Kljusuric v Gajjh United Pty Ltd
[2020] ACTMC 14
•29 May 2020
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kljusuric v Gajjh United Pty Ltd |
Citation: | [2020] ACTMC 14 |
Hearing Dates: | 18 November 2019, 20 – 22 November 2019 |
DecisionDate: | 29 May 2020 |
Before: | Magistrate Morrison |
Decision: | See paragraph [171] |
Catchwords: | CIVIL LAW – NEGLIGENCE – personal injury – plaintiff sustained injury as a result of a fall at the defendant’s premises – whether defendant breached its duty of care – whether breach cannot be established unless court is satisfied that state of floor fell below accepted or recommended standard in relation to coefficients of friction – whether evidence establishes the floor was slippery – whether adequate cleaning procedures existed – causation – whether cause of plaintiff’s fall was a slip brought about by the defendant’s breach or a spontaneous subluxation of the patella – expert evidence – relevance of existence of other possible explanations |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 45, 168 Civil Liability Act 2002 (NSW) s 5D Court Procedures Rules 2006 (ACT) rule 1211 |
Cases Cited: | Australian Safeway Stores Pty Ltd v Zuluzna [1987] HCA 7; 162 CLR 479 Brozinic v ISS Facility Services Australia Ltd [2014] ACTSC 8 Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 Hackshaw v Shaw [1984] HCA 84; 155 CLR 614 Hampton Court Ltd v Crooks [1957] HCA 28; 97 CLR 367 Kocis v S E Dickens Pty Ltd [1998] 3 VR 408 Mason v Demasi [2009] NSWCA 227 Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 |
Parties: | Ivanna Maria Kljusuric (Plaintiff) Gajjh United Pty Ltd (Defendant) |
Representation: | Counsel S Whybrow (Plaintiff) M Hutchings (Defendant) |
| Solicitors Blumers Personal Injury Lawyers (Plaintiff) Sparke Helmore Lawyers (Defendant) | |
File Number: | CS 213 of 2018 |
MAGISTRATE MORRISON:
Introduction
In this matter the plaintiff claims damages for personal injury suffered as a result of a fall at a McDonald’s restaurant in the suburb of Gold Creek in the Australian Capital Territory. It is conceded that the defendant owed the plaintiff a duty of care pursuant to s 168 of the Civil Law (Wrongs) Act 2002 (ACT) (“Wrongs Act”). However, the defendant denies liability on the basis that the defendant did not breach its duty of care to the plaintiff, and, even if such a breach is established, the defendant’s acts or omissions did not cause the plaintiff’s injury.
The matter proceeded to hearing before me over four days in November 2019. The parties have agreed that, should I find in favour of the plaintiff, the quantum of damages is assessed at $120,000.00 inclusive of pre-judgment interest.
Background
Factual background
The factual and procedural backgrounds to this matter are of relatively short compass. The plaintiff commenced proceedings by way of an Originating Claim filed on 12 September 2018. The defendant filed a Notice of Intention to Respond on 24 October 2018 and a Defence on 27 November 2018.
The events forming the subject of the claim took place on 17 September 2015. At the time, the plaintiff was seventeen years old. On that day, she had been to the gym to exercise. In accordance with her usual practice, she subsequently went with a friend to McDonald’s. The McDonald’s restaurant visited by the plaintiff and her friend was operated by the defendant as the franchisor.
Moments prior to the incident, the plaintiff was standing in an area between the McCafé area of the restaurant and the general counter. She alleges that she then moved to approach a counter in one or the other of these areas in order to view the menu. The plaintiff says at that point that she slipped and fell. She says that the floor was slippery as a result of the transference of grease from food produced at the premises to the floor. She says that the state of the floor caused her to slip and fall, as a result of which she suffered injury, loss, and damage. The injuries that the plaintiff alleges she has suffered as a result of this incident include:
(a)injury to the left knee;
(b)lateral subluxation of the patella, chondral damage to the medial margin of the lateral femoral condyle, and patellofemoral syndrome;
(c)injury to the left leg;
(d)injury to the lower back;
(e)injury to the right hip;
(f)adjustment disorder; and
(g)shock.
There is one very material aspect of the factual background. The plaintiff discovered after the fall at McDonald’s that she suffered from an anatomical defect in her left knee that was described at the hearing and in medical records as a shallow trochlear groove. Some considerable time was spent at hearing in evidence about the role, if any, that that defect played in her fall at McDonald’s and the injuries she suffered.
The oral evidence
Oral testimony was given by five witnesses. In the plaintiff’s case, lay evidence was given by the plaintiff (Ms Ivanna Kljusuric), her mother (Ms Helena Kljusuric), and a former employee of the defendant (Mr Danyon Todkill). Without intending any disrespect, I refer to the plaintiff in these reasons as either “the plaintiff” or “Ivanna”, and her mother as such or as “Helena”.
Expert evidence was given in the plaintiff’s case by Mr Bill Contoyannis, a biomechanical engineer. I directed, pursuant to rule 1211 of the Court Procedures Rules 2006 (ACT), that Mr Contoyannis’ evidence be given concurrently with that of an expert called in the defendant’s case, Dr Thomas Gibson, a chartered professional engineer with experience in the field of biomechanics.
Aside from Dr Gibson, the defendant did not call any witnesses.
The plaintiff: examination-in-chief
On the day of the incident, Ivanna went to the gym with a friend. She said that her exercise regime at the gym consisted of some cardiovascular and upper body weight training. The cardiovascular training was described as constituting use of “the treadmill as, like, a warm-up and maybe - I can’t remember, but I did a bit of the cross-trainer and possibly a bit of the bike”.[1] She did not do any “weight training on [her] legs”.[2] Afterwards, as was their usual practice, Ivanna and her friend went to McDonald’s to get a coffee.
[1] Transcript 18 November 2019, 73.
[2] Transcript 18 November 2019, 72.
At some point after arriving at the McDonald’s, Ivanna approached a counter in the café area of the restaurant in order to view the menu. As she did so, she alleged that she slipped and fell onto the left side of her body “pretty hard”. When asked to describe if she felt anything, she said:
“Yes – I actually felt my knee kind of move as I was falling”.[3]
[3] Transcript 18 November 2019, 59.
Ivanna was not able to recall with precise detail the manner of the slip. Relevantly, her evidence-in-chief was in these terms:
[MR WHYBROW:] Okay. Now, Ms Kljusuric, one of the first things you said was that you slipped. Are you able to say what, how, where? When you say 'slipped', what happened?---What - sorry, I'm just a bit - - -
Yes. What do you mean by you slipped?---By slipped, I - - -
Yes?---I was walking and I just - I slipped. My - I don't - I'm sorry, I'm not too sure - - -
Which part of your body?---My foot slipped, yes.
Okay. So your foot - - -?---Yes.
- - - slipped?---M'mm.
When you say your foot, which foot or feet, which one? Are you able to say?---I'm not too sure.
What did you feel in terms of when you say you slipped? What happened?---My foot moved as I was walking. It's like a slip.
When you say 'moved' - - -?---Yes.
- - - you've used a hand movement laterally forward. When it moved, where was it? Was it in the air, was it - - -?---No. No, it was on the ground but it's moved.
You don't recall which foot?---No.
Do you recall which direction it moved, forward or back or sideways?---It moved forward, I believe.[4]
[4] Transcript 18 November 2019, 73.
The evidence-in-chief canvassed some general aspects of Ivanna’s physical history. What is most material for present purposes is Ivanna’s testimony that in March 2015 her knee had given way following a music lesson where she had been standing for one hour. She said that she got up immediately and drove herself home. Ivanna saw a physiotherapist the following day because her leg was stiff that morning. She also said that she wore a knee brace and that she “recovered within a week”.[5] She said she did not miss any school, visit a doctor, or take any medication in relation to that incident. For convenience, I refer to the fall in March 2015 as the “music lesson fall”.
[5] Transcript 18 November 2019, 71.
Ivanna went on to say that the music lesson fall did not involve a slip or trip, and that she understood the difference between slipping and not slipping.[6] Later in the course of her evidence-in-chief she was asked whether there were any similarities or differences between the music lesson fall and the McDonald’s fall. The exchange was as follows:
And in relation to the fall that happened some six or so months later, were there any similarities or differences between the two falls?---Yes, there was.
What?---Different. So differences - when I fell when I slipped, my - I felt my knee move out of place and I couldn't get up after that one. It was different.[7]
[6] Transcript 18 November 2019, 74.
[7] Transcript 18 November 2019, 71.
She also said that the music lesson fall was not a slip, but rather occurred because her knee gave way.
Following her fall at McDonald’s, Ivanna said that she asked her friend to contact her (Ivanna’s) mother. She remained on the ground in the place where she had fallen for approximately ten minutes until her mother arrived.[8] The staff asked her how she was, but “no one really assisted”.[9]
[8] Transcript 18 November 2019, 60.
[9] Transcript 18 November 2019, 60.
Ivanna was asked if she made any observations about the floor in the period between her fall and when her mother arrived. She said that it was “greasy”. She said that she was able to observe footprints on the floor, and that she had grease on her hands and clothing.[10] She stated that the footprints that she referred to could be seen in the photograph that was received into evidence as Exhibit P1.[11]
[10] Transcript 18 November 2019, 61.
[11] Transcript 18 November 2019, 68.
Ivanna said that when her mother arrived, she appeared shocked to see that Ivanna was still on the floor. She lifted Ivanna off the floor by her arms and assisted her to a stool.[12] Ivanna said that her mother subsequently told the staff to bring ice (which they did) and asked them to write out an incident report.[13] Her mother then took photos of the area.
