Cousins v Hall - [2012] WADC 110

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: COUSINS -v- HALL [2012] WADC 110

CORAM: BRADDOCK DCJ

HEARD: 8-11 MAY 2012

DELIVERED : 6 JULY 2012

FILE NO/S: CIV 2432 of 2009

BETWEEN: CLIFFORD LESLIE COUSINS
Plaintiff
AND
DOUGLAS CHARLES HALL
CHRISTINE ETHEL HALL
REGAN MAXWELL BENNETT
MERRYL WINIFRED BENNETT
Defendants

Catchwords:

Limitation of actions - Personal injury - When plaintiff aware - Not insignificant personal injury - Landlords' duty of care under s 9 of Occupiers' Liability Act 1985

Legislation:

Occupiers' Liability Act s 5, s 9
Limitation Act 2005 s 14, s 39, s 55
Civil Liability Act 2002 s 9
Health Act 1911
Health (Food Hygiene) Regulations 1993

Result:

Plaintiff out of time
No breach of duty
Judgment for defendants

Representation:

Counsel:

Plaintiff: Mr R W Bower & Mr T R Kean
Defendants: Mr J R Criddle

Solicitors:

Plaintiff: Corser & Corser
Defendants: SRB Legal

Case(s) referred to in judgment(s):

Abreu v Thomas Peacock & Sons Pty Ltd [2012] WADC 31
Jones v Bartlett (2000) 205 CLR 166

BRADDOCK DCJ:

Introduction

In 2006, Clifford Cousins was a butcher employed by MMG (WA) Proprietary Limited (MMG), a company which traded as the IGA supermarket in Jurien Bay. The defendants are jointly the owners of the Jurien Bay shopping centre in which the IGA was located.
Initially, Mr Cousins was employed by the defendants directly from the middle of 2005. In October 2005, the defendant sold the business to MMG, and leased the supermarket premises to them. After that, the defendants had nothing to do with the running of the supermarket, or the butchering business within it.
The supermarket premises had a 'meat room' away from the retail area. This was about 6 m x 6 m in size where the butcher prepared meat for display and sale in the supermarket. The room was tiled and had a cool room, together with benches both around the sides and a movable workbench in the centre. It had hand washing facilities and a trough for washing dishes. There was various equipment in the room for the purposes of the trade. The floor had a drainage outlet containing a grease trap which had to be emptied every day.
When first employed by the defendants, Mr Cousins was able to complete his work without incident, but after the new owners MMG took over, the business improved and his workload increased in intensity and hours.
Mr Cousins then suffered a number of falls at work, which he claims were due to the floor surface which he described as being like 'an ice rink'. Mr Cousins says he first slipped and fell on New Year's Day 2006. He says he had subsequent falls on 13 February and 18 July 2006.
After that first fall, Mr Cousins suffered pain behind his left knee, but following subsequent falls this increased to pain up the back of his left leg and in his back. He sought medical advice and attention. He was ultimately found to have suffered from a disc herniation.
He was sacked on 19 August 2006, when he told his supervisor that he was going to Perth for back surgery. He made a claim for worker's compensation, which he ultimately settled.
Mr Cousins now sues the defendants, as the owners of the property, alleging that they breached their duty under s 9 of the Occupiers' Liability Act 1985, causing him to fall and suffer his injury.
The defendants deny that they owed the duty alleged and deny the breaches alleged. The writ having been issued on 18 August 2009, the defendants raise s 14(1) of the Limitation Act 2005 and say that Mr Cousins in not entitled to maintain the action.

The plaintiff's position

Mr Cousins claims that although he had slipped and fallen at work on New Year's Day 2006 and on a number of occasions after that, it was not until he had a consultation with Dr Liddell, which he placed on 22 August 2006, that he learned about the connection between his symptoms and the falls that had been happening at work. At that point he says he learned from Dr Liddell that he had damaged his spine, which was then treated by surgery. Mr Cousins gave evidence that until that point nobody suitably qualified had been able to tell him what was the cause of his problem.
Mr Cousins does not claim that the defendants were occupiers of the supermarket premises, but that they owed him a duty by reason of the rights reserved under the lease to the owners with regard to the state of the premises.

