Richardson v Kwentor Pty Ltd
[2001] WADC 184
•6 AUGUST 2001
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RICHARDSON -v- KWENTOR PTY LTD [2001] WADC 184
CORAM: DEANE DCJ
HEARD: 20-22 JUNE 2001
DELIVERED : 6 AUGUST 2001
FILE NO/S: CIV 3969 of 1999
BETWEEN: JOHN DAVID RICHARDSON
Plaintiff
AND
KWENTOR PTY LTD
Defendant
Catchwords:
Occupiers liability - Cafe - Alleged slippery and/or greasy floor in kitchen area - Delivery driver alleging slip and fall while delivering foodstuff - Whether floor area slippery and/or greasy - Whether defendant took sufficient care to clean floor and ensure it grease free and safe to walk on - Whether defendant negligent
Personal injury - Alleged sacroiliac joint problem - Degree of alleged incapacity - Whether plaintiff has failed to mitigate loss
Legislation:
Occupiers Liability Act 1985, s 2
Result:
Plaintiff's claim dismissed
Damages not assessed
Representation:
Counsel:
Plaintiff: Mr T N Cullity
Defendant: Mr J R Criddle
Solicitors:
Plaintiff: Trewen Norman & Co
Defendant: J R Criddle
Case(s) referred to in judgment(s):
Hackshaw v Shaw (1984) A Tort Rep 80‑312
Phillis & Anor v Daly (1989) A Tort Rep 80‑324
Case(s) also cited:
Shoeys Pty Ltd v Allan (1991) A Tort Rep 81-104
White v Action Food Barns (WA) Pty Ltd (1989-1990) 6 SR (WA) 62
DEANE DCJ: In this action the plaintiff claims damages from the defendant for injuries allegedly suffered by the plaintiff on 10 August 1998 at the defendant's business premises. The defendant is an incorporated company which carries on a restaurant and takeaway food business, called Café Messina, which is located in the Midland Gate Shopping Centre. At the time in question it is alleged and not challenged that the defendant was the occupier of those premises within the meaning of s 2 of the Occupiers' Liability Act 1985 ("the Act"). The plaintiff alleges that on the day in question, when he was delivering food goods to the defendant's premises, he slipped on a floor area which was greasy and slippery and as a result the plaintiff claims that he sustained injuries. The plaintiff says that the accident was caused by the failure of the defendant and its servants or agents for whom the defendant was vicariously liable to take such care as in all the circumstances was reasonable to see that the plaintiff did not suffer injury or damage pursuant to the Act. Particulars of negligence include allegations that it:
(a)failed to take any or any adequate or necessary measures to ensure the floor surface was safe to be walked upon;
(b)allowed or permitted the floor to be and/or to become and/or to remain a greasy and slippery surface and thereby to be in an unsafe state or condition and by reason of that state and condition to be and/or to become and/or to remain a danger to the plaintiff who was walking on the floor;
(c)failed to display a sign warning of the greasy and slippery nature of the floor;
(d)failed to warn the plaintiff to proceed through the premises with caution;
(e)failed to remove or clean the grease from the floor so as to ensure that it was safe to walk on.
The injuries allegedly sustained by the plaintiff are particularised in par 6 of the statement of claim, but essentially it is said that the source of the plaintiff's pain to his back, right buttock, buttocks, right groin and right thigh to the knee as well as numbness to the right buttock and back of the right heel is a sacroiliac joint problem. Further, the plaintiff says that he suffers associated incontinence.
The defendant denies that it and/or its servants or agents failed to take reasonable care in the circumstances in order to ensure that the plaintiff did not suffer injury or damage. The defendant denies liability for the alleged accident and injury and further denies that the plaintiff is entitled to the relief sought or any relief. The defendant denies that the plaintiff's injuries have incapacitated him to the extent alleged or at all and further says that the plaintiff has failed to mitigate his loss by failing to undertake recommended treatment and failing to apply for work of a lighter nature and that of a courier driver.
The plaintiff's personal circumstances and the circumstances of the accident
The plaintiff is now 56 years of age, having been born on 14 April 1945. He has been married in excess of 38 years to his wife. They arrived in Australia from England approximately 20 years ago and since that time the plaintiff's wife has been employed at Princess Margaret Hospital. According to the plaintiff's evidence since arriving in Australia and until the time of his alleged injury he had been in employment consistently and had never experienced difficulty in finding employment. For some years he undertook a variety of jobs on a casual basis through an industrial personnel agency. In that capacity he worked as a security officer with the City of Perth, he delivered Coco Cola to various outlets, and for about 12 months he worked with the Navy on Garden Island. For almost 3 years during approximately 1995 and 1996 the plaintiff worked for a Perth management company laying turf and cutting grass. It was in this occupation that he obtained a forklift driver's qualification which was added to his A, B and Moped Class Driving Licences. Although it was hard physical labour, the plaintiff enjoyed this work but ultimately left the job as he felt his contribution was not being sufficiently recognised and remunerated. Further, he had an argument with one of the new persons in management. Prior to taking up the employment situation in which he was allegedly injured, the plaintiff worked for approximately 8½ years as a sales person at Veales. In that capacity he did a considerable amount of work in the country, selling items of machinery from catalogues. He considered that he was adept at and successful in this occupation as he increased the revenue of the company in that area of the business to a significant degree. Once again, although the plaintiff found that work rewarding, he left after a disagreement with the new manager.
