Kime v Vicinity Centres PM Pty Ltd

[2021] NSWDC 113

District Court

New South Wales

Medium Neutral Citation:

Kime v Vicinity Centres PM Pty Ltd & Anor [2021] NSWDC 113

Hearing dates:

28, 29, 30 October, 2 November 2020 (Newcastle), 11 & 18 February 2021 (Sydney)

Date of orders:

08 April 2021

Decision date:

08 April 2021

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff against both defendants in the sum of $172,554;

2. On the cross-claims, the first defendant is to pay 60 per cent of the plaintiff's judgment and the second defendant is to pay 40 per cent of the plaintiff's judgment;

3. I will hear the parties on the appropriate consequential orders for costs;

4. The exhibits may be returned;

5. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – negligence – occupier’s liability – trip and fall on a kinked wet weather mat located near the entrance to a shopping centre mall – findings of negligence against two occupiers – rejection of defences of obvious risk and contributory negligence – apportionment of liability between defendants; DAMAGES – consideration of conflicting medical evidence as to cause of plaintiff’s ongoing disabilities – assessment of claimed heads of damage

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5B, s 5C, s 5D, s 5F, s 5G, s 5H, s 5R, s 5S, s 16

Evidence Act 1995 (NSW), s 60

Law Reform Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c)

Uniform Civil Procedure Rules 2005 (NSW), r 31.27(1) and Sch 7, cl 5(c), r 31.28(1)(c)

Cases Cited:

Angel v Hawkesbury Council [2008] NSWCA 130

Bevillesta Pty Limited v Liberty International Insurance Co [2009] NSWCA 16

Blacktown City Council v Hocking [2008] NSWCA 144

Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258

CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136

Condos v Clycut Pty Ltd [2009] NSWCA 200

Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25

Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482

Goode v Angland [2017] NSWCA 311

Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187

Jaber v Rockdale City Council [2008] NSWCA 98

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60

Nowlan v Marson Transport Pty Ltd (2001) NSWLR 116; [2001] NSWCA 346

Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253

Perisher Blue Pty Ltd v Nair-Smith (2015) NSWLR 1, [2015] NSWCA 90

Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; [1985] HCA 34

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42

Shaw v Thomas [2010] NSWCA 169

Solomons v Pallier [2015] NSWCA 266

Strinic v Singh [2009] NSWCA 15

Strong v Woolworths Ltd [2012] HCA 5

Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326

Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320

Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62

Warren v Gittoes [2009] NSWCA 24

White v Overland [2001] FCA 1333

Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85

Category:

Principal judgment

Parties:

Pamela Joy Kime (Plaintiff)
Vicinity Centres PM Pty Ltd (First defendant)
Millenium Hi-Tech Group Pty Ltd (Second defendant)

Representation:

Counsel:
Mr P Kirby (Plaintiff)
Mr G Jensen (First defendant)
Mr A Hourigan (Second defendant)

Solicitors:
Philip Watson (Plaintiff)
McCabe Curwood (First defendant)
Lander & Rogers (Second defendant)

File Number(s):

2019/75267

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1]
Factual background and identification of parties	[2] – [3]
Issues for determination	[4] – [5]
Review of evidence	[6] – [53]
The plaintiff	[7]
Mr Ian Blatch	[8] – [19]
Ms Lee Avery	[20] – [35]
Mr Martin Winterbourne	[36] – [47]
Ms Melanie Jones	[48] – [53]
Credibility and reliability of testimony	[54] – [63]
The plaintiff	[55] – [60]
Mr Ian Blatch	[61]
Ms Lee Avery	[62]
Mr Martin Winterbourne	[63]
Issue 1 – Factual findings	[64] – [143]
Plaintiff’s background circumstances	[65] – [67]
Pre-accident mat placement	[68] – [79]
Accident circumstances	[80] – [89]
Injuries	[90] – [92]
Initial treatment	[93] – [94]
Medical and allied reviews	[95]
Resolution of conflicting medical opinions	[96] – [134]
Disability findings	[135] – [141]
Domestic effects of injuries	[142]
Mitigation	[143]
Issue 2 – Risk of harm	[144] – [146]
Issue 3 – Whether obvious risk	[147] – [165]
Issue 4 – Duty of care owed by defendants	[166] – [176]
Issue 5 – Whether the defendants were negligent	[177] – [212]
Particularised claims of negligence	[178] – [182]
Consideration concerning s 5B(1) of the CL Act	[183] – [200]
Consideration concerning s 5B(2) of the CL Act	[201] – [206]
Consideration concerning s 5C of the CL Act	[207] – [210]
Conclusion on breach of duty of care	[211] – [212]
Issue 6 – Whether contributory negligence	[213] – [222]
Issue 7 – Causation	[223] – [226]
Issue 8 – Apportionment between defendants	[227] – [249]
Issue 9 – Assessment of damages	[250] – [262]
Non-economic loss	[251] – [255]
Future treatment expenses	[256] – [260]
Past out-of-pocket expenses	[261]
Summary of damages assessment	[262]
Disposition	[263] – [264]
Costs	[265]
Orders	[266]

Nature of case

1. In these personal injury damages proceedings, the plaintiff claims the defendants, each of whom had a relevant presence as occupiers of shopping centre premises, had by their various actions and inactions, negligently caused her to sustain injuries when she tripped and fell whilst walking over a kinked wet weather mat. The premises were known as the Salamander Bay Shopping Centre at Salamander Bay, NSW. The proceedings are governed by the provisions of the Civil Liability Act 2002 (NSW) (“CL Act”).

Factual background and identification of parties

2. At about 8:41am on Thursday 5 January 2017, the plaintiff Mrs Pamela Kime, then aged 64 years, sustained multiple soft tissue injuries when she tripped and fell shortly after entering the first defendant’s premises. She had walked across a kinked wet weather mat which an employee of the second defendant had placed near the entrance to the premises some 18 minutes earlier. The plaintiff’s fall was filmed from a distance on a fixed closed circuit television system (“CCTV”).

3. The plaintiff’s claim is that the first defendant, Vicinity Centres PM Pty Ltd, as the owner and occupier of the premises, was negligent in the management of placement and supervision arrangements concerning the wet weather mats at the premises. She also claims that the second defendant, Millenium Hi-Tech Group Pty Limited, which also had a presence at the premises as the first defendant’s cleaning contractor, with duties that included rostered inspection and periodic straightening of the wet weather mats when required, was also negligent in the management of those inspection and mat adjustment arrangements.

Issues for determination

4. The plaintiff’s allegations of negligence centre around the defendants’ periodic management and inspection of the wet weather mats for safety, having regard to the existence of known potential tripping hazards, which could arise at random due to kinking of the mats after customer traffic and supermarket trolley traffic had passed over those mats. The defendants have denied all allegations of negligence and in the alternative, they each allege contributory negligence by the plaintiff. The defendants have also exchanged cross-claims.

5. A review of the pleadings, the evidence and the submissions of the parties indicates that the issues calling for decision in this case are as follows:

1. Identification of findings on relevant matters of fact concerning the plaintiff’s background circumstances; the pre-accident placement, management, inspection and adjustments of the wet weather mats at the entrance to the premises; the circumstances of the plaintiff’s fall; the significance of CCTV footage concerning the plaintiff’s fall; the nature and extent of the plaintiff’s injuries; the medical and allied examinations undertaken in respect of the plaintiff; the resolution of conflicting medical opinions concerning the plaintiff’s disabilities; the plaintiff’s remaining disabilities; the domestic effects the injuries have had on the plaintiff; and her efforts at mitigation of her damages;

2. Identification of the relevant risk of harm that ought to have been recognised by each of the defendants;

3. Identification of the duty of care owed by each of the defendants and the scope of that duty;

4. Whether the wet weather mat on which the plaintiff fell posed an obvious risk within the meaning of s 5F of the CL Act;

5. Whether, according to the requirements of s 5B of the CL Act, either of the defendants had negligently breached the duty of care they respectively owed to the plaintiff;

6. In the event of findings of negligence, whether according to the requirements of s 5D of the CL Act, the plaintiff’s injuries were relevantly caused by the negligence of either of the defendants;

7. In the event of findings of negligence, whether according to the requirements of s 5R and s 5S of the CL Act, the plaintiff’s injuries are due to alleged contributory negligence on her part, and if so, to what extent;

8. Assessment of the plaintiff’s claim for damages for non-economic loss, past and future domestic assistance, future treatment expenses, and past out-of-pocket expenses;

9. In the event of findings of negligence against both defendants, the relative proportions in which the respective defendants should be held liable for the plaintiff’s damages.

Review of evidence

6. In the paragraphs that follow I set out a summary of salient features that emerge from my review of the oral evidence.

Evidence of the plaintiff

7. As there was no substantive challenge to the plaintiff’s account of her background circumstances, or the circumstances of her fall and its sequelae, relevant aspects of her evidence on those topics will be more specifically outlined in my findings of fact in connection with Issue 1.

Evidence of Mr Ian Blatch

8. On the day in question, Mr Ian Blatch was employed by the second defendant as a cleaner at the first defendant’s Shopping Centre. He was called to give evidence on behalf of the second defendant. He had not witnessed the plaintiff’s fall. He had a limited recollection of the events.

9. Before Mr Blatch gave evidence, his memory of the events was refreshed by his viewing of the CCTV footage which featured him laying out the wet weather mats in the morning before the plaintiff’s arrival at the scene. Part of his duties included the requirement for him to make intermittent observations of the state of the wet weather mats at the various entrances to the Shopping Centre once those mats had been laid out.

10. Mr Blatch described the process by which those mats, which were water absorbent, were laid out either in conditions of known wet weather, or when wet weather was anticipated. Unless needed for such purposes, the mats were normally kept rolled up in a storage area at the premises. When required, it was necessary for those mats to be rolled out flat so the rubber backing came into continuous contact with the tiled flooring without the appearance of phenomena variously described as humps, bumps or kinks that could at times interrupt continuous mat contact with the tiled floor.

11. Mr Blatch described the upper surface of the mats as comprising textile piled fibre. This served to absorb water deposited by pedestrian traffic, umbrellas or trolleys. It was known to both defendants that bumps or kinks could become evident on the surface of the mats. That phenomenon was recognised as constituting a potential tripping hazard that required prompt attention once such an appearance was recognised. Accordingly, the practice in place at the Shopping Centre was that either the second defendant’s cleaning staff, or the first defendant’s centre management staff, would attend to correcting or straightening the mats by a process of manually gripping the end of a mat and pulling it in order to make it straight.

12. In a general sense, Mr Blatch confirmed that whilst a wet weather mat might have initially been correctly laid out without humps, bumps or kinks, it was known that subsequent pedestrian traffic and the passage of supermarket trolleys over such mats could cause mat dislodgment and misalignment, which could in turn lead to the occurrence of visible humps, bumps or kinks in the mats, which could in turn constitute a tripping hazard.

13. Mr Blatch confirmed that the foreseeable pattern of traffic over the wet weather mats included persons walking over the mats from various angles, persons pushing trolleys, and supermarket employees pushing multiple, and up to ten aggregated trolleys at a time, over the mats. The impression gained from the evidence was that whilst there was no particular pattern of density of customer use of the premises, some times were busier than others with regard to customer floor traffic.

14. Mr Blatch confirmed that even if wet weather mats had in fact been rolled out straight, from time to time, kinks or humps could nevertheless later occur on the surface of a mat. He confirmed that during the roll-out process, a mat could jump or flick at its end. He said that if that occurred, the mat needed to be straightened. He confirmed that the best way of doing so was by using two hands to grip the end of the mat in order to pull it flat so that it would lay flush with the floor.

