AND:DELI PLANET PTY LIMITED
Fourth Defendant

AND:SSL SUPPORT SERVICES PTY LTD
Third Party

ORDER

Judge:  Master Harper
Date:  30 September 2005
Place:  Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff against the first defendant in the sum of $36,000.00.

Judgment be entered for the plaintiff against the third defendant in the sum of $512,000.00.

Judgment be entered for the third defendant against the third party in the sum of $170,667.00

Judgment be entered for the fourth defendant.

Introduction

The plaintiff brings in this action two separate claims for damages for personal injury. The first is against her employer, the first defendant, and is for the most part a claim for injuries suffered by the plaintiff cumulatively over a period of years. The second claim is for injuries suffered by the plaintiff when she slipped and fell at Woden Plaza, a Canberra shopping centre. That claim is brought against the third defendant, effectively as occupier of the premises, and the fourth defendant as the retailer which more probably than not was the source of the spilt food on which the plaintiff slipped. The third defendant has joined the third party, a company which provided contract cleaning services for the shopping centre, asserting breach of the terms of the cleaning contract and also negligence. The third party claims indemnity or contribution from the fourth defendant. The first and third defendants plead contributory negligence against the plaintiff.

The plaintiff

The plaintiff was born on 26 October 1954 in Sydney where she was educated to Year 10. She married in 1973 and had four children, now aged between 20 and 30. She separated from her first husband in about 1984, and married her present husband in 1985. She is a little over five feet tall (about 150 cm) and weighs roughly 48 to 50 kg.

After leaving school at the age of 16, she worked in a number of positions in Sydney, taking some time off after the birth of each child. In 1983 she started work with Waltons, a department store, at Liverpool, as a sales assistant. She progressed to the position of secretary to the office manager and enjoyed the work.

Her second husband was an Army officer, and in 1985 he was posted to Canberra. The plaintiff moved with him, and a transfer was arranged to Waltons’ Canberra store in the Monaro Mall in Canberra City. She worked there as a sales assistant until, after some two or three years, Waltons was taken over by Venture. With Venture, the plaintiff became a customer service officer. In about 1988, Venture opened a store at Belconnen and the plaintiff went to that store in a similar capacity, being moved after some time to a position which involved ordering of stock.

The plaintiff’s husband was transferred to Townsville in late 1990, and the plaintiff accompanied him. They lived in Queensland for about two years. She returned to Canberra in 1992 and worked at the Venture store in Belconnen for almost a year until Venture went into liquidation. She then worked as a shop assistant in a toy shop until July 1995, when she started work with the first defendant, Big W, at Woden Plaza. Following a period of training she was employed as a service supervisor, responsible for checkout staff working at cash registers. Her recollection was that there were about thirty staff at Big W when she started there. Big W was, and remains, a medium-sized department store, the Woden store being one of many around Australia.

The plaintiff’s work at Big W

The plaintiff worked five days a week from 8 am to 3 pm. The store opened to the public at 8.30 am. One of the plaintiff’s morning tasks was to unlock two adjacent roller doors to the checkout area. This involved bending to floor level and pulling the doors up as high as she could. She used a pole to push each of the doors up to the fully open position. She would then remove a vertical metal bar between the doors. The doors were of latticed metal encased in translucent plastic. The plaintiff described them as very heavy and said that the process of opening them was quite strenuous. Sometimes they jammed and extra effort was required.

Another morning task was to push two large soft-drink machines from a position inside the roller doors out to the concourse. She found this very difficult and said that sometimes it took two people. She rarely asked for assistance but generally accepted it when offered. The soft-drink machines were metal and about 1.5 metres wide and 2 metres high. They were on metal castors, but needed to be bumped over metal strips on the floor at the base of the roller doors. Sometimes the wheels or castors got stuck in a groove between the strips and additional effort was needed to move the machine.

About nine months after the plaintiff started working at Big W, a change was made to the system in relation to the movement of cash from the cash register drawers at the end of the day, and back to the registers before the start of trading the following morning. At the end of the day, the cash register drawers were removed and taken to a secure room on a mezzanine floor within the store. They were moved from the cash registers to the foot of a staircase by trolley, and carried manually up the staircase to another trolley at the top, which was wheeled to the secure room to be locked in for the night. In the morning, the plaintiff was one of those responsible for bringing the drawers back down to the cash registers. The new system replaced an earlier, less physically arduous system. The change followed some incidents where it was suspected that cash had been stolen.

The new system required the plaintiff to go upstairs to the cash office, where the drawers were on a tall metal trolley consisting of four rectangular shelves on four castors. There were about thirty cash register drawers on the trolley, each containing cash in the form of notes and coins. The plaintiff would be let in by the cashier, and they would manoeuvre the trolley out the door. The trolley would then be pushed a distance estimated by the plaintiff at some fifty yards along corridors and around corners to the top of the staircase. This required two staff, one to push and the other to pull or steer. Particular effort was required to get the trolley moving from a stationary position.

The plaintiff and another staff member would then remove the trays from the trolley and carry them down the stairs and place them on another trolley. The plaintiff carried two or three tills down the stairs at a time. The stairs had a landing about halfway down where a change of direction was necessary. The plaintiff held the trays one on top of the other, with her arms straight out, bent at the elbows and palms facing up to support them. Her recollection was that there were at least twenty-five steps and that the weight was comparable to carrying a basket of washing. She could not see her feet because of the drawers and thus could not see where she was walking. Each morning, the plaintiff was required to go and up down the stairs at least four times to convey her share of the drawers from the top to the bottom.

She and the person accompanying her on the day would then push the trolley out through a set of plastic doors, down to the front end of the shop and around to the checkout area, where the registers were removed from the trolley and placed into the cash registers. Her recollection was that the surface of the floor on both the ground floor and the mezzanine floor was of vinyl tiles.

After a time the plaintiff noticed pains in her back associated with this activity, in the general area above the belt line on the right side. She first felt the pain a couple of months after the new system was introduced. Sometimes she experienced a sharp pain as soon as she started carrying the drawers. She put up with this for a few months. When she got home from work, she would lie down and take a Panadol if she felt it necessary. After a while the pain would go away. Weekends were pain-free.

The plaintiff began to complain to her supervisor and to occupational health and safety meetings at work about her pain, expressing the view that the system for carrying register drawers was unsafe. She did not receive any satisfactory response, and no change was made to the system. She saw her doctor and was prescribed anti-inflammatories, but found that these caused stomach upset. Her general practitioner advised her to stop carrying the trays for two or three weeks and see whether the pain disappeared. She told her superiors at Big W of this advice, which was put into effect. The plaintiff was also relieved of the duty of moving the soft-drink machines. After two or three weeks, the pain almost disappeared. The plaintiff’s recollection was that she continued to open the roller doors in the morning but that this did not cause any major problem.

The events of March 1998

On Tuesday 17 March 1998, the plaintiff finished work at 3 pm and left the Big W store, located on the upper level of Woden Plaza. She went down an escalator to the lower level en route to the exit closest to where she had parked her car. As she was walking through a common area of the Plaza, she slipped on some potato chips and fell awkwardly to the floor, one leg going forward and the other back. After a little time someone helped her to her feet. She felt embarrassed and shocked. Her lower back and wrists and ankles felt tender.

She fell at a point approximately level with a fire door separating two retail outlets on her left. She had just walked past a chemist, and was approaching the Deli Planet, the premises of the fourth defendant. The glass counter of Deli Planet faced the walkway. She went over to the counter and spoke to a young girl who looked about 18. There was another woman behind the counter, aged about 50. She told them that she had just slipped over on some potato chips and asked whether someone could come out and clean them up before anyone else fell. The girl started out in response to the request but the older woman grabbed her arm and told her that the chips were nothing to do with them, and that she was not to go. The plaintiff then went back to where the chips were and scooped them with her shoe back over towards the fire door between the chemist and the Deli Planet.

The plaintiff did not see the chips on the floor before her fall. After she was helped to her feet, she turned around to see what she had slipped on, and saw squashed potato chips, and also some intact potato chips, about half a dozen in all. She described them as standard thick potato chips, as distinct from crinkled chips and thin McDonalds-style chips. The plaintiff then drove home. Her evidence was that she telephoned Woden Plaza to report the incident, probably at about 4 pm on the same day. Her recollection was that she spoke to a man who took her name and other details, and said that he would put a report in about the matter. The plaintiff was still upset and sore, and spent the afternoon resting.

On the afternoon of the fall, the plaintiff had asked for permission to leave early so that she could collect her daughter from school. Permission was refused, although the arrangement had previously been approved and the plaintiff had been leaving early over the preceding few days. This upset the plaintiff, who was concerned that she would not be at the school when her daughter came out at 3 pm. The plaintiff was not permitted to leave until 3 pm, and had to go upstairs and get her bag, so that it was about 3.10 pm when she was leaving the Plaza and fell. By this time she was running a little late and had no means of contacting her daughter. She agreed that she was upset but denied that she was hurrying or walking at other then a normal pace, and she denied that the incident had any effect on her concentration or attention as she walked. In a statement which she made in August 1998 she said that she had been pre-occupied with not being able to leave earlier and upset by the way she had been spoken to her by her superior. She agreed in evidence that the statement was accurate in this regard.

The next morning she was stiff but went to work. She reported the fall to a superior who told her that the fall had nothing to do with Big W because it had happened on her way home. She spoke later to the Big W administration manager who said that this was incorrect and that she was required to fill out an accident report form. She did so a couple of days later. She continued to work for the rest of the week, although her back, wrists, ankles and neck were stiff.

On the following Monday, 23 March 1998, she went to work and started her day in the normal manner. As it turned out, there was only one staff member, a lady a little older than the plaintiff, on hand to collect the cash register drawers and bring them downstairs. The plaintiff did not think this was fair, and she helped to carry the drawers downstairs. This caused pain in her back in the same area as before. Once they had got the drawers into place, they were instructed to clean the cash register areas completely, including the tops of the bars, the sides and the walls. They used a bucket of water with detergent and a cloth and scourer. They performed the cleaning operation in a standing position. At the end of the cleaning task, the plaintiff said that her back was so painful she was in tears. She was unable to keep working. The pain was so strong that, she said, it did not compare to any pain she had felt previously in her back. She went home immediately. On the following day, she saw her general practitioner at Calwell Medical Centre and was given a certificate and advised to take two weeks off work. She did not return to work for about a month. Her back was in constant pain. She could barely walk, and was unable to lift anything heavy. She was prescribed painkillers and anti-inflammatories. She required considerable assistance from her husband and her daughter with household duties.