After undergoing a full medical assessment by his general practitioner, Dr Koh, the plaintiff obtained employment with West Oz Food Distributors Pty Ltd ("West Oz") delivering small goods and frozen food items to various cafes and restaurants in the metropolitan area. He commenced this employment on Monday 3 August 1998. He was initially taken on for a probationary period and during the first week of his employment the plaintiff worked with the delivery driver whose round of deliveries he was to take over. Each day involved making deliveries to different premises where the plaintiff would either collect money on delivery or items delivered would be billed to the customer's account.
On 10 August 1998, someone from the plaintiff's employer's office phoned through an order for three boxes of different varieties of sausages to be delivered to Café Messina at the Midland Gate Shopping Centre. This was to be the last delivery of the day, although the plaintiff was unsure of the exact time he went to the defendant's premises. Dr Koh, the plaintiff's general practitioner whom the plaintiff consulted the following day, had a note that the alleged incident occurred at 4.00 pm. The plaintiff entered the details of the order into a hand held computer which he had in his van. That vehicle was, as I understand it, refrigerated in part which was where the various food items were kept. The plaintiff was to deliver three boxes containing sausages which it appeared were in a cured form. The boxes were approximately 3 feet long, 2 feet wide and 18 inches deep. Exhibit P2 shows an order for 14 x 2 kg packets of smoky cheese sausage, 9 x 2 kg packets of blanched sausages and 3 x 2 kg packets of chicken sausage blanched. As a result the plaintiff said on arrival at Café Messina he placed three boxes on a delivery trolley which he obtained from his van.
According to the plaintiff the total weight of the sausages to be delivered was somewhere between 50 and 60 kg. He was adamant that one box containing smoky cheese sausages was already sealed and bound with a form of tape which he thought was blue. That box weighed 20 kg. The remaining sausages were split between the two other boxes which were in an opened condition. The plaintiff was unable to say, relevant to the second and third boxes, exactly what their weights were, in the sense that he could not say that the second box weighed 18 kg and the third box weighed 14 kg.
He agreed that as he needed 9 x 2 kg packets of blanched sausages (18 kg in total) he could have either obtained that amount of sausage from cartons that were already opened in the van or he could have obtained a sealed 20 kg carton of that type of sausage and simply removed 1 x 2 kg packet of sausage to make up the 18 kg required. Relevant to the third carton, the plaintiff still needed to supply four additional 2 kg packets of smoky cheese sausage, so logically he agreed the third carton would have contained either 6 x 2 kg packets of sausage or 7 x 2 kg packets of sausage. The second and third cartons, however, whatever their contents, were not bound by strapping or tape of any sort.
Against the background of this description the plaintiff said it did not matter which particular carton was placed on the top of the stack of cartons of sausage or on the bottom of the stack of cartons of sausage on the trolley. He considered that the weight differential between the three boxes as described by him was not of any significance. His belief was that the heaviest sealed carton of 20 kg of sausage was on the top of the stack of cartons on the trolley and that there was no difficulty in that carton crushing the contents of the cartons beneath it.
Once the plaintiff had placed the three boxes of sausage on the trolley he went to the service entrance at the back of the café. He said he was unable to make his way through the corridor leading into the café where he was to deliver sausage because the alleyway going into the café was blocked on either side by drums and bags of produce. According to the plaintiff he picked up the sealed 20 kg box of sausage and held it by its straps at about waist height. He walked on the cardboard and said that as he stepped off the cardboard onto the kitchen floor tiles he did the splits and twisted. In more detail the plaintiff explained that his right leg went forward from under him and his left leg went slightly to his left and this occurred at the same time he twisted. He was unsure whether his left leg was on the cardboard at the time but was adamant that his right foot and leg was on the tiled kitchen floor. The plaintiff's evidence was that this event happened in a split second and he dropped the box of sausage, landing over it and placing his hands on it which effectively broke the plaintiff's fall and prevented him from going to the ground completely. He was wearing shoes he described as trainers which had been recently purchased.
The plaintiff was unsure as to precisely what was in the immediate vicinity at the time he says he slipped and fell, but he recalls seeing a cooking range like a deep fryer in the vicinity on the left hand side. He also recalled seeing some stainless steel benches. In addition, the plaintiff said there was cardboard on the floor in front of some stainless steel sinks and that cardboard extended all the way down to the kitchen cool room. With reference to a photograph, Exhibit P1B, the plaintiff said his foot slipped two tiles back from a drain area depicted in that photograph. He disagreed that the cardboard in the corridor leading into the kitchen area stopped at the point where the tiled floor area started and claimed that the cardboard in the corridor extended to 2 feet beyond the front of the cool room depicted in the photographs that were tendered in evidence.
Importantly, when the plaintiff was asked what caused him to slip and fall in the way he described, he said that he surmised there was something on the floor or it was greasy because it felt to the plaintiff as though there was grease or oil or something of that nature on the floor. He said when he stood up, having done the splits as he described it, the floor beneath him appeared to have a sort of sheen on it, although he was unsure if it was the tiles themselves which had a sheen on them, as they appeared to reflect. The plaintiff did not attempt to identify what, if anything, caused him to slip in the manner alleged. He did not give evidence for example that he bent down and felt or more closely inspected the floor in order to see if there was any foreign material on it. There is no evidence that the plaintiff saw any article of debris on the floor that caused him to slip as alleged. There is no evidence that the plaintiff checked the sole or soles of his shoes in order to see if there was some foreign substance on his footwear that could have caused him to slip.
