Irwin v Salvation Army (NSW) Property Trust

[2007] NSWDC 266

Reported Decision: 6 DCLR (NSW) 178

District Court

CITATION:	Irwin v Salvation Army (NSW) Property Trust & Anor [2007] NSWDC 266
HEARING DATE(S):	23 April 2007, 24 April 2007, 26 April 2007, 29 October 2007, 30 October 2007 and 31 October 2007; and written submissions on 17 November 2007, 28 November 2007, 30 November 2007, 11 December 2007 and 13 December 2007.
JUDGMENT DATE:	17 December 2007
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	Verdict for plaintiff against first defendant in amount of $333,008.76; verdict for plaintiff against second defendant in amount of $255,615.65; verdict for the respective cross-defendants against the cross-claimants on the defendants' cross-claims; each party to bear its own costs of the cross-claims; and parties to be heard on costs of the action and form of orders.
CATCHWORDS:	NEGLIGENCE - BREACH OF STATUTORY DUTY - Personal Injury - Workplace accident - Slip and fall on wet tiled floor in kitchen of an aged care facility - Occupier's liability - Liability of an employer in performing contract to provide catering services - Whether occupational health and safety regulations gave rise to right of a personal civil action - Apportionment of fault as between occupier and employer - Effect of pre-existing injuries and ailments - Effect of likely non -work related matters - Modified damages against occupier to recognise proportionate fault of employer - Limitation of damages against employer to past and future economic loss - Assessment of damages
LEGISLATION CITED:	Civil Liability Act 2002,ss 15(3) and 16(2) Civil Procedure Act 2005, ss 56 and 90 Law Reform (Miscellaneous Provisions) Act 1946, s 5(1)(c) Occupational Health and Safety Act 2000, ss 3, 32, 33 and 39A Occupational Health and Safety Regulation 2001, cll 33 and 39 Uniform Civil Procedure Rules 2005, Pt 36 r 36.1 Workers Compensation Act 1987, ss 66,67, 151G, 151H, 151Z(1)(b) and 151Z(2)(c)
CASES CITED:	Australian Iron and Steel Pty Ltd v Ryan (1957) 97 CLR 89 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Czatyrko v Edith Cowan University [2005] HCA 14 Doe d Rochester (Bishop) v Bridges (1831) 1 B & Ad 847 Elliott v Bickerstaff (1999) 48 NSWLR 214 English v Rogers [2005] A Tort R 81-800 Hackshaw v Shaw (1984) 155 CLR 614 John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 Lepore v State of New South Wales (2001) 52 NSWLR 420 Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611 O'Connor v SP Bray Pty Ltd (1937) 56 CLR 464 O'Connor v Commissioner for Government Transport (1959) 100 CLR 225 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Sungravure Pty Ltd v Meani (1964) 110 CLR 24 TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1
PARTIES:	Kerrie Irwin - Plaintiff Salvation Army (NSW) Property Trust - First Defendant Delaware North (Australia) Pty Ltd - Second Defendant
FILE NUMBER(S):	Matter No 2666 of 2005
COUNSEL:	Mr G B Hall QC and Mr V Jurisich (Plaintiff) Mr R A Cavanagh (First Defendant) Mr G J Parker (Second Defendant)
SOLICITORS:	P K Simpson & Co (Plaintiff) Holman Webb (First Defendant) Home Wilkinson Lowry (Second Defendant)

JUDGMENT

1 The present action arose from an incident which occurred shortly before 1.00 pm on 29 June 2002 when the plaintiff, Kerrie Irwin, was injured at her place of work during the course of employment. As she pushed a trolley in the kitchen, the plaintiff was caused to slip and fall on the wet floor near an industrial dishwasher and allegedly suffered injuries to her neck, shoulders, left knee and back and later developed problems with her left hip. The plaintiff was then employed as a kitchen hand or catering assistant on a part-time basis by Delaware North (Australia) Pty Limited, the second defendant, in its provision of catering services to The Salvation Army (NSW) Property Trust, the first defendant, at premises in Wollongong Road at Arncliffe owned and operated by it as an aged care facility known as Macquarie Lodge; the facility catered for about 114 residents.

2 As a result of the injuries, it was claimed the plaintiff was unable to work until early-January 2003 when she returned to work reduced hours until the employer terminated the employment on 25 October 2004 because of her inability to work longer hours. She has since remained off work and has received workers compensation benefits from the second defendant’s insurer on a continuing basis. It was said the injuries from the occurrence made her now totally incapacitated and effectively unemployable. She is presently 54 years of age.

The claims, defences and cross-claims

3 The plaintiff sued the defendants in negligence and for breach of statutory duty for damages arising out of the subject incident on 29 June 2002. The claim against the second defendant was brought in its capacity as the plaintiff’s employer and against the first defendant as the occupier of Macquarie Lodge, being the premises where the injuries were sustained, with responsibility for care and control. It appeared that the first defendant in conducting the aged care facility contracted with the second defendant to provide catering services for the residents, including the provision of all meals and cleaning of the kitchen and dining areas; the first defendant was to supply the necessary materials and equipment, such as catering equipment and equipment located in the kitchen areas and associated store rooms. For its purposes, the second defendant employed a manager, chef and various staff, including the plaintiff, in the kitchen on meal preparation and they used the equipment and facilities made available by the first defendant. Such staff remained under the direction and control of the second defendant as their employer.

4 Essentially, although many separate particulars were relied upon, the plaintiff’s allegation of negligence focused on the defendants’ alleged breach of their respective duties of care to provide a safe place and system of work. As to the first defendant, it was specifically said that it also failed to remove water from the kitchen floor and failed to properly maintain and repair the dishwasher; as to the second defendant, it was said it also failed to remove water from the kitchen floor and to properly drain the floor.

5 The defendants alleged contributory negligence against the plaintiff for failure to take reasonable care for her own safety. However, in evidence this defence was not pursued and was ultimately abandoned during submissions. It is unnecessary to further deal with this aspect.

6 As against both defendants, the plaintiff relied on a statutory count for breaches of cll 39(a) and 39(e) of the Occupational Health and Safety Regulation 2001 in that as controllers of the premises they failed to ensure safe access to all parts of a place of work and that the kitchen floor was safe without risks of slips, trips or falls, had adequate drainage and had appropriate floor coverings.

7 The defendants denied liability and injury to the plaintiff and the issues of the entitlement to and quantum of any damages in favour of the plaintiff were strongly resisted.

8 In turn, each of the defendants sued the other by way of cross-claim for contribution and/or indemnity pursuant to the provisions of s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 for their respective shares of any liability found for the plaintiff. In addition, the first defendant claimed damages against the second defendant for any liability it incurred to the plaintiff by way of breach of contract. Apparently, as it was alleged, the defendants made an agreement on 7 June 2002 in relation to the provision of the catering services at the premises whereby the second defendant was to ensure the creation and maintenance of a safe working environment, to maintain equipment in good working order, to advise of equipment requiring repair, to advise of damage to property and to take all reasonable steps to prevent the spillage or leakage of water from the industrial dishwasher concerned onto the surrounding floor area – those contractual requirements were said to have been breached by the second defendant.

9 However, during final submissions, the defendants informed the Court that the cross-claims had been settled and no determination was sought in respect of them, with a document to be filed disposing of them one way or the other once the outcome of the plaintiff’s claim against the defendants was known. It transpired after debate that the defendants were content with an order, but not to be made until the end of the proceedings, that by consent the cross-claims be dismissed with each party to bear its own costs. Nevertheless, it was accepted that the Court would still be required on the plaintiff’s claim to apportion any fault of each of the defendant’s for the purpose of applying s 151Z(2)(c) of the Workers Compensation Act 1987. Senior counsel for the plaintiff opposed any such deferment in disposing of the cross-claims and submitted all issues should be dealt with at trial; he sought an order that the defendants pay the plaintiff’s costs of the cross-claims which, in any event, raised similar issues to those in the plaintiff’s claim but which the defendants were seeking to withdraw from the Court although wholly resisting the plaintiff’s claim.

10 I have to express some sympathy with the plaintiff’s position. Even so, the defendants are entitled to settle the cross- claims as between themselves but not, in my view, to be dealt with at the end of the proceedings after the plaintiff’s claim has been determined. The cross-claims were made and, in the absence of consent orders made during the trial disposing if them, I think they should be heard and finally disposed of at the same time as is the plaintiff’s claim against the defendants. As I ruled during the hearing:

All I want to say at this stage is that the cross-claims have been made and the defendants have the opportunity in these present proceedings to put to the Court what they wish to put in relation to those cross-claims.

If, however, those cross-claims are not pursued or abandoned, or otherwise dealt with by the parties without addressing and pursuing the matter in these proceedings, then it will be unsurprising if at the end of the proceedings judgments are not entered in relation to each cross-claim in favour of the respective cross-defendants, with each party to bear its own costs…

…I will reserve the question of (the plaintiff’s) costs to be dealt with at the conclusion of the proceedings when I deal with, to finality, any verdict and judgment on the cross-claims themselves…

11 As it happened, the defendants did not further pursue the cross-claims. Accordingly, I consider a verdict and judgment should be entered for each respective cross-defendant with each party to bear its own costs. It is not appropriate for the plaintiff to have her costs of the cross-claims because, in my view, there were not shown to be any incurred.

12 The provisions of the Civil Liability Act 2002 apply to the determination of the plaintiff’s claim against the first defendant. The Workers Compensation Act in Div 3 of Pt 5 applies as to modified common law damages against the second defendant, being limited under s 151G thereof to damages for past and future economic loss of earnings; there was no issue that the threshold in s 151H of at least 15 per cent permanent impairment resulting from the plaintiff’s injuries had been met. In assessing the final quantum of any damages due from the first defendant to the plaintiff, s 151Z(2)(c) of the Workers Compensation Act will require application to recognise the statutory reduction for the contribution to which the first defendant would be entitled to recover from the second defendant as the employer and joint tortfeasor.

13 Finally on these aspects of the claims, it is to be noted it was agreed that the plaintiff had received workers compensation benefits from the second defendant’s insurer which, I was informed, were made up of medical expenses of $47,773.55 and weekly payments of $109,479.20 up to 14 November 2007 and then continuing plus a lump sum payment of $32,500 under ss 66 and 67 of the Workers Compensation Act - thus, the total benefits to the approximate date of trial amount to $189,752.75. That amount, whatever the final figure may be at judgment date, is to be deducted from any damages awarded against the first defendant and repaid to the second defendant under s 151Z(1)(b) of the statute.

Plaintiff’s background

14 The plaintiff was born on 6 September 1953 so that at the date of the accident she was 48 years of age and 54 years at the date of trial. She left school in 1967 at the early age of 14 years on the completion of Year 8 in secondary school and worked for a few months in the retail industry with Coles as a shop assistant and then from 1968 to 1970 as a live-in nanny. From 1970 to 1974 the plaintiff was engaged in home duties and on 21 May 1975 she married Colin Anderson and had four children with him over the period December 1972 to April 1979; they separated in September 1988 and were divorced in 1997. In the meantime, in 1995 she commenced a de facto relationship with Michael Russell, an invalid pensioner, and married him in 2004 only to be separated at the end of 2005; however, it seems she and Mr Russell remain good friends and he now visits the plaintiff at her home on a daily basis. She resides with her disabled father for whom she cooks and washes.

