Nerida LYNISE Bailey v Lend Lease Funds Management Limited; t/as Woden Plaza and Anor
[2013] ACTSC 56
•5 April 2013
NERIDA LYNISE BAILEY v LEND LEASE FUNDS MANAGEMENT LIMITED
t/as WODEN PLAZA and ANOR [2013] ACTSC 56 (5 April 2013)
NEGLIGENCE – occupier’s liability – shopping centre – personal injury – claim by entrant against owner – owner successfully delegating management of centre by contract – owner not liable
NEGLIGENCE – personal injury – shopping mall – claim by owner against cleaning contractor for indemnity or contribution – no evidence of failure to observe contractual terms or of other negligence
DAMAGES – personal injury – slip and fall in shopping mall – injury to knee and low back – provisional assessment of damages – no issue of principle
Civil Law (Wrongs) Act 2002 (ACT), s 168
Limitation Act 1985 (ACT)
Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241
Kelly v Lend Lease Retail Pty Ltd (1993) 113 FLR 21
Kocis v SE Dickens Pty Ltd [1998] 3 VR 408
Mercouris v Westfield Shopping Centre Management Co Pty Ltd [2000] NSWCA 79
Cairns v Woolworths Ltd [2005] ACTSC 95
Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16
Permanent Trustee Australia Ltd v Valeondis [2009] SASC 375
Aircraft Technicians of Australia Pty Ltd v St Clair [2011] QCA 188
No. SC 341 of 2007
Judge: Master Harper
Supreme Court of the ACT
Date: 5 April 2013
IN THE SUPREME COURT OF THE )
) No. SC 341 of 2007
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: NERIDA LYNISE BAILEY
Plaintiff
AND:LEND LEASE FUNDS MANAGEMENT LIMITED t/as WODEN PLAZA
ACN 000 334 473
Defendant
AND:SSL FACILITIES MANAGEMENT PTY LIMITED
ACN 009 022 879
Third Party
ORDER
Judge: Master Harper
Date: 5 April 2013
Place: Canberra
THE COURT ORDERS THAT:
Judgment be entered for the defendant on the claim by the plaintiff.
The defendant’s costs of the action brought by the plaintiff be paid by the plaintiff.
Judgment be entered for the third party.
The third party’s costs be paid by the defendant.
This a claim for damages for personal injury arising out of an incident at about 5.15 pm on Monday 4 October 2004 at the Woden Plaza shopping centre. That day was Labour Day and a public holiday. There were numerous shops in Woden Plaza but they were all closed except two supermarkets, Woolworths and Coles. The plaintiff drove to the shopping centre and parked underneath. Her intention was to buy a few items for dinner at Woolworths. She slipped in some spilt liquid, possibly Coca-Cola, on the tiled floor in a common area of the centre near the entrance to Woolworths.
She brought proceedings during 2007 against the defendant, Lend Lease Funds Management Ltd trading as Woden Plaza, as owner of the shopping centre. She did not assert in her statement of claim that the defendant was the occupier of the shopping centre.
In October 2008 the defendant joined the third party, asserting a service agreement between the defendant’s agent and the third party to supply cleaning services at the centre. The defendant asserted in its statement of claim against the third party that the third party had negligently failed to keep the area of the spillage clean, failed to signpost it or clean it up, and failed to maintain an adequate cleaning system. Additionally, the defendant claimed indemnity from the third party under the terms of the service agreement (the claim for contractual indemnity was not pursued at trial). The defendant further asserted that the third party would have been liable if sued by the plaintiff, a necessary ingredient of the defendant’s claim against the third party in tort.
The oral evidence for the plaintiff
The plaintiff was born in 1975. She was twenty-nine at the time of the accident and is now thirty-seven. She is married and has a two-year-old daughter. She grew up and went to school in Canberra and is employed by the Australian Federal Police as an administrative and clerical officer. Her husband is a member of the AFP.
When the plaintiff was about twelve she was diagnosed with scoliosis during a school screening, and wore a back brace for three or four years. Thereafter she had no symptoms due to that condition.
The plaintiff’s evidence was that she was wearing flat shoes with rubber soles when she went to the Woden Plaza to do her shopping. It was about 5.15 pm. She parked and went up to Woolworths. She had her keys in her hand. As she approached the entrance to Woolworths she noticed a dark spilt liquid on the floor to her right, perhaps Coca-Cola. She attempted to avoid the liquid but as she did so she slipped and fell onto her left knee and then her buttocks. She realised shortly afterwards that there had been another “large splatter” to her left, which she had slipped in.
The plaintiff after a short time got to her feet, and tried to make sure she did not slip again as she moved out of the area of the spill. She did not see any staff about. There were no warning signs.
She was immediately aware of pain in the left knee, with a red mark which turned into a large bruise over time.