The other evidence against Big W on liability

The plaintiff’s immediate supervisor, Yvonne Perron, was called in the plaintiff’s case. She started work with Big W at Woden Plaza in late 1994, and left in January 1998, about two months before the plaintiff’s fall. The plaintiff started at Big W after she did. Ms Perron originally worked in the office, but after a time transferred at her own request to a position as a checkout supervisor. She recalled the earlier system as to the contents of the cash registers at the end of the day, which involved taking money out of the cash register tills and placing it into canvas bags, which would be carried up to the cashier’s office. It would be brought back to the tills in the morning. She recalled that the system was changed to that described by the plaintiff. Ms Perron generally worked on the afternoon shift, so that she started later than the plaintiff and attended to the transfer of the cash register drawers from the trading floor to the cashier’s office on the mezzanine floor after closing time. She found the drawers or trays awkward and heavy to carry. Her evidence was that the trays were metal rather than plastic. A tray subsequently tendered on behalf of the first defendant had a plastic base with a hinged metal lid, though I was left in some doubt as to whether the trays in use in the years leading up to 1998 were of this construction.

Ms Perron said that at the end of the day, two or three staff members might be involved in moving the trolley from the checkout area to the foot of the stairs. She found the trolley extremely heavy, and estimated the distance it had to be moved at about 40 to 50 metres. It had to be pushed along corridors through the stationery and manchester departments, avoiding where necessary other staff who were stocking shelves. With two staff, one would push and the other would pull, and she said that the task imposed a lot of strain particularly on the staff member pulling the trolley. When it got to the stairs, Ms Perron would normally limit herself to two drawers at a time, occasionally carrying three if time was at a premium. She would then load the drawers on to the trolley at the top of the stairs and the trolley would be manoeuvred to the cashier’s office. This involved taking the trolley through at least three right angle turns, and a distance along the corridors, she thought, of about 18 metres.

In the mornings, when the task was performed in reverse order, there were sometimes cleaners with polishing machines and electric cords to be avoided. If the trolley encountered an obstacle, they would lose momentum and have to start it moving again: as she described it, to get a run on the trolley. In the mornings, there was often considerable time pressure to complete the task by 8.30 am when the store opened to the public. This sometimes meant having to carry more drawers at a time than she felt comfortable doing. She observed other staff members carrying what she thought were too many drawers, and she would warn them not to do it. Her rule was to carry a maximum of two drawers.

Ms Perron estimated that the staircase consisted of about 35 steps, with a landing towards the middle. She described the steps as slightly sloped or cambered forward. She expressed the view that the ideal system for moving the trolleys was to have two people at the front and two people at the back. Considerations of availability of staff meant that this ideal system was used only about half the time.

Ms Perron had some responsibilities within the organisation as to occupational health and safety, including the training of younger staff in lifting and carrying. In this role she attended occupational health and safety staff meetings on a regular basis. Her evidence was that after the introduction of the new system, she went to the administration manager, Mr Osborne, and said “Warwick, this system is not going to work. It is extremely dangerous and someone is going to have an accident”. Mr Osborne’s reply was “Well that’s the way the system is and that’s the way we are going to be doing it”. She also spoke on a number of occasions to Ms Sommers, her immediate superior, expressing the view that the system was ridiculous and was going to result in someone being injured. Ms Sommers said that it was Mr Osborne’s decision and that there was nothing she could do about it. Ms Perron also raised the issues at occupational health and safety meetings. She was told “We’ll look at it” but there was no change to the system.

On a few occasions Ms Perron was required to move the soft-drink machines. She said that they were very large and heavy, and difficult to manoeuvre over the metal strips on the floor in the doorways. The machines had to be moved only two or three metres, but had to be swung so that they ended up facing in the opposite direction. The plaintiff had complained to her about the difficulty in moving these machines, the plaintiff being of a slighter build than Ms Perron.

She had had numerous discussions with the plaintiff about the new cash drawer system. She had advised the plaintiff to ask the young men on the staff for assistance more often, but the plaintiff had explained that none of the young men were on the morning shift. She advised the plaintiff not to overdo it. The plaintiff said that she had to do what she had to do because she did not want to lose her job. The refusal of Big W management to change the system was one of the reasons Ms Perron eventually resigned.

Mr Jason Taylor, presently business service manager with Big W at Woden Plaza, was called on behalf of the first defendant. He started work with Big W at the end of November 1994 as a checkout operator. He was then a schoolboy in Year 10. He worked at weekends during term time, and on weekdays during school holidays. He continued this until finishing Year 12 in 1996, after which he stayed with Big W as a permanent employee, eventually rising to his present position. The plaintiff at the time of her fall was Mr Taylor’s direct supervisor. Mr Taylor produced the cash register drawer I have previously mentioned, which became an exhibit. He gave evidence that it was typical of the drawers used during the time he was a cashier.

His evidence was generally consistent with that of the plaintiff and Ms Perron as to the system of taking the cash register drawers upstairs at the end of the working day, and bringing them back down in the morning. He gave evidence of the number of notes and coins of each denomination which comprised the float in each cash register drawer. He had been requested, for the purpose of the case, to weigh a drawer with the standard float. His evidence was that the typical drawer with its float weighed between 3.4 and 4 kg.

In the evidence of the plaintiff and Ms Perron, a number of Big W staff were identified, including senior staff in managerial positions. None of these staff were called, nor was any explanation proffered for their absence. I draw the available inference that their evidence, in particular that of Mr Osborne and Ms Sommers, would not have assisted the first defendant’s case.

The evidence of the Lend Lease witnesses

Three members of the staff of the third defendant were called in the plaintiff’s case. No oral evidence was called on behalf of the third defendant.

Mr Gavin Kemp was between 1995 and 1999 employed by Lend Lease as property manager of the Woden Plaza shopping centre. By the time of the hearing he was employed by the Defence Housing Authority as its national development manager. He had been responsible for the day-to-day running and physical operation of the shopping centre, reporting to the centre manager. The latter was the most senior Lend Lease employee on site. Mr Kemp explained that Woden Plaza was at the time a very large shopping centre (it has since been extended and is even larger today). At the time, the gross floor area of the centre was some 47,000 square metres, and the centre was visited by eight to nine million people per year. The largest retail tenant, described as the anchor tenant, was David Jones, followed by Big W, with two large supermarket tenants, Franklins and Woolworths, then a mix of medium-sized tenancies down to small individual shops. There were two shopping levels, with administration offices on a third level. Big W was on the upper shopping level. The lower level consisted, to the west and north, predominantly of clothing retailers, and to the south, of food tenancies, including butchers, bakers, delicatessens, and outlets selling fruit and vegetables and fast food. As to food, he explained that there were basically two types of businesses: those which sold food to be taken away and cooked at home, and those which sold food which could be eaten on the premises. Some shops sold a combination of the two. The food area of the ground floor of the Plaza was known as Farmer’s Market, and this included what he described as the eatery – an area where fast food was sold, with tables and chairs where customers could sit and eat a snack or meal. Mr Kemp was familiar with the Deli Planet and knew its owner, Mr Dominic Pelle (it is common ground that the owner of the business was the fourth defendant and that Mr Pelle was a director).

Mr Kemp normally worked from 7.30 am to 6 pm on weekdays, and was rostered regularly to work on weekends during trading hours, alternating with other senior managers. The doors of the Plaza would open to the public at 7.30 am. Tenants were required to commence trading by 9 am, though many commenced earlier. It was Mr Kemp’s practice to walk through the entire centre as his first task every working day to check its physical condition. He would check the whole of the common areas, that is the areas open to customers, and also restricted areas such as service corridors and loading docks. He usually bought his lunch at Farmer’s Market and used this as an opportunity to walk through the common areas again in the middle of the day. He noted that there were always a couple of people working at Deli Planet, with increased staff at about lunchtime, about half a dozen serving behind the counter. Deli Planet sold delicatessen items such as cold meats. They also sold hot chips. Mr Kemp had bought chips there himself on occasions. His recollection was that Deli Planet packaged chips in a paper bag, heaped to the brim of the bag and above. This was contrary to the requirements of the Farmer’s Market rules, which were applicable to tenants in the food area by virtue of their leases. His evidence was that one of these requirements was that chips were to be sold either in a bucket or a bag, in each case placed inside a larger bag to prevent spillages.

Mr Kemp gave evidence that Lend Lease had an occupational health and safety committee which met regularly on a Friday morning and included all centre management staff. The meetings were held quarterly, and also included representatives of the company that provided support services to Lend Lease by contract, including cleaning services. This was the third party, then known as P&O Support Services Pty Limited. Mr Kemp attended the meetings but did not convene them. He described them as very important meetings and said that they generally occupied at least an hour. Their focus was the safety of the centre to the public. There was an agenda circulated prior to the meeting, and minutes were circulated soon after each meeting.

Mr Kemp was asked about his practice on those occasions when he observed infractions of the Farmer’s Market rules by tenants. He said that his practice was to speak to the person working in the relevant tenancy. For example, he mentioned a cooked food outlet, the Woden Fish Market, which sold fish and chips amongst other things. Chips would often fall on to the counter as they were served, and sometimes fell to the floor, and Mr Kemp would draw this to the attention of the person in charge at the time. Similarly, he had occasion from time to time to speak to the person in charge of the Kingsley’s Chicken outlet which sold chicken and chips, sometimes in a manner likely to result in chips being spilt on the floor.

He also spoke to staff at Deli Planet about their packaging. He observed that they were selling chips in a single bag, stacked too high. The person he normally spoke to at Deli Planet was Magda, an older lady. He said that Mr Pelle was very rarely present and he did not remember an occasion when he had spoken to him about chip packaging. Generally, Magda listened to what he had to say and gave the impression that she intended to comply with his requests.

