Kingi-Rihari v Millfair Pty Ltd t/as the Arthouse Hotel - [2012] NSWSC 1592

Supreme Court

New South Wales

Medium Neutral Citation: Kingi-Rihari v Millfair Pty Ltd t/as The Arthouse Hotel [2012] NSWSC 1592
Hearing dates: 19 November 2012, 20 November 2012, 21 November 2012
Decision date: 19 December 2012
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Judgment for the Plaintiff.

Catchwords: TORTS - negligence - contributory negligence - hotel and patron - slip and fall - - whether the floor was wet and recently mopped - CCTV footage - whether floor was wet as the result of plaintiff's actions - not established - whether plaintiff fell as the result of wearing thongs, or because of an old knee injury - not established - negligence established - causation - contributory negligence - damages - non-economic loss - past and future economic loss - future domestic assistance - calculations to be undertaken and short minutes provided
Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Occupational Health and Safety Act 2000
Occupational Health and Safety Regulation 2001
Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815
Kallouf v Middis [2008] NSWCA 61
Mead v Kerney [2012] NSWCA 215
Nominal Defendant v Livaja [2011] NSWCA 121
Novakovic v Stekovic [2012] NSWCA 54
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Rabay v Bristow [2005] NSWCA 199
Strike v Fiji Resorts Limited [2012] NSWSC 1271
Strong v Woolworths Ltd t/as Big W [2012] HCA 5; 86 ALJR 267
Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422
Watson v Foxman (1995) 49 NSWLR 315
Watts v Rake [1960] HCA 58; 108 CLR 158
Category: Principal judgment
Parties: Travis Bell Kingi-Rihari (Plaintiff)
Millfair Pty Ltd t/as The Arthouse Hotel (First Defendant)
Nicholas John Austin (Second Defendant)
Representation: Counsel:
Mr A J Lidden SC, Mr M Dawley and Ms T Fishburn (Plaintiff)
Mr M L Williams SC and Mr P Knowles (Defendants)
Solicitors:
Brydens (Plaintiff)
Lee and Lyons (Defendants)

File Number(s): 2010/292109
Publication restriction: None

Judgment

At about 7.30pm on Friday, 19 February 2010, Travis Bell Kingi-Rihari seriously injured his right knee when he slipped and fell at the Arthouse Hotel, soon after arriving there with two workmates for a drink. The defendants disputed that they had breached the duty of care which they owed Mr Kingi-Rihari and claimed that if they had, there had also been contributory negligence on Mr Kingi-Rihari's part. This, he disputed.

The defendants accepted that as occupiers of the premises, the duty which they owed Mr Kingi-Rihari was to take reasonable care to avoid a foreseeable risk of injury and that the duty could be characterised as a duty to take reasonable care that the premises were safe. In terms of s 5B of the Civil Liability Act 2002, it was also accepted that the risk of harm of a person slipping and falling on the floor of the Verge bar where Mr Kingi-Rihari fell, was foreseeable and not insignificant. The crucial issue lying between the parties was whether or not the highly polished wooden floor of the bar where Mr Kingi-Rihari fell was wet.

The parties identified that they agreed that:

"1. That the First Defendant was the occupier of the premises known as the Arthouse Hotel.

2. That the Second Defendant was the licensee of those premises.

3. That both Defendants carried on a business from those premises inter alia as hoteliers.

4. That the Plaintiff fell on the said premises.

6. That the Plaintiff suffered personal injury loss and damage by reason of the slip and fall."

The parties engaged experts to give evidence about the nature of the floor and whether it was slippery. In the end they were not called, the parties agreeing that:

"1. If the area of the floor where the Plaintiff stepped was clean and dry immediately prior to the Plaintiff's fall, the condition of the floor did not materially contribute to the Plaintiff's slip and fall.

2. If the area of the floor where the Plaintiff stepped was wet immediately prior to the Plaintiff's fall, the condition of the floor materially contributed to the Plaintiff's slip and fall."

While the parties had also engaged medical experts, only the lay witnesses were finally called.

The issues

The issues which finally lay between the parties were whether the floor was wet and had recently been mopped; what was said by those present and later, when Mr Kingi-Rihari and his then fiancé, Ms Daniela Morales, met with the general manager of the first defendant (to which I shall refer as the Hotel), Mr Ben McBeath; whether there had been any negligence or contributory negligence; whether the defendants' negligence caused Mr Kingi-Rihari's injuries; and if it had, his resulting damages.

Issues also emerged between the parties about the evidence which the Hotel had led. In the result, it seems to me that some caution needs to be exercised, when considering the evidence given by Mr McBeath and by the bar manager on duty on the night, Ms Jessica Grzic.

Ms Grzic gave her evidence orally. It emerged in cross-examination that she then had but little memory of what had occurred in 2010, but she had earlier made two statements, which were tendered. The first had been made in February 2011, after she was shown the CCTV footage and was provided with a copy of a statement Mr McBeath had made. Both were referred to in the statement. That was plainly an unsatisfactory way in which to take a statement from Ms Grzic. Refreshing her memory from what can be seen on the footage is one thing. Providing her with Mr McBeath's statement, quite another. She made another statement in August 2012, which differed to the 2011 statement in a number of important ways.

In cross-examination, Ms Grzic readily conceded the limits of her memory, given the lapse of time since the events of 2010. She also agreed that when she signed the 2012 statement in August, she no longer had much memory of the events. It also referred to the CCTV footage, but not to Mr McBeath's statement. She said that her memory was better in 2011 when she signed her first statement. In the February 2011 statement Ms Grzic referred to the CCTV footage and to Mr McBeath's 'replies', which she said she agreed with. What those 'replies' were, was not there revealed. Ms Grzic no doubt then had a better memory of what had occurred in 2010. That even the 2011 statement entirely reflected her own independent memory, however, seems somewhat questionable, when what the CCTV footage shows and what her statement contains, are considered.

Given the circumstances in which they were prepared, Ms Grzic's statements cannot be accepted as entirely reflecting her own recollection of the incident. If they were, her recollection was even in 2011 quite at odds with what the CCTV footage showed her doing immediately after Mr Kingi-Rihari fell, a matter which she did not deal with in either her 2010 report to Mr McBeath, or in either of her later statements. This is a matter I will need to return to.

Mr McBeath's statement, to which Ms Grzic referred, was not tendered when he gave his evidence. It was only during the course of the defendants' submissions, when the criticisms directed towards the preparation of Ms Grzic's statements were being addressed, that it was sought to be tendered. That was opposed and I declined to receive it. If it was to be relied on in the defendants' case, it plainly ought to have been tendered at a time when both Mr McBeath and Ms Grzic could have been cross examined on it. In the circumstances, it could not justly be received at that late stage of the proceedings.

There was also a dispute between the parties as to whether, unbeknownst to the plaintiff, Mr McBeath ought to have been present in Court, while Ms Grzic gave her evidence. That was a matter which the parties had not discussed beforehand, as it plainly ought to have been. In the result, Mr McBeath's evidence had to be considered in a context where he had heard Ms Grzic give her evidence. That required aspects of his evidence also to be approached with some caution.

Was the floor wet and had it recently been mopped when Mr Kingi-Rihari fell?

The amended statement of claim pleaded that the reason for the plaintiff's fall was that the floor in the bar area was wet and that it had recently been mopped or otherwise dealt with, but a considerable quantity of moisture had been left on it. The defence to the amended statement of claim denied this.

How the evidence is to be assessed

CCTV footage of the incident was in evidence and the witnesses taken to it. It commences just before Mr Kingi-Rihari and his two friends enter the bar and ends just after they leave. Mr McBeath's evidence was that he had also watched earlier footage from about 7pm, but he only kept the few minutes of the footage, which show the incident, even though what he had seen in the half hour beforehand supported the defendants' case. On his account, the earlier footage showed that there had been no spill or any cleaning up in the area where Mr Kingi-Rihari fell from 7pm onwards. Whether that evidence could be accepted was in issue.

On the defendants' approach, nevertheless, considerable weight has to be given to the CCTV footage it tendered, in order to reconcile the witnesses' accounts of what had happened. They relied on the observations of McClelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319, where his Honour said:

"Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as "misleading") within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but

not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a

conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible

details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."

In this case the evidence which two of the witnesses gave, Ms Grzic and Mr Alfred Aiono, particularly revealed the limits and fallibilities of human memory. They were both plainly trying to give their evidence in accordance with their oath, but it became apparent in Ms Grzic's case that she had little reliable memory of what had occurred and in Mr Aiono's case, that aspects of his memory were faulty, difficulties which they both readily conceded. The reliability of the memories of other witnesses must also be considered.

There were also questions of credibility, particularly in the case of the evidence given by Mr Kingi-Rihari, Ms Morales and Mr McBeath, as well as in his case, whether, unbeknownst to Mr Kingi-Rihari, he ought to have been present in Court while Ms Grzic gave her evidence.

The Hotel's cleaning practices

In order to understand what the CCTV footage shows, as well as other evidence which the witnesses gave, it is necessary to have regard to the Hotel's cleaning practices. The plaintiff's case was that if the defendants wished to conduct a busy bar in a room with a highly polished timber floor, which was slippery as soon as something was spilled on it, they had to have a high and vigorous system of inspection and cleaning. The defendants' case was that they had such a system operating successfully.

It was common ground that the highly polished floor of the bar was slippery when wet. The area where Mr Kingi-Rihari fell was immediately adjacent to the serving bar. It is a matter of common sense that this was an area of the bar where drinks might be spilt and have to be attended to. Ms Grzic's evidence was that all staff, including those serving at the bar, had to be on the lookout for such spills.

Spills could result from the actions of either customers or staff on duty in the bar, because bar staff had to clear away glasses, including some which had liquid still in them. A spillage posed risks to anyone who walked across this floor when it was wet. Their safety thus depended on the Hotel's cleaning system being quickly and adequately implemented, so that the floor was completely dried. That was what the system sought to ensure.

Both Mr McBeath and Ms Grzic gave evidence about how the floor was cleaned and spills dealt with. On the evidence that was a daily occurrence.

Mr McBeath described how the floor was stripped back and repolished every 6 to 12 months; buffed and polished weekly by a commercial cleaning contractor, who also cleaned every morning, while customers were not present; and how any liquid detected on the floor while customers were present, was dealt with by floor staff, the glassies, whose primary job was picking up glasses, cleaning down tables and monitoring the general cleanliness of the floor, dry mopping and wiping up spills with a cloth which they always carried with them.

There were five or more such staff on duty in the bar on Friday nights, all carrying 2 way radios to communicate. The system was that if a spill was noticed, a staff member was to stand there, radioing for help from a colleague, who would use a dry mop and/or a black towel to clean up. Plainly the effectiveness of so cleaning a spill on this floor depended on various things, including the dryness of the mop and cloth being used and how quickly the spill was detected and dealt with. Wet floor signs were available to warn customers, if the floor was not completely dried.

