Korlevski v Lea Group North (Vic) Pty Ltd & Ors

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IN THE COUNTY COURT OF VICTORIA	Revised
AT MELBOURNE CIVIL DIVISION DAMAGES AND COMPENSATION LIST GENERAL DIVISION

Case No. CI-09-02632

MIHO (MICHAEL) KORLEVSKI	Plaintiff
v
LEA GROUP NORTH (VIC) PTY LTD	First Defendant
and
ISPT PTY LTD	Second Defendant
and
JONES LANG LASALLE (VIC) PTY LIMITED	Third Defendant
and
GOUGH BAY GROUP PTY LTD	Fourth Defendant & Third Party
JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	22 – 28 March, 6 April, 23 – 27 May, 30 and 31 May 2011
DATE OF JUDGMENT:	26 August 2011
CASE MAY BE CITED AS:	Korlevski v Lea Group North (Vic) Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2011] VCC 1168

REASONS FOR JUDGMENT

Catchwords: Common law claim for damages for breach of duty by employer and occupier – employer and occupier both found to have breached duty owed to plaintiff – employer and occupier found to be equally liable for injury loss and damage suffered by plaintiff.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Jewell SC with	Slater & Gordon
Mr M Ruddle
For the First Defendant	Mr R Stanley QC with	Thompson Lawyers
Ms K Gladman
For the Second Defendant	Mr C Grainger	McCabe Terrill Solicitors
For the Third Defendant	Mr R Dyer with	Marque Lawyers
Ms A Ryan
For the Fourth Defendant	Mr J Gorton	Wotton Kearney
and the Third Party

COUNTY COURT OF VICTORIA	0
250 William Street, Melbourne
HER HONOUR:

1          On or about 12 July 2004 the plaintiff, Mr Korlevski, was working as a cleaner at Barkly Square Shopping Centre in Brunswick (“the shopping centre”) using a mop to dry steps which were wet. While performing this task, he alleges that he slipped and suffered an injury which has occasioned him loss and damage for which he seeks to recover damages.
2          At the relevant time, the plaintiff believed he was employed by a company called Reflections Group Services Pty Ltd[1] (formerly “Shopping Centre Cleaning Services”), which ran a business of cleaning shopping centres. However, the first defendant, Lea Group North (Vic) Pty Ltd (“Lea”), has admitted that it employed the plaintiff at the relevant time. Apparently, Lea had obtained the contract to clean the shopping centre via Gough Bay Group Pty Ltd (“Gough Bay”), the fourth defendant. (This company is also joined as a third party by the third defendant, Jones Lang Lasalle (Vic) Pty Limited (“JLL”).) Gough Bay had an agreement with the second defendant, ISPT Pty Ltd (“ISPT”), the owner of the shopping centre, to supply cleaning services for the shopping centre. JLL was the manager of the shopping centre pursuant to an agreement with ISPT.
[1]             It seems that Reflections Group Services Pty Ltd at some stage subsequent to 12 July 2004 became Gough Bay Group Pty Ltd, the fourth defendant and third party in this proceeding.
3          The plaintiff’s case is that on about 12 July 2004 he was in a stairwell which led from the ground floor of the shopping centre to the management offices on the first floor. The stairwell comprised three flights of stairs, with landings separating each flight. The steps which comprised the flights of stairs were concrete and had been painted. At the time of his alleged accident the plaintiff was cleaning the steps in accordance with a system which he had used for many years as a cleaner, in employments prior to commencing work with Shopping Centre Cleaning Services in 1996. On the ground floor he had water and detergent in a bucket which contained rollers. He would place a mop into the bucket and wet it, and carry the mop to the top of the stairs. Then, working from the top, he would go backwards down the stairs, swinging the mop from side to side as he wet-mopped each step. His feet would be positioned on the step below the one which he was mopping. Once he had completed all of the steps and had arrived at the ground floor, he would rinse out his mop and wring it through the rollers so that it was damp. He would then walk up the wet steps to the top, taking the damp mop with him. Once at the top, the plaintiff would walk backwards down the stairs again, drying each step with a side to side movement of the mop, while his feet were on the wet step below. The plaintiff’s evidence is that on or about 12 July 2004 he was engaged in this process of walking backwards drying the steps with the mop. When he was on the lowest of the three flights, that is, the one closest to the ground floor, his right foot slipped on a wet step. He thought it may have been the third or fourth step from the bottom. He said, in effect, that his ankle lost control and his foot slid down so that the inside of his right ankle struck the vertical rise of the step below the one on which he had been standing. He said that he suffered immediate pain in his right ankle and threw the mop and tried to grab the railing of the stairwell to support himself and ended up landing on the actual stairs. It is the injury to his right ankle which is the subject of the plaintiff’s claim for damages.
4          The plaintiff has settled his claim against ISPT and also against Gough Bay. However, Gough Bay remains as a third party joined by JLL. Hence, the plaintiff’s claim was pursued only against Lea, as his admitted employer, and against JLL, which, in the course of the trial, admitted that it was an occupier of the shopping centre in its capacity as manager appointed by the owner, ISPT.

THE PLAINTIFF’S CASE AGAINST THE FIRST DEFENDANT
5          The plaintiff alleges that Lea, his admitted employer, has breached its duty to take reasonable care to avoid exposing him to unnecessary risk of injury. He claims that his employer failed to provide him with a safe system of work and/or a safe place of work. In particular, the plaintiff states that the system which required him to walk backwards down stairs on wet steps presented an unreasonable risk in this case because the surface of the steps, when wet, was not adequately slip-resistant. The plaintiff alleges that it was incumbent upon his employer to assess the surface of the steps to ensure that they would not present an unreasonable risk when wet, but it failed to do so. He alleges that he received no training or instruction concerning any aspect of safety referable to his new work place, which was unsafe because of the slipperiness of the steps when wet. He further alleges that his employer failed to establish a means whereby the plaintiff could communicate any safety concerns which he had about his new workplace to his employer, given that he was working at a site remote from the employer’s place of business.
6          The plaintiff’s evidence in chief was that he had commenced working as a cleaner at the shopping centre in May 2004, that is, approximately two months before his ankle injury occurred. He stated that on many occasions, subsequent to commencing there, and right up until shortly before his injury occurred, he had complained to “Tom” (McAuliffe), the Operations Manager for JLL, that the steps were slippery when wet and that something should be done about them, but nothing was ever done.
7          It is common ground between the parties that Tom McAuliffe is now deceased. It is also established by the evidence of Ms Vercoe, the current Centre Manager of the shopping centre, who is employed by JLL, that some years subsequent to the plaintiff’s accident, namely, in 2008, she arranged for the steps to be repainted. She said the existing green paint on them was “very flat” so she had them coated in a grey gloss paint which “improved the presentation”.[2] That grey gloss surface remains on the steps today. I here interpolate that, when this matter commenced to be heard (which was as a trial before a jury), and the plaintiff was shown photographs of the steps as they currently appear with their grey coat of paint, he expressed the belief that they looked the same as they had in 2004. However, he also stated that he had not been back to the shopping centre since September 2004 (the date he ceased work). I find that the plaintiff was obviously mistaken in this part of his evidence.
[2]             Transcript (“T”) 581.
8          The plaintiff relies upon the expert evidence of Mr Dohrmann, an engineer, and Mr Perkins, a painter, that underneath the present grey gloss paint on the steps, which has no grit in it, is green paint with grit in it. (The green gritted paint was apparently applied to the steps by a Mr Carboni of Hue Painting and Decorating Pty Ltd in April 2004 at the request of JLL). It is common ground that covering a surface with paint containing grit may be one way of providing a slip-resistant surface. The expert evidence called by the plaintiff is that there is probably only one coat of the green paint underneath the coat of grey gloss paint. Further, that an examination of the steps shows that the grit beneath the current grey gloss paint is not evenly distributed. Although there were places where there was a reasonable dispersal of grit, there were other places where there was none at all. The plaintiff’s case is that the totality of the evidence establishes, on the balance of probabilities, that the steps were unsafe when wet because they did not have an adequate slip-resistant surface and there were simple, inexpensive measures which could have been taken to address the problem.

THE PLAINTIFF’S CASE AGAINST THE THIRD DEFENDANT
9 The plaintiff’s case against JLL is as follows. Firstly, that in circumstances where a cleaner like himself was required to wet-mop the steps and walk backwards down them when wet, it failed to provide an adequate slip-resistant surface on the steps for when they were wet. Secondly, notwithstanding the plaintiff’s complaints to JLL’s Operations Manager, nothing was done to address the problem of the steps being slippery when wet. Thus, the plaintiff argues that JLL is in breach of its duty as an occupier pursuant to s.14B of the Wrongs Act 1958 to take reasonable care to ensure that a person such as himself would not be injured by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.

THE DEFENCE OF THE FIRST DEFENDANT
10        Mr Stanley of Senior Counsel for Lea accepted the plaintiff’s case that the steps in question were slippery when wet. He also accepted that the manner in which the plaintiff was performing his task when injured was not contrary to instructions from his employer. However, he contended that, if there was a risk inherent in the system of work, it was not of a magnitude which required Lea to do anything. He submitted that there was no suggestion that the manner in which the plaintiff was cleaning the steps was other than that accepted as an industry standard, particularly as the plaintiff, as an experienced cleaner, had employed the same system for cleaning steps in prior employments as a cleaner. Indeed, the plaintiff had stated in his evidence that the way he was cleaning the steps was the proper way to do the job.
11        Mr Stanley submitted that it should be found on the evidence that there was no reasonably practicable alternative to the system of work as performed by the plaintiff. He submitted that, given the plaintiff’s experience as a cleaner, it could not be said that Lea’s failure to conduct a risk assessment constituted a breach of the duty of care owed to the plaintiff, and the circumstances were such that it was reasonable for Lea to do nothing with respect to the system of work. He submitted that, even if Lea had conducted an inspection of the steps, it would have seen that they had been relatively recently coated with a paint containing grit in it and “they would have looked good”, so it was fanciful to suggest that a risk assessment was indicated.
12        On behalf of Lea, Mr Stanley submitted that the plaintiff’s case really amounted to a case about an unsafe place of work because the surface of the steps was slippery when wet. He submitted that this was not something which Lea knew or ought to have known. Lea had a supervisor on site at the shopping centre to whom the plaintiff could have voiced any concerns, but he did not do so. Thus, Lea was not made aware that the steps were slippery when wet. In contrast, JLL did have actual knowledge that the steps were slippery when wet because of the repeated complaints of the plaintiff to Tom McAuliffe, JLL’s Operations Manager. In response to such complaints JLL did nothing, yet it was in control of the premises. It had the opportunity to rectify the problem but did not do so.
13        Mr Stanley noted that JLL had failed to call as a witness Ms Janet Reading, the Centre Manager employed by JLL at the shopping centre at the relevant time. She had the responsibility of organising and signing off on maintenance work. Also, JLL had failed to call as a witness a painter, Bruce Knowles, who assisted the painter, Mr Carboni, whose company, Hue Painting and Decorating Pty Ltd, had been engaged by JLL to paint the steps in April 2004. According to Mr Carboni’s evidence, in April 2004 he and his employee, Bruce, had painted the steps with a single coat of green-coloured Berger Jet Dry non-skid paint to which grit had been added. He said that, the following day, he had left Bruce on his own to put a second coat of the paint on the steps but he, personally, had not gone back to inspect the steps after that. Mr Carboni also said that, earlier this year, he and Bruce, in the context of this litigation, had returned to the shopping centre and identified areas where parts of the green paint which they had applied are still visible. In these circumstances, Mr Stanley submitted that an adverse inference, pursuant to the principles in Jones v Dunkel[3], should be drawn against JLL for the failure to call these two witnesses, Ms Reading and Mr Knowles. He submitted that the overwhelming preponderance of liability lay with JLL as occupier of the shopping centre.
[3] (1959) 101 CLR 298.