She went into Woolworths where there was a service desk but it was unattended. The supermarket was quite busy with customers. The plaintiff decided to continue with her shopping, and was served at a checkout. She could not recall noticing anything about the liquid as she left, although she left via the same entrance. She then drove home.
During the night and the next morning she became aware of pain in the lower back. The knee symptoms, including the bruise, cleared up within a few days, but her lower back on the left side became increasingly painful. She went to her general practitioner who gave her a certificate for a week off work. She went back towards the end of that week as she was not any better, and was given a certificate for a second week off. She thought she had probably taken two or three weeks off in all (records produced by the Australian Federal Police confirm that she was off work until 22 October 2004). She spent most of her time lying down. She found that sitting was painful. She took anti-inflammatories.
She went back to work on full-time duties. She found that it was initially quite painful when sitting, but she was able to get up and do stretches.
During November 2004 she had another fall. During the weeks after the October fall she said that she would get intermittent sudden sharp pain in the low back. This happened to her as she was walking down a couple of steps. As she felt the sharp pain she lost her footing and fell onto her backside again. She had three days off work following this incident.
After that, the plaintiff had some physiotherapy, which included core strengthening exercises, and she took anti-inflammatory medication as she needed it. The back pain continued. The plaintiff did such housework as she could manage but needed considerable help from her husband, who attended to the heavier chores.
When the plaintiff became pregnant early in 2010, she was unable to continue taking medication and suffered increased pain in the low back. She managed this using heat packs and stretches but she said that it was a painful pregnancy because she was unable to take painkillers. After her daughter was born she was able to resume taking anti-inflammatories and painkillers in the form of paracetamol as required. She found it difficult to cope with such tasks as lifting her growing daughter, bathing her and putting her to bed. She explained that the back pain was not constant but came and went. It was there most days but on some days it was not too bad.
The plaintiff had been playing netball socially once a week before her fall but did not play again thereafter.
The plaintiff and her husband had difficulty achieving pregnancy, which the plaintiff attributed in part at least to her injury. Because of her back pain, intercourse was painful and she was not always able to have intercourse on the indicated days of the month. Eventually her daughter was born through in vitro fertilisation. She did not intend to have any more children. At the time of trial she was on maternity leave but was due to return about four months after the trial, on a part-time basis.
The plaintiff was cross-examined about some matters detected from her general practitioner’s records. She had been involved in a car accident in November 2001, after which she complained of neck pain. She also agreed on being reminded that she had had a low back problem two years before her fall, of gradual onset with no particular traumatic incident. She had complained of low back pain, particularly on the left side. She had been prescribed Voltaren and given a certificate for sick leave.
Shown an incident report form, the plaintiff confirmed that she had attended at Woolworths on 9 October 2004, the Saturday after her fall, to report the accident. She had made a verbal report the day after the accident to someone at Woolworths who gave his name as Brad, but he was unable to be identified later. There may have been some misunderstanding about his name.
Senior counsel for the defendant put to the plaintiff that some of the spilt liquid had been inside the Woolworths supermarket but she did not accept this. She denied any possibility that she might have fallen inside the Woolworths entrance line.
She was asked why, in these circumstances, she had reported the fall to Woolworths. Her response was that she did not realise, until she had instructed a solicitor, that the location of her fall had not been part of Woolworths but had been a common area within the Plaza.
The plaintiff agreed that she had seen her general practitioner a number of times during 2005 and subsequently, but that the doctor’s notes included no record of any complaint about low back pain. She explained this by saying that she was not seeing the doctor about her back pain, but about other conditions, principally her attempt to become pregnant. She had come to the view that there was nothing that could be done about her back pain, and hence no point in complaining to the doctor about it.
In cross-examination by counsel for the third party, the plaintiff agreed that she had attended a gym from time to time, usually walking on a treadmill, although she got most of her exercise walking her dog. She had given up her gym membership about three years before the hearing.
She agreed that she had attended what were described as Boot Camp classes during 2007. She said that this was an exercise class by the lake which included some sprinting, and core strength exercises. At the time she had been trying to lose weight. She did not recall the classes as particularly strenuous.
The plaintiff’s evidence was that by the time of trial, she had a dull pain in her low back on most days, although there were some days where the pain was worse. It was generally not as bad as it had been immediately after her fall. There were days when she was pain-free.
The plaintiff’s husband gave evidence generally confirming that of his wife, and in particular confirming his increased contribution to the household chores.
The medical evidence
All of the medical evidence was in report form.
