Lowe v AMP Capital Investors Ltd

[2011] QDC 267

[2011] QDC 267

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 418 of 2010

EVE LOWE	Plaintiff
and
AMP CAPITAL INVESTORS LIMITED AND OTHERS	Defendants

BRISBANE

..DATE 28/10/2011

JUDGMENT

CATCHWORDS

Negligence - fall on slippery floor in shopping centre - whether cleaning contractor liable - damages for minor back injury assessed
HIS HONOUR:  Whatever the outcome of this claim, the court is obliged to assess the plaintiff's damages.  The great issue between the parties is whether the back pain which the

36-year-old plaintiff suffers and continues to suffer on her evidence, which the court accepts is attributable to a fall at the first and second defendants’ premises at Pacific Fair Shopping Centre on the 9th of May 2007, or attributable to a hip complaint which appears to run in her family and has blighted her life since the age of about eight.

Dr Steadman, the defendant's orthopaedic expert is of the view that after six weeks or so the plaintiff's injuries from the accident in which she slipped on liquid on the floor, landing on her knee and then on her coccyx would have been spent. 

Dr Wallace, the plaintiff's expert orthopaedic practitioner brought in for medico-legal purposes, is of the contrary view that the accident was the probable cause of her complaint which he described as coxodynia or a painful tail bone.  After learning of the plaintiff's history of regular attendances on chiropractic practitioners by his re-examination, he appeared to have become somewhat less certain.

It is embarrassing to the plaintiff's case that she did not disclose to Dr Wallace who saw her in 2008 or to Dr Steadman, who saw her the following year, her extensive resort to chiropractic treatments or services which, in respect of her last chiropractor, Dr Josie Barnes began in December 2006 when the previous chiropractor she'd attended became unavailable.
There were six or seven attendances in the second half of December, 10 or more in January.  These tapered off in February, March and April 2007.  There was only one in May preceding the accident and, ironically, on the very day of it, presumably earlier.

The chiropractor's services were invoked again on the 14th of May when the accident was reported.  There were four attendances in the next 12 days and three in June, three in July, four in each of August and September and smaller numbers in the following months of 2007.

The plaintiff cannot, justly, be charged with trying to conceal the chiropractic aspect of her history.  It is clearly disclosed in the part 1 notice of claim produced under the PIPA, as it's called, The Personal Injuries Proceedings Act 2002 and, indeed, shortly after the incident the plaintiff, as any of us might in such circumstances, made a statement to the effect that she already had a problem with her back and didn't know how much damage had been done to it after she slipped at Pacific Fair.  I think it's human nature to be concerned that an existing problem hasn't been exacerbated by a reverse of that kind.

The statement attributed to the plaintiff was recorded by Teresa Richards, the cleaner, who was carrying out the obligations of the third defendant company in the relevant area of Pacific Fair at the relevant time.  The statement was not necessarily got down accurately and there's some point in that observation because the plaintiff has always distinguished between what she calls her "hip problem" and the back injury to do with her coccyx or problematic tail bone which, she says, arose only in the fall.  She demonstrated the different patterns of pain.

Much was made in the third defendant's case of a note which
Dr Barnes made on the consultation and examination form she completed when the plaintiff first saw her in December 2006.  That describes the chief complaint as "constant back pain since eight years ago."  The reference to "eight years" is an egregious misunderstanding of what the plaintiff had written in her own confidential health history which indicated that the hip problem went back to age eight, rather than had persisted for eight years.  That discrepancy raises some concerns as to how careful Dr Barnes might have been in making her notes.

When the plaintiff, in the document she completed, indicated her concerns, they were in terms of relieving what she called "consistent pain" which Dr Barnes appears to have understood to be "constant", albeit, qualified by circling "hip" as opposed to "neck” and “low back."

