Raad v VM & KTP Holdings Pty Ltd

[2017] NSWCA 190

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Raad v VM & KTP Holdings Pty Ltd as Trustee for VM & KTP Nguyen Family Trust [2017] NSWCA 190
Hearing dates:	13 June 2017
Decision date:	01 August 2017
Before:	Macfarlan JA at [1]; Simpson JA at [47]; Sackville AJA at [48]
Decision:	(1) The appeal and application for leave to cross-appeal are dismissed. (2) No order for costs of either the appeal or application for leave to cross-appeal.
Catchwords:	NEGLIGENCE – occupier’s liability – slip and fall accident on a tiled area in shopping village - duty to take reasonable care so that premises safe for users taking reasonable care for their own safety – foreseeable users included those who may be inattentive or careless, and those proceeding above a normal pace when tiles were wet – reasonable person in the respondent’s position would have taken reasonable steps to reduce the significant risk of such persons slipping and falling   NEGLIGENCE – occupier’s liability – damages – whether there was a causal connection between claimed damages and actionable conduct
Legislation Cited:	Civil Liability Act 2002 (NSW), s 5D(1)
Cases Cited:	Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 House v R (1936) 55 CLR 499; [1936] HCA 40 Neindorf v Junkovic (2005) 80 ALJR 341; [2005] HCA 75 Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492 Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103 Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 Thompson v Woolworths (Q’land) Pty Ltimited (2005) 221 CLR 234; [2005] HCA 19 Webb v South Australia (1982) 56 ALJR 912
Category:	Principal judgment
Parties:	Abdul Raad (Appellant) VM & KTP Holdings Pty Ltd as Trustee for VM & KTP Nguyen Family Trust (Respondent)
Representation:	Counsel: B J Gross QC / V Jurisich (Appellant) R A Cavanagh SC / R Gambi (Respondent)     Solicitors: PK Simpson & Co (Appellant) Curwoods (Respondent)
File Number(s):	CA 2016/219308
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2016] NSWSC 888 Date of Decision: 29 June 2016 Before: Davies J File Number(s): SC 2013/144125

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 13 June 2011 Mr Abdul Raad, the appellant, was injured when he slipped and fell on a wet, tiled, outdoor area at a shopping village occupied by the respondent. He commenced an action for damages against the respondent, claiming that it failed to take reasonable care for his safety as a user of the shopping village. By a judgment of 29 June 2016, Davies J awarded $75,547 in damages to Mr Raad. This figure reflected a 10% reduction by reason of a finding of contributory negligence on Mr Raad’s part.

On appeal Mr Raad contended that the damages award was inadequate because first, his Honour erred in finding that Mr Raad had been contributorily negligent and secondly, because his Honour erred in failing to find that two aspects of Mr Raad’s present condition were causally related to his fall at the respondent’s premises. As to the latter contention, Mr Raad submitted that (i) the primary judge should have found that Mr Raad’s pre-existing Scheuermann’s disease was aggravated by the fall and (ii) the primary judge should have found that Mr Raad’s narcotic drug dependency resulted from the accident.

By intended cross-appeal, the respondent contended that the primary judge erred in finding that it breached its duties as occupier of the premises. It also contended that Mr Raad’s damages should have been reduced by significantly more than 10% to account for his contributory negligence.

Held, dismissing the appeal and the application for leave to cross-appeal (per Macfarlan JA, with Simpson JA and Sackville AJA agreeing):

(1) An occupier’s duty of care is appropriately framed by reference to “users exercising reasonable care for their own safety”. That limitation does not however foreclose the possibility of a breach of duty occurring in relation to someone who has been contributorily negligent: [34].

(2) In the circumstances of the present case, the respondent should have anticipated that all manner of people would be using the tiled area, and that some may traverse the area at above a normal walking pace, including at times that it was raining: [26].

Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103 considered.

(3) The expert evidence established that there was a not insignificant risk that a person proceeding hurriedly over the respondent’s untreated tiles in wet conditions might slip and fall. This risk was of such magnitude that a reasonable person in the respondent’s position would have responded to it by significantly reducing the risk of slippage by, for example, applying a non-slip product to the tiles. The respondent did not take any such steps: [27], [32].

Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 considered.

Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29; Neindorf v Junkovic (2005) 80 ALJR 341; [2005] HCA 75 distinguished.

(4) The assessment of the percentage deduction to be made for contributory negligence is a finding apportioning responsibility for an accident. It involves an evaluative judgment to which the principles in House v R (1936) 55 CLR 499; [1936] HCA 40 apply. The percentage adopted by the primary judge fell within the range of the percentages that were open to him: [36].

Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 applied.

(5) There was no medical evidence that explicitly attributed Mr Raad’s narcotic drug dependency to the slip and fall accident. Nor was there evidence from Mr Raad to that effect. Neither did the evidence allow an inference to be drawn that there was a relevant causal connection: [38]-[39].

(6) The expert evidence provided insufficient support for Mr Raad’s submission that his pre-existing Scheuermann’s disease was aggravated by the injuries he sustained in the accident: [41]-[44].

Judgment

1. MACFARLAN JA: On 13 June 2011 Mr Abdul Raad, the appellant, was injured when he slipped and fell on a wet, tiled, outdoor area at a shopping village occupied by the respondent. He commenced an action for damages against the respondent in the Supreme Court, claiming that it failed to take reasonable care for his safety as a user of the shopping village. By a judgment of 29 June 2016, Davies J awarded $75,547 in damages to Mr Raad ([2016] NSWSC 888). This figure included a 10% reduction to Mr Raad’s damages by reason of a finding of contributory negligence on his part.

2. On appeal Mr Raad contends that the damages award was inadequate because, first, his Honour erred in finding that Mr Raad had been contributorily negligent and, secondly, because his Honour erred in failing to find that two aspects of Mr Raad’s present condition were causally related to his fall at the respondent’s premises. As to the latter contention, Mr Raad submits that the primary judge should have found that Mr Raad’s pre-existing Scheuermann’s disease was aggravated by the fall and that his narcotic drug dependency resulted from the accident. The primary judge described Scheuermann’s disease as “a skeletal disease that usually begins in adolescence in which the vertebrae grow unevenly, resulting in wedge-shaped vertebrae and a hunched back” (at [86]).

3. By intended cross-appeal, the respondent contends that the primary judge erred in finding that it was in breach of its duties as occupier of the premises. It also contends that Mr Raad’s damages should in any event have been reduced by significantly more than 10% to account for his contributory negligence.

The factual circumstances

4. Mr Raad slipped and fell on an uncovered tiled area forming part of the respondent’s shopping village. The area provided access from a car park to shops in the village. On the day of the accident the area was wet because it had been raining. Mr Raad said that it was in fact raining when he fell. Expert evidence at the hearing indicated that water tended to accumulate on the tiles in patches as the area had little camber. The primary judge found that Mr Raad was running when he slipped and had by then already taken a number of steps on the wet tiles. The evidence did not enable any conclusions to be drawn about the state of the soles of Mr Raad’s shoes at the time of his accident.

5. Mr Raad first sought medical assistance a week after the accident, on 20 June 2011. A CT scan revealed that he had suffered a wedge compression fracture to his T5 thoracic vertebra, with further damage to his T3 vertebra. He was treated with Paracetemol and then Endone. On 27 June 2011, Dr Tadros, a general practitioner, prescribed that Mr Raad take 5 mg of Endone at night.

6. On 15 October 2011 Mr Raad was taken to Villawood Detention Centre on the basis, subsequently shown to have been erroneous, that he was unlawfully in Australia. While there, he was assaulted by being punched with a closed fist on the side of his head. He was taken by ambulance to Liverpool Hospital. Triage notes indicate that he complained of pain to his face, neck and upper back and displayed mid-cervical spine tenderness. He was given Panadeine Forte, Valium and morphine.

7. Mr Raad was released from detention on 6 January 2012 but has not since engaged in employment. He is addicted to prescription drugs, has psychological issues and complains of continuing back pain.