The general practitioner, Dr Jill Bestic, provided a handwritten report to the plaintiff’s solicitors in April 2006. She said that the plaintiff had attended her practice on 5 October 2004 and given a history of slipping the previous evening outside Woolworths at Woden Plaza at about 5.15 pm. She had fallen on her knee and then backwards onto her bottom, causing severe jarring of her sacrum and lower back. She had had pain in that sacral area and the left sacroiliac joint during the night. She was in pain when seen, and was very uncomfortable sitting. There was pain in the coccyx and sacrum with radiation to the left sacroiliac joint. Dr Bestic thought that she had suffered a soft-tissue injury to those areas. She recommended massage, heat treatment, rest and anti-inflammatory medication, and gave the plaintiff a certificate for three days off work. She reviewed the plaintiff on 10 October, when the plaintiff was in considerable pain in the lower back, made worse by sitting. Dr Bestic referred the plaintiff for massage and physiotherapy. An x-ray of the lumbo-sacral spine was within normal limits.
Dr Bestic next saw the plaintiff on 18 October. She continued to have pain in the same areas, with some radiation down her thighs. Dr Bestic suspected disc extrusion at L3-4 and L4-5 causing some nerve root pressure.
Dr Bestic said that the plaintiff had made a full recovery but was certainly injured in the October fall and incapacitated for five weeks until her return to work. There were no predisposing factors and her symptoms were entirely due to the fall. She had been left, in Dr Bestic’s opinion, with no permanent disability.
The plaintiff was referred by her solicitors to Dr Ron Brooder, consultant neurologist. He saw the plaintiff on two occasions and provided reports to the solicitors. He saw her for the first time in June 2006. He found that despite Dr Bestic’s optimism, the plaintiff had not made a full recovery from her injuries. She had continued to suffer from intermittent and variable dull aching and throbbing pain in the low back and sacral region, particularly on the left side. The pain had persisted despite a prolonged period of conservative treatment including physiotherapy, exercise and medication.
Dr Brooder thought that although the injury seemed to be of a musculo-ligamentous origin, it was possible that she might have sustained a disc injury. He recommended that she be referred for an MRI scan.
The plaintiff’s solicitors, in order to implement this recommendation, asked her to see Dr Bestic for a referral. Dr Bestic noted in August 2006, apparently with some scepticism, that she had seen the plaintiff eight times in the previous two years without any mention of back pain, but she nevertheless referred the plaintiff for the scan as requested.
The scan found a loss of signal within the L4-5 disc consistent with desiccation, and also a posterocentral focal disc protrusion, compressing the thecal sac but without compression of the nerve root. This was regarded by the reporting radiologist as related to a tear of the annulus at the L4-5 level.
The plaintiff’s solicitors sent the MRI report to Dr Brooder. His opinion was that the plaintiff had developed degenerative changes at the L4-5 level as a result of her fall. This meant that her long-term prognosis was significantly less favourable than he had previously hoped. She was likely to remain subject to persistent low back pain to some degree indefinitely. This was in his view a direct result of the fall in October 2004. The plaintiff was at long-term risk of possible surgery in the event of her developing significant degenerative changes and neurological complications at the L4 level. The level of risk was unpredictable.
Counsel for the third party tendered a report by an obstetrician and gynaecologist, Dr S R Armellin, prepared in September 2007. Dr Armellin had seen the plaintiff in the context of her desire to become pregnant. Its relevance to the third party’s case was simply that Dr Armellin noted that both the plaintiff and her husband were “exceedingly healthy and fit”. The plaintiff conceded that she did not mention anything to Dr Armellin about her back injury or back pain.
In April 2010 the solicitors for the third party sent the plaintiff to see a neurosurgeon, Dr Gordon Stuart. He took a history and conducted a physical examination. His opinion was that the plaintiff suffered low back pain due to degenerative disease of the lumbosacral spine which was initially aggravated by a soft tissue injury in 2004. She had been treated conservatively and this should be continued. She was fit for full-time work. Dr Stuart accepted that there had been a moderate effect on the plaintiff’s recreational and social functioning: she had given up netball, and avoided heavy lifting, with her husband doing most of the household work.
Dr Stuart accepted that the degenerative condition of the spine had been asymptomatic before the injury. He considered that the injury should have resolved within three to six months, and hence the plaintiff’s continuing symptoms were due to the underlying degenerative disease. He recommended that the plaintiff continue with walking and core muscle strengthening exercises. She did not in his view require domestic assistance beyond that of her husband.
The solicitors for the plaintiff provided Dr Brooder with a copy of Dr Stuart’s report, and sent the plaintiff back to see him in August 2011, shortly before she gave her evidence. Dr Brooder disagreed with Dr Stuart. In his opinion there was no evidence that the plaintiff had pre-existing degenerative disease before her fall. Dr Brooder thought that this opinion was based entirely on an unsupported assumption. The MRI findings of September 2006 were entirely consistent with the damage having been done at the time of the fall two years earlier. Dr Brooder adhered to his earlier opinion that the plaintiff’s complaints of pain were entirely due to her fall. In his opinion she had suffered a permanent loss of the efficient use of her back and was permanently limited in her ability to undertake increased heavy physical activity, particularly activity involving prolonged or repetitive forward bending and heavy and repetitive lifting. He remained of the view that at some stage in the future the plaintiff might develop a progressive intervertebral disc protrusion associated with neurological complications which might require surgery to the lumbar spine.