THE DEFENCE OF THE THIRD DEFENDANT
14        On behalf of JLL, Mr Dyer stated that his client did not deny that it had a duty to take reasonable care in respect of persons like the plaintiff, who was performing his cleaning duties at the shopping centre on or about 12 July 2004. However, he submitted that the duty was not the same personal, non- delegable duty owed to the plaintiff by his admitted employer, Lea, and that JLL had discharged its duty by engaging a competent cleaning contractor which, in turn, engaged the plaintiff’s employer to perform the cleaning services at the shopping centre.
15        Mr Dyer submitted that the court may well accept the plaintiff’s evidence that he had complained to Mr Tom McAuliffe, JLL’s operations manager, that the steps were slippery. However, he invited the court to find that the plaintiff had commenced working at the shopping centre earlier than May 2004 and his complaints about the steps had been made prior to them being painted by Mr Carboni in April 2004. He submitted that the Court should find that the green Berger Jet Dry non-skid, matte finish paint which Mr Carboni applied to the steps in April 2004 had been done in response to the plaintiff’s complaints to Tom McAuliffe.[4] In the event that the Court rejected this submission, Mr Dyer submitted that JLL had, nevertheless, discharged its duty in relation to the state of the premises by engaging a competent painting company, Hue Painting and Decorating Pty Ltd, and that JLL was entitled to rely upon its expertise as far as the finish of the steps was concerned.
[4]             It is of interest that this is contrary to what was put by Mr Dyer in cross-examination of Mr Dorhmann when the matter was still being heard before the jury, namely that the steps had been painted two months prior to the accident. T272 and 277.
16        Mr Dyer submitted that, in any event, the Court should accept the evidence of the painter, Mr Carboni, that, after consultation with a representative of Dulux Paints, he appropriately applied the green Berger Jet Dry paint to ensure that the steps were adequately slip-resistant when wet. Indeed, the specification for such paint shows that it was ideal for the purpose and it gives a low risk of slipping on a wet surface when tested to the relevant Australian Standard.[5] Moreover, the tests conducted by the plaintiff’s expert, Mr Dohrmann, and by JLL’s expert, Mr Lightfoot, in the foyer area of a ladies toilet near the stairwell in question, where the green Berger Jet Dry paint (which was applied at the same time as that on the steps) has not been covered by any other paint, show it to be adequately slip-resistant when wet and in compliance with the relevant Australian Standard.[6] He submitted that the other evidence of Mr Dohrmann and by the painter, Mr Perkins, called by the plaintiff as to there being probably only one coat of green paint with an uneven distribution of grit under the current grey paint on the steps should be given no weight in determining the state of the surface back in 2004. Accordingly, Mr Dyer submitted that the Court should find that there was no breach of duty by JLL in relation to the state of the premises and, thus, no causal connection between the condition of the steps and the fall sustained by the plaintiff on or about 12 July 2004.
[5]             Exhibit “D3-9”.
[6]             Exhibit “D3-7”.
17        In the event that the Court did find that the surface on the steps was not adequately slip-resistant at the time of the plaintiff’s accident, Mr Dyer submitted that liability should rest with Lea, which has admitted that it employed the plaintiff.[7] Mr Dyer relied upon the plaintiff’s evidence that Mr Brian Crewes, who was a manager with his employer, transported him to the shopping centre from the “St Helena” venue, where the plaintiff previously had worked with his employer since 1996, and introduced him to two ladies who were apparently employees of the same employer. The older lady, whose name the plaintiff could not remember, was apparently a supervisor and, when she was not around, the younger lady, Mannie Dani, apparently acted as supervisor. (It is common ground that Mannie Dani cannot be located.) The plaintiff stated that the older lady showed him the cleaner’s room where all the cleaning equipment supplied by their common employer was located, and told him what cleaning duties were required to be done by him at the shopping centre. Mr Dyer submitted that this evidence, in combination with Exhibit “M”, which was the contract between the plaintiff’s “real employer”, (Reflections Group Services Pty Ltd) and ISPT, demonstrated that the plaintiff’s employer, not JLL, directed the plaintiff’s day to day duties at the shopping centre.
[7] In the related recovery action pursuant to s.138 of the Accident Compensation Act 1985 by the Victorian WorkCover Authority against JLL, Mr Dyer has submitted that there was, in fact, no contract of service between the plaintiff and Lea.
18        Mr Dyer also referred to the plaintiff’s evidence that another manager with his employer, Gerry Callus, was the person who had told the plaintiff, at his former workplace at St Helena, that he was going to be transferred to the shopping centre. It was also Gerry Callus who, later, had directed the plaintiff that, in addition to working at the shopping centre, he was to work part of the working week at another venue called “Plenty Valley”. Mr Dyer submitted that all of this evidence pointed to the fact that there was no direct supervision of the plaintiff by JLL. He submitted that the role of JLL at the shopping centre was, simply, to ensure that the contractual arrangements between ISPT and Reflections Group Services Pty Ltd (now Gough Bay), for the cleaning of the shopping centre were fulfilled.

19        Mr Dyer submitted that, in contrast to the limited role of JLL, the plaintiff’s employer had a non-delegable duty of care to ensure that the plaintiff had a safe system of work and safe place of work, yet it had called no evidence at all. He urged that the true cause of the plaintiff’s fall was the failure of his employer to properly instruct or supervise him. He submitted that the Court should find the plaintiff’s evidence compelling against Lea in that he had indicated a complete absence of any specific instructions by the employer as to how to clean the steps at the shopping centre or how to avoid dangers when cleaning the steps. Moreover, the plaintiff had stated that there was a total absence of supervision or checking on his work, and no safety officer or safety meetings to deal with any issues he might have at the shopping centre. None of the plaintiff’s evidence had been rebutted by Lea calling evidence to the contrary. Mr Dyer submitted that the Court should draw an adverse inference against Lea, as the admitted employer of the plaintiff, pursuant to the principles in Jones v Dunkel particularly by reason of its failure to call the older of the two female supervisors of the plaintiff at the shopping centre and, also, Brian Crewes and Gerry Callus.
20        In the circumstances, Mr Dyer submitted that this was a case where liability should rest solely with the admitted employer, Lea. In contrast to Lea’s lack of apparent attention to its duty as employer, he submitted that the evidence showed JLL to be attentive to its duty as occupier. He relied particularly upon a letter dated 23 July 2003 between staff members of JLL relating to the appointment of Shopping Centre Cleaning Services (subsequently Reflections Group Services Pty Ltd and now Gough Bay)[8] as the cleaning contractor for the shopping centre as demonstrating a concern for high quality cleaning services so that the shopping centre “should be a showpiece”. In essence, he submitted that JLL had done its best to engage a competent cleaning contractor and emphasised that the duty of the plaintiff’s employer is personal and non-delegable and a more stringent obligation than the duty of JLL as an occupier.
[8]             Exhibit “D3-8”.
21        Mr Dyer pointed out that the plaintiff had given evidence that his work was supposedly supervised at the shopping centre by women who, like himself, he believed to be employed by Reflections Group Services Pty Ltd, yet he rarely saw such persons. He submitted that the supervision was obviously lacking. If Lea was the employer it had apparently delegated its duty of supervision inappropriately to these women employed by the Reflections Group. Moreover, there is no evidence that the plaintiff’s employer was unable to inspect the steps or exercise control over the plaintiff’s work. Mr Dyer supported the plaintiff’s submissions that Lea had been derelict in all these matters.

THE CIRCUMSTANCES OF THE PLAINTIFF’S INJURY
22 The plaintiff’s evidence was that he was walking backwards down the steps drying each step with a damp mop whilst his feet were on the step below. He stated that the accident happened in the following way:
“Like, I stepping on the steps and my – slipped and my ankle sort of lost control. I couldn’t grab it and slided down on – hitted the steps – next steps and I hit the concrete, you know, with my foot. And I tried to grab the rail and I – like, I throw the mop and I tried to grab the rail. Was so painful and I …”[9]
[9] T140-141.

