Clara Losurdo v Stockland Property Management Pty Ltd
[2010] NSWDC 339
•10 September 2010
CITATION: Clara Losurdo v Stockland Property Management Pty Ltd [2010] NSWDC 339
JUDGMENT DATE:
10 September 2010JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: Verdict and judgment for the defendant. The cross-claim is dismissed. CATCHWORDS: CIVIL LAW - slip and fall in shopping centre - negligence - plaintiff sued defendant shopping centre in negligence - defendant shopping centre filed cross-claim against cleaning company - nature of duty owed by defendant to plaintiff - whether breach of duty by defendant - was defendant responsible for any negligence of cross defendant - was cross defencant an independant contractor or an employee - contractual relationship between defendant and cross defendant - indemnity clause in contract - contributory negligence - breach of contract by cross defendant - credibility of plaintiff and plaintiff's husband as witnesses - plaintiff's pre-existing medical condition - damages for non-economic loss - damages for economic loss - damages for gratuitous care - damages for out of pocket expenses LEGISLATION CITED: Civil Liability Act 2002 s 15, s 16
Law Reform (Miscellaneous Provisions) Act 1946 s 5CASES CITED: Alzawy v CTP Custodian Pty Ltd [2009] NSWDC 304
Australian Safeway Stores v Zaluzna (1987) 162 CLR 479
Hilas v Todbern Pty Limited [2007] NSWCA 315
New South Wales v Tempo Services Ltd [2004] NSWCA 4
Stevens v Brodribb Sawmilling Co Pty Limited (1986) 160 CLR 16
Sweeney v Boylan Nominees Pty Limited (2006) 226 CLR 161
Westfield Shopping Management Pty Ltd v Mastercare Property Services Pty Limited [1998] NSWSC 457
Wilkinson v Law Courts Limited [2001] NSWCA 196PARTIES: Clara Losurdo
Stockland Property Management Pty Ltd
Reeflections Cleaning Proprietary LimitedFILE NUMBER(S): 2009/335138 COUNSEL: Mr JE Rowe for the plaintiff
Mr WS Reynolds for the defendant
Mr A Hourigan for the cross-defendant
JUDGMENT
Introduction
1 Mrs Losurdo was walking through a Stockland Shopping Centre when she slipped and fell over, injuring herself. She sued Stockland as the occupier of the centre, saying that the accident was the result of its negligence. She said that she had slipped on a potato chip which had not been cleaned up when it should have been.
2. When it was sued by Mrs Losurdo, Stockland in turn sued the cleaner it had engaged to clean the shopping centre. The cleaner was Reflections.
3. Mrs Losurdo herself did not sue Reflections. On the first hearing day of this case before me, she attempted to join Reflections as a direct defendant but I rejected that attempt.
Parties and representation
4. The full names of the parties are Mrs Clara Losurdo who is the plaintiff, Stockland Property Management Proprietary Limited which is the Defendant and Cross-Claimant and Reflections Cleaning Proprietary Limited which is the Cross-Defendant. Mrs Losurdo was represented by Mr JE Rowe of counsel, Stockland by Mr WS Reynolds of counsel and Reflections by Mr A Hourigan of counsel.
5. As it happened, after reserving this judgment I was informed that Reflections Cleaning Pty Limited went into administration on 11 August 2010. I was provided today by Mr Arvelo, solicitor, who appears for Stockland, with a letter from J P Downey and Co, the administrator appointed for Reflections Cleaning Pty Limited. The letter was dated 6 September 2010 and I marked it for identification number 8. Mr Downey confirmed that he agreed to have the cross-claim dismissed on the basis that each party pay its own costs. I take that letter to be consent for the proceedings to continue to judgment. In due course the order envisaged by Mr Downey will be made as notified earlier to the parties.
Issues
6. Two obvious issues in the case were what was the duty Stockland owed to Mrs Losurdo and whether it had breached that duty. But another issue was whether Stockland was responsible for any negligence on the part of the cleaner Reflections. This, in turn, depended on the contractual relationship between Stockland and Reflections. There was also the question of whether Reflections was negligent and breached its contract with Stockland. There was an indemnity clause in the contract so there is a question whether Reflections is liable to indemnify Stockland for any adverse verdict. Stockland claims there was contributory negligence by Mrs Losurdo and that she and her husband’s credibility as witnesses cannot be accepted. There is an issue about Mrs Losurdo’s medical condition before the accident and an assessment of damages.
7. I have isolated twelve questions to be decided by me in dealing with these issues, but first I should make reference to the evidence in the case.
The evidence - witnesses
8. Mrs Losurdo herself was the first witness called by Mr Rowe.
Personal background
9. Mrs Losurdo was born in 1944 in Italy. She left school aged nine. She did a sewing course and was a very good sewer. She came to Australia in 1960 with her father. She married John Losurdo in 1968. Andrew was born in 1970 and Rosa in 1971. The third child, Rocco, was born in 1980. She worked as a cleaner.
Health: plaintiff and her husband
10. In 1986 Mrs Losurdo was in a car accident and injured her neck. She settled a claim for a very small amount. She did not go back to work but in 1987 she started selling Bessemer products.
11. Mr John Losurdo worked from time to time. In 1980 he hurt his leg and hips in a factory accident. He did not go back to work for a while. In 2005 Mr Losurdo had a shoulder operation and there was lots of pain. He could not help around the house. Mrs Losurdo gets a carer’s pension. She got some back pain for a while but it was not too bad.
The accident
12. On 5 May 2007 Mrs Losurdo went to Stockland Shopping Centre at Wetherill Park. She was walking through the centre. She was not wearing high heels. She just slipped over. The aisle was just over two metres wide. She slipped and found herself on the floor. She did the splits. She was in agony. She tried to lift herself up and was in a lot of pain. She cannot remember if her head was on the floor. She had pain in her back.
13. She saw a potato chip on her shoe, she thinks on her right foot. There was a big mark on the floor where she slipped, a black mark.
14. She started to scream. Someone came and told her not to worry. He said he was the Centre Manager. He helped her to get up. She does not remember how long she was on the floor. The man who said he was a manager phoned her husband. He said he would call an ambulance.
15. The cleaner came straight away. He cleaned the potato chip straight away. It was on her shoe. He used a dustpan and broom. She had pain in her back and her neck. It was in her lower back and her left shoulder. The pain was bad - five out of five.
Early treatment
16. Mrs Losurdo went to Fairfield Hospital in an ambulance. She was treated straight away. She got medication including morphine. She had an X-ray and an MRI. She was sent home later that night.
17. She saw Dr Romeo, her GP, the next day. He put her on medication. That was for pain relief. At home from hospital the pain in her neck and back and shoulder were very bad and she had a terrible night. She could not bend down or turn her left leg properly. Her left arm and shoulder were very sore.
Injuries and disabilities
18. Her neck was much different after the accident. There was pain and restriction of movement. It was more painful. Before the accident she occasionally had headaches but had lots of headaches after the accident. In fact they are most of the time. She can still drive. She has difficulty parking.
19. There was no pain in her left shoulder before. Now she has a very painful left shoulder. Movement is restricted and she could not move it for a while. Dr Romeo referred her to Dr Bokor, a surgeon. He operated on her left shoulder on 7 August 2008. The pain was a little less after the operation. She still was restricted in the use of her arm and had difficulty raising her arm. She has difficulty with her housework because of her left shoulder. The pain in her left shoulder wakes her up and she has a scar from the operation.
20. Before the accident she had back problems from time to time. It was bearable pain. It occurred now and again. She took Panadol. Since then the back pain has been getting worse. She has to take medication. She sometimes has to spend a day in bed perhaps two or three times a week. She cannot bend down. She has pain down both legs now. It used to be just the left leg. The pain in her legs is increasing.