15 In 1995, the plaintiff while raising her children re-entered the workforce and obtained various positions, apart from a two-year period from 1987 to 1989 when she was occupied in home duties, in the catering industry at nursing homes as a cook and catering attendant and also as a nursing assistant. In October 1993 she obtained a fork lift driver’s licence and used that qualification to obtain a second job as a process worker and fork lift driver at Finemore’s Transport until 1994 because, as she said, “the rent had gone up…I was a single mother…the cost of living had gone up…I had children.” However, in 1995 during employment at the Royal Bexley Nursing Home the plaintiff sustained an injury to her back when lifting a patient and could not work until late-1999. That injury resulted in her having in 1997 an L5 laminectomy and an L4/5 disectomy and L4/5 root canal clearance performed by Dr Ronald Sekel at St George Hospital; she has since suffered back pain for which strong morphine medication continues to be taken and she was earlier under treatment by a pain specialist, Dr R F Gorman, on a regular basis. Earlier, in 1994 or 1995, the plaintiff at work injured her shoulder and in 1972 or 1973 she hurt her head and left knee in a motor vehicle accident – any residual problems had since resolved from these two incidents.

16 In a report dated 13 October 1998, Dr Sekel expressed the following views about the plaintiff’s back condition:

Mrs Irwin has been left with permanent disability in the back, which will prevent her from re-entering the workforce. It is possible that she could perform light duties where she is able to sit and stand at will, but being practical I doubt that she is in fact employable, especially on the dose of analgesia required to control her symptoms.

She requires assistance with the heavier household duties. I would have thought she would be fit for sweeping and lighter household duties, but would be unfit for vacuuming, cleaning the bath, washing windows and moving heavy furniture, but she would be able to move chairs. She would need assistance with heavier items after shopping, this adding up to four hours per week for assistance.

I do not believe that further surgical treatment would be of any help to her, or that prolonged physiotherapy would be of benefit.

Mrs Irwin is assessed at having a thirty percent permanent impairment of function of her back, and a ten percent permanent loss of efficient use of each lower limb at or above the knee, to include below the knee, as a result of the injury at work on 25.4.96.

17 Dr Sekel in further reports of 25 November 1998 and 7 March 2000 effectively affirmed his earlier opinion, noting “no real change in her overall condition”. Even so, the plaintiff maintained, after seeing Dr Gorman and being placed on pain medication, that she was able to resume employment in late 1999 when she commenced part-time work at Macquarie Lodge as a catering assistant in the kitchen for Spotless Catering Company; she said, “I had looked for another job because I wanted to work…I like working.” Initially, the work was for 12 hours per week but those hours increased to 16 then 20 and 32 hours per week by 2002 over four shifts of 8 hours each on Tuesday, Wednesday, Saturday and Sunday; the plaintiff emphasised “as time wore on I proved myself to be fit enough and good enough to work.”

18 It appeared that Spotless was replaced by the second defendant as the catering contractor at Macquarie Lodge for the first defendant in September 2001 and the plaintiff then became an employee of the second defendant.

19 Apart from the problems with her back from the 1995 work injury at the Royal Bexley Nursing Home, the plaintiff had a clinical history of other medical conditions pre-dating the subject accident. However, a review of her evidence disclosed either some reluctance to acknowledge such problems or simply to deny them which, of course, has the result of reducing the effectiveness otherwise of the plaintiff’s evidence. For instance, this evidence emerged:

Q. Immediately before the fall did you have any problem with your left knee?
A. No, I didn’t, Mr Hall. I had no problem with my legs at all.

Q. Did you have any problem immediately before the fall with your shoulders?
A. No, I didn’t have nay problems with my shoulders.

Q. Any problem with your neck?
A. Not before the fall.

…

Q. Mrs Irwin, did you suffer from pain in your neck at any time prior to the incident on 29 June 2002?
A. No.

…

Q. At no time before June 2002?
A. I never had that pain in my neck.

Q. Mrs Irwin, did you suffer from any problem with your left knee at any time during the 12 months prior to 29 June 2002?
A. No. Not to the point, no.

…

Q. When you were in the witness box on the last occasion I asked you some questions about some prior problems you had?
A. Mm-hmm.

Q. I’m just going to ask them again to see if you still adhere to the evidence you gave on the last occasion. Do you understand that?
A. Okay.

Q. I said this to you, “Mrs Irwin, did you suffer from any problem with you left knee at any time during the 12 months prior to 29 June 2002.”…And you said, “No, not to the point – no.” Now, that answer wasn’t correct, was it?
A. No.

Q. You were suffering from problems with you left knee during the period from January 2002, weren’t you?
A. I had swelling just below my knee to halfway down my leg, yes.

…

Q. And are you saying that where you really had pain and swelling, was in the left shin?
A. No, I’m saying from below the knee.

Q. Below the knee?
A. Yes, at the bottom of the knee halfway down my leg I had swelling. The pain was up under the knee; that’s where the pain was.

Q. Did you have swelling in the left knee?
A. A little bit. Yes, I did.

…

Q. I asked you also this question: “Did you suffer from pain in your neck at any time prior to the incident of 29 June 2002?” and you said, “No.” Now, that answer was incorrect as well, wasn’t it?
A. Yes, it was.

Q. You said, “I never had pain in my neck.” That answer was incorrect, was it?

A. Yes.

Q. Similarly – I don’t think I asked you this question but I ask you now. You agree, don’t you, that you also suffered from pain in your hip prior to the accident?
A. I can’t remember any pain in the hip prior to my accident.

Q. Could I just show you a document which is a copy of a record of the St George Hospital, 22 July 2001. Do you see that that records you were attending and complaining of some sort of problem with your left hip?
A. No, it says left groin.

Q. Doesn’t it also mention left hip?
A. No, it states it was painful.

20 The record dated 21 July 2001 of the Emergency Department of St George Hospital showed the plaintiff presented at 9.38 pm with leg pain and was assessed with “lower leg swelling, right leg also swollen but not as much, took own MS Contin 1 hour ago, pain bearable at present.” The notes included comments – “…lower back pain/left hip and left leg pain…Lumbar disectomy 4 years ago by Dr Sekel following severe lower back pain…Left knee reconstruction age 19 (denied in evidence by the plaintiff but probably related back to the injury from the motor vehicle accident in 1972 when she was 19 years of age)…Woke up this morning with severe left hip pain radiating down back of left thigh and left leg…”Dr Aaron Yeung, a resident medical officer in a report dated 22 July 2001 of the presentation diagnosed “back pain” and added the plaintiff complained of “pain in left groin radiating down back of the thigh and leg…all movements of hip/knee were painful and the pain extends into her lower back.” The plaintiff was not admitted as she was mobilising freely.

21 Dr S K Liow was the plaintiff’s general practitioner and first started treating her in February 1998 and has seen her since on a regular basis. During the period from 1999 to 2002, Dr Liow said the plaintiff presented with migraines, chronic backache and depression; on 8 January 2002, the plaintiff was first seen for a sore and swollen left knee which became inflamed and that condition persisted until the subject accident in May 2002. Significantly, Dr Liow agreed that since 2002 she has continued to treat the plaintiff for the same back pain, migraine and depression on a regular basis as was the case before the accident; she said the plaintiff’s condition, including the left knee problem which was a degenerative condition, remained essentially the same as it was in 2002. Dr Liow diagnosed the plaintiff, a heavy smoker, with emphysema for which ongoing treatment was given.

22 Notwithstanding the plaintiff’s medical condition as it had been for some years from prior incidents and ordinary degenerative changes, she maintained her capacity to be able to do the work of a catering assistant at Macquarie Lodge in the kitchen for the 32 weekly hours concerned. That position was affirmed by the evidence of Margaret Spartalis who was employed by the second defendant as assistant chef at Macquarie Lodge and, as such, had supervision of the plaintiff. A statement prepared by Ms Spartalis for the second defendant was tendered into evidence for the plaintiff. As to the plaintiff’s work and ability to perform it, the statement read:

7. I first met Kerry Irwin when she started work here. She was a kitchen hand and she started as a casual and became permanent after some time.

…

11. Medically I know her leg was always sore. She told me so and as I am concerned, she told me right from the start. She told me her leg was playing up. She did not say what was wrong with it or what caused it. I told her to take it easy and to put it up when possible.

12. Whenever this was, it was definitely prior to the alleged incident which is the subject of this claim. It was the knee that was the problem as far as I recall, possibly the right knee but I am not absolutely certain. (The plaintiff said it was her left knee that was definitely the problem.)

13. Being a solid woman, it was difficult to say if this affected the way she walked. I always told her that if she was tired to sit down. She used to work in the afternoons and I would leave by 2.30 pm. She would start at 12.00 and leave at 8.00 pm so I don’t know what she did after I left at 2.30 pm. It was usually busy from 12.30 – 2.30 pm.

14. She used to complain of having migraines and she would take medication for that. She used to get them a lot.

15. I found her to be a lovely person and I never had any problem with her. She was punctual and she was able to do all the work that was required. Nothing adverse occurred at all.

…

17. Apart from the knee and the headaches she seemed to be physically fit and well.

…

21. She was on her feet all of the time and this is typical of this industry. She would be required to bend down to place plates etc on to lower shelves. You cannot carry one or two plates, you would carry about five at one time.

23 The plaintiff’s expressed attitude was that she “lived really to work, like my children are off my hands. My life was that…I went to work, that’s how I had company and associated with other people and I enjoyed it…” In the domestic situation before the accident the plaintiff lived with her father and husband, Mr Russell. She said she then performed the housework as her father suffered from the early stages of dementia; as she said. “I did the lot.” However, after the surgery to her back in November 1996 by Dr Sekel the plaintiff agreed that up to 29 February 2000 when she was reviewed by Dr Sekel that she required assistance with household duties, such as vacuuming, cleaning bathrooms, washing windows, moving furniture and the heavier items of shopping; she said that although back pain from the prior 1995 work accident continued her back “got a little better.” As for medication since that earlier accident, she agreed she took “massive amounts of analgesic” and, indeed, had become addicted to MS Contin.

24 Mr Russell gave evidence. He and the plaintiff lived together from 1995, were married in 2004 but separated in 2005 and he now lived at a hotel 500 metres from the plaintiff’s house; he visited her daily and sometimes stayed overnight. He said that after the plaintiff returned to work in 1999 after the original back injury the housework was shared between the plaintiff, her father and himself. At that time, once the morphine medication took effect and the plaintiff was accustomed to taking it, he said her condition was “fine” and “she was always a loving, caring, happy person.”

25 The plaintiff’s sister, Rita May Field, gave evidence about the plaintiff’s pre-accident condition and circumstances. She lived with her family in Tasmania and visited the plaintiff about four times a year for at least two weeks on each occasion; the plaintiff visited her in Tasmania about once a year. During the six-month period before the subject accident, Ms Field described the plaintiff’s health in this way:

Well, I’d say her health was quite good, actually. I mean, she was at work before the knee accident, and she seemed to cope all right with that. I mean, she was still on medication, and she still had a sore back, but nothing that was, you know, she still went to work, as I say. She had the usual aches and pains that you would have if you had a sore back; sometimes worse than others, sometimes not at all, sometimes she’d go weeks and she’d be okay. But, I mean, it’s hard for me to say, because it’s hard for me to tell the story from – she’s on medication, and that makes a huge difference. When she’s medicated she can cope with things, you know, that I probably couldn’t. So it’s hard for me, as somebody who doesn’t have that problem, to determine that.