The companies and the contracts between them
The defendant, Lend Lease Funds Management Ltd, was incorporated in 1960. A company search conducted in 2007 does not reveal its history up to 1978, when its name was Lend Lease Management (NSW) Ltd. Since then it has undergone six changes of name, three of which have identified it as a Lend Lease company. Other names have included MLC Funds Management Ltd and GPT Management Ltd. The search indentifies its ultimate holding company as Lend Lease Corporation Ltd. It is apparently a company of considerable substance.
Lend Lease Property Management (Australia) Pty Ltd was incorporated in 1985. It has the same registered office and ultimate holding company as the defendant. It also appears to be a company of considerable substance. It has changed its name twice since incorporation but has had its present name since 1995.
There are two contracts relevant to the plaintiff’s claim against the defendant, and to the defendant’s claim against the third party. The earlier in time is an agreement dated 8 February 2002 between Lend Lease Property Management (Australia) Pty Ltd, which I shall call Lend Lease Property, and the third party. The later of the two is an agreement dated 19 March 2003 between Lend Lease Property and GPT Management Ltd. The latter company has the same Australian company number as the defendant. The company search in evidence establishes that between November 1996 and June 2005, the name of the defendant was GPT Management Ltd, the name being changed to the present name Lend Lease Funds Management Ltd with effect from 9 June 2005.
The agreement between the two Lend Lease companies was called the property management agreement, and related solely to Woden Plaza. It authorised Lend Lease Property to manage Woden Plaza and to enter agreements as agent of the owner for the provision of services in respect of the Plaza. The agreement was expressed to be governed by the law of the Australian Capital Territory. The agreement recited that the defendant, under its then name, was the owner of the Woden Plaza freehold (I can take judicial notice of the fact that this must be wrong, and that as “owner” the company would be at best have been Crown lessee for a term of years). The defendant was described as a responsible entity and trustee of the General Property Trust, and it was liable under the agreement only to the extent to which it was indemnified out of the assets of that trust, subject to minor exceptions. Under the agreement, Lend Lease Property was to manage the centre for a fee. It was appointed agent of the owner for the purpose of managing the centre, and was authorised, inter alia, to enter into and enforce contracts including agreements for lease in accordance with sound commercial practice and market conditions. It was also authorised to subcontract part or all of the services it was required to provide, subject to specified limits of authority. It is unnecessary for me to go into further detail about the terms of the agreement. It is sufficient to say that it was consistent with a relationship between the parties to the agreement whereby the “owner” took almost no active role in the running of the shopping centre, with Lend Lease Property having almost complete control over its management and day-to-day operations.
The agreement between Lend Lease Property and the third party was called a specialist services agreement. The specialist services agreement was lengthy and detailed. The services to be supplied were set out in a schedule to the agreement, and were extensive. They included the cleaning and presentation of the Plaza. Relevantly to the present action, they required any spillage to be attended to promptly, with damp mopping of the spillage area followed by a dry mopping and finally a dry cloth to ensure all damp patches were eliminated. “Slippery when wet” signs were to be displayed immediately. During business hours, any spillage in the common areas of the centre were to be rectified within fifteen minutes. The agreement included a specific provision that the third party must ensure the safety of the public within the Plaza. “Business hours” were defined in the agreement, for public holidays, as 8.30 am to 5.00 pm.
The application to amend the statement of claim
At the beginning of the hearing, senior counsel for the plaintiff sought leave to amend the statement of claim. At the time the assertion in the statement of claim was that the defendant was the owner of Woden Plaza. It was not asserted that the defendant was the occupier. The plaintiff sought leave to amend to allege that the defendant was also occupier of Woden Plaza, and to plead the property management agreement, asserting that the defendant and Lend Lease Property were related companies, each owned by Lend Lease Corporation Ltd and having a common registered office and principal place of business.
For reasons which I gave orally on the day the application was made, I granted leave and the proposed amended statement of claim was filed in court.
The new statement of claim pleads that whilst the defendant appointed Lend Lease Property as its agent in respect of the operation of the Plaza, with authority to enter contracts such as the specialist services agreement with the third party, the authority to enter contracts of more than a set value (of which the specialist services agreement was one) was subject to the prior approval of the defendant. It was then pleaded that the defendant as owner owed a duty of care to entrants using its common property to ensure that competent independent contractors were engaged. The pleading then asserted that the defendant was vicariously liable for any negligence on the part of Lend Lease Property in respect of the safety of the plaintiff, and that the defendant was relevantly an occupier of the common area of the Plaza where the plaintiff was injured.