21. She has bad pain in her knees which comes and goes. The medication helps but it returns. She has difficulty walking up some steps in her house and has to steady herself on the walls. Her movements have to be slow and deliberate.
22. She is now very upset all the time. She gets angry at her husband and her children. She feels tired all the time.
23. She takes three digesics a day. She takes Panamax which she interchanges with the digesics. She takes an anti-inflammatory in the morning and in the evening. She takes a drug called Lyrica, which is also for the pain. She takes Panadol Osteo every four hours.
24. She can’t do what she wants to do around the house. All she can do is a bit of dusting occasionally. She cannot bend down. She can no longer vacuum. Her husband does the work inside. She used to do the shopping but now her husband does. She joins him sometimes.
25. She is restricted in walking because of the leg pain.
26. She no longer does party plans for selling Bessemer products. She cannot do it. She used to bag the products and lift the boxes into the houses but cannot do that any more. She used to enjoy the work.
27. Two weeks ago Dr Gotis-Graham put injections into her lower back. She also got some ultrasound. It brought some relief.
Cross examination on behalf of defendant
28. Mr Reynolds, on behalf of Stockland, cross-examined Mrs Losurdo. She said she had been regularly to the same shopping centre before. She had walked along the same place where she fell. She had no problems with the floor surface. After she fell on that day she noticed the remains of a hot chip on the floor. She saw that after the fall, not before. She agreed that she did not see anything on the floor on the DVD which I will refer to later. She was looking in the direction that she was going. She was not sure what the other shops were, whether they were food shops or not. She does not remember if any of the people around her were eating. She does not remember anyone eating hot chips. She could not touch the chip on her shoe after the fall. She agreed a number of people were walking abreast in the aisle. She saw only one hot chip on the floor. It was squashed.
29. She agreed the DVD showed that she fell at about 10.50am. Between the start of the DVD at 10.30am and her fall there were a lot of people in the aisle. A number of people walked over the area where she fell. She appeared to land on her bottom. She cried out “My back, my back”. She cannot remember exactly how she fell.
30. She had back pain before the fall for about a year or so. She cannot remember if that was more than a year; approximately a year. Every couple of months she got a little back pain which did not stop her doing anything. She took Panadol occasionally.
31. Before the fall she was referred to Dr Gotis-Graham. She used to see him. Dr Romeo thought it was just a little arthritis. She had X-rays. She thought she saw Dr Gotis-Graham every six months.
32. After the fall she had pain in both legs; the left leg first and then both. She definitely did not have pain from her back into her legs and the knees before the fall. She had difficulties with the stairs at home only after the fall. She was light-headed and dizzy and angry a lot after the accident. She had no such anger or upset before the accident. She had a problem with her neck after the accident which was different than before. Beforehand it was okay, she had no neck problems before the fall. Nor did she see a doctor before the fall for her neck. She had no pain in her left shoulder before the fall. She is sure of that. She did not see a doctor regarding her left shoulder before the fall.
33. After the fall Dr Romeo sent her to Dr Gotis-Graham because Dr Romeo wanted her to have an MRI. She did not see Dr Gotis-Graham regarding her left shoulder before the fall. She had no sleep problem before the fall. She could do all of the housework with difficulty before the accident. She did the inside and her husband did the garden outside although she worked in the garden herself.
34. Dr Banares is a female GP. She is at the same clinic as Dr Romeo. She saw her before the fall sometimes.
35. She does not remember exactly when she saw Dr Gotis-Graham before the fall and cannot comment on the date 7 August 2003. She does not remember complaining to him about lumbar pain or shoulder pain. She does not remember going back to see Dr Gotis-Graham in September 2003 or November 2003 or January 2004: she does not remember dates. She does not remember having problems with both knees in March 2004. She had a thoracic spine problem in March 2004 and in the lower back.
36. She saw a Dr Griffiths, a neurologist, in June 2004. She had experienced intermittent dizziness over three years. When she saw Dr Griffiths she felt confused, angry, anxious, forgetful, stressful and tearful. She cannot remember feeling slightly off balance. She cannot remember constant headaches.
37. In July 2004 she was taking antidepressants.
38. She saw Dr Gotis-Graham in February 2005 for problems with her lower back and maybe for both knees. She was given some exercises to do. She did the exercises as he told her. She went back to Dr Gotis-Graham in February 2006. She cannot remember complaining of worse back pain. One week before 7 June 2006 she was leaning forward, she remembers something happening. Maybe she told Dr Gotis-Graham about a shooting pain down her left leg into her left knee. It kept her awake at night and she had to take medication. She could not cope with some of the medication. She probably had an MRI in 2006, although she cannot remember. She had bone density. She does not remember when she first saw Dr Gotis-Graham and whether it was February 2003. On 27 June 2006 Dr Gotis-Graham told her that her osteoporosis was playing up and not to worry. There was also a little arthritis.
39. In February 2003 she saw Dr Antonio Fernandes, a hand surgeon. She told him on 11 February 2003 that over the previous four months she had pins and needles in her fingers of the right hand.
40. In January 2006 she saw Dr Nguyen at the health centre.
41. She had a little fall at a nursing home. That was in March 2007. She told the doctor she had pain in the left and right shoulder. She saw Dr Romeo on 23 April 2007. She probably did complain about pain in the neck and shoulders and in the knee. She had medication.
42. Mrs Losurdo said she does not exaggerate.
Cross examination on behalf of the cross-defendant
43. Mrs Losurdo told Mr Hourigan for Reflections that she had headaches from time to time before, but many more following the fall. She had tension headaches between January and February 2003. It would be occasional and she would consult her GP in case they could help. On 17 July 2001 she saw Dr Genua. She told that doctor she had a depressed mood, memory loss, headaches and blurred vision.
44. On 4 May 2002 she saw Dr Ramakishna in the same practice. She does not recall complaining of dizziness, light headedness, stress or anxiety. She remembers dizziness and blurred vision. It had something to do with her eyes playing up. On 9 July 2002 she went for a brain CT scan.
45. She was admitted to Fairfield Hospital in February 2005 with chest pains. They suggested it could have been an anxiety attack.
46. She had a fall in a nursing home on 20 March 2007. She saw Dr Romeo the next day. She had pain in her right knee, right arm and right shoulder. On 21 March 2007 Dr Romeo prescribed medication. She did experience pain from the fall in March 2007 but it did not increase.
47. She as been on anti-depressants for many years.
48. She was in a car accident in 1986. It settled for a small amount of money.
49. She does not remember what she told Dr Mahony. She does not remember questions and answers with doctors.
50. Mr John Losurdo, Mrs Losurdo’s husband, was called as a witness on her behalf.
51. Mr Losurdo is 72 and he came to Australia in 1953. He is no longer working. The house where he and his wife are living has four bedrooms, a dining room, a laundry, a kitchen and three bathrooms and tiled floors.
52. Before the injury at Stockland Mrs Losurdo did everything around the house: washing, mopping, cooking, vacuuming, ironing and shopping. He helped in the garden outside. Before the accident she complained of pain sometimes but could still do the housework. It was not much pain.
53. She could not do anything after the accident and he had to do the ironing, cooking, vacuuming, mopping, shopping and washing. After the accident his wife has been worse than before the accident. Since the accident she complains of back pain and a sore shoulder. She cannot bend down. She gets up late more often. He has to help her out of bed some mornings. She takes more tablets since the accident. Sometimes the pain really hurts and she cries. She has to lie down up to three times a day. She did not do this before the accident.
54. He now does the shopping and she sometimes comes. He now cooks breakfast, lunch and dinner, whereas before Mrs Losurdo did.