26 Kylie Jane Tayba, the plaintiff’s daughter, was very close to her mother and had visited her very regularly over the years, probably four times a week either in the morning or late at night to fit in with the circumstances of her own family of a husband and four children. Ms Tayba described the plaintiff’s health after returning to work in 1999 after the back injury as being “very good…once she got the right medication doses she was quite capable to do quite a range of things.” Significantly, Ms Tayba spoke highly of her mother’s work ethic – “She loved her work. Work is her life…That’s the only time that she had a social life. She’s not a person to bring friends home, so that was her outlet” – and was “so happy” at work. She added:

I’d actually been to her work on a few occasions and I was astounded at what sort of things, for her age, she could keep up with…Yes, she’s a good worker, so she had no problems keeping up.

27 Ms Tayba was tested in some detail about the reality of the plaintiff’s health problems before the subject accident. This evidence emerged:

Q. What sort of problems was she suffering from during that 12- month period prior to June 2002?
A. Not a lot. I think the medication that she was on was quite accurate and she was managing any back pain that she’d had from her back operation.

Q. Can you name any problems she was suffering from in that 12 – month period?
A. Are you saying 2002?

Q. Yes.
A. Sometimes when she would have a little bit of fluid on her leg, but apart from that….

Q. Her left leg?
A. No.

Q. Her right leg?
A. I’m not going to lie. I really don’t recall which leg it was.

…

Q. What other problems did your mother have during that 12- month period, other than the fluid that you’ve referred to?
A. I can’t recall anything because I know that the medication that she was on was managing her pain in her back.

Q. Well, she was taking about three different types of pain-killers, wasn’t she? Were you aware of that?
A. No.

…

Q. Were you aware that she went to see the doctor eight times in January 2002?
A. No, I wasn’t.

Q. Were you aware that she’d complained to the doctor in January 2002 of pain and swelling in the left knee?
A. That’s just going back. I couldn’t recall that specifically.

Q. Were you aware that she complained that her left knee was painful on walking in January 2002?
A. No.

Q. Were you aware that, on 29 January 2002, she wernt to the doctor, complaining of bilateral ankle swelling?
A. No, but that would have been quite possible. Like I said to you, I recall her having some swelling in her ankle.

Q. Were you aware that on 8 February 2002, she was feeling so bad that the doctor had to come and see her?
A. What was she feeling bad for?

Q. For an acute migraine.
A. Yes.

Q. Were you aware that at that stage she said to Dr Liow that she had left knee pain for a period of six weeks?
A. No.

Q. You weren’t aware of that? Were you aware that only four days later she again complained to the doctor of a migraine?
A. No.

Q. Were you aware that ten days later she went to see the doctor complaining of pins and needles in the right upper limb?
A. No, but I don’t…

Q. She was complaining of cervical pain and left knee pain.
A. No.

…

Q. She wasn’t in good health as of June 2002, was she?
A. Yes, she was.

Q. She suffered from severe back pain, didn’t she?
A. That was managed with medication.

Q. She had ongoing left knee pain for the whole of the first half of 2002, hadn’t she?
A. Which is what you say but I don’t believe that.

…

Q. She was taking Zoloft for depression, wasn’t she?
A. I wasn’t aware of that.

…

Q. These are complaints that she’s made since June 2002, is it, pain in the back, pain in the left hip, pain in the left knee. Is that right?
A. Yes.

28 Counsel’s questions to Ms Tayba were from Dr Liow’s clinical notes as to her consultations with the plaintiff in the 12-month period before the subject accident at Macquarie Lodge and the St George Hospital report of her presentation in July 2001. Her answers were consistent with the original evidence of the plaintiff in those respects but, as I have recited earlier from the plaintiff’s evidence, the plaintiff changed her evidence to admit earlier problems with the left knee, neck and hip. I found this aspect to be a matter of some concern in assessing the plaintiff’s pre-accident condition and, in a sense, Ms Tayba seemed to be more an advocate for her mother rather than a witness of fact. Nevertheless, and even accepting the doubts, I am satisfied that the plaintiff was able to perform the kitchen work at Macquarie Lodge, she had a high work ethic, she enjoyed and was happy to work and the work was a central feature of her life, including in a social sense in interacting with other employees. The large and regular doses of medication she was taking meant she was able to manage her health problems, but, I conclude, she did then have pre-existing difficulties with her back, neck, left leg and knee and she suffered from migraines. I think the evidence, which I accept, of Ms Field, Mr Russell and Ms Spartalis confirms that view.

29 The opinion of Dr Sekel, as expressed in his reports quoted above, is consistent with the view I have formed from this other evidence. In the result, it is I think clear that the plaintiff had a capacity with her problems to perform the kitchen work on a part-time basis, although the continuation of medication was necessary to enable those problems to be managed. The impairments of the plaintiff’s back of 30 per cent and of each lower limb at 10 per cent assessed by Dr Sekel provides an indication of the degree of her pre-existing condition; to that, of course, needs to be added her migraine headaches and pre-disposition to depression which was managed with Zoloft tablets.

Circumstances of the accident

30 The second defendant assumed responsibility for the catering function at Macquarie Lodge from 29 August 2001, form which date the plaintiff became its employee, under a written agreement with the first defendant. The agreement provided the following relevant details –

• The first defendant occupied the subject premises: Recital A.
• The second defendant agreed to provide for the residents at the premises catering and cleaning services, including the provision of meals, including the provision of meals, morning and afternoon teas and supper and cleaning of the kitchen and dining areas: Recital C, cl 6.1(a), item 3 of Sch and Appendix 1.

• Catering equipment and equipment located in the kitchen areas, such as the dishwasher, was to be supplied and maintained by the first defendant : cl 10 and item 4.1 of Sch.

• In providing the services, the second defendant was to employ all staff to do so: cl 6.1(b).

• The second defendant was to ensure that the provision of the services complied with relevant occupational health and safety legislation, such as kitchen safety: cl 12.1(c).
• An identified safety hazard involving its employees was to be reported by the second defendant to the first defendant within 48 hours: cl 12.3.

• The second defendant had the obligation to ensure that any equipment used to carry out the services was properly maintained and kept in good working order and condition: cl 6.1(f).

• The second defendant had the obligation to comply with all laws relating to the creation and maintenance of a safe working environment: cl 6.1(g).

• All necessary supervision when carrying out the services at the premises was to be provided by the second defendant, including a site supervisor at all working times: cl 6.3.

• In performing the services, the second defendant was to take all reasonable steps to keep the premises in an orderly state so as to avoid danger to persons: cl 6.5.

31 In June 2002, the second defendant, apart from the plaintiff, employed three other staff in the kitchen – Lance Graham as the chef manager, Margaret Spartalis as the assistant chef and second in charge, and Helen Touloumtzis as a kitchen hand. The weekly duties of the plaintiff were detailed in a job description and relevantly included use of a dishwasher and trolley. Ms Spartalis in her statement summarised the plaintiff’s duties thus:

18. Her duties were to help serve out the lunch which means she would take plates of food from the servery and put them in front of the residents in the dining room. When finished, she would collect the dirty plates, with the help of others. She would load them onto one of the three available black trolleys and wheel that back to the kitchen where she would assist in unloading the dishes and put them on the racks to be washed in the dishwasher. We have a different dishwasher now to the old one which used to have a handle that went up and down to use to both load and unload.

19. The type of trolley is known as a “black lady” and it has three layers and it is on swivel wheels, with a handle at both sides.

20. Other duties in the kitchen after the washing up was done, would be to get the tea trolley ready for afternoon tea. This involves the use of a larger trolley with the tea and coffee urns. Cups and saucers are placed on the trolley and when ready that is wheeled out to the lift and upstairs two floors. She would serve the cups of tea to the residents in each room by herself. She would do both floors, return to the kitchen and clean the trolley. She would then have a rest of some minutes, depending. Sometimes, she might sit for fifteen minutes to half an hour, and we usually help each other so we can all sit down. I have personally worked afternoons myself on occasions.

32 The plaintiff said that around 1.00 pm on Saturday 29 June 2002 she had just finished using the dishwasher in the kitchen to wash the cutlery and crockery after the resident’s lunch and had put the items into the shelves. She then wheeled the trolley to the sink, wiped it clean and as she started to walk the trolley away she fell to the floor. As she said, “I had slipped in the water.” What occurred was described by her in this way:

I fell backwards…I hit my knee on the trolley, my left knee. I jarred my neck as I was going down and must have hit it on the floor, and then I just couldn’t get up. I had to be helped up. Margaret (Spartalis) and Helen (Touloumtzis) both helped me up. I couldn’t put weight on my leg, and they helped me into, we called it the store room, it was a little storeroom and office. They helped me in there, sat me down, one of the nurses from the hostel came in and she checked me out. My knee had been swelling by this stage. I had terrible pain in the back of my neck, and I was very upset, and they called for the ambulance to come…They put a neck brace on me and took me to hospital.

33 After about six hours, the plaintiff was released from St George Hospital and went home. The ambulance notes recorded the plaintiff’s chief complaint as:

Neck and knee pain (left)…States slipped on wet floor landing backwards on back. Patient complained of pain to (right) cervical region and mid (left) knee. Nil (loss of consciousness). (On examination) GCS (Glasgow Coma Score) 15. Well perfused. Vitals normal. Nil motor sensory loss. Patient is taking morphine 180 mg per day for chronic back injury. Patient given 20 mg morphine (intravenously) with little effect. Nil deformity detected to knee. Patient having difficulty weight bearing.

34 At the time of the fall, the plaintiff said she was wearing black rubber soled lace-up shoes with a steel cap – I take that to refer to industrial type safety footwear. The kitchen floor was, as the plaintiff said, made of “small slippery tiles” and in the area near the dishwasher “there was water on the floor every day.” She said the water came from “the back of the dishwasher…and down on to the floor – and it came from the side of the dishwasher because it does leak – it did leak water and the new one doesn’t. There it did leak water when you lifted it up…it was a lot wetter on the day that I had my fall – the floor.” As to the presence of water on the floor, the plaintiff added:

I observed that where the drain was the water had no way of travelling uphill to – to get away. The water sat on the floor simply because it couldn’t get away…That was happening for a while there and it was supposedly fixed – the dishwasher – the leak on the dishwasher was supposedly fixed – and then it – it started leaking again.

35 The condition of the kitchen floor and the events of the accident to the plaintiff were stated, without any challenge by the defendants, in this way by Ms Spartalis:

22. At the time of this alleged incident the kitchen flooring consisted of small tiles about 6” long and about 4” wide. I would have to say that they were slippery as I had fallen myself and hurt my back. They were a dark terracotta/tan colour. The surface was smooth. (This paragraph was admitted against the second defendant but not the first defendant.)

23. The existing tile was put down roughly over a year ago. We had complained about the floor from time to time. (This paragraph was admitted against the second defendant but not the first defendant.)

24. I remember that we ordered some mats for the kitchen floor because of the slippery floor. I cannot tell you exactly when they were ordered, however they did come and they were put down.

25. I think that Kerri’s alleged incident occurred just before the mats were put down.

…

30. I was standing to one side of the kitchen where the stove/microwave area is. I was chopping things on the bench facing the wall, being the wall opposite to the windows.

31. Helen (Touloumtzis) called out, “Margaret.” I turned around and I saw Kerri on the floor near the dishwasher, on the back door side. I can’t recall her exact position but she was more down than up. I know her legs were on the floor facing diagonally towards the bench. She mentioned something about her neck. She said, “Oh my neck, oh my neck.”

32. Helen helped her up and took her into the storeroom which is a little way off the kitchen at the back. Helen assisted her there by holding one arm. I went for help at that point so I cannot comment on Kerri’s progress. I went in search of a nurse. I can’t recall who I found, but whoever it was called an ambulance.

33. When I got back she was sitting on a chair in the storeroom. I guess that as she said she had a sore neck. I was scared that something had happened. She went all red and I thought it needed attention.

