Krickovic v The Star Pty Limited

[2019] NSWDC 594

District Court

New South Wales

Medium Neutral Citation:	Krickovic v The Star Pty Limited [2019] NSWDC 594
Hearing dates:	17, 18, 19, 20 & 26 September 2019
Date of orders:	25 October 2019
Decision date:	25 October 2019
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	1. Verdict and judgment for the plaintiff against the defendant in the sum of $150,144.15;  2. The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis.
Catchwords:	TORTS – negligence – occupiers liability – slip and fall injury in casino premises – polished marble floor rendered slippery by presence of clear liquid – whether due to negligence of occupier – whether there was contributory negligence on plaintiff’s part; DAMAGES – assessment of claimed heads of damage
Legislation Cited:	Civil Liability Act 2002 (NSW), s 5B, s 5C, s 5D, s 16 Civil Procedure Act 2005 (NSW), s 56 Evidence Act 1995 (NSW), s 60 Uniform Civil Procedure Rules 2005 (NSW), Sch 7 cl 5(c)
Cases Cited:	Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, [1987] HCA 7 Cupac v Cannone [2015] NSWCA 114 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Graham v Baker (1961) 106 CLR 340; [1961] HCA 48 Larson v Commissioner of Police [2004] NSWCA 126 Majkic v Bonnano [2008] NSWCA 253 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Manly Municipal Council v Skene [2002] NSWCA 385 Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5 Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60 Penrith City Council v Parks [2004] NSWCA 201 State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 Strong v Woolworths Ltd (2012) 246 CLR 182, [2012] HCA 5 Vaccaro v MLC Limited [2016] NSWDC 85 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442
Category:	Principal judgment
Parties:	Radomir Krickovic (Plaintiff) The Star Pty Limited (Defendant)
Representation:	Counsel: Ms M Campbell (Plaintiff) Mr C Purdy (Defendant)   Solicitors: Brydens (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2018/225915
Publication restriction:	None

Judgment

Table of Contents

Nature of case	[1]
Claim	[2] – [4]
Defence	[5] – [10]
Issues	[11]
Evidence overview	[12] – [14]
Credibility and reliability of testimony	[15] – [25]
Facts not in dispute	[26] – [86]
The premises	[27]
Staffing and equipment on the premises	[28] – [54]
Events preceding the plaintiff’s fall	[55] – [58]
Accident circumstances	[59] – [64]
Injuries and initial treatment	[65] – [68]
Plaintiff’s pre-accident health	[69] – [72]
Plaintiff’s pre-accident work history	[73] – [75]
Post-accident medical and allied reviews	[76]
Resolution of conflicting medical opinions	[77] – [80]
Disabilities that remain	[81] – [82]
Work effects	[83] – [85]
Mitigation	[86]
Plaintiff’s most likely circumstances but for his fall	[87] – [90]
Expert opinions of Mr Cauduro	[91] – [93]
Issue 1 – Risk of harm	[94]
Issue 2 – Duty of care	[95] – [100]
Issue 3 – Alleged breach of duty of care and negligence	[101] – [119]
Issue 4 – Assessment of damages	[120] – [151]
Non-economic loss	[122] – [125]
Past economic loss including superannuation	[126] – [138]
Future economic loss including superannuation	[139] – [146]
Future out-of-pocket expenses	[147] – [149]
Past out-of-pocket expenses	[150]
Summary of damages assessment	[151]
Disposition	[152]
Costs	[153]
Orders	[154]

Nature of case

1. The plaintiff, Mr Radomir Krickovic, brings these occupier’s liability proceedings against the defendant, The Star Pty Limited, claiming damages for alleged negligence causing personal injury following a slip and fall incident that occurred at about 2.56am on Sunday 11 December 2017, at The Star Casino at 80 Pyrmont Street, Pyrmont, New South Wales. The proceedings are governed by the Civil Liability Act 2002 (NSW) (“CL Act”).

Claim

2. The plaintiff claims that whilst he was walking across dark coloured inlaid section of a polished marble floor comprising a vestibule or walkway located between the entrance to a buffet restaurant and a gaming area within those premises, he slipped on a puddle of spilt liquid, possibly water, that was located on the floor. As a result, he fell and sustained multiple soft tissue injuries, principally to his back.

3. The plaintiff claims that the defendant was negligent in failing to maintain and adequately implement reasonable safety precautions at the premises. This included having a suitable system for inspection of the area to keep the floor clean and slip free in circumstances where that area was frequently used by patrons as a thoroughfare. Patrons were permitted to carry beverages within the premises. Beverages were also moved about within the premises on portable trolleys to serve customers at gaming tables.

4. Images of the sequence of the events leading to the plaintiff’s fall were recorded contemporaneously on CCTV footage: Exhibit “E”. A redacted copy image from those recordings (Exhibit “G”) appears as follows:

[

[Exhibit “G”]

Defence

5. The defendant’s statement of defence filed on 17 July 2019 contained very few admissions concerning the circumstances pleaded by the plaintiff. Many of the plaintiff’s pleaded averments were the subject of denials. Curiously, the statement of defence filed did not admit the following matters:

1. That the defendant was the occupier of the premises;

2. That the defendant had care, control and maintenance obligations in respect of the premises;

3. That the plaintiff was lawfully on the defendant’s premises;

4. That the plaintiff slipped whilst walking across the floor of the premises on which spilt liquid was present;

5. That the presence of liquid on the floor gave rise to a risk of injury by slipping on the floor.

6. A further matter of curiosity arising out of the defendant’s pleading is that it not only denied that it had been negligent in the circumstances leading to the plaintiff’s injuries, but it also denied:

1. That the presence of liquid on the floor gave rise to a foreseeable and not insignificant risk of slipping, falling and injury;

2. That a reasonable person in the position of the defendant would have taken precautions to avoid the foregoing risk;

3. That it owed a duty to take reasonable measures to avoid the identified risk of harm.

7. Those denials appeared to be inconsistent with the defendant’s own internal documents that were tendered in the plaintiff’s case, a matter to which I shall return.

8. Although the defendant’s pleading alleged that the plaintiff’s injury occurred as a result of his own alleged contributory negligence, that plea was not pursued by any questions asked in cross-examination of the plaintiff, and it was ultimately abandoned by the defendant in the course of final submissions.

9. The extent of the defendant’s non-admissions and denials as referred to above were somewhat puzzling considering that there was no dispute the plaintiff was on the premises as a registered gambler to whom the defendant had issued a casino membership card that recorded his gambling transactions, and also given the defendant’s knowledge of the content of the contemporaneous CCTV footage in which the plaintiff’s fall was seen and recorded, and also given the content of the defendant’s incident report form that was prepared by the defendant’s staff shortly after the plaintiff’s fall in the knowledge that the fall had occurred.

10. When those latter matters were taken up with counsel for the defendant in final submissions, concessions were ultimately made concerning the defendant’s occupation of the premises, the plaintiff’s lawful presence on the premises, the defendant’s maintenance obligations in relation to the premises, and the existence of a duty of care to persons on the premises. Those concessions were made appropriately, but should have been made well before the hearing in order to limit the true issues in dispute: s 56 of the Civil Procedure Act 2005 (NSW).

Issues

11. Ultimately, the issues for determination in these proceedings were identified as follows:

1. The identification of the relevant risk of harm;

2. The nature and content of the duty of care owed by the defendant;

3. Whether the defendant was in breach of the duty of care it owed to the plaintiff, and whether the defendant was negligent in that regard;

4. The assessment of the plaintiff’s claim for damages.

Evidence overview

12. The plaintiff was the only person called to give oral evidence. To establish his claim that the defendant was negligent, the plaintiff relied upon the defendant’s own documents and also on a safety and incident analysis report dated 30 April 2019 from Mr Denis Cauduro: Exhibit “B”. Mr Cauduro was not required for cross-examination.

13. Mr Cauduro’s opinion was to the effect that the defendant failed to implement adequate control measures in relation to the smooth marble floor of the premises, allowing for the potential of the floor to become contaminated. The relevance and acceptability of Mr Cauduro’s opinions on whether the defendant failed in regard to its duty of care as occupier of the premises are matters that require analysis.