55. Mr Losurdo does the washing up. He takes his own tablets and has a disc problem. He has kidney stones and gets physio and has prostate problems. Recently he was diagnosed with diabetes. If he could he would employ someone to assist around the house.
Cross examination on behalf of the defendant
56. Mr Losurdo told Mr Reynolds that he has not made enquiries regarding commercial assistance. His wife went more often to Dr Gotis-Graham after the fall than before. Beforehand she went to see him a couple of times because she had mild back pain. It was around the belt line and on her right shoulder. She did complain of low back pain and right shoulder pain before the accident. After the fall she complained about the left arm. Mr Losurdo said his wife told him about he bad back and shoulder. She never complained to him before the fall about any problems with neck, legs, hands (not really) or left shoulder. She now has a problem with her left shoulder which she has complained about. Since the fall Mrs Losurdo complains daily to him regarding severe pain.
57. Mr Losurdo does all the washing. He hangs it in the garden. The washing machine is a top loader. He does the dishwashing. It is an under-bench dishwasher.
58. The vacuum cleaner is operated from an opening in the wall, it is ducted. He saw his wife using the vacuum cleaner before the fall with her right hand. He has not seen her using it since the fall. He still does all the domestic chores so long as he can.
Cross examination on behalf of the cross-defendant
59. Mr Losurdo told Mr Hourigan that he never did much housework inside before the fall. She did it all. He never did anything.
60. He could not remember whether in 2002 he did some housework because his wife had headaches. She kept doing her work.
61. Mrs Losurdo did not tell him that she had seen a doctor regarding sad or unhappy feelings. Nor did she tell him that she took medicine for that. She usually went to the doctor on her own. She did not complain about anxiety. He knew that she went to Fairfield Hospital for a couple of days.
62. Mr Losurdo’s normal day would be spent in the garden for three hours and shopping, watching TV and getting what he needed. That was before the accident.
63. He is not aware of his wife being on antidepressant medication. Nor is he aware of her anti-inflammatory medication or pain killers or blood pressure medication.
64. Once after he came back from the shops Mrs Losurdo told him she fell outside in the yard. She hurt herself but the pain went away in a couple of hours.
Re-examination
65. Mr Losurdo told Mr Rowe that the food was kept in the kitchen in different cupboards on different levels. One has to reach out, then bend over. The dishwasher is used by bending over to load and unload it. The washing machine is a top loader. One has to bend to pick the washing out of the basket. The vacuum cleaner outlets are about 3 feet off the floor.
The evidence - exhibits
66. The exhibits tendered in this case on behalf of the plaintiff were a DVD of closed circuit television footage from the shopping centre at Stockland where the accident occurred. It depicted the scene before and after the accident including showing Mrs Losurdo falling. That became exhibit A. Exhibit B was a bundle of medical reports tendered on behalf of the plaintiff and exhibit C comprised two expert’s reports tendered on behalf of the plaintiff, a forensic accountant’s report and an activities of daily living report. Exhibit D was the agreement between Stockland and Reflections for the provision of cleaning services by Reflections to Stockland. Exhibit E was a Stockland’s document called “Public Liability Incident Report Form” which had been completed two days after the accident by persons designated as manager and security. Exhibit F was a statement of the cleaner who was employed by Reflections and on duty at the time of the accident.
67. Tendered on behalf of Stockland was a bundle of medical reports which became exhibit D1 and notices of assessment issued under the Income Tax Assessment Act 1936 and Income Tax Assessment Act 1997 of Mrs Losurdo for the years ending 30 June 2006, 2007 and 2008.
68. Reflections did not go into evidence.
Issue 1: What is the duty the defendant owed the plaintiff and could the defendant delegate that duty to the cross-defendant?
69. It is the duty of an occupier “to take reasonable care to avoid a foreseeable risk of injury”: Australian Safeway Stores v Zaluzna (1987) 162 CLR 479 at 488 per Mason, Wilson, Deane and Dawson JJ.
70. In the circumstances of this particular case, I accept that the duty is as stated by Mr Reynolds in his written submissions at [11]. In Hilas v Todbern Pty Limited [2007] NSWCA 315 Hislop J - with whom McColl JA and Handley AJA agreed - said at [10] “an occupier of premises is only required to take such care as is reasonable in the circumstances. The duty is not to make the premises as safe as ‘reasonable care and skill on the part of anyone can make them’ - Wilkinson v Law Courts Limited [2001] NSWCA 196 at [21]’”. As Mr Reynolds’ written submissions at [12] say, the duty is not to provide perfection.
71. Mr Rowe argued that the extent of duty was to “provide a safe floor and a cleaner who would properly clean the floor”. I can readily accept that part of the discharging of its duty would be to provide the second. As for the first, provision of a safe floor cannot be accomplished reasonably at all times. That must be qualified by as safe as can be expected from the exercise of reasonable care in the circumstances.
72. But that expectation will be quite high in the case of a shopping centre. As Mr Rowe said, Mrs Losurdo was invited to Stockland’s premises for the benefit of Stockland.
73. Mr Hourigan argues that there was no evidence that Stockland employed other than competent cleaners. It might be argued that there is demonstrated in the CCTV footage a failure by the cleaner to attend to the aisle where Mrs Losurdo fell. But that is not the same question as to whether Stockland employed competent cleaners. One oversight over an hour - if it occurred - does not demonstrate that Stockland has failed to employ competent cleaners.
74. Can the duty be delegated? Insofar as Mrs Losurdo argued that a commercial occupier cannot avoid liability by just employing a cleaner, that, as an unqualified proposition, might be right. Mr Rowe goes on to argue that there is still a duty to exercise reasonable care to make commercial premises safe. I would state the proposition in terms of the following paragraph.
75. Insofar as the general duty to Mrs Losurdo can be discharged by keeping the floor of the premises clean then it can be delegated to a properly qualified cleaner who is an independent contractor. But Stockland retains a duty to Mrs Losurdo to employ such a properly qualified cleaner.
Issue 2: Was Reflections an independent contractor or an employee of the defendant?
76. This issue raises what the High Court of Australia in Sweeney v Boylan Nominees Pty Limited (2006) 226 CLR 161 has described at 167 as one of the “basic propositions that can be identified as central to” the law of vicarious liability. That is the “distinction between employees (for whose conduct the employer will generally be vicariously liable) and independent contractors (for whose conduct the person engaging the contractor would generally not be vicariously liable)” (at [12]).
77. Mr Rowe argued that the relationship between Stockland and Reflections was such that Reflections should not be regarded as an independent contractor and that Stockland should be vicariously liable for the negligent acts of Reflections. This argument was based on an examination of the contractual relationship between Stockland and Reflections. Support for the argument was taken from Hungerford ADCJ’s judgment in Alzawy v CTP Custodian Pty Ltd [2009] NSWDC 304. I have expressed the argument in this way because it seemed to me that its focus was on the nature of this contractual relationship rather than whether Reflections was an employee of Stockland. Similarly Hungerford ADCJ in Alzawy did not appear to conclude, in terms, that the cleaning contractor was an employee of the shopping centre occupier.
78. How do I approach the argument? The High Court in Sweeney said that I should avoid being distracted by trying to apply terms such as “representative”, “delegate” or “agent” and that I must “examine what exactly are the relationships between the various actors (at 167 [13])”. In Hollis at 41 ([ 44]) the High Court approved Mason J’s remark in Stevens v Brodribb Sawmilling Co Pty Limited (1986) 160 CLR 16 at 29 that “it is the totality of the relationship between the parties which must be considered”.