The particulars of negligence were amended to add a failure to ensure that the cleaning contract with the third party required inspection for and removal of spills after 5.00 pm on public holidays when members of the public were likely to be on the premises. There was a further allegation of negligence in relation to the floor surface, which was not pressed at trial.
Oral evidence for the defendant
Senior counsel for the defendant called two witnesses. Mr Aleksoski was at the time of the plaintiff’s fall a cleaning supervisor employed by Spotless, with responsibility for all of the cleaners at the Plaza. There were about thirty cleaners, and the witness organised their shifts and rosters, trained new staff and checked the quality of staff work. He had worked as a cleaner for a number of years, and had been at Woden Plaza for about two years at the time of the plaintiff’s injury.
His evidence was that cleaners came on duty from 4.00 am on a business day, with the early shift being until 8.00 am. There was then a day shift from 8.00 am until 5.30 pm, when a night shift commenced, running until about 9.00 pm. Most shops at the Plaza were open until 5.30 pm. After that time, only Woolworths and Coles stayed open, until about midnight. After the cleaners finished their shift at 9.00 pm, any spillages or other incidents in common areas would be looked after by security guards.
During the cleaning shifts, each cleaner was required to do a fifteen-minute loop of the area for which that cleaner was responsible, walking through the common areas of the zone and checking for spillages. There were loop sheets required to be completed and signed which were kept in a cleaning room where cleaning equipment was also kept. Each cleaner returned to that room at the end of each loop and recorded the time. The cleaner would then start the next loop immediately. The loop would take much less than fifteen minutes if there were no spillages or incidents, but might take longer if there was a spillage to be dealt with.
A spillage register was kept for spillages which were reported to a cleaner, but no such register was kept for spillages which were discovered by a cleaner during a loop.
The loop frequency remained at fifteen minutes after 5.30 pm until 9.00 pm.
Mr Aleksoski’s recollection was that the hours for public holidays were the same as for Sundays, and that the shops other than Coles and Woolworths closed at 4.00 pm, with the later cleaning shift going on until 7.00 pm, but with fifteen-minute loops as on normal business days.
His evidence was that in November or December 2005 there was a change in ownership of Woden Plaza, Westfield taking over from Lend Lease. At about the same time another company, Reflections, took over the cleaning and other specialist services from Spotless. At the time of the changeover the cleaning records including loop sheets were put into boxes to go into storage.
Shown a spillage sheet, Mr Aleksoski identified two of the cleaners who had completed and signed the form by their first names, as full-time cleaners. As a supervisor Mr Aleksoski participated in monthly meetings with Lend Lease Management Group, where cleaning, security, slips and falls and other matters were discussed. Every three to six months an inspection of the Plaza was carried out by senior staff of Lend Lease and Spotless to monitor the acceptability of the cleaning work.
The other witness called in the defendant’s case was Mr Peters. He worked for about a year from early 2003 with Spotless looking after its responsibilities under the specialist services agreement at Woden Plaza. Early in 2004 he changed employers, to work with Lend Lease Property as property manager of Woden Plaza, and spent about eighteen months in that position. He explained the structure of the Lend Lease Property team at Woden Plaza. There was a centre manager who was his direct superior, and at his level there were a number of other management staff including a marketing manager, a property manager and a construction development manager. There were eight to ten centre management staff, who had their own offices at the Plaza. To his knowledge, the building owner (the defendant, then called GPT Management Ltd) did not have an office, staff or any other presence at the Plaza.
Mr Peters attended the monthly management meetings, also attended by the Spotless supervisor, but was not otherwise personally involved in supervision of Spotless staff. He accepted the information he was given by Spotless at the meetings and did not undertake any investigations of his own into the cleaning work.
Senior counsel for the defendant informed the court that his client and instructing solicitors had been unable to find either of the cleaners who had signed the record sheets. This was accepted by counsel for the plaintiff.
Factual findings
I accept the plaintiff’s evidence, which was not seriously challenged. I find that at about 5.15 pm on Monday 4 October 2004, a public holiday, she went to Woden Plaza to buy some items at the Woolworths supermarket. She noticed some spilt liquid on the floor to her right approaching the entrance to Woolworths. She attempted to avoid the spilt liquid but stepped in it, slipped and fell, injuring her left knee and lower back. I am satisfied that normal business-hours cleaning arrangements were in place at the time, which meant that a cleaner employed by the third party was walking past the area where liquid had been spilt every fifteen minutes, and signposting and cleaning up spillages as they were detected.
It follows that I am satisfied that the liquid had been spilt since the cleaner’s previous loop, that is less than fifteen minutes before the plaintiff slipped and fell.