The pleadings

The statement of claim sets out details of the parties, the fact that the plaintiff slipped and fell in the meat room whilst employed at the IGA supermarket and was dismissed on 19 August 2006. It is claimed that the plaintiff became aware for the first time on 22 August 2006 that he had sustained a not insignificant personal injury to his back. The statement of claim pleads that the defendants were the lessors of the land and recites certain clauses of the terms of the lease. It pleads in paragraph 18.5 that 'the defendants were the landlord of the premises and as such were bound by the Occupiers Liability Act 1985 s 9'.
The statement of claim separately relies upon s 5 of the Occupiers' Liability Act claiming that the defendants owed the duty under that section to Mr Cousins.
Counsel for Mr Cousins in opening disavowed that pleading and said that Mr Cousins was not asserting that the defendants were occupiers jointly with MMG. He relied solely upon the landlords' duty of care under s 9 of the Act. That duty is expressed as:
Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it shall be the duty of the landlord to show towards any persons who may from time to time be on the premises the same care in respect of dangers arising from any failure on his part in carrying out his responsibilities of maintenance and repair of the premises as is required under this Act to be shown by an occupier of premises towards persons entering on those premises.
Mr Cousins alleged that the defendants breached this duty of care:
by allowing the following dangers to exist, in that they:
1.failed to ensure that the floor of the meat room was constructed of non‑slip material;
2.failed to ensure the floor of the meat room was constructed of a material which did not hold moisture;
3.failed to ensure the floor of the meat room drained water away and the floor was laid so that there was no ponding of water on it;
4.failed to ensure the design of the floor of the meat room was in compliance with the Health (Food Hygiene) Regulations 1993 (WA) Schedule 3 paragraph 12(3) as in force from 15 July 2005;
5.failed to ensure that the design of the floor of the meat room was in compliance with the National Construction Code.
As a result of these breaches it is pleaded that Mr Cousins slipped and fell on the floor and suffered a severe trauma to his lower back resulting in microdiscectomy surgery to his spine.

The issues

The following issues arise:
1.When did Mr Cousins become aware that he had suffered a 'not insignificant personal injury', as required by s 55 of the Limitation Act?
2.Are the defendants responsible under the lease for the maintenance or repair of the premises in which Mr Cousins worked for MMG?
3.If the defendants are so responsible, did they breach their duty of care to Mr Cousins?
4.What is the extent of the injury suffered by Mr Cousins due to falls at the defendants' premises?