79. As I have mentioned, Mr Rowe invited me to look at what Hungerford ADCJ took into account in Alzawy. In concluding that the shopping centre proprietor in that case was vicariously liable for the negligence of the cleaner it had retained, his Honour took into account (at [13]) a list of factors contained in the contract between the proprietor and the cleaner. His Honour concluded that the proprietor “retained a degree of control” as to the performance of the cleaner’s cleaning services. His Honour singled out four aspects of the contract which brought him to that conclusion. At [14] he said -
“ The first defendant retained a degree of control as to their performance, albeit the second defendant directly did the work, by requiring regular reporting and approval, the ability to instruct the cleaning supervisor, contractor employees were to wear a uniform designed by the owner with the owner’s logo and where the first defendant could vary the cleaning services .”
80. Mr Rowe argued in this case that most of the points raised by Hungerford ADCJ in the cleaning contract in Alzawy were very similar to the contract in this case. That may or may not be so, but the points which Hungerford ADCJ brought to bear in his conclusion about control are those four referred to in the passage which I extracted in the previous paragraph. Three of those four his Honour repeated in his specific finding at [31] (27) that the proprietor in that case “retained to itself a degree of control over the performance of the cleaning services at the centre”.
81. When one focuses on those three factors relied upon by Hungerford ADCJ and looks for corresponding factors in the contract in this case they cannot be found in the same terms. I cannot find provisions requiring the cleaner to regularly report to the proprietor for remedial measures to be approved or permitting this proprietor to “instruct” a cleaning supervisor or to “vary” the services. I will examine the clauses in this contract which might be said to be the closest in corresponding to the Alzawy clauses but first I will make a general observation about this contract.
82. The contract in this case has to be viewed in this context. The proprietor had a large number of shopping centres throughout the State. This contract with the cleaner was one which covered all of those shopping centres. The proprietor, Stockland, had obviously decided that the preferable way of having those centres cleaned was to appoint one cleaning company to cover all of the centres. Although the contract contained schedules and appendices making specific provision for the various centres, the terms of the contract itself were necessarily general. It did not focus on specific aspects of the performance of the work.
83. Turning to corresponding clauses, rather than terms such as “report” or “approval” being used for liaison between the parties, cl 6.2(e) provides for “regular meetings” between the parties “to review” performance by the cleaner and to “address” any issues.
84. The requirement in cl 6.1(b) that the services would be performed “in conformity with all directions and requirements” of Stockland is very general in its terms and takes its place in a clause with requirements to comply with the law, to pay due regard to persons and property in the vicinity and to co-operate with other service providers. It does not appear to me to be a clause which contemplates intrusion by Stockland into the specifics of the performance of the cleaning services. I accept what Mr Reynolds says about the clause at [24] of his written submissions that it is “no more than a general requirement which would be expected in any contractual arrangement between two contracting parties”.
85. There is indeed a clause requiring the cleaner “to ensure its personnel wear the Stockland staff uniforms” (cl 6.2(d)). But insofar as that clause is relevant to the relationship between the parties (Brodribb v Sawmilling Co. Pty Limited) it is counterbalanced by cl 6.10 in which Reflections acknowledges “that not withstanding any public perceptions which may arise from its personnel wearing the uniforms provided by cl 6.2(d) above, Stockland shall not be liable or responsible for the actions of the Supplier’s personnel.” I do not agree with Mr Reynolds’ submissions at [24] that the “uniform did not have to specify or carry any identifying Stockland logo which might carry to third parties the impression the cleaners were employed by Stockland”. The contract clearly provides for “Stockland staff uniforms”(cl 6.2(d)) and “Stockland cleaning uniforms” (Schedule One). Clause 6.10 about “Public perceptions” enforces that.
86. The following three observations can be made about Alzawy. First it seems that his Honour’s attention was not drawn to the High Court authorities to which I have been referred and which are relevant to the question of vicarious liability. Secondly it follows that his Honour may not have considered what the High Court said about “control” in Hollis where - after referring to “various matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability” - their Honours said those matters include, but are not confined to, what is now considered “control”. Thirdly, his Honour’s finding must be seen in the context of the issues in that case which are set out at [50] in the following terms: “I did not understand that there was any real issue that a duty of care was indeed owed by the defendants to the plaintiff. Rather, the case against any liability was argued that there had been no relevant breach of duty”.
87. Relevant to those observations, in the present case I have been invited to consider what the High Court has said over the last decade about vicarious liability in cases to which Hungerford ADCJ was not referred. Also in this case the question of any vicarious liability of Stockland for negligence of its contract or Reflections is clearly an issue.
88. I will examine each of the further provisions of the contract (apart from the ones that I have commented on already) which Mr Rowe relies on as pointing to a relationship between the parties involving vicarious liability.
89. Clause 6.2(e) and (f) provide for regular meetings between the parties and quality assurance inspections. The purpose of the meetings is to “review” performance and “address” any arising issues. The quality assurance is performed by the cleaner. The clause does not impose an obligation to report but to maintain records of the inspections which will be available to the proprietors. Neither of these suggests to me a serious compromise to the cleaner’s independence as a contracting party.
90. Clause 6.3 makes various provisions about the cleaner’s staff. Generally they are provisions requiring the cleaner to send on to the proprietor’s premises staff who are of good character and will behave themselves as well as complying with safety procedures and carrying identification. These are unexceptional given that cleaning staff will be constantly on the premises when the proprietor’s customers are there and there is likely to be a good deal of interaction between the proprietor’s customers and the cleaner’s staff. The most intrusive provision is cl 6.3(e) which requires the cleaner to replace any staff if the proprietor “directs their replacement”. This is understandable amongst the other provisions which no doubt provide examples of what might prompt such a direction. If the cleaner had a member of staff who constantly smoked and was the subject of complaints from customers, then it is not surprising that the proprietor has allowed itself a power to direct the replacement of such a person who is a risk to its goodwill. It will also be noted that the provision is for replacement of staff, not dismissal. The cleaner could still employ that staff member on another job but not in the provision of services for Stockland. Another potentially intrusive provision is the one at cl 6.3(e) requiring the cleaner’s staff to be “willing to undertake Stockland Customer Care training” and to practise “this culture and the associated values in the carrying out of their duties”. Once again, this does not put all cleaning staff through a proprietor’s course before they start. It makes allowance for these cleaning staff - who are going to spend a lot of time exposed to the proprietor’s customers - to be familiar with how the proprietor expects those customers to be treated. In addition, I accepted generally what Mr Reynolds submits about cl 6.3 over [26] to [31] of his written submissions.
91. Clause 6.4 allows the proprietor to make arrangements for the proprietor to have the cleaner’s job done if the cleaner fails to do it. Such a clause makes allowance for a failure in performance rather than regulating performance of the contract. I also agree with what Mr Reynolds has said at [32] of his written submissions.
92. Clause 6.5 obliges the cleaner to get the proprietor’s written consent before appointing a subcontractor. It is only prudent for a proprietor to have such a provision because of its duty to those who use the centre to appoint competent cleaners. The interest of the proprietor is not in doing the cleaner’s job but in discharging its own duty of care. Once again I also accept what Mr Reynolds has to say on that clause at [33] of his written submissions.
93. Clause 6.7 places an obligation on the cleaner to appoint a project manager. It is the cleaner’s project manager - not the proprietor - who is responsible for the cleaner’s “day to day performance of its obligations” and for “monitoring and being responsible for” the cleaner’s “personnel carrying out its obligations”. Had these responsibilities been allocated to the proprietor, then it would involve a compromise in the cleaner’s independence, but that was not the case. I also agree with [34] of Mr Reynolds’ written submissions.
