Karlevski v Vicinity Centres PM Pty Ltd
[2023] VCC 482
•4 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
General List
Case No. CI-21-02949
| KATHERINE KARLEVSKI | Plaintiff |
| v | |
| VICINITY CENTRES PM PTY LTD | First Defendant |
| and | |
| CONSOLIDATED PROPERTY SERVICES (AUSTRALIA) PTY LTD | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22, 23, 24 March 2023 | |
DATE OF JUDGMENT: | 4 April 2023 | |
CASE MAY BE CITED AS: | Karlevski v Vicinity Centres PM Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 482 | |
REASONS FOR JUDGMENT
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Subject:PUBLIC LIABILITY
Catchwords: Personal injury – negligence – slip and fall– inferential reasoning
Legislation Cited: Wrongs Act 1958
Cases Cited:Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd [2017] VSCA 88; Jones v Dunkel HCA 8 101 CLR 298
Judgment: Proceeding dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram KC with Mr M J Garnham | John Dellios & Associates |
| For the First Defendant | Ms G Cooper | Wotton & Kearney |
For the Second Defendant Mr D McWilliams Kennedys
HIS HONOUR:
Introduction
1The Northland Shopping Centre (“Northland”) is a large retail shopping facility in northern metropolitan Melbourne.
2As at 11 July 2019, the first defendant, Vicinity Centres PM Pty Ltd (“Vicinity”) had the contract to manage Northland and the second defendant, Consolidated Property Services (Australia) Pty Ltd (“Consolidated”) had an agreement with Vicinity to perform cleaning services at Northland.
3The plaintiff in this proceeding, Ms Katherine Karlevski, lives not far from Northland. She is single and lives in close proximity to her sister and her now 94-year-old mother. The plaintiff is a solid citizen. She has accounting qualifications and worked in the public service for many years, until a combination of ill health and the need to care for her elderly and ailing parents saw her remove herself from the workforce during 2014.
4On 11 July 2019, the plaintiff went to Northland and met a friend to do some banking for a social club of which she was a member. After the banking was done, she had a coffee and then intended to walk back through Northland to exit the building.
5At approximately 3:04 PM on 11 July 2019, the plaintiff bid her friend goodbye and then shortly afterwards was walking past a kiosk in a section of Northland described as the ‘new fashion mall’ when, without warning, she slipped and fell (“the incident”). As a result of the incident, she suffered injury to her right knee.
6This is a common law proceeding for damages brought by the plaintiff in respect to the incident. She claims damages for pain and suffering, out of pocket expenses and gratuitous care (special damages).
7There is no dispute that the incident occurred. Indeed, it would be impossible to dispute the incident because it was recorded on closed-circuit television (“CCTV”) and is evidence in this proceeding.[1] Sections of the CCTV footage were played in Court and I also took the opportunity to consider the footage in chambers, where it was better able to be played and considered. The CCTV covered a period from approximately 2:05 PM through until 4:05 PM on 19 July 2019.
[1]Exhibit P14.
8What is very much in dispute is whether either of the defendants were negligent and whether such negligence was a cause of the plaintiff’s injury, loss and damage.
Pleadings
9The plaintiff brought this proceeding by way of statement of claim dated 19 July 2021. Against Vicinity, she made allegations in negligence against it as the occupier of Northland and also alleged a failure to comply with the duty owed pursuant to the Wrongs Act 1958. She said, relevantly, that Vicinity was negligent or breached the duty owed to her because –
(a) it caused or permitted the tiled floor to be wet;
(b) of a failure to ensure that the roof at the shopping centre at or in the vicinity of the incident location did not leak;
(c) it failed to carry out any or adequate repairs of the roof at the shopping centre at or in the vicinity of the incident location; and
(d) it failed to maintain the roof at the shopping centre at or in the vicinity of the incident location.
10The plaintiff made allegations in the statement of claim against Vicinity in regard to the roof and the floor surface, but as shall be discussed, they fell away during the running of the trial.
11As against Consolidated, relevantly the plaintiff alleged it was negligent because it failed to –
(a) observe liquid on the floor;
(b) spot mop the liquid/spillage as required by the agreement with the first defendant;
(c) mop up the liquid on the floor;
(d) inspect the floor adequately or at all so as to notice the liquid/spillage.
12In the broad, the plaintiff alleged that Consolidated had failed to take reasonable care in the performance of cleaning and inspection of the floor at Northland and that constituted negligence that had been a cause of her injury, loss and damage.
13The defendants each denied negligence or breach of statutory duty. There were allegations of contributory negligence that were withdrawn during the running of the trial. The defendants denied the extent of the plaintiff’s injury, loss and damage.