In cross-examination Mr McBeath did not accept that spills occurred frequently, but he said that how they were cleaned, depended on what was spilled and how big the spillage was. He agreed that if there was mopping, a sign should be put out, to warn that the floor had just been mopped. He said that if there was a spillage, tables and any area of the floor deemed wet were mopped with a mop, or a cloth. He agreed that if the floor was left streaky with water and no sign was left out, the cleaning job would not have been done properly. In re-examination he said that this was only the second slip and fall accident at the Hotel in the time he had been associated with it. The other had involved a DJ, who had been intoxicated.

Mr McBeath also agreed in cross-examination, that it had only been in the last few days that someone had suggested to him that the footage showed something which might be a glass standing on a nearby table, which tilted when Mr Kingi-Rihari fell. He said that once it was pointed out to him, he was able to make his own observations about what could be seen there. The implication was that he considered that the object fell and liquid fell onto the floor, an explanation which the defendants then advanced in their case. What Ms Grzic is shown to do on the footage, does not however support that view and this possibility was not one addressed in her evidence.

In her 2011 and 2012 statements, Ms Grzic also gave an account of the Hotel's cleaning system. In her 2011 statement she said, for example:

"Staff attending to removal of a spillage will ensure before they leave an area, the floor is completely dry. We do not leave wet or damp areas of timber floor, after removal of a spillage, for very obvious safety reasons".

Ms Grzic 's evidence in chief suggested that spills were, however, not always observed, before customers came into contact with them. She explained that:

"Q. Were you given instructions by your employer as to systems for cleaning floors in the hotel?

A. Yes, we did have systems.

Q. What instructions were you given?

A We all wore radios. So, if anyone stumbled upon a spill, you would radio for someone else to come, to clean it up for you."

On Ms Grzic's evidence it was the glassies who were on the floor who had the principal role in mopping up spills, using a dry mop and the black towels which all staff carried with them, to dry up anything which spilled. There were also signs available to warn of a wet floor. In cross-examination, Ms Grzic said that staff would always leave a sign if the floor was not quite dry and even if it was completely dry, as a matter of caution. The latter evidence seemed rather implausible and was clearly not adhered to where Mr Kingi-Rihari fell.

It seems much more likely on all the evidence, that a wet floor sign would be put out, to warn customers of a hazard before a spill was cleaned up, or if all the moisture on the floor was not able to be completely mopped or wiped up. That was plainly a possibility, if the mop used to dry up a spill or the cloth used to wipe it up, were not dry enough to perform the task required, so that all moisture was dried up. That is consistent with the instructions which Mr McBeath later gave to staff after Mr Kingi-Rihari's fall, which he explained in cross-examination he had issued, 'like reminding children to brush their teeth'. Then he advised staff by email:

"Hi All,

Over the past 2 weeks we have had the first couple of cases of slipping and personal injury as a result of alleged wet surfaces. We must follow all the correct procedures to clean up the spill or damp area. There are also wet floor signs available to be placed in the place of the hazard. Someone should be standing there and not move from the spot to guide patrons around the potential hazard until it is cleared up. Spills and wet floors are considered an occupational health and safety issue and one that we are more prone to than any other industry. Therefore I urge you all to be extra vigilant and aware of the surroundings and make sure these are eliminated immediately if not avoided all together.

PLEASE FOLLOW THE FOLLOWING PROCEDURES:

Please use the signs.

Please immediately radio for assistance.

Do not leave the hazard ad guide patrons away from the hazard.

Remove the hazard by wiping it up with a mop and then further by a dry rag.

Leave the wet floor sign in place until it is completely evaporated.

Thanks all for your assistance."

It was common ground that there was no sign out in the area where Mr Kingi-Rihari fell, warning that the floor was wet.

What the CCTV footage shows

The CCTV footage shows clearly what occurred to Mr Kingi-Rihari, but it does not capture what was said. Nor does it reveal whether the floor was wet, or had recently been mopped. The highly polished floor boards reflect the lights in the bar in such a way, that it is not possible to tell from the footage, whether or not the floor was completely dry.

The CCTV footage clearly shows Mr Kingi-Rihari suddenly slipping on something on the floor, immediately after turning away from his friends, who were standing at the bar. He then lost his balance and fell heavily onto his back, twisting his right leg as he fell.

It also shows that immediately before the fall, Mr Kingi-Rihari had already walked across the floor in that vicinity beforehand, as had his two friends Mr Aiono and Mr Talitiga Iafeta. Mr Kingi-Rihari first crossed the floor when he walked to the bar, following his friends into the room; he walked across the floor the second time, after he turned and walked away from them; the third time, when he turned back and returned to his friends. It was when he turned away from his friends for the second time, that he suddenly slipped on something and fell.

The footage also shows that as Mr Kingi-Rihari turns back to his friends, he stepped on something white on the floor, which moves and then Ms Grzic crouching down to pick it up and turning away. She had her back to Mr Kingi-Rihari when he fell and then turned and went to him, where he is lying on his back, with his friends around him, trying to assist him. The evidence is that what they were doing was putting his dislocated kneecap back into place, in order that he could get up.

Given the way in which Mr Kingi-Rihari can be seen to slip and fall, it is apparent that he must have stepped and slipped on something else on the floor, which he had not stepped on beforehand. His account was that what he slipped on was liquid, which he could see had not been properly mopped up. He was then helped up and out of the bar and Ms Grzic crouches down and wipes the floor.

The floor was not wet as the result of Mr Kingi-Rihari knocking a glass containing liquid off a table

The footage shows that as Mr Kingi-Rihari fell, his foot struck the leg of a nearby round table, on which something was standing. What it was, is not clear. It was conceded for Mr Kingi-Rihari that the object might be a glass, which may have had some liquid in it. That it is a glass, cannot be clearly identified from the footage. The object can be seen moving across the table and back as the table moves back and forward. That the object falls over and liquid then spills to the floor, a theory which the defendants advanced, cannot be seen from the footage.

This object, as far as I can see, does not appear to fall, or roll, it slides. Given Mr Christopher Kian's evidence, it would appear to be most unlikely that it was a glass which fell and spilled liquid onto the tables and the floor. Mr Kian was the security supervisor who Ms Grzic called to provide assistance. He can be seen arriving, just before Mr Kingi-Rihari is helped to his feet. Mr Kian's evidence was that he saw no liquid on the floor. It was not his evidence that the object on the table had tipped and fallen and spilled liquid to the floor. That would have been inconsistent with his memory that the floor he could see was dry. He was standing right next to the table and in fact moved, to put a chair next to it and was thus in a position to have seen if liquid was dripping to the floor from the table.

Even if the object had fallen and liquid then spilled onto the floor, as the defendants conjectured, that would not account for whatever Mr Kingi-Rihari had earlier slipped on.

It is apparent from the footage that Mr Kingi-Rihari injured himself when he fell. He could not get to his feet and eventually had to be helped up. As he stood, Mr Kingi-Rihari rested his hand on the table momentarily and again, the object on the table can be seen to move, as the table tilts forward and back. Again, it is not clear from the footage that the object then fell or that liquid spilled out of it. Mr Kian explained in his evidence that when he attended, in accordance with his training, he glanced at the floor and did not notice that it was wet, but he could not see the entire floor, given where he was standing in front of Mr Kingi-Rihari.

The area which Mr Kian could see, is the area next to the table. The area where Mr Kingi-Rihari slipped, appears to be behind him. When Mr Kian arrives Mr Kingi-Rihari is on the ground, surrounded by his two friends and Ms Grzic, who are all endeavouring to help him. Mr Kian also comes to his aid and eventually he gets up and is taken out, then moving largely unaided.

After Mr Kian left with Mr Kingi-Rihari and his friends, Ms Grzic can be seen to crouch down to wipe the floor in the area where Mr Kingi-Rihari fell, with the cloth which she explained in her evidence that staff had with them at all times, for the purpose of wiping up spills. On the evidence, none of the others could see her from the area they went to, in the foyer. What Ms Grzic did not do at this point is pertinent. She did not wipe anything on the table, nor did she touch the object on the table, which she plainly would have done, if the object was a glass which had tipped over, spilling liquid which dripped onto the floor. Her evidence did not suggest that anything had spilled from the table onto the floor.

It thus seems both from the footage and the other evidence, that it is quite unlikely that the object on the table fell and spilled liquid onto the floor when the table tilted the second time, and that this was what Ms Grzic was attending to clean up. It is much more likely that she was wiping the inadequately mopped up floor, which the other witness described.

Mr Kingi-Rihari did not slip as the result of the things which Mr Kingi-Rihari was wearing, or because of an old knee injury

It is convenient, at this stage to deal with another aspect of the defendants' case, that Mr Kingi-Rihari's fall could have been caused by the thongs which he was wearing, or by his prior knee injury. Neither of these explanations accounts for what can be seen on the CCTV footage. Nor do they accord with various other evidence.

The Hotel had a dress code. Mr Kingi-Rihari was asked about a sign at the door, which he said he had not seen. Whatever the dress code was, if it was not safe to wear thongs in this bar, given the nature of its highly polished floor, where there were frequent spills which it was common ground made the floor slippery, no doubt the Hotel would have precluded customers wearing thongs from entering. That was not its practice. On 19 February 2010, at the time that Mr Kingi-Rihari and his friends went to the Hotel, there were two security guards at the door and Mr Kian on duty. They were wearing thongs and were not denied entry.

The CCTV footage shows that they all walked across the floor without incident, until Mr Kingi-Rihari turned away from his friends the second time and slipped on something on the floor, which he stepped on to. That footage does not sensibly leave open the conclusion that it was the thongs which Mr Kingi-Rihari was wearing, which caused him to slip and fall. That appears to have been caused by whatever he stepped onto on the floor.

Nor does the footage show that it was Mr Kingi-Rihari's prior knee injury, which caused that fall. The other evidence as to this was that in 1999 or 2000, he had sustained a minor dislocation of his knee while playing rugby league at school. He did not tear any ligaments. It was treated with physio and ultrasound and he recovered, finishing the season and then playing in the off season, without experiencing further difficulty. He then moved to Australia where he worked initially at a meat processing facility and then as a storeman, before taking up work in the construction industry, where he engaged in heavy physical work. He eventually took up scaffolding work. He later injured his knee again, when he slipped on some silicon at work. He saw a GP and recovered from that injury in a couple of days, without needing time off work.

In 2009, he again hurt his knee while playing Oztag, which was treated with exercise. Again, he recovered and continued performing various physically taxing work as a scaffolder, without any further problem with his knee.

On the evidence Mr Kingi-Rihari was a very fit, strong and agile man, who was able to perform physically demanding scaffolding work without difficulty. He had worked on such a job that very day, on a nearby building site. His work involved extensive climbing, working at height, and carrying heavy loads. He had no history of his knee causing him any problem performing that work.