I am satisfied that the plaintiff was keeping a proper lookout at the time and that she behaved reasonably when she saw the spilt liquid. I am not persuaded that she was guilty of any degree of contributory negligence which was or could have been a cause of her injury.
I am further satisfied on the evidence that the defendant had fully delegated the management, administration and operation of the Woden Plaza shopping centre to Lend Lease Property and that the defendant had no office and no staff or other presence at the Plaza. It follows that the defendant was not, in the context of liability to entrants, the occupier or an occupier of the shopping centre.
I am satisfied that the contractual arrangements made by the defendant with Lend Lease property for the management of the centre, and in particular for cleaning of floors in common areas, were reasonable and satisfactory in the circumstances. I am also satisfied that the contractual arrangements between Lend Lease Property and the third party in relation to cleaning of floors in common areas were reasonable and satisfactory.
It is almost inevitable in a shopping centre that there will be spillages of liquid caused by customers of shops over whom the occupier has little or no control. When such a spillage occurs there will be a period of time before it is detected by staff and made safe. There have been many cases in which fifteen-minute loops for inspection by cleaners have been accepted as satisfactory. Whether such a system is satisfactory is of course a question of fact and not of law, but it is an issue on which the plaintiff bears the onus. The plaintiff has called no evidence to the effect that the system required by the contract with the third party, for fifteen-minute loops, was other than reasonable, satisfactory and in accordance with industry standards. This is hardly surprising; factual findings in other cases would suggest that the time frame accords with industry standards and with usual practice in the management of shopping centres.
So far as the medical evidence is concerned, I accept that the plaintiff continued to suffer from low back pain during the time when she was seeing her general practitioner, Dr Bestic, in the years after the fall, but did not complain to her doctor about if for the reasons she gave in evidence. I do not regard the plaintiff’s failure to make regular complaints to Dr Bestic about her back symptoms as tending to establish that her symptoms had cleared up or were so minor as not to warrant complaint. Rather, I am satisfied that she took the view that there was nothing Dr Bestic could do for her, and that she was not seeing Dr Bestic for treatment about her low back.
As to the specialists, I prefer the opinion of Dr Brooder to that of Dr Stuart. Accepting, as I do, that the plaintiff had no low back symptoms during the period of nearly two years before her fall, and that she has had back pain at a fluctuating level ever since, I find Dr Stuart’s opinion that the fall caused the back pain only for three to six months, after which a point was reached where the fall ceased to be a cause of it, and that after that point, it was caused solely by the pre-existing asymptomatic degenerative condition, to be unsustainable. Where Dr Stuart’s opinion is inconsistent with that of Dr Brooder, I prefer the opinion of the latter, and generally accept his findings and his opinion.
Liability
The plaintiff’s claim against the defendant is governed by the law as to the standard of care an occupier of premises must show to entrants in relation to any dangers on the premises. The common law rules in that regard have been replaced by s 168 of the Civil Law (Wrongs) Act 2002. The section contains an inclusive definition of occupier which is not relevant to the present facts. The section lays down the primary duty of an occupier, to take all care that is reasonable in the circumstances to ensure that an entrant does not suffer injury because of the state of the premises, or things done or omitted to be done about the state of the premises. Relevant factors to be considered in deciding whether the duty of care has been discharged include the nature of the premises and the burden on the occupier of removing the danger or protecting the entrant from it, as compared to the risk of the danger to the entrant.
The identification of the occupier of particular premises requires a factual investigation. The present case illustrates the difficulties which can be involved. Although it was not clear from the title search in evidence, it seems to be common ground between the parties that a search would have identified the defendant as the Crown lessee of the Plaza, and that it would have been apparent from a search of the leasing plan that the point where the plaintiff fell was part of a common area and not of a shop tenancy. But a title search would not have revealed the fact that the defendant had delegated the management and operation of the Plaza as a shopping centre to Lend Lease Property. The difficulty may have become apparent if the plaintiff had originally pleaded that the defendant was the occupier of the Plaza as well as the owner. The defendant admitted in its defence that it was the owner, but it was not obliged to admit or deny that it was the occupier, so that the pleadings did not identify what turned out to be the real issue between the plaintiff and the defendant.
It is also of significance that in the present action, the limitation period expired in October 2007, five months after the institution of proceedings and prior to the filing of the defence and third party notice joining Spotless. Because of a typographical error, initially the wrong company was sued and in the event the limitation period had expired before those advising the plaintiff became aware of the involvement of Lend Lease Property and Spotless, too late for them to be joined as defendants. Since amendments to the Limitation Act 1985, the court has had no power to extend the limitation period in an action such as the present one.