14The plaintiff provided a list of special damages in the total sum of $33,251.48. When the trial commenced, the defendants – sensibly – accepted that claim for special damages. General damages were not agreed.
The parties’ contentions
15At the conclusion of the evidence, the parties each provided a written outline of submissions and spoke to those submissions. I have considered the oral and written submissions, which were prepared after a break of one day so that transcript could be considered, even though the evidence was concluded inside of two days.
16The defendants’ contentions can be succinctly summarised:
(i) first, an inferential path of reasoning did not lead to a conclusion that there was a roof leak that was a cause of the incident; and
(ii) second, if the Court did conclude there was a roof leak, that was not enough to establish negligence or breach of statutory duty.
17The plaintiff’s contentions are harder to summarise. Her written submission of eight pages dealt with inferential reasoning and damages. She submitted that there was an inferential path of reasoning to conclude that a roof leak at Northland caused a pool of water to be on the floor, which caused her to slip. Her written submission did not directly deal with questions of negligence or breach of duty.
18In her written submission the plaintiff said in summary that:
“Taken in its totality, it is submitted that the evidence established that the inference to be drawn was that the plaintiff sustained injury on 11 July 2019 when she slipped and fell on water which had leaked through the roof of the premises. No other source of the presence of water on the floor surface was identified or adduced in evidence by either the First or Second Defendant”.[2]
[2] Plaintiff’s written submission at [16].
19Therefore, at the commencement of oral submissions, I raised with her senior counsel what I called the fundamental question, namely, even if I inferred that a leaky roof caused water on the floor and that was a cause of the incident, what is the evidence that supports a conclusion of negligence or breach of duty against either defendant.
20Ultimately, the plaintiff did not pursue a claim based either on a failure to inspect or repair the roof, or based on an inadequate tiled floor at the premises. Rather, her case was pursued on the basis of what happened after the roof leaked, or as her senior counsel put it, “on the ground is the issue”.[3] The thrust of her oral submissions was that the defendants’ response to the roof leak was inadequate; that there was water on the floor that was not detected or cleaned up, and no warning of that leak was given to the plaintiff.
[3] Transcript (“T”) 165.
Inferential reasoning
21There is no direct evidence of a problem with the roof at Northland, or of a leaking roof, in the area where the incident occurred (the new fashion mall), on the day of the incident.
22There is evidence of roof leaks in sections of Northland from time to time, over several years, but no evidence of any such leak in the approximate period of 18 months before the incident.
23The ‘direct’ [sic] evidence of any roof leak in the area of the incident on 19 July 2019 came from the CCTV (which I shall discuss in more detail in due course) in which a blonde-haired woman[4] is seen to look up at the roof and point.
[4] Identified in the oral evidence as ‘Mia’ a security guard; T 141.
24The plaintiff was unable to give any direct evidence about the roof or as to the cause of the incident.
25The plaintiff said that 19 July 2019 was a wet day when she was going to the shopping centre.[5] She described the incident as follows:
“Near JD Sports there’s an exit … and I continued onwards to that fashion mall, as you said today. And, I don’t know, when I got in front of that rectangle, that perfumery, I – I was – one minute I was walking; the next minute I was on the ground.” [6]
[5]T 20.
[6]T 21.
26The plaintiff was asked whether she had seen anything on the ground in front of her before the incident and she said “No. I couldn’t see it from that angle from standing up.” She then explained her movement leading up to the incident as:
“So I was walking forward, and my left foot went up, and my right foot or leg went straight down onto the knee. So I basically, yes, just fell straight down onto my knee.”[7]
[7]T 22.
27That is the extent of the plaintiff’s own evidence of the incident. She otherwise relied on inferential reasoning from the other evidence, including from the CCTV.
28Returning to the legal principles in a claim based upon inferential reasoning, the High Court of Australia in Bradshaw v McEwans Pty Ltd[8] stated –
“The difference between the criminal standard of proof in its application to circumstancial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture.”
[8](1951) 217 ALR 1, 5.
29The parties referred to the decision of the Court of Appeal in Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd[9] as a recent endorsement of the approach set out in Bradshaw. Having considered the parties’ submissions, I do not consider the legal principles to be in dispute.
[9] [2017] VSCA 88 at 101.
30Here, there is no direct proof as to the source of the water on the floor. There is no direct proof of how long water was on the floor. The resolution of those factual issues is to be undertaken by the application of the civil standard of proof and the requirement to determine whether the various facts and circumstances as found, or accepted, raise the inference that, on the balance of probabilities, either of the defendants had been negligent. As noted in Masters, the process of reasoning must constitute a valid inference as distinct from speculation.
31Specifically, on the facts as established by the evidence, can it be inferred, on the balance of probabilities, that –
(i)the roof was leaking at or above the point in the new fashion mall where the incident occurred;
(ii)was any roof leak the cause of water to be upon the floor; and
(iii)was water from the roof leak a cause of the incident?