23        He said that the inside of his right ankle hit the step[10] and what caused him to slip was the wet steps.[11]
[10]           T141.
[11]           T140.
24        He said that, after the accident, he had very bad pain which he reported to the replacement supervisor, “the young lady” (presumably Mannie Dani). He kept working but was limping and in pain. This continued to be the case for the next few days until he went to see his general practitioner, Dr Ristevski, on 16 July 2004. He remained off work until 24 July 2004 but upon his return to work he found that the ankle was very painful and he ultimately ceased working in September 2004. He has not worked since.
25        Dr Ristevski gave evidence that in a report dated 11 August 2006 he had recorded the history of the accident as follows: “He stated that he failed to judge a step with his right foot and twisted his ankle and lost his balance”.[12] However, he said that in an earlier report of October 2004 he had referred to the plaintiff “slipping on stairs” and stated that, in that report, he must have “visualised the mechanism of the injury and have recorded it as such”.[13]
[12]           T316.
[13]           T317.
26        Dr Ristevski’s evidence was that when the plaintiff first presented on 16 July 2004 he complained of persistent pain in his right ankle and examination demonstrated walking difficulties, swelling and tenderness over the inner aspect of the right ankle. He arranged for an x-ray to be taken on 21 July 2004, which was reported as showing soft tissue swelling. As the plaintiff continued to experience difficulty at work, climbing stairs and walking distances and reported persisting symptoms of pain and disability, he arranged for him to undergo an MRI scan in November 2004. This demonstrated a grade 3-4 osteochrondral lesion of the medial talar dome with extensive talar dome bruising. He said that the injury was essentially to the inner part of the ankle. He agreed that if the accident happened as the plaintiff had described to the Court, namely that, after slipping, his foot had twisted outwards and gone down to the next step, so that the inside of his foot made contact with the vertical aspect of the step below, then that would explain the bruising reported on the MRI scan. He said it suggested quite extensive impact there.[14]
[14]           T320.
27        Under cross-examination Dr Ristevski agreed that in a recent report sent to the plaintiff’s solicitors on 30 March 2010 he had stated, “Mr Korlevski
presented with a right medial ankle injury. The injury was consistent with
twisting his right ankle whilst walking backwards down the steps at work”.[15] He also agreed that, when he first saw the plaintiff following the injury, he had not noted any bruising. However, in re-examination, he said that he had noted swelling and, if as the plaintiff said, he slipped off the step and went down the nose of the step and hit the inner aspect of his ankle on the vertical aspect of the step below, there would not necessarily be external bruising. He said, “A lot of weight could still hit the bone, but without necessarily
traumatising the skin, so the answer is that you could still get the bone
bruising without necessarily having external skin-related trauma or bruising”.[16]
[15]           T343.
[16]           T354.
28        Mr Kiellerup, orthopaedic surgeon, saw the plaintiff on referral from Dr Ristevski on 18 November 2004. He had simply taken a history that the plaintiff twisted his ankle while cleaning some stairs but said that it was not important for him to get precise details as to just how the trauma occurred because it did not make much difference to his treatment.[17]
[17]           T400.
29        Mr Dohrmann, engineer, on 20 February 2010 took instructions from the plaintiff that his foot slipped on the wet surface of a step and he twisted his right ankle, albeit that the plaintiff did not mention that his ankle came into contact with a step.[18]
[18]           T255, T269 and T281.
30        The plaintiff’s evidence as to the mechanism whereby he injured his ankle was never really challenged in cross-examination. I take into account that the plaintiff has imperfect English, which is his second language, and that, if there are some discrepancies in histories, they are most likely due to that factor. The plaintiff impressed me as a decent, honest person. I thought he gave his evidence in a straightforward way, and genuinely attempted to answer questions to the best of his ability. I place some weight upon the following: when he completed a WorkCover worker’s claim form in respect of the injury on 16 August 2004, in response to a question, “What happened that caused or contributed to your injury/condition?”, he wrote, “Slipped and twisted ankle on stairway”.[19]
[19]           Exhibit “D3-1” and T199.
31        On the evidence, I am satisfied on the balance of probabilities that on or about 12 July 2004 the plaintiff was walking backwards down stairs at the shopping centre drying wet stairs with a damp mop whilst his feet were on the wet step below. I find that his right foot slipped on the wet step and twisted in such a way that it went down to the next step below, and the inner part of the ankle struck the rise of that lower step causing him an ankle injury. I am also satisfied that the extensive bruising to the bone on the inner part of the ankle which was still evident on the MRI scan taken four months later was caused when his inner ankle did so strike the rise of the lower step.

THE ISSUE OF THE NATURE OF THE SURFACE ON THE STEPS AT THE TIME
OF THE PLAINTIFF’S ACCIDENT
32        As I have previously stated, the plaintiff made a mistake in identifying the grey surface of the steps in photographs taken last year as the same as that upon which he slipped in 2004. I consider this to be an understandable mistake in the light of the fact that he had not seen the steps at the shopping centre for over six and a half years. The plaintiff was definite that there were no non- skid black strips as currently appearing on the landings when he was working at the shopping centre. He was adamant that he slipped because the steps were slippery when wet.
33        In evidence-in-chief he agreed that in May 2004 he had been sent to work as a cleaner at the shopping centre. Tom, the Operations Manager for JLL, was there when he first started and was there for the whole time that he worked there. The plaintiff’s evidence was that he would start work at 7 o’clock each morning and would clean the steps in the manner in which I have described in paragraph 3 of this Judgment. He said that each morning he would meet Tom outside, as Tom arrived at the shopping centre, because he would try to leave open the outside door at ground level in order to let in a draught to dry the stairs. He said that each morning Tom wished him “good morning” and he returned the greeting and he said “Tom, something need to be done about the steps – stairs, because they are slippery”. He says to me, ‘OK, Michael’ and
nothing been done and again nearly every day I remind him ‘Tom, be careful, the steps are wet’ and he was – kept going into his office, you know, and
that’s how I left it, you know, till I had accident of mine, you know, and…”. He was asked whether Tom ever did anything about the steps and he said “Not – no, no”.[20]
[20]           T136.
34        Neither Mr Stanley, on behalf of Lea, nor Mr Dyer, on behalf of JLL, took issue with the fact that the plaintiff had complained to Tom that the steps were slippery when wet. However, Mr Dyer contended that these complaints had preceded the painting of the steps by Mr Carboni and his employee, Bruce Knowles, in April 2004. He urged the Court to find that such painting of the steps had been done in response to the plaintiff’s complaints.
35        There is no evidence, apart from that of the plaintiff, as to when he commenced his cleaning work at the shopping centre. In support of his submission, Mr Dyer relied upon the following portion of cross-examination of the plaintiff by himself:
“And yesterday Mr Jewell asked you if you had gone there in May
2004 and you said yes? --- To work – to work.
At Barkly Square? --- Yeah.
Would that be right? --- In May, yeah.
If Mr Jewell says it’s May, it might have been May – but it might have been April, it might have been March? --- Well, honestly I don’t remember when I started at Barkly Square, I can’t tell you that.”

36        Mr Dyer also relied upon Dr Ristevski having made a clinical note in March 2004 stating “anxiety re work”. Dr Ristevski was asked whether that note could have related to the plaintiff being transferred to the shopping centre from his former workplace at St Helena and he stated “I’m not sure. It may’ve – it’s possible, but I can’t comment”.[21]
[21]           T353.
37        It was put to the plaintiff by Mr Dyer in cross-examination that he was unhappy or angry about being moved from St Helena, where he had worked for nine years, to the shopping centre. The plaintiff responded that he had worked in other jobs, other shopping centres, and said “I mean, doesn’t worry me. Job is a job to me.” It was further suggested to him that Dr Ristevski’s note in March 2004 was an indication that it was about that time that he had changed from St Helena to go to work at the shopping centre and the plaintiff had said he was not angry and “no, I got nothing to discuss to my doctor about my job, sir, no” and went on to say “look, I got no idea where this come from”.[22]
[22]           T194-195.
38        Later, under cross-examination by Mr Dyer, the plaintiff was emphatic that he had never witnessed the stairs being painted since he started work at the shopping centre[23] and when asked again when he had commenced working at the shopping centre he stated “I start definitely a couple of months before my accident”.[24]
[23]           T241.
[24]           T242.
39        In the course of evidence-in-chief the plaintiff was asked about the footwear that he’d been wearing at the time of the accident. He stated that he was wearing black ankle-length boots with a patterned rubber sole, which he had purchased himself a month or two before the accident, prior to starting at the shopping centre.[25]
[25]           T145-146.
40        Upon weighing up all of the evidence I find it more probable than not that the plaintiff did commence working at the shopping centre in or about May 2004, a couple of months before his accident, and that the surface on the steps remained unchanged throughout the time that he was working there. That is, that the painted surface of the steps upon which the plaintiff slipped on or about 12 July 2004 was the same surface that was on the steps when he had commenced working at the shopping centre approximately two months previously.
41        The plaintiff was unshaken in his evidence that he had complained on multiple occasions to Tom McAuliffe that the steps were slippery when wet and that these complaints had continued right up until the time of his accident. Mr Dyer put to the plaintiff that he knew that Tom McAuliffe had since died (and, by implication, therefore was aware that he could not be contradicted by Tom about having complained to him). The plaintiff seemed to me to be genuinely surprised to learn that Tom McAuliffe had died.
42        As I have said, I found the plaintiff to be a frank witness. There is no evidence contrary to the evidence which I have detailed as to when he started at the shopping centre. Accordingly, I must inevitably conclude that there is no support for Mr Dyer’s proposition that Mr Carboni and Mr Knowles painted the steps at the direction of Tom McAuliffe as a response to the plaintiff complaining to Tom McAuliffe that the steps were slippery when wet. All of the evidence is against this proposition. Indeed, if Mr Dyer’s proposition was in fact true, one might have expected there to be some record about the complaint of the plaintiff and how it was addressed. The one person whom one might have expected to be able to give evidence about the reason that Mr Carboni’s company was asked to paint the steps was the then Centre Manager of the shopping centre, Ms Janet Reading. Despite Mr Dyer announcing in open court that she would be called to give evidence he did not do so. No reason for the failure to call Ms Reading was given. In these circumstances, I infer that her evidence would not have assisted JLL’s case and I can more readily accept the plaintiff’s evidence that the steps were not painted during the time that he worked at the shopping centre.
43        Moreover, Mr Carboni gave evidence that Tom McAuliffe was very thorough and wanted to know every part of everything that they, the painters, did.[26] He said that he could not remember what instructions Tom gave in terms of the finish on the steps but they would have discussed it.[27] He said the use of the Berger Jet Dry paint would have been because of a discussion between himself and Tom.[28] However, he also said that there was no consideration by him (Mr Carboni) as to whether or not the stairs may become wet in the course of use.[29] He said “if there was something wrong, Tom would let me know about it the next day, he was a tough nut”.[30] He also said that if Tom had contacted him and told him that there were problems on the stairs, complaints about them being slippery, he would, if necessary, have come to have a look at them and given them another coat of pain.[31]
[26]           T630.
[27]           T616-617.
[28]           T631.
[29]           T617.
[30]           T631.
[31]           T630.
44        The evidence of Mr Carboni indicates to me that it is highly unlikely that Tom McAuliffe had turned his mind to a consideration of a surface paint on the steps which would be safe for walking upon when the steps were wet. One would reasonably infer that, had Tom McAuliffe ordered the steps to be painted in response to the plaintiff’s complaints, then that would have been the foremost consideration in his mind and, hence, communicated to Mr Carboni. Further, given that, apparently, he was a thorough man, one might have expected to see reference to this factor and the specific product to be used in the purchase order dated 2 April 2004,[32] yet there is no such reference. Nor is there any evidence that Tom McAuliffe asked Mr Carboni or anyone else to test the slip-resistance of the steps when wet after the painting of the steps in April 2004 had been completed.
[32]           Forming part of Exhibit “D3-5”.
45        Accordingly, I find that the surface on the steps at the time the plaintiff slipped on or about 12 July 2004 was the green gritted paint applied by Mr Carboni and Mr Knowles in April 2004.