The word "back" nowhere appears in the document the plaintiff completed in December 2006, although the word "hips" does more than once and there's reference to pain radiating down her legs.  The pain diagram does appear to indicate some pain spreading across her back but a much higher level than the coccyx and at a much higher level than the plaintiff pointed to in indicating the pain she attributes to the accident.

In February 2007, the plaintiff was asked to complete a
re-assessment questionnaire for the chiropractor who, interestingly, asked no question whatever calculated to ascertain whether there'd been any improvement in respect of pain in the hips.  She did ask about - in the form of areas of the body that might suffer pain written in her handwriting - about headaches, neck pain and low back pain, eliciting responses which are all the plaintiff contributed to the document of improvements of 40 per cent; 70 per cent and 70 per cent.

It seems to me that the way in which the chiropractor proceeded and kept her records is the reason why the plaintiff finds herself, effectively, charged with concealing or denying a history of backache which is still persisting.  The hip problem may well have made her more susceptible to consequences from a fall such as the one she suffered.  That fall, in my view, Dr Wallace and the plaintiff are correct in regarding as what's causing the more frequent and concerning problems in the long term.

The declining number of attendances on Dr Barnes rather suggests that by the time of the accident, she had got the hip problem fairly well under control.  I'd prefer Dr Wallace's view to Dr Steadman's.  One particular reason is that the latter did not accept the diagnosis of Coxodynia which he didn't detect on examination in 2009.  He accepted that, for matters of this kind which can't be established by X-ray or like evidence, it's common for patients to have good days and bad days, also, that for commendable reasons of professional delicacy he did not conduct on the plaintiff when he saw her, the test which might more reliably indicate the diagnosis of coxodynia.

The plaintiff thus succeeds in establishing long-term consequences flowing from the injury. Both doctors, effectively, accepted an assessment of the plaintiff's disability which justifies an ISV of six for the purposes of item 93 in schedule 4 of the Civil Liability Regulation 2003.

(Dr Steadman, of course, attributed that 60 per cent - or its equivalent to the long-standing problem.)  That conclusion produces an assessment of what used to be general damages of $6,200. 

The past economic loss claim is modest.  It has two components, one, relating to a tanning business which the plaintiff conducted on her own account; the other work in a call centre for AUSTAR.  The plaintiff previously had employment in a bank which she left, presumably in part with a view to establishing her own business.  The progress of that has been severely disrupted by the consequences of the accident and for longer than the short period for which past economic loss is claimed in respect of it.

The plaintiff's had other life changes including giving birth to two children, the first in January 2008; the second in October 2010.  Those have interfered with her enthusiasm and, perhaps, ability to work.  She says restrictions of her ability to personally conduct the business of the tanning because of difficulties with crouching and bending are unwelcome consequences of the accident.

Although the takings of the tanning business declined from more than $27,000 in the 2006 tax year to some $14,577 in the 2007 tax year by an amount which modestly exceeded the loss of ability to operate after the 9th of May 2007 on a pro rata calculation, I think, the plaintiff's claim in that regard is made out; likewise, her claim for time lost at AUSTAR. 

She conceded that she was finding the AUSTAR work less than congenial and taking periods of unauthorised leave from time to time but that doesn't seem to me to have impacted on (in the sense of inappropriately inflating) the claim for past economic loss which, I accept, as made: amounts of $1,600 for the tanning business and $1,115.80 for lost income from AUSTAR; the total is $2,715.80.  Interest at the appropriate Treasury bond rate of 2.64 per cent for 4.25 years should be allowed, that's $304.71.

As to the claim for loss of superannuation benefits I don't agree with Mr Simpson that that is available in respect of the tanning income.  So far as the AUSTAR income is confirmed at nine per cent, $100.42 should be allowed.
In respect of future economic loss, this is one of those situations in which the court being satisfied that earning capacity is impaired, can do no more than assess a global amount.  There's no weekly sum that the plaintiff can be seen as missing out on but with a six per cent whole person disability she's clearly at a disadvantage in the labour market for the next 24 years or so until she could be expected to retire.