According to the plaintiff there was no‑one in the kitchen at the exact time he slipped and fell. He then proceeded to take the 20 kg box of sausages up to the cool room area. It was according to his evidence that at this point a male and female appeared. The plaintiff did not see where these persons came from, but described them as being Asian in appearance or certainly small framed and middle aged. He said these two persons took the box of sausage and placed it in the cool room. After this the plaintiff made two more trips to collect the remaining two boxes of sausage and these persons also put away those items. It would not seem that in making the two latter trips to collect boxes of sausage the plaintiff had any difficulty in negotiating the floor area of the kitchen. The plaintiff was clear and quite definite in his evidence that he said to these two persons words to the effect of "Your floor's a mess" or "Your floor's slippy" and "I've just slipped on that". The plaintiff's evidence in chief was that in response these two persons just laughed. The fact that these two people laughed or smiled in that way struck the plaintiff as peculiar. The plaintiff's evidence was that neither of these two people said anything to him and he gained the impression that they did not understand what he was saying to them.
When the plaintiff slipped he said he felt a sharp stabbing pain in his back and then a bit of pain around his groin but he did not think very much of it at the time. He also said that at the time he felt a wet spot, being a reference to incontinence, but at the time he again thought nothing of it. Having made these remarks to the two persons he said were present, the plaintiff then proceeded to go to the counter area in the restaurant part of the premises in order to have the invoice for the goods signed and to collect payment for the goods. That invoice, Exhibit P2, was signed by the proprietor of the premises, Mr Scibilia, who was present at the counter. The plaintiff made no complaint to Mr Scibilia about slipping in the kitchen and explained this by saying that he had already told other people in the kitchen about what had happened and furthermore he didn't consider the matter serious. Moreover he said in cross‑examination that as it was not his premises the plaintiff should not be concerned that other people might slip in the same manner.
The plaintiff then returned to his work place and gave evidence that in the course of conversation with his supervisor, whom he believed was called David Aspen, he informed him that he had slipped at a café but did not think the matter was serious. Mr Aspen was not called to give evidence at trial. The weight to be attached to this aspect of the evidence is not substantial in my view because in a letter dated 17 August 1998 from the plaintiff's employer West Oz, the Managing Director confirmed that not only had the plaintiff's employment with that firm been terminated on Monday 10 August 1998, but further nobody in the company had any knowledge of the plaintiff's injury, and therefore liability for the plaintiff's claim was not accepted. Although the plaintiff's claim for compensation was initially refused by his employer, in September 1998 the claim was accepted by their insurer.
That evening the plaintiff said that he returned home and was experiencing a dull ache in his back. He went to bed fairly early as it was his custom to rise early each morning in order to go to work. During the course of the night the plaintiff said he awoke two or three times and when he finally rose at about 4.30 am to prepare for work, he was in agony due to the pain on the right side of his back near his waist. As a result the plaintiff was unable to go to work and left a message to this effect on his employer's answering machine. Later that morning the plaintiff attended his general practitioner, Dr Koh, who certified the plaintiff unfit for work for three days. That same day the plaintiff telephoned his employer West Oz to advise them of his incapacity and was informed that his employment with them had been terminated. On 12 August the plaintiff received a letter from them, dated 10 August 1998, Exhibit P3B, confirming the termination of the plaintiff's position with them during the probationary period due to the plaintiff's unsuitability for the position of van sales person.
The plaintiff says that due to his ongoing pain state he has been unable to work since the date of the alleged accident. Dr Koh has prescribed both physiotherapy and hydrotherapy in the past but neither treatment has had any positive effect. Dr Koh referred the plaintiff to Dr Ng, a rheumatologist, who administered an injection but this also failed to relieve the plaintiff's pain state. Although the plaintiff initially attempted to control his pain by taking Panadol and one Panadeine Forte tablet every second day, he says that his level of pain has now increased to the point where he is taking between four and six Panadeine Forte tablets per day. In addition the plaintiff has attended Mr Stoke who referred the plaintiff to Dr Graziotti for pain management. The plaintiff said that although Dr Graziotti administered five or six injections to him they did not assist in relieving his pain state.
The plaintiff's recollection was that the insurance company sent him to see Mr McCallum who advised that a specialised form of physiotherapy may well assist the plaintiff to recover. He explained that he did not pursue this advice initially because he thought the insurance company would arrange it and it was only comparatively recently on a review by Mr McCallum that the plaintiff began having this physiotherapy, mainly because Mr McCallum became very angry with the plaintiff when he learnt he had done nothing about undergoing the treatment. According to the plaintiff this physiotherapy has resulted in some progress in his recovery over the past month but he is still in pain.
The plaintiff gave evidence that as a result of the pain from his injuries his lifestyle and emotional wellbeing have been adversely affected. He has suffered depression, for which Dr Koh prescribed Prothiaden in May 1999, but this antidepressant medication was changed to Luvox in February 2000. The plaintiff currently takes half a Luvox tablet per night. In addition, the plaintiff says that his condition has caused him to feel frustrated which in turn has led to strain on the relationship between the plaintiff and his wife and some difficulty in the plaintiff being able to enjoy the company of his grandchildren. The plaintiff says he can no longer carry out certain household tasks such as painting and lawn‑mowing, nor is he able to engage in his former hobby of woodwork and making clocks. After sitting for about 10 minutes or so he begins to experience pain in his right buttock and right knee which in turn radiates to his right foot. As a result of these physical restrictions he is no longer able to enjoy as active a social life which formerly involved frequent fishing and crabbing trips as well as going out dancing with friends.
The plaintiff also complains that after the alleged accident (it is not entirely clear when the problem first manifested itself) he began to experience a need to urinate, to the point where as I understand his evidence, the problem has now become very intrusive. His evidence was that although he thought nothing about it initially, on questioning by Mr McCallum in about August of 1999 the plaintiff mentioned the problem to him.