Neither the footage, nor the other evidence leaves open the conclusion that it was any pre-existing knee problem, which caused him to fall at the Hotel as he did. The footage and other evidence suggest that Mr Kingi-Rihari was embarrassed by his fall and anxious to get up and leave, without assistance. There was evidence of some discussion about his earlier football injury that night. It appears that it was Mr Kingi-Rihari who mentioned this to Ms Grzic in response to an enquiry which she made, rather than his friends. They did not know about his injury beforehand. The evidence simply does not permit the conclusion that it was his prior knee injury, which caused him to fall as he did.

The records of the incident kept by the Hotel

Consistently with what the CCTV footage shows Ms Grzic doing, the written records which the Hotel kept of the incident all state that Mr Kingi-Rihari's fall was caused when he slipped on the wet floor of the bar.

The CCTV footage of what had happened in the bar before the fall, which Mr McBeath remembered looking at before he met with Mr Kingi-Rihari and Ms Morales, was not retained. I was invited to conclude that the evidence left open the inference that the earlier part of the footage had been deliberately destroyed, because it did not support the defendants' case. It will be necessary to come to a conclusion about this, which I will deal with later.

There was no record kept by the Hotel of what was said by anyone, when Mr Kingi-Rihari fell. Nor was any contemporaneous account kept of the incident, even though the Hotel had paid for him to be taken to hospital by taxi. Mr McBeath was not at work that night. It was apparently not until 22 February, when the Hotel's guest relations manager notified Mr McBeath, that there had been an approach about Mr Kingi-Rihari's fall, that he learned of the incident and steps were taken to investigate.

Mr McBeath's evidence was that he then notified the insurance broker, who advised him to get all the information he could possibly gather about the incident. That did not occur.

Mr McBeath obtained a claim form and then met with Mr Kingi-Rihari and Ms Morales on 23 February, after he looked at the CCTV footage of the fall. Ms Morales is plainly an articulate, forceful person who became concerned about Mr McBeath's approach to the interview. She was working as a Business Improvement Manager. Mr Kingi-Rihari appears to have played a lesser role in the disagreement over what Mr McBeath was writing. There are discrepancies between the accounts which they and Mr McBeath gave as to what happened at their meeting. For reasons which will become apparent, in the case of conflict I am satisfied that Mr McBeath's evidence may not be preferred.

Mr McBeath asked Mr Kingi-Rihari to give him a handwritten account of the incident and Mr McBeath filled out a report for the insurer, while with Mr Kingi-Rihari and Ms Morales. It was common ground that there was a dispute between them as to how he was completing that form, but not as to the subject of the dispute. The documents prepared that day shed some light on this. They all refer to the floor being wet.

Mr Kingi-Rihari's handwritten account said:

"Entered the Arthouse Hotel at around 7.30pm, Friday 19th of Feb.

Walked to bar, turned to go to the toilet and slipped on the wet floor.

Landed on my back and dislocated my right patella.

Patella put back in place immediately by my friend, Alfred Aiono.

Noticed large area of the floor was wet.

Given ice and cab fare for trip to hospital by bar Manager.

Went to St Vincents Hospital."

Mr McBeath first completed the insurance form. He also later completed a report under the Hotel's occupational, health and safety system, one devised by the Australian Hotels' Association. None of the documents refer to the floor not being properly mopped or to mop marks, but contrary to the case advanced for the defendants, in cross-examination, Mr McBeath agreed that Mr Kingi-Rihari told him about the mop marks he had seen on the floor. There is no doubt that he was aware of this, but did not refer to it in either of his reports.

What Mr McBeath recorded in the insurance report prepared on 23 February, as to Mr Kingi-Rihari's account was:

"Entered the bar then went to go to the bathroom and slipped on the wet floor and landed on my back and dislocated my knee."

Mr Kingi-Rihari's evidence was that when they first began speaking he told Mr McBeath that he had slipped on the wet floor. After the initial conversation, when Mr McBeath was writing down what he was saying, Mr McBeath wrote that he had slipped on the floor, but did not include in what he wrote the word 'wet'. It was Ms Morales who then said to Mr McBeath, "he said the wet floor. You need to put that in there". Eventually Mr McBeath inserted that word and ticked a box that said 'beverage spill'. This evidence is consistent with the document, which makes it clear that the word 'wet' was later inserted. Ms Morales then said 'he didn't say a spilt drink' and asked Mr McBeath to tick the wet floor slippery surface box, which Mr McBeath did. It was Mr McBeath who mentioned the CCTV to them. Ms Morales asked for a copy. When Mr Kingi-Rihari wrote his report, Mr McBeath told him not to put in that the floor had been mopped, because it was a drink spillage and that the CCTV footage would show everything.

Mr Kingi-Rihari was not cross-examined about this account. It was corroborated by Ms Morales' evidence, as well as by aspects of Mr McBeath's evidence and by the documents which he and Mr McBeath wrote. Mr McBeath denied, however that Mr Kingi-Rihari initially told him that the floor was wet.

It was Ms Morales' evidence that Mr McBeath was writing down on the form what Mr Kingi-Rihari was telling him. She could see what he was writing. As soon as Mr Kingi-Rihari said 'I slipped on the wet floor', she noticed that Mr McBeath left out the word 'wet'. She interjected and said:

"Excuse me, Travis said he slipped on the wet floor. Why did you leave that out"

He replied:

"Oh it doesn't matter what I write, its fine"

Mr McBeath tried to continue, but Ms Morales argued with him. She thought it strange that he left out that word and said:

"Could you please put it back in. ... If you are taking down Travis' word for word why are you leaving that word out"

He replied:

"It doesn't matter if I leave it out or not. It doesn't matter what goes down here, there are cameras everywhere. We have CCTV footage and it will show."

They then discussed the CCTV footage and after further intense argument on her part, he put in an arrow and inserted the word 'wet' in the sentence. The document accords with this account. Mr McBeath then ticked a box which said 'beverage slip or drink spill'. That had not been discussed and Ms Morales asked Mr McBeath why he had ticked that box. He said:

"Well the floor was wet. 99 per cent of the time if the floor's wet, it is because of a drink spill."

Ms Morales replied:

"You don't know that, because Travis said that the floor was mopped. Why are you ticking that box?"

She and Mr McBeath argued further, he mentioned the CCTV footage again, she insisting that the form should reflect exactly what Mr Kingi-Rihari was saying. Mr McBeath then ticked another box, 'slippery floor'. She asked him to cross out the drink spill.

In cross-examination, Ms Morales said that it was not she who was telling Mr McBeath that the floor was wet. Her argument was that Mr McBeath needed to write down what Mr Kingi-Rihari was saying and not change it. She only argued with him, when he changed what Mr Kingi-Rihari was saying to him. She said that she argued and persisted with what she was telling Mr McBeath, because she thought what he was doing was a bit sneaky or dodgy, resisting writing down that the floor was wet. On her account he was not arguing that the floor was not wet, he was arguing that there was a drink spill and she was saying no to that, telling him he was not there, he didn't see it and couldn't prove it and that was not what Mr Kingi-Rihari had said. She wanted to know why he was writing drink spill, not mopped floor.

What was not suggested to Ms Morales and Mr Kingi-Rihari in their cross-examination was that Mr McBeath had told them that he had reviewed the CCTV footage from about 7pm and that it did not show any beverage spill or mopping. It was their evidence that it was he who had mentioned a spilt drink. That was in circumstances where, unbeknownst to them, he had already watched the footage. It was not until cross-examination that Mr McBeath said that he did mention to them that he had looked at the footage. He did not give that evidence in chief. When asked whether he had just remembered that, he said 'No I have held that position forever". In the circumstances, that evidence was difficult to credit, as were other aspects of his evidence.

It was Mr McBeath's evidence in chief that as he filled out the insurance form, Mr Kingi-Rihari did not initially mention that the floor was wet and that it was Ms Morales who asked him to write in the word 'wet'. He declined, saying that was not what Mr Kingi-Rihari had said. That was what they had a heated conversation about. He said that he ticked the beverage and floor slippery surface boxes of the form, because that was what Mr Kingi-Rihari was claiming. That was also not put to them in cross-examination.

Mr McBeath said that before he met with them, he had looked at the footage by himself, looking for disturbance in the room. He did not see anyone mopping or wiping the floor. Before he met with Mr Kingi-Rihari and Ms Morales, it had not been suggested to him that the floor had been improperly mopped or dried. Mr McBeath did not give evidence that he ever told Mr Kingi-Rihari or Ms Morales that the footage showed that the floor had not been mopped. That was clearly an obvious thing for him to have told them, if there was, as was his evidence, a heated argument about whether Mr Kingi-Rihari was claiming that the floor was wet.

In cross-examination, Mr McBeath could not recall the word 'beverage' being used in the discussion and explained that he had ticked that box, because 'it could have possibly been mentioned or at least was a likely suggestion'. His earlier evidence that he knew, from looking at the footage that there had been no spilled beverage, was somewhat contradictory. That he had not preserved the footage which could establish this, he said was an obvious and glaring failure on his part. It is quite inexplicable, given that it was being said to him that the floor appeared to have been recently mopped and a spilled drink was the likely reason for there having been any need to mop, as he explained in his evidence at a time when he knew there had been no spill in the preceding half hour. In the circumstances, his explanation for not retaining the footage, 'hindsight is a wonderful thing' was difficult to credit, notwithstanding that he was a hotel manager, not a lawyer as the defendants argued in submissions.

Mr McBeath also agreed that in filling out the second OHS form, he had not included any description of the incident from the Hotel's perspective, or that of an independent witness, which disputed Mr Kingi-Rihari's account, as the form permitted. He said that he did not then have information from Ms Grzic. He agreed that there was an obligation to complete the form and that it was he who had done so, reflecting an account consistent with that given by Mr Kingi-Rihari. He agreed that he never later went back to that form, to insert any suggestion that the floor was not wet and had not been mopped and no beverage spilt.

Mr McBeath also agreed that he never made any record of Ms Grzic later telling him that the floor was dry. The OHS form provided for a description of the incident to be provided by the insured, or by an independent witness. He did not complete that part of the form, with the result that the reports which the Hotel maintained in its records, make no reference to the understanding Mr McBeath claimed in his evidence that he later obtained, when he spoke to Ms Grzic, that the floor was not wet. Nor does this report or any other document kept by the Hotel refer to what Mr McBeath said he had himself learned from watching the CCTV footage of the half hour before the fall, that no spilled drink had been dealt with.

In the OHS report, Mr McBeath twice referred to the wet floor. Once in the part of the form where the sequence of events which led to the incident was reconstructed. The second time in the part of the form where the immediate causal factors and the deviation from accepted standards or practices were to be identified. There Mr McBeath recorded:

"Standing & turned to go to the toilet and fell backwards on his back & noticed his knee was dislocated.