34. When the ambulance arrived they asked her where it was sore. She said it was her knee (I think the right knee) and at the back of her neck. The ambulance then put a brace around her neck, put her on a stretcher and off they went.

35. Kerrie was wearing a pair of black trousers and she had a pair of black shoes on, Doc Martens, I am not sure if they were lace-up or not. She also had a blue uniform top on. That clothing was normal and acceptable.

36. I did not notice anything on the floor, however, I would have to say that I did not look as I was looking at Kerri. She did not draw my attention to there being anything on the floor, or what had caused her to fall. Helen asked her what happened and she said that she slipped. I got the impression that Helen did not see the event, at least that is what she told me.

37. Helen mentioned that the black trolley had hit her slightly in her lower back. I don’t know if Kerri was unloading things off the trolley at the time or what she was doing with it; however, it appeared that when she slipped, the trolley went into Helen’s back as she apparently was standing at the bench.

36 As to the consequences of the dishwasher and water on the kitchen floor, again without any challenge by the defendants, Ms Spartalis said:

42. I have been advised that it has been alleged that Kerri slipped and fell on water that was leaking from the dishwasher. This could well have been the case. The old dishwasher, as soon as you lifted up the handle, the water would drip down in front of you. I don’t recall the make or model of it now. There was a bar handle on the door of the dishwasher, with the door being large and you could either raise it or lower it. Up meant that you could put things in and down was for the machine to go. The door was lifted up and down frequently during the day.

43. We used to wipe the floor with a mop. Most of the time Helen would put rags down on the floor. We were all aware of this situation and took it as being part of our everyday working environment. Kerri would also mop up as we all did. It was a known situation. This was reported of course and eventually we received a new dishwasher. (This paragraph was admitted against the second defendant but not against the first defendant.)

44. It was the responsibility of Delaware staff to clean the kitchen floor areas. We are responsible for the entire kitchen.

…

48. I was not a witness to Kerri’s actual fall though I did see her on the floor and I was there until she was taken away by ambulance.

49. I don’t know if there was any water on the floor though the area where she was a spot where it was likely that water from the dishwasher might have reached. However, she did not make any comment to me about that.

50. As far as I know she had not slipped or fallen in the kitchen before or anywhere else.

51. The lighting in the kitchen is the same now as it was then. The lighting is very good in my opinion.

52. As I have said, I slipped on the old floor myself; Helen had slipped as well.

53. The Salvation Army addressed that eventually and put in a new dishwasher. This was beyond the control of Delaware. (This paragraph was admitted against the second defendant but not the first defendant.)

54. The new mats that were put down in the same area as where Kerri fell. I personally did not like them as they created a tiny step from the floor level to the mat surface and it was a trip hazard. We do not need mats now as we have the new tiles which [have] a slightly roughened surface. I am happy with the new tiles and I think it is a safer working environment now.

37 Seven coloured photographs of the kitchen area taken after the accident showing the dishwasher, tiled floor area, trolley, sinks, shelving and other equipment were in evidence. The photographs greatly assisted in an understanding of the oral and other evidence. Specifically, the presence of water on the floor was obvious as was the smooth surface of the tiles; a white stained area on the tiles immediately in front of the dishwasher depicted, I am satisfied, staining from soapy water which had escaped from the dishwasher. From the photographs, the plaintiff made the comment “that’s how it was on an average working day. Sometimes the water would be more;” however, “it was a lot wetter on the day that I had my fall.”

38 The first defendant’s then property maintenance manager, Terry Hartenstein, gave evidence as its most senior person at Macquarie Lodge for the maintenance and upkeep of the building. He was aware of the dishwasher in the kitchen and, although he did not remember dates, agreed two replacement dishwashers were provided – first, because the original machine was unreliable and broke down; and, second, to upgrade the type of dishwasher. He was unaware after the accident of a defect with the dishwasher in terms of leaking water and said nothing was reported to him in that respect. As to the presence of water on the kitchen floor, Mr Hartenstein agreed it occurred and from his investigation, said “the water was coming from the washing of the dishes before they went in the sink via high pressure hose – by the benches, water from the trays when I pushed it water went onto the benches and then onto the floor and from the trays when they were being picked up with glasses and so forth being wet – being carried across the floor.” On more than one occasion Mr Hartenstein organised the placement of mats on the kitchen floor but the staff did not use them until the second defendant asked him for them to be placed on the floor.

39 Mr Hartenstein was tested as to the condition of the dishwasher and water on the kitchen floor, including the presence of water in creating a slip hazard. I have to say his answers were unsatisfactory as being evasive, unnecessarily cautious, overly conditional, pedantic and contrary to ordinary common sense, but where he eventually agreed that water was on the floor very frequently, particularly after every dishwashing cycle. For instance, this evidence was given:

Q. You were responsible, may I take it, for the maintenance of equipment in the kitchen?
A. Yes.

Q. The dishwasher in the kitchen used to leak, didn’t it?
A. I can’t say no to that but I would like to clarify that.

Q. Then is your answer yes but you would like to qualify the answer?
A. Yes.

Q. How would you like to qualify the answer?
A. At times there would have been hose leaks, example – for example, around the dishwasher but they would have been corrected by maintenance as soon as they were reported.

Q. On occasions that the dishwasher leaked the kitchen floor became wet, did it not?
A. Not necessarily.

Q. Now, sir, do you really say that?
A. Yes I could say that, certainly, sir, because underneath the bench area may have become wet but not the actual floor.

…

(shown coloured photographs of kitchen area.)

Q. They are photographs of the tiled floor in the kitchen?
A. Yes, sir.

Q. You will agree the floor appears to be wet?
A. There is reflection there, yes, sir.

Q. Will you agree appears to be wet?
A. It’s either wet or very clean, sir.

Q. Now, sir, won’t you agree it’s wet?
A. I can’t agree that it is wet because I cant see the edge of the wet area, sir.

Q. Will you agree that the condition of the floor as shown in the photographs is how it usually was?
A. No, sir.

Q. How do you say it usually was?
A. Well, in this one you can see that this one is wet. The photograph you’re showing me here I cannot see the edge of the water…

…

Q. Will you not agree that the floor was usually wet?
A. No, sir.

Q. Was it ever that wet?
A. Yes, sir.

Q. In what circumstances?
A. When they were using – doing the washing sir.
…

Q. Is it the fact that when the dishwasher was used – at the conclusion of the use of the dishwasher, the floor would be wet?
A. Yes.

Q. And when the floor was wet in those circumstances, was it in a similar condition to what is shown in exhibit C2?
A. I cannot say that, down further in this area it may be – I can’t – this area up here, I cannot say that that would have been that wet.

Q. In relation to the answer you’ve just given is what you’re saying that in the vicinity of the dishwasher…
A. Yes.

Q. …when it was used – at the conclusion of the use of the dishwasher the floor would be wet in the vicinity of the dishwasher as is shown – to the same extent as is shown in exhibit C2, but in you belief in the vicinity of the dishwasher?
A. Yes, sir.

…

Q. Anyhow on every occasion that it was used at the end of the dishwashing cycle the floor, certainly in the vicinity of the dishwasher was wet?
A. On a full cycle of washing, yes sir.

Q. Of course the tiles shown in exhibit C are non-slip tiles, aren’t they?
A. Can you describe that more for me please sir?

Q. They were not special tiles designed?
A. They were special tiles.

Q. And they were slippery when wet?
A. I’m uncertain of that, sir. I never slipped on them.

…

Q. Why did you put them (mats) down if it wasn’t because the floor was slippery?
A. It was requested sir.

Q. Was it requested that they’d be provided because the floor was slippery?
A. Not on all occasions sir.

…

Q. The floor that is shown in exhibit C was replaced, wasn’t it
A. Yes sir.

Q. And it was replaced with textured non-slip tiles, wasn’t it?
A. Correct.

…

Q. And the reason the floor was replaced was because the floor that is shown in exhibit C was unsafe?
A. No sir. I can’t say that – the floor was replaced because of its poor condition sir.

Q. When you say it was in poor condition, first of all it was slippery when wet?
A. Is that a question?

Q. Yes.
A. I can’t say that sir, don’t know because the tiles were lifting because of the age of them.

…

Q. Water was on the floor very frequently wasn’t it?
A. Yes sir.

…

(shown photograph C3.)

Q. Sir, I suggest to you that those tiles are showing a water stain?
A. Sir, I suggest that they’re showing that the tiles are dirty.

Q. Can you offer an explanation as to why, if that was the case, why only the tiles in the vicinity of the dishwasher would be dirty?
A. Because it possibly hasn’t been cleaned properly there sir.

…

Q. You were aware, I suggest in June 2002 that water and particularly on 29 June 2002 that water on a tiled floor created a hazard?
A. Can you tell me why I would know on that particular day?

Q. I suggest to you that at any time water lying on a tiled floor created a slippery hazard?
A. Not necessarily sir.

Q. When you say “not necessarily” are you saying that in certain circumstances it could?
A. Yes sir.

Q. That was your stated knowledge in June 2002?
A. No sir.

Q. Do you say that you didn’t realise in June 2002 that water on the floor might, in certain circumstances on a tiled floor create a slippery hazard, you didn’t know that?
A. I can’t say when I knew these things. I can’t remember the exact date sir. You’re asking me for an exact date, I can’t remember what happened on that date.

Q. You’re missing my point. I’m suggesting to you that as a person and the property maintenance manager at this establishment in June 2002 were aware that water on a tiled floor could create a slipping hazard?
A. I guess I’m aware of it today but I don’t know the situation back then, I can’t remember.

Q. Of course if the water contained a detergent that would increase the likelihood of a slip, would it not?
A. Not necessarily sir.

Q. You seriously say that?
A. Yes sir all a lot of these chemicals – different chemicals are designed so that we don’t have these problems sir.

Q. You don’t suggest, do you, for even one minute that the detergent the Salvation Army was using in this dishwasher was detergent which had a special non-slipping quality?
A. I’m not suggesting that sir.

40 A consulting engineer, Henry Livingston Burn, was commissioned for the plaintiff to enquire into the circumstances of the subject accident and to provide expert opinion into the causes. Mr Burn provided a report dated 12 August 2006 – he did so, not by visiting the site, from a meeting with the plaintiff on 9 August 2006 when her duties and the circumstances of the accident were advised and from photographs of the kitchen provided by the plaintiff’s solicitors as reproduced in his report. On 3 October 2006, Mr Burn in the company of the plaintiff visited the kitchen at Macquarie Lodge and took a series of photographs, two of which were reproduced in a second report dated 6 October 2006. He said he drew upon his experience of over 50 years in the engineering and construction industries and in carrying out over 300 tests of floor surfaces to establish their safety. Mr Burn was not cross-examined on his reports, although it was common ground he was too ill to attend court to give evidence.

41 In the first report, Mr Burn outlined the facts in a manner consistent with the plaintiff’s evidence here and stated his observations from the photographs. By reference to cl 5.1.1 of the joint Australian and New Zealand Standard Associations AS/NZS 3661 – 1993 as to slip resistance of pedestrian surfaces (repeated in the latest standard AS/NZS 4663 – 2003), Mr Burn advised a pedestrian surface was to have a mean coefficient of friction, the physical property to assess the safety of a floor surface, of not less than 0.4. He opined that the coefficient of friction on surfaces of the tiles as seen in the photographs when wet would be of the order of 0.15 – 0.18, that is, less than 50 per cent of the minimum safe value nominated in the standard of 0.4; under AS/NZS 4663 it would also be classified as a “high risk surface.” In assessing the accident site, Mr Burn said there were two major factors: first, construction of the site and plant maintenance; and, second, standard of housekeeping and supervision.