14. The plaintiff’s documentary exhibits were tendered in the series Exhibit “A” to Exhibit “V”. The defendant’s documentary exhibits were tendered in the series Exhibit “1” to Exhibit “7”. Those documentary exhibits will be referred to where it becomes relevant to do so.

Credibility and reliability of testimony

15. The plaintiff was born in 1961 in the former Yugoslavia, now Serbia. He arrived in Australia at the age of 9 years in 1970. After he completed his schooling, he entered the workforce and pursued a variety of occupations.

16. The plaintiff gave his evidence carefully, occasionally taking time to consider some of his answers. He explained that this was because, as a result of a stroke he had experienced in 2003, at times he had difficulty finding the appropriate words to express himself: T102.13; T136.35. Although he considered that his English was “not up to scratch” (T38.27), my impression was that he was more than adequately fluent in his use of the English language. He made candid concessions against his interest where such concessions were due.

17. The defendant attacked the plaintiff’s credit with regard to his economic loss claim. The defendant’s suggestion was that in his evidence as to his historical gambling at the Casino, he was “making it up to counter any suggestion of funding gambling by work income”: T126.7 – T127.22. The suggestion, as put, was that the plaintiff had been working but had not declared income from working: T127.36 – T127.42. The plaintiff forthrightly and robustly denied those suggestions. In my view, the accuracy of his financial evidence was not relevantly rebutted. The defendant’s suggestion in that credit attack has not been made good by evidence.

18. The plaintiff explained that his gambling, playing baccarat and slot machines, which was a lawful activity when conducted at the Casino, was a lifestyle choice which he enjoyed because of the adrenaline reaction that it gave him: T121.39 – T121.40; T127.49. The plaintiff had been a loyal customer of the defendant’s casino since its inception, some 30 years ago: T120 – T121. Since then, the plaintiff’s lifestyle has included gambling at those premises. He has also continued to do so since the subject fall at the premises (T121.9), as the defendant’s records have confirmed.

19. The defendant has kept some detailed records of the plaintiff’s gambling at the Casino. The defendant sought to tender a record of the plaintiff’s gambling between 1 January 2019 and 15 September 2019: MFI “10”. That tender was initially objected to on the basis that it was incomplete, and because aspects of it were not explained: T141.11 – T141.48. That record, described as a Player Audit Trail, was kept on a computer software programme known as Synkros. It was later introduced into evidence without objection as an annexure to the affidavit sworn on 19 September 2019 by Ms Olive Russell, a paralegal employee of the Casino.

20. When the plaintiff was questioned about the content of that document he did not accept the accuracy of some of its content as it purported to relate to him, and insofar as it purported to represent his actual historical gambling at the defendant’s Casino.

21. In the course of the plaintiff’s challenge to that document, he pointed out, without contradiction, that it could not be taken to be accurate because his wagering was always in round numbers of dollars expended in currency notes and not in the dollars and cents that were recorded in the document in question.

22. In evaluating and accepting the plaintiff’s challenge to the reliability of the defendant’s purported record of his gambling, for analysis, it is sufficiently illustrative to take a random sample of the many stated transactions, such as the purported record of the plaintiff’s gambling for 9 January 2019, on page 1, as follows:

1. The record of the plaintiff’s betting on that day was for the period of about 17 minutes between 20:22:13 to 20:38:05;

2. The document expressed the plaintiff’s average bet as being $3.67;

3. The plaintiff’s “Cash In” was identified at $956.90, and his “Total Out” was identified at $538.40;

4. The plaintiff’s “Theo win”, which I take to mean theoretical winnings, was stated to be $63.73;

5. The plaintiff’s “Win/Loss” was recorded as being $418.50;

6. It is not relevant to consider the other descriptors such as points, competition points, base points, tier points, game hold percentages, game DPH, FM/Mk, CPV, and what was described as rater scales.

23. The document in question was complex, and required explanation. In light of the plaintiff’s challenges, the defendant was the only party capable of calling evidence to explain it and that evidence was not forthcoming. In those circumstances, absent such explanations, I consider the plaintiff’s criticisms of the purported record have persuasive force. Accordingly, there is no need to further consider that document as a means of attacking the plaintiff’s credit as a witness.

24. I do not regard the plaintiff’s explanations in relation to that document to lack credibility, or to be inherently improbable. Although the plaintiff acknowledged that he had over the course of time gambled a significant aggregate sum at the Casino in the previous nine months, both in terms of winnings and losses, the balance or result being losses, that acknowledgment does not necessarily give rise to inferences that should be adverse to his credibility. He was entitled to legally gamble at the Casino in such amounts as he saw fit. There is no evidence that the monies he gambled represented illegally gained or represented undeclared income. This analysis will be taken up in some further detail in connection with the assessment of the plaintiff’s claim for past loss of earnings.

25. I am satisfied that the plaintiff did his best to give his evidence truthfully to the best of his recollection and understanding. I have accepted his evidence as reliable.

Facts not in dispute

26. Unless otherwise indicated, the following matters of fact are not in dispute.

The premises

27. The defendant’s premises consisted of a licensed casino with an apparently extensive clientele. On a daily basis many people attended the premises for a variety of purposes, including gambling, entertainment, dining, and other social purposes. There were carpeted areas located at the entrance to the premises and in the gaming areas. There were polished marble vestibules or walkways located around those areas where high volume pedestrian traffic could be expected to walk over inlaid marble sections of the floor at various times of the day and at night.

Staffing and equipment on the premises

28. The defendant’s rostered staff was allocated to work in designated shifts. It employed significant numbers of staff, working variously, in managerial, gaming, waitering, security, cleaning and supervisory capacities. That much is evident from the defendant’s own documents: Exhibit “D” and Exhibit “R”.

29. Part of Exhibit “D” consisted of the defendant’s staff shift summary document recorded by the defendant’s staffing supervisor who was on duty at the time of the plaintiff’s injury. It related to a range of public areas within the premises where the rostered staff were required to give their attention.

30. The document contained a number of terms, descriptions and abbreviations which the parties were invited to explain. I was informed that the representatives of the defendant declined to discuss those matters with the plaintiff’s representatives. On 2 October 2019, the plaintiff supplied supplementary submissions seeking to explain and interpret Exhibits “D” and “R”. On 9 October 2019, the defendant forwarded submissions that responded to the plaintiff’s supplementary submissions.

31. The defendant’s further submissions took no issue with any of the plaintiff’s explanations of Exhibit “D”, and ultimately accepted that the defendant had the care and control of the entire premises including the gaming area where the plaintiff’s fall occurred. The defendant also accepted that it had available to it various pieces of machinery to carry out cleaning tasks at the time in question. The parties remained at issue on the inferences that were available to be drawn from Exhibits “D”, “R”, and MFI “13”, which became Exhibit “8”.

32. In those circumstances, I must attempt a reasoned interpretation of the content of those Exhibits. That interpretation now follows.

33. Exhibit “D” shows that either two or three of the defendant’s rostered staff of 42 had called in sick with the result that the defendant was operating with three less staff than was rostered for the period when the plaintiff was injured. That record also indicates that some of the defendant’s main gaming floor staff, two staff members, were re-allocated to the retail area of the premises, indicating that the gaming floor was understaffed.

34. Whilst the defendant acknowledged that there were three less staff numbers on the shifts in question compared to the staff numbers that were rostered, it submitted that there was no evidence as to the roles of the staff who had called in sick, or whether the main gaming floor was understaffed by cleaning, security or other staff. Those submissions will be revisited in the consideration of the issue of whether there had been a breach of the duty of care owed by the defendant.

35. The Marquee and Sky Terrace areas of the premises were additional areas that were opened up for shows and functions on the evening in question. Those arrangements added to the defendant’s expectation that it would be a busy night at the Casino premises.

36. Exhibit “R” contains an entry : “101279 – Water leaking from ceiling and retain behind convenience store section 2”. The source of the leak and the ultimate accumulation or resting point for any waterflow from that leak was not identified.