The plaintiff gave evidence that he would like to return to some form of employment, providing he makes a recovery and his pain state is alleviated. To this end in the past he has had significant contact with Work Focus who have been concerned with the plaintiff's rehabilitation. A number of reports covering the period September 1998 to August 2000 were tendered in evidence as Exhibit P16(A)‑(Q). Initially it was considered that the plaintiff had a reasonable likelihood of obtaining new employment within approximately three to four months. He was assessed as requiring a vocational rehabilitation programme involving a vocational assessment, a work trial and supported job search assistance. Based on the plaintiff's experience and skills, a range of jobs such as sales assistant, motor vehicle parts interpreter or store person were suggested and discussed with him. In the end the plaintiff agreed to consider occupations of sales representative, parking inspector or security officer. In November 1998 the plaintiff indicated that his preference was to work in an outdoor occupation and a view was formed that he presented as extremely negative regarding his prospects of obtaining alternative employment.
In January 1999 the plaintiff informed a case manager at Work Focus that as he had received no relief of his symptoms from treatment administered by Dr Ng, he felt unable at the time to consider a return to the work force. The plaintiff indicated he would only consider undertaking sales representative work as a last resort because he had concerns regarding pressure associated with the job, his lack of recent experience in the field and his perceived inability to cope with the physical demands of such a job. In late March 1999 the plaintiff advised Work Focus that he was not willing to undertake a work trial as a security officer at Protective Services International, Hamersley, because he felt physically unable to do the work due to his symptoms and his need to undertake treatment by a pain management specialist.
In a report of 30 June 1999 Work Focus advised that on 21 April 1999 during telephone contact, Dr Koh indicated he was supportive of the plaintiff undertaking a work trial but felt it would be difficult to implement due to the plaintiff's reported constancy of pain and negative attitude towards his ability to participate in such a trial. The plaintiff informed Work Focus at this time that he did not believe it was worthwhile for him to participate in a work trial until he had completely exhausted his medical treatment options. These options included undergoing six months of conservative exercise therapy with Mr Ponchard, a physiotherapist. During this time the plaintiff advised that he would be unable to participate in a work trial. As a result Work Focus recommended closure of the plaintiff's file. Despite this, they later agreed to review the plaintiff's ability to participate in vocational rehabilitation after further medical investigation of the plaintiff. There was some difficulty in achieving this aim as according to a report of 11 February 2000, the plaintiff had not responded to a request to contact Work Focus.
At a meeting with the plaintiff and Dr Koh on 23 February 2000, the Work Focus consultant was advised by Dr Koh that he did not believe that further vocational rehabilitation services were appropriate given the plaintiff's perceived chronic pain and physical limitations and shortly thereafter Dr Koh confirmed he was not supportive of further vocational rehabilitation services being extended to the plaintiff. In August 2000 the plaintiff informed Work Focus that he would require a taxi to attend any appointments relevant to his vocational assessment and that he wished his wife to accompany him to such appointments, and further that he would be unable to spend more than one hour in attendance due to an increase in his symptoms.
A vocational assessment of the plaintiff carried out on 16 August 2000 indicated that there were a range of issues negatively impacting upon the likelihood of the plaintiff returning to the work force. Following this the plaintiff's file was closed.
The plaintiff's wife recalled in her evidence that on 10 August 1998 he returned home at about 7.30 pm and indicated he thought he had pulled a muscle when a slipped in a café. The next morning she said her husband was in great pain and was unable to go to work. Mrs Richardson's perception of her husband's behaviour since his alleged accident is that he has become moody, depressed and frustrated. She said that he experiences some difficulty in sleeping and is unable to carry out home maintenance. Their social life is now restricted, as the plaintiff can sit for only limited periods of time before experiencing discomfort. Her evidence was that the plaintiff's incontinence manifested itself approximately six months after the accident in question.
Mr Farrell is a close friend of the plaintiff whom he has known for approximately 45 years. His evidence was that since the accident the plaintiff, no longer enjoys recreational activities such as fishing or dancing, although Mr Farrell and the plaintiff still continue to have social contact. The plaintiff, until November 2000, used to drive 81 km to Bindoon where Mr Farrell was living in order to visit with him on weekends approximately once or twice per month.
Other evidence as to the circumstances of the accident
As has been previously noted on 10 August 1998 Mr Scibilia, the proprietor of Café Messina, and a director of the defendant, was on the premises. As the proprietor of that business Mr Scibilia works long hours there between Monday and Saturday each week and is as a result very familiar with the layout of the premises. He explained the details of the configuration of the kitchen with reference to a plan, Exhibit P20, as well as a number of photographs, Exhibit D3 and D4. He explained that there was a corridor leading to the kitchen service entrance which has a concrete floor and then once one arrives at the kitchen entry proper the flooring consists of ceramic tiles. As one proceeds down the left side of the kitchen there is a dishwasher, next to which is a double sink against the wall. Next to the sink is a bench where dishes are stacked prior to being washed. Next to that area is a small room with a fridge in it. On the right, opposite the dishwasher and sink area is a food preparation bench area where salads, sandwiches and cold meats (as distinct from hot food) are prepared. This layout is clearly illustrated in the photographs previously mentioned as well as the photograph Exhibit D5.
On the other side of the food preparation bench running parallel to it, is a cooking area containing a stove, burners and two deep fryers. This cooking area is separate and distinct from the dishwasher, washing up and food preparation area as can readily be seen by reference to Exhibit P20. With reference to the plaintiff's evidence it is apparent that he claims he slipped in the tiled area between the sink and dishwasher and cold food preparation bench.