As soon as he became aware that the plaintiff had fallen and injured herself, he caused a letter to be sent to Deli Planet, for Mr Pelle’s attention. In the letter, he stated that the plaintiff had reported that she had slipped on chips adjacent to the counter of the Deli Planet shop, and that she had informed Deli Planet who had cleaned the chips from the floor. He reminded Mr Pelle that is was a requirement of the Farmer’s Market rules that chips were to be served in a cup inside a bag, and noted that this had been raised with him in the past. The letter also referred to a requirement in the rules that the tenant must clean up spillages and must indemnify the centre against any claims. He suggested that Mr Pelle inform his public liability insurer of the incident in case the plaintiff decided to proceed with a claim for damages. He received no response to the letter. I should add that the letter did not in its terms request any response.

Mr Kemp was accompanied on his walks around the shopping centre each morning, by the facilities manager from P&O Support Services. He said that almost every morning he brought something to the attention of the facilities manager that he would like fixed. Some of these may have related to cleaning and other issues raised might have included broken items of furniture. He also met monthly with the facilities manager when they went through a report reviewing a number of topics in relation to which P&O had contractual obligations to Lend Lease. The reports would include any slip and fall incidents in the centre during the previous month. Additionally to this, Lend Lease convened a meeting of all centre management staff each Friday morning where issues relating to the operation of the shopping centre were discussed, including occupational health and safety issues as these arose. The focus was on the shopping centre and on taking action to prevent or minimise the risk of injury to the public. All staff were reminded to use their eyes when moving about the shopping centre to guard against any risks which others may not have noticed. New staff were put through an induction process which included explanations as to risk minimisation policy. Specifically, the instruction given to all shopping centre staff of Lend Lease and of P&O was to guard any spillage they came across, where possible placing a chair or similar item over it, and calling by two-way radio for a cleaner to clean the spillage up.

Where a customer or member of the public was injured, the procedure was for an incident report form to be completed and delivered to Mr Kemp for review the following morning. During Mr Kemp’s time with Lend Lease, insurance estimates for personal injury claims were reduced by about 50%, which he largely attributed to the risk management procedures he had overseen. He conceded, however, in cross-examination, that the number of reported incidents had increased during the same period.

Mr Kemp identified a number of senior management people employed by the third party with whom he had had dealings. His recollection was that the contract with the third party provided for remuneration of the order of $2,000,000 to $2,500,000 per annum, with cleaning by far the largest component of the services to be provided. His understanding of the obligations of the third party under the contract was that a cleaner was required to pass each point on the circuit through that cleaner’s zone at least every fifteen minutes.

Mr Kemp’s recollection was that in early 1998, there were seats in the open area outside Deli Planet, but not tables and chairs. He thought that there had been a bench seat and that there might have been two bench seats back to back in that area.

Richard Ziff was in March 1998 retail manager of Woden Plaza, employed by Lend Lease. He left the position in 2001 and by the time of the hearing was living in Sydney and working as a real estate consultant. Mr Ziff ceased employment with Lend Lease in 1996 or early 1997. His responsibility was for the relationship between Lend Lease as manager of the shopping centre and the individual retail tenants. Mr Ziff was at the same level as Mr Kemp: both reported to the shopping centre manager. They had offices in the administration area at the Plaza.

Mr Ziff had dealings with Deli Planet as a tenant through Mr Dominic Pelle. Mr Pelle was rarely in attendance at the shop. Mr Ziff normally worked from 8 am until 6 pm on weekdays, and also worked one weekend in four. He met regularly with retailers to check on their performance and was on the floor of the shopping centre every day. He went past the Deli Planet daily, and sometimes bought his lunch there. He recognised a number of employees at Deli Planet, but knew only one by name, a lady called Magda.

On the occasion when he had discussions with Mr Pelle, the topics would include presentation, training performance, compliance with core trading hours, and customer and staff parking.

Having been alerted to the issue by other staff, Mr Ziff noticed, probably early in 1998, that Deli Planet was not complying with the rules as to packaging of chips. He observed that chips were not being served in a cup inside a bigger bag as the rules required. He recalled that he was told about this at the first occupational health and safety meeting he attended. He was requested at the meeting to address the issue with the retailer, and he sent a letter to Mr Pelle which he followed with a discussion. It was Mr Ziff’s understanding that the Farmer’s Market rules about packaging formed part of the lease for each tenant. In respect of each tenant, three files were kept in the centre management office: a leasing file, an architectural file and a general correspondence file.

Mr Ziff spoke to Magda at the Deli Planet on a number of occasions, telling her that the packaging of Deli Planet’s chips was not in accordance with the rules. His recollection was that at occupational health and safety meetings, the packaging of chips was raised in relation to a number of tenants, Deli Planet being one. Deli Planet ceased to be a tenant at Woden Plaza some time during 1999. The issue of chip packaging was raised regularly at occupational health and safety meetings, and after each meeting Mr Ziff communicated with Mr Pelle. His recollection was that nothing changed. Deli Planet continued to serve chips in a single bag rather than a cup inside a paper bag as required. Mr Ziff kept file notes of these attendances. They were filed in a ring binder. He was unable to explain what might have become of the binder or of the centre management files in relation to Deli Planet. He expected that the latter would have been retained at the centre for some time and ultimately relocated to a secure storage area. His recollection was that when he started at Woden Plaza there were about 160 retail tenants. When he left, following extensions, there were about 220. There were a number of tenants selling hot chips in early 1998, including the Woden Fish Market, McDonalds, Kingsley Chicken and Deli Planet. Other outlets named Charlie’s Club Sandwich, Edelweiss and A La Turko may also have sold hot chips at that time. The leases to individual tenants were highly prescriptive, to the extent of spelling out the varieties of hot food which could be sold, and Mr Ziff agreed that no tenant would be permitted to sell hot chips unless this was specified in the lease.

The leases contained a formula whereby tenants agreed to pay, in addition to their base rent, a sum equal to a percentage of their gross sales beyond a set figure. The percentage varied depending on the nature of the business. This meant that increased sales by retailers had the capacity to increase the profitability of the shopping centre itself. The owner and the managers of the shopping centre wanted successful retailers to generate the maximum volume of sales of the goods they were permitted to sell under the terms of their leases.

Mr Ziff agreed that throughout his time at Woden Plaza there was a continuing problem of slip-and-fall incidents. He agreed that the problem pre-dated his employment with Lend Lease. The centre management from time to time had risk management meetings at which slip-and-fall incidents were discussed. They were associated with spillages of take-away coffee, milkshakes and soft drinks, hot chips and other foods. Mr Ziff confirmed that under the tenant leases, it was the responsibility of the lessor to keep the common areas clean, not that of the tenants.

Mr Ziff also agreed that the lease reserved the right to the lessor to make changes unilaterally to the items which could be sold by a particular tenant, so that, for example, a tenant could be prohibited from selling hot chips in the future, as a sanction for failing to comply with the Farmer’s Market rules as to packaging, provided that it could be shown to be in the interests of health and safety. To his knowledge, such action was never considered in relation to the tenants selling hot chips in non-compliant packaging, notwithstanding that the number of slip-and-fall incidents was increasing over the period leading up to the plaintiff’s fall. He agreed that there had been a risk associated with the sale of hot food and drinks, that there might be spillages and consequent injuries, but that this was a risk that the owners and the managers saw as one they were prepared to continue to take. He also agreed that if the hot food retailers were removed from the shopping centre, it would be less desirable as a place for people to visit, and that the risks associated with permitting the sale of hot food and drinks was simply a risk associated with doing business.

Mr Ziff agreed that typically people buy items such as chips and hamburgers and drinks to consume immediately, and that typically some sit down to do so and others walk around eating and drinking, moving from one area of the centre to another. It was not unusual to see a child walking around with a container of hot chips, nor was it unusual for chips to be dropped on the floor. It was a recognised risk to public safety that people in shopping centres walked around eating chips and other food, and drinking drinks, and that they dropped food or spilt liquid from time to time. There were bins around the centre, some open-topped and others with a sprung cover. Their height would cause a small child difficulty in putting rubbish into them. Occasionally Mr Ziff had observed rubbish spilt around bins.

Mr Ziff carried a two-way radio when he walked around the centre. He adopted the same procedure as Mr Kemp if he came across a spillage: he would place a chair or similar object over it and call for assistance from a cleaner. If feasible, he would pick it up and put it in a bin. All members of the Lend Lease staff and the cleaning staff had two-way radios on the same frequency.

The third Lend Lease employee to give evidence was Frank Morando. He had been with Lend Lease at Woden Plaza since 1984. He was originally responsible for maintenance. By about 1996, he had been promoted to property supervisor, and held this position at the time of the plaintiff’s fall. In August 1998, he ceased employment with Lend Lease and commenced employment with the third party, though his duties remained the same. By the time of the hearing he was operations manager with the third party for Woden Plaza. In the period leading up to March 1998, Mr Morando reported to the property manager, Mr Ziff, and was responsible for the mechanical and operational aspects of the shopping centre. He attended occupational health and safety meetings, which were held in the boardroom in the administration area. His own office was on the ground floor in a room near one of the loading docks.

Mr Morando’s evidence was that he had observed Deli Planet serving chips in cups rather than bags, though he conceded that his memory of events some six years earlier was less than perfect. He conceded that he was unaware of the precise requirements as to packaging of hot chips. He agreed that notations on copies of the minutes of some of the occupational health and safety meetings were in his handwriting. Refreshing his memory from one of these notes he agreed that he observed that, at some time following a risk management meeting on 22 April 1998, Deli Planet was still serving chips in foam cups.

Mr Morando’s evidence was that the procedure to be adopted when a staff member encountered a spillage was as described by Mr Kemp and Mr Ziff, and had been the same since he started at Woden Plaza in 1984. The procedure was adopted by all staff members from the centre manager down. Spillages were treated by Lend Lease as matters of very high priority. The importance of the procedure had been emphasised to Mr Morando from the day he started at Lend Lease.

Mr Morando, like Mr Ziff, agreed that customers purchased food and drinks within the Plaza to be consumed immediately, and that some sat down to eat and drink while others walked around the centre while doing so. He had seen people sharing their chips with their children on occasions, and he had seen small children walking around the Plaza with hot chips and other take-away food. He had seen people drop chips and other food from time to time. He had also come across spillages in circumstances where he had not seen the spillage occur.