37. It is plain from the matters set out in the preceding paragraphs, and contrary to the defendant’s pleading, that the defendant was the occupier with responsibility for the care and control of the entire premises, including the area where the plaintiff slipped and fell. The failure of the defendant to acknowledge that matter at the outset was a position not in accordance with the requirements and expectations of parties pursuant to s 56 of the Civil Procedure Act 2005 (NSW).

38. It is also plain from Exhibits “D” and “R” that the defendant’s premises were short-staffed on the night. Before the plaintiff’s fall, three rostered staff members had called in sick, respectively, one at 6.30pm, and two at 7.30pm. Another staff member had called in sick at 4.00am, the latter of which followed the plaintiff’s injury. It is not clear as to when that particular staff member’s shift had been due to commence.

28. The plaintiff argued that inferences should be drawn from those Exhibits to the effect that, owing to staff shortages, before the fall, the defendant had been operating the premises with busy pedestrian traffic in circumstances where it was three staff members short of that which was envisioned by the duty roster. This led to two staff members who had been rostered to work on the main gaming floor being re-allocated to the retail areas within the premises.

29. I consider those inferences are reasonably based and should be found, as was submitted. I further infer that the main gaming floor of the defendant’s premises, which was adjacent to the area where the plaintiff fell, had been understaffed, where those staff members who had called in sick had not been replaced to make up the numbers on the roster.

30. There were many areas on the defendant’s premises that required customer observation if not supervision on the night in question. This included the need to periodically check the safety of the polished marble flooring due to the fact that patrons continuously walked there, and because there was an ever-present risk of spillage of beverages, if not other matter that could contaminate the floor and cause a slip hazard. This also included the main gaming floor, the retail areas, the Marquee, the Sky Terrace function area, various entry and transition areas, dining areas, the Oasis Lost desk, a buffet restaurant, bars, other restaurants, a food quarter and an event centre, to name but a few.

31. Exhibit “R” shows that on the morning of 10 December 2016, the staffing of the Casino was being transitioned to a company called IKON. The plaintiff sought the inference that the defendant was transitioning its staffing arrangements to IKON to provide temporary and casual staff to the defendant.

32. I do not accept the defendant’s submission that the contended inference was speculative. Exhibit “R” specifically relates to staffing issues. Whilst it may be speculative to suggest that IKON provided only temporary or casual staff for the defendant, it is not speculative to infer that staffing arrangements were being transitioned to IKON. Exhibit “R” also shows that on 10 December 2016, the allocated staff was asked to check their rosters for amendments as there were apparent rostering errors that had been identified. The record made of the staff briefing indicates that the briefing seemed to have been restricted to the tasks of checking the smoke detectors and the easy access toilets.

33. There was no evidence of any specific staff cleaning rosters. It appears that the cleaners located on the premises were to be called to attend to spills, spews and the like on an ad hoc basis when those matters were identified, and they were then logged for record purposes: Exhibit “R”. There was no documentary evidence of a supervisory cleaning presence or a planned cleaning or inspection roster to regularly inspect polished floor areas for safety and slipping risks due to leaks, spillages or other contamination on those floors.

34. The defendant’s records show that it had a number of contractors on site. These were identified by either name or initials. GMT was a contractor that attended to the Marquee area daily, including on weekends. Perfect Polishing attended on a daily basis, including on the weekends, most probably to maintain the appearance of polished marble floors. The frequency of attendance of the other contractors, Triffid, ABC, ISS, EcoLab and Aust Escalators, was described as being for service only. The frequency of those attendances, whether ad hoc, by arrangement, or according to a pre-planned programme, was not explained. The designated tasks for those latter contractors were not clearly evident.

35. The Casino had some machinery on site, which I infer included some machinery for cleaning purposes. The defendant has accepted that proposition. On the shift commencing on 10 December 2016, only a Duvelo and an M20 were in use. The function of those machines, where they were to be used, or in what circumstances they were to be operated, was not explained.

36. On 10 December 2016, there were a number of other machines in the premises, but these were noted to be “not in use”. These were described as Honda Kerrick, Ready Space, Dry Fusion, Steamer, 5680, and Extractor Big. The precise functions and indications for use of those machines were not apparent or clearly explicable on the evidence adduced but it can be reasonably inferred that at least two of them had specific cleaning functions.

37. I infer from those matters that within the premises the defendant had cleaning staff and cleaning apparatus on hand for deployment if required, either according to a roster or to be used on an ad hoc basis.

38. It also appears from Exhibits “D” and “R” that the defendant had an unexplained system for logging maintenance tasks on the premises. This is evident from the following matters recorded in those Exhibits:

1. 111279 – Water leaking from ceiling

2. 101110 – SR female toilet constantly flushing

3. 101121 – Pizza Perta – metal plate under the door is hanging over the step.

50. The documents do not reveal how or when remedial attention was given to those logged items. It appears that cleaners were only called to attend to issues or problems when identified by other staff members.

51. It also appears from the recorded images taken after the plaintiff’s fall, that the defendant had readily deployable safety warning signs on the premises stating “CAUTION WET FLOOR, CLEANING IN PROGRESS, PUBLIC AREA”: Exhibit “H”. It is apparent from the CCTV footage that followed the plaintiff’s fall, that such signs were capable of being readily accessed and appropriately deployed when it was considered necessary to do so.

52. The plaintiff tendered CCTV images of the fall area for the period 02:26 to 02:56:59. The parties focussed upon the images taken moments before the plaintiff’s fall showing someone walking near where the plaintiff fell, gesticulating whilst holding a water bottle which was arguably the source of the spill in question. However, the evidence does not reasonably permit an affirmative conclusion as to whether the water bottle was open or closed, or even filled with liquid to any degree: T187.15. In my view the CCTV images do not enable a reliable conclusion as to when the liquid on which the plaintiff slipped was in fact spilt on the floor. The pre-incident footage is instructive on the question of whether or not the defendant had staff allocated to the task of inspecting the polished floor areas for safety, spillages or spews.

53. My viewing of the CCTV footage comprising Exhibit “H”, for the entire period shown, does not suggest that any staff member seen in those images was specifically engaged in actively inspecting the floor area where the plaintiff fell.

54. The staff members seen in the area seemed to have been within the following categories comprising:

1. Security personnel in light grey suits;

2. Uniformed staff wearing black suits or white shirts, dark vests, black trousers or skirts;

3. Persons wearing dark tops and trousers pushing trollies;

4. Cleaning staff wearing dark tops and trousers.

Events preceding the plaintiff’s fall

55. Exhibit “D” shows that the defendant had anticipated that Saturday 10 December 2017 would be a busy night at the premises. At the commencement of the staffing shift for that evening, at either 18:30 or 19:30 hours, a supervisor’s document identified that approximately 42 staff would be allocated to various areas and to undertake various activities within the premises.

56. Documents prepared by the defendant’s supervisory staff contained references to a staff briefing for the evening of 10 December 2017. That document indicated that a busy night was anticipated, with an estimated 3000 people expected to attend at a concert and at other activities on the premises, and that some additional areas in the premises would be expected to be opened up to accommodate the expected clientele.

57. In those events, the defendant’s staff was told to ensure that all areas, which I take to include floor areas, were maintained, especially the toilets: Exhibit “D”. It is difficult to envision how such maintenance tasks could have been attended to without a process of active and regular inspection.

58. The supervisor’s report which contained the untimed entry log 11279 concerning water leaking from the ceiling in retail behind convenience store, as referred to in [49] above, was not explored in evidence as to how that matter came to notice.

Accident circumstances

59. It is common ground that prior to the plaintiff’s fall, a puddle of clear liquid, very likely to be water, was located at the place where the plaintiff slipped and fell.

60. The plaintiff described that aggregation of liquid as a puddle: T35.9. The defendant’s incident report (at Exhibit “D”, pp 4 – 5) also described it as a puddle. The duration of time over which that puddle had remained there unnoticed and unaddressed by the defendant’s supervisory and cleaning staff remains a matter in contention between the parties.

