Gaynor Colleen Smith v Jones Land LaSalle Pty Ltd

[2013] NSWDC 155

District Court

New South Wales

Medium Neutral Citation:	Gaynor Colleen Smith v Jones Land LaSalle Pty Ltd [2013] NSWDC 155
Hearing dates:	25, 26, 27, 28 February; 1, 4 March 2013
Decision date:	28 March 2013
Before:	Judge MJ Finnane QC
Decision:	See Paragraph [48]
Catchwords:	PERSONAL INJURY - trip and fall - injury to knee - lower back injury CAUSATION - crack in marble tile - NEGLIGENCE - defendants' inadequate system of identifying risk - EVIDENCE - insufficient to establish cause of injury
Category:	Principal judgment
Parties:	Gaynor Colleen Smith (Plaintiff) Jones Lang LaSalle (Defendant)
Representation:	MJ Maxwell (Plaintiff) D Feller SC (Defendant) RA O'Keefe Brydons Law Group (Plaintiff) Vardenega Roberts (Defendant)
File Number(s):	2011/405560

Judgment

Introduction

1. Mrs Gaynor Colleen Smith, the plaintiff in these proceedings sues the defendant as the occupier of the Southgate Shopping Centre at Sylvania for damages arising from her fall in that shopping centre on 23 October 2009.

1. The plaintiff was walking towards the St George bank, which was located in the centre when she tripped and fell on the floor in front of the bank.

1. Her claim was that the defendant was negligent in permitting a cracked tile to be present on the floor in front of the bank. It was her case that she tripped on the crack in the tile when her shoe got caught in it.

1. CCTV footage was tendered (See Exhibit P6) and played in court and showed the plaintiff walking across the floor and tripping. One of the controversies in the case was whether she tripped on the crack or tripped somewhere else.

1. The defendant sought to prove that she slipped in a place some distance from the cracked tile by calling evidence from Mr William Bailey, a qualified industrial and biomedical engineer, to which the plaintiff replied by calling evidence from Miss Tia Orton, a qualified mechanical engineer. I heard the engineering evidence on the voir dire and excluded all but a small part of it as being irrelevant and inadmissible.

1. The evidence satisfies me that the plaintiff, tripped on tiles in front of the St George bank, but I cannot be certain that the tiles she tripped on had a crack in them. She may have slipped or tripped on a cracked tile, but if she did, it was not the crack in the tile that caused her to trip.

1. I am satisfied on the evidence that the crack on the tile was not raised, nor was there any gap that would cause or could cause her foot or shoe to be caught in it. I have no doubt that she believes she caught the toe of her right foot in the crack on the tile but the evidence does not support her belief because the crack was not raised and there was nothing in which she could catch the toe of a shoe.

1. The result of the fall was that she suffered soft tissue injuries to her back and her right leg. These injuries did not require any surgical intervention and in my opinion, those injuries have ceased to have any effect on her. If I am wrong and she is entitled to damages, she would be entitled at most to less than 15% of the most extreme case. The result will be that there will be a verdict for the defendant and I will hear submissions on the question of costs.

Facts

1. The plaintiff was born on 15 August 1939 and is now 73 years old. She has had surgery to both of her hips and to both of her knees. The left hip surgery was done after the accident and was not related to the accident. The surgery on her right hip and both of her knees was done before the accident.

1. In her younger days, the plaintiff was a model with the June Daley-Watkins Academy and was also a dancer and a showgirl at two clubs, the Diamond Horseshoe and the Latin Quarter, respectively. The question of her weight before and after the accident was a live issue in the proceedings.

1. In 1993, she was 95 kilograms, in 1997, she was 93 kilograms and in 2005, she was 93 kilograms. She is quite short at 165.1 centimetres (5 feet 5 inches). She was cross examined about her weight, but denied her weight was that shown in Sutherland Hospital records in the years I have mentioned (See exhibit D14).

1. At the time of the accident, the plaintiff worked for her husband in a business in which she did office work, banking and a certain amount of delivery work. He was a pest controller and did that work himself. The plaintiff and her husband lived on a farm in Kangaroo Valley. She did the office work from this home. Additionally, she rode a lawnmower and did the lawns. She also cared for dogs and some poultry. She also rode some horses she and her husband owned and she did work around the home.

1. As well as this, she has spent a lot of time over the years caring for some grandchildren. She could dance at social events.

1. She also claimed that she exercised by running to the front gate of the Kangaroo Valley property, usually accompanied by one or more of her dogs. She said that she was about 11 stone (69.85 kilograms) at the time of the accident but was now 16 stone (101.6 kilograms).

1. I have examined the CCTV footage to which I earlier referred. In my opinion, it shows the plaintiff to be a rather bulky woman walking with a shuffling or swaying gait, in a hurry towards the St George bank.

1. Having regard to the measurements of her weight between 1993 and 2005 and looking at the CCTV footage, I think it is very doubtful that her weight was as little as 69.85 kilograms at the time of the accident.