The evidence

Plaintiff

Mr Cousins described the butcher's operation in the store as taking place in a small meat room some 20 m from the actual store, where people shopped. The room was all tiled. He said 'it looked flash and clean' but that, to a butcher, the floor was totally wrong. He said it had a refrigeration door which had to be opened all day to take meat in and out, which used to allow condensation from the fridge onto the tiles, and it was 'like an ice rink'. He said he managed alright at the start but as the business got busier he had to go faster and on occasions he slipped.
He said the floor tiles were a foot square, flat, no ridges and glazed. He said he had never previously slipped over in a butcher's shop, and that usually butchers' shop floors were concrete. He said when cleaning the floor at night liquid detergent was used to mop the floor, and it became like an ice rink to the extent that he was hanging onto the bench and using one hand to mop the floor. He said he had many falls, the first of which was New Year's Day 2006.
He described that as follows:
I went from the bench where I work which was probably to the left of walking out of the fridge door. I walked out of the fridge door, I had some meat in my hand, walked up to the bench and as I got alongside the bench which is alongside the grease trap both my feet went out from under me. I landed flat on my backside, wasn't impressed.
He described the fall as being like a jarring of his teeth or somebody whacking you under the chin and he was shocked. He went out, sat down, had a coffee and went back to work. He said he was sore, but did not specify further.
He said after that, he had trouble with pain in his leg behind his knee. He never put it down to the fall. He went to the doctor about it. He was sent for an ultrasound and was told there was nothing wrong with his knee. He was sent to a physiotherapist in Jurien Bay and he asked to take two weeks off to see if the problem would ease up.
He gave evidence of a further fall on 13 February. In cross‑examination, he said this fall occurred at about eight in the morning and he agreed that he had pain in his back immediately after that. He also agreed that he had pain going from his back down his leg at that time. He saw the doctor on 16 February 2006, and went to Geraldton for a scan. He insisted that the main pain was behind his knee and that was what he was worried about.
He spoke to Kim Meers, the supermarket manager, about the falls many times, as a result of which he purchased a rubber mat for the floor, for which the employer reimbursed him.
The pain behind his knee got worse if he coughed or sneezed. He said he had never had knee problems previous to that. He said the first doctor he consulted would have been Dr Mikaiel.
He went on to say that every time he had a slip or a fall, his pain was getting worse in the period between January and June.
He took time off and within a day or two of going off work his back locked up whilst he was vacuuming at home and he could not move. That pain seemed to come from the back down behind his knee and down to his foot. He was taken down to Perth, saw Dr Mikaiel and was referred to physiotherapy.
He agreed in cross‑examination that this was around 24 or 25 March. He agreed that he would have told Dr Mikaiel about his falls at work and would have told him he had pain in his back radiating down his leg. He saw Carl Sturtridge, a manipulative therapist, who said he needed a scan: that was why he saw Dr Mikaiel. He agreed that he told Dr Mikaiel he had fallen at work. He said also that he had told him he had pain mainly behind his knee and radiating down his leg. He agreed he would have read the report from the scan but he did not understand the report. He agreed that Carl Sturtridge manipulated his back, as treatment for what he saw on the scans. He denied he really knew that he had an injury to his back at this stage.
He was prescribed painkillers including Tramadol which he used whilst continuing to work. He agreed that he saw the doctor in Jurien Bay on 14 June, when scans of his lumbar spine were available. He agreed that he discussed those with his doctor. He was sent for physiotherapy, to a Kerry Morecambe who told him the pain was radiating from the back.
He said he thought he had another fall on 18 July, after which he went to the same GP who recommended he see an orthopaedic surgeon. The GP telephoned the orthopaedic surgeon to make an appointment. He said by the July fall he had started to get pain radiating from his back down to the knee and down to the feet. He accepted that probably, in his own mind, he thought it could be in the back. However, he said that: 'I had no proof and that's what I was looking for'. He said he was looking for someone to tell him 'if you do this I can fix your problem'.
In cross‑examination, he was referred to his diary for 18 July where he accepted he had recorded that 'slipped on the floor at work again and hurt back again' which he said meant that 'he landed on his arse again'. He agreed under cross‑examination that he related the slip and fall to the injury to his back. He said, 'I was assuming that's what the problem was ‑ yes'.
However, he denied that he knew at the time that the fall at work had resulted in an injury to his back. His response to that was 'I had no concrete evidence from anyone to say that a fall at work had caused this injury. I could assume it but there was – I had nothing from anyone to tell me that it was'.
His employment he said was terminated on 19 August 2006 when he told Mr Meers that he had to go to Perth for surgery.
He said he could not get in to see the orthopaedic surgeon until 20 August. He kept working and kept taking painkillers. He said he had the surgery the next day. Under cross‑examination, he conceded that he may have seen Dr Liddell on 21 July 2006, but he did not remember seeing him before the operation. It was Dr Liddell who told him that he had a rupture of the disc in his back and asked him if he had any falls. He had actually asked Dr Liddell what would cause the injury. The doctor said that falls could do it. He claimed that it was the first time he realised the pains were caused by an injury from the fall. He did not recall seeing Dr Liddell on two separate occasions prior to his surgery.
He accepted that when he saw Dr Liddell on 22 August, he told him that his employment had been terminated and that he was provided with a quote for the operation costs on that day. The operation was on the following day.

Dr Liddell

Dr Liddell gave evidence for the defendants. He confirmed from his records, particularly his first letter to the referring GP, that he first saw the plaintiff on 21 July 2006. His letter to the GP records that 'the principal incident appears to have occurred approximately a month prior to Easter, at that time he landed on his backside following which he developed the acute onset of pain in the middle of his lower back radiating down the back of his left leg'.
He described the plaintiff experiencing pain in the back of his left leg, also almost constant paraesthesis radiating down the back of his left leg to the sole of his foot together with some non‑specific weakness. He reviewed an unenhanced lumbar‑sacral CT scan performed on 31 March 2006 and noted evidence of a small but significant disc herniation on the left at L5/S1 and L3/4. He had arranged to investigate further with some functional views of the lumbar‑sacral spine and lumbar‑sacral MRI scan and had arranged for him to be given a quotation for a lumbar microdiscectomy.
He saw Mr Cousins again before the surgery on 22 August when he was told his patient had been sacked. Surgery proceeded on 23 August 2006 uneventfully.