61. The DVD containing the CCTV footage shows that at 02:56 hours on the morning of Sunday 11 December 2017, the plaintiff walked from the direction of the entrance of the buffet restaurant and onto the marble floor of the vestibule. He did so in an apparently normal and purposeful manner. As he walked across the vestibule he stepped onto the dark marble section of the floor, his right foot slipped, and he then slid forward and he fell heavily onto his back and left side. There was no evidence to reliably suggest that the plaintiff’s footwear, or its state, was a contributing factor to his fall.

62. The plaintiff’s own description of the events leading to the fall was that he and his partner had been playing poker machines in the Oasis part of the Casino and he decided he would go downstairs for a while to take a break. He took that route via escalators and then walked past some security guards and headed to the main gaming area. He said that he walked past a pillar, and after turning left, he took one or two steps and then quickly found himself on the floor, having fallen very hard on the marble surface: T32.26 – T33.37. He then noticed that his trousers were wet and that there was a puddle of liquid on the floor next to him.

63. After the plaintiff’s fall, the defendant’s staff prepared a contemporaneous incident report concerning that fall: Exhibit “D”. That report stated that the plaintiff was observed to have walked into the fall area through the buffet entry point at which time his feet were observed to have slipped from under him. The incident was apparently witnessed by a security surveillance camera console operator who then contacted security staff by two-way radio to alert them to the incident. The console operator apparently then continued to observe the scene from a remote location. The camera operator’s description was that the plaintiff had landed on his lower back.

64. In those events, the defendant’s in-house paramedic employee was summoned and attended to give the plaintiff first aid. He found the plaintiff lying in the recovery position next to a puddle of water. On first examination the plaintiff was recorded as having complained of pain in his left shoulder and right hip. It was also noted that the location of the plaintiff’s pain varied at different times. That observation was made of the plaintiff’s experience of pain after he had been given pain relief consisting of 3ml of methoxyflurene through an inhaler device. Subsequently, an ambulance paramedic attended the scene and the plaintiff was then transported to St Vincent’s Hospital: Exhibit “M”.

Injuries and initial treatment

65. The plaintiff’s description was that the fall backwards on the tiled hard surface “really shook” him: T33.45; T34.44; T34.50. He tried to work out what had happened to him and he then sensed that there was wetness on the left side of his trouser leg and his left arm. He thought the wetness was a water-like liquid or a drink. The liquid was in a puddle: T35.13. At that time he was in a lot of pain and initially he could not move.

66. The plaintiff immediately felt pain in the right side of his back, in his bottom and in a leg, and in his left arm and elbow: T35.28 – T35.45; T36.19. He also felt pain in his right hip: T36.22. He told the attending paramedic that he was in serious pain, which resulted in him being given pain relief: T38.28.

67. When the plaintiff was medically assessed at St Vincent’s Hospital his injuries were noted to comprise pain in his right leg, wrist, elbow and his left clavicle: Exhibit “M”. Whilst at hospital, presumably after the effects of the methoxyflurene had receded, he developed pain in both elbows and wrists. He was x-rayed, given some tablets and advised to see his own doctor.

68. The diagnosis on discharge from hospital at 4.00am on the morning of the accident was of muscular soft tissue pain: Exhibit “M”. The plaintiff later saw his general practitioner. He then had physiotherapy treatment for his back and right leg symptoms. There were no reports detailing that initial treatment.

Plaintiff’s pre-accident health

69. The plaintiff had a number of significant pre-existing health issues that had affected him before the subject fall. Those pre-existing health issues included a stroke in 2003, hypertension diagnosed in 2010, sleep apnoea diagnosed in 2014, a heart attack in 2015 resulting in coronary artery stenting, diabetes and hypercholesterolemia diagnosed in 2016, and a torn anterior cruciate ligament diagnosed in 2016. He takes about 10 medications for those matters: Exhibit “M”. The plaintiff also had some memory problems that predated his fall and which were due to a stroke he had suffered in 2003: T26.7; T26.44 – T27.15. He also had a hearing problem with his right ear: T24.14. Those matters are unconnected with the effects of the subject accident.

70. The defendant tendered extracts from the plaintiff’s pre-accident historical medical records: Exhibits “6” and “7”. Those records show that the plaintiff had presented to his general practitioner in relation to complaints of:

1. Lower back pain in July 2005;

2. Left lower back pain and thigh pain in July 2006;

3. Right upper back pain and knee pain in November and December 2013;

4. Knee pain in April 2016;

5. Lumbar back pain and LIF pain which is agreed as meaning left iliac fossa pain, which the general practitioner thought could be of a muscular nature.

71. The plaintiff was asked questions about his previous history of lower back problems: T134.50 – T135.50; T136 – T140. Nothing emerged from those questions or from his answers, or from the medical records tendered as described above, to suggest that the plaintiff had any ongoing or longstanding pattern of recurring low back problems before the subject fall.

72. On reviewing those historical matters in the context of the evidence as a whole, I do not consider the historical events chronicled above, to represent any significant pattern of pre-existing back problems. Instead, they appear to be isolated events relating to activity at those times. In any event, the defendant must take the plaintiff as he is found: Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60, at [18].

Plaintiff’s pre-accident work history

73. Before the accident the plaintiff had a varied work history. On leaving school he worked in factories, he worked as an entertainer playing the piano-accordion in restaurants, and he worked as a bus driver. He later became a licensed real estate agent but his venture into that field proved unsuccessful.

74. The plaintiff later became a self-employed builder and waterproofing contractor, and a supervisor of building trades on construction sites. In 2015, he entered into a business partnership in the building industry in which his partner had created circumstances where the plaintiff was sued for breach of copyright. This resulted in the plaintiff having a judgment entered against him and this resulted in him being declared bankrupt.

75. Since then, the plaintiff had occasionally worked for his son’s now defunct business doing minor light tasks, principally on a voluntary basis to help out, as a father would help out his son: T84.48.

Post-accident medical and allied reviews

76. Before identifying my findings concerning the plaintiff’s accident-related disabilities I set out and review the chronology of post-injury medical assessments and treatment the plaintiff received, as follows:

1. On 12 December 2016, the plaintiff underwent a lumbar CT scan. The scan was reported as showing minimal L4/L5 and L5/S1 disc bulges or protrusion without canal stenosis or nerve root irritation: Exhibit “C” and Exhibit “1.5”;

2. On 31 December 2016, the plaintiff’s general practitioner referred the plaintiff to Dr Renata Abraszko, a neurosurgeon and spinal surgeon, for assessment of his right-sided sciatic pain which had not been relieved by physiotherapy treatment;

3. On 9 March 2017, the plaintiff was examined by Dr Renata Abraszko, a neurosurgeon and spinal surgeon, who certified the plaintiff to be unfit for work until 25 March 2017 due to lumbar spine problems: Exhibit “1”, Exhibit “C” p 2 and Exhibit “1.2”. At that time, on examination she found tenderness over the plaintiff’s lumbar spine. She noted the essentially normal CT scan and suggested a lumbar MRI scan and a further review: Exhibit “C”, p 3;

4. On 15 March 2017, at the request of Dr Abraszko, the plaintiff underwent a bone scan with SPECT CT. No evidence of any fracture was found. Arthritic changes at L4/L5 and in the lower thoracic and lumbar spine were noted, as well as moderate arthritic changes in both knee components and minimally in both hips: Exhibit “1”; Exhibit “C” p 4;

5. On 16 March 2017, at the request of Dr Abraszko, the plaintiff underwent a spinal MRI scan. No pathology was detected to account for the plaintiff’s symptoms of lower back pain radiating down the right leg: Exhibit “1”; Exhibit “C”, p 5;

6. On 27 April 2017, the plaintiff was re-examined by Dr Abraszko who had previously certified the plaintiff to be unfit for work until 25 March 2017. She then certified him to be unfit to 30 May 2017, due to lumbar spine problems: Exhibit “1”; Exhibit “C”, p 6;