[12] Transcript 18 November 2019, 61.
[13] Transcript 18 November 2019, 62.
Ivanna spoke to a staff member who she described as the person “filling out the report”. He asked her questions about the incident, and she told him that she slipped. When asked if she recalled telling him anything else, she added that she told him “[t]hat my knee gave way, but I slipped”.[14] When asked to clarify this answer, Ivanna gave this evidence:
HIS HONOUR: Sorry, what was your answer there?---I slipped, and my knee gave way. That my knee was injured.
You told him, ‘I slipped, and my knee gave way.’?---M’mm.
[14] Transcript 18 November 2019, 62.
Ivanna said that there were no signs in the restaurant to indicate that the floor was slippery, and that she had not been told by anyone at the restaurant to be cautious because the floors might be slippery.
The plaintiff was shown the photograph comprising Exhibit P1. It depicts parts of yellow A-frame signs of the type used to caution persons that the floor in the area around the sign might be slippery. The photograph was one of the photographs taken at the McDonald’s by Helena after the incident. Ivanna was asked whether these signs were in place when she slipped. Ivanna said that they were not, and that they had been placed “after I fell, when my mum started taking photos”.[15] She further said that she did not see anyone cleaning the floor either before or after she fell.
[15] Transcript 18 November 2019, 63.
When asked if she was shown the incident report, Ivanna said that the staff “wrote a little note which was given to my mum”, but that the incident form itself was only “provided later”.[16] When asked later during the course of evidence-in-chief whether she had subsequently been provided by McDonald’s with the incident report that was prepared that night. Her answer was, “I don’t believe I received that”.[17]
[16] Transcript 18 November 2019, 63.
[17] Transcript 18 November 2019, 73.
Ivanna was assisted out of the restaurant by her mother. She stated that she was not able to put weight on her knee and that “it swelled up straightaway”.[18]
[18] Transcript 18 November 2019, 70.
Ivanna went on to say that she has not had any falls since the incident at McDonald’s.[19]
[19] Transcript 18 November 2019, 70.
In the six months between these incidents, Ivanna said that she was going to the gym approximately six days per week. During that six-month period she did not experience any pain or instability in relation to her knees or legs in her gym sessions.[20]
The plaintiff: cross-examination
[20] Transcript 18 November 2019, 72.
In cross-examination, Ivanna was asked about her usual exercise regime at the gym. She agreed that regime alternated between strength and cardiovascular training. In relation to the latter, she said that she would “either do treadmill or the cross-trainer or the bike”. Her description of her use of these machines was as follows:
(a)In relation to the treadmill, Ivanna stated that she would use it for approximately fifteen minutes with the speed set at a walking pace, and would vary the incline at regular intervals during the course of that fifteen minutes: “I would do five minutes on one incline and then another five on another incline and then I’d go back down to the flat”.[21] She stated that she could go for longer if she wanted, “but I didn’t want to overdo it”.[22]
(b)In relation to the cross-trainer, Ivanna stated that she would use it for ten minutes or less.
(c)In relation to the exercise bicycle, Ivanna stated that she would use it for between five to ten minutes.
[21] Transcript 18 November 2019, 76.
[22] Transcript 18 November 2019, 76.
Ivanna agreed with a proposition that, based on the above, she would spend approximately between twenty-five to thirty minutes on cardiovascular training at the gym. This acceptance appeared to be somewhat inconsistent with the plaintiff’s earlier testimony that she would “either do treadmill or the cross-trainer or the bike” (emphasis added). Nonetheless, she said that she would try to engage in cardiovascular training “nearly daily”.[23]
[23] Transcript 18 November 2019, 77.
Ivanna said that she would do strength training about three to four times per week. She would perform weighted exercises focusing on her legs twice per week, and on other days would undertake weighted exercises focusing on her upper body. The lower body exercises involved use of leg press, leg curl, and leg extension machines.[24]
[24] Transcript 18 November 2019, 77-78.
Ivanna said that between March 2015 and September 2015, the level of her training at the gym had increased.[25] She said that her training program had been signed off by a male worker at the gym, who she understood was qualified (though the precise nature of the qualification was not clarified).[26] She said that she told this person of her injury in March 2015. According to her evidence, he did not tell her to seek advice from a doctor in relation to being fit to work out at the gym, and she conceded that she would not have expected him to be medically qualified.[27]
[25] Transcript 18 November 2019, 79.
[26] Transcript 20 November 2019, 13.
[27] Transcript 20 November 2019, 13.
In responding to questions about the music lesson fall, Ivanna agreed that after attending the physiotherapist the following day, she returned regularly over a period of three months. She said she was given exercises to do to ensure that everything was fine.[28] She maintained, however, that her knee was “fine” a week after the incident.[29]
[28] Transcript 18 November 2019, 82-83.
[29] Transcript 18 November 2019, 83.
Ivanna agreed that prior to September 2015, there were no investigations as to what the cause of the music lesson fall was. Ivanna was asked several questions about her recollection of her interactions with various medical professionals about both falls after the fall at McDonald’s. In summary, her testimony was:
(a)She could not recall if she was told that in March 2015, she had suffered a patella dislocation and that it was possible she had a medial collateral ligament sprain.
(b)In July 2016, she saw Dr Endrey Walder, a surgeon. Ivanna was asked whether she told Dr Walder that a few weeks passed after the music lesson fall before the knee fully settled and that she had used a crutch. Ivanna said she could not recall telling Dr Walder these things. In answer to a question of whether she remembered using a crutch after March 2015, she said, “No”.[30] She said that she did not think that she could have been wrong in her recollection that she had only ever used a knee brace.
(c)Ivanna visited Dr Peter Burgess, an orthopaedic surgeon, on 21 February 2019. She agreed that Dr Burgess asked her a series of questions about her health during the consultation. Some of those questions were directed to Ivanna’s medical history after the music lesson fall. Ivanna said she thinks she would have told Dr Burgess how many times she saw the physiotherapist after March 2015, but she could not recall whether she had. She was also unable to recall – that is, at the time of giving her evidence – how many times she had been to see the physiotherapist after the music lesson fall.[31]
(d)In relation to the music lesson fall, Ivanna agreed that after attending the physiotherapist the following day, she returned regularly over a period of three months. She said she was given exercises to do to ensure that everything was fine.[32] She maintained, however, that her knee was “fine” a week after the incident.[33] Ivanna was asked whether these physiotherapy sessions occasioned pain in her left leg from time to time. She said that she could not recall. She said that the physiotherapist did “not really” create a plan in relation to how many sessions would be required for the injury.
(e)Ivanna said that she returned to the same physiotherapist after the McDonald’s fall. However, she was not able to recall if there was a plan in relation to what treatment was required or the number of sessions she would need to attend for treatment.[34]
(f)Ivanna was referred by her general practitioner to Dr Brendan Klar, an orthopaedic surgeon. She saw Dr Klar in June 2016. In relation to the McDonald’s fall, Ivanna was asked whether she could recall having difficulty telling Dr Klar exactly how the fall took place. She said she could not remember.[35] Ivanna was also asked whether she told Dr Klar that there had been two occasions in her life where she recalled her left knee being unstable. She said she could not recall telling Dr Klar, but accepted that, if she had, it would have been correct.[36] Ivanna accepted that she told Dr Klar that she had a fall at McDonald’s. She also said that she believed she would have told Dr Klar that she had a similar episode earlier in 2015. She accepted that when describing these incidents, she would have told Dr Klar that her left knee had “given way”.[37]
[30] Transcript 18 November 2019, 91.
[31] Transcript 18 November 2019, 87.
[32] Transcript 18 November 2019, 82-83.
[33] Transcript 18 November 2019, 83.
[34] Transcript 18 November 2019, 94.
[35] Transcript 18 November 2019, 92.
[36] Transcript 18 November 2019, 92-93.
[37] Transcript 18 November 2019, 93.
In cross-examination about the events at McDonald’s in September 2015, Ivanna said that she had seen the footage of the incident. She said that prior to the incident, she was waiting in one area of the restaurant, and turned to make her way to the counter to place her order. At some point thereafter, she slipped. Ivanna said that she could not remember whether it was her left foot or right foot that slipped, and that watching the footage did not help her recall.[38] She rejected a proposition that she told staff before she left the store after the incident that her knee had “buckled”. She said that she would have described the incident as her knee having “given way after I had slipped”.[39]
[38] Transcript 20 November 2019, 10-11.
[39] Transcript 20 November 2019, 11.
Ivanna accepted that she had thought about the events of 17 September 2015 since they occurred, but that the actual moment of the slip occurred in a very short amount of time.[40] It was put to Ivanna that she did not have a direct recollection of the circumstances of her fall. After some clarifying exchanges as to what was meant by this, the following series of questions and answers occurred:
[40] Transcript 20 November 2019, 17-18
[MR HUTCHINGS:] Your recollection is that you were standing, deciding what to order?---Yes.
You went from the location at which you were standing toward the place where you would place an order?---Yes.
And suddenly you were on the ground?---Yes, because I slipped.
What I want to put to you is that the slipping about which you give evidence is not something about which you have a direct recollection, rather, it is what you assume occurred because you fell to the ground. What do you say to that?---I don't agree.
And it is your position that the floor was greasy; correct?---Yes.
And it is the case, is it not, that having observed the floor to be greasy, you have assumed that you have slipped?---I don't understand what you're asking.