Other medical evidence

Dr Ayo Olowookere was a general practitioner in Jurien Bay in 2006. Mr Cousins was a patient of the practice. He saw Mr Cousins on 7 June 2006, when he was complaining about pain behind his left knee increased by coughing and sneezing. He found nothing on examination of the knee and he sent Mr Cousins for an ultrasound. He saw Mr Cousins again on 14 June 2006. At that second appointment, he had a CT scan and the results were discussed. The CT scan showed a nerve root compression and he would have explained the ramifications of that. He prescribed pain medication: Tramal. His next consultation was on 19 July 2006, when he noted that the patient was still suffering pain in the left leg radiating from the back and referred him to a neurosurgeon. He said that a few weeks later he got a note from the neurosurgeon.
Dr Trevor John Kay also practised in Jurien Bay and first saw Mr Cousins on 28 September 2006. At that time he prescribed Tramal, an analgesic and Fenec, an anti-inflammatory medication. Mr Cousins reported he was still getting back pain but was much better following surgery. He was not fit for work at that stage as he was still recovering from the surgery. By 5 January 2007, he was improved and fit for a restricted return to work, six hours per day four days per week, with no heavy lifting. On 30 March 2007, Dr Kay saw Mr Cousins who had complaints of pain behind his left knee. Dr Kay was aware that Mr Liddell had referred him for an MRI scan. By 13 August 2007, Dr Kay was aware that Mr Cousins had been working, although he was complaining of pain in his left knee aggravated by coughing and sneezing. In September, Mr Cousins said he could not work without analgesics.
In September of 2010, Dr Kay ordered an x-ray and a CT scan of the lumbar spine and wrote to Mr Liddell about Mr Cousins, concerned that he had symptoms suggestive of an ongoing pathology in his spine. Under cross‑examination he confirmed that on 13 March 2007 the plaintiff was 90% better with intermittent pain behind the left knee. He had worked as a shop assistant.
A letter from Dr Mikaiel was tendered in evidence, by consent. It confirmed that he saw Mr Cousins in March 2006 at which time Mr Cousins told him he had fallen at work and was suffering with backache radiating into his lower left limb. He had been unable to work for two weeks at that point and the doctor prescribed anti‑inflammatory medication and Tramal. The letter gives the date of accident as 13 February 2006.
The Perth Radiological Clinic performed a scan on 31 March 2006 and reported to Dr Mikaiel. That scan reported a disc protrusion at L5/S1 compromising the left S1 nerve root and left lateral foraminal disc protrusion at L3/4 impinging upon the left L3 nerve root.
Geraldton radiology performed an ultrasound on 7 June 2006 on the left knee, finding no abnormality.
An MRI of the lumbar spine on 22 August 2006 confirmed a left paracentral disc protrusion at L5/S1 possibly compressing the left S1 nerve root.
On 13 December 2010, an MR scan of the lumbar sacral spine showed a broad based central foraminal to extra foraminal disc protrusion on the right impinging on the exiting the right L4 root with oedema in the dorsal root ganglion. Previous surgery at L5/S1 with left laminectomy was noted.

Other evidence

A letter from Mr Kim Meers, the manager of the IGA supermarket dated 7 September 2006, addressed 'To whom it may concern' was tendered in evidence, by consent, at the end of the trial. Mr Cousins did not comment upon this letter in his evidence in chief, nor was he cross‑examined upon it. The letter confirmed that Mr Cousins' employment had been terminated on 19 August 2006. It stated that during the term of his employment no mention was ever made about workers' compensation for his alleged injury. This was only raised upon his termination on 19 August 2006. The letter repeats that on 'Saturday, 19 August 2006 in my conversation with Mr Cousins after he'd been terminated he raised the aforementioned workers compensation issue stating that the alleged injury occurred whilst being employed by MMG'.

Chronology

From all of the above, I find the relevant chronology to be as follows:
June 2005plaintiff employed at Dewsons Supermarket
14 October 2005            lease and supermarket business taken over by MMG
1 January 2006              plaintiff falls in meat room
13 February 2006          plaintiff falls again
27 March 2006              attends Carl Sturtridge
29 March 2006              plaintiff consults Dr Mikaiel
31 March 2006              CT of lumbar spine
7 June 2006                   plaintiff consults Dr Olowookere
7 June 2006                   ultrasound of left knee, normal
14 June 2006                 plaintiff referred to physiotherapy
18 July 2006                  plaintiff falls
19 July 2006                  plaintiff consults Dr Olowookere, referred to neurosurgeon
21 July 2006                  plaintiff consults Dr Liddell
19 August 2006             plaintiff dismissed
22 August 2006             plaintiff sees Dr Liddell, MRI scan
22 August 2007             milligram and CT of lumbar spine
23 August 2006             surgery by Dr Liddell, microdiscectomy
18 August 2009             writ issues
14 September 2010        x‑ray lumbar‑sacral spine
14 December 2010        plaintiff consults Dr Liddell
13 December 2010        MR lumbar‑sacral spine
15 December 2010        further surgery