7. On 7 June 2017, at the referral of Dr Abraszko, the plaintiff was examined by Dr David Manohar, a consultant musculo-skeletal and pain physician. Dr Manohar considered the plaintiff’s history of intense back pain extending down the right leg. He recommended the plaintiff have a facet block injection and a perineal infiltration as a diagnostic procedure to see if that would relieve his pain: Exhibit “C”, p 8; Exhibit “1”;

8. On 21 January 2019, at the request of the plaintiff’s solicitor, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon. Dr Conrad considered the plaintiff needed conservative management for his ongoing back pain. He considered the plaintiff fit for work as a supervisor providing he is able to stand or sit at will and not do repetitive lifting or bending, or lift more than 5kgs in weight. He also recommended a structured rehabilitation programme for the plaintiff: Exhibit “C”, pp 15 – 18;

9. On 13 June 2019, at the request of the solicitor for the defendant, the plaintiff was examined by Dr John Stephen, an orthopaedic surgeon. Dr Stephen provided his diagnosis that the plaintiff had ongoing non-specific intermittent mechanical lower lumbar back pain with occasional radiation of pain into the right lower limb. He considered that at his examination, approximately 2.5 years after the fall in question, the low back pain was no longer due to the result of the fall, but rather, it was in his opinion due to minor degenerative change in a rather unfit, overweight, middle-aged person: Exhibit “1”;

10. On 19 June 2019, the plaintiff attended a chiropractor, at the referral of his general practitioner. At that time the plaintiff’s major complaint was back pain: Exhibit “P”. At that initial consultation it was noted that the plaintiff complained of chronic low back pain and neck tightness from lifting at work. The history of activity that aggravated symptoms was listed as working and lifting heavy objects. The general practitioner’s referral letter described chronic lower back pain without any historical reference to the plaintiff’s fall which is the subject of this claim. The referral was for the chiropractor to manage the plaintiff’s chronic back pain under an extended care plan. In his initial assessment, the chiropractor noted the plaintiff having localised back pain with occasional referring leg pain. In that context, it is difficult to understand or reconcile his subsequent note on the same date, namely “No radicualr (sic) or nn signs”. It was noted that the plaintiff’s pain was aggravated by prolonged sitting, the plaintiff appeared dejected and uninterested in his own health and in life in general, and that a large stomach was pulling his pelvic posture anteriorly;

1. The plaintiff continued to see the chiropractor for a further 7 occasions, on 21 June 2019, 30 June 2019, 3 July 2019, 10 July 2019, 9 August 2019, 21 August 2019, and on 28 August 2019. All of these appointments were for low back pain and neck tightness;

2. On 13 August 2019, Dr Conrad provided a commentary on the report of Dr Stephen: Exhibit “C”, pp 19 – 22: Exhibit “P”, p 3. Dr Conrad was asked to comment upon the report of Dr Stephen. Dr Conrad noted the areas of agreement between himself on matters of history and findings on examination. He then noted the areas of difference as follows:

1. Whereas Dr Stephen noted the plaintiff’s history of ongoing lower lumbar back pain as being intermittent, Dr Conrad noted that he took a history that this problem was experienced by the plaintiff on most days and that it prevented him from doing any repetitive lifting or bending;

2. Whereas Dr Stephen diagnosed the plaintiff as having ongoing non-specific mechanical lower back pain occasionally radiating into the right lower limb without radiculopathy, Dr Conrad challenged the credibility of Dr Stephen’s cited statement, especially since there was no history of back problems prior to the fall and because of the way in which guidelines for medical assessment should be applied in this instance;

3. Whereas Dr Stephen concluded, in the absence of contemporaneous and objective evidence supported by x-ray evidence and medical visits, that the plaintiff’s complaints were unrelated to the fall, and instead were as a result of age-related degenerative disease, Dr Conrad stated that opinion had no credence on the basis of how assessment guidelines were required to be applied, and he reiterated his earlier expressed opinion that the plaintiff’s back problems were entirely due to the subject fall;

4. Dr Conrad took issue with Dr Stephen’s statement that the plaintiff is unlikely to experience deterioration in his condition, stating there was no basis for that view, and instead, he stated that the natural history for the plaintiff’s condition is one of gradual deterioration;

5. Dr Conrad stated that there was no evidence or any scientific basis for Dr Stephen’s view that the plaintiff had pre-existing asymptomatic degenerative disease and he disagreed with Dr Stephen’s formulation that the plaintiff’s restrictions on repetitive lifting and bending were unrelated matters;

6. Dr Conrad was critical of Dr Stephen’s view that the plaintiff could return to work as a full-time supervisor without restrictions, and he reiterated his own contrary view.

Resolution of conflicting medical opinions

77. Before identifying the plaintiff’s ongoing disabilities it is necessary to resolve some matters of conflict within the medical opinions of Dr Conrad and Dr Stephen.

78. The essential matter of difference between the opinions of Dr Conrad and Dr Stephen concerns the nature of the plaintiff’s back problems, the duration of the problems that could reasonably be attributed to the subject fall, and the prognosis of that condition.

79. In cases such as this, where the rational basis for expert evidence is either absent, or inadequately provided, the matters in dispute must be determined according to the onus of proof on any particular issue: Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48]; s 5D of the CL Act. In those circumstances the required consideration must be undertaken as best as can be achieved, notwithstanding such difficulties or limitations: Cupac v Cannone [2015] NSWCA 114, at [16]-[18]; Manly Municipal Council v Skene [2002] NSWCA 385, at [21]-[22]. Matters sought to be proven by expert evidence must be by appropriately reasoned opinions: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21; UCPR Sch 7 cl 5(c).

80. In the latter regard, I do not accept the unreasoned opinion of Dr Stephen to the effect that the plaintiff’s back problems are as a result of age-related changes that are unrelated to this fall. Dr Stephen has not explained why the fall should be disregarded as a causative factor: UCPR Sch 7 cl 5(c). In my view, without a reasoned expert explanation, the plaintiff’s prior episodes of back pain, which appeared to be episodic, did not form a logical basis for Dr Stephen’s stated view. I accept Dr Conrad’s criticisms of Dr Stephen’s opinions and I prefer and accept Dr Conrad’s opinions because they are adequately explained by reasons.

Disabilities that remain

81. I accept the plaintiff’s evidence that he continues to suffer from ongoing low back pain with the occasional experience of shooting-like pains in his right lower limb: T43.40 – T43.49. His lower back pain causes him to restrict his activities. If he attempts to carry out heavier tasks he experiences sharp pain in the back so he avoids such activities: T41.30 – T42.3. Consequently, he avoids and restricts commonplace activities that he was able to undertake before his injury because he does not want to aggravate his back condition: T62.30 – T62.42. He also experiences difficulty with back pain after walking significant distances, and he was given a medical certificate for the issue of a disability parking sticker for that reason: T140 – T141.

82. I accept the general accuracy of the history Dr Conrad took from the plaintiff to the effect that the plaintiff’s experience of back pain was on most days, which made it inadvisable for the plaintiff to do any activity involving repetitive lifting or bending: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; s 60 of the Evidence Act 1995 (NSW). I also accept Dr Conrad’s opinion that the natural history of the plaintiff’s post-injury back condition is for there to be a gradual deterioration.

Work effects

83. Before his fall the plaintiff had no difficulty carrying out a variety of physical tasks in the day to day work of the building industry: T31. The plaintiff claims that the injuries and the disabilities he has incurred in the subject fall have caused him to suffer a past and continuing loss of earning capacity. Those claims will be considered with the appropriate level of detail in that part of my reasons that deal with the assessment of his entitlement to economic loss damages.

84. After his fall the plaintiff had about 5 months off work and then carried out light duty activity, including supervisory work and very minor repairs, but no heavy work, in his son’s business. He had a further period off work between June 2017 and December 2018: T54.18 – T54.47.

85. Since January 2019 he has been in receipt of a carer’s allowance of $127 per month. He has been caring for the needs of his incapacitated father. In February 2019 he registered for a Newstart allowance, receiving about $650 per fortnight: T103.14. Since that time he has unsuccessfully applied for about 27 jobs.