Let me try and address it a different way. What I want to put to you is that when you found yourself on the ground, you immediately asked yourself how you came to be on the ground, and you looked around and saw the floor was greasy and said, 'That must be what happened, I must have fallen over, because I slipped.' What do you say to that?---I don't agree.
Now, I'll just put this - and forgive me for labouring, but just for absolute fairness. What I want to put to you is that what occurred is that as you turned and pivoted on your left leg, when you headed toward the counter where you would order, your knee gave way and you fell to the ground?---I took one or two steps before I slipped.
You disagree with the proposition I've just put, just so it's clear on the transcript?---Yes, I disagree.
What I want to put to you then is when you took the one or two steps, you can't be sure whether it was one or two, can you?---I was - it wasn't more than that.
But you can't be sure whether it's one or two, can you?---I believe it's two.
And you say that at the point of the second step, when you placed your left or right foot on the ground, you slipped?---Yes.
What I want to put to you is that at whatever point in time your feet was on the ground immediately before you fell, what happened was your left knee gave way - without a slip, is what I'm putting to you?---Yes, and I don't agree to that.[41]
[41] Transcript 20 November 2019, 18-19.
Ivanna was shown a document (which was identical to item 4 of the plaintiff’s tender bundle, Exhibit P2) and asked if she recognised it as the note that the manager took on 17 September 2015. She said that she could not say, and that she believed there was another one. When asked if it was possible that this recollection was not correct, Ivanna said that she did not recall.[42]
[42] Transcript 20 November 2019, 8.
Ivanna’s evidence was that after her mother arrived, McDonald’s staff erected two yellow “wet floor” signs. When pressed, she said she remembered there were not any signs prior to her fall, and that she did not believe it was the case that they simply brought signs that were displayed in another area of the restaurant to her immediate vicinity after the fall.[43]
[43] Transcript 20 November 2019, 12-13.
A representative of the McDonald’s called the next day. Ivanna did not speak with that person herself. She said that she believed that they spoke with her mother. She did not speak with the McDonald’s staff at all after 17 September 2015.[44]
[44] Transcript 20 November 2019, 8-9.
On 18 September 2015, Ivanna saw her general practitioner, who conducted an examination of Ivanna’s leg and left knee. She returned to visit this general practitioner again on at least 8 and 22 October 2015 to track the progress of her knee. Ivanna also saw a physiotherapist on 22 October 2015. She accepted that it was possible that she told the physiotherapist at that time that her condition had improved substantially.[45] She also accepted a proposition that it was possible that she told the physiotherapist that she was back at the gym and able to walk without pain, and that she told the physiotherapist this because it was true.[46]
The plaintiff: re-examination
[45] Transcript 20 November 2019, 15.
[46] Transcript 20 November 2019, 16.
In re-examination, the plaintiff was asked whether the document forming item 4 of Exhibit P2 was the note that her mother asked the staff at McDonald’s to write and that was given to them before they left. She said it was not. The plaintiff was shown another document which became Exhibit P3. She identified that document as the one that was given to her mother.[47]
[47] Transcript 20 November 2019, 29.
The plaintiff was again shown item 4 of Exhibit P2, which contained an assertion that the floor in the McDonald’s was in the process of being cleaned. Ivanna said that from what she observed “there was nothing being done”.[48]
Helena Kljusuric: examination-in-chief
[48] Transcript 20 November 2019, 38.
Helena Kljusuric said that she first became aware of the incident at McDonald’s on 17 September 2015 when she received a call informing her that Ivanna had slipped. She said that after receiving the call she changed her top and drove to McDonald’s, a journey which she estimated to take between five to ten minutes.[49]
[49] Transcript 20 November 2019, 41.
When Helena arrived, Ivanna was still on the floor. Helena said that she tried to help Ivanna to a seat, but “[a]s I went to pick her up my leg slipped. The floor was extremely filthy”.[50] Later, she said, “[a]s I went to pick her up, because she couldn’t get up on her own, so she was quite heavy, and my foot slipped and that’s why we had the giggle because Ivanna sort of thought, you know - like, we realised that the floor was in a bad condition by then”.[51] She assisted Ivanna to a stool and requested that a staff member bring ice for Ivanna’s leg. Helena said she asked that staff member to write down an incident report. She said “he wrote something very basic … He gave me a copy to take home and off we went”.[52] Helena identified Exhibit P3 as a copy of that document. Helena was referred to item 4 of Exhibit P2, which bears the heading “Incident/Visit Report”. She said she had never seen that document before, and that she had only received the document which forms Exhibit P3.
[50] Transcript 20 November 2019, 42.
[51] Transcript 20 November 2019, 49.
[52] Transcript 20 November 2019, 45.
Helena was asked whether she read Exhibit P3 when it was given to her. Her response was that she probably did not. She gave evidence that she did not have any discussions with the person who she asked to write the report about what should be in it. She said that she asked for a report “[b]ecause the floor was filthy, it was slippery”.[53] When asked what she meant by this, Helena said, “I can’t explain it. It was just - it was greasy, it was slippery”.[54]
[53] Transcript 20 November 2019, 48.
[54] Transcript 20 November 2019, 48.
Helena said that after she helped Ivanna to a stool,[55] she took a photo of the floor, but was told that she was not allowed to. Helena was shown photographs which appeared as items 1 and 2 of Exhibit P2. (Those photographs were the same photographs which form Exhibit P1 and MFI A.) The first photograph bears the date 17 September 2015 and a timestamp of 7:50pm. Helena identified that as a photo that she took of the floor because it was dirty. The second photograph bears the date 17 September 2015 and a timestamp of 8:08pm (and is identical to Exhibit P1). Helena identified the two yellow objects in that photograph as “slippery when wet” floor signs. She said that those signs were not in place when she first arrived.[56] Helena also identified the two following photographs (which had the same date and timestamp as the second) as photographs of the floor taken by her “because the floor was filthy”.[57]
Helena Kljusuric: cross-examination
[55] Transcript 20 November 2019, 49.
[56] Transcript 20 November 2019, 43-44.
[57] Transcript 20 November 2019, 44.
In cross-examination, Helena was asked questions about the notes prepared by McDonald’s staff in relation to the incident. She confirmed that she did not recall whether she read the note which forms Exhibit P3 at the time that it was given to her. She further repeated that she did not recognise the document titled “Incident/Visit Report” which forms item 4 of Exhibit P2.[58]
[58] Transcript 20 November 2019, 54.
Helena accepted that since 17 September 2015, she was told that Ivanna has, by nature of the anatomical structure of her left and right knee, a defect which might lead to her knee becoming displaced.[59] She also accepted that one of the options in relation to remedying that defect was a medical procedure.[60]
Danyon Todkill: examination-in-chief
[59] Transcript 20 November 2019, 57.
[60] Transcript 20 November 2019, 57.
Mr Todkill was formerly an employee of the defendant and was relevantly working the McDonald’s, Gold Creek on the evening of 17 September 2015. At that time, he would have been approximately fourteen years old.
Mr Todkill had been working at McDonald’s for approximately six months by 17 September 2015. He said that he received training prior to becoming a regular crew member. He described the training as a series of online modules relating to health and safety and customer service, and three shifts with a crew trainer.[61] He said there were online modules in relation to cleaning in public areas, which included instruction on how and when to mop floors, take out the bins, and “what to do when, you know food’s dropped and all those sorts of things”.[62]
[61] Transcript 20 November 2019, 63.
[62] Transcript 20 November 2019, 64.
Mr Todkill said that, in terms of actual practice, they would mop the floors when advised to do so by a manager, or when on the closing shift between 10:00pm and 11:00pm.[63]
[63] Transcript 20 November 2019, 64.
Mr Todkill was asked questions directly about the incident on 17 September 2015. His evidence, which sets out the order of events from his recollection, was as follows:
[MR WHYBROW:] And what do you recall of that incident?---There was a lady who walked in, she was accompanied by a few other people and she came over to the McCafé, and I believe I was walking from the McCafé over to the main cash registers and out of the corner of my peripheral vision, I just saw a lady fall. Once I had turned, she was halfway through falling and she hit the ground.
Okay. And did you make any observation as to how she came to fall?---Yes, she slipped - it was almost as if she rolled her ankle on - on the floor, like because the floors were slippery, she had turned and - yes. It's hard to explain but because I could see everything from the - you know, straight in front of me but the way she fell it was - it was like she rolled her ankle or some sort, like she - you know, mixed her feet up.
Now just so we understand, where were you standing in relation to her, when you saw this? Or if you can describe where you were in the restaurant?---In between the McCafé and the - and the main registers. So she was off to my - to my left.
Mr Todkill was asked what observations he made about the floor on that night. He said that “over time, after a few hours, they start to build up with like - it's almost like a bit of a greasy surface, like it’s a bit slippery … and because it was towards the end of the night, they were a little bit slippery”.[64] Mr Todkill was shown the photographs that were taken by Helena. He said that those photographs showed that “the floor’s a little bit greasy and you can see people’s foot marks on them”.[65] He was asked how long it had been prior to Ivanna’s fall that the floors had been mopped. Mr Todkill said:
I can't say how long, but definitely wasn't recently because after, you know a couple of hours, they start to build up with a bit of grease and they do have some grease on there.[66]
[64] Transcript 20 November 2019, 64-65.
[65] Transcript 20 November 2019, 65.
[66] Transcript 20 November 2019, 66.
Mr Todkill said that he could not recall whether he spoke to Ivanna, but that he provided aid to her of some sort. He said that he thought he arranged for the manager to see her. After Ivanna was lifted onto a stool, Mr Todkill said that he returned to attend the restaurant and left his manager with Ivanna.