It's not possible to say whether she's being compensated for loss of ability to pursue the tanning business or loss of employment in which she would be at a disadvantage because of her inability to sit comfortably for more than an hour or so.  Although an exercise of even the conclusion that she's lost $50 per week or so could be engaged in, there's no rational basis on which firm figures could be advanced, as I think.

I propose to follow the course taken by other Judges of the Court in authorities Mr Simpson referred me to: Carroll v Coomber and Anor [2006] QDC 146; Raffaut v Gillard & Anor [2006] QDC 403; Cook v Bowen & Anor [2007] QDC 108 and; Bertini v Weller & Anot [2008] QDC 139. An allowance of $40,000, that's less than in those cases, is appropriate.

The superannuation loss I would allow as nine percent of $30,000.  The plaintiff doesn't meet the guidelines for damages for gratuitous assistance, past or future, so nothing should be awarded in that regard.  For future medical expenses a claim of $5,300 is made.  I reduce the allowance to $4,000.  It seems to me, on a general approach, the plaintiff will require further assistance from physiotherapists, chiropractors or the like and medication for pain relief but it can't be said there's strong expert support for any particular figures.

I accept the plaintiff's claim for special damages for past expenses of that kind of $4,012.60.  Interest should be allowed at 2.64 per cent for 4.25 years; interest is therefore $450.21.  There's a Medicare refund to be allowed of $248.45.  No time was spent at the trial in attempting to go behind the plaintiff's swearing that she had made an allocation of her past expenses resulting in these sums mentioned being appropriate ones for special damages. 

The point which Ms Hay ran was that such amounts should be allowed only for six weeks.  She didn't contest what the plaintiff had said about it, otherwise.  Is there no interest on general damages, now, Mr Simpson?

MR SIMPSON:  Not any more, no.

HIS HONOUR:  Well, you can add those sums up.  Now I turn to the question of liability.  Only the third defendant remained involved by the time this proceeding came to trial, the plaintiff having come to terms with the first and second defendants.  The Court hasn't been informed what happened.

It was informed at the beginning of the trial that the parties agreed that a cleaning schedule of once every 26 minutes was appropriate for the particular part of Pacific Fair where the accident happened; that was just outside the Australia Post Office Shop.  To the left of that post office, as one approaches it, was the Reject Shop and to the right and depicted in the photographs in evidence, was a furniture store operating under the name Nick Scali.

The plaintiff is able to produce in respect of her purchase of a reading lamp at the Reject Shop, a tax invoice which shows an EFTPOS transaction time of 13.39 hours and the time of 1.40.37 p.m. at the time when the receipt was printed out. 

The plaintiff was carrying her Reject Shop plastic bag containing her purchase and also had a handbag when she slipped at a time, she estimates as about 1.42 p.m. on the basis of that tax invoice.  She was on the way to the airport to pick up her mother and grandmother.  It was for the latter that the lamp had been purchased.

The plaintiff's leg collapsed.  She fell on her knee then landed on her coccyx.  She saw a red liquid on the ground, the obvious explanation for her slip, on a highly polished light predominantly creamy coloured terrazzo floor with a geometrical pattern of a darker colour.

The plaintiff thought it was some sort of juice or maybe a melted ”Slushie”.  The defendant's witnesses, who are the cleaner Ms Richards and security officer Mr Saint, thought it might have been tomato sauce but Mr Saint, for one, didn't seem particularly confident of that.

The plaintiff got herself up, went into Australia Post to advise that there was something on the floor so that the shopping centre management or security could be contacted to do something about it.  She says that happened at 1.43 p.m.  She returned the few steps to the scene of her fall to wait for the security person who had been summoned - or who she hoped had been summoned.

As it turned out, the security officer was beaten to the scene by Ms Richards who was asked by the plaintiff not to proceed to clean up the mess and a dramatic black smudge plainly made by her footwear which is depicted in the photographs, until security arrived and made a photographic record of what was there.  Ms Richards did wait before embarking on her cleaning task.