Having previously given evidence that Deli Planet sold chips in a cup, Mr Morando agreed under cross-examination that on occasions they also sold chips in paper bags, that the paper bags were not filled to the top, and that the corners of the paper bags were folded and the ends twisted so that the bag was effectively closed off.

Copies of minutes of a number of the risk management committee meetings were in evidence. I accept that the minutes were prepared by Ms Fyfe, secretary to the centre manager, who acted as secretary to the committee, and that they were circulated to committee members within a couple of days of each meeting. I accept that the minutes are in general terms an accurate record of each of the meetings.

The first minutes relate to a meeting on Monday 25 March 1996. Mr Kemp, Mr Morando and Ms Fyfe were among those attending. The meeting accepted the minutes of the last meeting which had been held on 15 February 1996. Under business arising from the previous minutes, under the heading “Chip spillages”, it was resolved to send a standard memo to relevant retailers about packaging. Mr Kemp was to take responsibility for this. Under the heading “Accident/incidents this period”, the minutes record that incident reports were reviewed. Mr Morando was asked to speak to security staff to ensure that correct procedures for attendance at spillages were being followed. It was also noted that incident reporting procedure was now included as part of the induction for security staff. It was agreed that the next meeting was to be held on 2 May 1996.

In the event the May meeting was not held. The next meeting of the risk management committee was on 12 September 1996. Again Mr Kemp, Mr Morando and Ms Fyfe were in attendance. An item was recorded about water spillages from Woolworths’ flower shop. Chip spillages were again on the agenda: it was resolved that Mr Kemp was to send a standard memo to relevant retailers about packaging, to include the words “You must ensure that none of your goods spill or fall on to the common area but if they do, you must, as soon as possible, clean them up. If you do not, you will be in breach of your lease and must indemnify us against any claims that may be made against us.” Incident reports were again reviewed and it was noted that the bulk of the incidents were slips. The new facilities manager was directed to improve documentation of coverage by cleaners.

The next meeting of the risk management meeting took place on 30 October 1996. The minutes of that meeting have been lost. The following meeting was on 21 November 1996. Mr Kemp, Mr Morando and Ms Fyfe were again present. Under the heading “Chips spillages”, it was resolved that a standard memo was to be located and sent to relevant retailers about packaging. Mr Kemp was given responsibility for this task. It was agreed that the next meeting would be held on 12 December 1996, but again this did not eventuate. The next meeting was on 27 February 1997. Mr Ziff attended this meeting for the first time. Mr Kemp, Mr Morando and Ms Fyfe were also in attendance. Under the heading “Chips spillages”, the decision recorded was that the standard memo was to be located and sent to relevant retailers about packaging. Mr Kemp was to discuss this with the new centre manager, Mr Pheely, who also took over as chairman of the risk management committee. Incident reports were reviewed in relation to thirteen slips and falls since the last meeting.

The next meeting of the committee took place on 22 July 1997, with Mr Pheely in the chairs and Messrs Kemp, Ziff and Morando and Ms Fyfe present among others. The “Chip spillages” entry reads as follows:

Letter of OH&S acceptable standard packaging sent to relevant retailers by RZ. Response was very negative, due to additional costs. A letter confirming the standard will be sent again next week. RZ to convey feedback to MP.

Responsibility for action in relation to this item was placed in the hands of Mr Ziff and Mr Morando. Since the last meeting there had been a further 21 slips and falls, and the incident reports of each of these were reviewed by the meeting.

There was no further meeting of the committee until after the plaintiff’s fall. The next meeting was on 22 April 1998. The persons previously mentioned were all in attendance. The minutes include the following entry:

Chip spillages. Although all standards have been communicated to the retailers by RZ, spillages continue to be a problem through packaging not meeting standards. All members to observe practices of retailers and report to RZ if inadequate so he can action. FM and JR to audit all relevant retailers.

It is common ground that RZ was Mr Ziff, FM was Mr Morando and JR was Mr John Roselier, an employee of the third party.

There had been a further fifty incidents reported during the nine months since the last meeting, though it is not clear how many of these were slips and falls. The point should also be made that at some time between those two meetings, a second shopping centre a few kilometres away, Coolemon Court, about one quarter the size of Woden Plaza, was sold. The numbers of incidents up to the sale included incidents at Coolemon Court.

At some time after the meeting of 22 April, Mr Morando wrote on his copy of the minutes “Deli Planet still serving in foam cups – and over-flowing as well – FM”. Mr Morando had no recollection as to when he made that notation, but was able to recall, having read it, that he carried out observations of relevant retailers after the meeting of 22 April as requested.

The evidence of the Deli Planet witnesses

Counsel for the fourth defendant called two Deli Planet employees. Magdolla Piroska Ando, known as Magda, was employed as manager of the Deli Planet at Woden Plaza from 1992 until it closed in 1999. She worked all week except Wednesdays. She was unaware of the plaintiff’s fall at the time, but recalled a phone call from a woman, presumably the plaintiff, who told her that she had fallen outside the shop. Ms Ando said that she had not been working on the day of the fall.

Asked about the manner in which Deli Planet sold hot chips, she said that the procedure was to sit a foam cup in a white paper bag, fill it with chips, and shake it, making sure that the chips did not reach the top or overflow. She never saw anyone serving chips at Deli Planet in any different manner. It had been her responsibility to train junior staff. Her evidence was that they always did what she wanted, and that she was in the front part of the shop at all times. She agreed that she would not always have seen every sale of chips to a customer by another staff member, and that there were times when the shop was busy. She had been instructed as to how chips should be served by her employer, Mr Dominic Pelle, whom she regarded as the owner of Deli Planet. She said that junior staff worked after 4.00 pm, and that only experienced staff were on duty at lunchtimes. There would generally have been three staff serving at the counter at lunchtime.

She agreed that during an earlier period, chips had been served in a foam cup. When she first started, chips had been served in small barbecued chicken bags which were silver-lined.

Ms Ando was definite in her evidence. I regarded this as reflective of her personality. Some witnesses give their evidence in a very definite manner whilst others are more tentative. Ms Ando was giving evidence about events six years and longer ago, without the benefit of contemporaneous notes or a statement made shortly afterwards, and I would be surprised if her recollection was totally reliable as to matters of detail. I have no doubt that she was doing her best to give her evidence honestly and truthfully, but I would not necessarily accept it in every detail.

Stasha Zoska was the other witness. Her recollection was that she had started with Deli Planet in about 1996. She worked three or four days a week, sometimes full days and sometimes half days. She was primarily involved in food preparation in the kitchen area of the shop, but also served customers at busy times. Her evidence was that chips were always sold at Deli Planet in a cup which was placed inside a bag, that the bag was never filled to the top, just the cup, so that the chips would not spill. Ms Zoska remained employed at Deli Planet at Woden Plaza until it closed in 1999. She was tested in cross-examination as to whether it was possible that junior staff might not always have complied with the standards of the business as to serving of chips. She was not prepared to countenance this, protesting that all staff always did what they were told in every respect. Ms Zoska agreed that from her position at the back of the shop, when involved in food preparation, she could not see what was happening at the counter. When she was called to the counter, she would come and help for perhaps five or ten minutes and would then return to the preparation area.

I did not find Ms Zoska’s evidence particularly helpful. Although there is no reason to suppose that she has had any relationship with Deli Planet since 1999, I found her refusal to concede that a junior staff member might have departed from the standard practice a little difficult to accept, and in any event, as she conceded, she spent most of her time at the back of the shop in the food preparation area, unable to see what was happening at the counter.

The evidence of the cleaning staff

Oral evidence was given by three cleaners employed by the third party at the time of the plaintiff’s fall. The first was Anne-Marie Heatherington. She worked with the third party from 1994 until about 2000. In March 1998 her responsibility was to clean the area of Woden Plaza designated as zone 3, and also the women’s toilets. She was also responsible for emptying the bins in zone 3. Zone 3 consisted of part of the ground floor of the Plaza, including the Farmer’s Market and the area near the Deli Planet where the plaintiff had her fall. Another cleaner was responsible for zone 4, the balance of the ground level. The other cleaner was male, and he was, in addition, responsible for cleaning the men’s toilets. Mrs Heatherington was not prescribed any particular route for patrolling her zone, but her understanding was that she was required to cover a circuit of the zone every 15 minutes. She was required to keep a written log recording times. She identified a copy of her log for zone 3 for the week commencing Monday, 16 March 1998. It appears that Ms Heatherington completed nine circuits on that day, the first commencing at 11.00 am and the last finishing at 3.30 pm. The times recorded are instructive, and suggest some misunderstanding between cleaning staff and those who negotiated the contract between the second defendant and the third party. The circuit times recorded for Monday, 16 March 1998 were as follows:

11.00 – 11.16

11.32 – 11.47

12.04 – 12.19

12.34 – (illegible)

1.08 – 1.23

1.41 – 2.00

2.13 – 2.29

2.43 – 2.58

3.14 – 3.30

Each entry is initialled by the plaintiff. There is a “delay” column. Four entries are completed in that column. One contains the word “bins” and the other “comp”. The witness could not remember what “comp” meant.

What is clear from the entries on the sheet is that each circuit took about 15 or 16 minutes, but that there were varying periods of time between circuits, generally themselves of the order of 15 minutes. Ms Heatherington’s evidence was that the sheet was affixed to the back of the door in a storage room which was effectively her base. Between circuits of the floor, she would attend to other tasks such as emptying the bins and taking their contents, in plastic liners, to large skips at the back of the building, and also cleaning the women’s toilets. She would go into the toilets at regular intervals and check to see whether they were clean. If they were not, she would go to the storage room, get a scrubbing brush and other cleaning equipment, and go back and clean the toilet in question. Once she had attended to those duties, she would commence the next circuit of the floor.