15. Although Mr Blatch had no actual memory of placing the mats into position on the day in question, he confirmed the correctness of what was shown on the CCTV footage as representing his actions on that day

16. On viewing the CCTV footage, Mr Blatch confirmed that at about 8:22:56am on the morning in question, at the entrance where the incident occurred, he had first rolled out a mat shown on the right of the recorded footage as viewed. He also confirmed that he had rolled that mat out using a foot, and that the mat had rolled out smoothly. However, his evidence in that regard turned out to have been based on an assumption he had made as to mat roll-out, as distinct from an actual or a refreshed recollection on his part.

17. On further viewing of the CCTV footage, Mr Blatch confirmed that at about 8:23:14am, he is seen to have used his foot to roll-out the left wet weather mat. This could be seen on the left side of the images. He said that as he did so, the mat appeared to have been jumping, as was described in the evidence. His stated impression of the footage, based on the appearance of alignment of the mat near a central object in the foreground, was that the mat did not need straightening at that point. That evidence appeared to have been based on an assumption on his part, absent an actual memory of the events.

18. Mr Blatch confirmed that the CCTV footage showed that at about 8:31:26am on the day in question, the mat on which the plaintiff fell, appeared to have moved slightly, but he could not be sure that was so, and he said that he really did not know: T183.22. He agreed with the proposition that according to a further segment of that footage, between 8:31:28am and 8:40:50am, the appearance of that mat had not changed: T184.37.

19. Mr Blatch denied a proposition put to him on behalf of the first defendant, to the effect that he had not straightened the left wet weather mat when he had initially placed it into position on the morning in question: T186.50. He said he would not have left the mat with a hump in it: T187.11. However, and fairly, he agreed with the proposition that there could have been a hump in that mat after he had placed the mat into position, the inference being there was an unstraightened hump in the mat: T188.43.

Evidence of Ms Lee Avery

20. At the time of the plaintiff’s fall, and beforehand since about 2013, Ms Avery had been working as a cleaner employed by the second defendant to carry out cleaning and inspection duties at the first defendant’s Shopping Centre. Ms Avery was called to give evidence on behalf of the second defendant. Although she was on duty at the Shopping Centre on the day in question, she did not witness the plaintiff’s fall and she had no recollection of the surrounding events. Her evidence essentially centred around the prevailing system of mat inspection and related duties and to confirm what was seen on CCTV footage.

21. Ms Avery’s evidence was given without having had her memory refreshed from any written statement. She said, and I accept, that her memory of the system for use of the wet weather mats at the Shopping Centre, was a fairly good recollection.

22. In essence, Ms Avery was part of a team of cleaners rostered in four daily shifts at the premises. Her duties included undertaking a “constant loop of” inspecting the wet weather mats every 15 to 20 minutes after they had been placed into position at each of the three entrance locations. At times, her duties also included putting out the mats if asked to do so.

23. Ms Avery said that in her view, the mats were not easy to manage. She said that sometimes it became necessary for the mats to be straightened out because of the appearance of a raised surface, which she variously described as hills, mounds, mountains, or kinks. Ms Avery described that phenomenon of mats becoming kinked and being more susceptible to movement, including in circumstances when trolleys would go over the mats. She said that if trolleys had gone over a kinked mat, the mat would become more vulnerable to even greater kinking, and possible sideways movement.

24. Ms Avery identified the need to straighten the mats in such circumstances to ensure that those described anomalies would not pose a hazard or an obstacle over which people could trip and fall. She said that when such kinks occurred they were easy to observe. She described the task of rectifying any such anomalies to be in effect a dual responsibility, namely for the cleaning staff as well as for centre management staff, depending upon who first recognised the emergent problem.

25. Sometime before the plaintiff’s fall, Ms Avery described how, in 2016, she had some discussions with Mr Winterbourne, a senior member of the first defendant’s Shopping Centre staff. In one such discussion he had explained to her how to flatten wet weather mats if they became kinked, and why it was necessary to flatten them out in such circumstances.

26. In that conversation, Ms Avery said she had told Mr Winterbourne that the action of pushing supermarket trolleys over the mats was the main cause for the kinking of mats, and for the mats to move around. She recounted Mr Winterbourne’s response to that discussion as being that she should make sure she and her cleaning colleagues straightened the mats out on their respective inspection rotations every 15 minutes, if on inspection this was warranted. Ms Avery confirmed that the density of flow of customer pedestrian traffic at the Shopping Centre did not conform to a definable or predictable pattern.

27. Ms Avery said that throughout her employment at the Shopping Centre, there had been no change in the propensity of the wet weather mats to become kinked or humped. She confirmed that it was the responsibility of the second defendant’s cleaning staff to roll-out the wet weather mats if requested by the first defendant to do so.

28. Ms Avery said that it was possible for the wet weather mats to be rolled out by hand or by foot. She said that the use of hands for mat roll-out resulted in a more accurate mat placement in terms of the appearance of flatness without “jumps”. She said that from time to time, during the process of mat roll-out, the mats tended to jump and bounce around, and not roll-out smoothly.

20. Ms Avery said that although the wet weather mats were very heavy when held, the task of placing them on the ground and rolling them out was not difficult. She said that if a kink or a hump occurred during a roll-out, the best way to straighten the mat was to use two hands to pull at one end of the mat. Ms Avery said that it was not ideal to use one hand or a foot to straighten out a mat, although it was possible to use a foot to push a mat out to start the roll-out process.

21. Ms Avery distinguished between the process of pushing out a mat to lay it on the floor as distinct from the task of straightening an already rolled-out mat, the pushing component simply being a roll-out procedure. She said that the larger the size of a kink in a mat, the more likely it would be that the task of mat straightening would require the use of two hands.

22. Ms Avery was asked by counsel for the first defendant whether the CCTV footage showed that the mat rolled out by Mr Blatch earlier in the morning had been rolled out smoothly. She answered she was unsure of that. Exploration of that evidence revealed that the CCTV view of the surface of the mat was obscured from view by the camera due to the location and advertising or information stand in the foreground of the photograph. This meant that not all of the mat was visible to the observer in the CCTV footage.

23. Ms Avery was shown the CCTV footage of the events surrounding the plaintiff’s fall. That footage showed Ms Avery to have been in the vicinity at 08:23:07am, when the mats were in place. She was seen walking around the centre and around the display stand in the central foreground using a static mop whilst going about her duties.

24. Ms Avery agreed that the CCTV footage showed that on the morning in question she had walked in close proximity to the wet weather mat on the right side, and by her answer she confirmed that wet weather mat on the right side “was down fully”. She also agreed that she had not gone over to inspect it or to check that mat to see that it was flat: T226.5 – T226.40. This was in the context that this was one of her supervisory tasks that she undertake inspections on her 15 to 20 minute inspection rotations.

25. Counsel for the first defendant then asked Ms Avery a question that became confused. The question, and the answer to it, were as follows:

“Q. What I'm suggesting is that, aside from the history that you've given, you didn't think that the wet weather mats - you had a significant concern which required you to actually monitor them all the time – supervise them.

A. That’s correct, yes.”

[T227.5 – T227.8]

35. It is difficult to relate the answer given by Ms Avery to a particular component of that composite question.

Evidence of Mr Martin Winterbourne

36. Mr Winterbourne was the first defendant’s assistant operations manager at the Shopping Centre at the time of the plaintiff’s fall. His evidence concerned the arrangements that subsisted between the first and second defendants as to wet weather mat deployment and the overlapping responsibilities concerning those matters. Those responsibilities are more fully set out in the agreement between the parties comprising Exhibit “5”, which will be analysed in the course of my findings on the respective liabilities of the defendants. He described three similar entrances to the Shopping Centre where those mats were deployed.

37. Mr Winterbourne described the process by which an external contractor would attend at the first defendant’s Shopping Centre at approximately monthly intervals in order to retrieve the six wet weather mats kept at the premises and replace them with mats that had been refurbished. He stated that the second defendant was responsible for the storage and placement of those mats.

38. Mr Winterbourne stated that if the wet weather mats had been placed or laid out on the tiled floor correctly, they tended not to move. He also said that they were unlikely to move unless they had been rolled out incorrectly, or if they had been dislodged by a trolley going over them. He described the latter possibility as being unlikely. That latter opinion was a matter in contention and appeared to be speculative: T106.44.

39. Mr Winterbourne described the regime or system of inspection at the premises as being that an inspection would be carried out prior to the centre opening, to be followed by recurrent inspections to take place throughout the day at rotations of between 15 to 20 minutes. Those inspections were normally carried out by the second defendant’s staff.

40. Mr Winterbourne stated that typically, there was a combined personnel presence at the centre comprising the first defendant’s staff, the second defendant’s cleaning staff, and the staff of a security contractor. He acknowledged that the responsibility for straightening mats that had become dislodged by trolleys, as an overlapping responsibility according to which particular staff member of either the first or second defendant became aware of the presence of a problem. It appears that the same responsibility applied to the security staff.

41. Mr Winterbourne described a system for documenting incidents such as slips and falls on the premises onto a database. Nothing turns on that evidence. He said he had not witnessed the plaintiff’s fall. It had been reported to him by a member of the security staff. He stated that after the plaintiff’s fall he went to the scene and noted that the mats had already been straightened by the time he had arrived.

42. Mr Winterbourne confirmed that he had personally seen prior instances of wet weather mats having either bunched up, or having become kinked or humped. He described the effect of supermarket staff pushing multiple trolleys over the mats as being a cause for the mats to become skewed to one side, and he said that he had at times straightened such mats out himself. That evidence seemed to be at odds with his evidence summarised at paragraph [38] above where he referred to such an occurrence as being unlikely.

43. Mr Winterbourne stated that although the wet weather mats were not particularly heavy, when such mats were rolled out by using a foot to do so, it was necessary to also use hands to pull a mat tight to straighten it out so as to ensure there were no kinks. Whilst Mr Winterbourne agreed that kinks could be straightened by using a foot to do so, in his experience, hands were also needed for that task because the mats did not always roll-out straight, which meant that it then became necessary to manipulate them by hand in order to straighten them.

44. Mr Winterbourne confirmed that mats occasionally jumped or bounced about whilst being rolled out. He also confirmed that a humped mat would need to be repositioned for straight alignment as the phenomena of kinking, when it occurred, would change the alignment of the mats.

45. Mr Winterbourne agreed that on viewing the CCTV footage of people walking over the mat in question, the extent of the protrusion of the left front part of the mat, past a central fixture on the floor in the middle ground of the images, became reduced to the point that it was almost entirely absent: T124.7 – T124.30. In that process, he said it was possible that the mats could also move without a hump being present.

46. Mr Winterbourne said that the task of straightening a mat was not a difficult exercise. He confirmed that ordinary usage of the premises by trolleys crossing the mats in wet weather would likely cause mats to shift. Mr Winterbourne confirmed that the process by which ten trolleys would be moved over such a mat would possibly displace it to some degree.

47. Mr Winterbourne viewed the CCTV footage at 8:31:20am where Mr Blatch is seen to have appeared to be briefly bent over the mat in question. He stated that Mr Blatch had at that time appeared to him to have straightened the mat with his hand: T138.40. My viewing of the CCTV footage does not reliably confirm that impression or interpretation.