In August of 1998 Mr Scibilia employed four staff in the kitchen area of his business. Mr Tresca was the full time cook working between 6.00 am and 4.00 pm daily. A part time cook, who was unnamed, assisted Mr Tresca between 11.30 am and approximately 2.00‑3.00 pm daily. In addition there was a full time kitchen hand, Mrs Vujcich, whose working hours at the relevant time were 8.00 am to 4.30 pm or 5.00 pm daily. In August of 1998 Mrs Vujcich assisted with food preparation, washing up and general cleaning in the kitchen area. She was assisted by a part‑time kitchen hand, who was also unnamed and who worked similar hours to the part‑time cook.
Mr Scibilia's evidence was that deliveries to his business were made through the back service entrance of the shop up the corridor, past the dishwasher and to the cool room or fridge beyond that. On average between four and six deliveries from different suppliers are made daily. Mr Scibilia gave evidence, which was largely unchallenged, that the tiled floor of the kitchen area is cleaned each evening after the kitchen closes or ceases taking orders, which occurs at some time between 4.00‑4.30 pm. The actual shopping centre in which the Café Messina is located closed at 5.30 pm. He said that each evening at the relevant time being August 1998, the kitchen floor was washed by Mrs Vujcich with water containing a degreaser and swept with a broom. His recollection was that this process was repeated a couple of times with water and he conceded that the process could not occur until cooking had finished for the day. During the day the procedure was that staff were supplied with a mop to mop up any spills that were noted on the kitchen floor. Mr Scibilia also conceded that keeping the kitchen floor in pristine condition throughout the course of a busy day was not always easy and it could become messy. His own experience was that he had never known there to be grease on the floor leading from the service entrance to the cool room and he considered this would be unlikely because it is a food preparation area as distinct from a cooking area. It was the case sometimes that the dishwasher could leak water onto the floor near it.
At the relevant time in August 1998 (and it appears currently) there was a piece or pieces of cardboard about 2‑3 metres long and a metre or so wide on the tiled floor area in front of the dishwasher and two sinks. Mr Scibilia understood that the cardboard was placed there because of water being splashed in the area. Originally rubber mats had been used in the area but they were replaced by cardboard because staff were inclined to trip on the mats. He explained with reference to photograph Exhibit D1 that at the relevant time there was also some cardboard on the floor in the passageway leading up to the doorway into the tiled kitchen area.
Mr Scibilia was firm in his evidence that on 10 August 1998 he was never advised by a delivery driver that they had slipped on the kitchen floor of his premises nor did any of his staff report such a matter to him. It was approximately 4‑6 weeks later that Mr Scibilia first learnt of the plaintiff's allegation when he received a visit from an insurance assessor who advised him that a claim had been made. On questioning his staff Mr Scibilia was informed by them that none of them knew anything of the alleged accident. Approximately 14 months later, in October 1999, a writ of summons relevant to these proceedings was served on Mr Scibilia and in turn he notified his insurance company of the claim. In the circumstances it is not surprising that in the liability claim form, Exhibit P19, Mr Scibilia was unable to state the time of the alleged accident.
Mr Tresca, the full time cook, gave evidence that he was on duty at Café Messina on 10 August 1998. Between 3.00 and 4.00 pm each day, just before he leaves work, it was Mr Tresca's habit to prepare trays of lasagne for consumption by customers the following day.
It may well be that on the day in question Mr Tresca was at the premises but not in the kitchen area at the time of the alleged accident. His evidence was however that on that day he was not aware of any incident involving a delivery driver and he only became aware of the plaintiff's allegation approximately three or four weeks later when his employer, Mr Scibilia, questioned him as to whether he had any knowledge of the incident. It was Mr Tresca's clear evidence that if he had been told of any such incident by a delivery driver then he would have taken that person to his employer, Mr Scibilia, and informed his employer what had occurred or what Mr Tresca had been told.
Mrs Vujcich had been working at the Café Messina for approximately two months prior to the incident in issue. According to the work time sheets, Exhibit D6, on 10 August 1998 Mrs Vujcich worked between 8.00 am and 5.00 pm. In August of 1998 she said it was part of her duties to wash the tiled kitchen floor, which she did at approximately 5.00 or 5.30 pm each day. The procedure that she adopted was that she would fill a bucket with water and splash the floor down with soap. She would then wash the floor with a broom and sweep the excess water into a drain in the kitchen floor. The floor would then be washed again with a non‑slip product and again a broom would be used to scrub the floor to remove excess water. The floor would be dry by the following morning. She herself had never experienced any difficulty walking on or slipping on the kitchen floor at Café Messina.
An interesting aspect of Mrs Vujcich's evidence, and one which I accept, is that prior to obtaining employment at Café Messina she worked at Swan Districts Hospital for 25 years as a result of which she was very conscious of industrial safety issues in the work place.
Mrs Vujcich also gave very firm evidence that on 10 August 1998 she was not told by anyone that they had slipped on the kitchen floor. She said if she had been given such information the first thing she would do would be to report it to Mr Scibilia, and further that if such an incident occurred and was reported to her she would certainly recall it. In addition, she said that if she was informed by someone that the kitchen floor was messy and this had caused the person to slip on it, Mrs Vujcich would not only clean up any mess that existed but she would also enquire of that person whether they were injured. It was not until some time after August 1998 that Mrs Vujcich learnt of the plaintiff's allegation.