There is inevitably, within a company such as the third party, a considerable gulf between those at management level who negotiate multi-million dollar contracts for the supply of services, and the cleaning staff on the floor of the shopping centre who physically carry out those services. Whilst Ms Heatherington’s evidence was that it was her understanding that she was to conduct circuits every 15 minutes, it is clear from her evidence that she did not see the pattern which appears from her entries on Monday, 16 March 1998 as inconsistent with that understanding. In fact, however, it is clear that each circuit took about 15 minutes, and that there was about 15 minutes between the end of one circuit and the start of the next. This meant that, contrary to the expectations of the shopping centre management witnesses, a particular point within a zone would be passed by a cleaner approximately once every 30 minutes rather than every 15 minutes.

Monday, 16 March 1998 was Canberra Day, a public holiday, and it seems that Ms Heatherington worked a short day and did not take a lunch break. The next day, Tuesday, 17 March 1998, the witness worked a longer day. The circuit times for that day are recorded as follows:

9.37 – 9.52

10.05 – 10.21

10.34 – 10.47

10.58 – 11.14

11.31 – 11.45

12.01 – 12.16

12.32 – 12.43

12.57 – 1.13

1.28 – 1.41

2.00 – 2.14

2.32 – 2.43

3.19 – 3.34

3.50 – 4.04

4.18 – 4.32

4.48 – 5.01

5.15 – 5.30

Again, the pattern on 17 March is for circuits of about 15 minutes, with periods between circuits of about 15 minutes. There is a longer gap between the circuit which Ms Heatherington completed at 2.43 pm and the one she commenced at 3.19 pm. The former was an unusually fast circuit, eleven minutes. There is a gap between those two circuits with the notation “lunch”. The period between the completion of the pre-lunch circuit and the commencement of the next circuit is 36 minutes; the time between the commencement of the two circuits is 47 minutes and between their completion, 51 minutes. It can be inferred that the time lapse between Ms Heatherington passing a particular point within her zone at that time was about 50 minutes: that is to say, a spillage might, in theory, have remained undetected for that period. It will be recalled that the plaintiff’s evidence was that her fall occurred at about 3.10 pm on that day.

Ms Heatherington’s practice was to notify her supervisor by two-way radio when she intended to take her lunch break. She would wait for her supervisor’s okay, and would then go to lunch. She would take her radio with her. She usually walked somewhere away from her usual zone and ate a sandwich. She did not have any opportunity to observe her zone area until she came back from her lunch break. Her supervisor in March 1998 was Jako Pestrovski. The only other cleaner she saw from time to time during the course of her working day was attendant 4, that is the male cleaner allocated to zone 4, the other part of the ground floor of the shopping centre.

Ms Heatherington’s procedure, if she came across a spillage, was much the same as that of the Lend Lease witnesses. If she came across spilt chips or a soft drink, she would put a chair over the slippery area, pick up the chips and put them in the bin, go and get her mop and bucket, and come back and mop the greasy area. As she walked on her circuit, she had with her a large professional cleaning mop. She would scan the floor as she moved around. It was not her practice to sweep every square centimetre of the common area, but only those areas which required attention. The corridors were very wide in places. If she saw something over to the left, she would veer left with her mop and sweep that, and then continue down the corridor. From time to time, rubbish accumulated on the floor around bins, which she would need to clean up. She agreed that if she saw something which took her to one side of the corridor, requiring her to clear it up, this could mean that she might not pass a point on the other side of the corridor during that circuit and, particularly if there were bins or pot plants or benches in the way, she might not notice something on the floor on the other side of the corridor. She therefore might not come across a particular spillage until a subsequent circuit. Her usual path was not hard and fast, and depended on circumstances.

At times, Ms Heatherington said, she might be summonsed by two-way radio by her supervisor to go to some other point within the shopping centre, thus interrupting a circuit. When she cleaned toilets, it was necessary for her to complete details on another sheet which remained in the toilet area. No such sheets were in evidence. It seems inherently unlikely that any such sheets would have been retained for more than a few days.

Ms Heatherington was asked in cross-examination whether she knew Mr Ziff or Mr Kemp. She replied that she knew who both of them were, but that neither of them spoke to any of the cleaners.

She said that the property manager for the third party in March 1998 was Stuart McNab.

She agreed that the number of customers and members of the public in the common areas of the shopping centre grew as the day went on, peaking at lunchtime, between perhaps 12 noon and 1.30 pm. When there were a lot of people about, her task in performing her sweeping circuits became more difficult. She would alter her path to go around people. It was possible that a spillage or some rubbish on the floor might be hidden from her view by one or more members of the public standing or walking through the common areas.

There was some contention as to whether the day of the plaintiff’s fall was Tuesday, 17 March or Wednesday, 18 March 1998. Ms Heatherington, according to the log, worked a full day on the Wednesday, starting her first circuit at 9.36 am and her last at 5.19 pm. She finished a circuit before lunch at 2.57 pm, took her lunch break from 3.19 pm to 3.34 pm, and started her next circuit at 3.50 pm. There was thus a lapse of about an hour between the last circuit before lunch and the next circuit on that day.

The log then has entries for Thursday, 19 March, but only for the first two circuits of the day (9.15 – 9.31 and 9.47 – 10.01 am). I take it that the reason for this is that shortly after 10.00 am on the Thursday, Mr Kemp became aware of the report of the plaintiff’s fall and called for a copy of the sheet. I infer that the sheet was copied for Mr Kemp, and the original returned to Ms Heatherington’s store room, so that she could continue with her entries for the rest of the day. By the time those representing the parties directed their minds to the significance of the log, I infer that the original had been destroyed in accordance with normal practice, so that the only record available to the Court was Mr Kemp’s photocopy.

I infer from the log that if the plaintiff’s fall happened on the Tuesday, it happened about 30 or 35 minutes after the last time Ms Heatherington passed the point where she fell. If it happened on the Wednesday, it was probably 20 to 25 minutes since Ms Heatherington passed the point.

The next witness called on behalf of the third party was Tatiana Jevanoska. She was working as a cleaner at Woden Plaza in March 1998, and was still working in that employment at the time of the hearing. In March 1998 she generally worked from 11.00 am to 3.00 pm in the eatery area, cleaning tables. She also cleaned spillages from the floor, and, if she saw a spillage outside her area, she would call someone to clean it up, using her two-way radio. She thought that she would have been working in March 1998 and could not remember taking any holidays at that time. She was not sure whether or not she might have taken any days off. There were four cleaners working in the eatery area, and from time to time one of them might cover for another cleaner on the ground floor if requested to do so while the other cleaner was taking a break. Spillages in the eatery area were common, as was rubbish on the floor near bins.

Nada Zileska was also called by counsel for the third party. She was a cleaner at the Woden Plaza in March 1998, but not by the time of the hearing. She worked at that time in the Food Court between 12 noon and 3.00pm each day. Her evidence was consistent with that of Ms Heatherington and Ms Jevanoska. She had worked at the Plaza from September 1997 until the end of 2003. Neither Ms Jevanoska nor Ms Zileska was asked about the timing of their circuits. I infer that their evidence on this question would not have assisted the third party: that is, that their practice was similar to that of Ms Heatherington.

Contractual documentation between Lend Lease and its tenants

A copy of the sublease between the registered proprietor of the Plaza, Perpetual Trustee Company Limited, and the fourth defendant, Deli Planet Pty Limited, was in evidence. Perpetual was originally sued as second defendant, but during the course of the hearing I dismissed the plaintiff’s action against Perpetual by consent, and also dismissed by consent claims for contribution and indemnity between Perpetual and other parties. Perpetual thus effectively ceased to be a party. The lease commenced on 7 March 1993 and was for a term of six years, taking it beyond the date of the plaintiff’s accident and up to the time when Deli Planet ceased to trade at the Plaza. Clause 11.2 of the sublease obliged the lessor to keep the common areas of the shopping centre neat and tidy. Clause 15.6 deemed a set of rules and regulations set out in the third appendix to the sublease to form part of it, a failure by the lessee to observe the rules and regulations constituting a breach of the terms of the sublease itself. Clause 20 imposed a similar obligation on the lessee in relation to the Farmer’s Market rules which were set out in the fourth appendix. The first appendix to the sublease set out in considerable detail the manner in which the rent was to be calculated, by reference to the gross sales of the lessee’s business, as previously mentioned.

Rule 4 of the Centre, in the third appendix, provided that the lessee was not to throw or to permit to be thrown or dropped or to let fall any article or substance from or out of the shop or the common area. Rule 5 required the lessee to keep clean and free from dirt and rubbish such parts of the common area as immediately adjoined the shop premises. The premises were permitted to be used only for the sale of delicatessen items, smallgoods, local and imported cheese, cooked and fresh chickens and chicken pieces, cooked chips and bread. The sale of ice cream, soft drinks and sandwiches was specifically prohibited: clause 5.1, incorporating item 10 in the reference schedule to the sublease.

The sublease permitted the Centre rules and the Farmer’s Market rules to be amended by the lessor unilaterally. In March 1995, coinciding with the opening of a new Eatery, Mr Kemp notified tenants of a set of procedures which appear to have been accepted as being incorporated into the sublease. These included arrangements about delivery procedures, building security and access, and the provision of bins for use by tenants. The document included a statement that cleaning of spillages and shopfronts was the responsibility of tenants. Deli Planet was specifically mentioned as one of the Farmer’s Market tenancies to which the procedures were to apply.

In September 1996, a set of Centre rules was published to tenants, stated to be part of the lease, and I take it that these rules replaced those set out in the schedule to the original sublease. These were highly prescriptive. They required tenants, at their expense, to keep their premises and shopfront clean and to make sure that rubbish was removed regularly and placed in the Centre’s “facilities”.

The incident report and claim forms

There were copies of three forms in evidence, completed soon, or fairly soon, after the plaintiff’s fall. The first was a Big W form, which the plaintiff said that she completed a couple of days after the fall at the request of Mr Osborne, the Big W administration manager. In that form, the plaintiff recorded the time and date of the accident as about 3.10 pm on 18 March 1998. She noted that she had originally been told that she did not have to report the incident because it did not happen on Big W premises. Her description of the incident was:

Slipped on potato chips in Woden Plaza. Then on 24.3.98 I carried register drawers and money bags down the stairs and then did deep cleaning of register area and by lunchtime my back had me [in] tears through the pain. I finished my shift and went to the doctor’s.

The plaintiff completed the cause of incident item “potato chips on the floor causing slip and carrying heavy items”.