There was a wet floor & as Travis turned he slipped on the floor."

The form also provided for corrective/preventative action to be identified and for managers' comments to be provided. This part of the form is also blank, even though on Mr McBeath's evidence, while Ms Grzic did not report to him in writing that the floor was not wet, that was what she told him when they spoke. The Hotel kept no record of Ms Grzic having given Mr McBeath such advice and she did not refer to having given Mr McBeath such advice in her reports or later statements. If such advice had been given, it would have been advice inconsistent with what Ms Grzic was observed doing on the CCTV footage. It was not advice which was ever recorded, either in the OHS form, or elsewhere.

In cross-examination, Mr McBeath also agreed that he told Mr Kingi-Rihari and Ms Morales that the CCTV footage was available, and that when Mr Kingi-Rihari mentioned mopping, he said 'This is not something you should speculate about when you have only just entered the building.' When then pressed as to whether he had mentioned to Mr Kingi-Rihari and Ms Morales having watched the footage, he said for the first time "I had never told them I had watched the film but I told them there was no mopping and no spillage." That, however, was not put to them in cross-examination.

Mr McBeath was also cross-examined on a statement which had been served on the Friday prior to the hearing. He agreed that it made no reference to him telling Mr Kingi-Rihari and Ms Morales this, but denied having deliberately omitted it. He also denied that the real position was that he had not watched the footage, or that it had supported Mr Kingi-Rihari's account. He agreed that he later refused to provide him with a copy of the footage. He explained that he had not kept the earlier part of the footage, because he could not see its relevance.

Regrettably this evidence seemed quite implausible. Mr McBeath's conduct is explicable if he decided not to keep the footage, because it did not assist the Hotel's case. That, however, is not consistent with him having kept the part of the footage which shows Ms Grzic wiping the floor after Mr Kingi-Rihari's fall.

It seems to me that not keeping this part of the tape could also be explained by an understanding, at the time, that Mr Kingi-Rihari slipped and fell because the floor was wet. That was not Mr McBeath's recollection, but it is an understanding which is consistent not only with the various contemporaneous documents which he created and the Hotel maintained, but also with what the footage shows Ms Grzic doing, after Mr Kingi-Rihari's fall. As was submitted for the defendants, in this case considerable weight must be given to the contemporaneous documents which were created. It is not necessary to conclude that Mr McBeath was not truthful in the evidence which he gave. That his memory was affected in the way discussed in Watson v Foxman is also a real possibility, which should not be ignored.

It is relevant that Ms Grzic could not herself remember ever being asked whether the floor was wet or dry when Mr Kingi-Rihari fell, but assumed that she was asked, after the incident. Inconsistently with this assumption, the state of the floor was not something which she mentioned in the report she made by email to Mr McBeath on 25 February. By this time, on her evidence in cross-examination, she was aware that Mr Kingi-Rihari was claiming that the floor was wet. Consistently with she having wiped the wet floor after his fall, that was not something which she denied in her report. Her report simply said:

"At aprox 7.30 Friday night a man slipped in front of the verge bar I immediately radioed security for help, during this time one of his two friends was smacking his knee(as it looked to have dislocated) back into place. His friend helped him to a seat in the foyer We (Chris and I) immediately asked him if he would like a ambulance to which he refused. We then got ice for his knee and asked if there was anything else we could do, After some discussion the men then decided that they wanted to go to a medical center and we offered the cab fare. Chris went and got a cab directly outside the venue. I gave him my card and he gave me his name Travis, with a contact number."

Ms Grzic also said that if the floor had been wet, she would have mentioned it in her report. This evidence is difficult to accept. It seems much more likely that if she had seen that the floor was dry, when she made her report in response to Mr McBeath's request, knowing that Mr Kingi-Rihari was wrongly claiming that he had fallen because the floor was wet, that she would have said in her written report that it was dry and had not caused the fall.

Also to be considered is that neither in that report, nor in either of the statements which Ms Grzic later made in February 2011 or August 2012, did she refer to having wiped the floor after Mr Kingi-Rihari left the bar, even though she had looked at the CCTV footage. Nor did she refer to having ever told Mr McBeath that the floor was dry. In both those later statements, she was, however, adamant that the floor was dry.

By way of contrast, having looked at the CCTV footage during her evidence in chief, Ms Grzic said that it seemed unlikely that she would not have noticed that the floor was wet, because she looked at it when she picked something up off the floor, immediately before Mr Kingi-Rihari fell. These events happened within seconds of each other. Wiping the floor was consistent with having looked at the floor immediately before he fell and seen that it was wet, but not having had a chance to attend to it, before Mr Kingi-Rihari fell and then having been told by him and his friends that it was wet. She wiped the floor with her cloth, immediately after Mr Kingi-Rihari was helped away. What she then did is entirely consistent with the floor being wet and she attending to it, as the Hotel's cleaning system required her to do.

None of the other witnesses saw Ms Grzic wiping the floor after Mr Kingi-Rihari left. She was the only one who remained behind and could then clearly see the state of the floor. Ms Grzic agreed that from the footage, it looked like she was then cleaning up a spillage. There is no contemporaneous document which suggests otherwise. All of the records of the incident which the Hotel maintained indicate that it was wet. They were all consistent with the evidence which Mr Kingi-Rihari and his friends gave, that the floor was wet, having not been properly mopped dry.

The evidence of Mr Kingi-Rihari and his friends

While none of the witnesses' memories of what had occurred in 2010 was perfect, I am satisfied that Mr Kingi-Rihari, Mr Aiono and Mr Iafeta all gave their evidence honestly, to the best of their recollections. That they each had some memory of what occurred, albeit not a perfect one, is understandable. Mr Kingi-Rihari was then in considerable pain and his friends and others who responded, all moved quickly to assist him, including by Mr Aiono putting his dislocated knee back into place, so that he could get to his feet. They then took him to hospital. Like Ms Grzic and Mr Kian, everyone's main focus at the time was plainly on Mr Kingi-Rihari.

They were each shown the CCTV footage and each made appropriate concessions as to the limits of their memories, given what it showed. They all insisted, however, that they remembered that the floor was wet and that was what they told Ms Grzic at the time.

It was Mr Aiono who saw the fall. Mr Iafeta had his back turned, as did Ms Grzic, who was nearby. They and Mr Kian all had an opportunity to see the state of the floor and Mr Kingi-Rihari to see and to feel it. It was Ms Grzic who had the best opportunity to see it, having crouched down both before and after the fall.

Mr Kingi-Rihari's evidence was consistent with what is depicted in the CCTV footage. He explained that he decided to go to the bathroom shortly after they arrived at the Hotel. That was why he initially turned away from his friends. He turned back in order to tell them where he was going and it was when he turned away again, that he felt his feet slip from under him. He tried to keep his balance, but felt his knee pop and landed heavily on his back.

Mr Kingi-Rihari did not notice that the floor was wet until he fell, when he felt that the back of his T-shirt was wet and he could see swirling mop marks on the floor, one to two metres around him. Ms Grzic and Mr Kian came to help. He heard one of his friends say to Ms Grzic:

"Look at the floor its just been mopped, where is your fucking signs'.

He heard her reply 'I'm sorry, I'm so sorry' several times.

Mr Kingi-Rihari understood Ms Grzic to have been apologising for the floor having been mopped and him having slipped on it, although he accepted in cross-examination that what she said could have been interpreted differently, namely simply being sorry that he had hurt himself.

Mr Kingi-Rihari's kneecap was dislocated and Mr Aiono put it back in place. It was swollen. He was helped up and given ice while a taxi was called. He was given $50 cash for the fare and taken to St Vincent's Hospital where his knee was x-rayed and placed in a splint.

In cross-examination, Mr Kingi-Rihari was shown the CCTV footage and asked about what could be observed, including when the table tilted when he fell and again when he got up. He agreed that the object moved when the table tilted, but denied that if there was any water on the floor, it was only because he knocked the table, which had a drink on it, causing the liquid to spill on the floor after he fell. He also denied that he was confused. His account was that he slipped on water on the floor straight away. He said he knew what it felt like to slip on something slippery and that he had slipped on something that was wet, even though he agreed that he had walked over the area before, without slipping.

Mr Kingi-Rihari was asked if he had heard one of his friends tell Mr Kian 'Don't worry, its just an old football injury.' Mr Kingi-Rihari said that it was Ms Grzic who asked him 'Is that an old injury" to which he replied 'Oh I hurt it playing league, but ...'. It was then that Mr Iafeta interrupted and told her that the floor was wet.

Mr Kingi-Rihari said that this dislocation was much worse than his football injury. He agreed that he was then in extreme pain, but said that he was more embarrassed than shocked and that was why he was telling Mr Aiono to put his knee back in.

Mr Aiono had met Mr Kingi-Rihari in 2009. He was also a scaffolder. He gave a similar account to that of Mr Kingi-Rihari as to how he and his friends had met and when they went to the Hotel. When they arrived at the bar, Mr Kingi-Rihari told them he was going to the toilet and then out of the corner of his eye, he saw him leave and then fall over heavily, ending up lying on his back. He said that he tried to help Mr Kingi-Rihari up, but he could not bend his right leg. He put his kneecap back, so that he could straighten his leg and get up. Mr Aiono said he had spoken to Ms Grzic and told her 'The floor is wet. The floor has been mopped and that's what he slipped on'. He could see long thin streaks on the floor, not a puddle of water. He also told Ms Grzic that there were no signs for the wet floor, to which she responded, 'I'm sorry. I'm sorry about that'.

Mr Aiono also remembered Ms Grzic asking 'Is that an old injury? Were you guys mucking around? They were not. He did not know about Mr Kingi-Rihari's football injury until afterwards.

Mr Aiono's cross-examination showed the fallibility of his memory. He said that he had noticed the wet floor when they first went in. It was a circular shape of about 2 metres. He agreed that in his statement he had said that he had walked around it, because he thought he might slip if he walked through it. He agreed that was his memory, when he made that statement. In his oral evidence he agreed that he had said nothing about the wet floor to his friends at the time.

Mr Aiono was also shown the footage in cross-examination. He agreed that it showed that he had walked through that area, not around it. Using a computer pointer, he was asked to identify the area he remembered being wet. He did this with some difficulty, identifying three somewhat different areas, before settling on the precise area where he remembered the wet area being located. He agreed that he had given three differing descriptions of that location and that the footage showed him walking through, rather than around that area, about which he said:

"I assessed that it was safe enough to walk through. Wet floor in the pub is not normal - just normal, sorry."