Evidence of Ms Melanie Jones

48. The first defendant read an affidavit affirmed by Ms Melanie Jones on 31 October 2020. She is employed by the first defendant as an Insurance Officer. Her duties included oversight of the first defendant’s incident register for the subject premises. She prepared a redacted spreadsheet setting out details of all reported incidents at the subject centre in 2015 and 2016 excluding incidents occurring in car parks, external areas, and in internal tenancies: Annexure “A” to her affidavit. She also prepared a redacted spreadsheet setting out details of slip, trip and fall incidents that had been reported in relation to the common areas and entrances to the subject premises for the years 2015 and 2016: Annexure “B” to her affidavit.

49. Those annexures to the affidavit of Ms Jones comprised 312 pages. Ms Jones was not required for cross-examination. None of the recorded incidents described in the annexures to her affidavit involved a customer tripping or falling on a kinked or humped wet weather mat. That evidence was therefore of little assistance to determining the issues calling for decision in this case.

50. No evidence was called as to the number of occasions on which, wet weather mats had been deployed at the subject premises on the days of January and February 2017, which had preceded the plaintiff’s fall.

51. Exhibit “6” comprised a condensed summary of 8 redacted incident reports that were logged by the first defendant between 16 June 2015 and 4 June 2016. All of those reports related to wet weather conditions from which it may reasonably be inferred that the mall floor of the first defendant’s Shopping Centre had been affected by rain in the form of water falling off trolleys that had been pushed into the premises, or for the potential for this to occur.

52. It follows from those recorded incidents that both the first and the second defendants ought to have been aware that the mall floor area could foreseeably become a slip and fall hazard on account of water being brought into the premises.

53. It would be speculative to find that the plaintiff was on the premises on any of those prior occasions. It would also be speculative to find that the plaintiff had ever been on the premises when the wet weather mats had been deployed either in wet weather conditions or in conditions in which wet weather was anticipated. I make no positive findings on any of those speculative matters.

Credibility and reliability of testimony

54. In the paragraphs that follow, I set out my conclusions on the credibility and the reliability of the testimony of the respective witnesses who gave oral evidence.

The plaintiff

55. On the liability issue, the defendants did not put to the plaintiff the specific suggestion that she was careless in not keeping a proper lookout whilst walking into the premises. The only assertive challenge made to the plaintiff’s credit was the suggestion made in cross-examination on behalf of the first defendant concerning a damages issue.

56. The first defendant’s challenge to the plaintiff’s evidence was to the effect that, by either 21 February 2017, or 14 March 2017, her left knee problems had settled. Her denial of that proposition, in which she in effect said that she had continued to put up with pain since that time with the help of tablets, was both credible and not inherently improbable. It was also in keeping with my assessment that the plaintiff’s presentation was understated and stoic.

57. The plaintiff rejected the specific proposition put to her by counsel for the first defendant to the effect that she had been exaggerating the conditions of her right shoulder and right knee for the purpose of these proceedings: T144.43 – T144.45. She also rejected the proposition that it was possible Dr Maxwell, a medical examiner appointed by the first defendant, had put that opinion to her at the time he had examined her: T145.13. I accept her evidence in that regard, as I consider that if such a challenging proposition had been put to her in that context, it would most likely have been both remarkable and memorable for her.

58. The above challenges were based upon the report of Dr Maxwell, where he stated that he considered the plaintiff’s soft tissue injuries to her right shoulder and right knee would have been expected to settle without long-term sequelae in 4 – 6 weeks: Exhibit “3”, p 8. It is noteworthy that Dr Maxwell’s comment in that regard did not specifically relate to the plaintiff’s complaints of lower back pain. Dr Maxwell also stated the plaintiff’s symptoms were “somewhat overstated”: Exhibit “3”, p 9. I did not gain an impression to that effect from hearing and observing the plaintiff’s evidence, or from reading the medical evidence.

59. For reasons that will be made plain in the context of my consideration of the respective medical opinions of Professor Ghabrial, who examined the plaintiff at the request of her solicitor, and Dr Maxwell, I have not accepted the aptness of Dr Maxwell’s opinions that were critical of the plaintiff and her case, as cited above.

60. I considered the plaintiff’s evidence to have been given in an open, stoic manner, without exaggeration or embellishment. She made fair concessions when they were due. I considered her evidence was credible and capable of acceptance. I have accepted her evidence on critical matters in dispute.

Mr Blatch

61. I am satisfied that Mr Blatch gave his evidence to the best of his very limited recollection on factual matters concerning the plaintiff’s fall. This was understandable given that he was no longer employed at the Shopping Centre. Three years had passed without the need for him to maintain a recollection of events. Similarly, he had no need in the interim to refresh his memory from CCTV footage of those events. He made fair concessions on matters of fact that he had assumed. He was a credible witness on factual matters that were not in dispute. No credit issues emerged from his evidence. However, in light of his limited recollection of the factual circumstances, and in light of the fact that some of his evidence was based on assumptions he had made, I considered his evidence on matters in dispute was of only limited reliability.

Ms Avery

62. I am satisfied that Ms Avery gave evidence to the best of her recollection. Her evidence concerning the system of work regarding wet weather mat management and the prevailing pattern of inspection was uncontroversial. She made fair concessions on factual matters. No credit issues arose from her evidence, which stands to be analysed according to its limited content.

Mr Winterbourne

63. Mr Winterbourne also gave evidence according to the best of his recollection. Although no credit issues arose from his evidence on factual matters, I considered the opinion he proffered as to the unlikelihood of wet weather mats becoming kinked due to the passage of supermarket trolleys over them, downplayed the risk of mat kinking from that activity. I consider his comment in that regard was unlikely to be correct in view of the specific experiential and observational evidence given by Mr Blatch and Ms Avery and in view of the concessions made in his evidence.

Issue 1 – Factual findings

64. In the paragraphs that follow I set out my findings on the factual matters identified in sub-paragraph (1) of paragraph [5] above.

Plaintiff’s background circumstances

65. The plaintiff is presently aged 66 years. She has been a disability pensioner for some years because of a number of pre-existing health problems. She was not working at the time of her fall. She had previously worked at an Aboriginal Women’s Refuge.

66. The plaintiff’s pre-injury health issues included having diabetes since 2002, following which she became insulin dependent in 2011. She had her gall bladder removed in 2005. Her diabetes had led to her experiencing some visual complications for which she had eye surgery. Those events have left her with occasional blurring of vision. She also had pre-accident cataract surgery and she wore glasses, mainly for driving. She had regained her driver’s license in 2004. In 2005, following an injury to her left knee, she had a total knee replacement of that knee, which had to be repeated in 2007. That surgery, which was not particularly successful, was followed by a series of manipulations of that knee due to some residual stiffness. She also had experienced previous low back pain but this had settled well before her fall. She had also experienced a prior history of depression which emerged from a family issue which has now passed. At the time of the accident she was receiving domestic assistance from an Aboriginal aged care organisation, Awabakal.

67. The plaintiff had no previous problems with her right shoulder and right knee, although post-accident x-rays of those areas showed she had some pre-existing degenerative changes in those areas. I accept the plaintiff’s evidence that those areas, and her lower back, were asymptomatic before the subject fall.

Pre-accident mat placement

68. The continuous sequence of images shown on the CCTV recording commences at 7:41am. Shortly afterwards, from time to time, people are seen to walk through the entry door and change their direction of travel from a perpendicular path to a more angled approach because of the need to walk around a centrally placed object comprising a large advertising sign located on a fixture that can be seen to occupy the foreground of the images. The CCTV view of the area where the mats were ultimately placed is seen to be, to a degree, obstructed by a number of decorations hung from the ceiling.

69. A fixed floor mat is seen to be located at the entrance to the premises. That mat was identified as a permanent fixture. On the day in question, two moveable wet weather mats were also placed perpendicularly to that mat on the tiled floor. Those latter two wet weather mats were of reasonably heavy construction. They were about 3m in length, just under a metre in width, and they were about 30mm thick, including the short fibre pile surface.

70. Between 7:41am and the time of the plaintiff’s fall at 8:41:59am, various activities involving movement are seen in the CCTV footage.

71. At 8:22:40am, Mr Blatch is seen to have entered the area and pick up a rolled up wet weather mat, which he then placed on the right side of the centre stand. He used a foot to assist with the process of unrolling that mat. At 8:23:01am, he is then seen to have repeated that process by placing and rolling out a mat on the left side of the central stand, also using a foot or his feet to assist with the roll out of that mat. The mat on the left side of the footage appeared to have been left in a flat state. He is then seen to have walked away from the area at 8:23:19am.

72. From that time, and up until the time of the plaintiff’s fall, random pedestrian and trolley traffic is seen to have passed over the left mat. At all times, both the edges of the left and the right mat are seen to protrude a slight distance beyond the level of the fixed centre stand. Having regard to the apparent distance between the mats and the CCTV camera, it is difficult to conclusively determine from those images whether or not the left mat had moved to any significant degree in the course of passage of pedestrian and trolley traffic moving over that mat: Blacktown City Council v Hocking [2008] NSWCA 144, at [7]-[10], [167]-[170]; Angel v Hawkesbury Council [2008] NSWCA 130, at [69]-[72]; Warren v Gittoes [2009] NSWCA 24, at [2]-[3]; Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85, at [8], [20]-[29]; Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326, at [66]; Goode v Angland [2017] NSWCA 311, at [89]-[96].

73. At 8:25:35am, in an inward bound movement, 10 aggregated trolleys are seen to have been pushed over the left mat. At 8:27:27am, an inward bound laden trolley was pushed over the left mat. At 8:29:53am, an outward bound trolley was pushed over the left mat. At 8:31:23am, Mr Blatch is seen to have placed a yellow warning cone to the right of the centre stand, probably on the mat on the right side. At 8:33:25am, an outward bound trolley is seen to have been pushed over the left mat. At 8:33:54am, an inward bound aggregation of trolleys is seen to have been pushed over the left mat. At 8:35:35am, at 8:39am, and again at 8:39:37am, outward single bound trolleys were seen to have been pushed over the left mat.

68. At 8:41:56am, as the plaintiff is seen to have entered and passed through the Shopping Centre doorway, and about 3 seconds later, as she proceeded to walk over the left mat, she fell heavily onto her right side. She is then seen to have rolled over to her left, and then onto her back. She then lay there until she was attended to by passersby who assisted her to a seated position. By 8:45:47am, the plaintiff had been taken away. The CCTV footage did not appear to have been continuous at that point.

69. After the plaintiff was taken from the scene of the fall, the forward left edge of the left wet weather mat is seen to be still protruding beyond the level of the left side of the centre stand.

70. It is not possible to determine from the photographs as to whether the left mat was affected by kinks or was humped, or whether it had moved to some degree compared to when it had been initially placed there by Mr Blatch at 8:23am.

71. Between 8:23:03am and 8:23:10am, a female employee of the second defendant, Ms Avery, appeared within the view of the camera and used a static mop to wipe the floor in the area near the two laid mats and then back out of view. She did not appear to look at the left wet weather mat at that time. At 8:25:34am an aggregated train of supermarket trolleys is seen to have been pushed in from outside, which then passed over the mat on the left side. At 8:31:20am Mr Blatch returned with a yellow warning cone and he appears to have placed it near the mats. The warning cone contained words to the effect that caution was required due to a wet floor: T98.17. The warning cone made no mention of the possibility of wet weather mats being kinked or prone to slippage. The CCTV view of those movements was to a degree obstructed by the central stand.