EVIDENCE ON THE ISSUE OF LIABILITY
46        On the issue of liability there was evidence for the plaintiff from the plaintiff and two experts, Mr Dohrmann, an engineer, and Mr Perkins, a painter. The first defendant called no evidence. The third defendant called evidence from Ms Vercoe, the current Centre Manager of the shopping centre, Mr Carboni, the painter who painted the steps in 2004, and also tendered a report from Mr Lightfoot, an engineer.
The plaintiff
47        I have already canvassed the plaintiff’s evidence that from the time that he started work at the shopping centre he found the steps slippery when wet and regularly complained about this fact to Tom McAuliffe.
Mr Dohrmann
48        Mr Dohrmann was called as an expert witness on behalf of the plaintiff. He holds a Bachelor of Engineering and post-graduate qualifications in ergonomics. He has practised as a safety advisor in workplace situations for 35 years. He said that it is common for him to be involved in risk assessments of buildings and their interiors to see whether there is a slipping risk, particularly in wet conditions. He had been asked by the plaintiff’s solicitors to inspect the steps where the plaintiff had his fall and to test them in wet conditions and provide an opinion about the safety or otherwise of the surface of the steps on which the plaintiff slipped.
49        Mr Dohrmann had attended the stairwell and conducted tests in February 2010. However, these tests were conducted upon the mistaken belief by the plaintiff that the present grey painted surface of the steps was the same surface which had been on the steps when he slipped in 2004. This factor, along with the fact that JLL had had an expert engineer, Mr Lightfoot, conduct slip-resistance tests on the foyer area of the ladies’ toilet adjacent to the stairwell which still contains a surface of the green paint applied by Mr Carboni in 2004, led to the discharge of the jury and to Mr Dohrmann re- attending the shopping centre for further observation and tests.

50        Mr Dohrmann’s evidence prior to the discharge of the jury had been that testing of the slip-resistance of a surface is performed by using a device called a “Stanley pendulum” in accordance with the procedure laid down in the relevant Australian standards. He said it was not possible to use the pendulum on the steps themselves because of the limited surface area, but he had conducted testing on a landing of the stairs immediately adjacent to the steps. He had found that the present grey surface indicated a high to vey high notional contribution to the risk of slipping.
51        In his evidence prior to attending the shopping centre after the jury had been discharged, Mr Dohrmann said that, if the steps had been coated with paint which had been properly gritted, then that may satisfy the relevant Australian standards for slip-resistance, but he could not say so unequivocally. He also said that coating the steps, with “Berger Jet Dry Non-Slip” paint may well have been a perfectly acceptable way to treat those steps, but he was reluctant to say more than that because paint itself varies a great deal, although when you add grit to it, it does even out the performance a lot. He said that whether gritted paint alone would be sufficient to take away the risk in wet conditions was almost impossible to say without a measurement, as he had seen gritted paint which was not sufficiently “grippy” to provide for safety, typically in cases where there was not enough grit or it had worn away at the nose of the step.[33]
[33]           See T275 and earlier T267-268.
52        When Mr Dohrmann re-attended the shopping centre on 30 March 2011 he was shown a narrow strip of green painted floor at the threshold of a door at the top landing of the stairwell. He noted that this strip showed embedded grit (intended for slip-resistance) in some places but little or no grit in others. He returned to the shopping centre on 1 April 2011 and was given access to the small foyer area of the ladies’ toilet near the stairwell which in 2004 had been painted in the same green gritted paint. He noted that this surface in the ladies’ toilet had a well-distributed pattern of grit embedded in it. He tested this area using the same pendulum equipment which he had earlier used to test the grey painted landing of the steps. His testing of the green painted foyer area of the ladies’ toilet showed adequate slip-resistance when wet and he concluded that the risk of slipping on it when wet would be very low. However, he was not able to say that the steps were “painted or prepared to the same condition as the toilet foyer”. He also said “that the slip-resistance
of the green jet dry paint probably varied from place to place depending on how well it was applied, how evenly the grit was distributed and I saw, in my
opinion, evidence that the grit was not evenly distributed.”[34]
[34]           T500.
53        Mr Dohrmann said that following his observations on 30 March 2011, he formed the opinion that the slip-resistance of the green jet dry paint could vary from place to place on the stairs depending upon such factors as the quality of the surface preparation, the quantity and distribution of the supplied grit, the evenness and frequency of adding and stirring the grit into the paint and the state of the brush as the job progresses (as it is a very fast-drying paint), whether or not the paint was thinned, weather conditions such as temperature and humidity (which can affect the application of paint), the runniness of the paint as to the grit, and the competence of the painter.[35]
[35]           T502.
54        Mr Dohrmann re-attended the shopping centre on 7 April 2001. Contrary to the assurance given to the Court on behalf of JLL[36], Mr Dohrmann was not permitted to take a small scraping of the grey paint on the steps in order to view the surface underneath.[37] He had a close look at the stairs, particularly where paint had been worn away. He formed the view that there had been a single coat of the green jet dry paint and at least one coat of the grey gritless paint that had been more recently applied on top. He said that it was apparent to him that the only grit that had ever been applied to the stairs had been that associated with the green paint.
[36]           T36 of mention held on 6 April 2011.
[37]           T502.
55        Mr Dohrmann particularly noted the nose of the third step from the bottom of the flight of stairs where there was wear on the nose of the step. He said that by observing, feeling and looking he found that there was little grit evident in any of the paint at and around the nose of that step. In the step above there was a little more grit but it was dispersed irregularly. In the step above that one, the grit was also sparse. There was some grit there, but not a lot.[38]
[38]           T503-504.
56        Mr Dohrmann went on to say that he established that only a single coat of the green jet dry paint had been applied by observing the exposed wear areas, mainly the nosings, and looking at the brushstrokes, evidenced from the dispersal of residual grit. He said the relevance of the brushstrokes is that, if everything has been done according to specification and requirement, then each stroke of the brush spreads grit about. He said that, particularly if there are two coats, the idea is that a well-stirred, well-dispersed quantity of grit will be spread reasonably uniformly through the surface.[39]
[39]           T504.
57        Mr Dohrmann stated that the boundary strip of the top landing showed areas of exposed green paint where there was little or no grit. Generally speaking, in that area he concluded that there was a reasonable dispersal of grit but there were places where that was not so, both on the stairs and in some spots in the foyer of the toilet. He considered that the grit had been applied only at the time that the green paint went on initially and not with any subsequent coating or coatings of paint. In a photograph, he pointed out one step which showed an absence of grit on the now grey, but originally green, paint surface. He was unable to say whether there had been grit which had been worn away by being walked on or whether it was never put there properly in the first place. However, had a second coat of grit-infused jet dry paint been applied, he considered that there would have been a better, more dispersed slip- resistant outcome than the single coat which seemed to have been applied.[40]
[40]           T504-505.
58        Under cross-examination by Mr Dyer for JLL, Mr Dohrmann conceded that, as he was not a painter, he was not an expert about the use of a brush or the properties of paint, but he did know about materials and slip-resistance. He agreed with Mr Dyer that if the area that he had tested with a pendulum in the foyer of the ladies’ toilet had a coating that was similar to what had been on the steps when the plaintiff had his accident, then it would follow logically that the paint on the steps would provide adequate slip-resistance. However, he went on to say that what he saw on the steps themselves was that, under the grey paint and in exposed areas, the grit was not dispersed evenly and certainly not in the areas close to the nose of the step where people rely on traction. He said that he was not critical of the fact that paint wore away on the noses, because that is what occurs over time, but he did notice that, away from the worn noses and close to it, there were smooth areas here and there covered with grey which seemed to indicate a lack of grit. He said there were several of those, and the close-up photographs which he had taken attempted to show where the grittiness suddenly stopped and started again.[41]
[41]           T511-512.
59        Mr Dohrmann conceded that a photograph which he had taken of the small strip of green paint at the threshold of the door at the top of the stairwell did appear to show a gritted area and a non-gritted area but he was not able to say that the non-gritted or smooth area was jet dry paint. He conceded that one possibility was that it could be consistent with there being two coats of green paint. He agreed that the preferred method of determining the number of coats of paint would have been to have a sample (which, of course, JLL had not permitted him to take). He conceded that trying to reach scientific conclusions about the nature of the green paint under the grey paint six or seven years later was “not without its difficulties”. However, he went on to say that “the remaining areas where traffic is low, typically at the sides where
people don’t walk where one looks and tries to work out what the history of
coverage has been and that’s what we’ve done as best we can.”[42]
Mr Perkins
[42]           T529-530.
60        Mr Perkins, painter, was called by the plaintiff as an expert witness. He was not a master painter and had never done any apprenticeship. However, he had worked with a commercial painter on industrial sites for some months before setting up his own business. For 20 years Mr Perkins has run his own maintenance business, which includes carrying out domestic and commercial painting. He said that he had used the Berger Jet Dry paint on a number of occasions, particularly on stairs at commercial sites. He said that the grit comes in a sachet which is mixed into the paint just prior to using it. It then needs to be brushed onto the surface and then mixed every 10 minutes or so, by stirring, to ensure that the grit remains as part of the paint rather than settling in the bottom of the paint pot, because otherwise you just end up putting on paint without grit. He said that Berger Jet Dry was quite an accepted coating to use on concrete stairs, provided that you stir the grit in every 10 minutes or so and put two coats on in accordance with the manufacturer’s recommendations. He said the first coat is always patchy because cement is a smooth surface and the paint does not grip immediately. So any first coat of this product with grit in it is going to be patchy and it dries very quickly. It is the second coat applied with the first that takes hold and allows you to have a consistent cover with it.[43]
[43]           T533-534.
61        On 7 April 2011 Mr Perkins accompanied Mr Dohrmann to the shopping centre to inspect the stairs. He inspected the stairs and a small area where the original paint was visible under a doorway. At one stage, under cross- examination, he seemed to suggest that he had also seen an area of the green paint in the ladies’ toilet on the first landing, perhaps a metre square, but later his evidence seemed to suggest that he did not see this area.
62        Mr Perkins said that, in his opinion, there had been one coat of the green Berger Jet Dry paint applied to the stairs with a second coat of paint coloured grey subsequently applied on top of it. What led him to believe that there had been only one coat of the green Berger Jet Dry paint applied was that the covering of grit was patchy and inconsistent and you could see brushstrokes that had been made, some of which would have grit within them and then the next space of brush mark would have nothing in it. He said this was to do with the release of the grit from the paintbrush. When you dip the brush in and you paint, the grit is going to be released with the first brush, but if you brush it again there is going to be less grit. His observation was that there were clear patches on the step which had no grit in them.[44]
[44]           T534.
63        Although Mr Perkins agreed that it was difficult looking at something on a set of stairs six or seven years later, and giving an opinion about what they may have been like a month or two after they had been first painted, he said that
“within the stairs there are areas that are not trafficked, such as the back of the stair or the rise of the stair, where there should have been a consistency
of grit.” It was for this reason that he concluded that only one coat of the Berger Jet Dry paint with grit in it had been applied because under normal circumstances, if two coats had been applied, it should look like sandpaper and there should be a consistency of spread grit.[45] He said that if two coats were not applied “the product and the job is a failure to the extent that the
coverage as recommended by the manufacturer isn’t achieved without
applying two coats.”.[46]
Ms Vercoe
[45]           T535-536.
[46]           T534.
64        Ms Vercoe was called as a witness by JLL. She is currently the Centre Manager of the shopping centre employed by JLL and has been employed as a Centre Manager by JLL at different shopping centres since 2003. She commenced at the shopping centre on 8 September 2008 and personally knows Janet Reading, who had been the Centre Manager at the shopping centre at an earlier time. She also knew of Tom McAuliffe, who had been the Operations Manager at the shopping centre, but had since died of a heart attack. She said that the role of an Operations Manager is to look after day to day things to ensure that occupational health and safety matters are complied with. It is the Operations Manager’s role to investigate if something is needed to be done for safety and, if so, to ensure that the job has been completed with a satisfactory level of skill. She said that it is the Centre Manager’s role to sign off on all invoices for such maintenance jobs to authorise payment to tradesmen. If the job was not satisfactory, a Centre Manager would not sign off on it.
65        Ms Vercoe said that, shortly after she arrived at the shopping centre she arranged to have the stairway and entrance landing, which is the subject of this proceeding, painted. She said it is an internal stairway being the exit from the centre management office and is used by the centre management staff, which presently number five, and any contractors or, occasionally, members of the public who may want to go up to see the management of the shopping centre for any reason. As previously mentioned, she authorised the area to be repainted for aesthetic reasons and the grey gloss paint which she authorised remains on the stairs to the present time. She identified Exhibit “J” as being the tax invoice relating to that painting work. She said that when she arrived at the shopping centre there had been a yellow piece of Pirelli, which was an anti-slip material, adhering to the landing at the base of each of the three flights of stairs. When she had the stairs repainted she arranged for these pieces of Pirelli to be removed and to be replaced by black parallel strips, as seen in Exhibit “D3-4”. She said these strips were “just an added protection for OH&S in case someone did slip”.[47]
[47]           T585.
66        She said that in 2004 she had been Centre Manager at another shopping centre for JLL and it was always part of her role to minimise occupational health and safety risks. The installation of the floor strips or anti-slip tape was the sort of thing that she would have authorised, if required, and she thought it was necessary on a landing of a similar type back in 2004.[48]
[48]           T603-T604.
67        Ms Vercoe said that JLL, from the time she worked for it, was a huge company, one of Australia’s leading shopping centre management groups, and since 2003 had managed hundreds of shopping centres. She said that ISPT had nominated JLL to look after 27 of their shopping centres throughout Australia on a contract basis. Exhibit “N” was the agreement between the two companies and she was required to make reference to it in the performance of her duties as Centre Manager.
Mr Carboni
68        Mr Carboni, painter, was also called as a witness by JLL. He identified Exhibit “D3-5” as a tax invoice, dated 26 April 2004, which he had rendered to JLL for painting the stairwell and the purchase order from JLL for that work, dated 2 April 2004. His evidence was that the steps had been painted previously, so, prior to him painting them, he washed them down with Sugar Soap. He said that this is in accordance with paint manufacturer’s recommendations, so that fresh paint will stick to the surface. He said that on the stairs “the Berger Jet Dry that we used was a non-skid and it was like a matte finish”.[49] He said that the foyer area in the ladies’ toilet near the stairwell and the stairs “were painted with the same product, the Berger Jet Dry non-skid”.[50] The paint itself did not contain grit but he said “we added the grit just as extra security for the non-skid purpose”.[51] He stated that he had the grit added at the paint shop and mixed in with the colour on their mixer machine.
[49]           T609.
[50]           T618.
[51]           T610.
69        He described decanting a small quantity of paint from the four litre tin into another four litre tin so that on the first day he and his employee, Bruce Knowles, could “cut in all the edges with the brush about four inches out” and then “do the inside bit…fill it all in with a roller”. He claimed that they would stir the paint in the paint can and also in the roller to ensure that the grit would go right through and none of the grit would sit down the bottom of the can or the roller tray. He said his “practice” was to put one coat on the first night and the second coat on the second night.[52] He was there with Bruce Knowles on the first night but on the second night, after doing the “cutting in”, he had left Bruce Knowles to finish off the steps with the roller. He had never been back to inspect the job after Bruce Knowles supposedly finished it, but he and Bruce Knowles had twice attended the shopping centre this year to look at the paint job after being contacted by JLL’s lawyers. He had not been asked on either occasion to verify the number of coats of paint on the steps. He had never been asked the question whether it had two coats and had never been asked to turn his mind to what he had done on the job until contacted by the lawyers late last year. He thought that, in order to work out how many coats were on the surface of the steps, he would have to send a sample away to a laboratory. He said in this context he got Dulux involved and asked them what they thought about it and the reason he did that was “just peace of mind, that’s all”.[53]
[52]           T611.
[53]           T624.
70        Mr Carboni stated that when he went back to inspect his paintwork he noticed that the steps had been re-coated with a grey gloss paint, but the same green paint which he had used on the steps was visible where there was a small strip under a door and also in the foyer area of the ladies’ toilet. He agreed, as a general proposition, that painting can leave a telltale sign by the brushstrokes evident on the job and that, when gritted paint is used, the dispersal of the grit could be assessed by reference to whether there were smooth areas or rough areas and, where there is a smooth area, that was an absence of grit.[54] He was asked whether, on either of the occasions that he had recently gone to the shopping centre, he made an examination of the steps to see whether there was evidence of grit or absence of grit in various parts, and he stated “it was a bit patchy. There was absence and there was –
yeah…In some areas there was a lot of grit on the treads and the landings. In
other areas it was very smooth.”[55]
[54]           T625.
[55]           T626-627.
71        In re-examination he stated “as my original coat wears out and the grit wears
out in areas – in the trafficked areas, as soon as you put another coating over the top of it like the gloss that’s there now, it’d make it look smooth and as if
there’s no grit at all.”[56]
[56]           T636.
72        He stated that there were not any adhesive anti-slip strips at or near the stairs before the first night that he did the painting or when he finished the job and no one had discussed the use of adhesive strips with him.[57] He had no knowledge of any material known as Pirelli or any other anti-slip material that had been placed on or near the vicinity of the stairway.[58]