The paperwork she was required to fill in was a non-compliance report which dealt with all spillages and the like encountered in that part of the shopping centre during the day.  She recorded  the time between 1.50 p.m. and 1.53 p.m. as taken to clean up this particular "code wet (tomato sauce) in front of post office where a young lady had slipped and fell."
It's interesting that this "code wet" took longer to deal with than the other code wets and code drys on the day, all of which, apparently, took an even two minutes.  The other document completed by Ms Richards who, for this incident, did not make any note of the black mark on the floor so obvious in the photographs, whereas she had noted for two other code drys later in the day, "sticky black marks" was a "public liability incident report form" like the first one, prepared for the third defendant.  This one indicates as what is the crucial time for the purposes of the case, given the way it's been conducted, the last time "the area" was serviced as 1.30 p.m.  That entry is unsatisfactory because it is written over some earlier estimate of the time which is not legible on the form.

Also altered on the form is, under "incident details", the "time of incident" and the entry for the time when the person filling out the form was first notified of the incident.  In each case, "between 1.45-1.50 p.m." has been changed in a way not possible to be clear about now in respect of the closing time.  That now coincides with the starting time for the clean up in the other document.

The description of footwear given by Ms Richards is "flat sandals, leather?" in respect of which I'm satisfied she is inaccurate, that the plaintiff was wearing thongs which were probably rubber or something similar.  Mr Saint, in completing his paperwork because of a misleading arrangement of boxes available to be ticked has in the "incident report" made to AMP, reading the form literally - indicated the plaintiff was wearing high heels.  I think, it's clear in the context that he intended to record "thongs", which is what the plaintiff swore she was wearing.

In relation to times, he has estimated as the time of the incident 13.50 hours.  This was explained to be the time when he was told about it.  It took him two minutes to get to the scene and to take up with the plaintiff.

The reliability of the estimate of half past 1 as the time when the scene was last serviced is highly questionable.  It was explained by Ms Richards as an estimate based on working back from the time indicated by the clock on her trolley when she began her clean up. 

The significance of the time is made clear by the recent decision in Harris v. Woolworths Limited [2010] NSWSC 25 at paragraphs 94 to 101:

“[94] Reference was also made to Shoeys Pty Ltd v Allan unreported, Court of Appeal 3 May 1991, Kelly v Lend Lease Retail Pty Ltd (1993) 113 FLR 21 and Allcorp Cleaning Services Pty Ltd v Fairweather [1998] NSWCA 12.

[95] In Kelly v Lend Lease Retail Pty Ltd, Higgins J in the Supreme Court of the Australian Capital Territory reviewed a significant number of previous “slippery floor” cases before stating (at 28):

I conclude from those decisions that, whilst the mere presence of a hazard on a floor, rendering it slippery will not per se support liability, there is a duty on an occupier to be conscious of and take reasonable steps to avert injury by slipping and falling to those the occupier knows or ought to know will use the floor.

That duty will be relevantly breached and liability established in one of three categories of circumstances:

·   

If it appears by evidence, however slight, that the foreign matter in question had been on the floor in question for a greater time, on the balance of probabilities, than is reasonable before it ought to have been seen and removed.

·   

If it appears that no reasonable system for inspection and cleaning of the floor was in place having regard to expected hazards, it may be inferred that it is probable that if such a system had been in place then the fall would have been avoided.

·   

If the substance was one which ought not to have been allowed on the floor in the first place then the defendant will be liable whether or not the cleaning system is reasonable and however long it had been there.

[96] The decision in Kelly v Lend Lease Retail Pty Ltd was subsequently considered in the Victorian Court of Appeal in Kocis v S E Dickens Pty Ltd (1996) ATR 81-382 p 63292 and in turn by the New South Wales Court of Appeal in Franklins Ltd v Hunter [1998] NSWCA 85 where the Priestley JA adopted the specific approval by the Victorian Court of Appeal of the second of the categories identified by Higgins J Priestly JA, however, clarified that the word “may” should be understood not as “must” or “shall” but as meaning “it will be open to a court if in its view on the facts it is appropriate to do so to draw the inference there referred to”.