Mr Aiono also agreed that the footage was different to his memory of what had occurred, at the time that he had made his statement, as it plainly was. He agreed that he had not stopped and assessed the state of the floor, but still he insisted that he knew that it was wet. He also said that Mr Kingi-Rihari's t-shirt was wet when he got up. He agreed that was the conclusion he had drawn, from him falling to his back on the wet floor. He agreed that Ms Grzic could have seen the state of the floor when she bent down to pick something up from the floor. He also agreed that Mr Kingi-Rihari pushed away the help he was being offered to walk out, but he could not remember saying 'It's his ego, he doesn't need to be carried out'. He could remember Mr Kingi-Rihari saying 'I'm all right, I can walk out myself'. Mr Aiono said that he had not known beforehand that Mr Kingi-Rihari had dislocated his knee playing football some years earlier and could not remember it being said that 'it's an old football injury.' He insisted that the area was wet and that Ms Grzic had said sorry.

While the defendants submitted that Mr Aiono was an unreliable witness whose evidence should not be accepted, I am of the view that his evidence was honestly given. He was careful to identify the area he remembered being wet precisely, undertaking the unfamiliar task of using a computer pointer and large screen, at a time when his memory of the details of what had happened had plainly deteriorated. His recollection that the floor was wet and that that was what he told Ms Grzic is however, consistent not only with the evidence of Mr Kingi-Rihari and Mr Iafeta, but with what Ms Grzic can be seen to be doing on the CCTV footage, which she agreed looked like she was wiping the wet floor. There is, in the circumstances, no reason to doubt this aspect of his evidence.

Mr Iafeta had met Mr Kingi-Rihari in 2004. He, too, was a scaffolder. He heard Mr Kingi-Rihari yell out, shortly after he said he was going to the bathroom. When he turned he saw him lying on his back and that the floor around him was wet. When Ms Grzic approached, he told her it was wet. She said 'I'm sorry' and that they should take him to hospital and they would pay for everything.

In cross-examination, Mr Iafeta said that both he and Mr Aiono told Ms Grzic that the floor was wet and they both said that the floor had been mopped. They could see it. She said sorry and that while at reception they all told Mr Kian that the floor was wet. There is no reason to reject that evidence.

The evidence of Ms Grzic and Mr Kian

The Hotel does not appear to have ever made any enquiry of the glassies on duty on the night, as to whether they had attended to any spillage in the bar before Mr Kingi-Rihari fell, as one might expect would have been done, if, at the time, there was a real dispute about whether the floor was wet and had recently been mopped. Keeping CCTV footage which showed that there had been no spill or mopping before Mr Kingi-Rihari fell, was the other obvious thing which the Hotel would do, if there was at the time, any real question about the state of the floor. Mr McBeath's explanations of what he did by way of investigation and reporting, was less than convincing. It is in that context that the evidence given by Ms Grzic and Mr Kian must be considered.

Ms Grzic was shown the CCTV footage during her evidence in chief. Her evidence then was that when she picked something off the floor, she looked straight down and so, if the floor was wet, she would have noticed. She could not remember walking across that part of the floor, before she picked this up. She could not explain why, after Mr Kingi-Rihari left the bar, she could be seen kneeling down, wiping the floor. Her evidence was:

"I don't actually remember why. Maybe something was spilt or was worried because someone would fall over. Maybe I was being cautious"

Ms Grzic explained that the time that Mr Kingi-Rihari fell was a busy time at the Hotel, with customers there drinking on a Friday night after work. She could not remember anyone cleaning anything up that night before he fell, nor hearing a report over the radio about a spill. She did remember that she heard a couple of days later, that Mr Kingi-Rihari was alleging that the floor had been wet. She could also not remember saying to him 'I'm sorry. I'm very sorry', but she said she would have been sorry, if someone had injured themselves, but she was not sorry for anything which she or her staff had done.

In her 2011 statement Ms Grzic said that it was a typical Friday night, with the Hotel well patronised; that no one had complained about cleanliness; and that she did not recall a spillage. She had walked through the bar and was satisfied with its general level of cleanliness. She referred to having bent down to pick up what she then described to be a small scrap of paper and said that:

"Apart from that small scrap of paper, the floor was clean, dry and tidy, free of any spillages or wet sections. I am adamant if there had been any problems with the state of the floor I would have attended to it.

...

Although I did not make a detailed inspection of the timber floor when the fall occurred, I did not observe or detect any wet or damp areas of timber floor. My primary concern was to attend to the injured patron and to ensure the proper medical treatment was organised.

The floor was as I had left it seconds earlier, clean, dry and tidy. There was no fault with the cleanliness or maintenance of the floor."

By reference to the CCTV footage, Ms Grzic said:

"The area of fall was the same section of the bar where six seconds earlier I had picked up the scrap of white paper. The footage also confirmed the injured man had only arrived at the bar with two companions at 7.31.48hrs.

...

The Writ alleges the Plaintiff accident was caused by a wet floor which had been recently mopped, but with a considerable quantity of moisture still left on the surface.

This allegation has no merit, accuracy or truth. I am adamant when picking up the scrap of paper from the floor, if there had been any wet or damp sections of floor I would have attended to this issue. The floor was clean, dry and tidy."

This account is difficult to credit, given that on the CCTV footage Ms Grzic can also be seen on her knees wiping the floor after Mr Kingi-Rihari left the bar, something she does not refer to in the statement. Her own account of what she can be seen doing there, given in her evidence in chief at the hearing, is much more plausible than what she said in her February 2011 statement. This statement, it must be remembered, was made at a time when she was provided not only with the CCTV footage, but also Mr McBeath's statement.

The August 2012 statement, which was served on Mr Kingi-Rihari, suffers from similar difficulties. There she gave a similar account, but the concession 'I did not make a detailed inspection of the timber floor when the fall occurred' does not appear. Ms Grzic said in cross-examination that her memory of the 2010 events was better in 2011 than 2012. In those circumstances, the removal of this concession from the statement served in 2012 is difficult to understand, as is the removal of the disclosure that the 2011 statement was made in a context where Ms Grzic had been provided with Mr McBeath's statement and agreed with things which he had there said.

The 2012 statement also does not deal with what Ms Grzic can be seen doing on her knees, wiping the floor. Contrary to her statements and the case advanced for the defendants, as was Ms Grzic's oral evidence, that, does suggest that the floor was wet and that in accordance with the Hotel's system, she dried it with the cloth which she carried with her at all times, for that very purpose.

Ms Grzic was asked in cross-examination why she had not dealt with this aspect of the footage in her statements. She could not remember. Nor could she remember earlier being shown that part of the footage. She agreed that her actions almost inevitably meant that there was something on the floor which she was wiping up, she would not just have been polishing the dry floor.

Mr Kian's evidence in chief was that he was the security supervisor on duty on the night, with two other security officers. He first told an investigator about his memory of what had occurred, in February 2011. He gave no evidence of ever having been spoken to by Mr McBeath or having told him that the floor was dry.

Mr Kian could not recall having walked through the bar before the incident, nor could he remember any mopping occurring before 7.30pm. He responded to Ms Grzic's call and went to assist. As he was standing there, he glanced at the floor, but could not see the complete area behind Mr Kingi-Rihari. What he saw of the surrounding area was dry. No one said anything to him about the floor. He recalled one of Mr Kingi-Rihari's friends mentioning his previous football injury, as he was trying to get off the chair he had been sitting on, by himself. What he remembered being said was:

"Leave him be, he will get up on his own account. It's a previous injury"

He also remembered being told there had been a dislocation of Mr Kingi-Rihari's knee while playing football.

In cross-examination, Mr Kian explained that no one had asked him to look at the floor on the night of the accident. He insisted, however, that he had an independent memory of what he saw when he glanced at the floor, even though that had occurred three years previously and he had only once spoken about the events to an investigator, a year later. He explained that he could not see behind Mr Kingi-Rihari, but around him, the area was dry. He also explained that he remembered the incident, because it was his last night at the Hotel.

Mr Kian had been shown the CCTV footage before he gave his evidence. In cross-examination, he agreed that he had seen Ms Grzic on her hands and knees wiping the floor. He was not sure why she did that. He had not seen what she had done at the time. He also agreed that the area she was wiping was the area he could not see, when he glanced at the floor.

With leave Mr Kian was then shown the CCTV footage in re-examination. In further cross-examination, he said that it was his experience and natural instinct as a security guard, which caused him to look for wet floor and surrounding hazards, when someone is standing up, after a slip. He said that the footage showed the general direction he was looking, at Mr Kingi-Rihari's knee. He said that he had a duty of care towards him, to make sure he was safe, until he was taken to the main foyer. He said that he did not look at the whole floor at the time, because his main concern was then towards Mr Kingi-Rihari.

Mr Kian could not remember anyone speaking about the state of the floor, but it was the clear recollection of Mr Kingi-Rihari and his friends that it had been discussed. It is likely that he was not then present. Ms Grzic was the first person to have responded and it was in response to her question, that the state of the floor was first discussed. It was mentioned again in the foyer, but on his evidence Mr Kian left for some time, trying to find a taxi in the street.

This evidence does not establishes that the state of the floor was not discussed that night.

Conclusion: the floor of the bar was wet when Mr Kingi-Rihari slipped and fell because it had not been properly mopped dry

On all of the evidence, I am satisfied that Mr Kingi-Rihari has established on the balance of probabilities that the floor of the bar was wet when he slipped and fell because it was not completely mopped dry. I have no reason to doubt that his evidence was honestly given. He was plainly both an honest and reliable witness. His evidence was corroborated not only by what the CCTV footage showed and the contemporaneous documents recorded, but also by evidence which all of the other witnesses gave, in one respect or another. Ms Morales was also an honest and reliable witness, as was Mr Iafeta. Mr Kian plainly had a good recall of the events, but unsurprisingly, it was not perfect and he did not see and hear everything which occurred.

I have mentioned the difficulties with the evidence of Ms Grzic and Mr Aiono. Even though I found them to be honest witnesses, there were problems with the reliability of their evidence. I have reservations about the evidence given by Mr McBeath in a number of respects.

I am certainly satisfied that the evidence Mr Kingi-Rihari and his friends gave, that they immediately told Ms Grzic that the floor was wet and had not been properly mopped and signposted, must be accepted. That explains her natural response, to apologise and once Mr Kingi-Rihari had been helped away, to dry the floor.

Her apology may not be taken as evidencing any admission and is not relevant to determining fault or liability (see s 69 of the Civil Liability Act). Wiping the floor afterwards and not later reporting to Mr McBeath in writing that the floor was dry, when Ms Grzic knew at the time that she made her report in February 2010, that Mr Kingi-Rihari was claiming that the floor was wet is, however, entirely consistent with her then being aware that the floor was wet. At that time Ms Grzic would undoubtedly have remembered that she had wiped the floor, after Mr Kingi-Rihari was helped away. That explains why she did not advise Mr McBeath in her report, that there was any reason to dispute Mr Kingi-Rihari's account that the floor was wet.