The expert evidence on liability

8. Mr Ian Burn, a consulting engineer, provided two expert reports to Mr Raad.

9. In the first, Mr Burn described the observations he made on 9 September 2011, about three months after Mr Raad was injured. Mr Burn’s observations were made on a wet day. He said that the tiles in the relevant area were “a 335 mm square textured surface glazed style of tile”. He referred to the area as a “near level surface finished using a glazed tile with marginal under foot wet friction characteristics and no effective surface drainage”. He said that there was a significant difference in “wet friction characteristics” between tiles in the relevant area that appeared to be older and those that appeared to be newer. Yet he also stated that “… the minimum acceptable pendulum test rating for the tiled surface provided would need to be class “W” or better”, but “the tiles would more than likely test equivalent to a class “Y” surface, and maybe a “X” surface for the newer tiles”. A table in the report explains that a class “Y” surface means that the tiles have a “high” contribution to the risk of slipping when wet and class “X” tiles have a “moderate” contribution. In contrast, class “W” tiles have a low contribution to the relevant risk. Although Mr Burn did not carry out testing to confirm these observations, his report indicates that, in his opinion, even the newer tiles provided inadequate friction in their untreated state. He concluded that “[t]he slip occurred due to there being inadequate underfoot friction when the tile surface was wet due to the presence of rain water lying there being unable to drain away”. He then referred to means by which the slip characteristics of the tiles could have been improved, including by application of an anti-slip treatment to the tiles’ surface.

10. When Mr Burn attended the area again on 26 November 2013, he observed that the tiles had been treated in the two years since his previous visit but that in significant areas the treatment had “worn away returning the surface back to the original condition”. He found that the tiles on which the treatment had worn away were “a high risk, verging on very high risk surface for pedestrians if wet whilst the treated surface is a moderate risk, almost low risk rated surface” (his emphasis). He did not distinguish between the newer and older tiles to which he had referred in his first report.

11. Dr John Cooke, a consultant architect, provided a report dated 23 October 2013 to the respondent. When he tested the tiles on 21 October 2013, he found that the dynamic coefficient of friction on tiles from which the anti-slip treatment had worn away was 0.24, whilst the tiles which remained coated had a reading of 0.40. He said that his test results were in accordance with Mr Burn’s opinion that the uncoated tiles had “marginal under foot wet friction characteristics”. By reference to a relevant standard, he described the uncoated tiles as “detectably slippery”, “marginally safe”, “safe for normal stride, pace and attention” and “non-slip with reasonable care” when wet with water. He concluded that “the uncoated tiles provide adequate slip resistance for pedestrians taking reasonable care under wet conditions”. He did not make the distinction between older and newer tiles made by Mr Burn in his first report.

12. In their joint report of 27 August 2015, Mr Burn and Dr Cooke concluded:

“We agree that, on the basis of Dr Cooke’s test results obtained under wet conditions (dynamic coefficient of friction 0.24) in accordance with AS/NZS 4663:2004 Slip resistance measurement of existing pedestrian surfaces, the uncoated tiles (as found) do not provide ‘adequate’ slip resistance (dynamic coefficient of friction below 0.35) as defined above, because the factor of safety is reduced by comparison with the factor of safety inherent in a surface with a dynamic coefficient of friction of 0.35. We agree that, by extrapolation from Table 1 of HB 197:1999, a surface with a dynamic coefficient of friction of 0.24 is described as ‘detectably slippery’, ‘marginally safe’, ‘safe for normal stride, pace and attention’ and ‘non-slip with reasonable care’. The coated surface, as found by Dr Cooke at the time of his inspection had a dynamic coefficient of friction of 0.4 when wet.”

13. Dr Cooke’s final comment recorded in the report was:

“If the tiles were coated, then excessive speed of movement was a contributing factor to the slip occurrence (because the dynamic coefficient of the treated surface was ‘non-slip’ for a pedestrian walking at normal stride and pace and paying moderate attention). If the tiles were uncoated (or the coating was worn off), then excessive speed of movement was a contributing factor because the uncoated surface was safe for normal stride, pace and attention.”

14. Neither expert was cross-examined.

The expert medical evidence

15. The relevant parts of a joint report prepared by Drs Giblin and Maxwell, orthopaedic surgeons, were in the following terms:

“1. Your diagnosis/findings on clinical examination.