Finally, Mr Todkill was shown a statement, signed by him and dated 17 September 2015. He said that he sat with his manager and “we typed it up in the computer and printed it out and signed it”.[67] He said that he thought that this would have occurred on his next shift, and that he did not think it would have occurred on 17 September.[68]
Danyon Todkill: cross-examination
[67] Transcript 20 November 2019, 66.
[68] Transcript 20 November 2019, 67.
In cross-examination, Mr Todkill accepted that, at the time of giving his evidence, the events of 17 September 2015 were not matters which he had given a great deal of thought to.
Mr Todkill stated that he could not recall exactly when the incident occurred. He was also unable to recall when his shift started that night, but he said it would have been either 4:00pm or 8:00pm. He estimated that he did between three to four shifts per week, and that each shift was between three to four hours long.[69]
[69] Transcript 20 November 2019, 70.
He accepted that, as he described in his evidence-in-chief, that Ivanna was to his left at the time she fell, and that as he turned to see her, she was already partway through her fall. He accepted that he did not see the mechanism of her fall, but added, “I couldn’t see what it was a hundred per cent cause by but the way that she fell is what led me to believe she - it's like she rolled her ankle”.[70] Mr Todkill said that at the time of Ivanna’s fall he believed he was walking from the McCafé to the “main register”.
[70] Transcript 20 November 2019, 67.
As at 17 September 2015, Mr Todkill was one of the more junior crew members at McDonald’s Gold Creek. He stated that while the cleanliness of the floors was something that managers “would’ve worried about”, if he had nothing to do and he saw that the floors needed cleaning, he would ask for permission to clean them.[71] Mr Todkill accepted a number of propositions put to him about the procedures he would follow for cleaning the floors. He said that when the floors were mopped, there would usually be some residual moisture on the floor (the amount of which varied depending on the level of care taken by the person using the mop).[72] He accepted that if the quality of the floor surface after being mopped was somewhere between wet and dry, it would be possible to see footprints in the surface if it was walked through.[73] However, he said that such footprints were different to those depicted in the photographs taken by Helena. His description was canvassed in the following exchanges:
[MR HUTCHINGS:] And those footprints would look like the footprints that are depicted in the second photograph, in the bundle before you. Correct?---It's different. With the - with the - when you're mopping, it's a different sort of footprint, it's more of an outline and you can tell, whereas that you can just see - I don't have it front of me, but you can - you can see there's a difference in it. That has sort of like a grease to it.
Turn back if you wish to page 2, the page number 2?---Yes, it's definitely - it's definitely different at that - those sort of footprint - footprints sort of hold - hold the form of the footprint more on the floor, if that makes sense, because they're from the - a bit of a grease, the dirt, whereas the water footprints are very light. It's more of an outline, I guess you would - you could tell the difference.
Right. So - and some of that depends upon your interpretation of what you're looking at, and the colour of it. Agreed?---Yes. Yes.
Could I ask you to turn to page 3. Do you see on page 3, that there appears to be the outlines of footprints on the floor?---That - those are like a thick footprint, so I was talking about from the grease, they're where you can see everything.
And - - -?---And it has a different sort of - when it's all greasy, you can see it has like a different reflection almost, if you - if you'd say that. It has a different sort of reflection.
Which depends on whether you're looking at it or photographing it, I suspect?---Sure.
[71] Transcript 20 November 2019, 69.
[72] Transcript 20 November 2019, 72.
[73] Transcript 20 November 2019, 72.
In relation to the statement referred to during his examination-in-chief, Mr Todkill said that although he could not recall who actually typed the document, “it came from me, it was my words”.[74] He agreed with a suggestion that he signed the document because he believed its contents were accurate.[75] That statement was received into evidence as Exhibit D1.
The expert evidence
[74] Transcript 20 November 2019, 69.
[75] Transcript 20 November 2019, 69.
As noted earlier, the evidence of Mr Contoyannis and Dr Gibson was given concurrently.
In his report, Mr Contoyannis posits three scenarios to explain the subluxation that occurred to the plaintiff’s knee. These scenarios were accepted to be appropriately described as follows:
(a)Scenario 1: the plaintiff slipped, her knee subluxated and she fell.
(b)Scenario 2: the plaintiff slipped, she fell to the ground, and upon striking the ground the impact force caused the subluxation.
(c)Scenario 3: the plaintiff turned, and, without any slip, her knee subluxated causing her to fall to the ground.
I record a detailed analysis of the relevant parts of the experts’ evidence later in these reasons.
Did the defendant breach its duty of care?
The reliability of the plaintiff’s evidence
It is appropriate here to make some observations about the testimony of the plaintiff.
Ivanna gave her testimony in a straightforward manner. She presented as doing her best to recall the matters about which she was questioned. She was only seventeen years of age at the time of the incident and was giving her testimony a little over four years after it had taken place.
She expressed recollection of the incident in terms of her foot having slipped and her leg giving way. It is apparent that she means that the events occurred in that order – that is, she slipped and then her leg gave way. It is perhaps somewhat surprising that she says she cannot recall which leg slipped.
It was not suggested to the plaintiff in cross-examination that she was not telling the truth in her recollection of events. What was put to her was that her assertion that she had slipped was in fact an assumption she had made based upon the fact that she had fallen and her observation after the fall that the floor was greasy. She rejected that proposition.
One aspect of the defendant’s submissions about her testimony calls for close consideration. The submissions draw attention to the evidence about how the plaintiff described her fall. As I understand the submission, it is that there is evidence that the plaintiff said simply that her knee gave way, and that, if she did so, an inference that the fall was initiated by the subluxation of her knee (and without any prior slip) can be more readily drawn.
The submission relies upon the not unreasonable premise that the use of the words “gave way” are likely to have been used by the plaintiff to describe the sensation of a subluxation having occurred.
The evidence about how the plaintiff apparently described what had taken place comprises the following:
(a)The incident report (item 4 of Exhibit P2), which states “customer … was quoted as thier [sic] “knee buckled””.
(b)Notes dated 18 September 2015 taken by a physiotherapist, which appear as follows:
18/9/15 c/o – went to gym last night only did upper body
--> at Macca’s slipped on floor as went turn. knee
translated medially felt it ‘give way’.
unable to WB evident swelling an hour later.
--> still unable to WB.
(c)Notes taken at a consultation with Dr Kelly Lowther dated 18 September 2015, in which the doctor records:
slipped and fell on greasy McDonalds floor last night, L knee twisted
acute pain in L knee
seen physio this morning, put into knee brace and advised for MRI L knee.
(d)Notes taken at a consultation with Dr Emily Nicoll dated 24 September 2015, in which the doctor records:
for review of MRI results
tripped on greasy floor at Gold Creek McDonalds on 17/09
(e)A letter from Dr Klar to Dr Perera dated 4 July 2016, which states:
Thanks for your note regarding Ivana Kljusuric whom I saw with her mum on 29 June 2016 with left patellofemoral instability.
She has had two episodes where the knee has been unstable. One was several months ago when she fell over in McDonalds and in 2015 she had a similar episode. She is not exactly sure what happened but she thinks the knee cap subluxed.
(f)Notes taken at a consultation with Dr Harin Desai dated 12 July 2016, in which the doctor records:
Current Hx (L) knee
- approx 10/12 ago
--> slipped at McDonald’s --> (L) leg collapsed inwards and than [sic] patient fell over to her (L) side
--> patient unsure about hearing something…‘ I think it was a pop’
--> Did not move after fall…swelled quickly
(g)A letter from Dr Popoff to Dr Perera dated 1 March 2017, which states:
Ivanna injured her left knee in September 2015. She slipped on a greasy floor in a McDonalds [sic] and suffered what was almost certainly a dislocation of her patella.
(h)A letter from Dr Best to Dr Popoff dated 15 January 2018 15/1/18
As you know, this 20 year old receptionist injured her left knee in September 2015. She slipped on a floor in McDonalds [sic] and gives a good history of a left patellar instability episode. She stated that the floor was greasy.
(i)The plaintiff’s testimony. During her evidence-in-chief, she stated that her “knee gave way, but I slipped”, and subsequently, “I slipped and my knee gave way”. Then, during cross-examination, she denied having told McDonald’s staff that her knee “buckled”. Says she would have described the incident has her knee having “given way after I had slipped”.[76]
[76] Transcript 20 November 2019, 11.
I attach no weight to what appears in the incident report prepared by Mr Dale Ware for the reasons which appear later.
As to the other descriptions referred to in the evidence to which I have referred, I make the following observations:
(a)I am mindful of the cautious approach to drawing inferences from apparent inconsistencies in accounts given to health professionals as enunciated by Basten JA in Mason v Demasi [2009] NSWCA 227 at [2];
(b)The plaintiff’s apparent descriptions of the incident include a largely consistent reference to slipping;
(c)A crucial question in this case is when a subluxation of the plaintiff’s left knee took place – that is, before, during, or after her fall. However, it is not in contest that she did in fact suffer a subluxation at the time. In those circumstances it is hardly surprising that the plaintiff’s description of the incident would also include some references to her knee giving way.
In all the circumstances, I am not persuaded that the evidence about how the plaintiff apparently described the incident before her in court testimony calls into question the reliability of that testimony or constitutes a basis for rejecting that testimony.
The presence or absence of warning signs
It is convenient to move next to the evidence on the question of the presence or absence of relevant warning signs at the McDonald’s.
I am satisfied that there were no relevant warning signs present at the time of the plaintiff’s fall and I so find.