94. Clause 6.8 is more intrusive into the cleaner’s business at first glance. It gives the proprietor a right to require that the cleaner not proceed with a proposed change in the cleaner’s “key personnel”. But that right applies only to such personnel “involved in the management or provision” of the cleaning services to the proprietor. Furthermore the right can only be exercised in circumstances where the proposed change is “considered by Stockland as likely to materially affect the standard” of the cleaning services. Hence the right to intrude into - or ‘control’ - the cleaner’s business is very much circumscribed by reference to the adequate performance of the contract. In addition, I accept what Mr Reynolds has to say at [36] of his written submissions.
95. Clause 20.1(a) - giving the proprietor access to the cleaner’s premises - once again appears intrusive at first glance. But the purpose of access must be to operate equipment in circumstances where the proprietor needs to take steps to cover a gap in the provision of cleaning services for inspections “relating to the Supplier’s performance of or ability to perform this Agreement”. It is an interference in the cleaner’s business in extraordinary circumstances where performance of cleaning services may need to be attended to urgently or for routine inspections related to the contract. The contract respectfully provides that the proprietor “will endeavour to give reasonable prior notice” of an inspection and “will also endeavour to minimise disruptions” to the cleaner. In addition, I agree with what Mr Reynolds has said at [37] of his written submissions.
96. Paragraph 11 in Schedule One under “General Requirements for all Shopping Centres” and “General Requirements” is quite intrusive. The proprietor “reserves the right to request the removal of any cleaning staff member from a centre”. But two points should be noted about that right. It is a right to “request” removal of a staff member. The clause, significantly, does not go on to provide an obligation on the cleaner to remove the staff member. Perhaps that goes without saying because one does not need a contractual right to make a request. But it is a significant topic and one would expect an obligation to comply with the request not to be left to implication. The second point is that the right conferred appears in a provision which refers to “a high standard of grooming and personal presentation” and courtesy and helpfulness to the proprietor’s customers. That suggests this right is intended to take some colour from its context.
97. The “Daily Cleaning Requirements” at point 1 are very comprehensive - indeed almost onerous - but this needs to be seen in the context of the liability (public and occupational health and safety) of a shopping centre proprietor and the resources of a commercial cleaning company which is obviously large enough to enter into a contract to provide cleaning services for a number of shopping centres. I accept what Mr Reynolds has to say in [38] of his written submissions.
98. The “Other” requirements at point 5 require staff “on occasions” to help with unforeseen circumstances around the centre unrelated to cleaning and to alter “daily routine depending on job necessity”. The first is no more than a contractual allowance for lending a hand if the need arises. The second is to be contrasted with the provision in Alzawy permitting the proprietor to vary the cleaning services themselves. An alteration to “daily routine depending upon job necessity” is far less intrusive and again is a contractual provision covering what no doubt happens on occasions anyway.
99. I can see nothing in item 3 (“Toilet Areas - Public, Staff, Disabled, Parents Room;” “Daily”) or item 4 (“All Floor Areas - Internal Centre - Retail And Food Area”) of “Requirements for Specific Areas” in Schedule One other than very specific descriptions of the cleaning tasks which the cleaner has contracted to undertake.
100. Under the same “Requirements for Specific Areas” in Schedule One is item 15 (“Incident Reporting Procedures”). That does no more than impose obligations on both parties to the contract to respond (statement, insurance claim) fairly expeditiously in “the event of a slip and fall”. The responses complement each other and do not involve any compromise of the cleaner’s independence as a contracting party.
101. In order for me to hold Stockland responsible for any negligent acts of Reflections, Mrs Losurdo must satisfy me on the balance of probabilities that the relationship between Stockland and Reflections was such that Stockland should be vicariously responsible for any negligent acts of Reflections or its staff. After the examination which I have just completed of “what exactly are the relationships between the various actors” - the Sweeney test - I am not so satisfied.
Issue 3: Was the defendant negligent?
102. Mrs Losurdo claims in her statement of claim that Stockland “by its servants and agents was guilty of negligence.”
103. I have already dealt with the assertion by Mrs Losurdo that Reflections was Stockland’s servant or agent. There was no relationship between Stockland and Reflections which gave rise to any vicarious liability of Stockland for negligence of Reflections.
104. Has Mrs Losurdo satisfied me on the balance of probabilities that Stockland breached in some other way a duty it owed to her?
105. Mrs Losurdo listed in her statement of claim eleven ways in which she claimed Stockland was negligent.
106. It is fundamental, when assessing the ways Mrs Losurdo claims that Stockland was negligent, to appreciate that Stockland can discharge its duty of care to Mrs Losurdo to make the premises as safe as reasonable care can make them by delegating that duty to a properly qualified and competent independent cleaner. In particular, in so far as a foreseeable risk of injury may arise from slippery substances rendering the floor unsafe (particular (iii)), the need for a safe means or system of cleaning a floor (particular (v)), the need for an adequate system of inspecting the floor for slippery substances (particular (iv)), the need to erect signs warning customers of such substances (particular (vi)) and the need to cover the floor with non-slip material (particular (vii)), the duty to avoid those risks can be delegated to such a cleaner. The generally stated duties (particulars (i), (iii) and (viii)) - of the need to take adequate precautions for the safety of Mrs Losurdo, not exposing Mrs Losurdo to a reasonably avoidable risk of injury and observing Mrs Losurdo in a position of peril - said to be breached by Stockland, can be so delegated in so far as this relates to the kind of foreseeable risk present in this case. All of the duties referred to have been delegated to Reflections in this case and Stockland is not liable to Mrs Losurdo for any breach of them.
107. In so far as Mrs Losurdo alleges that Stockland failed “to employ competent cleaners” to inspect the floor I accept Mr Reynolds submission at [4] of his written submissions that there is no evidence that Reflections was not a competent cleaner. In particular I agree with the following submission:
- “ The plaintiff had regularly attended the shopping centre before her fall and gave evidence she had never had a problem with the floor surface before the day of accident. There was no record of any prior accident that could be related back to the quality of the cleaning work done by Reflections from 2006 onwards. The CCTV demonstrated the area of the fall to be a high traffic area and therefore it is reasonable to assume it regularly had a high volume of traffic. There is no evidence the floor surface in any part of the shopping centre, and more particularly in the area of the plaintiff’s fall, was not regularly kept in a clean state. In short therefore, there is no evidence to support the allegation that Reflections were not competent cleaners .”
108. Nor is there, in my opinion, any evidence that Stockland failed to properly supervise the cleaners, to properly inspect (particular (ix)) or to comply with the minimum inspection frequency required by the contract between Stockland and Reflections (particular (xi)). I do not have to determine whether there are such duties - in effect to take reasonable steps to check that Reflections is in part carrying out the duties delegated to it - because if there are, there is no evidence of any breach by Stockland.
109. Returning to particulars (iv) and (v) – to have and maintain an adequate system of inspection and to provide a safe means or system of cleaning - Stockland points to the terms of the contract between it and Reflections to show that these duties have been discharged, not breached. In my opinion the following provisions of the contract make out that submission. In Schedule One under the principal heading “Specification and General Requirements for All Shopping Centres” and the particular heading “General Requirements” the first paragraph reads as follows:
- “ Notwithstanding the specific requirements of this Schedule, there is an overall requirement to keep each Shopping Centre clean at all times in accordance with best practice and as may be determined from time to time by reference to relevant standards and legal authorities. Each morning the Centre will be handed over clean and will be maintained as such throughout the day .”
Under the same subheading cl 1 reads as follows:
“2. Stockland relies on the experience and expertise of the Contractor to determine the level of manning required to achieve the required standards and complete the area rotations in the times specified .”“ 1. The Contractor will provide all necessary equipment, chemicals, tools, labour, supervision and management necessary to clean the centres as specified.”
In addition under the subheading “1. Daily Cleaning Requirements” are the following dot points:
“. All common mall areas and public facilities must be circulated every 15 minutes.
. Spillage to be attended to as seen with appropriate signage displayed.