72. At 8:31:25am Mr Blatch seemed to have bent down, apparently using his hand to possibly straighten the mat. Whether he actually did so remains unclear. I do not consider Mr Blatch’s evidence to the effect that he believed the mat to have been straightened, to be reliable evidence that he did so.

73. On viewing the CCTV footage of the events between 8:22:40am and the plaintiff’s fall at 8:41am, a period of 18 minutes, the following factual matters are plain:

1. The period of 18 minutes for rostered inspection of the mats was within the agreed time frame for inspection rotations that the first defendant required of the second defendant;

2. Neither of the second defendant’s employees, namely, Mr Blatch nor Ms Avery, are seen to go to the near vicinity of the wet weather mat on the left side of the screen view, to inspect the surface area of that mat for straightness or for kinks or humps on the surface of that mat. In those circumstances it seems to me that it was unlikely they had inspected the left wet weather mat for kinks or humps at the times they are seen to be within the view of the camera;

3. In my view, the compelling conclusion to be drawn from the evidence is that the left-sided wet weather mat was either left kinked at the time of roll-out, or became kinked as customer and trolley traffic passed over it, or both, yet when Mr Blatch and Ms Avery entered the vicinity, they failed to observe the kink or hump in the mat where the plaintiff ultimately came to fall.

Accident circumstances

80. At about 8:30am on the morning in question, the plaintiff had parked her car in the parking lot of the Salamander Bay Shopping Centre, which was a 10 minute drive from her home.

81. The plaintiff then walked towards, and entered, what has been described as the Priceline entrance to the first defendant’s premises, that entrance being one of three such entrances to the premises.

82. As the plaintiff walked into and through the entrance she looked straight ahead and then glanced towards a Priceline advertising window display which had attracted her attention and her line of sight. The automatic doors had opened for her and after she had taken a few steps forward. The CCTV footage suggests that at that time, it is most probable that she had walked over the fixed mat at the entrance and after she continued walking into the premises she then walked over the left wet weather mat, and then fell heavily onto her right side. She then looked back and noticed that there was a hump evident on the surface of the wet weather mat in the location over which she had just walked. She estimated that the hump in question was raised to a height of about 100mm to 150mm.

83. The fact that the plaintiff fell on a humped section of the wet weather mat suggests that the hump had been present for some time. In light of the descriptions of the process of laying out the mats, as provided by Mr Blatch, Ms Avery and Mr Winterbourne, I find it more probable than not that the left mat was not laying continuously flat to the tiled floor. The fact that Mr Blatch used his foot or feet to roll out the mat and not his hands to straighten the mat supports that conclusion.

84. There is no persuasive evidence that suggests the plaintiff was, or ought to have been, aware that the wet weather mats that had been placed at the entrance to the premises had a propensity to become kinked or humped with use by customer or trolley traffic passing over them.

85. It is also significant to note that in the period from 8:23am, when Mr Blatch had completed rolling out the mats, and when Ms Avery used a static mop on the floor in the near vicinity, and when the plaintiff fell at 8:41am, a period of 18 minutes, there is no persuasive evidence that there had been a rostered inspection of the mats by the cleaning staff employed by the second defendant. In reaching that conclusion I have not overlooked the sequence where, at 8:31am Mr Blatch appeared briefly and placed the yellow cone at a position out of view as the view was obstructed by the central stand. At that time he appeared to have bent over but it is not clear from the images as to whether or not he had straightened a mat at that time. I conclude it was unlikely that he carried out mat inspections at the times he is seen in the view of the camera. In the period between mat roll-out and the plaintiff’s fall, there had been significant customer and trolley traffic over the wet weather mats.

86. Whilst the plaintiff lay on the ground and was receiving first aid attention for her injuries, someone in apparent authority at the centre took some photographs at the scene. She assumed this person to have been a manager.

87. In cross-examination, the plaintiff conceded when asked, three times, that when she walked in the area where she had fallen, she had not looked down before she fell. She said that at the time of her entry, she could see a fair way ahead without her glasses. She did not think she was wearing glasses on the day of her fall. She did not see any obstacles at that time. At the time her attention was distracted by, and attracted to, nearby Priceline advertising signage. She had assumed, reasonably, that the premises were safe because, in her experience based on her many visits to the centre, absent unusual circumstances, the premises had always appeared safe. I am satisfied that she had never seen kinked or humped wet weather mats on her previous visits to the centre. In the events, she kept walking into the centre without pause, and in doing so, she stepped on the wet weather mat or carpet ahead and to her right, having assumed it was safe to do so, having never before seen a hump of the type over which she had tripped and fallen on this occasion.

88. The following question and answer arose in the course of the cross-examination of the plaintiff:

“Q. What I want to suggest to you is that, if you had have looked down, and had have seen the carpet, that you would have been able to fairly easily step over it or otherwise avoid it

A. Yes.”

[T82.35 – T82.38]

89. In agreeing with the above proposition, the plaintiff was not specifically asked to concede that if she had looked she would have seen the hump in the wet weather mat and would have avoided falling. Those matters will be analysed in my consideration of whether or not there should be a finding of contributory negligence on the plaintiff’s part.

Injuries

90. At the time of her injury, the plaintiff had obviously fallen hard onto her right side. She was wearing a bag on her left shoulder when she fell: T42.23. At that time she felt shaken, shocked and she found herself to be in significant pain.

91. The plaintiff felt immediate pains in her right arm and in her right knee. She felt shaky and needed someone to obtain some jelly beans from a nearby pharmacy, presumably to assist her to deal with a diabetic event which occurred immediately following her fall. There is no evidence to suggest, and it was not argued, that the plaintiff’s fall was in any way related to her diabetes or to a possible hypoglycaemic episode due to her diabetes. She remained on the floor, sitting, whilst someone, presumably the manager of the centre, obtained a wheelchair and took her to see a doctor at a nearby medical practice. That latter sequence is not clearly evident in the CCTV footage.

92. In those events the plaintiff experienced a considerable wait until the doctor could see her. In the meantime, the manager kindly took her to a nearby café in the Shopping Centre and saw to it that she was provided with a cappuccino and some raisin toast.

Initial treatment

93. When the plaintiff saw the doctor located near the Shopping Centre she struggled to get out of the wheelchair that had been provided to her because she had pain in both legs and in her left arm. At that time the doctor reportedly considered her injuries to have been muscular in nature. The plaintiff’s daughter then arrived at the premises to take her home. The plaintiff went to bed to rest. At that time she felt very sore.

94. On the same day the plaintiff consulted her general practitioner, Dr Shriya Gupta, who prescribed anti-inflammatory medication. She also had a few physiotherapy sessions. The number of those sessions was limited due to the limit of her ability to pay for such treatment. She was also referred to ultrasound and x-ray imaging of the affected parts.

Medical and allied reviews

95. The chronology of the plaintiff’s post-accident medical and allied assessments as recorded in the evidence is as follows:

1. On or about 5 January 2017, the plaintiff attended her general practitioner, Dr Shriya Gupta with a history of a right shoulder injury and a right knee injury. Ultrasound imaging was ordered for diagnostic purposes and physiotherapy treatment was ordered to seek to improve the plaintiff’s mobility. Dr Gupta’s report on those matters is dated 31 January 2017: Exhibit “B”, p 1;

2. On 6 July 2017, the plaintiff underwent x-ray imaging of her right knee, an x-ray of her right shoulder, and an ultrasound study of the right shoulder. Pre-existing osteoarthritis of the right knee was noted; spurring of the acromion and narrowing of the acromioclavicular joint was noted; and a tear was also noted in the right supraspinatus tendon, which reportedly had been the subject of a previous and unexplained imaging investigation: Exhibit “B”, p 2;

3. On 15 February 2018, the plaintiff was seen by a general practitioner, Dr Katherine Kalloniatis, for management of her right shoulder and right knee injuries on account of an assessed functional impairment in the plaintiff’s activities of daily living, such as housework gardening, manoeuvrability, negotiating stairs, and hanging out clothes: Exhibit “B”, p 3;

4. On 18 April 2018, at the request of her solicitor, the plaintiff was examined by Professor YAE Ghabrial, a consultant orthopaedic surgeon, who took a history of the plaintiff having sustained injuries to her right shoulder, right knee and lower back in the incident in question: Exhibit “B”, pp 4 – 7. Professor Ghabrial was not required for cross-examination. His opinions will be examined in the course of my consideration of the conflicting medical opinions;

5. On 21 August 2019, the plaintiff was examined by Professor Ghabrial for a second time. He reiterated his earlier opinion that the fall in question had aggravated the plaintiff’s pre-existing severe right knee osteoarthritis. He again noted the plaintiff had a partial tear of her right rotator cuff. He foreshadowed the need for the plaintiff to have a future right knee replacement: Exhibit “B”, pp 8 – 11;

6. On 3 February 2020, the plaintiff was assessed at the Orthopaedic Department of the John Hunter Hospital for a review of her treatment options. Other evidence indicates that the plaintiff was placed on a waiting list for a right total knee replacement: Exhibit “B”, pp 12 – 14. She is still on that public hospital waiting list;

7. On 16 July 2020, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr David Maxwell, a consultant orthopaedic surgeon. He recorded the plaintiff’s symptoms as comprising pain at the back of the right shoulder with limitation in right arm movement, right knee pain despite knee replacement surgery, with swelling and reduced walking tolerance, low back pain, occasional neck pain, headaches and restricted movements in the affected areas. At the time he reported, Dr Maxwell stated that he did not have the benefit of any medical investigation reports and he asked for these to be provided. He considered the plaintiff’s outcome would be poor on account of motivation factors associated with litigation: Exhibit “3”. That opinion is in contention;

8. On 23 September 2020, the plaintiff underwent an x-ray of her right shoulder which was reported as showing osteoarthritis of the gleno-humeral and acromioclavicular joints with a high suspicion of a rotator cuff tear: Exhibit “B”, p 19;

9. On 23 September 2020, the plaintiff was examined by Professor Ghabrial for a third time: Exhibit “B”, pp 14 – 18. He noted mild wasting of the right quadriceps muscle, swelling and synovial hypertrophy of the right knee, crepitus and severe osteoarthritis of the medial compartment and the patella-femoral compartment as shown on x-ray taken on 23 September 2020. He found restricted movements of the right shoulder. He noted a partial rotator cuff tear with associated tendinopathy. He noted that x-rays showed osteoarthritis changes of the right acromioclavicular joint. He considered the plaintiff’s right shoulder, right knee and lower back complaints were the result of the subject fall. Professor Ghabrial commented upon the opinions of Dr Maxwell in which he disagreed with Dr Maxwell’s assessment. Those comments will be analysed in connection with the consideration of the conflicting medical opinions;

10. On 23 September 2020, the plaintiff underwent an x-ray examination of her lumbar spine which reported the presence of a mild scoliosis. A CT scan investigation was recommended for the investigation of a possible disc herniation: Exhibit “B”, p 20;

11. On 23 September 2020 and again on 19 October 2020, the plaintiff underwent an x-ray of the right knee joint post-right knee replacement. Surrounding osteoarthritic changes were noted in the patella-femoral articulation: Exhibit “B”, p 21;

12. On 30 September 2020, Dr Maxwell provided a commentary on some documents that were provided to him by the defendant’s solicitor on 24 September 2020. A copy of that letter of instruction to Dr Maxwell was not tendered. Dr Maxwell also provided a commentary on the plaintiff’s medical records which were not in evidence. On the basis of those notes he considered the plaintiff’s right shoulder and knee problems would have settled within 4 – 6 weeks and that her continuing symptoms are due to osteoarthritis of the right knee. He considered the changes in the plaintiff’s right shoulder were constitutional changes and not due to trauma. He stated that he adhered to his previous opinions, unaltered by his consideration of the further material that had been provided to him for his review: Exhibit “4”;

Resolution of conflicting medical opinions

96. The parties did not require either Professor Ghabrial or Dr Maxwell to attend for cross-examination. This was in circumstances where there were some material differences in their respective opinions as to the nature and cause of the plaintiff’s claimed ongoing disabilities.