1. It is far more probable that her weight was more than 90 kilograms. This is a matter of some significance, having regard to the report of Dr Maxwell, that

"Because of her obesity and joint replacements and also given the fact that she had an osteoarthritic left hip, she would have had an increased risk of falling. If she started to fall forwards her momentum because of her extra weight means that she has to have increased power of her quadriceps muscles and good knee function to stop falling. At the time of the fall she did have quite severe osteoarthritis of her left hip which would have inevitably needed a left total hip replacement." (See Exhibit D14 report of Dr David Maxwell of 10/05/2012 p 6)

The Evidence

1. At the time of the accident, she appeared to be walking quite quickly across the floor of the Southgate Shopping Centre towards the St George Bank.

1. According to her, she fell on a big crack on the tiles just as she was going through into the bank. She felt her right toe go into something sharp and the door of the bank flew open and her handbag went into the bank. She did not notice anything on the floor before her fall because she was not looking down.

1. The CCTV film of the incident bears out much of what the plaintiff says. It shows her walking apparently quite quickly across the floor of the shopping centre and stumbling or tripping at a point very close to the doors of the St George Bank. Her fall appeared to be a heavy one. From my observation of the CCTV footage, the plaintiff fell forward onto her knees and then rolled onto her side once she had fallen onto the floor.

1. Photos taken on behalf of the plaintiff about two days later show a large irregularly shaped crack that appears to have been filled, across one tile. The filling appears to be coloured grey similar to the way that the filling between the tiles was coloured.

1. She said that a maintenance man came, got bags of ice and put them on her knee and the chemist came out of his shop and gave her some Panadol.

1. According to her, she said to the maintenance man "I fell down the crack here" and he then said "[M]y goodness. I'll go and get bags of ice and I'll ring the ambulance." She said that the ambulance came and took her away.

1. Subsequently, in the defendant's case, Mr Haidar al- Bekaa, a security guard, gave evidence and it is clear that she was the man to whom she spoke. She supposed he was a maintenance man. According to him, he asked her was she all right and she said, "I fell. I don't know why. There's a crack" and she pointed to the crack.

1. Mr al- Bekaa moved his hand over the crack and found it was smooth with no irregular edges and moved the sole of one of his feet over the crack and again it seemed smooth.

1. He is a well-spoken and intelligent man, who in Iraq was a physiotherapist. He took some measurements and established that the maximum width of the crack was 3 millimetres and it went as low as 2 millimetres. I have faith in his measurements, since when he was in Iraq, he was a physiotherapist and was used to making fine measurements. I also accept him as a truthful witness, who made a written report soon after the fall.

1. She was taken by ambulance to Sutherland District Hospital where she was admitted and examined. The examination found strain in the lower back and painful upper right chest. She was given analgesics and over a number of visits was given X-rays and CT scans. Nothing of significance was detected in these scans. She bruised her knees in the fall. That bruising has now resolved.

1. Her claim is that she suffered considerable pain in her back after the accident and she was not able to go back to many of the activities she engaged in before the accident. She could no longer ride horses, nor could she sit on the ride-on mower. She could not look after the farm animals, nor could she do work around the house which has led to the hiring of a cleaner once a week, three weeks in each month for four hours at $25 per hour. She also said in evidence that she and her husband are the full time carers and providers for her grandchildren. At some point prior to 2010 their care was shared between the plaintiff and her husband and the plaintiff's cousin.

1. She can still drive a motor car, but not for extensive periods of time and this has meant that she can no longer do deliveries for the business, nor can she sit at a desk for long periods to do clerical work and answer the phone for the business. She also claims that she cannot dance any longer.

Additional evidence

1. Mr William Bailey, on behalf of the defendant, gave evidence as to some measurements he took of the area outside of the St George Bank where the incident occurred. Mr Bailey gave evidence that he attended the Southgate Shopping Centre and marked out an area of nine tiles wide by nine tiles long, which on Exhibit D16 is rotated slightly and appears as a diamond with blue edging. The cracked tile is in the centre of the area.

1. The purpose of this was to determine an approximate area in which the incident took place. It is not necessary for me to comment any further on Mr Bailey's opinions in this respect, having earlier rejected those aspects of his evidence. I accept Mr Bailey's opinion that the incident occurred in the area which he marked out. I accept that the plaintiff fell in that area.

1. Mr Bailey also took measurements of the crack in the tile. He measured the width of the crack, firstly using a steel ruler and determined the width to be 5 millimeters wide. He then used a Vernier caliper for a reading of 3.6 to 4 millimeters wide, conceding in evidence that these latter measurements were "probably about a millimeter down into the crack". I accept the evidence of Mr Bailey as being consistent with the measurements taken by Mr al-Bekaa to the width of the crack.