The second document was a three-page Lend Lease incident investigation form. The evidence does not enable me to find who completed it. The plaintiff’s evidence was that it was not in her handwriting. The form appears to have been completed on 18 March 1998, and gives the accident date as 17 March 1998. I admitted it into evidence over objection as a Lend Lease business record. The form gives the location of the incident as “in front of Deli Planet, lower ground floor” at Woden Plaza. The brief description reads “left leg slid backwards causing person to fall back and break her fall with left arm but caused pain in left shoulder as a result”. There is a description of the incident which appears to be in the plaintiff’s words, although not in her handwriting: “I was on my way home after finishing work, when I walked passed the Deli my leg slid backwards awkwardly and I fell back, breaking my fall with my arm. I still landed heavily.”.

The form continues “Liz Cairns did not inform any Woden Plaza staff until the next day. Liz asked Deli Planet staff if someone could clean the area. This was not reported to any floor attendant.”. The person completing the form then speculates “Mrs Cairns may have been in a hurry and not seen the chips on the floor.”. The following can also only be regarded as speculation: “A chip fell from the counter of Deli Planet onto the floor of Plaza in the corridor. This directly contributed to the incident.” Additional comments are completed as follows: “Mrs Cairns failed to inform Woden Plaza staff directly after the incident occurred. She informed us at approx 24 hours after the incident. The area could not be inspected as we were not notified of the incident occurring. Information about the incident was gathered over the phone at approx 16.06 on Wednesday 18.3.98 when Liz Cairns phoned to report the incident.” The incident investigation form was referred to Mr Kemp who read it and initialled it on 20 March 1998, being the Friday of that week.

The third form in evidence is a Woolworths Ltd Workcover Claim for Compensation form. This was completed and signed by Ms Summers, the plaintiff’s superior, on behalf of the employer, and by the plaintiff as worker. The plaintiff signed it on 23 April 1998 and Ms Summers on the following day. The plaintiff in this form gave the accident date as 18 March 1998. She described the injuries she suffered at the time of the fall as “pulled muscle in leg and hurt shoulder and muscle strain to back”. The affected body parts were said to be the back, leg and neck. Asked to give details of any prior injury or symptoms, the plaintiff wrote “sore lower back – was told by a doctor not to carry register drawers down the stairs for two weeks – after I did this the pain went”. She dated this earlier injury as November 1998, presumably meaning November 1997.

Ms Summers recorded the date of injury as Wednesday, 18 March 1998 at 3.10 pm, and the date of notice as 19 March 1998 at 7.30 am. This claim form was completed more than a month after the fall, and I do not find it of particular assistance in determining the date of the accident. It was Ms Summers, it may be recalled, who told the plaintiff when first informed of the fall that she did not need to report it to Big W and that it was of no relevance to Big W. I think it unlikely that by 24 April 1998 Ms Summers had any accurate recollection of that conversation, or of the date when it took place, and highly unlikely that she had any written contemporaneous record which might have assisted her recollection. Ms Summers was not called in the first defendant’s case.

The employer’s section of the claim form required completion of the day of the week of the injury. The employee’s portion of the form did not. I would not regard the plaintiff’s completion, in that portion of the form, of the injury date as 18 March rather than 17 March as of much significance. I think it likely that the plaintiff made a mistake, and that Ms Summers accepted the date and simply recorded the fact that that date had been a Wednesday.

The contract between Lend Lease and the third party

Counsel for the fourth defendant tendered, whilst Mr Kemp was giving evidence, a copy of a proforma Lend Lease Specialist Services Agreement dating from 1995, with the name and details of the “Specialist Supplier” and other variables blank. Mr Kemp confirmed that this was in the form which would have been used for such a contract in 1996, the year in which the Specialist Services Agreement between the third defendant and the third party was entered. The proforma contract recited that Lend Lease had entered into a management agreement with the owner of the specified property, authorising Lend Lease to enter as agent into agreements for the provision of services. It also recited that the specialist supplier represented that it was expert in the provision of services of the type required under the agreement and that Lend Lease relied on that representation. The specialist supplier agreed to perform the services with the diligence and care expected of a professional experienced in providing such services, and to put in place management systems which would enable it to demonstrate to Lend Lease its adherence to that requirement. The supplier agreed to comply with the directions of Lend Lease relating to performance of the services, and to provide information to Lend Lease on request as to the manner and timing of the performance of the services. It was agreed that Lend Lease could conduct quarterly reviews of the supplier’s performance.

The supplier agreed to exercise at all times all necessary precautions for the safety of all persons on the property, and the public generally. The supplier agreed to attend occupational health and safety meetings called by Lend Lease. The supplier agreed to indemnify Lend Lease against any claim, liability or loss in respect of personal injury arising out of or in connection with the services, except to the extent that the injury was due to the negligence of Lend Lease. Lend Lease could terminate the agreement for failure to meet performance standards if established by more than one quarterly review.

The services to be provided included, as the first listed service, the cleaning and presentation of the property. The supplier was to be responsible for the cleanliness and the presentation of the entire property, and was to hand the property over to Lend Lease each business day, half an hour before business hours, “in a totally prepared and ready manner”. The agreement was highly specific and prescriptive as to what this involved, including requirements that the floors were to free of any rubbish or spillages, that furniture and bins were to be clean and presentable and properly positioned, that bins were not to be over three-quarters full, and that no spill was to be left unattended. Clause 2.1.16 of schedule A to the agreement provided as follows:

Presentation throughout business hours
The specialist supplier is expected to maintain the presentation of the property to the standards detailed above throughout business hours. Where presentation is less than the standard called for it should be rectified within the following times.
(a)Mall/common areas - 15 minutes

…… …
(f)Eatery/ food hall tables - 1 minute

Clause 2.5.9 of the schedule required the supplier “to continually search for potential deficiencies in the property’s risk management plan and rectify such deficiencies where appropriate”. The schedule also set out in considerable detail the minimum qualifications for personnel including food court attendants and toilet attendants.

I am satisfied that there was an agreement in force between the third defendant and the third party which included the provisions of the proforma agreement. I am satisfied that the site where the plaintiff fell was within a common area rather than within the Eatery and Food Hall tables, so that the agreement provided for rectification of any shortfall in presentation (in this case, the removal of rubbish and spillages) within 15 minutes rather than one minute. I am also satisfied that this requirement could be regarded at the time as in accordance with industry standards, so that compliance by the cleaning contractors with the 15-minute standard would protect Lend Lease against liability in respect of a slip and fall caused by a spillage which had been there for less than that time in the absence of other evidence relevant to its knowledge of the risk.

Factual findings in relation to liability – the slip and fall incident

I am satisfied that the plaintiff slipped on some spilt chips in a common area of the Woden Plaza in the vicinity of the Deli Planet outlet and the adjoining chemist, at about 3.10 pm on Tuesday, 17 March 1998. I accept the plaintiff generally as a truthful witness, and I accept her evidence about the afternoon of the fall. I think it likely that her recollection is faulty as to when she rang Woden Plaza to report the incident. I prefer the contemporaneous written record in the Lend Lease incident investigation form, completed on 18 March 1998, where it is recorded that the incident was reported by telephone at about 4.06 pm, Wednesday, 18 March 1998, and that the plaintiff informed the Woden Plaza staff member she spoke to that the accident had occurred 24 hours earlier, that is to say on 17 March. This is the written record most proximate in time to the fall, and I think it is most likely to be accurate.

I accept that the plaintiff told Ms Summers about her fall on 18 March 1998, and I accept that Ms Summers told her that the incident had nothing to do with Big W. I accept that she spoke to Mr Osborne later on the same day, and that he told her that she would need to fill out an accident report form, something which was completed a couple of days later. The form in evidence is not in the plaintiff’s handwriting and is undated, and I take the view that the date recorded for the accident, 18 March 1998, was a mistake, either by the plaintiff or a Big W staff member. Bearing in mind that this form constitutes Big W’s only written record of the accident, it is hardly surprising that when the workers’ compensation claim form was completed a month later, 18 March was recorded as the date of the accident, and 19 March as the date it was reported to Big W. As I have said, it seems to me that those dates were wrong and should have been 17 and 18 March respectively.

It follows that the relevant zone cleaning records are those of 17 March. The last circuit by Ms Heatherington prior to 3.10 pm was from 2.32 to 2.43 pm. There is no evidence that any other member of the third party’s cleaning staff carried out a circuit of zone 3 between that circuit and Ms Heatherington’s next circuit after lunch, commencing at 3.19 pm. I find that the last circuit by a cleaner was Ms Heatherington’s circuit before lunch, which means that there had been no circuit by a cleaner passing the point of the plaintiff’s fall for something like 30 to 35 minutes. This was in breach of the obligations of the third party to Lend Lease under the Specialist Services Agreement. Additionally, the 2.32 circuit took only eleven minutes, suggesting that it may not have been as thorough as a typical circuit.

It is clear from the times recorded by Ms Heatherington for the week commencing 16 March 1998 that circuits were carried out at intervals of approximately half an hour rather than 15 minutes as stipulated in the agreement, and that this was Ms Heatherington’s regular method of carrying out her duties. I accept that she genuinely believed that she was doing what she was supposed to do. The logs were available to the third party and also to the third defendant, both of whom must be taken to have failed to ensure that the 15-minute standard was being met. It also appears from the log that there was no system in place for circuits to be conducted while a cleaner was at lunch, and that there was regularly a longer gap between circuits at that time of the day. Again, it is clear that this was not adequately monitored by the third party or by the third defendant.

Liability of Big W to the plaintiff

Whilst the plaintiff was employed by Big W primarily as a service supervisor, responsible for staff at the checkout bays, she was required to undertake heavy tasks before the store opened each morning. These were the opening of the roller doors, the moving of the soft-drink machines, the carrying of the cash register drawers and the manoeuvring of the trolleys.

I am not satisfied that the opening of the roller doors caused or contributed to the plaintiff’s injuries. I accept that the doors were heavy and that she found the opening of the doors an arduous task, but she was able to cope with this after her duties were changed, and I disregard it as a factor in her claim against Big W.