The accrual of a personal injury action

Section 55 of the Limitation Act provides:
(1) A cause of action for damages relating to a personal injury to a person accrues when the only or earlier of such of the following events as are applicable occurs –
(a)the person becomes aware that he or she has sustained a not insignificant personal injury;
(b)the first symptom, clinical sign or other manifestation of personal injury consistent with a person having sustained a not insignificant personal injury.
A personal injury is defined as 'a disease, impairment of a person's physical condition and mental disability'.
An action for damages relating to a personal injury to a person cannot be commenced after three years have elapsed since the cause of action accrued: s 14(1) of the Limitation Act.
The term 'aware' is not defined in the Limitation Act. It is a common English word in common usage and the Shorter Oxford English dictionary describes it as an adjective, bearing the meanings, relevantly: 'conscious, sensible, not ignorant, having knowledge'.
The meaning of the phrase: 'a not insignificant' personal injury was considered in Abreu v Thomas Peacock & Sons Pty Ltd [2012] WADC 31 by Keen DCJ. He concluded it is an injury sufficiently serious to justify commencing an action, something that is not trifling, trivial or negligible. In this case, the issue is not principally the nature or extent of the symptoms but when it was Mr Cousins became aware that the symptoms were related to an accident that had occurred at his workplace.
Put another way, the issue is when did Mr Cousins become conscious, or had knowledge that his fall or falls at work had caused his symptoms?

Findings of fact on accrual of the action

The history that the plaintiff fell on a number of occasions was not directly challenged during the course of the trial. I find that the plaintiff did suffer a number of falls at work, on or about the dates given by Mr Cousins and set out in the chronology: 1 January, 13 February and 18 July 2006. There were suggestions of other occasions, in the same time period, but these were not specific and do not add anything to the current issue.
As a result of the falls, the plaintiff suffered symptoms, initially and immediately behind the left knee, but subsequently in the back of the left leg. After 13 February 2006, he conceded that he had pain in his back and radiating down the left leg.
He continued to work. When he took some leave, his back 'locked up' whilst he was performing a light domestic task and he sought manipulative therapy in Perth. He saw Dr Mikaiel, and he was referred for a CT scan. That was the end of March 2006.
I find that he told Dr Mikaiel he had had falls at work. This is recorded in the doctor's letter of 30 March and was not disputed by Mr Cousins.
Mr Cousins saw Dr Olowookere in Geraldton on 7 and 14 June, at which time a scan was available to the GP and clearly reported nerve root compression. I find that this fact would have been communicated to Mr Cousins, whether or not he understood the technical meaning of it. An ultrasound by that time had shown nothing wrong with his left knee, which Mr Cousins knew.
His GP referred him to a neurosurgeon. This was Dr Liddell. I find that Mr Cousins first saw Dr Liddell on 21 July 2006. My reasons for so finding are that firstly, Mr Cousins' evidence was firmly that when he first saw Dr Liddell, it was explained to him that the falls at work might cause the disc protrusion he then displayed. Dr Liddell offered surgical intervention. The evidence establishes, whether the plaintiff remembers the date or not, that he saw the surgeon a month before his surgery on 21 July 2006, at which time, he had it confirmed that his symptoms related to his falls at work. Dr Liddell reported the position on this date to the GP in writing.
He had been suffering symptoms for a number of months prior to that. I find on balance of probabilities that he was aware, from the time that he saw Dr Mikaiel and had had the report on the results of the first lumbar sacral CT scan, that there was an injury to his back which was connected to the falls he described. But by the time he had his first consultation with Dr Liddell on 21 July 2006, his knowledge or awareness was beyond doubt.
Further, it is undisputed that at the time his employment was terminated, on 19 August 2006, he indicated to the manager that he was claiming for a work‑related injury. This is the significance of the letter from Mr Meers on this issue. This is chronologically inconsistent with Mr Cousins' assertion that he only became aware of it being a work related injury on 22 August 2006, the second date upon which he saw Mr Liddell.
In my view, it is not necessary that a person have a definitive diagnosis from a consultant neurosurgeon as to the mechanism of his pain and advice as to treatment, for him to be 'aware' that a fall which precipitated symptoms was likely to have caused the symptoms. Mr Cousins' descriptions of the falls, the fact that, as he put it, he landed on his 'arse' and the immediate onset of pain would indicate to any reasonable person that there was a causal connection. I find that Mr Cousins was so aware.
There is no suggestion that the symptoms were anything other than significant, at any stage. They caused the plaintiff to seek medical attention, to travel to Perth for physiotherapy, to consult Dr Mikaiel and Olowookere and have various investigative procedures.
Accordingly, I find that the plaintiff was aware, at the latest, on 21 July 2006 that he had suffered a not insignificant personal injury, being a fall or falls at his workplace resulting in the damage to his back. His claim cannot be maintained for this reason.