32But, there remains the question whether drawing the inferences urged by the plaintiff is enough to establish factual causation; that is, whether there was negligence or breach of statutory duty that was a necessary condition of the occurrence of the harm.
33In summary, there are essentially two parts to the inquiry. First, can it be inferred that a leaky roof caused the incident? Second, if those inferences can be drawn, then the inquiry moves to whether there is evidence sufficient to establish liability?
The proceeding and evidence relied on
34The plaintiff gave oral evidence and tendered documents relied on by her. In addition, she called oral evidence from two paramedics (who attended her at Northland after the incident). She called her sister to provide some ‘before and after’ evidence. She tendered the CCTV. She called Dr Iain McLean, orthopaedic surgeon, and tendered medical reports.
35Vicinity called the current manager of Northland, Mr Craig Hugill, and tendered documents relied on by it. It also tendered an answer to an interrogatory by the second defendant.
36Consolidated called a cleaner, Mr Pao Yang and tendered documents relied on by it.
37I have considered all of the tendered evidence together with the transcript of the oral evidence, as well as the submissions.
Was there rain on 19 July 2019?
38As mentioned, in her oral evidence the plaintiff described 19 July 2019 as a wet day.[10] The CCTV records the incident occurring at approximately 3:04:56 PM. The plaintiff was stretchered away by Ambulance officers at approximately 3:55 PM. She did not look at the roof and did not feel any drops of water hit her while sitting on the ground.[11] She said that she got “quite damp” as she was wheeled out to the ambulance.[12]
[10] T 20.
[11] T 35.
[12] T 20.
39The plaintiff tendered a page from a report of an engineer, Dr Andrew Short, that reproduced rainfall charts from the Bureau of Meteorology from three different locations for 19 July 2019.[13] That evidence is that, in rainfall gauges within a few kilometres of Northland, there was between 5.4 mm and 7.4 mm as at 9:00 AM. At the nearest rainfall station there is no recorded rainfall from 9:00 AM until the time of the incident. The other two stations apparently recorded 2 mm or 4.6 mm for the following day.
[13] Exhibit P10.
40The next evidence of the weather on 19 July 2019 came during the oral evidence of a cleaner, Mr Pao Yang (“Mr Yang”) employed by Consolidated at Northland. Mr Yang was cross-examined about the weather on the day. He said he did not think it was a rainy day because they had not put out any cones at the entry points, which is what is normally done on a rainy day.[14]
[14] T 145.
41Vicinity did not dispute that there had been rain on the day of the incident.[15] Consolidated did not make that concession. On balance, based on the whole of the relevant evidence, I am satisfied that there was rain on the day of the incident. Beyond that, it is impossible to say when and how much rainfall there was, or if it was enough to cause a roof leak.
[15] Or at least the first defendant made that concession; T179.
42But, the evidence, such as it is, does not support a conclusion of major rainfall or of storm activity. The plaintiff did not suggest that she was wet from rain when she entered Northland. She did not give any evidence of seeing rainwater being on the floor during her time at Northland before the incident.
43Vicinity tendered an answer to an interrogatory sworn on behalf of Consolidated. When asked (in an interrogatory) if on the date there was a leak in the roof at Northland, the quality co-ordinator for Consolidated, Jessica Mackey, answered “Yes, however I do not believe that the roof was leaking at the incident location”.[16] But, Ms Mackey’s answer does not otherwise provide any clue as to the cause of the roof leak, or even the location at Northland of that leak. There was no oral evidence from any witness about this other leak.
[16] Exhibit D1-3.
44Based on how the plaintiff put her case, in order to succeed, she must establish that the evidence supports an inference, on the balance of probabilities, that rain caused the roof leak.
45There are many obvious ways in which a roof may leak. A pipe in the roof could leak. A fire sprinkler could leak. Rain could cause a leak. Similarly, water could come to be upon the floor in one of several ways, most obviously from some sort of a spillage. Of course, speculation is not permissible. The issue is whether an appropriate path of inferential reasoning supports a conclusion that there was sufficient rain to cause the roof to leak. As I shall explain, in my view to draw such a conclusion would involve impermissible speculation.
The roof at Northland does leak
46There is evidence of the roof at Northland leaking from time to time. That evidence comes from documents tendered by the plaintiff, and from documents discovered by Vicinity.