. Response time in excess of 2 minutes is considered to be unacceptable.
. Cleaners to respond to 2 way radio communications re: spillages, promotional display, assistance etc.
. All calls to the cleaning staff to attend spillages etc. must receive immediate attention .”. During trading hours constantly maintain floor area of the Malls in a clean manner by use of dust control mops, wet mopping and removal of dropped litter and other actions necessary to keep floor clean at all times.
Generally I accept Mr Reynolds’ submissions on this issue.
110. In my opinion Mrs Losurdo has not satisfied me on the balance of probabilities of her claim that Stockland was guilty of negligence.
111. It follows that I find a verdict for Stockland in these proceedings.
112. In the event that I am wrong in my primary finding and the verdicts are set aside I will proceed to consider the other issues raised in the case.
Issue 4: Was there any contributory negligence on the plaintiff’s part?
113. Stockland argues that if Mrs Losurdo is successful against it then there ought to be a finding of contributory negligence on Mrs Losurdo’s part to a modest extent based on not looking where she was walking.
114. I do not accept that submission. A person keeping a proper lookout walking through a busy shopping centre could easily miss, in my opinion, a chip on the floor. It was not a pool of coloured liquid or an obstacle in her path. It was something one is not likely to readily see until one has trodden on it, despite being reasonably careful.
Issue 5: Was there a breach of contract by reflections? Was Reflections negligent?
115. Mrs Losurdo argues there was negligence on Reflections’ part. That negligence is demonstrated by the CCTV she says. The footage shows that the only time the cleaner came down the aisle where she slipped was to clean up after she slipped. This was in breach of Reflections’ contract with Stockland, which provided that common areas in the shopping centre were to be maintained to a high standard during trading hours and all “common mall areas and public facilities must be circulated once every 15 minutes” (Schedule One, “Daily Cleaning Requirements”).
116. Stockland too argues that there appeared to be a failure on Reflections’ part to inspect and clean the aisle where Mrs Losurdo fell which should have occurred between 10.30am and when she fell at 10.50am.
117. Mrs Losurdo attributes negligence to Stockland as well in these circumstances. As I understand her argument she says that the system in place would have failed in any case to detect the chip, which was the same colour as the floor.
118. The factual basis for that argument is slender. I think Mrs Losurdo’s argument depends on an inference the chip is the same colour as she would expect a chip to be and such a colour matches the floor colour seen on the CCTV. I can see the floor colour on the CCTV but, as Mr Reynolds points out, there is no evidence describing the chip. I would need more specific evidence than this before I would conclude that the colours of the chip and the floor were such that the system would fail to detect it.
119. In any event, the system which Stockland had in place by a contract with Reflections provided for Reflections during trading hours to “constantly maintain floor area of the malls in a clean manner by use of dust control mops, wet mopping and removal of dropped litter and other actions necessary to keep the floor clean at all times” (page 17/70) I am not satisfied that Mrs Losurdo has demonstrated that the contaminant, that is the chip, would not have been detected by the system which Stockland had in place.
120. Mrs Losurdo also argued that a failure by Reflections to take reasonable care for her safety by not cleaning in accordance with the contract reflected on Stockland, which had an obligation to provide safe premises. That obligation is stated too widely. Stockland did not have an obligation to Mrs Losurdo to provide safe premises. It had an obligation to provide premises which were as safe as reasonable care in the circumstances would produce. Stockland exercised adequate reasonable care in the circumstances by contracting with a properly qualified cleaner to keep its premises as safe as reasonable care in the circumstances would produce.
121. Mrs Losurdo raised the question whether a system which provided for cleaning every fifteen minutes was adequate in the circumstances. I say “raised the question” because, as Mr Reynolds observed, I did not understand Mrs Losurdo to positively assert that such a system was inadequate. It was, as Mr Rowe pointed out, a highly used thoroughfare, but it was not as Mr Reynolds observed, a food court area where one might expect slippery contaminants to fall more often on the floor. This is reflected in the contract which provides for five to ten minute rotations in the food court area.
122. I have reviewed the CCTV footage again since seeing it in court. As Mr Reynolds correctly observes I cannot accept counsel’s assertions from the Bar Table - made during and about the showing of the CCTV - as evidence. But I can take them as submissions about the content of the CCTV.
123. One thing that is apparent from the CCTV is that Mrs Losurdo fell in a busy thoroughfare. The floor at the spot where she fell at just after 10.50am (according to the CCTV clock) was traversed by a significant number of people. No one before Mrs Losurdo’s fall appeared to encounter any difficulty at that spot.
124. Mr Rowe argues that I cannot conclude from those observations that the chip had been there for only a short time. He says that it could have been there for hours. Had the cleaner complied with the contract and cleaned the aisle between 10.30am and 10.50am then Mrs Losurdo would not have slipped.
125. Before going any further I should record that I am satisfied that Mrs Losurdo slipped on a chip that was on the floor. She says she saw the remains on her shoe and the cleaner, in completing a statement which became Exhibit F, refers to a “piece of chip”. (Strictly speaking the reference to the piece of chip appears in the part of the form seeking information about whether there was a hazard before the accident. I take that to be an error on the cleaner’s part in filling out the form. No one relied on or addressed it.) Also, the cleaner, on the CCTV at the point of attending the fallen Mrs Losurdo, appears to pick something up or, at least, to reach down to the floor.
126. Mr Hourigan argues that his client was not in breach of the contract. On balance I would be satisfied that Reflections was in breach of its contract. There is no evidence of the cleaner attending to the aisle where Mrs Losurdo fell over the period between 10.30 and 10.50. Although the contract is not specific about what “circulated” means I infer from general provisions such as a requirement to keep the centre “clean at all times” and to maintain it “to a high standard during trading hours” that “circulated” means more than look down the aisle from a distance. The circulation required by the contract must be an effective means of keeping the centre clean to the standard required by the more general provisions of the contract. It seems to me that Reflections failed to circulate that aisle within the twenty minutes in question.
127. Although finding that Reflections breached the contract, there is another question and that is whether the breach of the contract gave rise to the injury. Mrs Losurdo has to satisfy me on the balance of probabilities that the negligent behaviour of Reflections (either in breach of the contract or not) brought about - that is caused - the accident. I infer from the accident free passage of many people over the very same place where Mrs Losurdo fell that it was unlikely the chip was there long before Mrs Losurdo slipped on it. More accurately expressed, Mrs Losurdo has not satisfied me on the balance of probabilities that any negligence by Reflections contributed to her accident. What I am not convinced of by Mrs Losurdo is that even if Reflections had discharged its duties to Stockland and to her, the accident would not have happened in any event. I think it more likely that the chip had been there for a matter of minutes and that Mrs Losurdo was unfortunately the first person to step on it in such a way as to cause her to fall. Mrs Losurdo has not satisfied me that any negligent failure by Reflections resulted in her accident.
Issue 6: Is Reflections liable to Stockland under the indemnity if Mrs Losurdo succeeds against Stockland?
128. There is a question about the operation of cl 15 of the contract which provides for a form of indemnity to Stockland if it suffers a loss “arising out of or in connection with any breach of this agreement or negligence by the supplier or any of its employees, servants or agents”.
129. Mr Hourigan, counsel for Reflections, realistically - and correctly in my opinion - conceded that if I find Mrs Losurdo succeeds against Stockland because of Reflections’ negligence, then Reflections must bear the loss because of the indemnity clause. That that must be right follows from the plain meaning of the clause as well as from the authorities I was referred to: New South Wales v Tempo Services Ltd [2004] NSWCA 4 and Westfield Shopping Management Pty Ltd v Mastercare Property Services Pty Limited [1998] NSWSC 457.