I reach that conclusion based upon the defendant’s answer to the plaintiff’s interrogatory number 27 (in evidence as Exhibit D5) and the testimony of the plaintiff and her mother. I note the absence of any reference in the testimony of Mr Todkill to any warning sign or any relevant cleaning activity at the time.
I further find that warning signs were placed in the area by the defendant’s employees or agents shortly after the plaintiff’s fall. I reach that conclusion based upon the testimony of the plaintiff and her mother, what can be seen in the photographs in evidence and the concession made in the Defence at paragraph 6.
In making those findings, I reject the evidence to the contrary which comprises item 4 of Exhibit P2 and is described as the “Incident/Visit Report”.
Some comments about that report are, however, called for. What appears under the heading “Describe the Incident” is in these terms:
While in the restaurant, customer allegedly slipped on floor. Was quoted as their “knee buckled”. Floor was in process of being cleaned. Wet floor signs were on display. Floor was dry, customer rested briefly and was given ice for knee, assisted out by family member, who took photos of floors without permission. At no time was the floor wet.
Earlier in the document it is recorded that the manager on duty at the time was Dale Ware, that he was the person to whom the incident was reported, and that he completed the form.
Mr Ware was not called to give evidence. Whether he or some other person was the source of the information in the form is not known.
Whoever that source may have been, it is apparent that what Mr Ware wrote in the form about cleaning being in process and the presence of wet floor signs is plainly wrong insofar as the site of the plaintiff’s fall is concerned.
That conclusion causes me to doubt the reliability of the other information which the form purports to record, and, in particular, what is attributed to the plaintiff as having been said by her.
I add also that the language and contents of the description in the document are somewhat curious. The reference to the customer slipping is prefaced with “allegedly”. There is an initial comment that the floor was dry as well as a later comment that at no time was it wet. There is no explanation as to how that sits with the comment that the floor was in the process of being cleaned. The report says nothing about the actual state of the floor at the time and at the site of the fall under circumstances where what can be seen in the photographs might be thought to call for some comment. The comment made that photos were taken includes that it was “without permission”. Overall, I was left with the impression that the language used in the description was defensive and self-serving.
The state of the floor
I turn to deal with the evidence about the state of the floor.
There are three photographs of the floor in evidence at pages 1, 2, and 3 of Exhibit P2. They are photographs taken by the plaintiff’s mother when she attended the McDonald’s restaurant shortly after the incident. Despite the defence submission, I am satisfied that they depict the area where the fall took place. The plaintiff was still on the ground when her mother arrived. It would have been non-sensical for her mother to have taken photographs of some different area, not including the site of the fall. It was not put to her in cross-examination that she had done so.
The photographs show a dark-coloured hard tiled floor. In places the floor reflects light from what are presumably overhead lights. At and around the places where the light is reflected there are obvious shoeprint marks. The marks are numerous, making it apparent that they are the product of what is on the floor and not, for example, what might have been a contaminant on the shoe of one or a couple of pedestrians.
The plaintiff described the floor as “greasy” in her testimony. She said that observation was based upon seeing the shoeprints which are depicted in the photographs as well as the fact that she was left with grease on her hands and clothing. For her part, Helena described the floor as “extremely filthy”, “greasy”, and “slippery”. She gave evidence of having slipped herself while assisting her daughter to get up off the floor.
The words “grease” and “greasy” were specifically used by the witnesses. There is no evidence as to what was the precise nature or chemical composition of the substance being described by them, but that is not necessary. I have approached the analysis on the basis that the witnesses intended (as I do) that the words have their ordinary meaning – that is, describing a thick, oily substance.
I do not treat the observations that the floor was greasy as lay opinion evidence. It is evidence of what the witnesses observed – that is, that there appeared to be a thick, oily substance on the floor.
Mr Todkill’s evidence, as I understood it, was that a build-up of grease was commonplace between the occasions when floor cleaning took place. Given the use of the premises as a fast food restaurant serving fried food, it is hardly surprising that grease might find its way on to the floor.
The defence submissions point out that in Mr Todkill’s statement made at about the time of the incident (in evidence as Exhibit D1) no reference is made to the floor being slippery. That is correct. I note that the statement was apparently made at the request, and with the assistance, of an unknown manager. I have already made some observations about the apparently defensive and self-serving tenor of the incident report prepared by a store manager. The statement comprises a single sentence describing what Mr Todkill saw. Mr Todkill did agree with a suggestion that he signed the document because he believed its contents were accurate. No question was asked about whether it was comprehensive or why it did not include any reference to the floor being slippery. In the circumstances, I attach little weight to the absence of any reference to the floor being slippery in Mr Todkill’s statement.
In any event, Mr Todkill’s testimony that the floor was slippery is in a different category to testimony that the floor was greasy. The ordinary meaning of the word appears in the Macquarie Dictionary relevantly as “tending to cause slipping or sliding”.[77] The presence of grease can be noted by simple visual observation of the surface. Whether a surface is slippery, however, logically requires some action to test whether there is a tendency to cause slipping or sliding when objects come into contact with that surface. Mr Todkill’s reason for using that descriptor was not explored. There is no evidence that Mr Todkill had himself slipped or slid on the floor or had otherwise tested whether the floor tended to cause slipping or sliding. In the circumstances, I do not treat his use of the term “slippery” as lay opinion evidence that the surface was in fact slippery. In the context in which the description is used, I take his use of the term to mean no more than that he expected the floor to be slippery as a result of this observation that it was greasy.
[77] Macquarie Dictionary (online at 25 May 2020) ‘slippery’.
I admitted into evidence in the plaintiff’s case a report by Dr John Cooke dated 14 February 2019, on the basis that certain parts of it were not admitted. The transcript records what parts were not admitted. Dr Cooke clearly has expertise in his chosen field. He had seen photographs of the floor but had not visited the site or conducted any testing of the floor. As counsel for the defendant correctly submits, the opinions he expresses (insofar as they relate to the state of the floor as shown in the photographs) rely upon assumptions based upon his interpretation of what is shown in the photographs. I agree with the submission and have attached little weight to Dr Cooke’s opinion.
As a matter of common experience, however, what can be seen in the photographs is consistent with the presence of grease on a hard-tiled floor, and, as a matter of common experience, the presence of grease on such a floor is likely to lead to it being what can fairly be described as “slippery”.
Existence and adequacy of cleaning procedures
The question of breach of duty does not turn only on the state of the floor. There is other relevant evidence by way of the testimony of Mr Todkill.
Mr Todkill’s testimony included that the practice at the time was to mop floors when told to do so by a manager, or when on the closing shift between 10:00 pm and 11:00pm. His testimony also included that “and because it was towards the end of the night, they were a little bit slippery”.[78] That evidence impliedly indicates that it was not unusual for the floors to become “a little bit slippery” towards the end of a night and suggests inadequacy in whatever cleaning routine existed.
[78] Transcript 20 November 2019, 64-65.
Mr Todkill also said in evidence that if he had nothing to do and saw the floors needed cleaning, he would ask permission to clean them. That a fourteen-year-old employee might feel the need to initiate cleaning again suggests inadequacy in whatever cleaning routine existed.
When asked how long it had been prior to the plaintiff’s fall that the floors had been mopped, Mr Todkill said:
I can't say how long, but definitely wasn't recently because after, you know a couple of hours, they start to build up with a bit of grease and they do have some grease on there.[79]
[79] Transcript 20 November 2019, 66.
That testimony again suggests inadequacy in whatever cleaning routine existed.
Analysis
The provisions of s 168 of the Wrongs Act apply.
In Brozinic v ISS Facility Services Australia Ltd [2014] ACTSC 8 (‘Brozinic’) at [51] – [52], Master Mossop (as his Honour then was) offered the following comment on the relationship between s 168 and the common law rules that it replaced:
The obligations of an occupier are set out in s 168 of the Civil Law (Wrongs) Act 2002. As I indicated in Harris v Commissioner for Social Housing (2013) 8 ACTLR 98 at [144]–[146] it is not clear what useful consequence the legislature was attempting to achieve when enacting s 168. Although the [section] makes it clear that it replaces the common law rules about the standard of care that an occupier of premises must show to people entering on the premises: s 168(4), the test under s 168 is, in substance, the same as the common law although the factors in s 168(2) groups together a list of factors to be considered.
Although the legislature’s intention as to the relationship between the tests in s 42 and s 168(1) and in s 43(2) and s 168(2) is not clear (and worthy of some legislative consideration), I proceed on the basis that the provisions of Ch 4 of the Civil Law (Wrongs) Act need to be applied, in addition to s 168, in determining whether or not the second defendant breached its duty of care: s 41. Therefore ss 42, 43, and 44 are relevant to assessing whether or not there has been a breach of the second defendant’s duty of care and the test of causation in s 45 must be applied.
The defendant submitted that the duty of care as pleaded by the plaintiff is one which is not recognised by law, but it is not in dispute that a general duty of care existed, and, on my understanding of the submissions, it is conceded that s 168 applies.
The common law referred to by Master Mossop in Brozinic was expressed by Deane J in Hackshaw v Shaw [1984] HCA 84; 155 CLR 614 at 663 (affirmed in Australian Safeway Stores Pty Ltd v Zuluzna [1987] HCA 7; 162 CLR 479 at 488 and later decisions) where his Honour said of the duty:
The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.
Slip and fall cases alleged to have been caused by floor contamination in commercial premises are not uncommon. It is not necessary for a plaintiff in such cases to point to some evidence permitting an inference to be drawn concerning when a contaminant was deposited on the floor. It is, of course, necessary for the purposes of establishing causation that the plaintiff prove that it was more probable than not that the defendant’s negligence was a necessary condition of the fall.[80]
[80] Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [34].
In Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182, their Honours French CJ, Gummow, Crennan and Bell JJ noted at [34] that:
[T]his onus could be discharged by consideration of the probabilities in circumstances in which the evidence did not establish when the [contaminant] was deposited. The point was illustrated by Hayne JA (as he then was) in Kocis v S E Dickens Pty Ltd. His Honour posited a case in which reasonable care required the occupier of premises to carry out inspections at hourly intervals. Assume that no inspection is made on the day the plaintiff slips on a spill eight hours after the premises opened for trading. If there is no basis for concluding that the spill is likely to have occurred at some particular time rather than any other time, the probability is that the spill occurred in the first seven hours of trading and not in the hour preceding the plaintiff’s fall. As Hayne JA observed, a plaintiff must prove his or her case on the balance of probabilities and it is no answer to the question whether something has been demonstrated as being more probable than not to say that there is another possibility open. The determination of the question turns on consideration of the probabilities.
The propositions expressed in Strong v Woolworths [2012] HCA 5; 246 CLR 182 are primarily relevant to the question of causation, rather than breach. At issue in that case was the test for “factual causation” to be applied under s 5D(1)(a) of the Civil Liability Act 2002 (NSW). That test is relevantly identical to the test which appears in s 45(1)(a) of the Wrongs Act.
What is relevant for present purposes, however, is the High Court’s conclusion that even though it is unnecessary for a plaintiff to point to some evidence permitting an inference to be drawn as to when a contaminant was deposited on the floor, it does not follow that a plaintiff is “relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant”.[81] This latter proposition comes from Dixon CJ in Hampton Court Ltd v Crooks [1957] HCA 28; 97 CLR 367. His Honour added to that the following qualifications: first, that “slight evidence may be enough unless explained away by the defendant” and, second, “that the evidence should be weighed according to the power of the party to produce it”.[82]
[81] Hampton Court Ltd v Crooks [1957] HCA 28; 97 CLR 367 at 371.
[82] Hampton Court Ltd v Crooks [1957] HCA 28; 97 CLR 367 at 371.
I refer later to the evidence in the defence case.
It is necessary at this point to deal with a particular defence submission about the relevant Australian standards. In its written outline of closing submissions, the defendant says, with reference to Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 (‘Garzo’), that “[i]t must be accepted for present purposes that non-compliance with a relevant standard does establish a breach of duty by an occupier”. In oral submissions, Mr Hutchings went on to say, again with reference to the decision in Garzo, that “if your Honour accepts the lay opinion evidence that the description of that contaminant is accurate when it is said to be grease, your Honour has to be satisfied that that floor surface, with the addition of grease, would have brought it below the accepted Australian standard in relation to coefficients of frictions of floors upon which pedestrians are accepted to walk”.[83]
[83] Transcript 22 November 2019, 49.
I do not accept that submission. In addition, I am not persuaded that the decision in Garzo is properly quoted as authority for the starting proposition that non-compliance with a standard establishes breach of duty. In the paragraphs in Garzo which are quoted as authority for that starting proposition Basten JA (at [11]) expressly rejected such an assumption as erroneous, while his Honour Tobias AJA (with whom Meagher JA agreed) stated (at [163] – [165]):
The simple fact is that the respondents utilised a paint in respect of which, according to its Technical Data Sheet, its use in July 2007 other than for linemarking of roadways and the like, inferentially indicated that it was inappropriate for the purpose for which it was applied by Mr Turner. Whether by the end of November 2007 the paint had degraded to the point where its slip resistance met the recommended standard of 45 BPN or greater, is not relevant to the present issue although it is highly relevant to the issue of causation. This is because by that time the effect of any breach of duty which originated in July 2007 may have become neutralised or spent as a consequence of any such degradation so that it was no longer a material contributing factor to the appellant slipping.
In my opinion, the conclusion is inescapable that the respondents failed to take the basic precaution in July 2007 (as well as in 2005) of ascertaining whether the Rocol Easyline Paint was sufficiently slip resistant to be appropriate for painting or repainting the crossing in circumstances where they knew that the painted surfaces would not wear uniformly. Accordingly, s 5B(1)(c) was satisfied in that a reasonable person in the position of the respondents would have taken the precautions to which I have referred.
It follows from the foregoing that in my opinion the respondents breached their duty of care to those who would use the crossing including the appellant.
I cannot discern in those referenced parts of the decision in Garzo any support for the proposition put as the starting proposition in the defence submission. But what is more to the point for present purposes is the corollary submitted – that is, as I understand the submission, that no breach of duty can be found unless the court concludes that the state of the floor was “below the accepted Australian standard in relation to coefficients of frictions of floors upon which pedestrians are accepted to walk”.[84] Again, I reject the proposition at least to the extent that it intends to focus the required analysis upon the lack of evidence of floor testing and to impliedly suggest that, in the absence of test results, breach of duty cannot be established.
[84] Transcript 22 November 2019, 49.
It is correct to observe that there is no direct evidence before me as to the degree of slipperiness of the floor. Some inferences, however, might be drawn from the other evidence.
One is that, from what can be seen from the photographs, the amount of grease on the floor is significant and its presence appears to be is widespread. One of the photographs does not show any features other than the tiled floor. It is apparent, however, that the other two are taken from different camera angles and, in each case, they show the apparent presence of grease at points both closest to and furthest from the camera.
The widespread nature of the grease contamination seen in the photographs suggests that it results from a gradual build up over a period of time and not from a single accidental spill. It has the hallmarks of what was described by Mr Todkill (whose evidence I accept) when he said “over time, after a few hours, they start to build up with like - it's almost like a bit of a greasy surface, like it’s a bit slippery”.
The extent of the grease on the floor is also indicated by the testimony of the plaintiff who says that after her fall she could see that the floor was greasy and she had grease on her hands and clothes. I accept her testimony about that. It leads me to infer that the grease on the floor was present to such an extent not only to be visible to the plaintiff and in the photographs but also to noticeably transfer upon contact to her clothes and skin.
As a matter of common-sense the extent of the deposit of grease on a hard-tiled surface affects the slipperiness of the surface.
In addition, there is unchallenged testimony from Helena that her foot slipped on the floor in the course of her assisting the plaintiff to her feet. The defendant correctly points out that there is no evidence as to the manner in which Helena attempted to assist her daughter and whether the manner she employed may have increased the chance of slipping. I accept that to be the case, but it is a submission which goes to the weight to be attached to Helena’s evidence about her slip and does not mean that the evidence is irrelevant.
It is also not irrelevant that there is no evidence whatsoever from the defendant about floor cleaning. In particular, there is no evidence about what the defendant says was the state of the floor at the time, there is no evidence about when cleaning last took place, and there is no evidence about any routine for directing cleaning to take place being adopted or followed by the manager. Whilst the plaintiff bears the onus of proof regard must be had to the observation of Dixon CJ “that the evidence should be weighed according to the power of the party to produce it”.[85]
[85] Hampton Court Ltd v Crooks [1957] HCA 28; 97 CLR 367 at 371.
Having regard to all of the above, I am satisfied, and I find, that, at the time and place of the plaintiff’s fall:
(a)grease was present on the floor; and
(b)the presence of the grease caused slipperiness and a risk of injury which constituted a breach of the defendant’s duty to take all care that was reasonable in the circumstances to ensure that the plaintiff did not suffer injury or damage.
Causation
The defendant’s case is that even if breach of duty is established it did not cause the injuries of which the plaintiff complains. The factual question of causation is to be determined by reference to the statutory test in s 45 of the Wrongs Act. That is, a decision that negligence caused particular harm requires, inter alia, “that the negligence was a necessary condition of the happening of the harm (‘factual causation’)”.[86] In circumstances where s 5D(1)(a) of the Civil Liability Act 2002 (NSW) and s 45(1)(a) of the Wrongs Act are relevantly identical,[87] it is worth noting what the High Court said in Strong v Woolworths [2012] HCA 5; 246 CLR 182 at [18]:
The determination of factual causation under s 5D(1)(a) [of the Civil Liability Act 2002 (NSW)] is a statutory statement of the “but for” test of causation: the plaintiff would not have suffered the particular harm but for the defendant’s negligence.
The expert evidence
[86] Wrongs Act s 45(1)(a).
[87] The legislation in this jurisdiction uses the word “happening” instead of the word “occurrence” which appears in the New South Wales Act. The question as to whether anything turns on that difference does not arise in this case.
I turn to consideration of the expert evidence. It is convenient to start with what is agreed.
The experts agree upon the mechanisms which constitutes what Mr Contoyannis described as a “stumble recovery”.
The experts agree that the plaintiff suffered a subluxation of her left kneecap on 17 September 2015.
The experts agree that the subluxation of the plaintiff’s kneecap occurred in accordance with one of the three scenarios described in Mr Contoyannis’ report as:
(a)Scenario 1: the plaintiff slipped, her knee subluxated and she fell.
(b)Scenario 2: the plaintiff slipped, she fell to the ground, and upon striking the ground the impact force caused the subluxation.
(c)Scenario 3: the plaintiff turned, and, without any slip, her knee subluxated causing her to fall to the ground.
The experts agree upon the usual mechanism involved in a subluxation of the knee. For simplicity, I summarise it from the evidence in this fashion. There is an inner thigh muscle which runs from the groin to the knee. There is also an outer thigh muscle runs from the hip to the kneecap. Subluxation occurs when the outer muscles tighten and the inner muscles are slack. The force of the tightening of the outer muscles partially dislocates the patella against the lack of resistance offered by the inner muscle.