42 Mr Burn concluded with the opinion:

The failure to provide an effectively drained floor in the wet area of the kitchen and the placement of floor wastes remote from the major source of the water constitute a major factor in the risk assessment and should have been addressed during the design phase of the kitchen.

Poor door seal and maintenance allowing water and chemical to deposited on the flooring are the basic causes of the accident.

The failure to adequately supervise the day-to-day operation and take simple remedial steps to overcome the significant risk created by the water on the floor indicates a shortfall in the standard of supervision of both staff and plant.

Simple remedial steps that would have eliminated or substantially reduced the hazards include the placement of rubber backed or moulded mats. These are readily purchasable or hired for these applications and are an economical solution to the short-term problem.

43 In his second report, of course, Mr Burn was able to consider the situation following the installation of a new kitchen floor and provision of a new dishwasher. He noted those changes and then confirmed his earlier view of the two primary factors contributing to what occurred as “the failure to maintain the door seals in the washing machine in a satisfactory condition and the poor design of the floor system drainage.”

44 I prefer the evidence of the plaintiff and of Ms Spartalis over that of Mr Hartenstein to the extent of any inconsistency. I accept Mr Burn’s evidence.

45 There was no real issue that the kitchen floor was wet with water at the time of the plaintiff’s fall. Indeed, counsel for the first defendant submitted as to the plaintiff’s allegation that her accident was caused by the presence of water on the floor that “there being no evidence contrary to that assertion, the Court would be entitled to accept that.” The second defendant did not demur from this position but only confirmed it by adding that the presence of the water was known and for a long period of time. However, the real contest concerned the source of the water, whether the dishwasher leaked water due to a defect, knowledge in the defendants about the presence of water on the floor, including any remedial steps, and floor system drainage. All of those aspects were covered by the evidence, the main pieces of which I have recited earlier.

46 I make the following findings as to the circumstances of the subject accident –

(1) The accident occurred in the manner described by the plaintiff.

(2) The direct and immediate cause of the plaintiff’s fall was the presence of water, more than likely containing washing detergent, on the floor in front of and near the dishwasher in the kitchen.

(3) At the time the plaintiff was wearing appropriate safety footwear.

(4) The dishwasher was supplied by the first defendant for use by the second defendant’s employees, including the plaintiff, in cleaning crockery and cutlery used by the second defendant in the provision of a catering service for residents.

(5) The first defendant was responsible to maintain the dishwasher in good order and repair but at the time of the accident it was defective and leaked water onto the floor when used; in addition, after a washing cycle when the machine was opened water drained onto the floor.

(6) The result was that regularly there was water on the kitchen floor, particularly near the dishwasher, in sufficient quantity as to constitute a risk to safety for persons in the kitchen, such as the plaintiff, in the nature of a slipping hazard.

(7) The drainage system for the kitchen floor was inadequate to allow the water to escape.

(8) The kitchen floor was tiled with small tiles, which, when wet, had the coefficient of friction or slip resistance less than 50 per cent of the minimum safe value nominated in the AS/NZS 3661 – 1993 standard.

(9) The defective dishwasher and resultant water hazard were advised to the second defendant by its kitchen staff and the first defendant was requested to and did provide mats to address the problem.

(10) The mats had not been provided at the time of the plaintiff’s accident.

Injury to and consequences for the plaintiff

47 As she started to wheel the trolley, the plaintiff slipped on the water on the kitchen floor near the dishwasher and fell. She hit her head on the floor and identified jarring to the neck and swelling to the left knee with associated pain. She was transported to St George Hospital, wearing a neck brace, and after six hours was discharged home. A period of absence from work to recuperate form the injuries was commenced.

48 The plaintiff went under the care of her general practitioner, Dr Liow, who first saw her after the accident on 1 July 2002 and who noted “had severe neck and left knee pain. X-rays (no abnormalities detected). Given morphine. Home with oral analgesic. Swelling and pain left knee.” Dr Liow referred the plaintiff to Dr Neville Rowden, an orthopaedic surgeon specialising in knee problems, who saw her on 25 July 2002 and said the plaintiff “walks with a limp and uses a walking stick;” on examination he found “medial and lateral joint line tenderness left knee” with a possible meniscal tear. On 8 August 2002, after an MRI, Dr Rowden found the scan was consistent with medial meniscus tear of the left knee. He formed the opinion that the plaintiff “sustained a left knee medial meniscus tear in the work related accident of 29/6/02” and advised an arthroscopy be performed. The arthroscopy occurred on 26 August 2002 which reported osteoarthritis and loose bodied were removed. Dr Rowden then referred the plaintiff to Dr Michael Jamieson, a sports physician, and to Mr Baldwin Wong, a physiotherapist.

49 Dr Jamieson reviewed the plaintiff on 4 November 2002, 28 November 2002, 13 December 2002 and 25 July 2003. Dr Jamieson initially found the plaintiff to walk with a gait so as to avoid pain as she had a significant knee pain disability. Although he considered a return to work being conceivable with limited duties, Dr Jamieson recommended continued physiotherapy by Mr Wong and assessment by Dr K E Khor, a musculoskeletal pain physician. Dr Khor, in a report dated 29 November 2002, said the plaintiff presented with an aggravation of her lumbar spinal pain consequent from the injury to the left knee at work on 29 June 2002. After suggesting a rationalisation of medication, Dr Khor thought a return to work was desirable, even though there was residual pain in the knee and back, and with a continuation of the exercise regime planned by Dr Jamieson. Dr Khor reviewed the plaintiff on 13 December 2002, noting a return to work on suitable duties in a week’s time, and again on 27 June 2003 when he noted she was working four and a half hours per day for three days a week but with increased aching pain over both knees at the end of the day. Although it was thought those working hours should be continued, further investigations were recommended for the persistent pain.

50 Dr Jamieson in a report of 25 July 2003 said the plaintiff’s left knee problem “places her in the severely disabled group.”

51 In late-2002 through to early-2003, the plaintiff underwent an assessment by Ms Tara Bell, a physiotherapist, as part of a return-to-work programme through the second defendant’s workers compensation insurer. As stated in Ms Bell’s report of 27 November 2002, suitable duties were accepted by the second defendant, limited to three hours per day for three days a week, of making salads and sandwiches, office duties and setting the dining room tables but excluding her former duties of a heavier nature such as sweeping and mopping, loading and unloading the trolleys, washing up, pushing trolleys and unloading buckets of dirty crockery; cab fares were provided for travel to and from work. As the plaintiff’s morphine dosage was to be increased from 2 December 2002, a work return was deferred to allow adjustment to the new dose and that occurred on 10 January 2003.

52 For the plaintiff herself, during the initial six months after the accident she said she had “ a lot of problems with my health” and had “not been able to walk properly on my leg…cannot straighten my (left) knee…collapsing on me”; her right leg had to bear more weight in walking and it became painful as well. Her shoulders became sore and then they eventually settled but problems persisted with her neck which “pulls on me and I get migraines from it…really bad cracking in the neck.” She experienced gradually a burning pain in the hip and the headaches increased. Although prior pain existed in her low back, the plaintiff said “its got worse and it’s not getting better.”

53 On return to work on 10 January 2003 the plaintiff, according to the programme arranged through Ms Bell, worked three hours a day over three days; that was increased on 8 March 2003 to four hours a day for three days and on 22 March 2003 to four and a half hours per day for three days a week. However, she said that increase proved too much and the hours were reduced on 1 August 2003 to three and a half for three days a week. That remained the position until the second defendant terminated her employment on 25 October 2004 because she could not work longer hours.

54 While walking to a taxi cab on 21 March 2003 on her way to work, the plaintiff’s left knee collapsed from under her and she fell to the ground injuring her thumb, ankles and left knee – such instability has continued. Again, and although prior back pain was experienced, since the subject accident the plaintiff maintained it had “increased incredibly and it’s due mainly because of the way I have to walk.” Now, she can sit but cannot stand or walk for long periods of time.

55 In her family situation, the plaintiff reported problems in the sexual relationship with her husband and they eventually separated which was of concern to her as she wanted to stay married. Her sleeping patterns had become disrupted due to pain in the knee and back and she had become very moody; as she said, “I’m unbearable to be with most of the time…I’m sharp… I’m not pleasant any more…I’m cranky all the time…I have depression…I’m back on anti-depressants.”

56 Domestically, the plaintiff now was unable to get down on her knees and scrub the floors, clean the oven and vacuum; she said “there’s lots of things I can’t do any more,” that is, the heavy housework for which she gets assistance from her sister during visits from Tasmania, her sister-in-law and daughter and from her separated husband, Mr Russell; her father cleans the bathroom and toilet; and the shopping is shared with her daughter and father.

57 Following the termination of her employment in October 2004, the plaintiff through a rehabilitation agency, Catalyst, said she had attempted unsuccessfully to obtain suitable work but now had no real prospect of being able to work as her health was getting worse and her “quality of life really isn’t there.” To improve the situation, she would be willing, in medically advised, to have knee and hip replacements and to undergo psychological or psychiatric counselling.

58 It became apparent during the plaintiff’s evidence that she has health issues unrelated to the accident. Being a heavy smoker for many years, she now has emphysema and just before the trial commenced she was diagnosed with a couple of tumours on the right lung for which she was under the care of Dr Alexandra Smith at St George Hospital and biopsies were performed but showing no malignancy. These health issues were compounded in the sense of daily living as her father was an epileptic and had had dementia for about 10 years requiring her to do the cooking and washing at home. Also, Mr Russell is an invalid pensioner after losing a hand, in 2006 he had a cerebral haemorrhage, he now walks with a limp from osteoarthritis in both knees and he has severe emphysema.

59 Mr Russell commented in evidence that the plaintiff was “very house-proud and before her accident she performed the general household duties. Since the plaintiff’s fall he said he spent two to three hours per day doing general things around the house, such as washing, vacuuming, mopping the kitchen floor, mowing the lawn, cleaning windows and making beds. After he and the plaintiff separated in 2005, and during his continued daily visits to the plaintiff’s home he occupies about three hours each day doing the vacuuming, cleaning the kitchen floor, sweeping outside, washing, cleaning the bathroom and toilets occasionally and the irregular shopping trip. As to the plaintiff’s health, Mr Russell said “it’s deteriorating” and she complained of pain mainly in the knee and she has mood swings with depression most of the time. In all of this, Mr Russell conceded that the daily three hours he was with the plaintiff included simply sitting down giving emotional support on a reciprocal basis, including spending time with the plaintiff’s father.

60 Ms Field, during her visits to the plaintiff from Tasmania about four times a year since the accident, said the plaintiff “obviously…has problems with her health with her (left) knee…migraines, she’s tense, she suffers from anxiety…and a little bit depressed…she has a bad back.” As to the plaintiff doing domestic chores, Ms Field added:

Well, such as just general things around the house. She couldn’t get down and clean properly, she couldn’t clean bathrooms, she had trouble getting up and down stairs…getting shopping…also she had a weakness in her knee…there were some things maybe she could have done which she was scared to do then, because she has quite a few incidents where her knee would give way on her…she’d just be walking, and the next thing she’d be half on the ground, and somebody could help her…she was tentative about doing things…if she’d gotten down she would never have gotten up again…she quite often needed help doing that sort of thing…

…

…she couldn’t straighten her leg properly … she sort of has like a limp…complain about her hip as well…she doesn’t walk straight…we were crossing the road at the lights and her leg, her knee gave way, and she actually collapsed in the pedestrian crossing in the middle of the traffic…in the end when I’d go there, I’d go and get the shopping…

61 In general health and social terms, Ms Field commented:

Things get her down, she gets depressed about being a burden to her children…Her daughter does everything for her, and as a mother this girl has got children, and she feels bad about it…she worries about the future…when she went to work that was her life. She’s not very social…So she does get depressed…her life has changed, her marriage has broken down. There’s a lot of things…

62 Specifically, during her visits, Ms Field re-arranges furniture, shops, cleans the oven and bathroom, mops floors, cleans out the shelves and cupboards, launders the clothes, weeds the garden – these things are done during the first week of each two-week visit for about six hours a day.