Dr Giblin's diagnosis was a fractured T5 and possibly a minor fracture of the end plate of T3. The main finding on clinical examination was some tenderness in the upper thoracic spine to direct percussion. There was a slightly increased kyphosis and the rotation of the thoracic spine was minimal and asymmetrical and associated with the complaint of pain. There was no evidence of radiculopathy in the lower extremities.

Dr Maxwell's diagnosis was a mild fracture of T5. Dr Maxwell's examination showed paradoxical findings with modified pain behaviour suggestive of illness behavioural considerations. There was no radiculopathy. There was some boney soft tissue tenderness with a hyperactive pain response on palpation of all the spinous processes.

2. Your opinion as to the likely cause of any ongoing pain or limitations, Including any pre-existing conditions?

Dr Giblin - Residual sequellae of the combination of Scheuermann's disease and the fracture of T5 together with narcotic analgesic dependency. Acknowledgement of pre-existing Scheuermann's disease is noted.

Dr Maxwell - the likely cause of any ongoing symptoms and limitations is due to his pain perception which has been altered by prescribed addictive narcotic medication. I don't consider the underlying Scheuermann's changes in the thoracic spine are symptomatic.

3. Whether the Plaintiff’s injuries would have any effect on the Plaintiff’s capacity to work?

Dr Giblin views the organic injuries as having minimal effect on the capacity for work in terms of pre-existing work environments.

Dr Maxwell - views the Plaintiff’s injuries as having no effect on his capacity for work.”

16. A joint report prepared by three doctors who specialise in rehabilitation, Professor Richard Jones, Dr Winer and Dr Adler, was in the following terms:

“Question 1: Your diagnosis/findings on clinical examination?

Answer to Question 1.

There was consensus that Mr Raad has constitutional Scheuermann's disease affecting multiple thoracic vertebrae. This opinion is based on the radiology reports supplied to the experts.

There was consensus that there was an acute mechanical injury to the mid-to-upper thoracic spine.

Professor Jones was of the view that the fall would have caused soft tissue injury with the possibility of an aggravation of a pre-existing condition.

Dr Adler was of the opinion that it was probable that the compression deformities of T3 and T5 were aggravated at the time of that injury.

Dr Winer was of the opinion that the fall may have aggravated pre-existing wedge deformity due to Scheuermann's disease in T5 and T3.

Question 2: Your opinion as to the likely cause of any ongoing pain or limitations, including any pre-existing conditions?

Answer to Question 2:

There was consensus that the pain of any acute injury should have resolved within three to six months of the accident. Any continuing spinal pain could be associated with the pre-existing Scheuermann's disease, aggravated by psychological dysfunction.

Question 3: Whether the Plaintiff's injuries would have any effect on the Plaintiff's capacity to work?

Answer to Question 3.

There was consensus that this man does have symptomatic Scheuermann's disease. This is causing a reduction in his work fitness. Mr Raad would never be fit to return to his previous occupation as a labourer. He would have to be more selective in choice of employment, but there is a range of jobs which, with vocational rehabilitation assistance, he would be able to perform, commencing at 20 hours per week, gradually increasing to 30 hours per week, with the possibility of full-time employment. The above opinion is in relation to the Mr Raad's physical impairment.

Question 4: Whether the Plaintiff's injuries would have any effect on the Plaintiff's capacity to perform domestic duties around the home?

Answer to Question 4.

There was consensus that for up to three months from the time of the accident Mr Raad may have required domestic assistance of about an hour a day. At present, he would be capable of most domestic chores, but he would not be able to do heavier chores including lifting, which, in a standard-sized home, might equate to about three hours per month. This prescription is based upon the premise of preventing aggravation of his Scheuermann's disease.

Question 5: Whether or not there is a reasonable need for gratuitous care as a result of the accident? If yes, please comment as to whether the need for domestic care services would equate to more than six hours per week for six months or more?

Answer to Question 5.

There was consensus that there was a need for gratuitous care as a result of the accident. (See the answer to question 4). The need for domestic care services would not equate to more than six hours per week for six months or more.

Question 6: Whether the Plaintiff requires any treatment in the future and the nature, extent and cost of that treatment?

Answer to Question 6.