After the description of the mechanism involved in a subluxation, Mr Contoyannis gave an example of how it might come about. He said that it might occur where a foot is planted and the body twists in the opposite direction to the direction to the direction that the foot is pointing. He gave the example of the left foot planted facing left with the knee slightly bent when the body twists to the right. He said that the interaction between the two muscle groups might be such as to occasion a subluxation. Dr Gibson said that he agreed with Mr Contoyannis “in general terms”.
The experts agree that for a subluxation to occur there would need to be a degree of flexion of the knee. The lesser the degree of flexion, the less likely it is for a subluxation to occur.
It is appropriate to record at this point my analysis of three particular factors in the assessment of the evidence about what led to the plaintiff’s fall. They are matters raised by Dr Gibson in his evidence, and were obviously taken into account by him in forming his opinion. They are, firstly, that the plaintiff suffered from a defect to the anatomical structure of her left knee referred to as a “shallow trochlear groove”; secondly, that she had suffered an earlier event of subluxation of the same knee; and, lastly, that fatigue may affect the likelihood of a subluxation.
The experts agree that the phenomenon of the shallow trochlear groove increases the risk of subluxation. Indeed, both experts agreed that “the presence of a shallow trochlea [groove] … would materially affect the amount of force required for a knee to sublux”.[88] They also agreed that after an event of subluxation has occurred, a second subluxation is more likely.
[88] Transcript 21 November 2019, 17.
No attempt was made to quantify or more precisely describe the extent of the increased risk in either circumstance. It may not be possible to do so. The evidence establishes that there had been a single occurrence of subluxation some six months before the McDonald’s fall, and that the plaintiff had undertaken physiotherapy following the first occurrence. Dr Gibson conceded that strengthening of the muscles in the area reduced the likelihood of recurrence, but only partially.
As to fatigue, Dr Gibson evidence was that “she had just come back from an exercise program, so she would have been quite tired and this also has a little bit of an effect on what actually occurred”. Later, he said “[w]ell any fatigue can mean that - it’s actually quite well known that fatigue means that we’re less precise with our body movements”.
Mr Contoyannis, on the other hand, offered the following explanation of the effect of fatigue:
Yes, fatigue is an interesting fact. The fact that she's come from a gym class using things like steppers and treadmills, that's where she's more likely to become highly fatigued. Fifteen, 20 minutes afterwards, anatomically and physiologically speaking, the fatigue is starting to lessen dramatically.
So the fatigue in muscles that Dr Gibson was referring to I would expect fatigue, and therefore the consequence of controlling joints, and therefore potentially the consequence of this injury or any other injury occurring, to occur while she's doing that exercise or towards the tail end of that exercise regime, not after she's finished and been walking around, making it to whatever she's made it to, et cetera. So I think fatigue was brought up but not really clearly explained.[89]
[89] Transcript 21 November 2019, 43.
In the course of giving her testimony, the plaintiff had been asked about her exercise regime, but no questions had been directed to her specifically about how tired or fatigued she felt. I record my observation that her exercise regime did strike me as being quite modest rather than strenuous.
I have approached the matter on the basis that:
(a)both the existence of a shallow trochlear groove and the fact of the earlier subluxation increase the likelihood of a later event of subluxation; but
(b)I do not take into account the effect of fatigue as a condition making subluxation more likely.
Scenario 1
In the course of the evidence about Scenario 1, it became apparent that the experts disagreed about what could be discerned from certain still shots taken from the CCTV footage. The relevant still shots are those appearing as Figures 8, 9, and 10 of Mr Contoyannis’ report.
Mr Contoyannis’ evidence was to the effect that what can be seen of the plaintiff’s left foot in Figures 8 and 9 indicate a slip of her foot. In summary, he said that between Figures 8 and 9 Ivanna’s left foot was “still more or less flat onto the ground and it is certainly in a different position” in each still image.[90] That is, there had been movement of the foot while it was in contact with the floor.[91] Further, he said that in Figure 10, Ivanna’s left heel was raised, which “would be consistent with the beginning of a fall”.
[90] Transcript 21 November 2019, 26.
[91] Transcript 21 November 2019, 27.
In response, Dr Gibson said this:
[M]y interpretation of what happens with the left foot is that it's parts of the claimant's motion that led up to the fall. And that there is a shift in the left foot but it's a continuous motion occurring there because in the next frame that's shown the ankle flexes. So we've got I think three frames all together which show them and there is definitely a shift between … figure 8 where you can see the toe come into view, but we don't even know at that point whether the foot is on the floor. We have then figure 9 where there is more of the ankle in view, and then in figure 10 there is actual flexion, so the foot is planted and the claimant is actually moving over the top at that point. She's actually, in a sense I guess you could say that seems to have actually started to fall forward, so that is how I interpreted it. I didn't interpret that the difference between figure 8 and figure 9 was due to a slip of the foot.
Both experts went on to say other things about what can be seen and inferred from what is shown in the still shots which are Figures 8, 9, and 10. Mr Contoyannis maintained his opinion that what can be seen of the position of the plaintiff’s left foot between Figures 8 and 9 indicates the slip of her foot. Dr Gibson maintained his position that it did not do so on the basis, as I understood his evidence, that it was not possible to tell whether the foot was in contact with the floor at both times.
The still images are not very clear and nor is the CCTV footage from which they were taken. Perhaps the most that can or need be said for present purposes is that what can be seen does not, of itself, justify a conclusion one way or the other about whether the plaintiff’s foot stays in contact with the floor.
Scenario 2
This scenario involves the plaintiff slipping and falling and the impact between the plaintiff’s knee and the floor causing the subluxation. Both experts acknowledged this scenario as a possibility but also acknowledged that there was no evidence of injury to the outer surface of the knee and that no internal examination – for example, by way of arthroscopy – had been carried out.
Scenario 3
Scenario 3 involved what had been described as spontaneous subluxation – that is, the subluxation occurring without any preceding slip and it being the cause of the plaintiff’s fall.
In the course of the expert evidence about Scenario 3, Mr Contoyannis referred to his evidence about the usual mechanism of a subluxation – that is, what I have simplified as the tightening of the outer thigh muscles and loosening of the inner thigh muscles. Dr Gibson had said early in the course of his testimony that he agreed generally with Mr Contoyannis’ opinion on that point.
In response to a question from counsel for the defendant, Mr Contoyannis agreed that the mechanism of injury he described “is of a normal knee subluxing”. Dr Gibson said that his agreement with Mr Contoyannis on the point was also in relation to a “normal” knee.[92]
[92] Transcript 21 November 2019, 17.
The questioning which followed led to both experts agreeing that “the presence of a shallow trochlea [groove] in a knee would materially affect the amount of force required for a knee to sublux”, but did not otherwise go to any change to Mr Contoyannis’ opinion about the directional forces involved. Mr Contoyannis’ evidence was that the plaintiff’s movements prior to the fall would result in a tightening of the cables in the muscle on the inside of the thigh and a loosening of the cables in the muscle on the outside of the thigh. In other words, because of the rotation of the thigh inwards, subluxation would not have occurred.[93]
[93] Transcript 21 November 2019, 34-35.
I struggled somewhat in understanding Dr Gibson’s response to Mr Contoyannis’ line of reasoning. He referred to an article by Philip Bhuttaravoli (who was quoted in Dr Gibson’s supplementary report) but did not at that point in his testimony go on to explain his opinion in a way which engaged with Mr Contoyannis’ reasoning. I ultimately formed the view that Dr Gibson was saying that he did not disagree with Mr Contoyannis’ opinion in theory – that is, that if the left foot was placed to the left and the torso twisted to the left it is unlikely that spontaneous subluxation would occur. What Dr Gibson appeared to dispute was that the basis for that opinion had been established.
As the basis for his opinion, Mr Contoyannis had said that the footage shows, just prior to the fall, Ivanna placing her foot to the left and beginning to turn and shift her bodyweight to the left as well. As I understood his testimony, it is that mechanism which results in the tightening of the cables of the inside thigh muscle and the loosening of those of the outside thigh muscle, thereby making subluxation unlikely.
Dr Gibson’s response, as I understood it, was that the video was not sufficiently clear to establish precisely how the plaintiff had moved immediately before her fall. The following exchange then took place:
MR WHYBROW: All right. So that was going to be where I went after that first question that you agree in principle with the line of reasoning adopted by Mr Contoyannis, but you say that there is another mechanism which does not involve that mechanism that's been described by Mr Contoyannis?
WITNESS GIBSON: No, well, if you think about the direction of force as you're moving to the left, and we're really talking about relatively minor changes in the angle of that force with respect to where the foot has been planted.
MR WHYBROW: Yes. And - - -?
WITNESS GIBSON: So you can get a motion where the centre of gravity, if you like, of the body is moving so that it's line of action is outer from the knee centre, or inner from the knee centre, or directly in the direction that the foot has moved. And all of that is quite critical in terms of what the outcomes of such a motion might be.
MR WHYBROW: Yes. And you're saying that that may result in the application of forces which are different to those assumed by Mr Contoyannis in his explanation?
WITNESS GIBSON: No, I'm agreeing with him. I'm just saying that it's one of the possibilities that we can list in this.[94]
[94] Transcript 21 November 2019, 37.