Mr Liubicich, a driver for Attadale Seafoods between 1996 and November 1998, gave evidence that he made almost daily deliveries Monday to Friday of each week to Café Messina during that period. He would deliver frozen food goods to the Café after placing them on the trolley and taking them to either the freezer or cool room in the kitchen. It is certainly the case that Mr Liubicich was not present at Café Messina at the time of the accident alleged by the plaintiff and so he could give no evidence about the state of the kitchen floor at the relevant time. He was able to say however, given his familiarity with the premises, that he had frequently walked in the area where the plaintiff says he slipped and that in his view the kitchen floor was always in good and acceptable condition, as he never had any problems maintaining his footing on it.
The medical evidence
On 11 August 1998 the plaintiff's general practitioner Dr Koh, took a history that was generally consistent with the plaintiff's description of the alleged accident. At that time the plaintiff presented with a complaint of severe low back pain and severe tenderness on the right sacroiliac joint. He also reported being painful in all movements. On this basis Dr Koh made a diagnosis of back sprain due to twisting and prescribed anti‑inflammatory medication. His initial prognosis was positive in that he believed that there was a good chance the plaintiff would make a full recovery. There was a slight discrepancy between Dr Koh's note on his first medical certificate of 11 August and his clinical notes. In the medical certificate he noted that the plaintiff was carrying 20 kg of sausages when he slipped on a greasy floor, whereas in his clinical notes he remarked that the plaintiff twisted his back while lifting 20 kg of sausages and he slipped on a greasy floor.
Dr Koh certified the plaintiff fit for light duties including driving for short distances on 29 August but by 15 October he determined that the plaintiff was unfit for work, although he could not recall if he carried out a physical examination on that date. He did however refer the plaintiff to Dr Ng, a rheumatologist, who in essence agreed with Dr Koh's diagnosis. By November of 1998 Dr Koh was of the opinion that the plaintiff was fit to participate in a work trial but he was unable to recall the details of the trial. On 29 August 1998 when Dr Koh certified the plaintiff fit for light duties, his recollection was that the plaintiff had asked him to sign the plaintiff off workers' compensation because the plaintiff had been sacked by his employer and was working part‑time as a driver. It is somewhat difficult to reconcile this evidence because the plaintiff did not give evidence to this effect and it would appear to be the case on the remainder of the evidence that the plaintiff has not worked since 10 August 1998.
Dr Koh's current prognosis in his report of 19 June 2001 is negative, in that he does not anticipate that the plaintiff will be able to work in the foreseeable future due to his pain levels and restricted movement. In August 1999 Dr Koh saw no point in encouraging the plaintiff to undergo the form of physiotherapy recommended by Dr McCallum and indeed in his report of 19 June 2001 Dr Koh seemed to understand that the plaintiff was not undergoing physiotherapy at that time.
Dr Koh's evidence was that as far as he could recall the plaintiff had never made any mention to him of experiencing bladder problems and if he had done so Dr Koh would have made a note of it. Further, the plaintiff made no mention to Dr Koh of experiencing any form of incontinence when the plaintiff allegedly slipped at the defendant's premises.
Mr Stokes, a neurologist, reviewed the plaintiff on 19 February 2001 and noted that an MRI scan showed no fresh lesions in the lumbar spine. In addition little could be seen with respect to disc protrusion at the L4‑5 level. As the plaintiff was complaining of pain in the sacroiliac joint area Mr Stokes considered it would be more appropriate for him to be reviewed and treated by an orthopaedic specialist, which was why Mr McCallum became involved in the matter.
In a report of 10 August 1999, Mr McCallum noted that the plaintiff's pain came from a malalignment of the right sacroiliac joint and he guessed that the plaintiff was suffering what he described as a right down slip. In evidence Mr McCallum agreed that such a diagnosis is not widely recognised by orthopaedic surgeons in Western Australia. During the course of his evidence, in order to explain his diagnosis more clearly, Mr McCallum referred to a plastic model of the sacroiliac area and a number of diagrams relevant to this part of the body.
At that consultation the plaintiff informed Mr McCallum that he was suffering incontinence and urinating between 10 and 15 times during the day and 4‑5 times at night. He was informed however, according to his recollection, that the plaintiff suffered no incontinence at the time of slipping on the floor. Mr McCallum believed that even if a sacroiliac block, of the type performed by Dr Graziotti, went right into the joint and this did not provide relief for the patient, his diagnosis remained appropriate as he considered that pain could be coming from the ligaments and capsular structure around the joint.
It was also Mr McCallum's belief that the plaintiff's incontinence difficulties could be improved by exercises which were directed at strengthening the pelvic floor. He also considered that the plaintiff's other condition could be hopefully addressed by a specific form of physiotherapy treatment. Mr McCallum recommended that the plaintiff undergo such treatment a considerable time ago, but, for reasons previously referred to in the plaintiff's evidence, he has only recently begun to engage in the treatment. Although such treatment, in Mr McCallum's view, should produce beneficial results he considered they would not be so significant as to allow the plaintiff to return to his pre‑accident occupation. Currently he considers that the plaintiff's complaints of pain in his right buttock, right groin and down his right leg into the sole of his foot are consistent with his diagnosis and result in the plaintiff having no real work capacity at this point in time.
Mr Edibam, an orthopaedic surgeon, was called by the defendant and gave evidence de benne esse on 11 June 2001. In a report of 4 June 1999 Mr Edibam indicated he took a history from the plaintiff and followed this with a physical examination. He was not entirely certain, but he believed that as the plaintiff was tender over the right sacroiliac joint that he may have experienced minor stress in that region. The difficulty with that diagnosis according to Mr Edibam was that the plaintiff's x‑rays did not appear abnormal as one might expect with such a diagnosis. Even if the plaintiff had suffered a mild sacroiliac joint strain or sprain, Mr Edibam considered that recovery would occur within a few weeks. For this reason he was unable to explain the persistence of the symptoms described by the plaintiff, particularly as there was no clinical condition apparent which would give rise to an inflammation of the sacroiliac joint. At the time of that report Mr Edibam believed the plaintiff was fit to carry out light sales work.