There was consensus that Mr Raad is in need of continuing psychological/psychiatric support and pain management.

Question 7: The Plaintiff's prognosis?

Answer to Question 7.

There was consensus that Mr Raad's prognosis will be determined by his psychiatric illness and Scheuermann's disease.”

17. Individual reports of each of these doctors were in evidence. None of the doctors was cross-examined.

The judgment at first instance

18. Based on Mr Burn’s observations some three months after the accident, the primary judge inferred that there was no non-slip coating on the subject tiles at the time of Mr Raad’s accident and, as it had been raining, that there would have been water lying on them. He noted that in their joint reports the experts had agreed that the tiles “could have been made safer, inter alia, by treating them to give them a non-slip surface”.

18. Although he found it “difficult to see how any testing carried out in October 2013 [by Dr Cooke] and subsequently in November 2013 when Mr Burn reinspected the site, can be of any assistance in determining the state of the tiles in June 2011” (at [40]), his Honour concluded:

“42   In my opinion, the Defendant breached its duty as an occupier by failing to ensure that the tiles were treated with a slip-resistant surface that was renewed from time to time. I am satisfied that the Defendant, alternatively, breached its duty by not ensuring that the tiles were replaced with tiles with a pronounced surface texture in circumstances where there was inadequate cross fall to enable water run off to occur. Although there was no precise measurement of the area covered by the tiles, I am satisfied that it was not so large an area that a cost of $100 per square metre was an unreasonably high cost as a response to the risk.”

20. His Honour found that Mr Raad was contributorily negligent in failing to adjust his pace after he took a number of steps on the tiles. His Honour reduced Mr Raad’s damages by 10%.

21. The primary judge described Mr Raad’s case on damages as follows:

“18   The Plaintiff claims that he suffered various injuries to his back, neck, legs, hips, arms and shoulders in the fall and said also that he had suffered a psychological injury. Despite the claimed psychological injury there was no evidence from a psychologist or a psychiatrist in the proceedings. That evidence is likely to have been useful also because, as will become clear, a number of the doctors considered that the Plaintiff had become addicted to Oxycontin and perhaps other narcotic drugs which have been prescribed for him. The doctors are of the view that he has developed a pain syndrome. It was an issue in the proceedings whether there is a causal connection between the accident and the pain syndrome.”

22. The primary judge reached the following conclusions in relation to damages for non-economic loss:

“87   I have already noted the absence of any evidence from psychologists or psychiatrists. Although the Plaintiff’s counsel submitted that there was no functional aspect to the Plaintiff’s complaints I am not sure that that submission is correct. I was certainly left with the impression of a strong functional overlay to many of the complaints. My view is strengthened by the apparent acceptance of the Plaintiff’s lawyers of a narcotic dependency, and an inference from the joint expert reports that he may be suffering from pain syndrome brought about by excessive consumption of narcotics such as Oxycontin and Endone. The difficulty is that, with no expert giving evidence about the matter, there is no evidence of a causal connection between that syndrome and the accident. The causation problem is highlighted by problems from the subsequent assault in the detention centre and from the fact that most of the experts consider that his Scheuermann's disease is now symptomatic and is likely to be a cause of his ongoing pain.

…

90   The rehabilitation experts agreed that the pain of any acute injury should have resolved within three to six months of the accident. Any continuing spinal pain would be associated with the pre-existing Scheuermann's disease aggravated by psychological dysfunction. The orthopaedic specialists thought that any ongoing pain or limitations came from the Scheuermann's disease and/or the Plaintiff’s narcotic analgesic dependency.

…

95   Neither the rehabilitation specialists nor the orthopaedic specialists relate the Plaintiff’s ongoing problems to the accident. Rather they consider that they are a sequelae of the Scheuermann's disease, of his narcotic dependency and of psychological/psychiatric issues not seemingly diagnosed.”

23. His Honour made the following findings regarding past economic loss:

“100   The rehabilitation experts were agreed that because of the Plaintiff’s symptomatic Scheuermann's disease he will never be fit to return to his previous occupation as a labourer. The doctors who examined him more contemporaneously to the accident considered that he was permanently unfit for heavy labouring work as a result of this symptomology at that time (Dr Giblin in June 2012 and Dr Winer in July 2012).