[97] In Franklins Ltd v Hunter the plaintiff had slipped on a light green and transparent liquid. The cleaning system in place was similar to that in the present case in that reliance was placed on staff observation and reaction and there was no procedure for monitoring and inspection at regular intervals. Three staff members in the vicinity of where the fall occurred had not noticed any spillage. The trial judge was unable to determine the length of time that the spillage had been on the floor. He regarded it as an “open question” whether the existence of an adequate system of monitoring and inspection would have probably prevented the fall from occurring. He referred to the second of the categories identified by Higgins J and concluded that there had been a breach of the defendant’s duty of care and that it caused or contributed to the plaintiff’s fall.

[98] The plaintiff in Allcorp Cleaning Services Pty Ltd v Fairweather (above) slipped on a potato chip and fell in an area of the Ashfield Shopping Mall during a busy Saturday lunch time in a food court area with a terrazzo floor. A cleaner was employed by the appellant to attend exclusively to this part of the mall and the evidence was that had he done so, he would have covered each part of the area approximately every fifteen minutes. The principal matter in issue at the trial was whether the system had broken down on the particular occasion. The trial judge concluded that there was no cleaner in the relevant area for anything up to three-quarters of an hour before the accident. Mason P referred to the approval in Franklins Ltd v Hunter of the second of the categories identified by Higgins J in Kelly v Lend Lease Pty Ltd before stating (at p 3):

In my view this second category can be applied to a situation where there was a reasonable system for regular monitoring but where it was established that the system broke down. Such a situation is really one where, for the relevant period of time, there was no reasonable system. Given the fact that this was a crowded shopping centre where food spillages would have been reasonably foreseen; given that the risks inherent in this were addressed by the particular system which I have referred to; and given that that system on the probabilities broke down to the extent referred to, then the inference that it was probable that if such a system had been in place the fall would have been avoided was a proper inference to draw.

For that reason, the finding of negligence against the defendant and third party at trial was properly made.

[99] In additional remarks, Priestly JA referred to Kocis v S E Dickens Pty Ltd (above), Brady v Girvan Bros Pty Ltd (t/as Minto Mall)(1986) 7 NSWLR 241 and Shoeys Pty Ltd v Allan (above) before stating (at p 4):

The authorities are thus multiplying at the level of Courts of Appeal in state jurisdictions in support of the view that in cases such as the present, findings of fact such as the trial judge here made, properly support the finding of liability against the person whose duty it was to keep the floor clean in accordance with the common law duty owed to persons coming to a place which in the circumstances needs a cleaning system to be operating and to be operating efficiently for the safety of legitimate visitors to that place.

[100] The latest case upon which the plaintiff relied was Franklins Ltd v Brown[2000] NSWCA 177. In that case a customer slipped on a loose lettuce leaf on a vinyl floor in the produce area of a supermarket. The primary contention of the plaintiff at trial was that the defendant had failed to institute and maintain a system of cleaning the floors to prevent injuries being caused in the way the plaintiff had sustained hers. The defendant contended that there was an adequate system of cleaning or, alternatively, even if there were shortcomings it was not the failure of the defendant in that respect which caused the injury. There was evidence that the floor in the produce department was subject to regular cleaning but that did not cover a half hour period in the afternoon when the incident occurred. During that period it was the responsibility of staff to maintain vigilance. Powell JA stated (at [10]):

This system, in my view, was clearly inadequate and his Honour was perfectly entitled to say that that system was not good enough.