47The plaintiff tendered a map prepared by Vicinity that notated 15 occasions on which the roof leaked at Northland.[17] That document itself provided no information of when those leaks occurred, or how they happened. Attached to it were photographs, described as “images of leakages in Northland 05/03/2020 due to rain”.[18] The images show warning signs and white plastic buckets, presumably to catch the leak and indicating a leak of some substance. A consideration of the map and the images suggests a major rain event caused several roof leaks in parts of Northland, but not in the new fashion mall. If in fact the photos do relate to a rain event on 5 March 2020, then obviously that postdates the incident. Regardless, the map does not provide any evidence of roof leaks in the new fashion mall.
[17] Exhibit P3.
[18] Exhibit 4, Plaintiff Court Book (“PCB”), Pages 244 – 252 (inclusive).
48Next, the plaintiff tendered incident reports recording roof leaks or water damage at Northland in the period between 28 July 2017 and 14 January 2018.[19] The incident reports tend to support the conclusion that on occasions rain caused the roof at Northland to leak.
[19] Exhibits P5-9 (inclusive).
49On 28 July 2017, there was a flood at the Myer storeroom, in the Myer basement. The relevant incident report described the weather conditions as fine. No cause of the flood is given, other than “building faults”.[20] This suggests it was not due to a roof leak caused by rain.
[20] Exhibit P5.
50On 25 September 2017 there is a report of an incident described as a “massive roof leak” at the Priceline store. The relevant incident report described the weather conditions as ‘wet’. The author of the report noted a discussion by her with a plumber and the cause is again given as “building faults”.[21]
[21] Exhibit P7.
51On 18 November 2017 there is an incident report that recorded “because of thunderstorm and heavy rain…massive leaks in both North and West mall”. The cause is given as “food” [sic].[22]
[22] Exhibit P8.
52On 14 January 2018, there is a report that “during heavy rain on Saturday and Sunday morning….Myer had a lot of flooding over three levels”. This was noted to occur “regular during heavy rain”. The cause was described in the incident report as “other”.[23]
[23] Exhibit P9.
53That is the extent of documented evidence of flooding or leaks. Insofar as it can be discerned, it tends to the conclusion that significant rain activity at times caused roof leaks at parts of Northland. But there is no evidence that the new fashion mall area was prone to a leaky roof. As the first defendant submitted in its’ written submission, there is no evidence that it was on notice that the new fashion mall was prone to leaks.
54The operations manager of Northland is Mr Craig Hugill (“Mr Hugill”). He has been in that role since December 2020.[24] He was employed a different Vicinity site in July 2019. Mr Hugill gave evidence as to how leaks are identified and reported at Northland. He gave evidence that the incident was reported to Vicinity by the security company contracted to perform security at Northland and there was no mention of a leak in that report.[25]
[24] T 113.
[25] Exhibit D1-1.
55Mr Hugill said that at Northland there is a roof area of 100,000 square metres. The roof at the area of the fashion mall is a pressed metal galvanised roof. Vicinity have a policy for inspecting the roof.[26] Since he had taken over as the operations manager at Northland there had not been any roof leaks in the new fashion mall.[27] He had no personal knowledge of any roof leak at Northland in the two or three years before the incident.[28]
[26] T 118-119.
[27] T 117.
[28] T 119.
56In summary, the evidence established that, on occasion, there have been adverse water events at Northland, but there is no evidence of that in the approximate 18-month period before the incident. Based on the incident reports, the cause of some of those events is unclear. The cause of others, particularly at the Myer department store, is flooding from storms. There is no recorded roof leak in the new fashion mall.
57Therefore, I conclude that the roof at Northland did leak at times due to rainfall. I am satisfied that there was a roof leak at Northland on the day of the incident, for reasons unknown. But, on the balance of probabilities, I am not satisfied that the rain on 19 July 2019 caused the roof leak that the plaintiff complains of. It is simply speculation as to whether the amount of rain on that day was sufficient to cause a roof leak in the new fashion mall sometime before the incident, with no record of a roof leak in that area before or after the incident.
58Also tending against a conclusion that a roof leak caused the incident is the lack of evidence of any dripping or leaking after the incident. In other words, to highlight the fact that speculation is at the core of the plaintiff’s claim, I pose the rhetorical question - how did rain cause a leak for some unknown period of time before the incident, then cease leaking at about the time of the incident, and then not drip or leak after the incident, or even in the several years since? This highly unlikely scenario suggests that the water on the floor did not come from a leaking roof.
59This conclusion is enough to dismiss the plaintiff’s claim, but to do justice to her evidence and submissions I will continue to analyse the rest of the evidence on the basis that the rain could have caused a roof leak.
Factual causation
60Before proceeding, it is important to keep in mind factual causation. In this proceeding, the relevant legal principles about causation are not in dispute. In order to establish that negligence by the defendant/s caused her harm, the plaintiff must establish that the negligence was a necessary condition of the occurrence of the harm. Next, she must establish the scope of such liability, although that is not really an issue in this proceeding. The issue here is whether the defendant/s negligence caused her harm.