101   In the joint report Dr Giblin considered that the injuries suffered in the accident would have a minimal effect on his capacity for his pre-existing work. Dr Maxwell thought that the injuries had no effect on that work. Those conclusions should be considered alongside the conclusion of all of the rehabilitation experts that the pain and limitations from the accident should have resolved within three to six months of the accident. When those opinions are considered with the conclusions of Dr Giblin and Dr Adler in 2012 that heavy labouring jobs would aggravate the thoracic spine I conclude that the Plaintiff’s incapacity for his pre-existing work as a labourer should be regarded as having lasted for a 12 month period.”

24. His Honour indicated that he did not derive much, if any, assistance from Mr Raad’s evidence, having found it to be unreliable. On the contrary, he derived considerable assistance from surveillance evidence which to a considerable extent contradicted Mr Raad’s evidence of his continuing disabilities.

Consideration of the appeals on liability

25. In support of its cross-appeal, the respondent submitted that there was no satisfactory evidence of the state of the tiles at the time of Mr Raad’s accident because such testing as was done took place over two years after the accident. The result, the respondent submitted, was that there was no basis upon which the primary judge could have concluded that a reasonable person in the respondent’s position would have rendered the tiles less slippery by having a non-slip treatment applied to them.

26. In my view however, for the following reasons, the expert evidence established that the respondent breached its duty as occupier to exercise reasonable care so that its premises were safe for users exercising reasonable care for their own safety (see Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [45]). As the tiled area provided access between the shopping village and the car park, it was to be expected that all manner of people would be using it, including the young and the old, the attentive and the inattentive, and the hurried and unhurried. The camber of the tiled area and lack of covering over it meant that it was likely to be wet and have water pooled on it when it rained. The respondent should have anticipated that some people might run over the tiled area or at least proceed at above a normal walking pace, including at times when it was raining. As in Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103, “it was reasonably to be expected that users of [the] means of access would include those who were distracted or inattentive or even less than careful” (at [57] per Meagher JA). Mr Raad was one such person, and Meagher JA’s observations are equally applicable to the present case.

27. For the following reasons, the expert evidence to which I have referred established that there was a not insignificant risk that a person, such as Mr Raad, proceeding hurriedly over the tiled area whilst it was raining, might slip and fall.

28. All the tiles in the relevant area were uncoated when Mr Burn attended the site for his first inspection. There was no indication that any anti-slip treatment had been applied to them either before or after the accident. When Dr Cooke inspected the area approximately two years later, some of the tiles were bare. Apparently this was the result of non-slip treatment that was applied to the tiles after Mr Burn’s first inspection of the site having worn off. In these circumstances, it can readily be inferred that at the date of the accident the tiles were in a similar bare state to the bare tiles tested by Dr Cooke two years later.

29. The conclusions of the experts expressed in their joint report demonstrate that the safety of people walking on the untreated tiles in wet conditions was no more than borderline. The epithets they used were “detectably slippery”, “marginally safe”, “safe for normal stride, pace and attention” and “non-slip with reasonable care” ([12] above). Importantly, these observations were said to apply only to a person walking with a normal stride and at a normal pace, and paying normal attention. Dr Cooke emphasised this in his final comment noted in the report (see [13]).

30. In this context there was clearly a significant risk of slipping for those people who, in wet conditions, ran across the tiles, or moved at a faster than normal walking pace, or used a greater than normal stride. As I have indicated, the respondent should have anticipated that people would traverse the tiled area in this manner.

31. The present case is distinguishable from Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29. In that case, a pedestrian who was walking along a concrete footpath tripped and fell as a result of stepping on a part of the footpath that erosion had caused to subside. The pedestrian’s negligence action against the local council failed because the imperfection in the footpath was readily perceivable. The plurality distinguished the earlier High Court decision in Webb v South Australia (1982) 56 ALJR 912 on the basis that the defect in the footpath that caused the pedestrian to fall in that case was not able to be readily perceived (Ghantous at [163]). Likewise in Neindorf v Junkovic (2005) 80 ALJR 341; [2005] HCA 75, the majority of the High Court considered that the imperfection in the driveway upon which the respondent tripped was readily discernible. The position was otherwise in the present case because the slipperiness or otherwise of the subject tiles that resulted from their lack of coating (as distinct from their wetness) would not have been obvious to Mr Raad (or to a reasonable person in his position) before he attempted to traverse them.