The defendants' obligations under the lease

The lease is a commercial tenancy for five years, of a supermarket, with options to renew. Under the terms of the lease (CL 4) the defendants granted to MMG the right to possess and use the leased premises, to have access in common with the lessors and other authorised persons to the common areas in the shopping centre and to use fittings and fixtures and accessories.
The lease includes (CL 52) a provision for 'quiet enjoyment' subject to the provisions of the lease and the lessors' rights.
The lessee is to keep the leased premises in good repair (CL 16) having regard to that condition at the beginning of the lease, but need not carry out structural works, unless caused by their negligence, repairs due to fair wear and tear, all repairs due to natural disaster and the like. The lease (CL 18) gives the defendants or its agents at all reasonable times the right to enter and view the premises for the purposes of repair and cleanliness.
Under cl 19 the lessors (or its agents) may enter the leased premises for any one of a number of purposes, including complying with statutory obligations, carrying out structural works and dealing with services such as air‑conditioning, water pipes and the like, and enables the lessors to carry out any repairs that the lessors reasonably think should be carried out amongst other things. Clause 19(3) provides that throughout the lease the lessors shall at their cost carry out any structural works reasonably required to keep the lease premises watertight and in good structural condition, except to the extent that the need for such works has been caused by the negligence misconduct or breach of the lease by the lessee.
The lessors did not represent or warrant that the leased premises are suitable to be used for the permitted use (CL 30). The permitted use of the premises is as a supermarket.
On reading these relevant clauses of the lease, it is clear that the defendants were responsible for certain repairs and maintenance under the lease, in some circumstances. The lessees were generally responsible, pursuant to clause 16 of the lease, for repairs and maintenance. As Gleeson CJ said in Jones v Bartlett (2000) 205 CLR 166 [45]:
Whilst it is true that more than one person may be in occupation of premises at any given time, ordinarily when premises are subject to a lease, during the term of the lease, by virtue of the right of exclusive possession, the tenant is the occupier of the premises and the landlord is not. That accounts for the presence in the Act of s 9.
In the same case at [80] Gaudron J observed that it was trite law that different persons may occupy the same premises at the same time, but that once the lessee had entered into possession of premises the lessor no longer occupied those premises. The lessor only has such control of the premises as is reserved by the lease.
The Occupiers' Liability Act, s 9, is drafted in terms 'is responsible for the maintenance or repair of the premises'. The lease in this case makes it plain that there are a number of different categories of activity in the nature or maintenance or repair envisaged in the terms of the lease. In my view, the responsibilities for maintenance and repair under this lease were, at least potentially, shared by the lessors and the lessees as set out in the lease, depending, for example, upon whether they were structural and who caused the need for repair.

The defendants' obligations under s 9 of Occupier's Liability Act

The existence of a potential responsibility for maintenance and repair does not determine the issue of liability under this section. The duty imposed by s 9 is to show the same care as is required of an occupier towards people on the premises in respect of dangers arising from any failure on the landlord's part in carrying out his responsibilities of maintenance and repair. The use of the possessive pronoun in relation to these responsibilities is apposite and allows for the possibility of various parties having different responsibilities.
This duty, to show the same care in respect of dangers arising from any failure on his part in carrying out his responsibilities of maintenance and repair of the premises, does not equate the landlord to an occupier for all purposes, as is seems to have been assumed in the way the statement of claim was framed.
The crucial question is whether any danger arose from any failure on the part of the defendants in respect of maintenance and repair of the premises for which they were responsible. The danger in issue must be considered to be the alleged slippery condition of the floor. Only if that were due to a failure of maintenance or repair by the landlords could there be a breach of the duty of care imposed by s 9.