Mr Lightfoot
[57]           T627.
[58]           T629.
73        Mr Lightfoot, engineer, had been asked by JLL to provide an opinion. He has practised as a consulting engineer for 29 years and provided assessments and specialist advice relating to occupational health and safety issues. His report dated 4 April 2011 was tendered by JLL as Exhibit “D3-6”.
74        On 31 March 2011, Mr Lightfoot had attended the shopping centre, where Mr Dyer and a painter pointed out a painted floor surface in the foyer of the upstairs toilets, which was said to be the same surface material applied to the stairs back in 2004. He used the same test with a Stanley pendulum as that used by Mr Dohrmann in order to undertake wet friction measurements of that surface in the toilet foyer. Like Mr Dohrmann, he concluded that the contribution of that floor surface in the toilet foyer to the risk of slipping when wet is very low. He made the assumption that the floor surface was similar in characteristics to that on the surface of the stairs, but did not detail any observations in relation to an inspection of the stairs themselves.

FINDING AS TO WHY THE PLAINTIFF SLIPPED ON THE STEPS
75        In this case there is no evidence that there had been any slipping incidents on the steps in question prior to the plaintiff’s accident. However I regard that as being of no relevance, as the plaintiff’s case is that the steps were slippery when wet. Given that the plaintiff started work early in the morning prior to anyone else being present at the shopping centre to use the steps, he was the only person likely to be affected if the steps did not have an adequate slip- resistant surface when wet. There is no suggestion by either the first or third defendant that the plaintiff contributed to his accident by his own negligence in any way.
76        At first blush, the evidence of Mr Dohrmann and Mr Lightfoot, that the foyer area of the ladies toilet near the stairwell, which still has the same green gritted paint surface applied by Mr Carboni in 2004, exhibits adequate slip- resistance when wet, may appear to be fatal to the plaintiff’s case. However, this must be looked at in the context of all of the evidence in the case. For the following reasons, I find that it is more probable than not that the green gritted paint when applied to the steps did not provide the same degree of slip resistance as when it was applied to the ladies toilet area. I also find that it was not adequate to ensure that a person could safely walk on those steps when wet.

(1)

Both Mr Stanley and Mr Dyer indicated that the court may well accept the plaintiff’s evidence that he did complain to Tom McAuliffe that the steps were slippery when wet. As Mr Dyer pointed out, this is not necessarily evidence that they were, in fact, slippery when wet. However, the plaintiff gave evidence that he also cleaned the toilets[59] but he made no complaint in his evidence about the floor of the toilets being slippery when wet. Nor did he say that he ever made any such complaint about the floor of the toilets to Tom McAuliffe. The plaintiff’s concern as to the slipperiness of a surface when wet was confined to the steps, and his evidence was that the steps being slippery when wet was a cause of him repeatedly making complaints to Tom McAuliffe in the two month period leading up to his accident. The plaintiff was an experienced cleaner having worked for decades at a variety of venues. I have already stated that I found him to be a truthful witness and his experience as a cleaner causes me to place some weight upon his complaint that the steps in question were slippery when wet and sufficiently so to warrant repeated complaints to Tom McAuliffe about them. I accept his evidence that the steps were slippery when wet because, on a daily basis over approximately two months, he had had the opportunity to make such observation in the context of being a person who was used to dealing with wet surfaces.