32. In my opinion, the relevant risk was of such magnitude that a reasonable person in the respondent’s position would have responded to it by significantly reducing the risk of slippage. This could have been achieved by taking the relatively low cost step of treating the tiles with a non-slip product, or taking some equally effective other step.

33. The respondent also submitted that the primary judge erred when considering the issue of causation by applying a test of material contribution rather than the “but for” test for which s 5D(1)(a) of the Civil Liability Act 2002 (NSW) provides. Bearing in mind his Honour’s reference in this context to s 5D(1)(b), indicating his advertence to the requirements of s 5D(1), I am not convinced that his Honour should be understood to have applied an incorrect test. In any event this Court is in as good a position as his Honour was to form a view about this issue. I readily infer in light of the expert evidence that, as a matter of probabilities, Mr Raad’s accident would not have occurred if the respondent had treated the tiles with a non-slip product or taken one of the other steps to which the experts referred. The very point of treating the tiles would have been to prevent users of the tiled area slipping, including people running in wet conditions.

Contributory negligence

34. Whilst an occupier’s duty of care is, as I have noted in [26] above, appropriately framed by reference to “users exercising reasonable care for their own safety”, that limitation does not foreclose the possibility of a breach of duty occurring in relation to someone who has been contributorily negligent. As indicated in Dederer at [47], an occupier owes a duty to all users of its premises or (in that case) facility, whether or not the users take ordinary care for their own safety. The occupier owes the same obligation of reasonable care in respect of each user but “the extent of that obligation is to be measured against a duty whose scope took into account the exercise of reasonable care by [users] themselves”. As stated in Thompson v Woolworths (Q’land) Pty Limited (2005) 221 CLR 234; [2005] HCA 19 at [35] “the weight to be given to an expectation that the other will exercise reasonable care for his or her own safety is a matter of factual judgment”.

35. In the present case, the nature of the premises and the variety of foreseeable users (see [26] above) lead to the conclusion that a reasonable person in the respondent’s position needed to contemplate the possibility that particular users might be inattentive or careless. Such a person would have taken reasonable steps (which were available to the respondent) to reduce the significant risk of a person slipping and falling when the tiled area was wet, particularly if a person was travelling at a greater than normal pace. For the reasons I have given, there was thus a breach of duty. There was, however, also contributory negligence on Mr Raad’s part because he ran over a tiled area upon which water was pooling from the rain. Care for his own safety required a more cautious approach.

36. The assessment of the percentage deduction to be made for contributory negligence is a finding apportioning responsibility for an accident. It involves an evaluative judgment to which the principles in House v R (1936) 55 CLR 499; [1936] HCA 40 apply (see Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492 at 493-494). As in most cases, different views could be taken about the percentage deduction appropriate to the present case. In my view, the percentage adopted by the primary judge fell within the range of the percentages that were open to him. In these circumstances, and as no specific error in his approach has been established, the challenges to his Honour’s conclusion should be rejected.

Consideration of the damages appeal

37. Mr Raad submitted that, as a matter of principle, the consequences of a narcotic drug addiction acquired subsequent to actionable conduct of a defendant may be reflected in a plaintiff’s recoverable damages. This is undoubtedly correct but, as with all bodily or mental conditions in relation to which recovery is sought, the plaintiff must prove that the condition was caused by the actionable conduct. In the present case however, as the primary judge found, Mr Raad did not prove that his addiction was caused by the respondent’s breach of duty.