Findings of fact on the defendants duty of care

I find that Mr Cousins fell because of the surface of the floor in the meat room was slippery. When used as a butcher's preparation area, at the speed at which he was required to work for MMG's business, it tended to become slippery. Mr Cousins' evidence was general in this regard.
This slipperiness was said variously to be a result of condensation ie, water on the floor from the cool room door, debris on the floor or water and detergent when the floor was being cleaned. There was no allegation that any fall occurred during the course of cleaning activities. I find that such danger as there was arose most likely to be because of the activity taking place in the meat room, involving debris, blood or other liquids on the floor and the speed at which Mr Cousins was working. On the evidence, it is not possible to determine with precision the cause of each fall save to say that the floor was slippery. There was no evidence that the floor of the meat room had deteriorated in any way so as to require repair. It was simply a tiled floor. There is no evidence that the defendants had done anything with respect to the floor or the meat room since the lease commenced.
The allegations of breach in par 20 of the statement of claim (as amended), relate solely to matters of design or construction:
1.A failure to ensure the floor was constructed of nonslip material. The only evidence on the construction of the floor was from Mr Cousins that it was tiled.
2.A failure in the construction, by holding moisture. As the floor was constructed of a hard and impervious surface, this allegation appears to be irrelevant. There was no evidence that the floor held moisture, and, given that it was a tiled floor, 'holding moisture' would be inconsistent with common experience.
3.A failure to ensure that the floor of the meat room drained water away so there was no ponding of water on it. There was no evidence that any 'ponding' caused any of the falls or the failure of drainage played any defined role in any fall.
4.A failure to comply with the Health (Food Hygiene) Regulations 1993.
This claim may be easily disposed of. The regulations apply to the 'proprietor', in relation to food premises. This term is defined in s 246G of the Health Act 1911 to mean the owner of the premises or, if the owner of the food premises is not the occupier, the occupier of the food premises. The defendants were not occupiers of the supermarket premises at the relevant times. Such a claim was not pursed at trial. MMG were the occupiers, the employers of the plaintiff and responsible for the activities in the supermarket. The duty under the regulations applied to the occupier, MMG, or the persons apparently in charge of the food premises as proprietor of the food premises, not to the defendants as landlords.
5.A claim that the design of the floor failed to comply with the National Construction Code.
Again this allegation has no merit. There is no evidence to support this contention. No evidence was lead of the requirements of this code or how the floor related to that code.
The particulars of breach of duty 4 and 5 must fail. Particulars 1, 2 and 3 relate to construction. The evidence shows that defendants were the occupiers of the premises immediately prior to the lease being entered into, but there is no evidence that there was any deficiency at that time in relation to the floor or indeed before that time. On the contrary, Mr Cousins said he had no problem prior to MMG taking over.
There was no evidence about the construction of the floor at all, when or by whom it was designed or installed, nor was there any expert evidence as to its properties or deficiencies. None of the allegations concerning construction was brought about by the failure of the landlord to carry out any identifiable works under the lease to maintain or repair. Further, there was no evidence that the defendants knew or ought to have known that a problem had arisen concerning the floor of the meat room.
The duty under which arises under s 9 of the Occupiers' Liability Act is not co‑extensive with that of an occupier, nor is it the duty of an employer. It is a specific duty to take care in relation to dangers arising from any breach of responsibilities placed on a landlord to maintain or repair.
I find that there was no failure by the defendants to repair or maintain, as imposed upon them by the lease. Therefore, no danger could have arisen from any such failure. Mr Cousins has failed to make out any breach of the duty under s 9.