(2)

Although I find that I am not able to be satisfied one way or another as to whether Mr Carboni and his employee, Mr Knowles, applied one or two coats of green gritted paint to the steps, I am satisfied on the balance of probabilities that the coating of green gritted paint which they applied to the steps in April 2004 was not such as to provide adequate slip-resistance when the steps were wet. In arriving at this conclusion I have placed weight upon the following factors:
[59]           T130-131.
(i)         Both Mr Dohrmann and Mr Perkins gave evidence that on the steps they found an uneven distribution of grit. Mr Dohrmann had inspected the foyer area of the ladies toilet and said that he could not say that the steps had been prepared or painted to the same condition as the toilet foyer. He considered that the slip- resistance would vary from place to place depending upon how well the paint was applied and how evenly the grit was distributed and other factors, such as the competence of the painter.
(ii)        Mr Carboni stated that traffic on the stairs would wear out the grit in the paint that he had applied and, once the new coat of grey gloss paint had been applied over the top, the surface would look smooth as if there had been no grit underneath. However, this could not account for the finding of both Mr Dohrmann and Mr Perkins that there was an uneven distribution of grit away from the worn nose of steps upon which people rely for traction[60], that is, in areas where traffic is low, typically at the sides, where people do not walk.[61] Mr Perkins stated that there were clear patches where the paint had no grit in it[62] and there was not a consistently good coverage of grit which was evident on the stairs in “areas that are not trafficked, such as the back of the stair or the rise of the stair”.[63] In the light of these findings of uneven distribution of grit in areas of the steps which are not heavily trafficked, I find Mr Carboni’s explanation of traffic on the steps plus covering by the grey gloss paint to be an unlikely explanation for the smooth non-gritted areas described by Mr Dohrmann and Mr Perkins. Rather, I find it more likely that the grit was not evenly dispersed throughout the paint when applied by Mr Carboni. In this regard, I note that Mr Carboni said that he had never previously used the Berger Jet Dry paint.
(iii)       Mr Carboni’s evidence was that he had not been asked to turn his mind to what he did in painting these steps until over six years after he had painted them, namely, when first contacted by lawyers for JLL late last year. For this reason, I find it difficult to accept the very detailed description that Mr Carboni gave as to how he and Mr Knowles stirred, decanted and applied the paint in April 2004.[64] Although Mr Carboni admitted that he had never used the Berger Jet Dry on any stairs prior to the shopping centre, he claimed that in 2004 that that paint was regarded as excellent given the range of products on the market at the time.[65] Mr Carboni impressed me as someone who was well aware that the quality of his work in having painted these steps was under scrutiny and very anxious to give a good account of the job that he had done.
On most occasions throughout his evidence, Mr Carboni referred to the paint he had used on the steps in 2004 as “Berger Jet Dry non-skid” (my emphasis). He was never shown the specification sheet for “Berger Jet Dry non-slip” paint which was tendered as Exhibit “D3-9” part way through Mr Dyer’s final address. This specification sheet appears to have been printed from the internet on 25 March 2011. There is no evidence before me that this was the same product used by Mr Carboni, or that it was even available in 2004.
Whilst Mr Carboni may well have consulted some Dulux paint representative back in 2004 concerning an appropriate gritted paint to be used, I cannot be satisfied that it was applied in such a way as to ensure that the grit was carefully and evenly spread across the surface. That Mr Carboni found it necessary to take a scraping of the paint from the stairs recently, and to take it to Dulux to ask them what they thought about it just for “peace of mind”[66] reinforced my view that Mr Carboni was unsure about the quality of the job that he had performed in 2004. (I here interpolate that JLL withdrew the application to lead evidence of what a Dulux representative might have said about the samples of the paint delivered by Mr Carboni in the light of it having failed to serve a Notice of Expert Evidence pursuant to Order 44. Moreover, to have led such evidence would have been unfair, given that JLL had refused Mr Dohrmann the opportunity of undertaking any sample of the paint for analysis.)
(iv)       Mr Carboni never saw the final finish on the steps, as his evidence was that he had left his employee, Mr Knowles, to put on a second coat with a roller after he had “cut” the corners. I would have expected Mr Knowles to be called by JLL as a witness as to his role in the painting of the steps. In cross- examination of the plaintiff, Mr Dyer had indicated that he would be calling “the painters who painted the steps”. Mr Carboni stated that Mr Knowles is still an employee of his and, indeed, had accompanied him recently to inspect the steps at the shopping centre. No explanation for failing to call Mr Knowles was given by JLL. In these circumstances I consider it appropriate to draw an inference that the evidence of Mr Knowles would not have assisted JLL and I can more readily accept the evidence of Mr Dohrmann and Mr Perkins concerning the inadequate distribution of grit on the surface of the steps.
(v)        Mr Carboni stated that there was no consideration by him as to whether or not the stairs may become wet in the course of use.[67] He also said that, had Tom McAuliffe contacted him and stated that there had been complaints about the steps being slippery, he would have come back to assess them and, if necessary, given them another coat.[68] He stated that he had never been asked to go and have a look to see whether the job was effective to prevent slipping and he had never had any communication with Tom McAuliffe about whether any tests should be done to see whether it was a slip-resistant surface.[69] In these circumstances I conclude that the paint which was selected by Mr McAuliffe and/or Mr Carboni for the coating of the steps in 2004 was not made in consideration of the steps needing to be non-slippery when wet. Accordingly, although the surface coating by Mr Carboni and Mr Knowles may have been adequate to prevent slipping or skidding when the steps were dry, I am satisfied on the balance of probabilities that it did not provide an adequate slip-resistant surface for when the steps were wet.
[60]           Mr Dohrman at T511-512.
[61]           Mr Dohrman at T530.
[62]           T534.
[63]           T535.
[64]           T611, T614-615, T619-622.
[65]           T632.
[66]           T624.
[67]           T617.
[68]           T630.
[69]           T626.

THE ISSUE OF THE LIABILITY OF THE FIRST DEFENDANT
77 It is clear that Lea, as the admitted employer, owed to the plaintiff, it’s employee, a duty to exercise reasonable care, not to expose him to unnecessary risk of injury. This duty is non-delegable. It includes an obligation to provide the plaintiff with a safe system of work and that involves establishing, maintaining and enforcing such a system: McLean v Tedman[70].
[70] (1984) 155 CLR 306 at 313.
78 The approach to be adopted in determining the liability of an employer was agreed by Mr Stanley, on behalf of the first defendant, to be that set out by the High Court in Wyong Shire Council v Shirt (notwithstanding that the case was not one involving an employer and employee). In Shirt’s case Mason J stated:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.”[71]
[71] (1980) 146 CLR 40 at 47.

79        It is clear that in determining whether an employer’s duty of care has been breached one must not look back at what has, in fact, happened, but look forward from a time before the occurrence of the injury giving rise to the claim:
Vairy v Wyong Shire Council.[72]
The scope of the first defendant’s duty to the plaintiff
[72] (2005) 223 CLR 422 at 456 per Hayne J.
80        In this case Lea required the plaintiff to perform cleaning duties at the shopping centre pursuant to an agreement with Gough Bay who, in turn, had an agreement with ISPT to supply cleaning services for the shopping centre. Lea called no evidence, and precisely how it procured the contract to clean the shopping centre is not apparent. Nor is there any evidence as to what inspection of the shopping centre or assessment of the work duties of the plaintiff were undertaken by Lea. As a matter of common sense one would expect the duty of an employer to include an assessment of the tasks to be undertaken by the plaintiff and to determine a safe system of carrying out those tasks at the shopping centre, together with appropriate training and instructions to the plaintiff.
81        The evidence of the plaintiff is that Gerry Callus, who was in a managerial role with his employer, told him that he was to be transferred from the venue at St Helena, where he had worked for nine years, to work at the shopping centre. Brian Crewes, who was also a manager with his employer, drove him to the shopping centre and introduced him to two ladies whom he believed to be also employed by his employer (which he understood to be Reflections Group Services Pty Ltd). The younger of the two ladies was Mannie Dani. He could not recall the name of the older lady. The older lady claimed that she was the supervisor and she showed him what he was required to do by way of cleaning duties at the shopping centre. He was provided with a “Reflections Group” uniform and simply told to wear black shoes to go with the uniform. At the shopping centre he was shown a cleaner’s room where cleaning equipment and products were stored, which he believed were supplied by his employer.
82        When the plaintiff had started to work at the St Helena venue in 1996, whilst employed by Shopping Centre Cleaning Services (which employer changed to become Reflections Group Services Pty Ltd some time before 2004), he underwent a one day training course about “chemicals and cleaning in steam cleaning carpets or strip polishing floors and stuff like that” which qualified him for “Certificate II” and “Certificate III”. He said, “I learn like how to mix