97. Where an expedient but unhelpful forensic approach of that kind is taken by the parties, a Court must wrestle with, grapple with, and evaluate, the respective opinions where they are in conflict to seek to identify a reasoned preferred view on such matters. The approach taken by the parties is a recurrent, well recognised, and at times problematic occurrence of longstanding in personal injury litigation conducted in this Court: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187, at [28]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, at [66].

98. In those circumstances, the respective opinions must be analysed and examined for adequacy and acceptability of the reasoning that underpins opinions according to the requirements of UCPR r 31.27(1) and Sch 7, cl 5(c). That analysis now follows.

Nature of the dispute

99. Essentially, the difference of opinion between Professor Ghabrial and Dr Maxwell concerns the extent to which the plaintiff’s injuries have produced lasting disabilities that continue to have a significant impact upon her.

Opinions of Professor Ghabrial

100. Professor Ghabrial’s three reports dated 18 April 2018, 21 August 2019 and 23 September 2020, followed his three examinations of the plaintiff and have been identified at sub-paragraphs (4), (5), and (9), of paragraph [95] above.

101. In essence, Professor Ghabrial considered that the plaintiff’s complaints of ongoing right shoulder, lower back and right knee problems, are as a result of the subject fall on 5 January 2017. He considered that those problems have led to the plaintiff having ongoing restrictions in those areas.

102. In his initial report Professor Ghabrial identified the plaintiff’s back injury to be a severe strain of the lower lumbar region, and noted that the plaintiff’s previous history of back symptoms in 2005 had settled down, also noting that a prior MRI scan of that region proved to be normal. He considered the plaintiff’s right shoulder injury to involve a partial tear of the rotator cuff with bursitis. He considered the plaintiff’s right knee injury to have accelerated and aggravated pre-existing osteoarthritic changes in that knee.

103. On the occasion of Professor Ghabrial’s second examination and report on the plaintiff, on 21 August 2019, which was over 30 months after the plaintiff’s fall, he noted the plaintiff had decreased and discomforting spinal movements, with moderate tenderness at the L4-S1 levels in the midline. He also noted moderate tenderness all over the plaintiff’s right shoulder, and mild swelling and effusion of the plaintiff’s right knee with moderate crepitations and pain in the patella-femoral joint. On the basis of those findings he confirmed his earlier opinions as identified at paragraph [102] above.

104. On 23 September 2020, when Professor Ghabrial examined the plaintiff for a third time, he had the benefit of x-rays of the plaintiff’s right knee taken that same day.

105. Those x-rays showed the plaintiff had a severe degree of osteoarthritis in the medial compartment of the right knee as well as in the patello-femoral compartment. At that time he noted that when he examined the plaintiff’s right shoulder she could not flex it beyond 150 degrees and could not abduct it beyond 100 degrees. He noted that an x-ray of the right shoulder taken on that date showed osteoarthritic changes of the acromio-clavicular joint. He also noted that x-rays of the plaintiff’s lumbar spine taken on the same date showed narrowing of the L5/S1 segment. His clinical examination of the plaintiff’s lumbar spine revealed moderate tenderness at the L4/S1 levels. On the basis of those examinations and findings he was of the opinion that the plaintiff’s fall on 5 January 2017 was the main contributing factor to the plaintiff’s clinical presentation, disabilities, and the identified impairments.

100. Professor Ghabrial expressed the opinion that the plaintiff’s right knee injury has accelerated and aggravated pre-existing osteoarthritic changes such that the plaintiff now requires right total knee replacement surgery.

Opinions of Dr Maxwell

107. Dr Maxwell examined the plaintiff on a single occasion, namely 16 July 2020. That examination occurred two months before Professor Ghabrial’s third and final examination of the plaintiff on 23 September 2020.

108. In Dr Maxwell’s first report which followed that examination, he stated his report had been prepared without the benefit of the results of prior medical investigations. Dr Maxwell’s first report was followed-up by a second report which was in the form of a commentary on some of the plaintiff’s medical records, including comments on Professor Ghabrial’s opinions. There is no evidence to suggest that in the interim, Dr Maxwell had been provided with the medical investigations which he had earlier requested.

109. In his commentary, Dr Maxwell expressed surprise at some of Professor Ghabrial’s management recommendations for the plaintiff’s post-accident problems. Those matters included the need to avoid many activities of daily living such as heavy lifting, excessive bending and twisting, running, climbing ladders, negotiating stairs, excessive walking on uneven ground, standing for long periods, walking long distances, kneeling and squatting. The stated basis for those expressions of surprise was the plaintiff’s obesity, and Dr Maxwell’s expressed view of the plaintiff’s related need to undertake physical activity.

110. In his commentary, Dr Maxwell addressed a question that had been posed to him by the solicitor for the first defendant as to the nature of the plaintiff’s accident-related disabilities. In his response, Dr Maxwell gave guarded and inconclusive answers to that question, referring instead to the plaintiff’s complaints of pain in the right shoulder and mild right knee medial compartment osteoarthritis based on an x-ray report. His commentary at that point did not explain why he did not include the plaintiff’s complaint of low back pain in that aspect of his consideration.

111. In addressing another question posed as to the nature of the plaintiff’s prior health issues, from “any other incident or accidents”, in his answer, as a limited response, Dr Maxwell noted the plaintiff had a full range of movement of her back and noted that there had been a previous lump sum settlement of a work injury damages claim in 2007 which was suggested to be in part related to a left knee injury and also to her lower back. The relevance of that particular commentary was not apparent and it remained obscure.

112. Dr Maxwell did not undertake a differential analysis of the effects or likely contribution between the earlier described incident and the subject accident with regard to the plaintiff’s lower back problems, especially given that he took a history that at the time of the subject fall, the plaintiff had not been having any treatment to her lower back. He noted her post-injury problems included back ache on sustained walking, requiring her to sit after 10 minutes, with relief of lower back pain after sitting or laying down.

113. Dr Maxwell’s first report (at p 4), noted the plaintiff’s complaint of low back pain on examination of extremes of movement, yet curiously, if not inconsistently (at p 8), in setting out his findings on examination and his diagnosis, he made no mention of back pain. Given that he took a history of lower back symptoms (at p 14), his omission of any diagnostic discussion relating to those problems remains unexplained. Other than noting the plaintiff had a full range of thoraco-lumbar spine movements without radiculopathy, at that point he made no diagnostic mention of the plaintiff’s history of low back pain.

114. Dr Maxwell considered the plaintiff’s right shoulder and right knee problems were due to soft tissue contusions which would have been expected to settle without long-term sequelae in 4 to 6 weeks. He considered (at p 9) that the plaintiff’s description of her right knee pain was “greater than one would expect given the relatively minor pathology” and he considered the plaintiff’s “disabilities (of the right knee) are somewhat overstated”. In the diagnostic section of his report, he did not include any consideration of the plaintiff’s reported history of low back pain.

115. In addressing an unfortunately and complicatedly expressed question of the extent to which the plaintiff’s “alleged symptoms are wholly, partly or not at all attributable to any pre-existing / degenerative condition or abnormality or any post-incident injuries or conditions”, Dr Maxwell stated: “In relation to her lumbar spine and right knee, these are due to pre-existing changes” and he noted “chronic back pain is often a somatic manifestation of underlying anxiety and depression” and concluded that the plaintiff’s current symptoms are not directly related to the subject fall. In his subsequent discussion, he did not proceed to set out a discussion or a concluded view of the applicability of such possibilities contributing to the plaintiff’s situation. The implication was left hanging in the air, so to speak, without it having been put to the plaintiff.

116. Dr Maxwell accepted the plaintiff should have had physiotherapy sessions for her right knee problems, but limited to six sessions. He said that she did not need any future treatment. He rejected the suggested need for right knee replacement. He suggested her symptoms would be “almost certain to improve once litigation is completed” and raised the possibility that the plaintiff’s motivation for recovery or improvement may have been affected by the litigation. He did not define the anticipated level of improvement. Dr Maxwell’s suggestion of an impaired motivation for recovery was not specifically put to the plaintiff in cross-examination.

117. In my assessment, Dr Maxwell’s first report gives the reader the impression that his opinions were inconclusive, and possibly not accurate, as he suggested that he needed to see x-rays and review the plaintiff’s medical records kept by the Awabakal Aboriginal Health Centre to enable him to more “accurately assess her symptoms prior to the subject accident”.

118. On 24 September 2020 the solicitor for the first defendant wrote to Dr Maxwell. The content of that letter has not been disclosed in evidence. The letter included copies of clinical notes relating to the plaintiff from both the Salamander Medical Centre and the Awabakal Aboriginal Medical Centre, the latter also including a “Patient Summary”. The “further documents” provided to Dr Maxwell by the first defendant’s solicitor remain opaque to analysis as they were not identified. It appears from Dr Maxwell’s commentary that he still had not been provided with the x-rays that he had sought. He was only given a report, which is not what he had asked to see.

119. Dr Maxwell’s commentary set out some details of the plaintiff’s past medical history relating to the period 1999 to 2019. Those matters were extracted from the medical records that had been provided to him. Salient features of those details have been included in the summary of the plaintiff’s background as appears in paragraphs [65] to [66] above.

120. Dr Maxwell said that his review of the documents provided to him did not cause him to alter the opinions he expressed in his report dated 16 July 2020. He confirmed his earlier opinion that any soft tissue injury to the plaintiff’s right knee would have settled in 4 to 6 weeks, and any of the plaintiff’s continuing right knee symptoms were due to the presence of osteoarthritis in that knee. He also stated that he considered the changes seen in the plaintiff’s left shoulder were constitutional changes and not due to trauma.

121. Dr Maxwell appears to have regarded the medical records he was asked to review as comprising something of a definitive record of the times the plaintiff complained of right knee and shoulder symptoms, the dubious assumption being that she had only gone to complain to her doctor at the times she experienced pain. That impression emerges from his following concluding comment:

“For prolonged periods of time there was no complaint of symptoms in relation to the right knee and shoulders (sic)”

122. That statement is problematic as the notes he reviewed could only have been an aide memoir for the author or authors, and not a transcript or record of all the times the plaintiff had experienced symptoms.

Professor Ghabrial’s comments on Dr Maxwell’s opinions

123. In his 23 September 2020 report Professor Ghabrial commented on Dr Maxwell’s report that followed his examination of the plaintiff on 16 July 2020, as follows:

1. He noted a discrepancy between their respective examination findings concerning the plaintiff’s right shoulder. He indicated that the discrepancy could be explained by the passive movements undertaken by Dr Maxwell, whereas his own examination involved both active and passive movements to the point of the plaintiff’s pain tolerance;

2. He confirmed that the plaintiff had suffered a soft tissue injury to her lower back and that the x-rays confirmed normal wear and tear which would be expected for someone of the plaintiff’s age, although he could not exclude a disc injury with some central protrusion;

3. He noted Dr Maxwell’s opinion that the plaintiff’s right knee problems were not related to the subject fall. In contradistinction, he explained that the plaintiff’s history of a twisting of that knee in the fall and the immediate sharp pain that followed, without improvement indicated the plaintiff’s right knee problems were related to the subject fall. He confirmed his view that the plaintiff’s need for a right knee replacement has been caused by the aggravating effects of that fall.