61So, even if inferences are drawn in her favour regarding the roof leak, that of itself does not prove negligence.
62At this point, it is relevant to note that the claim against each defendant is not the same.
63Vicinity manage Northland by a combination of their own staff and by engaging contractors as necessary, for example to provide security and cleaning services. In the discharge of their duty to people such as the plaintiff, they may reasonably delegate tasks that are required in the management of Northland, while remaining responsible overall for Northland.
64Consolidated are a cleaning company engaged by Vicinity to clean Northland. They do not have overall control of Northland, and do not perform maintenance on the roof. The cleaning was performed by them pursuant to an agreement with Vicinity. That agreement needed to provide for a reasonable system for the cleaning and inspection of a large, busy shopping centre.
65In my opinion, there is no evidence that the cleaning was not performed in accordance with the agreement. There is also no evidence to conclude that the system provided for in the agreement was not a reasonable system for the cleaning and inspection of the area where the incident occurred.
66The agreement provided for inspection and cleaning of the new fashion mall as required in 20-minute intervals, and the CCTV confirmed that to have occurred. The CCTV showed cleaners regularly patrolling the area where the plaintiff slipped. Mr Yang is seen in the area at intervals cleaning and mopping as required.
67As I understand the plaintiff’s case, she makes no complaint about the system provided for in the agreement between the defendants. Her complaint is more subtle and was a complaint that Mr Yang (or some other cleaner) failed to detect the leak, clean it up, or put out a sign warning her of the leak, or put out a bucket to catch the dripping water.
68If there was a pool of water on the floor from a leak and if Mr Yang (or other cleaners) failed to reasonably detect it or mop it up, then that might be enough to establish negligence against Consolidated. But it was never suggested to Mr Yang in cross-examination that some inattention on his part caused him to fail to detect and deal with the leak.
69Next, insofar as there is useful evidence from the CCTV, I consider that it showed Mr Yang to be appropriately and diligently performing his cleaning duties in the area of the incident. There is nothing to suggest he was distracted or not properly inspecting the floor as he moved through the fashion mall. The CCTV is consistent with my impression of him as someone who took his job seriously and performed it in a manner expected of him by the defendants.
70In addition, the CCTV shows that a different cleaner pushed a rubbish bin over the area of the incident at 2:49:31 PM (travelling in the opposite direction to the plaintiff at the time of her fall) and then again at 2:59:56 PM (in the same direction of travel as the plaintiff). On the second occasion, that cleaner picked up something from the floor slightly away from where the incident occurred.
71Any criticism of Mr Yang (or any other cleaner) by the allegation that he failed to detect the leak is simply not made out on the evidence. This is an example of the plaintiff proceeding on the supposition that her injury was caused by someone’s fault.
72For completeness, I note that Mr Yang completed a “cleaners statement” after the incident[29] in which he confirmed there was water on the floor when he attended near where the incident occurred. In that statement, it was recorded that there was clear water on the floor “about 2 metres long not wide”. In the same statement Mr Yang said he had passed through the area on the left side about ten minutes before, as he had been called for a spill near Michael Hill. That statement provides support for the suggestion there was water (clear fluid) on the floor. It also suggests that Mr Yang was adequately performing his duties. It was not suggested to him in cross examination that he had somehow missed the clear fluid that he cleaned up, in one of his earlier patrols of that area.
[29] Exhibit P15.
73The CCTV showed the area where the incident occurred to have been walked over by many hundreds of people in the hour before the incident. I was struck by just how busy it was. The volume of pedestrian traffic in the hour beforehand, or even in the ten minutes beforehand, tends to the conclusion that if there was a leaking roof then the water from that leak could only have been there for a relatively short period before the incident.
74Regardless, contrary to the submission of the plaintiff, there is nothing in the CCTV that suggests a failure by the cleaners to detect or deal with water on the floor. That is an inference that cannot be drawn, or a conclusion made from the direct evidence. What the plaintiff says is that there was water on the floor and so the cleaners must have failed to detect it and so that equates to negligence. I reject that submission. But to be clear, I conclude the opposite, namely that there was reasonable inspection and cleaning and there is no basis to conclude that Mr Yang failed to detect the leak or failed to clean it up.
75Therefore, because of the way the plaintiff put her case, factual causation is not made out.
The drip leak and the plaintiff’s gait
76Returning, again for completeness, to consider more of the evidence and submissions, the plaintiff submitted that the roof leaked and caused a dripping, as opposed to a sudden flood. She submitted (speculated) that the leak from a drip must have occurred over a period of time when the cleaner/s were seen on the CCTV and they should have detected this developing leak and either cleaned it up, or put out a warning sign.