chemicals, or – all that – in cleaning requirement, like – you know in cleaning
[73]           T125.
buildings. What to be done and how it to be done”.[73]
83        The plaintiff said that at no time did anyone tell him how to clean steps. Nor did anyone give any site-specific instructions about how to clean the steps, any dangers involved in cleaning the steps or how to avoid dangers cleaning the steps. He said that no one from his employer came to watch him doing his work or check on his work at the shopping centre and he was not aware of any safety officer or safety representative appointed to deal with his cleaning work there. Nor did he ever attend any safety meeting or any informal meeting with management or anyone about safety.[74] He said that when he did his courses to qualify for Certificates II and III, no part of the course involved the cleaning of concrete steps or dangers associated with them or safety measures to be taken when cleaning concrete steps.[75]
[74]           T144-145.
[75]           T244.
84        The impression I obtained from the plaintiff’s evidence was that he had no clear idea of the role of Mannie Dani and the other older woman who described herself as a supervisor. Indeed, he stated that he rarely saw them or spoke to them.[76] He said that when he found the stairs slippery, he mentioned this fact to Tom McAuliffe because he understood that he was the manager of the building or the “main man”, whom he saw nearly every morning, and there was no point in reporting to his “supervisor” because she would simply have to tell Tom.[77] He said he did not ask either of the women any questions about his duties because he knew what had to be done.[78] He said he was an experienced cleaner and he did not need people to tell him how to do his job as a cleaner.[79]
[76]           T197.
[77]           T214-215.
[78]           T187.
[79]           T179.
85        The plaintiff explained that he did not mop the stairs by going upwards because that would mean that he would be walking on the step that he had just cleaned and it was his job to clean the stairs not to make a mess, so it was impossible to clean the stairs by walking forwards as distinct from backwards.[80] He said he knew the routine and the way that the job should be properly done.[81] He said that nobody at any stage of his life had told him to clean concrete steps by going up the stairs with a dry mop rather than coming down because that was the wrong way and he had never seen it done that way.[82]
[80]           T183.
[81]           T181.
[82]           T244.
86        The plaintiff was clearly an experienced cleaner and he regarded himself as a competent cleaner.[83] At the time of the accident he had worked as a cleaner for more than 20 years, which included a period of 14 years when he was employed by the Government and, in particular, at the government buildings at Treasury Place, where he was the supervisor of 25 people. He said that he not only knew how to do cleaning work himself, but how to teach others.[84]
[83]           T177.
[84]           T176.
87        Mr Stanley relied upon the plaintiff’s evidence as being indicative that the system which was being employed by him when he suffered his ankle injury was an industry standard. He submitted that, although the activity may have had some inherent risks, they were not such as to warrant anything being done by his employer.
88        It may well be that walking backwards down stairs whilst mopping them is something which is done in the cleaning industry, however, it is incumbent upon an employer to provide a safe system of work. It seems to me that requiring an employee to walk backwards down concrete steps with his hands engaged in mopping the steps while his feet are on a wet step below could only be an acceptable system of work if the employer had assessed it to ensure that the wet surface on which the plaintiff was walking was adequately slip-resistant.
89        In this case there is simply no evidence that the employer turned its mind at all to whether the system employed by the plaintiff, without instruction from the employer, was safe in the context of the workplace at the shopping centre. The plaintiff, in his nine years of employment at the previous venue, St Helenas, had not had to clean steps because it was a ground floor building.[85] The evidence is that the plaintiff was taken to the shopping centre and told what areas to clean, but there is no evidence upon which I could find that the plaintiff’s employer gave any consideration at all to the safety aspects of such work. Given the potentially perilous nature of falling backwards whilst walking on wet concrete steps, I consider that it was within the scope of the employer’s duty to assess the surface on those steps to ensure that it was adequately slip-resistant. The plaintiff’s employer was an experienced cleaning company which should have been well acquainted with the necessary safety aspects of cleaning. An assessment of the steps when wet was warranted and, had it been carried out, it would have revealed the hazard to which the plaintiff was exposed. Indeed, Mr Dohrmann’s evidence was that it was good industry practice to conduct a formal risk assessment where a worker’s duties extended to cleaning or mopping stairs, and that is commonly a part of the work which he is asked to undertake to ensure safety at worksites.[86]

[109]          T409
[110]          T406
[111]          T408
140       The plaintiff said that he ceased seeing Dr Wahr for psychiatric treatment in May 2008 because it was easier for him to have Dr Ristevski treat him as he was geographically closer. Hence, since that time, he has continued to consult Dr Ristevski every fortnight or every month. In June 2010, he suffered a stroke with effects of dizziness, blurred vision and feeling faint. He was taken to Northern Hospital, where he remained for one week, and then underwent a further week of rehabilitation in Broadmeadows. The plaintiff said he did not feel well for a couple of months, but has now improved. Dr Ristevski said the plaintiff’s stroke was most likely caused by hypertension, for which he is now under treatment, but there is always a risk that he could have another one. However, he had been seen by a specialist physician in July 2010 and was noted to have made a full recovery. He has no motor or sensory loss. Assessments conducted indicated that he was capable of living alone and did not require any community support services. He had also recently undergone a myocardial profusion stress test, but there was no evidence found of ischaemic heart disease. Dr Ristevski said that the stroke suffered by the plaintiff was a transient ischaemic attack. This may cause mild damage but has no lasting effect. He considered that there were no ongoing signs or symptoms relating to the stroke.
141       Dr Ristevski said that, in addition to medication for hypertension, the plaintiff takes medication for elevated cholesterol and also had to have a vitamin D deficiency addressed. He said that the levels of vitamin D can be reduced by the plaintiff’s cholesterol medication, but also by him not getting out and about and not being exposed to sufficient sunlight. Dr Ristevski said he was continuing to give the plaintiff supportive psychiatric treatment and medication. The plaintiff currently takes Mirtazapine, an anti-depressant, which also helps with his anxiety and agitation, and Stilnox for sleeping problems. However, the plaintiff had had to cease taking Panadeine Forte because of his diabetes and stroke, and also the risk that it may impact upon his kidney function (the plaintiff having had one kidney removed in 1993 following the detection of a tumour affecting it). Dr Ristevski said that this makes controlling his pain levels difficult.
142       Dr Ristevski said that the plaintiff has a total incapacity for work because of a marked internal ankle osteochondral injury. He said that this injury is likely to increase in magnitude with future degenerative and osteoarthritic changes and, because of the injury, joint degeneration has occurred much sooner than it would have occurred otherwise. He thought that the diabetes was the greatest contraindication for surgery and that the plaintiff was left with a painful, unstable ankle which restricted his long-term ability to be physically active and fully enjoy life. He said it also aggravated his condition of diabetes, high cholesterol and hypertension because it restricted his mobility, and exercise is important in controlling all of these conditions. He said that, following the death of the plaintiff’s wife in 2002, he had been prescribed Stilnox, but there had been relatively few consultations with him in the two years leading up to the accident and infrequent use of the Stilnox, whereas since the accident he had been diagnosed with depression following the ankle injury, and his prescription of Stilnox had increased.

ASSESSMENT OF DAMAGES FOR PAIN AND SUFFERING AND LOSS OF
ENJOYMENT OF LIFE
143       There was some argument put, particularly by Mr Dyer, that the plaintiff had failed to mitigate his loss by not giving up smoking, which prevented him undergoing the arthrodesis. The plaintiff had been a smoker since age 11 and is suffering significant agitated depression and anxiety secondary to his ankle injury. According to Dr Ristevski, the plaintiff’s psychological condition would make it even more difficult for him to give up smoking than someone without such a condition. In any event, the fact that he was diagnosed with what would appear to be a hereditary condition of diabetes mellitus type 2 in 2007 would prevent him undergoing the surgery. In these circumstances I find that the defendants have failed to discharge the onus upon them of proving that the plaintiff has not mitigated his loss.
144       It was submitted by both Mr Dyer and Mr Stanley that the plaintiff’s other health issues of diabetes, the stroke, elevated cholesterol and hypertension should all be taken into account as factors diminishing his enjoyment of life. I think it is appropriate to do so, to some extent, but I also note that these factors, particularly the diabetes, hypertension and cholesterol levels, are exacerbated by his inability to exercise because of his ankle injury.
145       The injury suffered by the plaintiff is a very serious one. He has a very painful, unstable ankle with no prospect of pain being relieved by a fusion procedure. His condition of diabetes, hypertension and the risk to his one remaining kidney means that he is no longer able to take the fairly high level of six Panadeine Forte per day which he had been taking in order to relieve his pain. He is in a most unenviable position of having constant, debilitating pain in a crucial weight bearing joint which severely restricts his ability to undertake the basic function of walking, which he can only do with the assistance of a stick. He has undergone two unsuccessful arthroscopies, and an injection of anaesthetic has been of no beneficial effect. His prognosis is a bleak one in that he already has signs of degenerative change in the ankle joint. The medical evidence is that this is likely to progress at an accelerated rate, leading to further disability and even more restrictions upon his already restricted ability to be active and enjoy life as he did prior to the accident.
146       Although the plaintiff understandably suffered some depression following the sudden death of his wife in 2002, for which he was prescribed some sleeping medication, I am satisfied that this most likely would have lessened with time. However, the pain and restriction on his daily activities following his ankle injury has been immense. As human beings we take the basic function of walking for granted. It is fundamental to carrying out daily tasks of living and for the purpose of maintaining fitness. For the plaintiff, it is a painful and frustrating experience which erodes his independence. He is unable to carry out his job as a cleaner, which he had loved and was apparently good at and had done for over 20 years. These severe limitations have given rise to an agitated, depressive reaction which, according to both Dr Wahr and Dr Ristevski, require ongoing supportive psychotherapy and psychotropic medication. In addition, the pain from his ankle disturbs his sleep which further increases his depression. He is currently taking the anti-depressant, Mirtazapine, which also helps with his anxiety and agitation, and a sleeping tablet, Stilnox. I am satisfied that he is likely to require medications of that type indefinitely.
147       No medical evidence was called by either the first or third defendant, even though admissions were made by the first defendant that the plaintiff had been examined by Mr Hart, orthopaedic surgeon, in 2006; by Mr Love, orthopaedic surgeon on four occasions between 2008 and 2010; and by Dr Entwistle, psychiatrist, on four occasions between 2006 and 2010. I infer that the opinion of those doctors would not have advanced the defendants’ cases and can more readily accept the uncontradicted views of Dr Ristevski, Dr Wahr and Mr Kiellerup. Dr Wahr’s view, as at the time he last saw the plaintiff, was that by reason of his agitated, depressive reaction alone, he was permanently unable to work. His psychiatric condition was of considerable severity in that it affected his sleep, caused him to be depressed and anxious, to have reduced short-term memory and concentration, reduced sexual drive and to be socially withdrawn and irritable, and very easily upset. This condition has also reduced his capacity to deal well with other things which have afflicted him such as his transient ischaemic episode, diabetes and hypertension.
148       The net effect of the plaintiff’s painful and restricted ankle function, together with his psychiatric state, has been to severely impact upon his enjoyment of life. Prior to the injury in July 2004, he had an active working life and would go out socially with family and friends, would go to see films and enjoyed fishing. These activities have effectively ceased. He spends most of his time alone at home except for when his children visit him. He is unable to be an active and engaging grandfather because of his pain and depression. He cries a lot and there is little that he can do to improve his position. He has endured seven years of pain and depression which, at one stage, drove him to despair and alcoholism. He faces a future of likely deterioration of his condition with increased degenerative change and increased pain but an inability to relieve the pain by analgesic medication or surgery. There is no evidence that his other health conditions such as hypertension, diabetes or elevated cholesterol have materially altered his life expectancy. In my assessment, the very substantial erosion of his ability to enjoy life caused by his physical and psychiatric symptoms merit an award of damages in the sum of $200,000.