Analysis of the conflicting medical opinions

124. At the outset of the analysis it should be recorded that the first defendant’s proposed tender of the plaintiff’s medical records, which were said to have been produced on subpoena, was rejected because they had not been served on the plaintiff in accordance with the rules governing the service of medical evidence: UCPR r 31.28(1)(c). In my opinion, the course proposed by the first defendant involved an unacceptable ambush: Nowlan v Marson Transport Pty Ltd (2001) NSWLR 116; [2001] NSWCA 346, at [26], [28]; White v Overland [2001] FCA 1333, at [4].

125. In comparing the conflicting medical opinions it becomes plain that, compared to Dr Maxwell’s single examination of the plaintiff, Professor Ghabrial had the considerable advantage of examining the plaintiff on three separate occasions over the course of two and-a-half years, and this was in the context where he noted a consistency in the plaintiff’s presentation and symptoms.

126. Furthermore, unlike Dr Maxwell, Professor Ghabrial not only had the initial opportunity of seeing the plaintiff’s x-rays which assisted him in making a clinical assessment, but he also had the benefit of x-rays taken on 23 September 2020. In my view, in those events, Professor Ghabrial had a considerable comparative analytical advantage over Dr Maxwell in that regard.

127. In assessing the opinions of Dr Maxwell, I have concluded that he has not provided adequate reasons for his commentary to the effect that the plaintiff’s injuries to her right knee and right shoulder would have resolved within 4 to 6 weeks: UCPR r 31.27(1)(c); Sch 7 cl 5(c). His comments in that regard are inadequately reasoned and amount to nothing more than an unacceptable ipse dixit: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [59].

128. It appears that Dr Maxwell’s opinions have been at least in part informed by material that is not in evidence. Furthermore, on the face of his commentary, it seems that he has regarded the general practitioner attendance dates recorded in the plaintiff’s medical records as being the only occasions on which the plaintiff had complained of her symptoms.

129. Whilst that may be a correct summation insofar as it related to the recorded dates on which the plaintiff complained of symptoms to her doctors, Dr Maxwell’s conclusion seems to have overlooked, and not given due weight, to the necessarily broader consideration, namely the plaintiff’s history of a continuum of complaints of symptoms since the time of her injury, well beyond his prognosticated recovery of 4 to 6 weeks. Dr Maxwell’s nominated cut-off date of 4 to 6 weeks seems arbitrary and it remains inadequately explained.

130. Dr Maxwell appears to have given inadequate consideration to the plaintiff’s complaints of ongoing back pain. His ultimate view was that the plaintiff’s right shoulder problems were due to constitutional changes and not trauma. That view was open to doubt given the CCTV footage that showed the plaintiff to have fallen heavily onto her right side, including her right shoulder. That observation, and Professor Ghabrial’s observation that the plaintiff has a partial tear of her right rotator cuff, suggests that Dr Maxwell’s cited opinion should not be accepted.

131. A careful review of Dr Maxwell’s opinion to the effect that imaging changes seen in the plaintiff’s right shoulder are constitutional and not due to trauma does not seem to be an adequate or a complete analysis because there is no accompanying discussion of an obvious emergent consequential point, namely, a consideration of the effect of trauma on such underlying changes in light of the plaintiff’s ongoing symptoms in areas that were previously asymptomatic, and where a tortfeasor must take the plaintiff as she is found. That point of analysis arises as a matter of common sense from the plaintiff’s own evidence and that of Professor Ghabrial. It is not an imposed medical view of the kind criticised in Strinic v Singh [2009] NSWCA 15.

132. In his report dated 30 September 2020, Dr Maxwell made the following statement regarding the plaintiff:

“I also note she only appeared to again complain of pain in the right knee and shoulder when she needed letters from general practitioners to her solicitors”

[Exhibit “4”, p 3]

133. I give no weight to that critical comment by Dr Maxwell as it was not specifically put to the plaintiff in cross-examination, and it is not borne out, either in the evidence, or in the plaintiff’s presentation, which I considered to have been restrained and stoic. The plaintiff denied the specific proposition that her right knee problems had settled by 21 February 2017: T63. I accept her denial as being factually correct.

Conclusion on conflicting medical opinions

134. For the reasons outlined at paragraphs [96] to [133] above, I have preferred Professor Ghabrial’s opinions to those of Dr Maxwell on questions of diagnosis of the plaintiff’s injury and disability, and on her prognosis in respect of those matters.

Disability findings

135. As I have found the plaintiff to be a credible witness, I therefore propose to draw upon and treat summarised medical histories, as recorded by the assessing practitioners, as evidence that outlines her post-injury disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, at [70]; s 60 of the Evidence Act 1995 (NSW).

136. The plaintiff has continued to experience pain and restriction of movement in her right arm and right shoulder without improvement. She no longer has a full range of movement in her right upper limb. She also has experienced ongoing back pain and occasional lumbar spasms. Her right knee pain is accompanied by a feeling of heaviness in her right leg down to her right ankle, and that sensation is also accompanied by pain. She has put up with those pains since the accident.

137. The plaintiff’s right knee now has a significantly restricted range of movement due to the trauma-related acceleration in the osteoarthritic changes in that knee. This affects two knee compartments. Her right quadriceps muscles are wasting. She is, and has been for some time, waiting for right knee replacement surgery, which is without doubt a major surgical undertaking at her age. The plaintiff undertakes some home exercises to manage her pains.

138. As a result of her injuries the plaintiff now experiences reduced mobility. The duration of her standing and walking tolerances are markedly restricted. She is unfit for activities such as heavy lifting, excessive bending and excessive twisting, as well as activities involving excessive use of the right upper limb, or any use of the right upper limb above shoulder level.

139. She has difficulty walking for more than about 30 minutes, and her back pain and leg problems necessitated that she sit after a time. She has difficulty obtaining a comfortable sleeping position and she is easily exhausted. She walks with a limp. She is impaired in her ability to get down on the floor to play with her young grandson.

140. The plaintiff’s right knee problems restrict her in many commonplace activities including the use of ladders, which could foreseeably arise in the home, negotiating stairs, walking on uneven ground, lengthy standing, walking long distances, kneeling and squatting. Whilst knee replacement surgery may alleviate some of those problems, it is uncertain as to whether she will be able to return to a full range of activities post-surgery.

141. I accept Professor Ghabrial’s opinion that the subject fall was the main contributing factor to the plaintiff’s present clinical features, disabilities, and impairments. It is not to the point that the plaintiff had pre-existing degenerative changes in the affected areas. In that regard, the defendant must take the plaintiff as she is found: Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60, at [18], p 406. The aggravating effects of the plaintiff’s fall have had, and will continue to have, a most significant and deleterious effect on her pre-injury condition, which was largely asymptomatic, thereby rendering her significantly impaired, as assessed by Professor Ghabrial.

Domestic effects of injuries

142. Although the condition of the plaintiff’s right shoulder has improved since 2019, the combination of her post-accident problems have resulted in her experiencing an inability to carry out gardening activities, and to clean her bathroom. She cannot do vacuuming, she has difficulty reaching up with her right arm. She has difficulty bending. No specific monetary claims are made in respect of those difficulties.

Mitigation

143. There is no evidence upon which to conclude that the plaintiff has unreasonably failed to take steps to mitigate her damages. The defendants did not submit otherwise.

Issue 2 – Risk of harm

144. Before considering the question of whether or not the defendants were in breach of the duty of care they owed in relation to the premises and in the circumstances of the plaintiff’s injury, it is necessary to first identify the relevant risk of harm: Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [60], [62]; Perisher Blue Pty Ltd v Nair-Smith (2015) NSWLR 1, [2015] NSWCA 90, at [98]; Solomons v Pallier [2015] NSWCA 266, at [68] – [69]. The formulation or identification of the relevant risk of harm does not need to be narrowly confined to the precise injury circumstances: Shaw v Thomas [2010] NSWCA 169, at [43].

145. Identification of the relevant risk of harm should not be formulated too precisely or narrowly. Instead, it must be seen to be a generally broad concept not confined to a particular hazard that ultimately caused harm. Instead, it should allow for a range of contingent circumstances involving the foreseeable use of the premises so as to encompass the prevailing circumstances surrounding the activity in which the injury occurred: Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320, at [118].

146. The plaintiff identified the relevant risk of harm as being a foreseeable risk of patrons in the premises tripping on a mat that was humped where neither defendant had given a warning as to the humped state of the mat. The first defendant expanded upon that formulation by identifying the relevant risk of harm as being the possibility that a member of the public may trip and fall and suffer injury when stepping on a wet weather mat at an entrance to the Shopping Centre where the mat had become humped either as a result of the manner of placement of such mats, or due to customers and trolleys moving over the top of such mats. In my view, both of those formulations aptly identify the risk of harm in the circumstances of the plaintiff’s injury.

187. I find that in circumstances where the rolled-out mats could either remain kinked if not rolled-out properly, or could become kinked after the passage of traffic over them, so as to create a tripping hazard if not rectified, a reasonable person in the position of each of the defendants would have taken precautions against the identified risk of injury from tripping on a kinked or humped wet weather mat: s 5B(1)(c) of the CL Act.

188. In my assessment, the precautions which the plaintiff asserts ought to have been taken by each of the defendants in the circumstances were not limited just to mat inspections, mat straightening, and related cleaning tasks. These were the bare minimum requirements and they did not fully respond to the risk. More was required because of the known propensity of the mats to move from the laid out position on the tiled surface of the Shopping Centre and to then become kinked with the passage of customer and trolley traffic over them.

189. Given that the mats had a propensity to move on the smooth tiled floor surface and become kinked due to the passage of foot and trolley traffic over them, I find that the first defendant’s requirement for a regime of inspections every 15 to 20 minutes was an inadequate response to the material risk of tripping, which was liable to occur at random at variable times during the day depending on the density of customer and trolley traffic.

190. A more vigilant supervisory presence was plainly required to ensure timely intervention for as long as the movement-prone mats were left in situ, and at the very least, an inspection regime more frequent than at 15 or 20 minute intervals was required in order to address and respond to the random risk of customers tripping and falling when the wet weather mats were in situ and capable of becoming kinked.

191. This was in circumstances where the first defendant had ultimate control of the premises. It chose the wording of warning signs on the yellow wet weather cones that were located in the premises. Such placement of wet weather signs at the entrances to the premises may well have been an adequate response to the risk of slipping on wet tiles, however, the warning on the cones available at the premises was not an adequate response to the more specific risk of tripping and falling over randomly appearing humps on the surface of a wet weather mat.

192. In my view, in addition, the first defendant ought to have also placed prominent signs at the entrances to warn customers of the risk of tripping and falling over such kinks for so long as the wet weather mats were rolled-out and left in place at the premises. This is because the wet weather mats had a known inherent propensity to kink at random, as traffic passed over them.

193. If such warning signs alerting customers to look out for kinks or humps were not available, then instead, appropriately stationed personnel ought to have been located at the entrances for so long as the mats remained present, for the dual purpose of not only appropriately monitoring the state of the mats and straightening them as and when they became kinked, but to also warn entering customers to be on the lookout for the possible presence of kinks in the mats that might not have been straightened.