1. Mr Bailey also gave evidence on his analysis of the plaintiff's gait and manner of walking. He agreed in cross-examination that the CCTV footage is consistent with the plaintiff tripping but it is not possible to determine the precise mechanism of the fall. He stated, and I accept that the plaintiff tripped with her right foot pushing off from the ground and then striking the ground during the swing-through movement before landing correctly as part of the normal phase of her gait. In my opinion this is the cause of the plaintiff's accident. I also accept his evidence that the plaintiff had a waddling gait.

1. The defendant called Ms Donna Karan-Filovski whose is the Centre Manager for the Southgate Shopping Centre. Ms Karan-Filovksi has worked in the shopping centre for a number of years, predominantly in a managerial role. Ms Karan-Filovski is employed by the defendant.

1. The tiles throughout the common areas of the shopping centre are made from terrazzo marble. According to Ms Karan-Filovski hairline cracks would appear in the tiles at various times due to the buildings' slab movement. She was aware of the crack in the tile in front of the St George Bank.

1. In her evidence Ms Karan-Filovski stated that the defendant had a system of inspection in place at the time of the incident. This was a daily system involving her or a member of her staff walking through the shopping centre internally and around the shopping centre externally and making observations on a form with a checklist identifying risks or problems that required any necessary rectification (see Exhibits D11 and D12). More formal hazard and risk assessment inspections were carried out on a weekly basis.

1. Although on leave at the time of the incident, her evidence was that she received a report from her staff concerning the plaintiff's fall and injuries. She read those reports. She inspected the crack. She stated in evidence that in inspecting the crack she had walked over it, run her hand and her shoe over the crack.

1. To Ms Karan-Filovski's observation the crack was not sharp and had no edge that was discernable when touched. Neither her hand, her shoe or her foot caught in the crack at all when she had inspected it. Her evidence also was that once a crack in a tile in the shopping centre had been identified, it would be reviewed on a regular basis. In her view the crack in front of the St George Bank did not form any safety risk or hazard.

1. I accept the evidence of Ms Karan-Filovski. She impressed me as a truthful and honest witness. In my opinion her evidence accords with that of Mr al-Bekaa and Mr Bailey.

1. The plaintiff called her husband, Richard Paul Smith. He gave evidence supporting the plaintiff's claim, in particular her claim for economic loss. Evidence was received that the plaintiff was paid $300 per week for her work as a secretary for the company.

1. He was cross-examined at length on this issue. Mr Smith agreed with the defendant's senior counsel that the plaintiff was "on paper she was receiving the money" with respect to her wages as shown in her tax returns for the financial years ending 2008 and 2009 (See Exhibits D2 and D3).

1. At times her wages, for working as a secretary for the company were more than his were for working as the operator of the business. At other times this scenario was reversed. On one occasion the business Pest Patrol P/L was shown to be operating at a loss of $30,000 for the financial year ending 2009 whilst paying out $58,000 in wages. In cross-examination Mr Smith agreed this was the result of some "creative accountancy" and also agreed with senior counsel's proposition that he left it to his accountant to present the best possible picture for taxation purposes.

1. I do not accept the evidence of Mr Smith. Whilst he impressed me in some respects as being an honest and hardworking man, during in evidence before me he was at times evasive, non-committal and barely responsive to questions, particularly during cross-examination. It is clear to me, from his evidence, that his financial affairs are in a state of flux and uncertainty with one of his companies being unregistered as a result of unpaid taxes and the like. It seems to me that the plaintiff did work in the business but did not really get any income from doing so. The income earned was his.

Findings and opinion

1. I can accept that, following the accident, she may have been unable to be physically as active as she was before, but I cannot accept that on the acceptable medical evidence, she was disabled for more than a few months.

1. I consider that what Dr Maxwell said offers the explanation for the fall. She was very heavily overweight, her momentum with the extra weight she was carrying, with the instability caused by two damaged knees and a replaced right hip, caused her to overbalance and she did not have the strength to stop herself falling.

1. I am also unable to be satisfied that she fell on a cracked tile or that a cracked tile had anything to do with her fall.

1. It was an unfortunate accident, but it was not causally attributable in any way to any fault on the part of the defendant.

1. This results in a verdict for the defendant.

1. If I am wrong in my analysis of the facts on liability, in my opinion she would be entitled to 10% of a most extreme case for general damages for non-economic loss and the cost of housekeeping four hours per week at $25 per hour for a period of two months.

1. There is no point in my calculating what this comes to, since it would be less than 15% of a most extreme case and the verdict, if she is entitled to anything is for a very small sum.

1. I make no provision for an economic loss claim as owing to the evidence before me. I am unable to accept she had any economic loss.

1. I will hear the parties on costs. I note that the defendant had in attendance on each day of the hearing Mr Bailey, the expert to whom I have already referred. Having regard to my findings I would want the defendant to address the question of whether it should be able to recover any costs for Mr Bailey's reports or his court attendances.

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Decision last updated: 27 August 2013