When the evidence was being given, I had expected Dr Gibson’s answer to that last question to be in the affirmative. Having had the opportunity to review the exchange at leisure and with the benefit of a full transcript I think that what Dr Gibson intended by his answer was that he agreed with Mr Contoyannis’ opinion in theory (as I have already recorded) but the CCTV footage was unclear (as I have also already recorded) and there were other possibilities about the forces resulting from the plaintiff’s movements in the lead up to her fall.
My conclusion about what Dr Gibson intended is reinforced by a subsequent exchange in the course of the experts’ testimony when both experts agreed that the point of difference between them on Scenario 3 was the angle of the body, the load on the knee, and the direction of the forces involved.[95]
[95] Transcript 21 November 2019, 38-39.
That led to the following exchange:
MR HUTCHINGS: And, Mr Contoyannis, you've made an assumption about the direction of force and the only source for that assumption is what you describe as the regrettably grainy CCTV video.
WITNESS CONTOYANNIS: Contoyannis here. Yes, that's correct. But my assumption has been that she's turned and moved to the left.
MR HUTCHINGS: And do you understand Dr Gibson's observation that the CCTV video does not contain the necessary detail to make a conclusion about the direction of the body and the degree to which force has been applied to the left knee immediately before the fall?
WITNESS CONTOYANNIS: Contoyannis here. I understand what Dr Gibson is saying. I can't see how biomechanically that can occur as somebody places their foot to the left and turns to the left.
MR HUTCHINGS: No, but bear with me if you will. My question is a different one. Mr Contoyannis, what I'm asking you is do you accept Dr Gibson's observation that the content of the CCTV video is such that one can't draw a conclusion in the fullest sense as to the amount of degree and force on the left knee because of the limits of the video?
WITNESS CONTOYANNIS: Contoyannis here. I accept that I can't get a degree of what the forces would be because of the quality of the video. But with high quality video I wouldn't get a degree of what the forces are going to be. I'm only talking about the direction of the forces.
MR HUTCHINGS: Certainly the direction of the body would be clearer - could be clearer in a clearer video and could give you more information. Correct?
WITNESS CONTOYANNIS: Contoyannis here. Yes, that's a possibility. That's correct.
MR HUTCHINGS: Dr Gibson, am I right in understanding that that is your reservation about the content of the CCTV footage?
WITNESS GIBSON: Yes. The lack of definition makes it difficult to make a lot of these finer distinctions.
MR HUTCHINGS: And in the absence of being able to make these finer distinctions, you disagree with the certainty of Mr Contoyannis' proposition about scenario 3 not being possible. Correct?
WITNESS GIBSON: Yes, I disagree.
Analysis
Both experts agreed about the limitations on what can be observed from the poor-quality CCTV footage. As I understood his testimony, however, Mr Contoyannis’ opinion was not based solely upon, and did not require, an analysis of any fine movements by the plaintiff. As he said in his answer to the defendant’s counsel, he wouldn’t “get a degree of what the forces are going to be” even with high quality video. His testimony relying upon his assessment of the direction of the relevant forces was based upon his broad observation from the CCTV footage that immediately before her fall the plaintiff had “turned and moved to the left”.
It is apparent that Mr Contoyannis regarded his assessment of the direction of the forces applied in the plaintiff’s step and turn to the left as being those which are the usual or natural result of such a manoeuvre by any person.
In his report at paragraphs [7.10] and [7.11] he says:
Further, while turning to her left, Ms Kljusuric will be applying tension on her VMO (vastus medialis oblique) – the muscle on the “inside” (medial) side of her knee connected to her knee cap. This muscle is a stabiliser of the patella, preventing the patella from dislocating.
The two scenarios, “straight leg” and “turning to the left” make it highly unlikely that a patella would dislocate. This scenario also makes it highly unlikely that a “lateral patella dislocation” will occur at this stage.
In addition, in the course of being asked to comment on an alternative scenario he said:
[E]xcept for some kind of unnatural scenario, I can’t see a scenario where the top of the – or the thigh is twisting to the right as we take that left footstep. From my – in my opinion that’s just not going to happen.[96]
[96] Transcript 21 November 2019, 38.
As already extracted above, when asked about Dr Gibson’s testimony that the CCTV did not contain sufficient detail to make a conclusion about the direction of the body and the degree to which force has been applied to the left knee immediately before the fall, Mr Contoyannis gave this response:
I understand what Dr Gibson is saying. I can’t see how biomechanically that can occur as somebody places their foot to the left and turns to the left.
As part of his explanation of the mechanism of subluxation he had given this evidence:
So if we stand up and take a step to the left, we naturally rotate our body to the left, the thigh is now rotating outwards, that is unlikely – well, that is just not the mechanism of subluxation.[97]
[97] Transcript 21 November 2019, 35.
It is apparent from the evidence to which I have just referred that Mr Contoyannis based his opinion upon the gross movements which he says are visible even on the unclear CCTV footage – that is, that the plaintiff “turned and moved to the left”. Inferentially, he is referring to the same observation when, in his response to Dr Gibson’s testimony just referred to, he says “places their foot to the left and turns to the left”.
Earlier in his testimony, Mr Contoyannis had referred to the plaintiff transferring or beginning to transfer “her body weight across”. He did so in this context:
In the scenario that’s viewed in the video Ms Kljusuric places her foot to the left and transfers her body weight across or begins to transfer her body weight across. Perfectly normal gait initiation with the turn to the left, okay?[98]
(emphasis added)
[98] Transcript 21 November 2019, 34.
It is not clear to me whether Mr Contoyannis was intending to convey that he is able to observe the weight transfer he describes on the CCTV footage or rather that he can observe the foot placement (and direction of movement) and that what he says about weight transfer is the normal accompaniment of such movement. I think the latter is more likely. In any event, his opinion about normal gait initiation was not challenged.
It is implicit in Dr Gibson’s testimony that, in his opinion, there are other “possibilities”. I understand him to mean other possibilities as to the forces at play at the relevant time, and the precise angle of the plaintiff’s foot relative to the alignment of her leg. As I understand his testimony, he says that the CCTV footage is not sufficiently clear to rule out such other possibilities.
His evidence, however, does not appear to challenge the fundamental premises upon which Mr Contoyannis’ opinion is based – namely, that the usual or normal forces involved in a step and turn to the left are as he (Mr Contoyannis) describes and make subluxation unlikely at that point.
Against that background, the question which arises is whether, despite its lack of clarity otherwise, the CCTV footage supports a conclusion of a step and turn to the left by the plaintiff at the relevant time.
I do not have the benefit of testimony from Dr Gibson in response to any questions directing him to this specific point.
My own observations of the CCTV footage are that, whilst the lack of clarity may prevent the detection of finer or more subtle movements it is possible to say with the requisite degree of certainty that the plaintiff does take a step to the left while turning to the left prior to starting to fall. I find that she did so. That finding is of course also consistent with the plaintiff’s own testimony when she says that she intended to walk to another counter to the left of where she was standing to place an order.
I accept that there may be other “possibilities” as to the forces at play which cannot be ruled out as suggested by Dr Gibson, but that does not affect my conclusion. As Hayne JA (as his Honour then was) observed in Kocis v S E Dickens Pty Ltd [1998] 3 VR 408 at 430:
In my view it is of the first importance to bear steadily in mind that a plaintiff must prove his or her case on the balance of probabilities and that it is no answer to the question whether something has been demonstrated as being more probable than not to say that there is another possibility open. The determination of the question turns on consideration of the probabilities”. Thus, a jury may reasonably conclude that the probabilities are that a particular spillage would have been cleaned up by the proper application of a reasonable cleaning regime on the part of the defendant occupier while at the same time acknowledging the possibility (but not probability) that the substance was spilled only a moment before the plaintiff slipped on it. The question of causation is to be resolved by consideration of the probabilities.
As quoted earlier, his Honour’s reasoning in this respect was cited with approval by the High Court in Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [34].
My finding that the CCTV footage depicts such a step and turn leads to the following conclusions:
(a)that the usual or natural forces involved in such a manoeuvre are those described by Mr Contoyannis in paragraphs [144] and [154] above;
(b)that, despite the existence of other “possibilities”, the CCTV footage is not sufficiently clear to raise them beyond mere possibilities;
(c)that, as a result, and in accordance with the opinion of Mr Contoyannis (with which, I note, Dr Gibson agrees), spontaneous subluxation at the relevant time was unlikely.
I reach the conclusion that spontaneous subluxation was unlikely despite the existence of the factors pointing to, in this plaintiff’s case, the increased likelihood of a second (spontaneous) event of subluxation.
The plaintiff’s version of events is that she slipped and then suffered a subluxation of her knee. My conclusion that spontaneous subluxation was unlikely is consistent with her version of events, which I accept.
As between Scenarios 1 and 2, I conclude that Scenario 1 is more likely based upon the evidence before me and, in particular, the absence of evidence of injury to the knee by way of bruising or the like.
I find that the injuries suffered by the plaintiff were caused by the defendant’s breach of duty.
As noted briefly at the outset of these reasons, it was indicated to me on the final day of the hearing that the quantum of damages in this matter was agreed to be $120,000.00. I was told that this figure includes pre-judgment interest.[99]
Orders
[99] Transcript 22 November 2019, 27-28.
I give judgment for the plaintiff against the defendant in the amount of $120,000.00.
I heard no argument as to costs. In relation to costs, the orders I make are as follows:
(a)the defendant is to pay the plaintiff’s costs, including reserved costs; but
(b)order (a) does not take effect if either party contacts my associate within 14 days to re-list the matter to seek some other costs order.
| I certify that the preceding one hundred and seventy-two [172] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Morrison Associate: Angus Brown Date: 29 May 2020 |
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