63 Ms Tayba after the plaintiff’s accident said she felt there were a lot of things she had to do domestically because of the plaintiff’s condition. Those things covered vacuuming, cleaning kitchen equipment and, as Ms Tayba described, “things that I know would be very difficult for her to do…turning the mattress over and vacuuming the mattress, changing the sheets on the bed…putting things away, packing away winter clothes, getting out summer clothes, getting up in the cupboards, re-arranging towels or sheets…” Ms Tayba said she spent a good seven hours a week” assisting the plaintiff, including “pick up a lot of her medication,…getting water bottles, picking up groceries, paying her bills…”

64 During the last 12 months, Ms Tayba thought her mother was getting worse and, generally since the accident, found her to be “a completely different person…extreme mood swings, very hard to be around…she just became a really non social person…a cranky person, very snappy…increasingly more depressed…”

65 Dr Thomas Nash, a consultant vascular and general surgeon, examined the plaintiff on three occasions for a medico-legal opinion and provided reports dated 27 August 2003, 4 December 2006 and 9 October 2007. He also gave oral evidence. From the first consultation, Dr Nash found the condition of the plaintiff’s back, knees and neck would remain permanently vulnerable and she would have ongoing symptoms of pain. Even so, he considered the restricted work she was then doing in August 2003 of four and a half hours a day for three days a week could be continued. By December 2006, Dr Nash accepted there had been a significant change in the plaintiff’s circumstances and condition. He said in his second report:

In my opinion Ms Irwin has persistent pain in her back following laminectomy. She continues to have pain and restriction in her left knee following arthroscopy as a result of the work related injury on 29 June 2003 (sic 2002). She has pain and restriction in the left hip which I believe is due to degenerative changes and aggravation of these changes. She has restriction of movement in the right knee and pain, the result I believe of degenerative changes and gait derangement as a result of the left knee and left hip disability. Her back symptoms may have been aggravated as a result of gait derangement.

…

In my opinion Mrs Irwin will remain permanently unfit to return to her previous nursing activities. She has been unable to continue with work as a kitchen hand and I believe this is also permanent. Her back, left hip and both knees preclude her from work that requires standing for long periods. She is unfit to perform frequent bending, twisting of her back or working in confined spaces. She is unfit to squat, kneel or crouch on a repetitive basis as a result of bilateral knee changes. She was sitting making sandwiches but the left hip pain would restrict her in this activity now.

I believe she is unlikely to ever engage in her regular occupation and she is unlikely to be fit or capable of engaging in any gainful occupation for which she has experienced in, taking into account the level of her education, training, qualifications and experience.

…The prognosis is poor and she continues to be dependent on Ms Contin…Her back, knees and left hip will continue to limit her significantly long term. She has indicated that she has been told she may require hip replacement in the future.

66 In his final report of 9 October 2007 after review of the plaintiff on 5 October 2007, Dr Nash stated:

Her combined left knee, left hip and back disabilities make it impossible for her to perform her household chores and she said she had difficulty looking after herself and she requires assistance. In my opinion she will continue to need assistance on a daily basis, of 1 to 2 hours a day, indefinitely. Her injuries have obviously impacted seriously on her social activities and she continues to take Prozac for depression. She complains of chronic constipation which is almost certainly related to her medication.

She said she is also unable to engage in sexual activity because of her back, hip and knee restrictions and has not had any interpersonal relations since I saw her previously.

…

Her symptoms are stable and she has reached maximum medical improvement.

…

…At this stage I believe she would qualify for a disability pension.

67 Dr Nash helpfully set out the current approximate costs for various treatments required by the plaintiff as to medical practitioners, physiotherapy, knee replacement surgery, psychological counselling, pharmacy expenses and domestic assistance.

68 Overall, Dr Nash assessed the plaintiff’s whole person impairment relating to the accident on 29 June 2002 for the neck, back, left hip, left knee, right knee and bowel function, after a deduction for pre-existing degenerative and other causes, at 34 per cent. It only need be added that Dr Nash was closely tested under cross-examination concerning his opinions, particularly as to pre-existing conditions of the plaintiff, but, in my view, he credibly remained firm in his position.

69 Reference should be made to the plaintiff’s respiratory condition, which engaged a not insignificant part of the proceedings as to her current health status from causes not related to the subject accident, such as her cigarette smoking, emphysema and lung nodules. For those problems she was seen during 2007 by two staff specialists in respiratory medicine at St George Hospital, Dr Gregory Katsoulotos and Dr Alexandra Smith, who both provided reports; Dr Smith also gave oral evidence. For the defendants, Dr Ian Gardiner, a consultant chest physician also saw the plaintiff on 23 October 2007; he too provided a report and gave oral evidence. The issue here concerned her likely normal working life to retirement and life expectancy.

70 Dr Smith reported the lesions on the plaintiff’s lungs were found from the biopsies to be not malignant but there was evidence of chronic inflammation and emphysema diagnosed as chronic obstructive pulmonary disease of moderate severity. In terms of capacity of the plaintiff to thereby work to age 65 years, absent any effect of the orthopaedic conditions, Dr Smith said “it’s hard to comment on an individual basis in the sense that her lung function is moderately impaired but not severely impaired at the moment…but were her lung function to decline slowly and not change for a period of ten or 15 years, she could well be able to work to 65…I don’t think there’s any way of accurately predicting it.” As to life expectancy, Dr Smith accepted that if the plaintiff’s lung function continued to decline it may shorten her life but it was hard to put a figure on it. In any event, Dr Smith agreed, disregarding any orthopaedic injuries, that the plaintiff would be able to work. She was not moved to change her opinions from anything put by Dr Gardiner in his report.

71 Dr Gardiner in his report dated 25 October 2007 found the plaintiff had “quite significant emphysema and bronchitis related to her heavy smoking history.” He considered she would therefore have an increased risk of lung cancer and that statistically there was about eight years of difference in life expectancy between a person who has never smoked regularly and one who is currently smoking cigarettes. Having in mind the plaintiff’s non-orthopaedic condition, Dr Gardiner considered it unlikely she would be able to work fully until age 65 years but, he added, “it’s hard to predict.” However, he did concede that those with moderately severe lung function did not usually keep working on “heavy” work to age 65 years whereas the work as a catering assistant previously done by the plaintiff was not “heavy” work.

72 The thrust of the evidence from the plaintiff, Mr Russell, Ms Field and Ms Tayba, albeit to varying degrees, was that the plaintiff was able to cope in a satisfactory manner with her domestic and working life before the subject accident. It is true she had problems with her back, left hip, left knee, migraines and depression but nevertheless was able to and did work as a catering assistant for 32 hours a week. Domestically, and having in mind the disabilities possessed by her father and Mr Russell it seemed that together they were able to manage the situation. However, the June 2002 accident, I am satisfied, aggravated or exacerbated the pre-existing conditions to such an extent that the consequence for the plaintiff was to effectively remove any meaningful capacity for work and to require greater assistance in the domestic situation. For instance, she was able to work only 10.5 hours a week until her employment was terminated in October 2004; thereafter, and I will return to this, she appeared to be effectively unemployable in any labour market reasonably open to her in light of her education, training, qualifications and experience. Dependence on other family members for gratuitous assistance at home occurred, principally from Ms Tayba, and where the plaintiff with her father and Mr Russell provided each other with support in relation to domestic chores previously the duty of the plaintiff.

Compliance by the respondent, as an employer, with its duty of care to an employee was not to be measured by reference to the reasonableness of imposing on an occupier of land an obligation to warn members of the public about the obvious risks on the land…It was not a question of warning the appellant of a risk. It was a question of creating a risk by failing to adopt a safe system of work.

88 One may, I think, read into this that the common law duty cast on an employer is to be proactive rather than merely reactive in subjective employees to a particular system and place of work as it is in that way the concept of the “reasonably prudent employer” finds effect. Of course, and as Windeyer J observed in Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 36:

A safe system of work is one that is safe for an average workman taking reasonable care for his own safety.

89 With those statements of principle in mind, I will so approach the postion of the second defendant.

Whether breach of duty of care

90 I have accepted the circumstances of the accident as detailed by the plaintiff and have made various other findings as to the nature and condition of the kitchen floor, the presence of water on the floor from the defective dishwasher and from its ordinary operation and the respective responsibilities of each defendant as to the catering services. It is in that context the question of whether the duty of care found has been breached is to be considered.

91 The basic proposition put by senior counsel for the plaintiff was that safety risks associated with working on a wet, slippery tiled floor were well known and readily foreseeable by both defendants. He put that the sole cause of the plaintiff’s accident was the presence of water on the floor due to the first defendant’s failure to properly maintain the dishwasher and to drain the floor. In requiring the plaintiff to work on a slippery floor, the second defendant breached its duty to provide a safe place and system of work.

92 In resisting negligence, it was submitted for the first defendant that the plaintiff had to show, which it had not, that the floor was inadequately drained, the premises were not properly maintained and the floor was defective and not properly designed. Mr Hartenstein’s evidence was relied upon but, as I have found, the evidence to the contrary by the plaintiff and Ms Spartalis is to be preferred. Counsel put also that Mr Burn’s evidence would not be accepted – I have accepted it.

93 Counsel for the second defendant denied any breach by it of the relevant duty of care. It was said that the water on the floor was as a result of the plaintiff’s activities in loading and unloading the dishwasher in circumstances where she had previously avoided what she knew to be a hazard. In that respect, the plaintiff was in as good a position as the second defendant as to how she should deal with the use of the dishwasher.

94 As against the first defendant, I am satisfied it as the occupier breached its duty of care to the plaintiff in respect of its failure to properly maintain the dishwasher or to provide a serviceable dishwasher which did not leak water during use, its failure pending repairs to or replacement of the dishwasher to provide flooring mats to absorb the water and its failure to provide a safe place of work with appropriate non-slip tiles and adequate floor drainage.

95 As to the second defendant as the employer, I am satisfied it was negligent in that it failed to provide the plaintiff with a safe place and system of work. It had a duty to advise the first defendant of faults in the operation of the kitchen equipment, including the dishwasher, and such faults with water leaking onto the floor were advised to it by staff at the premises but no remedy occurred. In performing her work, the plaintiff was simply following the system laid down by the second defendant with the equipment provided and it is no answer for it to say that the water on the floor was as a result of the plaintiff’s activities – to do so would be to shield behind a continuing unsafe system of work to excuse an obligation on it to obviate the risk; that cannot be right. It is no answer either to expect the plaintiff herself to decide how to deal with the loading and unloading of the dishwasher – it leaked water onto the floor when operating and when the door was opened and it was the non-delegable duty of the second defendant to remedy the consequent safety risk.

96 I find, therefore, that both defendants breached their respective duties of care owed to the plaintiff. The count of negligence is established.