There have been numerous claims arising from slip and fall incidents caused by spillages in common areas of shopping centres. In Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241, the New South Wales Court of Appeal overturned a judgment for the defendant (the shopping mall operator) where a customer had slipped on spilt green jelly. Kirby P set out the applicable principles, describing the defendant as a large commercial enterprise which invited members of the public to do business at its premises for the purpose of deriving an economic advantage. His Honour said that if the inherent likelihood of spills was great, those coming onto the premises should be able to look to the occupier for a very high degree of care indeed. McHugh J took the view that the plaintiff bore an onus to establish that the spillage had been there for long enough to have been detected and cleaned up if there had been a proper cleaning system in place. Kirby P and Priestley JA thought this unnecessary, and were prepared to find in the plaintiff’s favour on the basis that it was more probable than not that the jelly which caused the plaintiff’s fall would have been seen and cleaned up before she slipped on it, if there had been a proper cleaning system in operation. It was in their Honours view unnecessary for the trial judge to determine how long the jelly had been on the floor.
Higgins J came to a similar conclusion in Kelly v Lend Lease Retail Pty Ltd (1993) 113 FLR 21 a decision of this Court, coincidently involving the Woden Plaza shopping centre. The plaintiff had slipped on a woodchip on the floor. Evidence as to the system of cleaning and inspection was vague. The defendant submitted that in the absence of evidence as to the length of time the woodchip had been on the floor, it could not be inferred that the plaintiff’s injury had been caused by an inadequate system of cleaning and inspection. Higgins J rejected this submission, finding on the evidence that it was probable that the usual system of cleaning, even if adequate, was not being observed at the time of the plaintiff’s fall, and that the failure of the system supported an inference that, had it been in operation, an inspection within half an hour before the fall would have removed the woodchip. This was notwithstanding his Honour’s finding that a patrol every thirty minutes would have been inadequate as a system.
In Kocis v SE Dickens Pty Ltd [1998] 3 VR 408, the Court of Appeal of the Supreme Court of Victoria allowed a plaintiff’s appeal in circumstances where the judge at first instance had taken the issue of negligence away from the jury because the plaintiff had not shown how long the spillage had been on the floor. Phillips JA, with whom Ormiston and Hayne JJA agreed, held that a plaintiff could succeed in a slipping case without first having to establish how long the spillage had been on the floor before the slip. As his Honour said, it would not ordinarily be possible to exclude the possibility that the substance on the floor was spilt only moments before the plaintiff slipped on it, but that mere possibility did not affect the probabilities. Where it could not be established how long a spillage had been on the floor, it remained open to a judge at first instance, or jury, to find on the balance of probabilities that it had been there long enough to have been detected if an adequate cleaning system had been in operation.
Where a system of regular cleaning has been established, plaintiffs have failed. In Mercouris v Westfield Shopping Centre Management Co Pty Ltd [2000] NSWCA 79 the evidence was that the defendant had a cleaning contract calling for cleaning, including attention to spillages, on a rotational basis. The route of one of the cleaners took in the common area where the plaintiff had slipped in a spillage. The cleaner’s loop took about fifteen minutes depending on the congestion of the shopping centre and other matters. The trial judge found that the defendant had in place an adequate system of cleaning and inspection. The Court of Appeal agreed with the trial judge, dismissing an appeal against the judgment at first instance for the defendant.
In Cairns v Woolworths Ltd [2005] ACTSC 95, another slip and fall at Woden Plaza, I found that with the system contemplated by the cleaning contract, whereby a cleaner would complete a circuit of each zone of the common property of the centre every fifteen minutes, it was more likely than not that the spillage which caused the plaintiff’s fall would have been detected and cleaned up in time for the fall to have been avoided. In that case the evidence was that the cleaner had failed to comply with its contractual obligation, and that the occupier had failed to monitor the cleaner’s compliance with the contract, so that the plaintiff succeeded.
The New South Wales Court of Appeal explained in Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 that the duty of an occupier of a shopping centre was delegable in the sense that it could be discharged in whole or in part by the exercise by the occupier of reasonable skill and care in engaging someone else to take steps to keep the property safe either generally or in particular respects. Discharge of this duty required reasonable skill and care in the selection of the delegate, and in confirming that the delegate was taking appropriate steps. Subject to this, it was possible for the occupier to escape liability to an entrant injured due to the failure of the delegate to exercise reasonable skill and care to keep the property safe. In such a case the possibility was open that the entrant might succeed direct against the delegate, in that case a cleaning contractor.
In the present case, for reasons I have already stated, I am satisfied that the defendant, whilst owner of the Plaza, was not an occupier of it. The occupier was Lend Lease Property.