38. There was no medical evidence that explicitly attributed Mr Raad’s addiction to his slip and fall accident, nor was this Court referred to any evidence of Mr Raad that addressed the issue. Moreover there was no basis in the evidence for an inference of a relevant causal connection. For all that the evidence indicated, the addiction may have flowed from drugs Mr Raad was prescribed after he was assaulted whilst in detention (see [6] above), or from other circumstances. The evidence did not suggest that after his slip and fall accident, but prior to the assault, Mr Raad was prescribed more than 5 mg of Endone, to be taken once a day (see [5] above). Based on the conclusions in the joint rehabilitation experts’ report that any pain caused by Mr Raad’s injury from the accident should have resolved within three to six months, his accident should not have required him to take this apparently modest daily quantity of medication for very long. On the other hand, after being taken by ambulance to hospital following the assault on him, he was given morphine and prescribed other narcotic drugs (see [6] above). Whether Mr Raad’s addiction resulted from that treatment, or from that following his slip and fall accident, or from other circumstances, cannot be determined on the evidence. As to the possibility of other circumstances having been causative, I note that Mr Raad came to have psychological issues, including at least depression. No psychiatrist or psychologist gave evidence of the cause or causes of any such mental condition and their connection, if any, with Mr Raad’s drug addiction or with his slip and fall accident. There was not even any evidence of when the addiction commenced.

39. Furthermore, as the respondent pointed out, the parties framed questions for the two sets of medical experts to answer in their joint reports. The answers do not suggest any connection between Mr Raad’s drug addiction and his slip and fall accident. It was open to Mr Raad to have further questions asked of the experts at first instance to ensure that they addressed that matter, but he did not take that course.

40. Mr Raad’s second submission in support of his damages appeal was that the primary judge erred in not finding that Mr Raad’s Scheuermann’s disease was aggravated by his slip and fall accident.

41. This Court was not referred to any medical evidence, or indeed to any lay evidence from Mr Raad or anyone else, that suggested that such an aggravation occurred, other than, arguably, the contents of the rehabilitation experts’ joint report. In answer to Question 1 in that report, Professor Jones said that there was a “possibility” that such an aggravation had occurred and Dr Winer said that it “may have” occurred (see [16] above). The third doctor, Dr Adler, was recorded as saying that:

“It was probable that the compression deformities of T3 and T5 were aggravated at the time of [the slip and fall] injury.”

42. This record of Dr Adler’s opinion is insufficient to establish that the primary judge erred in excluding an aggravation of Mr Raad’s Scheuermann’s disease, resulting from the slip and fall accident, from his Honour’s assessment of damages. Dr Adler did not express a view as to the nature or extent, or consequences, of the aggravation. Further, the opinions of the other two doctors recorded in the joint report were of a much more tentative kind, not going so far as to indicate the probability of an aggravation having occurred. In any event, those two other opinions, being as brief as they were, also do not address the nature, extent or impact of any such aggravation. Importantly, the expert orthopaedic evidence also provided no support for Mr Raad’s submission on appeal.

43. In the course of the hearing in this Court, Mr Raad was given leave to supply references to medical evidence before the primary judge which he said supported his submission that his Scheuermann’s disease was aggravated by his slip and fall accident. Most of the references that were provided did not squarely raise the issue. Aside from references to the rehabilitation experts’ joint report cited in paragraph [16] above, the only other relevant evidence was the following passage in a report of Dr Walker, Consultant Neurologist:

“It is quite likely that Mr Raad’s spinal pain will worsen in the future and quite possibly has deteriorated since his original fall and that is on the basis of pre-existing spinal disease and possibly ongoing spinal disease given the comments about his Osteopenia. This deterioration however has nothing whatsoever to do with his original fractures” (emphasis added).

44. This evidence contradicts Mr Raad’s submission and is consistent with the opinion of the rehabilitation experts, set out in their joint report, that “[a]ny continuing spinal pain could be associated with the pre-existing Scheuermann’s disease, aggravated by psychological dysfunction” (see above at [16]).

45. For these reasons, Mr Raad’s challenges to the damages award should be rejected.

Orders

46. In light of my conclusions recorded above, both the appeal and the application for leave to cross-appeal should be dismissed. As both parties have failed in their challenges to the judgment below and the challenges of each party occupied similar amounts of time, there should be no order for costs of either the appeal or application for leave to cross-appeal.

47. SIMPSON JA: I agree with Macfarlan JA.

48. SACKVILLE AJA: I agree with Macfarlan JA.

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Decision last updated: 01 August 2017