When Mr Edibam reviewed the plaintiff again in October 2000, he was informed by him that there had been no improvement in the plaintiff's condition as he still suffered from right sided low back pain over his right sacroiliac area with pain radiating to his right leg, right knee and right heel. Mr Edibam could not say that the plaintiff was not in pain nor could he state that the plaintiff was exaggerating his symptoms. Nonetheless, it was his opinion that the plaintiff's ongoing symptomatology was more likely due to factors other than any underlying pathology and that the plaintiff was still able to do what he described as a desk job. The plaintiff's prognosis for recovery in his opinion depended on his response to further treatment of the type recommended by Mr McCallum. The plaintiff never complained to Mr Edibam of incontinence.
Mr Ker, a consultant physician in rehabilitation medicine, prepared two reports of 9 May 2000, Exhibit P10A and 20 March 2001, Exhibit P10B, in relation to the plaintiff. Given the plaintiff's age Mr Ker saw nothing significant in the results of the MRI scan, which showed some abnormality to the L4‑5 intervertebral disc and some localised disc desiccation changes.
Whilst Mr Ker was of the view it was difficult to determine the precise cause of the plaintiff's pain, he was prepared to accept that the concept of referred pain from joints to other parts of the body was not uncommon when one was dealing with the spine or sacroiliac region. However this was not a conclusive diagnosis and furthermore his personal view was that sacroiliac conditions are extraordinarily frequently over‑diagnosed in the medical profession. On the two physical examinations that he conducted with the plaintiff Mr Ker found no evidence of abnormality in the sacroiliac joint.
In May 2000 Mr Ker was pessimistic concerning the possibility that the plaintiff would return to the work force due to his limited work training, his complaints of pain and the fact that he had not worked at that time for approximately 18 months. He was not told of any bladder difficulties during that consultation. He maintained a similarly pessimistic view when he reviewed the plaintiff in March 2001, because the plaintiff reported no improvement and continued to complain of pain. Other than commenting that the plaintiff should be referred to a urologist regarding his complaints of frequency nocturia Mr Ker was not prepared to comment in detail on the issue of the plaintiff's incontinence. It was his advice that the plaintiff should continue with his current medications although he considered physical therapy would be of limited use.
The plaintiff also consulted Dr Graziotti, an anaesthetist sub‑specialising in pain management. On his initial examination in April 1999, Dr Graziotti, noted tenderness over the right sacroiliac joint and buttock as well as the right lumbo sacral area. This pain radiated through the posterior thigh to the right knee. Dr Graziotti attempted to identify the source of the plaintiff's painful stimulus by undertaking a series of diagnostic injections and anaesthetising various structures in the plaintiff's spine. He found neither the sacroiliac joint, the facet joints nor the relevant disc lining were causing any significant pain. Therefore he concluded that the plaintiff's pain was ligamentous and muscular in origin, although it was not possible to identify which particular ligament was causing the pain. In the light of this he recommended an exercise and massage programme under Dr Ponchard. On that same examination he found the plaintiff's straight leg raising to be 90 degrees and his Waddell signs to be negative, which meant in his view that the plaintiff was not exaggerating his symptoms. The neurological examination was normal and at that time Dr Graziotti felt that the plaintiff was capable of working in a sedentary, or even a mildly non‑sedentary occupation such as that of a security officer, taxi driver, sales assistant or hospital orderly.
In the end result Dr Graziotti's diagnosis of the plaintiff's condition was that it was basically a common back strain which can be (and usually) is treated by way of an exercise and massage programme. In Dr Graziotti's experience injuries of this nature usually resolve over a period of weeks or in an extreme case over a period of some months.
Video surveillance film of the plaintiff
Some short video surveillance film of the plaintiff, Exhibit D2, which is about six minutes in duration was taken on both 15 and 16 September 2000. The film shows the plaintiff moving about in what appears to be an area of a shopping centre. Although the plaintiff appears to move with relatively apparent ease, dragging his leg very slightly and moving slowly, I do not believe that the surveillance film assists the Court to say anything meaningful about the plaintiff's physical condition or his pain state. The film is very short in duration and does not show the plaintiff performing any particularly difficult or unusual physical actions. In my view it neither confirms nor contradicts in a significant way any of the evidence before the Court and in that sense it is best described as neutral. A number of the medical practitioners who gave evidence viewed the film and were asked to comment on its contents, but I do not consider that their evidence in this regard assists in resolving questions as to the plaintiff's current physical condition or capacity for work.
Relevant legal principles
Section 5(1) of the Act states that:
"the care which an occupier of premises is required by reason of the occupational control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except insofar as he is entitled to and does extend, restrict, or modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger."
Further s 5(4) specifies:
"Without restricting the generality of sub‑section (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to ‑
(a)the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)the nature of the premises;
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;
(e)the age of the person entering the premises;
(f)the ability of the person entering the premises to appreciate the danger; and
(g)the burden on the occupier of eliminating the danger or protecting the persons entering the premises from the danger as compared to the risk of the danger to the person."
By reason of s 4 of the Act the above provisions:
"shall have effect, in place of the rules of the common law, for the purpose of determining the care which an occupier of premises is required, by reason of the occupation or control of the premises, to show towards a person entering in the premises in respect of dangers ‑
(a)to that person; or
(b)to any property brought onto the premises by, and remaining on the premises in the possession and control of, that person, whether it is owned by that person or by any other person,
which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier of the premises is by law responsible."