As the defendants submitted, Ms Grzic had the best opportunity to observe all of the floor where Mr Kingi-Rihari fell, after he was taken away. If she had not earlier seen that it was wet, when she picked something up from the floor nearby immediately before Mr Kingi-Rihari fell, she was certainly able to see the floor, which she wiped afterwards. Mr Kian's evidence does not cast any doubt on the reason for Ms Grzic wiping the floor as she did. He did not see that area of the floor or what she did. As he said, he only glanced at the floor when he came to help, being then primarily concerned to look after Mr Kingi-Rihari and not being able to see behind him, where he fell and Ms Grzic later wiped.

So far as Mr McBeath is concerned, I have concluded that Ms Morales and Mr Kingi-Rihari's accounts of their discussion must be preferred over his. There is no issue that Mr Kingi-Rihari reported to him that his fall was caused by the wet floor, which had not been properly mopped. The records which Mr McBeath created and the Hotel maintained all accepted his account that the floor was wet, even though they made no reference to the mop marks. That is a reflection of Mr McBeath's approach to what he was doing, not a reflection of the report which was made to him by Mr Kingi-Rihari, or what had occurred.

One of the reports which Mr McBeath created was a report maintained under the Hotel's occupational, health and safety system. Keeping such a record was consistent with the obligation imposed on the Hotel by the then Occupational Health and Safety Act 2000, to give the Work Cover Authority notice of any serious incidents at a place of work) (see s 86). Serious incidents are defined by s 87(1), to include incidents prescribed by regulation. Regulation 341 of the Occupational Health and Safety Regulation 2001 declares such incidents to include those which cause injury to a person which results in the person being unfit for work for a continuous period of at least 7 days.

It follows that there was an obvious importance in the records which Mr McBeath made providing an accurate account of the incident and what caused it. None of the records which the Hotel maintained made any suggestion at all, that the floor was not wet or inadequately mopped, as Mr Kingi-Rihari had reported. That is entirely consistent with an acceptance, at the time, of his account, consistently with what the CCTV footage showed Ms Grzic doing after his fall.

Other evidence also suggests that in fact, Mr McBeath accepted his account. Ms Grzic's report made no reference to the state of the floor. He did not ask her to provide a report which dealt with that crucial question. He did take steps to ensure that there was no recurrence of Mr Kingi-Rihari's accident. His emails shows that steps were taken to ensure that there were wet flooring signs placed in fire hose cupboards throughout the building and that staff were reminded of the Hotel's cleaning system, including that the signs be kept out until all moisture had evaporated, an implicit recognition that mopping and wiping might not completely dry the floor.

All of this may explain why Mr McBeath only retained the CCTV footage of the incident and the few moments afterwards, when Ms Grzic wiped the floor.

Mr Kingi-Rihari, Mr Aiono and Mr Iafeta all told Ms Grzic that night, that he had slipped and that the floor was wet and not properly mopped. That accords with what the footage shows. Mr Kingi-Rihari gave Mr McBeath the same account. What the footage showed Ms Grzic did is consistent with that account, as is her later report.

The difficulty with Mr McBeath's evidence that not keeping the footage which established that there had been no spillage was just an error, is not only that it is improbable, it is inconsistent with the records he created. Consistently with the footage, the accounts of the incident which he kept, do not suggest that there had been no spill or mopping before Mr Kingi-Rihari fell. On Ms Morales' evidence, a spillage was something Mr McBeath raised when completing the insurance form. His evidence as to this was that it was a possibility. If he was certain at the time, that there had been no spill, it is unlikely that the report would have been completed as it was and that he would not have kept the earlier footage.

The obvious explanation for Mr McBeath not keeping the footage and not requiring Ms Grzic to deal with state of the floor in her report, given what she is seen doing in the footage, is an acceptance of Mr Kingi-Rihari's account that the floor had not been properly mopped dry. That also explains why no other investigation was carried out with other staff, as to the state of the floor. All of this is consistent with a then understanding, on Mr McBeath's part, that Mr Kingi-Rihari fell because the floor was wet. In that context, not keeping the earlier footage is explicable. It is thus not necessary to draw an adverse inference against Mr McBeath in relation to his disposal of footage which he claimed would support the Hotel's defence in these proceedings. The better view is that it was not kept because, at the time, there was an acceptance of what caused Mr Kingi-Rihari to fall and that Mr McBeath's recollection of what the footage showed is not reliable.

It appears that this was an acceptance that was later departed from, perhaps because of the theory that something on the table tipped and spilled liquid onto the floor, about which Mr McBeath gave evidence. As I have explained, that is a theory which may not be accepted.

Had there really been any doubt about the cause of Mr Kingi-Rihari's fall in Mr McBeath's mind at the time, the obvious and necessary steps to take, given the Hotel's cleaning system and incident reporting system, would have been firstly, to ask the staff on duty, which included Ms Grzic, Mr Kian, and the glassies working in the Verge bar, who were responsible for cleaning up any spill, to provide a report as to what they knew about the question of whether there had been any spillage that might have caused Mr Kingi-Rihari's fall. Secondly, to record their accounts.

The obvious inference from the failure to make such enquiries, given the information which Mr McBeath had received, is that there was no need for Mr McBeath to make such enquiries. Given what the CCTV footage clearly showed Ms Grzic doing, wiping the floor, that is an obvious explanation.

The other theories which the defendants advanced as to the cause of Mr Kingi-Rihari's fall have not been established, as I have explained.

All of this explains why Mr McBeath should not have listened to Ms Grzic's evidence being given, without that first being discussed and agreed. They were not 'ships in the night', so far as their evidence was concerned, as was submitted for the defendants.

On all of the evidence the most likely explanation for the Hotel's approach at the time of the investigation into the incident is that it was then concluded that Ms Grzic had wiped the floor because it was wet where Mr Kingi-Rihari slipped and fell, a spill not having been properly dried by mopping. That this was what caused his fall was, on the evidence, a conclusion which common sense dictated at the time, given the place in the bar where Mr Kingi-Rihari slipped and fell; the highly polished floor, which was slippery when wet; the cleaning system and how safety depended on its implementation; how Mr Kingi-Rihari can be seen to slip and fall and what Ms Grzic did afterwards; the absence of a warning sign; as well as the report of the incident which was received from Mr Kingi-Rihari and Ms Grzic.

There is no reason to reject the evidence which Mr Kingi-Rihari and his friends gave, as to the mop marks which they could see, given the dry mop cleaning method which the Hotel used and that they told Ms Grzic that night. A failure to completely dry the floor by mopping on a busy Friday night is an obvious explanation for what Mr Kingi-Rihari had not only seen but also felt, as he lay on the floor and what his friends also observed. Mop marks where not all of the moisture on the floor had been dried, is consistent with an inadequate implementation of the Hotel's cleaning system, a system of which they plainly knew nothing beforehand.

Negligence and breach of duty

The existence of a duty to take reasonable care to prevent injury to customers of the Hotel such as Mr Kingi-Rihari was not in issue, nor that such customers had an obligation to use reasonable care for their own safety. The Hotel's duty plainly required it to take reasonable steps for the safety of its customers, who were at the hotel in circumstances where it could be expected that some of them might be intoxicated, while walking across this highly polished wooden floor to access the bathroom. There was no issue that there was a risk that this floor could get wet, which was a factor which the Hotel had to take into account, when determining what the obligation to take reasonable steps for the safety of its customers required.

On the evidence this risk of customers slipping and falling on a spill was sought to be addressed by the Hotel, by the way in which the bar was staffed and how the staff were required to deal with spills. Given the slippery nature of the floor if wet, observing a spill and quickly attending to dry it adequately was critical. If either did not occur, the risk of slipping to customers walking across the floor was high.

"Negligence", for the purpose of Pt 1A of the Civil Liability Act, means the failure to exercise reasonable care and skill. Sections 5B and 5C provide:

"5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

5C Other principles

In proceedings relating to liability for negligence:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."

The defendants' case was that in licensed premises serving drinks such as this hotel, where no amount of reasonable care can eliminate the risk of spillage occurring, in order to make good his claim Mr Kingi-Rihari had to establish something more than the mere existence of a contaminated floor. The evidence did not establish that the system of cleaning adopted by the Hotel was not reasonable. Mr Kingi-Rihari's case was that there was a failure to properly dry the floor after mopping, but the evidence did not establish a particular failure to monitor and so his case had to fail.

Those submissions may not be accepted. In Novakovic v Stekovic [2012] NSWCA 54 McColl J recently observed at [37] - [42] (Whealy JA and Tobias AJA agreeing):

"37 The question whether the respondents were guilty of breach of duty turns first on determining whether the risk in question is one of which the defendant knew or ought to have known: s 5B(1)(a). This means the risk must be defined. Before doing so, however, it is essential to determine the scope of the duty of care the respondents owed the appellant.

38 The respondents, as occupier of the land onto which the appellant entered, owed her a duty to take reasonable care to prevent injury to her on the assumption she was using reasonable care for her own safety: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (at 487-488) per Mason, Wilson, Deane and Dawson JJ; Jones v Bartlett; [2000] HCA 56; (2000) 205 CLR 166; Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330 (at [47]) per Gummow J. There was no suggestion that the appellant had fallen short of the last requirement.

39 What was reasonable turns on the circumstances of her entry upon the premises: Australian Safeway Stores Pty Ltd v Zaluzna (at 488). The duty to take reasonable care required the respondents to protect the appellant, or the class of person of which she was a member, from a "not insignificant" risk which could reasonably be foreseen and avoided. The measure of the discharge of the duty, at common law, was what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk: Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 (at 663) per Deane J. The measure is now prescribed by s 5B of the Civil Liability Act.

40 The inquiry about whether the respondents ought to have taken the precautions for which the appellant contends turns on (amongst other relevant matters) the foreseeability of the risk, whether that risk was not insignificant and whether in the circumstances, a reasonable person in the person's position would have taken those precautions. The inquiry is not to be undertaken in hindsight (Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (at [126]) per Hayne J), but must be answered prospectively, before the incident occurred: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 (at [31]).

In October 2012, he was again assessed by Dr Klug, who noted he was not receiving treatment from any health professionals, or physiotherapists. Dr Klug found mild improvement, concluding that there had been partial remission of the chronic major depressive disorder.

Mr Kingi-Rihari gave evidence consistent with the histories he had given examining doctors. He explained that he had hoped to obtain youth work and had pursued some TAFE studies and volunteer work in order to retrain. That ceased when his relationship with Ms Morales broke down, as did other social relationships. Other witnesses corroborated this account.

Mr Kingi-Rihari explained that he was treated for a depressive illness, but that he found medication he was prescribed difficult to tolerate. His evidence suggests that at the time of Dr Klug's second examination, he was considerably affected by the break up of his relationship with Ms Morales and that since then, there has been improvement. On his evidence, it must be concluded that he is stable, as Dr Smith assessed, as the result of recent improvement.