DAMAGES FOR LOSS OF EARNINGS AND LOSS OF EARNING CAPACITY
149       Mr Jewell, on behalf of the plaintiff, submitted that the evidence of Dr Ristevski was clear that by reason of the plaintiff’s physical injury to his ankle, he had been totally incapacitated for work since he ceased in September 2004. Further, Dr Wahr in his evidence supported the proposition that, by virtue of the plaintiff’s psychiatric state alone, which was a reaction to his physical injury at work, he was totally incapacitated for employment. Mr Kiellerup had ceased treating the plaintiff on 20 February 2007 and expressed the view that he would not be able to work as a cleaner but did not elaborate on whether he was fit for any other type of work. He did say that he would expect the plaintiff to have ongoing symptoms of pain, loss of function and inability to walk for any great distance.
150       Hence, the plaintiff claims damages for total incapacity from the date that he ceased work on 8 September 2004, up to the date of submissions in May 2011, with the exception of a two month period following his stroke when, it is conceded, he would have been unable to work. The plaintiff also claims loss of superannuation benefits at 9 per cent of his earnings and income tax paid on WorkCover benefits pursuant to the principle in Fox v Wood.[112] Mr Jewell submitted that the past loss should be reduced for contingencies by five per cent giving a total amount of damages for past economic loss of $278,136. As to the future, he said there should be allowed a loss of weekly income based on an agreed figure of $854.10 to age 65, allowing for a six per cent discount, together with future loss of superannuation. He conceded that the amounts for the future should also be discounted by five per cent for contingencies, giving a total of $164,502. This, when added to the past loss, make a total claim for loss of earnings and loss of earning capacity of $442,638.
[112] (1981) 148 CLR 438.
151       Mr Stanley and Mr Dyer made similar submissions in relation to the plaintiff’s claim for economic loss. They pointed to the fact that the plaintiff had a number of conditions unrelated to his ankle injury which may well have impacted upon his ability to continue working, namely the alcoholic pancreatitis, the stroke, hypertension, diabetes and depression consequent upon the death of his wife for which he had required a prescription of Stilnox in 2002. They submitted that these factors, together with the fact that, at some stage after the accident the plaintiff’s employer ceased trading, made it unlikely that he would have worked on a full-time basis to the present time or into the future.
152       A careful analysis of the evidence shows that, notwithstanding that the plaintiff has suffered the other conditions, and is taking medication in relation to them, there is no suggestion that any one of them would have prevented him from working had he not had the ankle injury. Mr Stanley relied on the plaintiff saying that the diabetes made him feel weak and nauseous and he had no energy but, in fact, the transcript reveals that he said that this was due to the diabetes and other illnesses in his body as well.[113] That he had suffered some grief and depression following his wife’s death is understandable, but that did not stop him from working. As already mentioned, although he was provided with a prescription for Stilnox following his wife’s death, he had very few attendances upon Dr Ristevski prior to the accident in July 2004. After the accident, his pain and restriction and his significant psychiatric reaction to his injury necessitated a referral to a psychiatrist, anti-depressant medication and increased dosages of Stilnox.
[113]          T174.
153       The evidence of the plaintiff’s three treating medical practitioners makes it clear that the real reason he is unable to work is because of his ankle injury and his associated depression. The evidence points to the plaintiff having been a highly experienced and competent cleaner with an excellent work history. He had worked long hours, up to 58 per week at the St Helena venue and elsewhere up until two months prior to the accident, and was working 48 hours a week at the time of the accident. This consisted of four days at the shopping centre and two days elsewhere. He was obviously sufficiently well regarded by his employer to be given the job at the shopping centre in the context of JLL requiring the cleaning to be of such a standard that the shopping centre should be “a showpiece”. I do not regard the mere fact that at some point following the date of his accident his employer ceased business as a basis for necessarily inferring that the plaintiff would not have obtained work. He had an excellent work history and had worked as a cleaner of shopping centres and other large venues over a very lengthy period. I find it likely that he would have been an attractive employee to any cleaning company. Moreover, it is apparent that the plaintiff enjoyed his work and that, following the death of his wife in 2002, it had assumed an even greater importance in his life than previously. I accept that it was his intention to continue to work as long as possible.
154       In June 2010 the plaintiff suffered a stroke. The plaintiff said he recovered after approximately two months. Dr Ristevski said that he was at risk of having another stroke but is on a regular regime of aspirin as a preventative measure. He said he has no signs or symptoms relating to his stroke which was consistent with a transitory ischaemic episode. Thus, although there may have been mild damage caused, the plaintiff had no residual loss of function and Dr Ristevski thought there were no lasting effects. He thought that the stroke had not affected the plaintiff’s capacity to work and that the plaintiff’s current work capacity relates to his ongoing ankle injury.[114]
[114]          T337.
155       Mr Stanley submitted that given the plaintiff’s health problems apart from his ankle injury, it was “unrealistic” to contend that he would currently be in full- time employment. He submitted that, at age 61, the plaintiff had no real prospect of getting employment of the sort claimed and it would be appropriate to discount his claim for past and future pecuniary loss by 50 per cent.
156       Mr Dyer’s submissions were very similar to those of Mr Stanley. In addition he submitted that the multiplier suggested for calculating future economic loss did not allow for mortality and that, ordinarily, an additional discount of 15 per cent for vicissitudes of life should apply but, in this case, perhaps a higher amount of 25 per cent would be appropriate plus a further 25 per cent for the risk that the plaintiff would have difficulty finding work.
157       It was never put to Dr Ristevski, the plaintiff’s general practitioner, that the plaintiff’s diabetes, hypertension, elevated cholesterol or alcoholic pancreatitis, in the absence of his ankle injury and secondary agitated depression and anxiety, would have prevented him working. In fact, Ristevski emphasised the importance of exercise in controlling the plaintiff’s hypertension and diabetes. Thus, I think it likely that the plaintiff would have been encouraged to continuing performing the physically active work which he did as a cleaner. I find no basis for concluding that prior to or since the ankle injury the plaintiff had lost his desire to work. In fact, in his evidence he said that he wished every day that he could work.
158       I consider that Mr Jewell’s concession as to a period of no work capacity for a period of two months following the plaintiff’s, stroke is reasonable and in accordance with the plaintiff’s own evidence, that he felt better after that time. It is also in accordance with Dr Ristevski’s evidence that the plaintiff has recovered well from the transitory ischaemic episode and that he performed well on cardiac function tests last year. I think it would be wrong of me to heavily discount the plaintiff’s past or future economic loss claim, particularly on the basis of his diabetes and hypertension in the light of Dr Ristevski’s evidence that his reduced mobility because of his ankle injury has exacerbated these conditions. There is no evidence that the plaintiff’s alcoholic pancreatitis has been an ongoing issue affecting his work capacity since he ceased to drink alcohol in 2007 and, in any event, I find that his increased consumption of alcohol was directly related to his immobility and depression resulting from his ankle injury. That the plaintiff was depressed following his wife’s death in 2002 does not provide an adequate foundation for the inference that he would necessarily have become incapacitated for work because of depression. The fact that he had continued to work long hours each week for the two years following his wife’s death up until the time of the accident is evidence to the contrary.
159       Mr Jewell has conceded that a five per cent discount on the claim for past economic loss is appropriate for such vicissitudes as the plaintiff possibly having periods where he could not find employment or being off work because of other health problems. I consider it appropriate to adopt such a discount.
160       Exhibit “O” sets out increments on the plaintiff’s wage as a cleaner which he would have earned from 2004 had it not been for his ankle injury. The defendants did not dispute the arithmetic of such calculations. Accordingly, after deducting two months total loss of earnings following the stroke in 2010, I accept the plaintiff’s past loss of earnings claimed since he ceased work on 8 September 2004 as follows:

Loss of nett weekly income from 08/09/2004 to $253,261.00
22/05/2011

Loss of superannuation at nine per cent from $23,633.00
08/09/2004 to 22/05/2011

Income tax claimable on WorkCover payments $15,881.00
pursuant to the principle in Fox v Wood

$292,775.00

Less five per cent discount for vicissitudes = $278,136.00
161 As far as the plaintiff’s claim for the future is concerned, I do not consider it unrealistic that he would have continued to work as a cleaner to age 65 had it not been for his ankle injury and reactive psychological state. I take judicial notice of the fact that in the light of the general increase in the life expectancy of Australian males, it is quite common for people to work beyond what used to be the usual retiring age of 65 years. I consider that, had it not been for the accident in 2004 the plaintiff, given his excellent work record and extensive experience as a cleaner, it is likely that he would have found work, particularly as he had worked at so many different commercial premises over the course of his work life. He is now 61 years of age and his claim is for only a four year period into the future. In these circumstances, I find that a five per cent discount for vicissitudes is reasonable, even though the multiplier used in Mr Jewell’s calculation did not incorporate an allowance for mortality. There is no evidence that any of the plaintiff’s medical conditions shorten his expectation of life. Five per cent seems fair to allow for the various risks that the plaintiff at 61 years may have decided to “slow down” and work a bit less, have time off work for illness or have a premature end to his working life. Accordingly, I accept that it is fair to compensate the plaintiff for future economic loss based upon what would have been his 2001 wage as agreed at $854.10, as follows:

Loss of nett weekly income of $854.10 to age 65 $158,863.00
applying the relevant six per cent discount multiplier
of 186.

Loss of future superannuation at nine per cent $14,297.00

$173,160.00

Less five per cent discount for vicissitudes = $164,502.00
162 Thus, a total of $642,638 damages is awarded to the plaintiff against the defendants, comprised as follows:

Pain and suffering past, present and future $200,000.00
Past economic loss $278,136.00
Present value of future economic loss $164,502.00
Total of damages $642,638.00
163 The order of the Court is that there be judgment for the plaintiff against the first and third defendant in the sum of $642,638.00 less any deductions required by the Act. I will hear the parties on this matter and the question of costs.

THE THIRD PARTY PROCEEDINGS BY JLL AGAINST GOUGH BAY
164 Mr Dyer and Mr Gorton have indicated to the Court that in the event that JLL is found to be liable to the plaintiff, then JLL’s claim against Gough Bay fails. Accordingly, given my findings I assume that Gough Bay seeks an order dismissing the third party proceeding. I will hear the parties further on this issue.

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[2011] VCC 1168

26 August 2011