Breach of statutory duty

97 The plaintiff pleaded in respect of both defendants a breach of the duty imposed by paras (a) and (b) of cl 39 of the Occupational Health and Safety Regulation which provides as follows:

39 Fall prevention – particular risk control measures

A controller of premises must ensure that:

(a) safe access is provided to all parts of a place of work to which a person may require access and from which the person may fall, and

…

(e) floors are designed to be safe without risks of slips, trips or falls, with adequate drainage (if necessary) and appropriate floor coverings (if necessary).

98 Clause 33 of the Occupational Health and Safety Regulation defines a “controller of premises” in this way:

controller of premises means a person who has control of premises used by people as a place of work, including:

(a) a person who has only limited control of the premises, and

(b) a person who has, under any contract or lease, an obligation to maintain or repair the premises.

99 The first defendant as the owner and occupier of Macquarie Lodge, as I have found, had responsibility for the care and control of the premises, such as the maintenance and repair of them. The second defendant occupied the kitchen premises under a contract with the first defendant to provide catering services to the residents, including as to the use of the equipment provided and to keep the premises in an orderly state so as to avoid danger to persons. It follows, in my view, that both defendants were controllers of the premises within the meaning of cl 33 and, hence, subject to the duties imposed by cl 39. The question then arises whether those duties relevantly applied to the instant circumstances and, if so, whether they have been met. The defendants answered the question against there being any breach by them.

100 Immediately, I think, it may be accepted that para (a) of cl 39 does not apply. It concerns “access” to premises. Here, the plaintiff was “in” the kitchen as the workplace and was not accessing it. Attention need therefore focus on para (e) only.

101 The resistance to the applicability of cl 39(e) was based on the proposition that the obligation was to ensure that floors were “designed” in a certain way so as to be free of risks and not to ensure that floors once designed and installed were safe; there was, as the argument went, no evidence that the kitchen floor here was not designed to be safe without risks of slips, trips or falls, with adequate drainage and appropriate floor coverings. The provision was said, therefore, not to apply to the present case.

102 The distinction between the design of the floor and its use in its present state, although perhaps subtle in its terms, is, I think, significant. In my view, the clause is directed to a duty on the controller of premises to ensure that floors are designed to be safe, that is, in such a facility being installed it complies with the specified safety outcomes rather than once installed. The distinction made by the defendants, in my view, has been made good. There was no evidence that either defendant was concerned with the design of the kitchen floor here. Therefore, cl 39(e) does not apply so that this statutory count must be dismissed.

103 The defendants submitted that even if cl 39 applied there was nothing in the Occupational Health and Safety Act 2000 or in the Occupational Health and Safety Regulation itself to suggest breach conferred a statutory cause of civil action. The provisions gave rise to criminal proceedings with a penalty for breach. In view of the finding I have made, it is strictly unnecessary to deal with this submission, but it was fully argued and, particularly if I be wrong in my conclusion, it is desirable to shortly refer to it.

104 The statute in s 32(1) states, in effect, that nothing in Pt 2: Duties Relating to Health, Safety and Welfare at Work is to be construed as conferring a right of civil action in respect of any breach of such duties; however, s 32(2) provides that sub-s (1) does not affect the extent to which a breach of duty imposed by the regulations is actionable. Section 33(1) enables regulations to be made carrying out or giving effect to the objects of the statute. Section 3 sets out the objects, including the overarching object in para (a) “to secure and promote the health, safety and welfare of people at work” and in para (b) “to protect people at a place of work against risks to health or safety arising out of the activities of persons at work.” In that statutory context, cll 33 and 39 of the regulation were made. It need be added, however, that s 39A of the statute as to civil liability under the regulations expressly states that the regulations may provide that nothing in them is to be construed as conferring a right of civil action in respect of any breach thereof but the failure to do so is not to be construed as conferring such a right. Clause 39 makes no provision as contemplated by s 39A.

105 It accordingly follows in the statutory scheme, it seems to me, that in determining whether cl 39 gives rise for breach of its provisions to a right of action in any civil proceedings depends upon the ordinary approach to such matters. The early law in that respect was stated by Lord Tenterden in Doe d Rochester (Bishop) v Bridges (1831) 1 B & Ad 847 at 859 that “where an Act creates an obligation, and enforces the performance in a specified manner we take it to be a general rule that performance cannot be enforced in any other manner.” Even so, his Lordship’s comments seemed to admit of exceptions and in the area of employer-employee relations such an exception may be said to have arisen. For instance, in O’Connor v S P Bray Ltd (1937) 56 CLR 464 at 477-478 Dixon J said:

The received doctrine is that when a statute prescribes in the interests of the safety of members of the public or a class of them a course of conduct and does no more than penalise a breach of its provisions, the question whether a private right of action also arises must be determined as a matter of construction…

In the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others seems to be regarded as involving a correlative private right, although the sanction is penal, because it protects an interest recognised by the general principles of the common law.

106 The position so stated by Dixon J has been followed: see Australian Iron and Steel Pty Ltd v Ryan (1957) 97 CLR 89; Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397; John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218; and Sutherland Shire Council v Heyman (1985) 157 CLR 424. Indeed, in Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 at 321-322 Gaudron J recently re-stated the general rule that legislation which imposes duties with respect to the safety of others is construed as conferring a right of civil action unless a contrary intention appears.

107 Arguably, s 32(1) may contain that contrary intention although s 32(2) would seem to modify it to the extent a breach of the regulations occurs. Also, s 39A leaves open the ability of the regulations to provide that nothing in them is to be seen as conferring a right of civil action, although any omission to so provide is not to be seen as conferring such a right. Of course, as I have said, cl 39 makes no such provision.

108 Does cl 39, then, contain an intention against the giving of a right to a civil action? In light of s 32(2), I think it is to the clause itself in the regulation one is to look for the answer. It is true that the clause invokes a criminal sanction for breach by the imposition of a penalty but, in my view, any intention against the giving of a right to a civil action for breach, where the safety of persons at work is concerned, must be plainly evident from the terms of the regulation, either expressly or by necessary implication. There is nothing in cl 39, in my reading of it, to even suggest an intention against a civil action where it is breached. Therefore, I hold that cl 39(e) does support, if the circumstances otherwise be made out, a civil action for damages for breach of statutory duty. However, as those circumstances have not been met in the case here, as I have found, then this count otherwise fails.

Apportionment of liability

109 Even though the defendants did not pursue their cross-claims for contribution and/or indemnity pursuant to the Law Reform (Miscellaneous Provisions) Act and damages for breach of contract, it is still necessary tp apportion responsibility for fault for the purposes of s 151Z(2)(c) of the Workers Compensation Act to enable the reduction of any damages at common law payable by the first defendant in recognition of the contribution from the second defendant as the employer.

110 For the plaintiff, it was put that liability should be apportioned as to 90 per cent for the first defendant and 10 per cent for the second defendant on the basis as senior counsel said, that “the sole cause of the plaintiff’s accident, and of her injuries, was the presence of water on the floor, which was solely due to the failure of the First Defendant to fulfil its obligation to maintain the dishwasher and drain the floor.” For the first defendant, its counsel said such an assessment was “contrary to all authority, principle and commonsense.” The evidence showed, said counsel, that the second defendant was the plaintiff’s employer; received complaints from her; controlled, directed, supervised and instructed her; determined the system of work; determined how in and what circumstances the plaintiff would do her work; conducted the activities that led to water being on the floor; and failed to put the mats down. On that material, counsel for the first defendant submitted that apportionment for any liability should be limited to 25 per cent for it and 75 per cent for the second defendant. No submission on this aspect was put by the second defendant other than that fault should be apportioned equally between the two defendants.

111 I have earlier stated the various respects in which each of the defendants was negligent. I will not repeat them. Suffice it to say that the direct cause of the accident, as submitted for the plaintiff, was the water on the floor. However, in my view, in considering apportionment for fault it is appropriate also to look at those factors but for which the water would not have been on the floor. As was said in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494, applied in Bankstown Foundry (160 CLR at 311), albeit in considering contributory negligence but just as applicable here as between defendants:

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 683; Smith v McIntyre [1958} Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.

112 The second defendant as the employer had a non-delegable duty of care to the plaintiff in its occupation of the kitchen in providing the catering services to the first defendant and, as such, was obliged to provide a safe place and system of work. The fact some other party may be at fault does not remove the employer’s responsibility. For instance, in TNT v Christie (65 NSWLR at paras [45] – [62]) Mason P, with whom Davies AJA and Foster AJA agreed, extensively reviewed the authorities on the non-delegable nature of the employer’s duty and cited with approval (at para [46]) the following extract from the decision of Giles JA (Handley JA and Stein JA agreeing) in Elliott v Bickerstaff (1999) 48 NSWLR 214 at 238 by reference to his own earlier decision in Lepore v State of New South Wales (2001) 52 NSWLR 420 at 426 in para [30]:

…The person who owes the non-delegable duty of care may be liable without fault, whether personal or of a servant or agent. Although conceptually the breach of duty will be a breach of that person’s duty of care, the so-called duty of care in truth is not a duty to take care but a mechanism for responsibility for someone else’s failure to take care…

113 In other words, it seems to me, the relevant failure of the second defendant here, in terms of the non-delegable duty it had, was to fail to ensure that the first defendant made available a place of work for the second defendant’s employees, including the plaintiff, that was safe and without risks to health. So seen, the failures of the first defendant in properly maintaining the dishwasher, in not providing floor mats and in not remedying the slippery nature of the floor tiles when wet became failures of the second defendant. In addition, in controlling and supervising the day-to-day activities of the plaintiff, the second defendant permitted a known and foreseeable hazard of water on the floor to continue during the plaintiff’s performance of her work and even though it was responsible to keep the premises in an orderly state. In the result, I think the second defendant had responsibility for the accident significantly greater than that of the first defendant who, after all, had no responsibility for the system of work or supervision of persons doing it.

114 I conclude that the appropriate apportionment for responsibility of the defendants for the plaintiff’s injury would be 30 per cent for the first defendant and 70 per cent for the second defendant.

Damages

115 An assessment of damages attributable to the subject accident is complicated by the plaintiff’s pre-accident ailments and events she experienced post-accident concerning her respiratory system. Nevertheless, of course, the plaintiff is to be taken as she was at the time of the accident when clearly an aggravation or exacerbation of her then existing condition occurred which has had ongoing effects. The principal injuries from the accident were to the left knee, neck and an aggravation to the lumber spine with, as it developed, consequent recourse to increased medication, further migraine headaches, depression and sympathetic effects to the right knee from the altered gait. The point has been reached, in my view, where the plaintiff from a combination of all factors is now totally incapacitated for work in any labour market reasonably open to her. The task is to disentangle the causes of the multi-disabilities.

116 Prior to the accident, the plaintiff had chronic back pain from her 1995 accident for which she regularly took strong medication, she had problems with her left knee and hip, neck, experienced migraines and had episodes of depression. Regular visits to her general practitioner, Dr Liow, were made. Dr Sekel, who gave treatment for the plaintiff’s back thought she had a permanent disability with very significant impairment which would prevent re-entry to the workforce, although it was possible she could do light duties but with assistance for the heavier household chores. Notwithstanding this, the plaintiff was motivated sufficiently to commence pert-time work as a kitchen hand at Macquarie Lodge for 32 hours a week over four days. The evidence of Ms Spartalis was that she coped with this work and the plaintiff herself found work as the centre of her life. Ms Field, Mr Russell and Ms Tayba all gave confirmatory evidence.