The soft-drink machines, I think, were in a different category. These were clearly very heavy and awkward to manoeuvre. Although they were on castors, they needed to be moved over metal strips at the base of the roller doors, and sometimes got stuck. They needed to move a relatively short distance, but to face in the opposite direction. Ms Perron confirmed that the machines were very large and heavy, and difficult to manoeuvre. It seems likely to me that this task was a contributing factor to the symptoms experienced by the plaintiff prior to her fall.

There is no doubt in my mind that the carrying of the cash register drawers and the pushing and pulling of the trolleys was the principal cause of the plaintiff’s pre-fall symptoms. I accept Ms Perron’s evidence that the weight of the drawers was such that it was unreasonable to expect a woman of her build to carry more than two at a time; and the plaintiff is of a smaller and lighter build than Ms Perron. I also accept that time pressure dictated that frequently, to get the job done in time, it was necessary for the plaintiff to carry three drawers at a time, weighing between 10 and 12 kilograms (22-26.4 lbs). The plaintiff had to carry these down a flight of stairs with a change of direction halfway down, in circumstances where the size of the drawers prevented her from seeing her feet.

Dr Low saw the plaintiff in October 2001, apparently for purposes associated with her rehabilitation by Big W’s insurer rather than for medico-legal purposes. His basic opinion was that there was no relationship between either the fall or her work prior to the fall and her symptoms when he saw her. There was, in his opinion, no physical reason why she could not go back to work full-time, and her problems were psychological rather than physical. This opinion runs counter to that of the orthopaedic surgeons and neurosurgeons whose opinions I accept, and it seems to me that Dr Low was incorrect in the conclusions he reached. I accept, however, his secondary opinion that emotional and psychological factors were at play. In my opinion these were causally related to her physical injuries and disabilities and interacting with them to produce the symptoms he recorded.

Dr Smith saw the plaintiff in March 2003. His opinion is contrary to almost all of the other orthopaedic opinion in the case and I specifically reject his finding that there was nothing wrong with the plaintiff when he saw her. I also reject his opinion that such symptoms as she complained of were entirely due to degeneration and in no way to the trauma of her fall. I find it astonishing that Dr Smith could come to such contradictory conclusions from those of Dr Searle, who saw her a month later. I accept Dr Searle’s opinion that the fall caused the injury to the L4-5 disc in the form of the tear to the annulus. I accept his opinion that her continuing symptoms are permanent and severely disabling, and that she is permanently unfit for the kinds of work he refers to in his report. I accept that there is likely to be a gradual increase in her symptoms and disability as degenerative changes progress. I also accept Dr Searle’s opinion that the fall has caused a great deal of pain and suffering, and has severely impaired the plaintiff’s social, domestic and recreational activities and employment prospects. Having said that, I note Dr Searle’s opinion as to the apportionment of causes, but do not find these of particular assistance.

In summary, I find that the tasks which the plaintiff was required to perform at Big W prior to her fall caused musculo-ligamentous low back symptoms, added to which there may have been an element of symptomatology emanating from age-related degeneration in the lumbar spine. I find that these symptoms were not particularly disabling, and that they disappeared when the plaintiff was relieved of the heavier tasks previously required of her. I take account of the fact that the symptoms prior to the fall were not such as to require the plaintiff to take time off work and hence were not, up to the fall, productive of any loss of earning capacity. The treatment she required was infrequent and modest. I find that, had it not been for the fall, the plaintiff could have continued to work indefinitely at Big W as a service supervisor provided that she was not required to undertake the heavier tasks. I find that Big W would have continued to employ her, relieved of the obligation to carry out the heavy tasks. I can see no reason why she could not have continued in that employment to age 55 or 60 if she had chosen to do so.

I find that when she fell on 17 March 1998, the plaintiff suffered a tear to the annulus of the L4-5 disc. I accept that the fall was a serious traumatic event, and the dominant event responsible for the plaintiff’s subsequent symptoms and disabilities. I find that her symptoms did not appear immediately, but did so over the ensuing week or so.

I find that the tasks which the plaintiff undertook at work on 23 March accelerated the development of those symptoms, but it seems to me, having regard to the severity of the physical injury the plaintiff suffered in the fall, that those symptoms would have developed over time in any event, perhaps taking another couple of weeks to do so. It is clear that the plaintiff did not appreciate, on 23 March, that helping her fellow employee with the cash register drawers and trolley and participating in the cleaning of the cash registers would exacerbate her condition to the extent that they did. She did not realise the severity of the injury she had sustained in the fall. This being so, it is likely that if she had not engaged in those tasks on 23 March, she would probably have brought about the same outcome within a matter of days or weeks through housework or gardening. In these circumstances it does not seem to me appropriate to treat the events of 23 March as amounting to a separate tort on the part of Big W. Quite apart from any difficulties the plaintiff might have encountered in proving a breach of duty of care on that day, I find that the events caused no damage which the plaintiff would not have suffered in any event.

Damages against Big W

Counsel in closing addresses submitted that I should embark upon a single assessment of damages, and apportion the figure arrived at so as to reflect the relative percentage contributions to the plaintiff’s losses by the defendants. It does not seem to me that that approach accords with principle. The correct approach was explained by Malcolm CJ in State Government Insurance Commission v Oakley (1990) Aust Torts Reports 81-003, a decision of the Full Court of the Supreme Court of Western Australia. In that case the plaintiff had been injured in a motor accident, and three years later in a work accident. His Honour said at page 67, 577:

In my opinion, where the negligence of a defendant causes an injury and the plaintiff subsequently suffers a further injury the position is as follows:

(1) Where the further injury results from a subsequent accident which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;

(2) Where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence; and

(3) Where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained includes no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.

His Honour found that Ms Oakley’s case fell within his second category. As a result of the first accident she was exposed to a greater risk of injury than before it. The aggravation of the first injury in the second accident involved a materialisation of that risk.

The present case, it seems to me, also falls into Malcolm CJ’s second category. The tortious conduct of Big W before the plaintiff’s fall caused injury to her low back to which she was already vulnerable by reason of age-related degenerative changes in the lumbar spine. The fall caused an annular tear of a disc in the lumbar spine. The injury caused by the fall included an element of aggravation of the earlier injury. The damage was greater because of the vulnerable condition of the plaintiff’s back, due in part to the negligence of Big W.

It seems to me that where the plaintiff has suffered damage as a result of two separate torts by different defendants, I am required to assess two sets of damages, taking care to avoid both overlapping and double compensation.

In respect of the claim against Big W, it is necessary to compensate the plaintiff for her pain and suffering up to the date of the fall. It is then necessary to compensate her for any additional damage resulting from the fall, to the extent that her damage caused by the fall was greater because of aggravation of her earlier injuries. The latter figure will need to be dissected into a figure representing compensation from the date of fall to the date of judgment, and a figure representing compensation for the future. This will necessarily be an extremely broad and general exercise.

It seems to me that an appropriate figure by way of general damages in respect of the claim against Woolworths is $25,000, which I apportion as to $15,000 up to the date of the fall, $5,000 from fall to judgment and $5,000 for the future. By way of interest I allow $5,000 on the pre-fall component and $750 on the second component.

Treatment expenses for all of the plaintiff’s claims have been agreed at $66,206.30 to the date of hearing. I am not satisfied that the expenses have been increased by reason of the plaintiff’s damage from the fall being greater because of aggravation of her earlier injury. I am unable to isolate on the evidence any expenses incurred by the plaintiff prior to the fall, though she saw her general practitioner on a few occasions. I allow $250 to cover treatment expenses up to the date of the fall. In the absence of any evidence that the plaintiff is personally out of pocket as to this amount, I make no award as to interest on it.

There is no claim for loss of earnings prior to the fall, and I am not satisfied that the plaintiff’s losses since the fall are any greater by reason of aggravation of her earlier injury. In those circumstances I make no allowance for loss of earning capacity.

I am satisfied that the plaintiff required some assistance around the home and garden from her husband and family members prior to the fall, and I adopt a rate of $15 per hour as appropriate for the period up to the date of the fall. I allow an average of 2 hours assistance per week for 2 years and award $3,000 plus interest of $2,000. I am not satisfied that the plaintiff has established that her need for assistance following the fall has been any greater by reason of aggravation of her previous injuries, and I make no allowance for the period since the fall or for the future.

The total of the components is accordingly:

General Damages: $25,000.00

Interest $5,750.00

Past Treatment Expenses: $250.00

Griffiths v Kerkemeyer: $3,000.00

Interest $2,000.00

$36,000.00

That total appears to me to represent a reasonable reflection of the losses suffered by the plaintiff as a result of the negligence of the first defendant.

Damages against Lend Lease

For the reasons I have set out, I have come to the view that the plaintiff has been genuinely suffering from the disabilities of which she has given evidence, and that the dominant cause of those disabilities was her fall on 17 March 1998, for which Lend Lease is liable in damages. The fall has caused her very considerable pain and suffering and loss of enjoyment of life. I accept that she is slowly recovering, and will continue to do so for some time though she will never make a complete recovery and in the longer term is likely to deteriorate. I accept that she is capable of employment, and has probably been so for some time, but equally I find that, as a woman of 50, with no tertiary qualifications, her employment prospects are very limited. I accept that she has been unable to find remunerative employment to date. One hopes that she will succeed in doing so in the future, though, considering her age, one’s optimism must be tempered by the practicalities of life. She is motivated to undertake a computer course which may widen her employment opportunities, but it must be recognised that she will be competing with much younger applicants for the same positions. Rehabilitation consultants who have been engaged on behalf of the plaintiff’s previous employer have invested considerable effort in getting back into the workforce, but thus far without any success. Her future prospects will be very much dependent on the employment market. In periods when supply of jobs exceeds demand, her prospects will be enhanced. When the market is moving in the other direction, her chance of obtaining employment is probably not particularly bright. The defendants have not adduced any evidence of employment reasonably likely to be available to her.

It must be recognised that, superimposed on her physical disabilities, she continues to suffer from psychological conditions as diagnosed by Dr Stevens. It may be expected that if she finds congenial employment, these psychological symptoms will abate. To the extent that she is unsuccessful in doing so, it seems likely that they will continue.

It should also be recognised that there are many jobs in the workforce comparable to the plaintiff’s job with Big W: that is, jobs which would not on the whole be categorised as involving heavy duties, but which, from time to time, or for part of the time, require physical effort which is probably now beyond the plaintiff.