77In response to a question from the Court about the CCTV suggesting that there was no developing leak because of the large number of people seen walking over the area, her senior counsel sought to explain this on the basis that she had an unusual gait before the incident, and it was this unusual gait that explained why she slipped when others had not.
78The CCTV showed that the plaintiff did have an unusual gait before the incident. This unusual gait was probably caused by one of her unrelated medical conditions. But there is no evidence to support a conclusion that her gait meant she was at risk of slipping in a pool of water that people with a ‘normal gait’ could manage to traverse. This is an example of speculation as opposed to a conclusion based on evidence. Further, the orthopaedic surgeon Dr Iain McLean gave oral evidence and a report from him was also tendered.[30] He gave no evidence to support this waddling gait thesis.
[30] Exhibit P13.
79In my view, the CCTV supports the conclusions that the cleaners did inspect the area at reasonable intervals and did clean the area if it required cleaning. The fact of some hundreds of people walking the area in the several minutes before the incident tends to suggest that any water on the floor was likely present for a short period of time, but exactly how long is impossible to say.
80So, pausing at this juncture, at the risk of repetition, once again I note this is also sufficient to dispose of the claim. Her case was ultimately pursued only on an allegation of an unsafe response to a roof leak. But the video and the other evidence suggests a reasonable system of cleaning and inspection and compliance with that system. If there was an unsafe and leaky roof, there is nothing that could have reasonably been done to prevent that or warn the plaintiff in time to avoid the incident. There is nothing to conclude there was a failure to provide adequate cleaning, or that the system of cleaning and inspection was in any way factually related to the happening of the incident.
Returning to the CCTV
81Returning to a further consideration of the CCTV. As mentioned, I was struck by the amount of pedestrian traffic at Northland in the new fashion mall. Over the hour before the incident many, many people are seen to walk directly over or near where the incident occurred. Children run. Babies are pushed in prams. People of all ages and sizes wander the mall. One shopper walked the area with a dog on a lead. Couriers are seen making deliveries. Many people walk directly over the spot where the plaintiff came to grief with no apparent difficulty.
82Specifically, in addition to the evidence of what the cleaners did, the CCTV depicted that at approximately 2:50:30 PM two security guards are called to the JD Sports Store. One of those guards stands mostly outside the store until he leaves at 3:03:54 PM, although at 2:56:05 PM he did enter the kiosk and speak to a person in the kiosk. There is no indication he saw any leak. At 3:03:10 PM, a man carrying a drink bottle entered the JD Sports store, walking roughly across the location of the incident. At 3:04:45 PM he exited the store and walked directly over the spot where the plaintiff fell, still carrying a drink bottle. In fact, the incident occurred only 11 or 12 seconds later, and in that period another man is seen walking directly over the same area.
83More broadly, the CCTV showed a kiosk that sells perfume in the middle area of the mall. That kiosk had a wall a bit higher than waist height upon which a vase with water and flowers seemed to be positioned. After the incident, an employee from that kiosk carried a water bottle and exited the kiosk and moved towards the plaintiff. That person is obscured when at one point she bent below the wall of the kiosk, possibly to offer the water to the plaintiff, before carrying the water bottle back into the kiosk.
84Next, while the other evidence suggests it had been raining at some time during the day, there is no obvious sign of that from the CCTV. No shopper is seen carrying an umbrella or looking wet from rain; and no one is seen at any stage to detect or to be impeded by a pool of water on the floor. The cleaners are not seen dealing with rainwater, and there was no suggestion to Mr Yang that he had to clean up rainwater.
The paramedics
85The inference the plaintiff sought to draw from the CCTV is of a leaky roof because of what some people were seen to do on the CCTV, including paramedics. In that regard, at approximately 3:09:55 PM a woman (standing outside the screen shielding the plaintiff, but seemingly involved in some official capacity) is seen to briefly look up at the roof. Next, the blonde-haired woman is seen to look up at the roof for two seconds at 3:10:28 PM. The same blonde-haired woman looked up again at 3:15:40 PM, this time when standing with another woman, who, as became clear during the evidence, was a paramedic.
86The plaintiff called evidence from two paramedics who attended her, being Mr James Danatzis and Ms Gina Bransgove.
87Perhaps not surprisingly, neither of the paramedics could now recall the incident due to the passage of time. But they had seen the CCTV footage and recognised themselves in that footage, and had some memory refreshment after viewing the CCTV.
88The paramedics recognised the ambulance case sheet as a document created by Mr Danatzis, but with some information relayed to him by Ms Bransgrove. That case sheet[31] contained a description of the incident as “Pt walked on wet ceramic tiles (?rain puddle from leaking roof)”. Mr Danatzis confirmed that the document was created as a result of information received.[32] He could not now recall where that information came from.[33] Ms Bransgrove explained that there is always a need to query how an event has happened.[34] She said she would have been the source of the information provided to Mr Danatzis regarding “?rain puddle from leaking roof” for the purposes of the Ambulance case sheet, but she now had no memory as to the source of that information.[35]
[31] Exhibit P1.