If Lend Lease Property had been sued as occupier, it would be necessary for me to consider whether Lend Lease Property exercised reasonable skill and care in selecting Spotless as its contract cleaner, in arranging the terms of engagement, and in ensuring that Spotless was complying with its contractual obligations. I am satisfied on the evidence that Spotless was doing so, and I am satisfied that Lend Lease Property exercised reasonable skill and care in selecting Spotless and in arranging the terms of engagement. The obligations imposed by the contract between Lend Lease Property and Spotless are sufficiently detailed and thorough to enable me to conclude that Lend Lease Property successfully delegated to Spotless its duty of care to protect the plaintiff from injury by reason of a spillage. Lend Lease Property would accordingly escape liability for breach of duty of care to the plaintiff as an entrant, if it had been sued.
In view of this finding, it is strictly unnecessary for me to consider the submissions made by senior counsel for the plaintiff, that the defendant should be found liable by reason of vicarious liability for the negligence of Lend Lease Property. On that issue I was taken by senior counsel for the plaintiff to the decisions of the Full Court of the Supreme Court of South Australia in Permanent Trustee Australia Ltd v Valeondis [2009] SASC 375 and of the Queensland Court of Appeal in Aircraft Technicians of Australia Pty Ltd v St Clair [2011] QCA 188. It is enough for me to say that notwithstanding the contractual agency arrangement between the defendant and Lend Lease Property, I am not persuaded that the necessary framework for vicarious liability would have been established against the defendant if I had found Lend Lease Property negligent. I am not persuaded that the relationship between the two companies (both having the same holding company and the same registered office) would have assisted the plaintiff on this issue.
Although the amended statement of claim pleads direct negligence on the part of the defendant, senior counsel for the plaintiff, who addressed on liability, did not press this contention. I cannot see any evidence of any negligence on the part of the defendant itself.
For those reasons the plaintiff must fail against the defendant.
In these circumstances the claim by the defendant against the third party also fails. As there was no contract between the defendant and the third party, the contractual claim for indemnity could not have succeeded whatever the outcome of the plaintiff’s claim. On the tort count, to succeed against the third party it would have been necessary for the plaintiff to establish that the third party had been negligent, and, it was common ground between the parties, that the third party would have been liable if sued by the plaintiff. On the evidence, the plaintiff would not have succeeded against the third party. No evidence was called, either by the plaintiff or by the defendant, capable of establishing any negligence on the part of the third party.
Damages
I have already said that I generally accept the plaintiff’s evidence. Counsel for the plaintiff submitted that an appropriate award for general damages would be $75,000.00 to $85,000.00. Senior counsel for the defendant put a range of $70,000.00 to $80,000.00. Counsel for the third party did not address on damages. I would have awarded $75,000.00 for general damages, plus interest on half of that amount which I calculate at $6,500.00, weighing the general damages a little towards the early months after the fall.
Treatment expenses up to trial were agreed at $1,778.55. I would allow $2,000.00 for treatment expenses to date of judgment, on the assumption that the plaintiff has more probably that not incurred some small further expense. I would have allowed interest of $1,000.00 on the expenses, which have been paid by the plaintiff, most in the early years after the accident.
Senior counsel for the defendant conceded that the evidence would justify a modest buffer for future treatment expenses. He suggested $2,000.00, which I accept and would have allowed.
For past and future domestic assistance by the husband, I would have allowed $10,000.00 including interest. The plaintiff was off work for 17 days on sick leave, which she could restore by repayment. She did not give any evidence of any intention to do so, and a preferable way to assess this component is to consider the likelihood that she might ultimately need to use the sick leave credits she has lost. Their full value was some $3,600.00. I would allow $2,500.00 for loss of earning capacity for the past. Counsel for the plaintiff, after indicating during the trial that the claim for future economic loss was not pressed, sought in closing submissions a modest buffer in that regard, which he did not quantify. Senior counsel for the defendant had an opportunity to address on this but did not do so. On Dr Brooder’s evidence there is some prospect of a future loss, for which I would have awarded $5,000.00.
The total of the individual components is $104,000.00, which on consideration I regard as a reasonable reflection of the impact of the injury upon the plaintiff, and I would have awarded that amount if I had found in her favour.
Conclusion
There will be judgment for the defendant with costs, and judgment for the third party with costs. I shall order that there be a stay in relation to the orders for costs for twenty-one days in case there are considerations which should be taken into account of which I am unaware, in which event any party may on notice by email to the others have the matter listed before me for submissions.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.
Associate:
Date: 5 April 2013
Counsel for the plaintiff: Mr B A Meagher SC and Mr D P Shillington
Solicitors for the plaintiff: Blumers Personal Injury Lawyers
Counsel for the defendant: Mr R L Crowe SC
Solicitors for the defendant: Minter Ellison
Counsel for the third party: Ms C J Allan
Solicitors for the third party: Wotton & Kearney
Date of hearing: 6, 7 September 2011
Date of judgment: 5 April 2013
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