117 The immediate effects of the accident were to the plaintiff’s left knee and neck. The resultant problems in her overall condition manifested themselves in the first six-month period after the accident and I accept her evidence that the neck, shoulders, left knee, right leg and migraines, as she said, “got worse…not getting better.” Given her motivation for work, through Ms Bell a return to work programme was settled and she in fact returned to Macquarie Lodge on 10 January 2003 on restricted light duties of nine hours per week over three days increased to 12 hours per week over three days on 8 March 2003 and to 13.5 hours per week over three days on 22 March 2003 until her employment was terminated by the second defendant on 25 October 2004. During this period, Dr Jamieson said her left knee problems placed her in the severely disabled group and Ms Spartalis noticed the plaintiff walked with a limp. Dr Khor, after the arthroscopy by Dr Rowden in August 2002, thought by December 2002 a return to work was possible on suitable duties even with the residual pain in the left knee and back. The later medical evidence suggested a possible need for left knee and hip replacements.

118 In May 2003 the plaintiff underwent a thyroidectomy and required a period of a few weeks to recover.

119 On the domestic side, the plaintiff found she could not do the heavier housework and relied on Mr Russell, her father, Ms Tayba and, intermittently, Ms Field. I think the assistance from Mr Russell and her father was more in the nature of mutual support and assistance between them and the real assistance domestically after the accident was from Ms Tayba to the extent of, as she said, “a good seven hours a week.” Dr Nash considered care to involve one to two hours per day. The evidence from these family members was of the plaintiff during the last 12 months being a completely different person with mood swings, non-social and more depressed.

120 On the medical evidence I have preferred, the plaintiff since the accident had not insignificant impairments to her neck, back and lower limbs. Dr Nash helpfully identified the back problem as following the 1997 laminectomy, the left knee problem after 2002 arthroscopy, the right knee instability from the altered gait after the accident and the left hip from degenerative changes aggravated by the accident. Dr Lucir considered the plaintiff’s psychological problems, such as depression, resulted solely from the 2002 work injury. Other medical evidence focused on this accident as being the substantial contributing factor to the plaintiff’s resultant condition, including the significant effects of its aggravation. On the other hand, the non-work aspects as to the prior back condition, thyroid problems, emphysema and respiratory difficulties are also substantial.

121 Overall, I consider the plaintiff’s present condition and continuing into the future as being two-thirds referable to the June 2002 work injury and one third to the non-work matters. I will proceed to assess damages on that basis, firstly against the first defendant and then against the second defendant.

122 Non-economic loss: Counsel for the plaintiff claimed an appropriate assessment would be 45 per cent of a most extreme case whereas the first defendant sought a figure in the range of 28 per cent. In the circumstances of the plaintiff’s condition as I have found it, I assess non-economic loss at 30 per cent of a most extreme case, for which the maximum amount under s 16(2) of the Civil Liability Act is $442,000. A severity of 30 per cent attracts an amount, which I will allow, of $101,500 being 23 per cent of the maximum.

123 Past out-of-pocket expenses: It was common ground that $47,773.55 had been paid for medical expenses by the workers compensation insurer and the plaintiff claimed that amount for the past. However, as counsel for the first defendant pointed out from the evidence of the plaintiff, those expenses included the cost of medication and other expenses for her non-work related conditions. Therefore, for this component I will allow two-thirds, that is, $31,849.04.

124 Future out-of-pocket expenses: A claim of $181,062 was made for future expenses to cover general practitioner, orthopaedic specialist, pain specialist, psychiatrist, counselling, medication and surgery for knee and hip replacements. The first defendant’s counsel did not specifically address these issues.

125 The claim was calculated by reference to various aspects of the medical evidence, evidence which I have earlier accepted. The stated costs into the future appear reasonable but, again, I propose to reduce the claim by one-third to cater for non-work related matters. I will therefore allow $120,708 for this element.

126 Past domestic assistance: On the basis of seven hours per week from the date of the accident to the trial, a period of nearly five and a half years at an hourly rate of $20, an amount of $39,385 was claimed for past gratuitous domestic care. The first defendant resisted any amount being allowed, on the basis that, in the main, the care was based not on needs solely because of the accident but rather by way of emotional and physical support from concerned family members. In any event, the care provided was for less than six hours per week and did not extend for at least six months on an ongoing basis. The plaintiff relied on the evidence of Mr Russell, Ms Field, Ms Tayba and Dr Nash whose evidence supported the care claim for a period ranging from one to three hours per day.

127 It must be observed that the estimates of the period of care comprehended the total condition of the plaintiff and, understandably, was not directed solely to the subject accident. Nevertheless, I think the evidence as to the first six-month period following the 29 June 2002 accident until the plaintiff returned to work on 10 January 2003 may reasonably be seen as requiring the type and amount of care given by Ms Tayba, that is, seven hours per week for 28 weeks; I accept that that was solely attributable to the effects of the accident. Thereafter, the seven hours per week, which I accept was a reasonable estimate, is to be apportioned as to two-thirds to the accident and one-third to other matters. That results in a continuing amount of four and a half hours per week which, by reason of s 15(3) of the Civil Liability Act, does not meet the threshold of at least six hours per week.

128 I will allow for past gratuitous domestic care of seven hours per week for 28 weeks at an hourly rate of $20 giving an amount of $3,920.

129 Future domestic assistance: This claim must fail because the amount of weekly care of four and a half hours did not meet the statutory threshold of six hours.

130 Past economic loss: Counsel for the plaintiff quantified this component based on a net weekly wage loss of $400 for the period of about five and a half years since the accident in the sum of $112,528. For the first defendant, and even given that the plaintiff would have continued to work regardless of the considerable doubt due to her other ailments, the best case scenario was that by reason of the accident her earning capacity had been diminished by perhaps one-third. A modest buffer, of $50,000, was suggested. The second defendant’s position on this element emphasised the plaintiff’s pre-existing medical conditions, particularly the back injury and use of narcotic analgesia, to limit any loss to the period from the accident date in June 2002 to the date of termination of employment in October 2004. The quantification, submitted counsel for the second defendant, should be the total wages loss from the accident to the time of the plaintiff’s return to work in January 2003 and thereafter the loss caused by the reduced working hours to the termination date – counsel calculated this at $53,131.32, after allowing for lost superannuation and income tax paid on workers compensation weekly benefits.

131 On the findings earlier made, I accept by reason of the accident that the plaintiff was totally unfit for work from 29 June 2002 to 10 January 2003 when she returned to work. Notwithstanding her pre-accident injuries, she was able to and in fact did work part-time 9 hours per week until 8 March 2003 (8 weeks); then 12 hours per week until 22 March 2003 (2 weeks); then the hours increased to 13.5 until 31 July 2003 (18 weeks); but from 1 August 2003 the hours had to be reduced to 10.5 per week until the termination date (64 weeks). Her pre-injury hours were 32 per week so that the consequent loss from the accident may readily be seen. Also, in May 2003 she underwent a thyroidectomy requiring a recovery over, say, 6 weeks for which a reduction should be made. After employment was terminated on 25 October 2004, the plaintiff unsuccessfully looked for work and, I am satisfied, she had a capacity to then work 32 hours part-time each week were it not for the accident but that was denied her up to the time of trial – she has consequently suffered a loss of those working hours.

132 It was accepted, and it so appears from the unchallenged evidence from the second defendant and the plaintiff, that the plaintiff’s net weekly wage as at the date of the injury was $392 ($12.25 per hour for 32 hours) and $16.80 gross or about $13.50 net per hour as at the date of termination on 25 October 2004. Therefore, I calculate her past economic loss as follows –

$
29.6.02 to 9.1.03 (28 weeks at $392)	10,976.00
10.1.03 to 7.3.03 (23 hours at $12.25 per hour for 8 weeks)	2,254.00
22.3.03 to 31.7.03 (18.5 hours at $12.25 per hours for 12 weeks – 18 weeks less 6 weeks for thyroidectomy)	2,719.50
1.8.03 to 25.10.04 (21.5 hours at $12.25 per hour for 64 weeks)	16,856.00
26.10.04 to 17.12.07 (32 hours at $13.50 per hour for 163 weeks)	70,416.00
Total:	$103,711.50

133 I will allow $103,711.50 for past economic loss.

134 Future economic loss: It will be apparent from counsel’s submissions as to past loss that any amount for future economic loss was wholly opposed. Senior counsel for the plaintiff claimed an amount of $149,884 based on a net weekly wage of $450 to the plaintiff’s age of 65 years, a period of about 11 years, with a 25 per cent reduction for vicissitudes.

135 As I have said, the plaintiff but for the accident would have intended to continue in gainful employment until retirement at age 65 years. However, the likelihood she would do so, having in mind the evidence of both Dr Smith and Dr Gardiner as to her condition of emphysema, respiratory system and lung tumours, must, I think, be significantly reduced. And also, of course, there are the increasing effects on her total condition of the pre-accident ailments. In assessing future economic loss, I consider those matters may properly be met by increasing the ordinary discount for vicissitudes from 15 per cent to 40 per cent. I accept for this purpose a net weekly wage of $448 based on $14.00 per hour for 32 hours.

136 Future economic loss is therefore calculated at $119,374.08 – $448 x 5% multiplier of 444.1 less 40% for vicissitudes.

137 Loss of superannuation benefits: It is appropriate to allow on both past and future economic loss an amount to compensate for lost superannuation benefits at the statutory rate of 9 per cent per annum on gross wages lost. However, it is only practicable to do so on a reasonably accurate figure of the gross loss estimated from the net loss and I note that that was the plaintiff’s approach also. For this purpose, the plaintiff was on a marginal tax rate of 17 per cent so that I will gross the past loss from $103,711.50 to $124,953.61 and for the future from $119,374.08 to $143,824.19. The resultant superannuation loss for the past is therefore $11,245.82 and for the future it is $12,944.18.

138 A total for loss of superannuation benefits of $24,190 will be allowed.

139 Fox v Wood element: As to compensation for income tax paid on worker’s compensation weekly benefits, it was agreed the appropriate figure would by $8,340.07. I will allow that amount.

140 Summary of damages against the first defendant: The damages to be allowed against the first defendant comprise the following elements – non-economic loss of $101,500; past out-of-pocket expenses of $31,849.04; future out-of-pocket expenses of $120,708; past domestic assistance of $3,920; past economic loss of $103,711.50; future economic loss of $119,374.08; loss of superannuation benefits of $24,190; and Fox v Wood element of $8,340.07. The total amount is $513,592.69.

141 Damages against the second defendant: The only damages that may be awarded against the second defendant as the employer under s 151G of the Workers Compensation Act are those for past economic loss due to loss of earnings and for future economic loss due to deprivation or impairment of earning capacity. As such elements have been assessed already, it is only necessary to re-state them as being proper to allow against the second defendant as well, that is –

$
Past economic loss	103,711.50
Future economic loss	119,374.08
Loss of superannuation benefits	24,190.00
Fox v Wood element	8,340.07
Total:	$255,615.65

142 Adjustment of damages against the first defendant: Pursuant to s 151Z(2)(c) of the Workers Compensation Act, the amount of $513,592.69 assessed against the first defendant is to be statutorily reduced to recognise the apportionment of fault in the second defendant as the employer for what occurred to the plaintiff – that has been determined at 70 per cent. Thus, the reduced amount of damages to which the plaintiff is entitled against the first defendant becomes a modified amount of $333,008.76.

Conclusion and orders

143 The plaintiff is entitled to a verdict against the first defendant in the amount of $333,008.76 and against the second defendant in the amount of $255,615.65. As to the cross-claims by the two defendants against each other, the respective cross-defendants should have verdicts against the cross-claimants with each party to bear its own costs.

144 I will hear the parties on the costs of the action and the form of the proposed orders before making final orders.

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