[32] T 74.
[33] Ibid.
[34] T 101.
[35] T 101-102.
89The CCTV confirmed that the plaintiff remained where she fell until 3:55 PM, when she was taken away by ambulance. Neither paramedic could recall a roof leak or described dripping water in the approximate 40 minutes that they attended to the plaintiff.
90Ms Bransgrove identified herself as the other person shown with the blonde-haired woman at 3:15:40 PM on the CCTV and seen to look up at the roof. She said she could not recall a ceiling leak, but when asked why she looked up at the roof with the blonde-haired woman she said “I presume there was something coming from the roof and she directed my attention up to there”.[36]
[36] T 100.
The blonde-haired woman and witnesses not called
91That brings me back to the blonde-haired woman, as what she was seen to do in the CCTV was a focus of the plaintiff.
92The blonde-haired woman did not give evidence, although the understanding I had from a discussion with the plaintiff’s senior counsel when the case was opened was that she was going to give evidence.
93The plaintiff described a woman of Macedonian descent tending to her while she was on the floor after the incident. Mr Yang identified the blonde-haired woman as ‘Mia’, an employee of the relevant security company and a woman of Macedonian descent.[37]
[37] T 141.
94The plaintiff submitted that an adverse Jones v Dunkel[38] inference could be drawn against the defendants because of the failure to call the blonde-haired woman. The defendants each submitted that the inference should, in fact, be drawn against the plaintiff. They said because she did not call the blonde-haired woman, where she said she would call that witness, the Court should infer that her evidence would not have assisted the plaintiff.
[38] HCA 8 101 CLR 298.
95I do not place much emphasis on what was said by counsel in opening address as to the witnesses that would be called, despite my surprise that, contrary to how the case was opened, she was not called as a witness.
96The principles regarding witnesses not called are well-known and understood. In this proceeding, the blonde-haired woman was not an employee of either defendant. She was ‘a witness at large’ that any party could have located and called. I do not consider her to have been in the camp of any party to this proceeding. Despite my surprise that she was not called, I cannot speculate as to what she may have said if she had been called. I cannot speculate as to why she was pointing at the roof.
97The fact is that no party called the blonde-haired woman and the only evidence is what she is seen doing in the CCTV, which is unexplained, other than the inference that something had caught her eye above ground level. The lack of evidence from her does not more readily enable me to conclude that there was a roof leak, any more than it enables me to infer that there was no roof leak. All I can conclude is that for some reason she seems to briefly point to the roof on several occasions. Beyond that is speculation.
98The CCTV showed the blonde-haired woman look at the ceiling for approximately two seconds at 3:10:28 PM. She is then shown on the video tending to the plaintiff, speaking to other staff – including laughing with a man who may have been from the security company at 3:14:45 PM – and mopping the area around the plaintiff. At 3:15:43 PM she is seen to point up at the roof with Ms Bransgrove, although she appears to point to a different location than from where she was seen pointing at 3:10:32 PM. Whatever she was pointing at, it does not appear to have motivated any intervention on her behalf, or anyone else’s behalf. As to what she pointed at, or why she pointed up, I cannot say.
Kelsey Flannery
99The plaintiff called for an admission from Vicinity that Ms Kelsey Flannery (“Flannery”) was the duty manager at Northland on the day of the incident. Her name does appear on any of the documents tendered.
100The plaintiff submitted that an adverse inference should be drawn against Vicinity because it did not call Flannery. But, Mr Hugill was asked if he knew such a person and he said he did not. The clear inference was that she no longer worked at Northland. I do not accept that a Jones v Dunkel inference can be drawn against Vicinity for the failure to call this witness. Other than being the duty manager, there was no suggestion she was otherwise involved in events before or after the incident. Further, there was nothing to prevent the plaintiff from locating Flannery and calling her to give evidence.
What overall conclusions and inferences can be drawn
101Returning then to consider, on the balance of probabilities, what conclusions can be made from the direct evidence and the valid inferences as determined.
102First, there is evidence of rain activity on the day of the incident. But as to the amount of rain and whether it was sufficient to cause a roof leak, no relevant inference can be drawn as the evidence is uncertain.
103Second, there is evidence that the roof at Northland did leak on occasion.
104Third, there is no suggestion of any roof leak at Northland in the 18 months before the incident. Senior counsel for the plaintiff described it as a chronically leaky roof. I disagree. The evidence is of a roof that leaked on occasion during adverse weather events, which was not the situation on 19 July 2019. On occasion there were roof leaks, but perhaps that is not surprising given the size of Northland and the amount under roof. There is no evidence – expert or lay - on this issue, other than Mr Hugill’s evidence of the maintenance system for the roof, to which there was no challenge.