It is unnecessary to come to a concluded view as to his precise diagnosis. On his evidence he considers himself now capable of returning to full-time work which accommodates his physical limitations. He has a real interest in pursuing the youth work he previously volunteered for. In the result, it seems likely that this improvement in his mental state can be maintained, but his physical condition will not improve, but will deteriorate and require further treatment, in all likelihood, given his age and circumstances, including a second knee replacement.

Non-economic Loss

This claim is governed by s 3 of the Civil Liability Act, where non-economic loss is defined as:

"... any one or more of the following:

(a) pain and suffering,

(b) loss of amenities of life,

(c) loss of expectation of life,

(d) disfigurement."

It was common ground that Mr Kingi-Rihari had suffered some degree of pain and suffering as the result of his knee injury and his psychological difficulties. There was no suggestion of any reduced life expectancy. The defendant submitted that he should be assessed at 23-25% of a most extreme case (see s 16). Mr Kingi-Rihari argued for an assessment of 40%.

The defendants had to take Mr Kingi-Rihari as they found him (see Watts v Rake [1960] HCA 58; 108 CLR 158 at 160). The accident was the precipitating event which led Mr Kingi-Rihari to cease his work as a scaffolder. He has not worked or been able to resume his former active social life since his accident. He requires retraining, in order to be able to pursue a productive working life. On the evidence, given improvement in his psychological condition, he is now capable of undertaking retraining in work which his physical limitations will permit. The area of his real interest is youth work.

He no longer has the efficient use of his right leg at or above the knee, with the result that he can no longer perform heavy manual work nor play Oztag, football, or run, all activities which he had previously engaged in and enjoyed. He has gained considerable weight, despite attending the gym regularly and his right thigh and calf are somewhat thinner than his left. He can drive for certain time periods and can walk, albeit he experiences certain ongoing difficulties and pain.

He has a life expectancy of some 50 years. His physical state is stable, but will deteriorate, as I have explained, with the result that he will require not only a first knee replacement, but is likely to require a second. That he may have required a knee replacement even without this injury must be taken into account, but the acceleration of that necessity and the real possibility of the need for a second replacement, cannot be overlooked.

In the result I have concluded that his non-economic loss must be assessed at 32%.

Out of pocket expenses

Past out of pocket expenses were agreed.

It was common ground that future out of pocket expenses must have regard to the requirement for knee replacement. Mr Kingi-Rihari sought $30,000, submitting that this had to be calculated on the basis of estimates. The defendants argued that the figure must be approached on the deferred $25,000 cost of the operation, for a period of 25 years. Given that he would have required the operation in any event, there should be a further 25% discount. Mr Kingi-Rihari opposed this approach.

In Purkess v Crittenden (1965) 114 CLR 164, it was observed at 168:

"... where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v. Rake [(1960) 108 C.L.R. 158] was essentially concerned."

In this case, I am satisfied that the onus falling on Mr Kingi-Rihari to make out a prima facie case that his injuries resulted from the defendants' negligence was met and that the evidence has also established that given the pre-existing condition of his knee, he would have had a knee replacement in any event. The evidence also shows that he must have one knee replacement in 15 to 20 years time, significantly sooner than otherwise and in all likelihood he will now require a second.

Mr Kingi-Rihari's evidence was that he had chosen not to pursue the course of drugs he had been prescribed for his psychological condition, because he could not tolerate it; that he had ceased seeing a physiotherapist, because nothing more could be done for his knee; and he had pretty much ceased taking pain relief. That this approach is sustainable, given the evidence of the physical deterioration which he faces, is unlikely.

In the result I assess that this should be approached on the basis of the deferred $25,000 cost of the first operation, for a period of 15 years, with a discount of 25% for that operation, together with the deferred cost of a second operation deferred for 35 years, plus $5,000 for other out of pocket expenses for medication and physiotherapy.

Future domestic assistance

On the evidence there was no dispute that a need for domestic assistance had arisen as a result of Mr Kingi-Rihari's injuries after his accident (see s 15). Mr Kingi-Rihari did not press a claim for services which Ms Morales had provided for a time and then a flat mate, they falling below the threshold (s 15(3)).

Mr Kingi-Rihari's case was that he required now only 1-2 hours assistance per week, but that his condition would deteriorate and in the result he would require more assistance in the future. It was submitted that there should be an allowance of 4 hours a week at the agreed rate of $40 per hour for 50 years, with a 5% discount for vicissitudes. The defendants submitted any award should be assessed at 1-2 hours per week.

Various medical reports and other evidence touched on the need for domestic assistance.

Mr Kingi-Rihari described the domestic work he can now manage and what he requires assistance with, work which requires him to lower himself, such as scrubbing the shower, gardening, lawn mowing and cleaning the bottom of the car. He can manage other tasks, including things like vacuuming.

Ms Moylan, an occupational therapist, gave a report about which she was not required for cross-examination. Her assessment was that there was no requirement for any future assistance. Dr Bodel, by way of contrast, assessed a current need of 3 hours per week, which Mr Kingi-Rihari plainly does not require. On the various evidence which has been received as to Mr Kingi-Rihari's actual past and present difficulties and needs, as well as his likely future physical degeneration, I am not able to accept either of their conclusions. There is a current need for assistance and real consideration must be given to future greater assistance needs than at present, given all of the evidence as to Mr Kingi-Rihari's deteriorating physical condition and the need for at least one, perhaps two knee operations. Consideration must also be given to his pre-existing condition and what it was likely to lead to.

In the result I have concluded that future assistance should be calculated on the basis of 1.5 hours per week for 10 years, 2.5 hours for a further 15 years and 4 hours for a further 25 years, with the discount for vicissitudes.

Past and future economic loss

Past wage loss

The onus rests on Mr Kingi-Rihari to prove the loss for which compensation is claimed. Account must be taken of his successful past employment history. He has had a consistent pattern of full-time employment in work of a heavy manual nature. That included work outside Sydney.

There was no dispute that Mr Kingi-Rihari retains a residual earning capacity, to perform full-time light work, even though he has not worked since his accident, other than some volunteer work as a youth worker.

The principles that apply to the assessment of past and future economic loss include what was discussed in Rabay v Bristow [2005] NSWCA 199 at [79]:

"[79] The assessment of damages for future economic loss involves reference to future or hypothetical events. It was described as 'the process of estimation of possibility' in Malec v J C Hutton Pty Limited [199] HCA 20; (1990) 169 CLR 638 at 643 per Deane Gaudron and Gummow JJ. This is, as Santow JA has pointed out, 'necessarily an imprecise matter of estimation, carried out within broad parameters ...': Donald v McKeown [2004] NSWCA 285 at [38]." (emphasis added)"

Matters which Mr Kingi-Rihari submitted required consideration included the evidence that he was earning $1200 net per week before the accident, an average of $1160 a week over the financial year. He had a job in Cairns to go to where he would earn $2,000 to $3,000 net a week for 6 months immediately after the accident. He also wanted to work in the mining industry, where he would also achieve higher earnings for protracted periods. Mr Aiono made about $2000 net on average over a whole year in such work. In the result it was submitted that his past economic loss would be calculated at $1800 per week. That was disputed by the defendants.

In December 2010, the defendants sought particulars of the claim be provided in accordance with Rule 15.12(5), which provides:

"15.12 Particulars required for proceedings generally

(5) If the statement makes any claim in respect of loss of income, it must also set out the following particulars:

(a) the name and address of each employer during the 12 months immediately before the accident, together with details of the periods of employment, capacity in which employed and net earnings during each period of employment,

(b) the name and address of each employer since the accident, together with details of the periods of employment, capacity in which employed and net earnings during each period of employment,

(c) the amount claimed in respect of loss of income to the date of the statement (by comparison between what the plaintiff has earned since the accident and what the plaintiff would have earned but for the accident) setting out, in respect of what the plaintiff would have earned but for the accident, including, where appropriate:

(i) particulars of the earnings of comparable employees and the identity of those employees, or

(ii) particulars of any payment that the plaintiff would have received under a relevant award or industrial agreement, together with the title of that award or industrial agreement,

(d) particulars of any alleged loss of earning capacity and future economic loss,

(e) if the plaintiff is self-employed or has been self-employed at any time during the 12 months immediately before the accident, such additional particulars as will achieve full disclosure of the basis of the claim for loss of income."

The response was that the defendants should make their own enquiries in relation to earnings of comparable employees. That did not accord with either the requirements of the rule or the obligations imposed on the parties by s 56 of the Civil Procedure Act. The defendants observed that it was not until Ms Morales gave oral evidence, that any desire on Mr Kingi-Rihari's part to work in the mining industry was revealed. She explained their plans of she possibly joining him for a while, and perhaps even living with him in a mining town and herself working there for a time, but agreed that they eventually planned to live in Sydney. Mr Kingi-Rihari was recalled and gave evidence confirming his desire to pursue such work, work which Mr Aiono had been able to pursue successfully.

It was submitted that the approach adopted to this aspect of the case could not be overlooked. While the parties had cooperated at the hearing, so that the evidence relied on by Mr Kingi-Rihari could be received, the approach adopted had not permitted the defendants to properly investigate his claims, or to test the evidence. Further, on their calculations Mr Aiono's net earnings were only some $1781 net.

In the result it was submitted for the defendants that it would be concluded that the chance that Mr Kingi-Rihari would work outside Sydney earning more than the $1200 net per week claimed were low and that the periods would be short. He had not applied for mining work, having done no more than looked online and on the evidence, would likely have settled down in Sydney, in order to live a comfortable lifestyle there. In the result it would not be concluded that he would earn more than $1200 per week. It was also submitted that his residual earning capacity and that he could have obtained remunerative work before the hearing, also had to be considered.

On the evidence I consider that past loss should be calculated having regard to both the particulars given and the evidence which was received, but that the difficulties with the way in which this aspect of the case was advanced, also had to be considered. The Cairns job rate of $2200 net per week was disclosed. The evidence was that this was a 6 months job. Otherwise the claim was made by reference to a figure of $1250 net per week earned in Mr Kingi-Rihari's employment in Sydney, although on the evidence that was $1200 net per week and Mr Aiono's earnings. The parties should agree a figure in relation to Mr Aiono's earnings on mining work, there can only be one correct mathematical calculation.

Mr Kingi-Rihari had an obligation to mitigate his losses. On his evidence he was earlier able to perform volunteer work and undertake studies successfully, but he did not pursue the youth work he was interested in, because he considered that it would not generate sufficient earnings. His pursuit of other work has been intermittent, for various reasons which he explained.

I consider that given his skill base and physical and psychological limitations, without retraining it is inherently unlikely that there would be many positions for which Mr Kingi-Rihari would be suitable and where an employer would accommodate his circumstances. As was submitted on his behalf, even with retraining, he would plainly require an accommodating employer. There was no evidence that such an employer was available in the past.