For general damages for pain and suffering and loss of enjoyment of life in respect of the cause of action against Lend Lease, I assess a sum of $50,000, apportioned as to $30,000 for the past and $20,000 for the future. The past component attracts interest which I assess at $5,000.

The plaintiff was earning about $360 net per week at the date of the accident. It can be assumed that this figure would have increased in line with inflation since then. I am not satisfied that it is necessary to discount the figure to any appreciable degree by reason of the plaintiff’s disabilities arising from her employment before the fall, or to take account of other factors.

The plaintiff received workers’ compensation for the first six months after her fall calculated at her pre-accident gross rate of $426.26 per week. Thereafter, the compensation rate dropped to about $268 per week, though this was indexed and had risen by November 2004 to $320 per week. By the time of the hearing, she had received a gross sum of $92,954.82, and I infer that this has continued at the same rate so that the total incapacity payments made by the workers’ compensation insurer would now be approximately $107,000. The income tax payments deducted by the insurer to the date the hearing concluded had reached $9,532: this will have increased to the date of judgment to about $11,000, which I allow as the Fox v Wood component.

A printout in evidence from the first defendant’s workers’ compensation insurer shows that the plaintiff received periodical payments of workers’ compensation from 25 March 1998 until the date of hearing, with the exception of four weeks during 1999, one week during 2000 and three weeks during 2001. I infer that these were periods when the plaintiff returned to work and was paid by Big W thus suffering no loss. I also infer that from the date of the hearing to the date of judgment the plaintiff has remained on workers’ compensation. Her claim amounted to $148,903.38 up to 9 November 2004, the date of the last amended statement of particulars. I allow an amount calculated on the same basis for the period since, arriving a rounded total of past loss of earnings of $166,000. Taking account of the fact that most of this sum has been received by the plaintiff by way of workers’ compensation, I allow interest of $20,000. I allow $13,000 for past loss of superannuation benefits, using the rate in the statement of particulars of 8%.

The calculation of the proper figure for future economic loss involves some element of speculation as to the future. The bulk of the medical evidence supports a finding that the plaintiff is physically fit for light work: that is, work not including lifting, bending, twisting or prolonged periods in the same position. A difficulty with this is that no suitable employment has been identified. The plaintiff is almost 50 years old. She left school in Year 10 and has no tertiary qualifications. In the last twenty years she has worked solely in retail outlets as a shop assistant or customer service operator. She has expressed an intention to complete a computer course, but in seeking a job requiring computer skills, she will be competing with school-leavers and even university graduates likely to be preferred by many employers by reason of their youth and the fact that they have been familiar with computers throughout their educational process.

It seems to me that the plaintiff might be fortunate enough to find employment within her capacity, but that this is far from certain or even probable.

The rate of pay for the plaintiff’s previous position, set out in the Big W Certified Agreement of 2000, is $585.10 per week less tax of $117, a net amount of $468.10 per week. The plaintiff’s evidence, which I accept, is that it was her intention prior to her troubles to work until age 55 or 60.

It appears to me that an appropriate method to adopt in arriving at a figure to compensate her for her loss of earning capacity for the future is to calculate the present value of a loss at that rate to age 55 and 60, and to discount the figure arrived at so as to take into account not only the ordinary vicissitudes of life but also the likelihood that the plaintiff will find employment and earn income during part of the period in question.

The present value of a loss of $468.10 for a woman aged 50 to age 60 (multiplier 445.7) is $208,632.00. The multiplier for five years is 243, leading to a value for the same loss of $113,748. If one splits the difference, one arrives at a figure of $160,000. This is probably a reasonable valuation of the plaintiff’s pre-injury earning capacity for the future. It seems to me reasonable to reduce that figure by 30% to take account of the vicissitudes of life and the likelihood that the plaintiff will exercise her earning capacity to some extent in the future. I round the resulting figure to $115,000, which seems to me an appropriate sum to compensate the plaintiff for future economic loss. I allow a further amount of $10,000 as the approximate present value of the loss to the plaintiff of the superannuation benefits which would have attached to her future earnings.

Treatment expenses to the date of trial were agreed at $66,206.30, of which I have effectively apportioned $250 to the claim against Big W. It can be inferred that the plaintiff will have incurred some additional treatment expenses during the period between the completion of the hearing and judgment. I award $68,000 for past out of pocket expenses. As virtually the whole of this sum has been paid by the workers’ compensation insurer, I make no allowance for interest upon it.

For the purpose of calculating an amount to compensate the plaintiff for future treatment expenses, I accept that she will need to see her general practitioner about four times a year for monitoring and renewal of prescriptions, and that she is likely to spend an average of about $20 per week indefinitely on pharmaceuticals. The multiplier for a woman aged 50 to death is 1075.4 if one adopts the 1997-99 life tables. It is likely to have increased a little since then. Having said that, one must take account of the fact that as a person ages, it is likely that their need for medical care will increase, particularly towards the end of the person’s life. It seems to be reasonable to assume a continuing expenditure of $24 per week on doctors and medication. The present value of such a continuing outlay to death would be $25,809.60. This sum should be discounted, as I have said, to reflect the vicissitudes of life and also the probability of a need in any event for such expenditure towards the end of the plaintiff’s life. I allow $20,000 for future treatment expenses.

There is also a continuing claim for the value of domestic services required by the plaintiff, a need met principally by her husband but also sometimes by her daughter and perhaps other family members. The evidence about this aspect of the case, characteristically, suggested a pattern and a degree of regularity which was probably not consistent with the reality. At the same time, I accept that the plaintiff is permanently disabled from a number of tasks which arise, some regularly and others less frequently around her home and garden. The claim has been particularised at 12.5 hours per week since 25 March 1998. I am not satisfied that the evidence bears out anything approaching such a total. It seems to me likely that the plaintiff’s need, satisfied by services provided by her husband and family members, has probably, over the period of more than seven years, amounted to an average of something like two to three hours per week and that by now it is probably down to perhaps one to two hours per week, a rate at which I am satisfied it is likely to continue. There was evidence in the form of a letter from a commercial provider of such services, which I do not find of a great deal of assistance. It seems to me that the reality is that if someone in the position of the plaintiff were to obtain such services on a paid basis, she would be very unlikely to do so through a national commercial agency. She would be more likely to find someone offering services locally, perhaps through a small family business. It seems to me that a reasonable rate to allow for such services would be $17 to $18 per hour.

The calculation arrives at a range for the past of 780 to 1170 hours. Adopting an average rate over the period of $15 per hour, I allow $15,000 for the past Griffiths v Kerkemeyer component.

This attracts interest which is to be calculated at commercial rates. By way of interest I allow $5,000.

The same observations apply to discounting for the future as in relation to the treatment expenses: that is, the plaintiff is likely to develop an increasing need for services as she ages, particularly towards the end of her life. Taking this into account, I allow $22,000 for the future Griffiths v Kerkemeyer component.

The total of the individual components of the award of damages is as follows:

General Damages: $50,000.00

     Interest $5,000.00

Treatment Expenses:

     Past $60,000.00

     Future $20,000.00

Loss of Earning Capacity:

     Past $166,000.00

     Interest $20,000.00

     Future $115,000.00

Loss of Superannuation Benefits:

     Past $13,000.00

     Future $10,000.00

Fox v Wood: $11,000.00

Griffiths v Kerkemeyer:

     Past $15,000.00

     Interest $5,000.00

     Future $22,000.00

$512,000.00

This sum seems to me properly to reflect the impact of the injuries suffered by the plaintiff in her fall.

There will be judgment for the plaintiff against the third defendant in the sum of $512,000.00.

I have previously explained my reasons for finding the third party liable to contribute one-third of this sum. There will be judgment for the third defendant against the third party in the sum of $170,667.00.

There will be judgment in favour of the fourth defendant.

I shall provide an opportunity for the parties to be heard as to the appropriate costs orders which should follow from these findings and orders.
I certify that the preceding two-hundred and thirty-eight (238) numbered paragraphs are
a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 30 September 2005

Counsel for the plaintiff:  Mr JJ Graves SC and Mr J Wilson
Solicitors for the plaintiff:  Capital Lawyers
Counsel for the first defendant:  Mr GA Stretton
Solicitors for the defendant:  Mallesons Stephen Jaques
Counsel for the third defendant:  Mr RJA Sergi

Solicitors for the third defendant:  Colin Biggers & Paisley by their Canberra agents Bradley Allen
Counsel for the fourth defendant:  Mr GM Gregg
Solicitors for the fourth defendant:  Hunt and Hunt
Counsel for the third party:  Mr WW Arthur
Solicitors for the third party:  Sparke Helmore
Dates of hearing:  19, 20, 21, 22 April 2004, 1, 2, 3, 4, 5, 8, 9, 10, 11, 12 November 2004.

Date of judgment: 30 September 2005

Key Legal Topics

Areas of Law

Personal Injury Law
Property Law

Legal Concepts

Negligence
Duty of Care
Breach of Duty
Causation
Damages
Vicarious Liability
Limitation Periods

Actions

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Citations

Cairns v Woolworths Limited [2005] ACTSC 95

Most Recent Citation

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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

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Cases Cited

0

Statutory Material Cited

0

General Damages:	$25,000.00
Interest	$5,750.00
Past Treatment Expenses:	$250.00
Griffiths v Kerkemeyer:	$3,000.00
Interest	$2,000.00
$36,000.00

General Damages:	$50,000.00
Interest	$5,000.00
Treatment Expenses:
Past	$60,000.00
Future	$20,000.00
Loss of Earning Capacity:
Past	$166,000.00
Interest	$20,000.00
Future	$115,000.00
Loss of Superannuation Benefits:
Past	$13,000.00
Future	$10,000.00
Fox v Wood:	$11,000.00
Griffiths v Kerkemeyer:
Past	$15,000.00
Interest	$5,000.00
Future	$22,000.00
$512,000.00

[2005] ACTSC 95

Key Legal Topics

Areas of Law

Personal Injury Law

Property Law

Legal Concepts

Negligence

Duty of Care

Breach of Duty

Causation

Damages

Vicarious Liability

Limitation Periods