Mitigation

86. The plaintiff has sought out and has obtained medical treatment from his general practitioner, a physiotherapist and a chiropractor. He has also seen a rehabilitation physician. He declined to have a spinal nerve block injection recommended by that physician because he was scared of that procedure: T41.18. The defendant did not argue that the plaintiff had failed to take reasonable steps to mitigate his damages. There is no indication for a reduction in the plaintiff’s entitlement to damages on account of any mitigation factors.

Plaintiff’s most likely circumstances but for his fall

87. In view of his claim for future economic loss, I am required to consider what would have been the plaintiff’s most likely economic circumstances but for the occurrence of his fall: s 13 of the CL Act.

88. The plaintiff’s significant pre-accident health problems as outlined in my findings at [69] above, and his pre-accident economic woes that have resulted in his bankruptcy, would all have had an adverse effect on his ability to engage in any business enterprises, and to seek out, gain and sustain employment on the open labour market.

89. In my view, if the subject fall had not occurred, those matters would have nevertheless operated as significant impediments to the plaintiff’s continued ability to earn a living without restrictions, even though he was able to carry out a variety of physical tasks in the building industry. He was not in receipt of a regular wage in the pre-accident period.

90. As there is no basis in the evidence to project an identifiable weekly sum for quantification of the plaintiff’s future earning capacity, the task of assessing that loss is best served by way of an assessed buffer sum: State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133, at [72]; Penrith City Council v Parks [2004] NSWCA 201, at [5].

Expert opinions of Mr Cauduro

91. The relevant aspects of Mr Cauduro’s opinion are that:

1. The presence of contaminants, such as water on a surface is influential on the occurrence of falls: Exhibit “B”, p 12, par 3.2;

2. On inspection of the surface of the floor, the surface would have been adequately slip resistant if dry, but highly slippery when wet: Exhibit “B”, p 15, par 3.14;

3. The occupier of the premises was obliged to implement safety considerations for employees, and those obligations were arguably no different with regard to entrants onto the premises: Exhibit “B”, pp 19 – 20, par 4.3 – par 4.7;

4. The defendant appears to have deployed a cleaning regime, but in Mr Cauduro’s opinion, he considered the control measures taken, were not adequate: Exhibit “B”, p 20, par 4.8. The suggested inadequacy was a failure to ensure that cleaning rotations were carried out effectively throughout the Casino: Exhibit “B”, p 21, par 4.10;

5. Mr Cauduro considered it significant that patrons were permitted to walk throughout the Casino whilst carrying food and beverages: Exhibit “B”, p 21, par 4.11. He also considered that if patrons were permitted to carry food and drink around in the premises this increased to high, the probability of food and drink being dropped on the floor so that cleaning rotations should have been shortened to a maximum of intervals of 5 minutes: Exhibit “B”, p 22, par 4.13;

6. Mr Cauduro considered regular audit of the cleaning regime was required to ensure that the control measures were adequate: Exhibit “B”, pp 21 – 22, par 4.12;

7. Those responsible for premises such as those of the defendant should have in place a risk management approach with regard to the safety of persons on the premises, including identifying and eliminating reasonably foreseeable hazards, which include the risk of persons slipping on wet floor areas where there is potential for surface contamination due to ambulatory beverage spillages: Exhibit “B”, p 22, par 4.14 – par 4.15;

8. An example of such risk management was AS1470 – 1986 Health and Safety at Work – Principles and Practices which provided an indicative approach for preparing guideline procedures for conducting regular inspections for hazards, and foreseeable exposures to the risk of slipping, tripping or falling on work premises: Exhibit “B”, pp 22 – 23, par 4.16;

9. The marble floor should be regarded as being unsafe and unfit for its intended use because it was liable to become slippery when contaminated by wetness which therefore required steps to be taken against the risk of slips and falls: Exhibit “B”, p 23, par 4.19;

10. A number of non-exhaustive suggestions were identified as being reasonable preventative measures in the circumstances, ranging from slip-resistive treatments, either impregnated into or applied to the marble surface, slip-resistant mats being placed in pedestrian areas, ensuring adequate cleaning practices, preventing beverages and food being carried or consumed in the pedestrian areas, and displaying prominent warning notices drawing attention to the fact that the floor of the premises could be expected to be slippery when wet: Exhibit “B”, pp 23 – 24, par 4.20.

92. Mr Cauduro concluded that the plaintiff’s fall occurred because of an inadequate slip resistant surface in circumstances where it was foreseeably probable that pedestrians could eventually be injured on a slip and fall incident on a wet floor if preventative measures were not applied appropriately: Exhibit “B”, pp 24 – 26, par 5.1 – par 5.3.

93. I now turn to the consideration of the issues calling for decision.

Issue 1 – Risk of harm

94. There is no dispute that the relevant risk of harm in this case was that the continued presence of a puddle of spilt liquid on polished marbled flooring on a walkway within frequently traversed casino premises was likely to give rise to bodily injury due to slipping if a person stepped into such puddled liquid.

Issue 2 – Duty of care

95. It is beyond argument that the defendant was under a duty to exercise reasonable care for the plaintiff’s safety whilst he was in the premises: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, [1987] HCA 7.

96. The answer to the question of what constituted reasonable care in this case is informed by the context of the nature and extent of the activity the defendant carried out or permitted to be carried out on the premises.

97. A prospective view of the factual circumstances which prevailed at the premises, must be seen to be relevant factors that enliven the duty of care owed and how it could be discharged reasonably: Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124].

98. A non-exhaustive survey of the factual matters of relevance in that regard included: the expectation that thousands of people were expected to be at the premises on the night in question; a large number of such persons would be expected to be walking on the polished marble walking areas; some of those persons would be anticipated to be carrying drinks, which could foreseeably spill and create slip hazards.

99. Furthermore, I infer from the nature of the activities permitted by the defendant on the premises, including food and portable or ambulatory alcohol consumption as well as the availability of other drinks, and from the defendant having cleaning staff and equipment on the premises, including deployable slip hazard warning signs, that it anticipated the potential ad hoc need to promptly attend to, isolate, and clean up, various types of spillages or spews that might contaminate floor areas thus creating slip hazards to persons walking around inside the premises.

100. In the circumstances, I consider that the duty of care owed by the defendant as occupier of such premises included that of requiring its staff members to exercise a vigilant supervisory function in relation to floor areas where slip hazards might occur at random, so that in the interests of the safety of patrons on the premises, immediate remedial attention could be allocated to render safe, such random hazards.

Issue 3 – Alleged breach of duty of care and negligence

101. The plaintiff pleaded the following particulars of negligence against the defendant:

1. Placing the plaintiff in a position of peril in the circumstances;

2. Failing to warn, or adequately warn, the plaintiff of the presence of the liquid on the floor by means of signs, bollards or barricades;

3. Failing by its servants/agents to detect the spillage notwithstanding they passed by it shortly before the plaintiff's fall;

4. Failing to conduct any, or any adequate, regular inspection of its floor;

5. Failing to have any, or any adequate, system of cleaning;

6. Failing to prevent patrons, such as the plaintiff, from traversing a dangerously slippery area;

7. Failing to prevent patrons, staff and/or contractors traversing the subject area with food and/or beverages;

8. Failing to carry out an appropriate risk assessment;

9. Failing to treat the subject area with slip resistant treatment;

10. Failing to install water absorbent mats in the subject area.

102. As observed elsewhere, the use of the bastard conjunction “and/or” in the pleaded particular of negligence (7) above is confusing, and detracts from its meaning: See Vaccaro v MLC Limited [2016] NSWDC 85, at [10], where the relevant authorities are cited. The cited authorities suggest that the term “and/or” creates difficulties for construction. The term does not belong in a pleading. I interpret the use of “and/or” in this particular context to have a cumulative meaning rather than alternative meanings.

103. The plaintiff’s claim that the defendant was negligent must be determined in accordance with s 5B, s 5C and s 5D of the CL Act.