In the result it should be concluded that during 2012 he has been able to undertake work which he is capable of performing physically, but no evidence from which it could be concluded that such work was available, had he pursued it.

Work which might realistically have been available in the field of his real interest, youth work, requires retraining before Mr Kingi-Rihari could be employed in that field. It is conceivable that when retrained he might find an employer in that field which could accommodate his considerable limitations. That he would have completed such retraining and obtained such employment during 2012, had he pursued it actively, was not established and so cannot be here taken into account in this respect.

In the result, past loss should be calculated for 6 months at $2,200 per week. I also consider that but for his injury, Mr Kingi-Rihari would have pursued mining work which was clearly available to a scaffolder such as he. He was prepared to work outside Sydney and he had Ms Morales' support. He had already worked at Lithgow and was due to depart to work in Cairns, on the Sunday after his accident. As the defendant submitted, on the evidence the best comparator was Mr Aiono, whose earnings reflected the working patterns in the mining industry and the availability of such work.

Such mining work should be taken into account for both past and future economic loss. As such work is intermittent and given Mr Kingi-Rihari's commitments to Ms Morales in Sydney, past economic loss should reflect 12 months mining work at the rate Mr Aiono earned. Apart from the 6 months Cairns work, the balance of this period should be assessed at the rate of $1200 per week.

Future economic loss

The assessment of future economic loss must be undertaken on the basis of s 13 of the Act which provides:

"13 Future economic loss-claimant's prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."

The case advanced for Mr Kingi-Rihari was that there was evidence of high mobility in this industry, where scaffolders were known to work until age 62 or 63. There was also evidence of his intention to pursue work in the mines, which Ms Morales supported. There was evidence of men performing such work well into their fifties. The probability on the evidence were argued to be that he would have worked as long as he possibly could in such work and then moved into another area of roughly remunerative work. Thus the calculation Mr Kingi-Rihari advanced was at an overall figure of $2,000 a week net, that reflecting Mr Aiono's earnings.

His history of injury and unemployment had to be considered, that made him unattractive other than to a sympathetic employer, given his physical limitations, which would preclude him from much work, on safety grounds. While the evidence revealed what could be earned in various positions, there was no evidence that such work is available to someone in Mr Kingi-Rihari's position. It followed that a sum of $600-800 could not simply be deducted from the calculation of pre-earning capacity. Still a figure of $1200 per week was submitted to properly reflect the various considerations which had to be weighed in the balance. That should be used to calculate a figure to agree 67, with a 15% deduction for vicissitudes.

The defendants submitted that there was scant evidence for the claims advanced and that it should be concluded that there should be a discount of 25% at least for vicissitudes, given the evidence of Mr Kingi-Rihari's pre-existing knee condition, which made it unlikely that he would work until normal retirement age. The evidence suggested that while some scaffolders could work into their 50's, no evidence suggested that they worked to age 67.

The claim that he would have sought work in the mining sector would also not be accepted, given the way in which the evidence was advanced, only when Mr Kingi-Rihari was recalled. He had acknowledged that this was not a career job, but would be pursued only for a time and that his former fiancé's preference had been to remain in Sydney. He had never applied for such work and accordingly, this claim should be dismissed as involving mere speculation.

In the result it was argued that the calculation would be undertaken on the basis of a difference between the $1,200 net per week he was earning before his accident and what an OHS officer could earn.

This aspect of the parties' disagreement must be approached in the way discussed in Nominal Defendant v Livaja [2011] NSWCA 121 where it was observed at [65]:

" ... Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he has a significant residual earning capacity. Earning capacity must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. When a person in middle age has spent all his or her life in a skilled or semi-skilled occupation which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some such occupation ..."

In Mead v Kerney [2012] NSWCA 215 reference was made to at [25] to the evidential onus which falls on the defendants to show that Mr Kingi-Rihari has a residual earning capacity that he is practically capable of exercising. In Kallouf v Middis [2008] NSWCA 61 it was observed at [52] that:

"[52] In Arthur Robinson (at 657) Barwick CJ observed that lost earning capacity 'ought to be the subject of evidence and not of mere suggestion on the part of the judge or advocate', a remark interpreted by Malcolm CJ (Murray and Wheeler JJ agreeing) in Morgan v Costello [2004] WASCA 260 (at [99]) as supporting the proposition that 'the defendant who contends the plaintiff has a residual earning capacity has the evidentiary burden of adducing evidence of what work the plaintiff is capable of performing and what jobs are open to a person with such capacity.'" (Emphasis added).

Mr Kingi-Rihari has not looked for paid employment for some time. As the defendants submitted, that no doubt reflected in part the fortunate position he was in, given his disability insurance. The benefit of that income protection insurance will not continue in future. On his evidence he intends to pursue work, which he now feels capable of doing, given improvement in his psychological state. He feels capable of full-time work, performing duties which accommodated his physical limitations. He has a certain level of computer skills and has taken some limited steps to pursuing retraining. He did not pursue his interest in occupational, health and safety, because of the limitations of his physical condition and his understanding that would place real obstacles in the way of him obtaining such employment. That appears to be a realistic assessment of his physical limitations and their likely deterioration.

Vocational reports for Mr Kingi-Rihari were in evidence. The history he gave was consistent with his evidence. Limited right knee flexion movement was found, as well as wasting of the right quadriceps, asymmetry of posture and being overweight. Functional limitations in lifting were found and problems with low to ground postures. Ground level work not involving ladders or repetitive climbing was recommended. Various physical work restrictions were identified. He was assessed as capable of performing a range of sedentary and light work.

Mr Kingi-Rihari is plainly an intelligent man. He explained the physical limitations which he felt would prevent him performing work at building sites. He has attained scaffolding certificates to advanced level, as well as an intermediate rigging licence and first aid certificated. He has basic computer skills and can touch type.

He was assessed as capable of completing courses to Diploma level, having sound workplace literacy skills and numerical skills suitable for administrative and sales tasks. He is considered to be capable of attaining qualifications in youth work, from which he was deterred in the past, by an understanding that it was a lowly paid profession. He has also been assessed as having the potential to advance into supervisory or managerial roles with further training, although such work was not found to be appealing to him. He was assessed as capable of pursuing retraining as a youth worker, health and safety officer or crane driver.

It is youth work that Mr Kingi-Rihari is really interested in and considers he could manage physically. He has investigated undertaking further studies and that was what his volunteer work was directed to, but explained why he had not pursued it, because of his understanding that such work could only command much lower earnings than it appears now on the evidence it could command.

It seems to me that it is most likely on the evidence, given Mr Kingi-Rihari's physical and psychological situation, as well as his skills and interests, that he could successfully pursue a career as a youth worker. He will, however, require retraining and have to find such employment. There was no evidence as to the availability of such work, but he has already undertaken volunteer work, done some online training and investigated the TAFE course he would need to pursue.

In assessing future economic loss account must thus be taken of the need to retrain and the challenge Mr Kingi-Rihari faces in finding an employer willing to accommodate his ongoing limitations. In the result, it seems to me that while obviously imprecise, it should be concluded that it will take some time to retrain and find such employment, which I assess to be a period of 3 years, that time to be measured from the beginning of 2012, for reasons I have already explained. During this period there can be no deduction to reflect Mr Kingi-Rihari's residual earning capacity. After that, earnings as a youth worker must be taken into account by way of residual capacity.

I also consider that on the evidence, it is likely that but for his injury Mr Kingi-Rihari would have worked outside Sydney in the mining industry, where more lucrative earnings were available to him, for some years. On the evidence of Mr Kingi-Rihari and Ms Morales, I assess that Mr Kingi-Rihari would have undertaken such work for a period of no more than 6 years. Thus future economic loss should take into account 5 years in mining work.

Otherwise, given the evidence of his pre-existing physical condition and the eventual necessity for a knee replacement, which was considerably accelerated by the accident, I assess that Mr Kingi-Rihari would not have continued in scaffolding beyond 53 years. The evidence did not suggest that the need for a knee replacement would have precluded such work before then. That does not mean that he would not have worked afterwards, but not as a scaffolder. There is nothing in the evidence which suggests that he would not have worked until retirement age. Given the evidence as to his intellect, capacity and his interest in OHS work, but for his injury, I assess that from 55 to retirement at 67 it is likely that he would have pursued work in that field, until retirement. The evidence did not suggest that his pre-existing physical condition would have precluded such employment.

Superannuation

Past superannuation losses were agreed and future losses were being discussed by the parties in the context of recent authority.

Orders

It will be necessary for the parties to confer as to the calculations which reflect the above findings and conclusions and to provide short minutes which reflect those calculations and the matters which were agreed. They also need to confer as to costs.

In the event that the parties need to be heard, they should approach. Otherwise short minutes of the agreed orders should be filed.

**********

Decision last updated: 19 December 2012

Medium Neutral Citation:	Kingi-Rihari v Millfair Pty Ltd t/as The Arthouse Hotel [2012] NSWSC 1592
Hearing dates:	19 November 2012, 20 November 2012, 21 November 2012
Decision date:	19 December 2012
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Judgment for the Plaintiff.
Catchwords:	TORTS - negligence - contributory negligence - hotel and patron - slip and fall - - whether the floor was wet and recently mopped - CCTV footage - whether floor was wet as the result of plaintiff's actions - not established - whether plaintiff fell as the result of wearing thongs, or because of an old knee injury - not established - negligence established - causation - contributory negligence - damages - non-economic loss - past and future economic loss - future domestic assistance - calculations to be undertaken and short minutes provided
Legislation Cited:	Civil Liability Act 2002 Civil Procedure Act 2005 Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001
Cases Cited:	Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 Kallouf v Middis [2008] NSWCA 61 Mead v Kerney [2012] NSWCA 215 Nominal Defendant v Livaja [2011] NSWCA 121 Novakovic v Stekovic [2012] NSWCA 54 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Rabay v Bristow [2005] NSWCA 199 Strike v Fiji Resorts Limited [2012] NSWSC 1271 Strong v Woolworths Ltd t/as Big W [2012] HCA 5; 86 ALJR 267 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Watson v Foxman (1995) 49 NSWLR 315 Watts v Rake [1960] HCA 58; 108 CLR 158
Category:	Principal judgment
Parties:	Travis Bell Kingi-Rihari (Plaintiff) Millfair Pty Ltd t/as The Arthouse Hotel (First Defendant) Nicholas John Austin (Second Defendant)
Representation:	Counsel: Mr A J Lidden SC, Mr M Dawley and Ms T Fishburn (Plaintiff) Mr M L Williams SC and Mr P Knowles (Defendants) Solicitors: Brydens (Plaintiff) Lee and Lyons (Defendants)
File Number(s):	2010/292109
Publication restriction:	None