105Fourth, there is evidence that, after the plaintiff’s fall, at least two persons had cause to look up at the roof for short periods, at a point roughly above where the plaintiff fell. But there is no evidence that either of those persons saw the need to call for a cleaner or take some step to report a leak.
106Fifth, there is evidence of water on the floor near the location of the incident. Mr Yang gave evidence of some water drops that he was required to clean up. He did not go inside the screened off area where the plaintiff was seen on the CCTV to have remained on the ground for about 50 minutes. Mr Yang’s evidence is consistent with the plaintiff’s evidence that her pants and underwear were wet after the fall and she saw an approximate two meter long, narrow pool of water after her fall.
107Sixth, while the plaintiff gave no direct evidence of actually slipping in water, a reasonable inference is open to be drawn that the water observed by her was a cause of her slip and fall.
108Seventh, the CCTV tends to an inference that because of the large number of people walking over the floor area and the patrol of the cleaner, as shown at both 2:49 PM and 2:59 PM, that any water on the floor must have only been there for a short period of time.
109Ninth, a roof can leak for several reasons, or perhaps more accurately, water can come from a ceiling for several reasons. Pipes can fail. Fire sprinklers can leak. The fact that people looked up for short periods on the CCTV does not mean they were admiring a leak. It could have simply been an inquisitive look to try and make sense of the incident.
110Tenth, water can also be on a floor surface for several reasons. The fact that a spillage is not apparent on the CCTV does not exclude a spillage from a shopper, or worker, as a cause of any fluid on the floor. Perhaps the lady at the perfumery spilt water filling up the vase, or when taking her water bottle to the plaintiff after the incident. The man walking into JD Sports may have leaked water from his bottle. Who knows. It is a matter of speculation and not one where the evidence enables an inference to be drawn. As such, I am not persuaded that the inference can be drawn that the rain caused a leaky roof. The lack of any reliable evidence suggesting an ongoing leak after the incident is also relevant.
111Eleventh, the ambulance case sheet, the evidence from the paramedics and the CCTV in combination, at the highest could be said to be evidence that there may have been a leak from the roof. But it bespeaks of a possibility, not a probability. It is a theory as to why water was on the floor.
112Next, even if – contrary to my conclusions – there was a rain event that caused a roof leak, that allowed some amount of water to be on the floor, the evidence does not support a finding of negligence or breach of duty against either defendant. On this fundamental issue, inferential reasoning is not required. There was a system for cleaning and inspecting the floor. Mr Yang was implementing the system in a reasonable and diligent manner and the contrary was not put to him in his evidence.
113Finally, what has happened in this proceeding is that the plaintiff, when confronted with the reality that her earlier allegations of a defective roof or slippery floor tiles could not be made out, has attempted to craft a case to blame the system of cleaning, inspecting, or warning her of the water on the floor to be the cause of her accident. There is simply no basis in the evidence, direct or inferential, to attribute blame.
114For completeness, there is no doubt that the plaintiff suffered a nasty leg injury because of the incident, that has impacted her, even in the setting of a range of co-morbid conditions. The medical evidence about her injury is not really in dispute. I have already described her as a solid citizen, and it is easy to have sympathy for her where she has suffered an adverse event while out minding her own business at a shopping centre. But sympathy cannot be a justification to attach liability to the defendants when the evidence does not allow such a conclusion.
The claim is not made out - summary
115In summary, I am not satisfied that the inference can be drawn on the evidence that there was sufficient rain to cause a leak; that the leak caused water to be on the floor and was a cause of the incident. There are too many unknowns and combinations. It requires speculation rather than sound inferential reasoning.
116But even if I did conclude that inferences could be drawn in favour of the plaintiff, I return to the fundamental question as identified, whether on the facts as found – that is, based on how she claimed the leak could be inferred to have occurred, namely:
(i)a leak after some rain;
(ii)in an area that had not previously leaked;
(iii)at a large shopping centre with no recorded leaks for 18 months; and
(iv)a demonstrated reasonable system of cleaning and inspection
is that enough to establish negligence or breach of duty against Vicinity? I consider the answer to those questions to be ‘no’.
117The plaintiff’s cause of action against Vicinity ignores that the duty owed to her at common law or via statute is to take reasonable care. It is not a guarantee of safety, no more than it is a standard of indifference. Even with reasonable acre bad things sometimes happen to good people, and this is such an example.
118The plaintiff has failed to establish liability against the defendants. The claim will be dismissed, and I will hear from the parties as to consequential cost orders.
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