194. The first defendant had overall control over the frequency of the second defendant’s inspection rotations during the times when wet weather mats were left in place near the entrances to the premises. Given that kinks in the mats could occur at random, depending on the volume or density of customer and trolley traffic passing over them, a more focussed and frequent inspection regime was required, commensurate with the randomness of the possibility and likelihood of occurrence of kinks in such mats. The first defendant had control over such matters when it set out its inspection requirements for the second defendant’s staff to follow, at a time when the propensity of the wet weather mats to move or kink must have been known to the first defendant.

195. The precautions against the risk of tripping that were required to be taken by the second defendant were primarily governed by the express and the implied terms of its contractual agreement with the first defendant. The first defendant required the second defendant’s cleaning staff to lay the wet weather mats out flat, and then once laid out, to inspect them in timed rotations every 15 to 20 minutes.

196. The second defendant’s status as occupier of the premises was limited by the terms of its agreement with the first defendant. Caution is required when considering whether or not to imply additional terms and obligations into the agreement between the defendants. This is because the first defendant derived commercial benefits from its occupation of the premises and those benefits were plainly far more extensive than the commercial benefits derived by the second defendant as the first defendant’s cleaning contractor.

197. It appears that Ms Avery’s discussion with Mr Winterbourne, as cited at paragraphs [25] and [26] above, was in accordance with the second defendant’s obligation to draw to the first defendant matters concerning risk to safety as required by the agreement between those parties: Exhibit “5”, p 61.

198. I do not see any reasonable basis for implying additional and more onerous terms on the second defendant than those which are set out in the agreement that subsisted between those defendants.

199. It is against that background that the inactions of the second defendant’s staff stands to be assessed. Both Mr Blatch and Ms Avery attended the area in the vicinity of the laid-out wet weather mats. The CCTV footage satisfies me that they did not specifically undertake inspection of the mat surfaces for kinks or humps. This was at a time when it is plain from the evidence of the plaintiff that the mat surface was affected by such a hump or kink, which constituted a trip hazard.

Consideration concerning s 5B(2) of the CL Act

201. As the three pre-conditions required by s 5B(1) of the CL Act are satisfied, as explained above, I now turn to consider the application of s 5B(2) of the CL Act to the circumstances of this case.

Section 5B(2)(a) of the CL Act – probability of harm

202. Absent precautions of the kind identified at paragraphs [189] to [197] above being taken, given the identified hazard posed to customers from possibly tripping and falling on a kinked wet weather mat, I am satisfied that in those circumstances there was a relatively high probability that persons such as the plaintiff, whilst taking reasonable care for their own safety, could nevertheless sustain injury whilst walking across kinked or humped wet weather mats in the premises: s 5B(2)(a) of the CL Act.

Section 5B(2)(b) of the CL Act – seriousness of harm

203. It can be assumed, reasonably, that any activity requiring or permitting customers to walk over wet weather mats that had become kinked or humped carries a foreseeable risk of injury that might vary in nature, including injuries of the kind suffered by the plaintiff: s 5B(2)(b) of the CL Act.

Section 5B(2)(c) of the CL Act – burden of taking precautions

204. In my view, it would have been a negligible burden for the first defendant to take the identified precautions argued by the plaintiff, namely to place appropriately worded warning signs at the entrances to the premises and to require the second defendant’s staff to inspect the mats at more frequent intervals than every 15 to 20 minutes, particularly as the second defendant’s staff already had a presence on the premises.

205. Whilst it is possible that requiring the second defendant’s staff to undertake more frequent inspection rotations might possibly have involved some extra cost to the first defendant, as would the precaution of deploying its own staff at the entrances whilst the wet weather mats were in place, the placement of adequate warning signs, whether in the form of cones or freestanding portable signs or wall signs, appears to have been a negligible expenditure burden in the context of the known use of the premises: s 5B(2)(c) of the CL Act.

Section 5B(2)(d) of the CL Act – no relevant social utility

206. No qualifying considerations of social utility relevantly arise in this case. There is an obvious positive social utility in the commercial activity of providing a Shopping Centre for customers to patronise. There is no social utility to be achieved by doing so in an unsafe environment that exposes individuals to the risk of injury that could be avoided by the exercise of reasonable care appropriate to the circumstances: s 5B(2)(d) of the CL Act.

Consideration concerning s 5C of the CL Act

207. In the paragraphs that now follow, I address the matters required to be considered in accordance with s 5C of the CL Act.

Section 5C(a) of the CL Act – burden of precautions for similar risk

208. The burden on the first defendant of displaying appropriately worded warnings, whether on strategically placed cones, freestanding signs or wall signs, would have been negligible. This can be inferred from the fact that the first defendant already had portable and deployable warning cones on the premises to alert customers to the separate risk of slipping on a wet floor. On a prospective and comparative view, obtaining cones with suitably worded safety warnings as to the propensity of wet weather mats becoming humped or kinked did not seem to be unduly burdensome: s 5C(a) of the CL Act.

Section 5C(b) of the CL Act – avoidability by doing things differently

209. There are no countervailing considerations within the contemplation of the provisions within s 5C(b) of the CL Act. The defendant was required to take the precaution of taking reasonable care, which if taken, more probably than not, would have avoided injury to the plaintiff.

Section 5C(c) of the CL Act – relevance of subsequent actions

210. In this case no relevant considerations arise within the contemplation of s 5C(c) of the CL Act.

Conclusion on breach of duty of care

211. For the above reasons, I find that the plaintiff has satisfied the statutory requirements for proving that both defendants were relevantly in breach of the respective duties of care that they each owed to the plaintiff. I therefore find that both of the defendants were negligent as claimed by the plaintiff.

212. Shortly stated, the first defendant’s system for inspection of wet weather mats at 15 to 20 minute intervals was inadequate. In addition, the second defendant’s staff did not undertake reasonable and identifiable steps for inspection and correction of the humped or kinked state of the mat within the stipulated time frame, despite the second defendant’s staff being present in the near vicinity. Had a proper visual inspection been undertaken in that time frame, the hump or kink observed by the plaintiff, whether present at the time of layout, or due to the passage of customer and trolley traffic, would have been seen and if seen, should have been the subject of remedial attention.

Issue 6 – Whether contributory negligence

213. The defendants allege that there was contributory negligence on the plaintiff’s part, as follows:

1. Failing to take adequate care for her own safety;

2. Failing to observe her surroundings;

3. Failing to look where she was stepping with her feet;

4. Failing to adjust her pace as she traversed the mat; and

5. Failing to perceive and avoid a risk that was obvious in all of the circumstances (which is not admitted).

214. The question is whether the circumstances under consideration establish that the plaintiff’s conduct in the lead-up to her injury amounted to more than mere inadvertence, inattention or misjudgement so as to amount to negligence on her part and requiring an apportionment to be made for any such negligence. The test for determining contributory negligence is established beyond controversy: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; [1985] HCA 34, at [5],

215. Section 5R of the CL Act provides:

5R Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose—

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

216. Section 5S of the CL Act provides:

5S Contributory negligence can defeat claim

In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.

217. The defendants bear the onus of establishing contributory negligence. To discharge that onus they must satisfy the requirements of s 5B and s 5C of the CL Act. In my assessment, the defendants failed to establish that the plaintiff had been contributorily negligent in any material respect.

218. The fact that the plaintiff may not have been wearing her glasses at the time of her fall has not been pleaded as a ground for a finding of contributory negligence. Even if it had been so pleaded, given that the plaintiff was able to see and drive without her glasses, this diminishes the availability of that factor alone as a basis for a finding of contributory negligence.

219. The plaintiff did not see that the wet weather mat was kinked at the time she entered the premises and looked ahead. The fact that she did not see the kink on the relatively dark surface of the mat when she looked ahead on entering the premises does not necessarily equate with, or mandate a finding of a failure on her part to take reasonable care for her own safety.

220. Upon entering the premises, her attention was distracted by store advertisement signage. The fact that the plaintiff was distracted in that way does not equate to a failure to take reasonable care for her own safety.

221. The plaintiff kept walking whilst looking at the signage, unaware that there was a kink in the mat ahead of her. In my view, those actions on her part amount to no more than transient inadvertence or inattention to a particular aspect of the premises in circumstances where she should not be taken to have been aware of a risk to her own safety such that she had to re-direct her attention in order to specifically observe where she placed her feet whilst walking. Based on her earlier visits to the premises, she had no factual basis for knowing the wet weather mats in situ had a propensity to become kinked and to constitute a tripping hazard.

222. In those circumstances I reject the argued hindsight defence of contributory negligence.

Issue 7 – Causation

223. The plaintiff must establish that her injuries were relevantly caused by the negligence of the defendants, as required by s 5D of the CL Act, which provides:

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements—

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

224. The factual question of whether the negligence of the defendants was the relevant cause of the plaintiff's injury is in this case determined by looking back at the circumstances and applying the “but for” test of causation: Strong v Woolworths Ltd [2012] HCA 5, at [18] and [32]; Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124].

225. I find that the kinked wet weather mat on which the plaintiff tripped was the necessary condition for the plaintiff’s fall and injuries. The plaintiff’s injuries would not have occurred but for the negligence of the defendants in permitting customers to walk over an unattended and unrectified kink in the wet weather mat: s 5D(1)(a) of the CL Act.

226. In my view, given that the defendants’ respective duties of care were grounded upon their respective and different commercial interests regarding their presence on the premises and for which they each derived a commercial gain, it is only appropriate that the scope of their respective liabilities extend to the circumstances of the plaintiff’s fall: s 5D(1)(b) of the CL Act. No exceptional circumstances have been shown to exist: s 5D(2) of the CL Act.

Issue 8 – Apportionment of liability between defendants

227. The defendants have exchanged cross-claims. The basis for those cross-claims is twofold. First, the cross-claims engage s 5(1)(c) of the Law Reform Miscellaneous Provisions) Act 1946 (NSW). Those legislative provisions are relevant to the determination of the issues raised by the cross-claims. Secondly, the specific terms of the agreement between the defendants relevantly influences that task.

228. The first defendant’s cross-claim against the second defendant relies upon the plaintiff’s pleaded particulars of negligence and invokes alleged breaches of the second defendant’s obligations under the cleaning management and operations activity agreement between the defendants: Exhibit “5”. The first defendant’s cross-claim essentially alleges, with reference to the facts as found, that the second defendant’s provision of inspection, cleaning and maintenance of the premises was not carried out with due skill and care with regard to mat placement so as to ensure compliance with 15 to 20 minute cleaning rotations. That cross-claim further alleges that the second defendant failed to ensure the wet weather mats did not present a tripping hazard.

229. The second defendant’s cross-claim against the first defendant also relies upon the plaintiff’s pleaded particulars of negligence and it also invokes the maintenance and services agreement that subsisted between the defendants. In essence, it alleges that the first defendant failed to take reasonable precautions and provide proper directions to the second defendant for carrying out the tasks of mat placement, mat positioning, and mat fixation, so that such mats would not pose a tripping hazard.