130. However if I find that both Stockland and Reflections are partially negligent then there must be an apportionment, argues Mr Hourigan. I think that is right too. It is right because the indemnity clause even though headed “INDEMNITY” must indemnify Stockland “except to the extent such conduct involving any negligence or wilful default of Stockland contributed to the loss, damage, injury or death, the Supplier’s liability to indemnity Stockland will be reduced in proportion to that contribution.” I am not sure how that provision would operate if, for example, the negligence of the proprietor was in failing to select a competent cleaner but that question does not arise.
131. Clauses 1 and 23(a) of the Cross-claim filed by Stockland against Reflections, although not referring in terms to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946, clearly seek relief in terms of that provision. However Mr Hourigan argues that reliance on that Act is not actually pleaded. I think he has a point because the pleading seems to be limited to a claim in contract in reliance on cl 15. Reliance on the statute is not pleaded in terms. Mr Reynolds argues on the other hand that the statute applies because the Cross-claim amounts to “proceedings for contribution”. But s 5(2) of the Law Reform (Miscellaneous Provisions) Act 1946 refers not just to “proceedings for contribution” but “proceedings for contribution under this section”. As I have said, Stockland seeks contribution in the Cross-claim but not, it seems, under s 5 of the Act but pursuant to cl 15 of the contract. Reliance on the statute I repeat, is not pleaded.
132. Reflections also argues that there is no evidence of a breach by it of the contract. I have already found that Reflections was in breach of its contract.
133. I do not expect it to arise but Reflections would have to point to any prejudice it would suffer - which is not presently apparent to me - of allowing Stockland to amend its Cross-claim to a plea of reliance on the Law Reform (Miscellaneous Provisions) Act 1946.
Issue 7: Mrs Losurdo’s pre-existing medical condition
134. Mrs Losurdo relied on a series of medical reports which became Exhibit B. Apart from radiological and casualty reports, the only treating doctor was a shoulder surgeon. Mrs Losurdo’s solicitors also referred her to an orthopaedic and psychiatric specialist for opinions.
135. Stockland and Reflections challenged the reliability of all the medical evidence apart from the radiological evidence. The challenge is based on inadequate or wrong histories.
136. I think the challenge is effective when it is examined. Dr Bokor, the treating shoulder surgeon had “no history of preceding problems” with Mrs Losurdo’s left shoulder upon which he performed a procedure. He attributed a diagnosis of chronic tendonitis to the fall but Mrs Losurdo had been seeing a rheumatologist (Dr Gotis-Graham) for some years before the fall. Nearly four years before the accident the rheumatologist had diagnosed “bilateral shoulder supraspinatus tendonitis” which he treated by injecting the left shoulder because the pain there had become “problematic”. She still had bilateral shoulder complaints up to six months before the fall. As Mr Hourigan argued, I am not satisfied that what Dr Bokor found at his operation was much more than wear and tear.
137. The qualified orthopaedic specialist, Dr Mahony, noted only gynaecological matters in the history. He diagnosed problems with Mrs Losurdo’s neck, shoulder, middle and lower back, finding them consistent with the fall. Dr Mahony knew nothing of Dr Gotis-Graham’s history of low back pain for many years before his first consultation on 10 February 2003. He had diagnosed her with “thoracic lumbar spine degenerative disease”. He prescribed medication. Mrs Losurdo had complained of neck pain to her GP, Dr Romeo, a few weeks before the fall.
138. The qualified psychiatrist was a Dr Lee. He diagnosed depression because of pain from the fall. He thought that the injury had “caused her a mood disorder secondary to her physical injury”. But this diagnosis was based on a history in which Mrs Losurdo “emphasised that she had no psychological problems before the injury” and was not taking medication on account of any “depression or anxiety”. But as early as 2001 Mrs Losurdo had been complaining to a GP about her depressed mood. She was diagnosed with depression and anti-depression medication prescribed. There were complaints over the years of anxiety and panic attacks. She told a neurologist whom she saw in 2004 (Dr Griffith) that she had been taking medication for anxiety “for about 20 years”. He diagnosed her “predominant problem is that of anxiety with depression”.
139. As Mr Hourigan pointed out, Mrs Losurdo was on a significant amount of medication both before and after the fall. It seems to me, on an examination of the GP practice’s notes, that many of the medications she was taking after the fall had also been prescribed before the fall.
140. Although Mrs Losurdo’s claim attributes headaches to the fall and she said in evidence that her headaches were no more than the usual beforehand, the histories pointed to by Mr Hourigan show otherwise. She was complaining of severe headaches in 2002, so much so that she was referred for a CT scan.
141. In my opinion the evidence supports Mr Reynolds’ submission which he sets out in [64] in the following terms, and which I accept:
- “ In view of the plaintiff’s medical history it is clear she had constant pain in her neck, back, legs and shoulders for many years prior to her fall on 5 May 2007. She had been taking considerable medication for her pain prior to the fall and the medication had not provided much relief. In relation to her shoulders (and particularly the left shoulder) she had experienced increasing pain prior to the fall and had undergone several injections into both shoulders. The plaintiff had been prescribed a lot of medication, much if not all of which she continued to take following her fall.”
142. The weight I can place on the reports of Dr Bokor, Dr Lee and Dr Mahony must be reduced considerably. (Even so Dr Bokor had concluded that Mrs Losurdo “has made an excellent recovery and currently has no significant disability related to that shoulder”.)
143. Dr Gotis-Graham, the rheumatologist who has been treating Mrs Losurdo for many years noted the fall in his report to the GP two days later, on 7 May 2007. He noted severe back pain which was “different to her normal low back pain”. The next report in evidence is nearly two years later and makes no mention of the fall. Nor do any later reports. His latest report in evidence dated 2 June 2009 diagnoses thoracic and lumbar spine degenerative disease.
144. The report from the Emergency Department of Fairfield Hospital, given on the day of the fall, noted that Mrs Losurdo’s left lower thoracic area produced “significant… para-spinal muscle spasm”. X-rays showed “a small compression fracture” in her thoracic spine and the author, Dr Bennett, diagnosed a “[p]robable acute compression fracture of T-11”. Although the MRI ordered by Dr Gotis-Graham and performed on 11 May 2007 showed a “wedge compression deformity of T-11 vertebrae” it went on to say that it “appears to be of some age” and displayed no “evidence of oedema, haematoma or other focal abnormality”. The significance of that last observation was explained by Dr Anthony Smith, an orthopaedic surgeon qualified by Stockland, in a report dated 22 October 2009, where he said that there was “no fracture in the spine. In the event that the compression anomaly at T11 was a fracture sustained on the occasion of the injury on 05/05/07, then the MRI undertaken six days later would demonstrate a fracture haematoma surrounding it - which it doesn’t. There would be increased signal because of the increased blood flow in the area - and there isn’t any.”
145. In my opinion the medical evidence which can be relied upon supports no more than an aggravation of previously symptomatic conditions. Both Stockland and Reflections acknowledge that was the highest Mrs Losurdo’s case could be put. (Dr Smith diagnosed a short term aggravation to the spine.) Mr Rowe realistically acknowledged the obvious, that the real problem in the case was the evidence of the former history.
146. The fall aggravated Mrs Losurdo’s pre-existing spinal problems and a problem in her left shoulder as well as no doubt contributing to her anxiety and depression. How long did it last? That is hard to say but Dr Gotis-Graham makes no mention of the fall 2 years later. I think it probably lasted longer than Dr Smith’s 3-4 months, but no more than 2 years and I so find.
Issue 8: The credibility of Mrs Losurdo and her husband
147. The credibility of both Mrs Losurdo and her husband were made an issue by Stockland and Reflections.
148. Stockland pointed to what an unreliable historian Mrs Losurdo was. That must be right. Her histories to a number of doctors omitted very significant information.