[101] I am satisfied on the balance of probabilities that the defendant was in breach of its acknowledged duty of care. It used a floor surfacing that it conceded became slippery when wet. The system employed to ensure that the floor was clean, non-slip and safe to walk upon was inadequate. The very nature of the activities within the premises created a constant risk of spillages. Whilst I am unable to conclude on the evidence in this case that spillages were “frequent”, it at least established that they were not uncommon. The defendant did not deny the risk but sought to ameliorate it by measures which I regard as being insufficient. Having a system of requiring staff whose employment is primarily directed to other endeavours keep an eye out for spillages left too much, unacceptably, to chance. Some areas of the supermarket might be regularly frequented by staff while other areas not. I accept that adopting measures such as having staff devoted to ambulatory inspection of the floor surfaces could never completely eliminate the risk but it would act to reduce it in a significant way.”

Given the concession made at the beginning of the trial, Mr Simpson is driven to establish against the third defendant, if the plaintiff is to succeed against it, that the system failed because of the third defendant's failure to implement the system that contractual arrangements among the defendants required a cleaner to inspect and ensure the safety of areas once every 26 minutes.  The third defendant appeared to accept the view (indeed, contend) that that was, perhaps, too long a time but that was the contractual arrangement.

The starting point of the run for cleaners like Ms Richards was a toilet where the cleaner's trolley and supplies was kept stored.  Ms Richards was unwilling or unable to estimate how far into the run the Australia Post premises were but it would appear to be about halfway.  She had a lunch break which, strictly, would have been 12.30 to 1pm, as I understand it.  There are no records to establish the actual times taken.  The non-compliance record indicates that for the single incident occurring in that half hour period, another cleaner was on duty.

It's perhaps obscure whether when Ms Richards came across the plaintiff she was on her first or her second run after lunch.  At page 100, she was asked, "Can you tell us what happened on the first patrol?", presumably, the 1 p.m. one when she got back on duty.  She said, "I have to go around and on my second - second round I got the call from the security or management.  I got the call," following which she arrived at the scene.

On cross-examination she was unable to remember any details of the call so there's perhaps a mystery whether she was, indeed, summoned to the scene or came upon it in the course of her ordinary round.  There was evidence from her supervisor
Ms Murphy of a call at about 1.45 p.m. -  she has destroyed the note she made of it - which would have been a call to her from Teresa Richards.  There may have been some confusion arising as to who called whom.

Mr Simpson has persuaded me that the time 1.30 is totally unreliable.  I accept that the area where the spill was is about halfway in the round.  Looking at the non-compliance record there would have been no spills, wet or dry, to have been dealt with on that round.  One would expect the cleaner to have got there by about 1.13 p.m. even allowing a couple of minutes to check her trolley returning after lunch it would only be 1.15 p.m. which is outside the magic 26 minutes for the purposes of the tests or approaches regarding the drawing of inferences which emerge from the authority of the 2010 New South Wales case.

That Ms Richards could have come upon the scene on her second round in the ordinary course of it would seem quite impossible, there simply wouldn't have been time after 1 o'clock for her to pass Australia Post and confirm the condition of the floor and then get back to that location in time to come across the plaintiff there about 1.45.

The inescapable inference, it seems to me, is that the round in which the cleaner came across the plaintiff was, in fact, her first round or that if she was doing things efficiently the first round was more than 26 minutes before the accident.  We don’t know how long the substance was on the floor before the fall, but inferences may be drawn on the basis established by the cases.  Ms Richards’ evidence (T-1-104) was that she did not think she was subject to any time requirements at the date of the accident, that such requirement came in later on adoption of a system known as “Elite”

It's on that basis that I find the plaintiff has established liability in the third defendant.

Although there was a pleading of contributory negligence against the plaintiff, that was not pressed.  In my opinion, one would expect her attention to be directed to avoiding collisions rather that on the condition of the floor, which reasonable shoppers would assume would be clear and safe in the absence of any warning.  The photographic evidence does not suggest the spilt red material would have been particularly obvious to someone not passing attention on the state of the floor.

...

‑‑‑‑‑