230. The determination of the proportions in which the respective defendants should bear responsibility for the plaintiff’s damages requires a consideration of the terms of the maintenance and services agreement entered into by those parties concerning cleaning management and operation activity at the Shopping Centre (Exhibit “5”, pp 1 – 128, T156.12), and a consideration of the comparative respective culpabilities of the defendants. The agreement between the parties contains a series of relevant terms, which are summarised as follows:

1. The first defendant was responsible for the general state of the property: Exhibit “5”, p 21, cl 11.1(a);

2. The second defendant was required to establish, maintain, implement and enforce a safe system of work in relation to the services it provided: Exhibit “5”, p 23, cl 11.3(d)(i);

1. The second defendant was required to undertake an assessment of risks associated with the provision of its services and notify the first defendant of adequate control measures relating to such assessments: Exhibit “5”, p 21, cl 11.3(f);

2. The second defendant is obliged to provide the first defendant with full indemnification for a breach of the agreement: Exhibit “5”, p 28, cl 15.1(a);

3. The second defendant is obliged to provide the first defendant with full indemnification for a breach of the agreement in respect of a claim by a third party arising out of any act or omission of the second defendant: Exhibit “5”, p 28, cl 15.1(a);

4. Where liability has arisen for loss or damage contributed to by the negligence of the first defendant, the indemnity to be provided by the second defendant is to be determined and reduced by the court in accordance with applicable principles concerning proportionate liability: Exhibit “5”, p 29, cl 15.1(e).

231. Some other relevant provisions appear in the annexures to the agreement between the parties, as follows:

1. The first defendant was expected to reduce and to mitigate any real or potential public risk exposure: Exhibit “5”, p 43;

2. The second defendant was expected to ensure that all floor surfaces were to be maintained in an acceptable state: Exhibit “5”, p 44;

3. The second defendant was expected to adhere to the requirement of maintaining the presentation of the property to the standard identified within Schedule 2.1.2 of the agreement concerning the cleaning of the common areas, including entries, including rectification, every 15 – 20 minutes. It is noteworthy that the matters referred to in 2.1.2 of the Schedule of Exhibit “5” at pp 45 – 46, only referred to cleaning standards and did not refer to safety standards per se: Exhibit “5”, pp 45 – 46;

4. At times of inclement weather, the second defendant was expected to use and deploy wet weather mats and the “Caution Wet Floor” signage that were available at the premises. The agreement also provided that: “such wet weather mats must not present a tripping hazard”: Exhibit “5”, p 48. Significantly, the agreement made no provision for the deployment of safety signage that referred to the properties of the wet weather mats;

5. The second defendant was to undertake reporting of safety issues to the first defendant: Exhibit “5”, p 61.

232. The test for determining the apportionment of damages is well established: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; [1985] HCA 34, at [10], namely:

10. 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, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663, at p 682; Smith v. McIntyre (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman [1976] VicRp 15; (1976) VR 208, at p 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.

233. The same comparative approach may be taken to determining an apportionment of liability as between defendant tortfeasors.

234. Whilst the first defendant’s agreement with the second defendant delegated to the second defendant the particular task of proper and safe mat roll-out, and the subsequent particular task of periodic inspections at rotations of every 15 to 20 minutes, that regime left plainly significant scope for tripping hazards to arise and to remain unaddressed between inspection rotations by the second defendant’s cleaning staff where kinking or humping of wet weather mats was liable to occur at random, according to traffic volume.

235. I find that the first defendant created the systemic scope for a tripping hazard to remain unaddressed. This was a major and substantial causative factor which contributed to the plaintiff’s fall.

236. In the circumstances leading to the plaintiff’s fall, that unaddressed hazard became a static condition of the premises which the second defendant could only address either at random when its cleaning staff happened to be present, or within the time frame of the required 15 to 20 minute inspection rotations.

237. As observed in paragraphs [25] to [26] above, in 2016, Ms Avery, the second defendant’s employee, had drawn to the attention of Mr Winterbourne, the first defendant’s site manager, the fact that the passage of shopping trolleys over wet weather mats was the main cause for those mats to become kinked. Mr Winterbourne’s response was to require, in accordance with the terms of the written agreement between the defendants, the second defendant’s cleaning staff ensure the mats were straightened at the required 15 minute cleaning and inspection rotations.

238. In my opinion, that discussion indicated that the first defendant did not fully appreciate the magnitude of the tripping risk posed to patrons entering onto the premises during randomly occurring times at which the wet weather mats would be deployed. In my view, on a comparative assessment, that factor is instructive.

239. Two significant conclusions arise from those circumstances.

240. First, the first defendant’s requirement for inspection rotations by cleaning staff materially allowed for a deficient system for ensuring the safety of customers entering the premises as tripping hazards due to kinked or humped mats could occur and remain in between those inspection rotations.

241. Secondly, the first defendant seems to have delegated an important safety responsibility to the second defendant in a manner that was inherently deficient because the imposed requirement of inspection intervals was an inadequate response to the risk of customers tripping on randomly occurring kinks or humps in the wet weather mats.

242. Whilst the first defendant delegated part of its safety responsibilities as occupier to the second defendant as its cleaning contractor, I find that the terms of that delegation necessarily incorporated a deficient stipulation that inspection rotations of the premises should be conducted every 15 to 20 minutes.

243. Such delegation of a duty of care was legally permissible: Condos v Clycut Pty Ltd [2009] NSWCA 200, at [61] applying Bevillesta Pty Limited v Liberty International Insurance Co [2009] NSWCA 16, at [53].

244. In Bevillesta, at [53], it was observed that for an occupier to escape liability on account of a delegation of the duty of care owed, reasonable care was required in the selection of the terms of the delegation. In that decision at [58], it was noted that the precision or lack of precision as to the terms of the delegation is a relevant consideration to be taken into account.

245. In my opinion, the inherent deficiency in the terms of the first defendant’s delegation of its duty of care in relation to the inspection and safe maintenance of the wet weather mats in question left open a significant and wide avenue of liability for the first defendant. This is because within the terms of that delegation, the second defendant did not recognise the scope for the wet weather mats to become kinked or humped at random and therefore pose a tripping hazard for customers.

246. Not only did the first defendant not recognise that potential for risk to cause injury, but when the second defendant’s employee Ms Avery in effect pointed that problem out to the first defendant’s manager, Mr Winterbourne, in 2016, the response on behalf of the first defendant was to perpetuate the unaddressed random risk by not modifying the mat inspection and safety requirements to address that risk.

247. In those circumstances, in balancing the respective causative culpabilities of the two defendants in the consideration of their cross-claims, I find that the first defendant should bear a greater portion of the blame for that unaddressed risk, which came to pass when the plaintiff tripped or fell.

248. In identifying that balance, recognition must also be given to the effect of the omissions of Mr Blatch and Ms Avery in not adequately carrying out their duties on their inspection rotations and activities between the time when Mr Blatch laid out the wet weather mats and the time the plaintiff tripped and fell. Those inspection omissions were also substantial. Had they actively inspected the mats, at least one of them would have seen the kink or hump on which the plaintiff fell and taken action to remedy the problem. In my view, such omissions had significant causative potency in the cause for the plaintiff’s fall.

249. In light of the foregoing analysis, on balance, I assess the comparative responsibility of the parties to be 60 per cent on the part of the first defendant owner occupier and 40 per cent on the part of the second defendant cleaning contractor.

Issue 9 – Assessment of damages

250. In the paragraphs that follow I set out my assessment of the heads of damage claimed by the plaintiff.

Non-economic loss

251. On behalf of the plaintiff it was submitted that her damages for non-economic loss should be assessed in the range of between 29 to 32 per cent of a most extreme case according to the requirements of s 16 of the CL Act. In contrast the defendants submitted that those damages should be assessed at 17 per cent of a most extreme case. The exercise is an evaluative one.

252. Without exaggeration, the plaintiff summarised the effect of her injuries as having ruined her life: T49.10. Although she had some pre-accident health issues, plainly, she could ill-afford to be burdened by the extra accident-related layers of disability that she has incurred, as she has described in her evidence, and as was described by Professor Ghabrial.

253. The plaintiff’s disabilities, as outlined at paragraphs [135] to [142] above, have plainly had a most significant and deleterious effect upon her ability to enjoy the amenity of her life in her remaining years. Her statistical life expectancy has been identified as a remaining 21 years. Her mobility has been severely affected. She faces the prospect of right knee replacement surgery because of the aggravating and accelerating effects of her injury. She is right hand dominant and her right upper limb problems significantly impair her in performing manual tasks with that limb. She is unfit for many commonplace tasks, as has been summarised at paragraphs [138] to [140] above.

254. Although the plaintiff has endured her described problems with stoicism, the fact remains that in combination, her described disabilities have substantially interfered with her amenity and enjoyment of life, including physical interaction with her grandchild.

255. Taking those matters into account, including the details described within Professor Ghabrial’s opinions, I consider that the plaintiff’s non-economic loss damages should be assessed at 30 per cent of a most extreme case. I therefore assess the plaintiff’s damages for non-economic loss at 30 per cent of a most extreme case, which is the equivalent of $135,500.

Future treatment expenses

256. On behalf of the plaintiff it was submitted that her need for compensation for future treatment expenses, including for treatment comprising a right total knee replacement, should be assessed at $34,700. In contrast, the defendants submitted that the plaintiff’s treatment expenses should be assessed in the amount of $1500. In my assessment, the defendant’s submission, if accepted would result in unfair undercompensation.

257. Professor Ghabrial has estimated the cost of the proposed surgery for the plaintiff’s right knee replacement at $34,700. That estimate is unchallenged. The plaintiff’s need for that surgery is a present and pressing one, as may be reasonably inferred from the fact that the plaintiff is on a waiting list for that surgery.

258. In addition to the identified surgical treatment, the plaintiff’s accident-related pain and discomfort will obviously require that she attend her local doctor at recurring intervals for review and consideration of her reasonable treatment needs. That cost is not readily ascertainable. In addition, she will require specialist orthopaedic review pending her right knee replacement surgery. That cost is also not readily ascertainable. She spends about $12 per month on Nurofen for pain relief.

259. In assessing damages for future treatment in this case, the cost of knee replacement surgery should be subject to a modest discount to take into account the possibility that the plaintiff may have required and progressed to such surgery in any event, if uninjured. However, in my view, that discounting factor is substantially outweighed by the effects of the subject fall being the major and materially contributing cause of the need for such surgery.

260. In the described circumstances, this head of damage is most appropriately compensated by the allowance of a modestly discounted buffer sum. I therefore assess the plaintiff’s damages for future treatment expenses in the composite discounted sum of $35,000.

Past out-of-pocket expenses

261. I assess the plaintiff’s past out-of-pocket expenses in the agreed amount of $2054.

Summary of damages assessment

262. My assessment of the plaintiff’s damages is summarised as follows:

(a) Non-economic loss	$135,500
(b) Future treatment expenses	$35,000
(c) Past out-of-pocket expenses	$2,054
Total	$172,554

Disposition

263. On the plaintiff’s claim she has established her entitlement to a damages award against each defendant jointly and severally for the sum of $172,544 and she should have a judgment for that amount.

264. On the cross-claims I consider that the liability for the plaintiff’s damages should be shared between the defendants in the proportion of 60 per cent on the part of the first defendant and 40 per cent on the part of the second defendant.

Costs

265. On ordinary considerations, as the plaintiff has succeeded in obtaining a judgment in her favour against both defendants, she should have an order that the defendants should pay her costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order. In this case, the parties have requested they be heard on the question of costs once the outcome of the proceedings is known. Accordingly, I will hear them on that question.

Orders

266. I make the following orders:

1. Verdict and judgment for the plaintiff against both defendants in the sum of $172,554;

2. On the cross-claims, the first defendant is to pay 60 per cent of the plaintiff’s judgment and the second defendant is to pay 40 per cent of the plaintiff’s judgment;

3. I will hear the parties on the appropriate consequential orders for costs;

4. The exhibits may be returned;

5. Liberty to apply on 7 days’ notice if further or other orders are required.

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Decision last updated: 08 April 2021