149. Mr Hourigan argued that Mr Losurdo’s evidence demonstrated a predisposition to contrast his wife’s pre and post accident condition and capacity in a way favourable to her case. That was the highest the submission was put and no suggestion was made to Mr Losurdo (or submission to me) that his evidence was fabricated. I think there is some force in this argument, but not more than the natural inclination a person would have to give supportive evidence about their disabled spouse. So I am a little circumspect about his evidence, but I do not reject it.
150. So Mrs Losurdo’s reliability is in my opinion significantly compromised and Mr Losurdo’s just a little affected.
151. I do not believe either witness was deliberately dishonest. I accept what Mr Rowe argues, that neither gave the impression of being cunning, misleading or deceitful. There were, as Mr Rowe frankly acknowledged, problems with their evidence, but neither was trying to mislead the court.
Issue 9: Damages for non-economic loss
152. Given my finding that Mrs Losurdo suffered a temporary aggravation, lasting a couple of years, of pre-existing orthopaedic and psychiatric conditions, would she be entitled to any damages for non-economic loss? Section 16(1) of the Civil Liability Act 2002 prevents me from awarding her any such damages “unless the severity of the non-economic loss is at least 15% of a most extreme case”.
153. Mr Rowe argues that the severity of her non-economic loss is 30% of a most extreme case. She can no longer support her husband - he has to support her around the house. I take into account Mrs Losurdo’s age but also the possibility, given her pre-existing condition, that something else might have brought about such a result in any event. Although this is possible, I am looking at a fairly narrow period of time of a couple of years.
154. Mr Reynolds argues that the severity of Mrs Losurdo’s non-economic loss would not reach 15% of a most extreme case so she would not be entitled to any such damages.
155. I think, given the temporary but not insignificant nature of Mrs Losurdo’s injury, that a generous estimate would be that her non-economic loss would have been 20% of a most extreme case. Therefore she would have been entitled in accordance to s 16(3) of the Civil Liability Act to 3.5 per cent of the maximum amount that may be awarded. The current maximum amount is $473,500, so her damages for non-economic loss would be $16,572.50.
Issue 10: Damages for economic loss
156. Mr Rowe argues that his client had a growing small business at selling Bessemer products and that the growth of that business has been limited by the impact of her injuries on her capacity to develop that business. He argues that a cushion of $40,000 should be allowed “for her loss of economic capacity both past and future”.
157. Mr Reynolds on the other hand argues that there is no independent evidence of economic loss. There are three Notices of Assessment for the tax years 2006, 2007 and 2008. They apparently show the only income as Mrs Losurdo’s pension.
158. Mrs Losurdo said she sold her Bessemer products but there is no evidence of what she earned before the accident in that undertaking or what impact the accident has had on those earnings. In those circumstances there is really no basis on which I can assess her earning capacity, let alone the extent of any deprivation or impairment of that earning capacity.
159. On the other hand I accept her evidence that she sold the products and no longer does so because of her injuries. That is evidence of a reduced earning capacity.
160. Because I cannot measure the impairment in her earning capacity I would allow a nominal sum of $1000 as a cushion. Another reason for such a nominal amount is because her most likely future circumstances but for the accident would probably involve an impact on her earning capacity from other pre-existing conditions or some other aggravating event.
161. I would allow damages for past and future economic loss of $1,000.
Issue 11: Damages for gratuitous care
162. Mrs Losurdo claims amounts for gratuitous attendant care services provided by her husband, Mr Losurdo, and for the cost of care services which will need to be provided in the future.
163. I have found that Mrs Losurdo’s pre-existing condition was aggravated by the fall for up to two years. It follows that any need in the future (from now) for care services is not the responsibility of Stockland.
164. Mrs Losurdo’s claim for her husband’s gratuitous attendant care services is subject to s 15 of the Civil Liability Act. Mr Reynolds argues that given Mrs Losurdo’s previous medical history, her and her husband’s accounts of being unable to undertake domestic chores cannot be accepted. She has been demonstrated to be an unreliable historian.
165. In any event, Mr Reynolds argues, Mrs Losurdo has a capacity to do a good deal of housework such as using the dishwasher, the washing machine and the vacuum cleaner.
166. Furthermore, Mr Reynolds argues, Mrs Losurdo has not satisfied me either that her need for gratuitous attendant care services arose solely because of her injuries from the accident or that the services were provided for at least six hours per week. Both would be disqualifying factors under s 15 of the Civil Liability Act.
167. I have found that the accident had a temporary disabling impact on Mrs Losurdo. Mr Losurdo’s evidence is that affected quite markedly what she did around the house. He withstood cross-examination on details of what his wife could and could not do. I do not think he was telling untruths, but he did not demonstrate an awareness of his wife’s medical condition before the accident. I do not regard Mrs Losurdo’s medical history as a reason to reject his evidence.
168. Mrs Losurdo’s argument is that her need for gratuitous attendant care services is demonstrated by the report of J. White in Exhibit C and by her husband’s evidence.
169. I do think that Mrs Losurdo would have difficulty doing the domestic tasks which she and her husband were cross-examined about. However I think that over the period of the 2 year effect of the aggravation, her need would at some point not have arisen “solely” because of the injury which this case is about.
170. I accept the report of Ms White (she was not cross-examined and there was no contradictory evidence). The accountant Mr Davey has done the calculations. As it happens his calculation for past care is over a period of 2 years. It amounts to $82,507. I would be prepared to allow about two thirds of that because at some stage in that period the need would cease to be “solely” attributable to this injury. I would allow an amount of $55,000.
171. For the purposes of s 15 of the Civil Liability Act, I accept that there was a reasonable need for the services to be provided for at least 6 hours a week and that for some 15 months or so the need was solely because of this injury and the services would not have been provided to Mrs Losurdo but for the injury. I would allow an amount of $55,000.
Issue 12: Damages for out of pocket expenses
172. Mrs Losurdo claims for her out of pocket expenses for treatment provided to date and asks for an allowance for future expenses.
173. Her medical and pharmaceutical expenses to date are mathematically agreed to be $10,277.90. Mrs Losurdo says I should allow the average weekly cost of pharmaceuticals to date ($22.52) into the future for her estimated lifetime. The figure is $16,613.39, calculated in accordance with MFI 6. An allowance of $15,000 should be made for medical and other expenses. Mr Rowe acknowledge that the period could be less than her lifetime because of her pre-existing condition probably catching up with her in any event.
174. Mr Reynolds argues that the evidence does not show a sufficient distinction between her expenses before the accident and those afterwards. In other words I cannot determine what impact, if any, the accident has made on her financial outlays for treatment.
175. I think Mr Reynolds has a good point. I have already observed that many of Mrs Losurdo’s prescribed medications appear in her GP’s notes before and after the accident. On the other hand I have found that the fall aggravated some pre-existing conditions for no more than two years. That period has now expired.
176. I would allow $2,000 for past out of pocket expenses to date and nothing for the future.
Verdict and judgment
177. I enter a verdict and judgment for the defendant.
Now there is an agreement about the cross-claim I gather Mr Arvelo.
ARVELO: Indeed your Honour.
HIS HONOUR: That’s between you and the cross-claimant and Mr Downey has agreed that the cross-claim may be dismissed on the basis that each party pay its own costs and that’s your position as well?
ARVELO: That is correct, yes.
Cross-claim
178. As for the cross-claim, that is dismissed and each party will pay its own costs of the cross-claim.
ADJOURNED
ARVELO: Your Honour I do apologise.
HIS HONOUR: That’s all right Mr Arvelo.
179. What you need is an order that the plaintiff pay the defendant’s costs? I so order.
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