104. Section 5B of the CL Act provides as follows:

5B General principles

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

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

(b) the risk was not insignificant, and

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

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

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

(b) the likely seriousness of the harm,

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

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

Section 5B(1) of the CL Act

105. In the circumstances of this case, the defendant must be taken to have known that on the day in question, with so many patrons anticipated to be on the premises, there was a foreseeable risk of the occurrence of spillages on trafficable polished walkways within the premises, where spillages of various kinds were likely to occur, and which would be likely to have posed a risk of persons slipping if a system of reasonable care was not taken by the defendant with regard to slip prevention: s 5B(1)(a) of the CL Act.

106. In the described circumstances, I find that the defendant knew that the risk of persons falling on polished marble floors on the premises was one that was “not insignificant”. I have reached that conclusion because the defendant had rosters for cleaning staff to be available to be deployed for the purpose of attending to spillages within the premises, and therefore the defendant must be taken to have been aware of a not insignificant risk of falls if spillages or spews were left unattended or not cleaned up, and that this could lead to a range of injuries following a fall: s 5B(1)(b) of the CL Act.

107. The foreseeable nature of the risk of possible injury from a fall required that the defendant take reasonable precautions against such a risk. Mr Cauduro suggested such precautions should include the appropriate allocation of staff and the carrying out of inspections at suitable intervals, if not the prevention of activity involving the movement of drinks on the premises, or the provision of non-slip mats on polished walking areas, if not the application of non-slip surfaces. In the circumstances of the operation of the premises as a casino and entertainment venue, it was open to the defendant to make a commercial decision on whether or not to allow patrons to move about on the premises whilst holding spillable drinks. Accordingly, where such activity was permitted, it was incumbent on the defendant to take precautions against the risk of falls due to liquid spillages. I consider that a reasonable person in the defendant’s position would have allocated staff resources for frequent, regular and systematic inspections of polished floor surfaces where there was a risk of slipping on spilt liquid, as well as providing non-slip matting or surfaces on frequently trafficable surfaces, as was suggested by Mr Cauduro: s 5B(1)(c) of the CL Act.

108. As indicated above, the plaintiff has satisfied the three pre-conditions of s 5B(1) of the CL Act. It therefore becomes necessary to consider the requirements of s 5B(2) of that Act.

Section 5B(2) of the CL Act

109. I find that if the precautions referred to above were not taken, a high probability of harm from slipping would have remained extant: s 5B(2)(a) of the CL Act. In those circumstances, the likelihood of serious bodily injury from a fall, using the words of the statute, would have been “not insignificant”: s 5B(2)(b) of the CL Act. Overall, I consider that the burden on the defendant for taking the suggested precautions would have been relatively slight. If a slip resistant floor finish was to be applied as suggested by Mr Cauduro, in the context where the defendant employed floor polishing contractors, applying such a finish in the interests of patron safety, ought to be seen as being a negligible expense. In circumstances where a large staff contingent was working on the premises it would seem to be non-burdensome for the defendant’s many staff on the premises to be required to maintain a regular, frequent and systematic watchful observation of the marble floor areas for spillages: s 5B(2)(c) of the CL Act. There was no relevant social utility to be considered as a counterweight to taking precautions against the risk of harm from a slip and fall on the premises: s 5B(2)(d) of the CL Act.

109. Having reached the abovementioned findings it becomes necessary to consider the application of s 5C of the CL Act.

Section 5C of the CL Act

111. Section 5C of the CL Act provides as follows:

5C Other principles

In proceedings relating to liability for negligence:

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

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

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

112. The risk of floor contamination on the premises resulting in a potential slip hazard related to a variety of potential causes, including leaks, spills and spews. Therefore, the precautions proposed by Mr Cauduro represented a set of practical commonsense steps aimed at avoiding foreseeable harm from slipping and falling: s 5C(a) of the CL Act.

113. On a prospective analysis, in circumstances where patrons were permitted to randomly carry drinks around within the premises, including where staff were engaged in transporting drinks trolleys within the premises, there was an ever-present risk of spillage-related slipping which strongly suggested that precautions should have been taken: s 5C(b) of the CL Act: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [124].

114. Exhibit “G” shows that immediately after the plaintiff’s fall, the defendant’s staff promptly deployed a portable yellow slip hazard warning sign on the floor to warn passers-by of the risk of slipping whilst the liquid on which the plaintiff slipped remained in situ. Those signs were, I infer, readily available and deployable in the premises when a wet area had been detected. Whilst the subsequent deployment of a sign to that effect does not constitute an admission of liability, such prompt deployment suggests that warnings of the type suggested were associated with only a slight relative burden on the defendant: s 5C(c) of the CL Act. The fact that no previous incidents occurred is not an answer: Exhibit “C”, p 23, par 4.17.

115. Before a finding of negligence can be made, it is necessary to consider the causation issues that arise for determination.

Section 5D of the CL Act

116. Section 5D of the CL Act provides as follows:

5D General principles

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

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

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

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

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

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

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

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

Factual causation: s 5D(1)(a) of the CL Act

117. I find that but for the defendant’s negligence which allowed the spilled liquid to remain on the polished floor undetected, un-isolated, and unattended, the plaintiff would not have slipped and fallen on that liquid and sustained injury: s 5D(1)(a) of the CL Act; Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, at [32].

Scope of liability: s 5D(1)(b) of the CL Act

118. In considering the scope of the defendant’s liability for negligence, it is relevant to take into account that the defendant operated a large commercial undertaking where it sought to attract members of the public such as the plaintiff to attend the premises for gambling and entertainment purposes with the aim of deriving profit from such activities. In such circumstances, it is only appropriate that the defendant’s liability should extend to liability to the plaintiff for damages for the injuries he sustained, due to its negligence: s 5D(1)(b) of the CL Act.

Conclusion on negligence

119. It follows from the above findings that the plaintiff has proven his fall and his related injuries were caused by the negligence of the defendant. No exceptional circumstances have been shown to have existed: s 5D(2) of the CL Act.

Issue 4 – Assessment of damages

120. The plaintiff claimed the following heads of damage:

1. Non-economic loss;

2. Past economic loss including superannuation;

3. Future economic loss including superannuation;

4. Future out-of-pocket expenses;

5. Past out-of-pocket expenses.

121. My assessment of these heads of damage now follows.

Non-economic loss

122. The plaintiff submitted that his damages for non-economic loss pursuant to s 16 of the CL Act should be assessed at 29 per cent of a most extreme case: MFI “2”. In contrast, initially, the defendant submitted that such damages should be assessed at 18 per cent of a most extreme case (MFI “4”) but in final submissions, the defendant argued that such damages should be assessed at no more than 25 per cent: T181.33.

123. In my view, the plaintiff’s back, right hip, left arm and elbow problems, the matters outlined in his post-accident medical and allied reviews as summarised at [76] above, and the plaintiff’s post-accident disabilities as summarised at [81] to [82] above, indicate that the plaintiff has suffered a very significant interference with his ability to enjoy the amenity of his life.

124. The defendant has argued a contrary view based on the array of the plaintiff’s pre-existing health problems. In my view, in that regard, the defendant’s reliance on the plaintiff’s pre-injury health issues, as has been summarised at [69] to [71] above, does not assist the defendant in this instance. This is because, as a result of those pre-accident problems, the plaintiff could ill-afford the additional accident-related detriments that have been superimposed on his already diminished ability to enjoy the amenity of his life. As already observed, the defendant must take the plaintiff as he is found: Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60, at [18].

125. In my assessment, those matters adversely affecting the plaintiff warrant the allocation of a significant comparison with a most extreme case according to the requirements of s 16 of the CL Act. Accordingly, I assess the plaintiff’s damages for non-economic loss pursuant to s 16 of the CL Act at 27 per cent of a most extreme case, namely $56,500.

Past economic loss including superannuation

126. The plaintiff submitted that his claim for damages for past economic loss should be assessed in the amount of $60,250: MFI “2”.

127. That submission was based first, on an assumed loss of $1,200 per week net over 24 weeks between 11 December 2016 and 31 May 2017, namely $28,800, and secondly, on a subsequent assumed loss of $850 per week net over 37 weeks between 20 December 2018 and 17 September 2019, namely $31,450, totalling $60,250.