Damages

I assess damages for the sake of completeness.
From 1 January 2006 the Mr Cousins suffered pain which was behind his left knee. After 13 February 2006 this pain increased and was also in his upper thigh and probably his back. By March of 2006, his back had locked up, he had seen Mr Sturtridge for spinal manipulation and Dr Mikaiel had ordered a CT scan. He was then suffering considerable back, leg and knee pain and disability.
He continued to work although in considerable pain, relying on large quantities of analgesic and anti-inflammatory medication. He suffered a further fall which exacerbated his condition and resulted in his being referred to a neurosurgeon, Mr Liddell. He underwent spinal surgery, which alleviated his pain to a considerable extent. He would have had pain, disability and discomfort in the postoperative period, and rehabilitation. He was left with pain behind the left knee and some continuing back and referred pain symptoms. I find that he was not fit for work for the balance of the year 2006. By January 2007, he was certified able to be return to work on a partial duties basis.
Mr Cousins has never returned to work as a butcher. He has worked in a bottle shop and tried a job on a mine site, driving a front end loader for about three months. The latter I find was later, probably in 2010. He said he had tried to get other work, but without success.
In about August 2008, he received payment by way of settlement of his workers' compensation entitlements, in the sum of $90,000. He said he did that because he was keen to get back to work.
On his tax returns, it appears that he had some employment at the Jurien Bay liquor store for a short time, whilst receiving workers compensation payments in the year 2007 ‑ 2008. In the tax year 2008 ‑ 2009 he had some employment with Wellards Feeds Pty Ltd, also for a very short period. He did some driving work, although there is no documentary evidence of this.
In 2010, he had pain in his right lower limb, possibly for six months ending up in Swan Districts Hospital on 12 December 2010. There he again saw Dr Liddell. He told him he had been driving a front end loader. He had further surgery on 15 December 2010. Dr Liddell was not able to state with any degree of certainty that the further surgery was a consequence of the effects of the work related falls in 2006.
I am not satisfied that the later problem in his right leg, emanating from his back and the subsequent surgery on his spine, with the associated pain and disability can be attributed to the falls in 2006. Firstly, there is no evidence of radiology or in the opinion of the treating neurosurgeon to support this. Dr Liddell conceded a possibility of connection, but such a possibility is far from evidence to establish a matter of fact. Secondly, the location of the problem in 2010 was distinct from the presenting problem in 2006. An MR scan of the lumbar‑sacral spine on 13 December 2010 showed a central foraminal to extra foraminal disc protrusion on the right at L4, which was not present on 22 August 2006. Thirdly, a period of three to four years had elapsed. Mr Cousins gave no evidence as to the development or progression from pain on the left side to the right side. He said simply that his back 'locked up' again one day, causing him to return to Mr Sturtridge, the manipulative therapist.
I find that by August of 2008, at the latest, he had substantially recovered from the effects of the injury at MMG, but was left with some residual disabilities. I find that the subsequent problems have not been shown to be caused by the falls in 2006.
My assessment of damages relates only to the injury to the L5/S1 posterio‑lateral disc herniation, the surgery in 2006 and subsequent incapacity.
As a result of his injury in 2006, Mr Cousins had to cease employment as a butcher. I consider it would always have been wise to confine himself to less strenuous duties, not involving heavy lifting or bending. His enjoyment of life was restricted, due to pain and immobility and he was obliged to suffer the effects of painkilling and anti‑inflammatory drugs. He had difficulty sleeping, difficulty driving any distance, walking or sitting for extended periods. He could no longer go fishing or play golf. Certainly, the year of 2006 would have been difficult, painful and his usual pleasures would have been impossible to enjoy. I find that he had ongoing symptoms of a less severe kind in the following year, 2007. He lives alone and does not go out much. He used to enjoy the company of the opposite sex.
I accept that his condition had stabilised by the time he settled his workers' compensation claim, but that it would not have been reasonable to expect him to return to his pre accident employment, or other heavy work. He had an ongoing partial incapacity.

I also find that in mid to late 2010 he suffered a further injury or degeneration to his back which led to the further surgery by Dr Liddell. This was unconnected to the work injury. There was no evidence from which it was possible to discern the extent to which the prior injury continued to operate after this surgery. He has been totally incapacitated since and now receives a disability pension. I find that this subsequent event has broken the causal link with the effects of the earlier work injury and is responsible for his current incapacity.

General damages

For pain and suffering, the loss of amenities and enjoyment of life's activities I would award the sum of $40,000. The Civil Liability Act, s 9, applies, therefore a deduction of $17,000 is required from this figure.
This would result in an award of $28,000.

Financial past losses

Mr Cousins received workers' compensation payments prior to the redemption of his claim. The tax documents (exhibit 4) show that prior to the accident his annual salary was $59,800 gross, ($48,800 net). He received income of $16,316 in the year 2006 - 2007. In the following year he worked for Jurien Bay Liquor store and earned $402 net, as well as his workers' compensation payments. I proposed to ignore this small sum. By the start of the tax year 2008, I find he had a partial residual incapacity of $24,400. Exhibit 4 does not include the tax return for 2009 ‑ 2010 or 2006 – 2007. On the available material, taking a broad brush approach, the losses I assess up until December 2010 are:

Loss of earnings

19 August 2006 to 30 June 2007  $ 32,484
2007 – 2008  $ 48,800
2008 – 2009  $ 24,400
2009 – 2010  $ 24,400
2010 to 1 December 2012  $ 10,000
Total [rounded]  $140,000
Loss of superannuation  $ 12,600
Interest $ 14,650

Out of pocket expenses

A schedule of agreed expenses paid and income received was tendered (exhibit 3). The expenses included do not extend beyond August 2007. They include hospital, medical, chemist, pathology, physiotherapy, rehabilitation, travel and some general medical items. The quantum of the expenditure was not disputed I adopt the figures included. Insofar as Mr Cousins may have been otherwise compensated for any item, this would have accounted for, but is outside the scope of the current exercise.
Expenses incurred $ 27,378

Future losses

I make no award for future loss of earnings or superannuation or expenses.
Total damages assessed at $222,628

Conclusions

I find that Mr Cousins was aware of 'a not insignificant personal injury' caused by falls at his workplace more than three years prior to the issue of the writ in this action on 18 August 2009. The defendants are entitled to judgment on this basis.
That is sufficient to dispose of the action. However, I further conclude that Mr Cousins has failed to establish any breach of duty of care owed to him by the defendants as landlords of the premises in which he worked. The claim fails also on this basis.