128. In contrast the defendant initially submitted that no damages should be awarded for past economic loss: MFI “4”. Subsequently, in final submissions, the defendant argued that, at best, the plaintiff’s damages for past economic loss should be limited to a closed period of five months from the time of the accident until his return to work in June 2017. The defendant argued that since the plaintiff’s pre-accident earnings were irregular, taking an average of the 2016, 2017, 2018 and 2019 financial years, based on Exhibits “K” and “L”, which revealed an average net income of $695 per week (MFI “15”), the loss should in effect be assessed at no more than $11,900.

129. In my assessment, the defendant’s submission as cited above should not be accepted. It invoked a process of averaging over the pre and post-accident periods, it inappropriately conflates the plaintiff’s pre and post-accident earnings as the rate to be used to calculate past loss of earnings, and it assumes, without justification that the plaintiff’s employment would have otherwise continued in those periods. I consider that approach to be an unreliable method for assessment of the claimed loss, particularly as the plaintiff’s employment was not regular.

130. In order to justify an award of damages for economic loss, it is necessary for the plaintiff to not only show that he has suffered an impairment in his earning capacity but it must also be shown that such impairment is likely to have caused him to suffer financial loss: Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5; Graham v Baker (1961) 106 CLR 340; [1961] HCA 48.

131. The plaintiff’s capacity to carry out every day duties associated with his pre-injury work has been adversely affected in that he can no longer lift, bend and carry in respect of the heavier items he could previously manage when working as a trades supervisor in the building industry. He is not as fast and agile as he used to be. His ability to carry out lighter tasks is reduced in that he must work at a lesser pace.

132. Dr Conrad’s opinion, which I accept, is that although the plaintiff is fit to work as a supervisor, this is provided he is able to stand or sit, and not do repetitive lifting or bending, or lift anything more than 5kgs in weight. Those restrictions must be seen to operate as significant limiters on the plaintiff exercising his earning capacity: Exhibit “C”, p 17.

133. A complicating feature that affects the assessment of the plaintiff’s claim for loss of income is that he spends some of his time as a carer for his father. Another relevant factor to take into account in assessing the plaintiff’s claim for past loss of income is that as he was not in constant regular paid employment or in receipt of a regular income derived from business activities either prior to the accident, or thereafter. A further factor to be taken into account in assessing the plaintiff’s likely prospects of earning income in a business venture, whether in partnership or self-employment, is the fact of his earlier bankruptcy. In my view, that fact of itself would tend to operate negatively against him in seeking to pursue business opportunities.

134. The assessment of the plaintiff’s damages for past loss of earning capacity must be assessed with those matters in mind.

135. In light of those matters I consider that it would be inappropriate to seek to quantify the plaintiff’s past losses by way of precise calculations. To seek to estimate claimed losses for the two periods identified on the basis of a fixed albeit average weekly amount would be artificial and unsound. There is an insufficient historical factual foundation to reliably proceed to an assessment on that basis.

136. Furthermore, given the imponderables, it is not possible to isolate an amount upon which to calculate a separate sum to represent a loss of employee funded superannuation. Therefore that aspect of loss will be taken into account identifying a buffer sum for compensation.

137. As the evidence does not permit precise projected calculations of either past or future economic loss or related consequential percentages for superannuation components, I consider that those heads of damage should be assessed by allowing past and future buffers to compensate the plaintiff for such losses: State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133, at [72]; Penrith City Council v Parks [2004] NSWCA 201, at [5].

138. In my view, the plaintiff’s past loss of earnings should be assessed in the form of a buffer that makes general allowance for a loss of earning capacity in respect of the identified past periods of unemployment, also taking into account the uncertainties of his employability due to his underlying health issues. In taking that approach, I consider that a sum that is fair to the plaintiff and not unfair to the defendant is the amount of $35,000. Accordingly, I assess the plaintiff’s damages for past economic loss in the buffer amount of $35,000.

Future economic loss including superannuation

139. The plaintiff submitted that his damages for future economic loss should be assessed in the amount of $120,844: MFI “2”. That submission was based upon an assumed recurring partial loss of $300 per week net projected over 12 years remaining working life at 5 per cent (x 473.9) discounted by 15 per cent for potential adverse vicissitudes, yielding the amount of $120,844.

140. In contrast, initially the defendant submitted that no damages should be awarded for future economic loss: MFI “4”. In final submissions, the defendant argued that any damages for future loss of earning capacity should, at best, be by way of a minimal economic cushion: MFI “15”.

141. I do not accept that in this case the buffer should be minimal as submitted by the defendant. There are specific commonplace work activities related to posture, lifting and bending which the plaintiff finds difficult to repetitively maintain or carry out. His back problems also require that he work at a slower pace, with breaks. Dr Conrad’s opinion, which I have accepted on these matters, has already been cited.

142. Whilst he had an array of pre-accident health issues as already described, pre-accident he nevertheless retained a residual capacity to carry out a variety of tasks in the building industry that are no longer open to him.

143. The plaintiff’s earning capacity has therefore been interfered with, in a relevant way, in addition to his already reduced and limited ability to earn an income. This additional layer of work incapacity requires assessment.

144. At age 58 years, the plaintiff’s theoretical working life is a remaining 9 years to age 67. One of the imponderables that must be considered as a discounting factor with regard to the plaintiff’s claim for future economic loss is the array of pre-accident health problems, particularly his memory difficulties and his hearing difficulty that are the sequelae of his stroke. Those matters of themselves would pose difficulties for him in many employment situations, including in the building industry, on grounds of safety.

145. In my view, the limiting effects of the plaintiff’s pre-accident health problems on his capacity to work are significant and relevant matters, that should attract a greater than conventional discount for potential adverse vicissitudes, especially since the plaintiff has in the past had a heart attack and a stroke, and had a history of intermittent back problems. It is doubtful he would have been able to continue to carry out heavy work tasks if the injuries from the fall had not occurred.

146. In light of the above matters, as explained in the assessment of the plaintiff’s past economic loss, rather than adopting a weekly amount for projection on the actuarial tables and then discounting same, I consider that the appropriate method for assessing the plaintiff’s claim for future economic loss, including a component for employer funded superannuation, is the buffer amount of $50,000. Accordingly, I assess the plaintiff’s damages for future economic loss in the buffer amount of $50,000.

Future out-of-pocket expenses

147. The plaintiff submitted that his damages assessment should include a component of $10,000 for future out-of-pocket expenses: MFI “2”. In contrast, the defendant’s submissions conceded an allowance of $500 for this head of damage: MFI “4”.

148. Dr Conrad has suggested the plaintiff’s back problems require conservative management comprising medication, medical supervision and physiotherapy, at an estimated cost of some $2,000 per annum: Exhibit “C”, p 17. That estimate was not intended to be a precise analysis. He did not endorse chiropractic treatment.

149. The evidence does not disclose that there is a recurring need for regular or predictable expenditure for treatment of the plaintiff’s remaining disabilities. In those circumstances, a buffer assessment is the appropriate method by which to compensate the plaintiff for the likely cost of future treatment. Accordingly, I assess the plaintiff’s damages for future out-of-pocket expenses in the buffer amount of $5,000.

Past out-of-pocket expenses

150. The plaintiff’s past out-of-pocket expenses have been agreed (T152.16) and I therefore assess the plaintiff’s damages for those expenses in the sum of $3,644.15.

Summary of damages assessment

151. In summary, my assessment of the plaintiff’s damages is as follows:

(a) Non-economic loss	$56,500
(b) Past economic loss	$35,000
(c) Future economic loss	$50,000
(d) Future out-of-pocket expenses	$5,000
(e) Past out-of-pocket expenses	$3,644.15
Total	$150,144.15

Disposition

152. The plaintiff has established his entitlement to a damages award for $150,144.15 and he should have a judgment in his favour for that amount.

Costs

153. As the plaintiff has succeeded in obtaining a judgment in his favour, he should have an order that the defendant should pay his costs of the proceedings on the ordinary basis.

Orders

154. I make the following orders:

1. Verdict and judgment for the plaintiff against the defendant in the sum of $150,144.15;

2. The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis.

**********

Decision last updated: 25 October 2019