By s 10 of the Act, the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 applies to claims made under the Act.
There is no doubt that the defendant owed the plaintiff a duty of care, as the defendant was the occupier of a shop or premises into which members of the public ventured. The duty of care owed was high but it is reasonable care as the defendant was the occupier of the premises and not an insurer.
It is the case whilst the plaintiff was not a customer he was nonetheless a member of the public entering the defendant's premises in order to deliver particular items. For this reason I take the view that the same general principle or duty of care applies in this case namely "to do what a reasonable man would, in the circumstances do by way of response to the foreseeable risks"; Hackshaw v Shaw (1984) A Tort Rep 80‑312 at 68, 135.
It is necessary to examine and consider the individual circumstances of each case in order to determine what the duty in the particular circumstances is or might be, taking into account the risk from which damage allegedly flowed to the plaintiff. Depending on the answer to that question it is then necessary to decide what precisely a defendant should have done and did not do in relation to that particular duty; Phillis & Anor v Daly (1989) A Tort Rep 80‑324 at 68, 467.
In the circumstances of this case relevant to the pleadings it is said that there was a duty of care imposed upon the defendant to prevent grease or oil falling on the floor area of the kitchen and to ensure that if this did happen then such material was not permitted to remain on the floor so that it presented a danger to any person who may be walking on the floor. As I understand it, it is alleged that duty also encompassed the requirement that persons using the floor be warned that due to the nature of the floor they needed to proceed with caution.
From a practical perspective in the circumstances of this case, I consider that an occupier of premises in the defendant's position would not reasonably be expected to prevent material ever being dropped in areas of the kitchen floor which foreseeably would be used, by not only staff working in the kitchen, but by persons delivering goods to the premises via the kitchen area. Equally, an occupier of premises in the defendant's position could not in my view be reasonably expected to move or make arrangements in every instance, for the immediate removal of any material which might find its way onto the kitchen floor. In the circumstances, however, one would expect that a system would be put in place by the defendant whereby some form of routine inspection and cleaning of the relevant kitchen floor areas occurred at appropriate times and on a daily basis. It would also be reasonable to expect that if material was dropped onto the kitchen floor at any time during the course of the working day, and it came to the notice of staff working in the kitchen, that they would report this immediately or more practically (and perhaps effectively) that staff members working in the kitchen would take prompt action to remove the offending material and clean the area in question.
As the plaintiff bears the onus of proof he must satisfy this court on the balance of probabilities that the state of the kitchen floor constituted a danger to those using or walking upon it and it was this that caused the plaintiff's accident. Further, it must be demonstrated that if the floor was in a state which constituted a danger then that was the result of some form of negligence on the part of the defendant. In the end the evidence must establish what caused the plaintiff to allegedly slip on the floor (if that is found to be the case) before moving to a consideration of the issue of whether there was any negligence on the part of the defendant.
Findings on the evidence
There is no question that on 10 August 1998 the defendant was the occupier of Café Messina within the meaning of s 2 of the Act. There is also no question that at approximately 4.00 pm on that day the plaintiff attended the premises in order to deliver some food stuffs. I find that the plaintiff entered the kitchen area in order to make that delivery. Mr Scibilia was also obviously present at the café on that occasion as is evidenced by his signature on Exhibit P2. On the uncontradicted evidence, Mr Scibilia was not present in the kitchen area at the relevant time and nor were Mr Tresca or Mrs Vujcich who, given that this was prior to the time that they ceased work on that day, may well have been elsewhere on the premises. The two part‑time staff were not present because on the evidence they finished work for the day well prior to 4.00 pm and no doubt had gone home or at the very least left the premises. There were no other staff present at the relevant time as far as I am able to determine on the evidence.
This last finding is significant because the plaintiff was adamant in his evidence that a very short time after he allegedly slipped on the kitchen floor he reported this fact and complained about the state of the floor to a man and a woman whom he described in general terms in his evidence. If the plaintiff's evidence on this point is accepted then the only reasonable inference is that both these people were employed by Mr Scibilia and were familiar with the kitchen and delivery procedures because according to the plaintiff these two people proceeded to pick up the boxes of sausages and store them away. I do not accept that either of the two people to whom the complainant asserts he spoke in the kitchen area were either Mr Tresca or Mrs Vujcich. I find this to be the case for a number of reasons. The most compelling of these reasons is that I found each of these two witnesses to be reliable and credible in the giving of their evidence. Both of them were very clear that on the day in question no‑one, including a delivery driver, reported slipping on the kitchen floor to them or complained about the state of the kitchen floor. I accept their evidence that if such a complaint had been made to them they would have informed Mr Scibilia immediately and that Mrs Vujcich would have cleaned up any suspect slippery area and that she also would have taken the person making the complaint to her employer, Mr Scibilia. Of less importance perhaps, but still of relevance, is the fact that the broad general description given by the plaintiff of the two persons in question does not fit either Mr Tresca or Mrs Vujcich. Although English is not the first language of either witness, in my view their comprehension of English and their ability to express themselves in the English language was most satisfactory. They are not persons who would fail to understand a complaint of the nature alleged if it was made to them and in the light of their evidence I consider that they certainly would not have reacted to such a complaint by laughing or smiling and doing nothing further in response.
I further consider if the plaintiff had slipped and injured himself in the manner alleged, that he would not have failed to make this fact known to Mr Scibilia when he had him sign the invoice, Exhibit D2. The plaintiff impressed me as a strong minded individual and not the type of person to let a matter of this nature rest, particularly if he was of the view that the persons to whom he had made an earlier complaint before seeing Mr Scibilia, appeared to react in not only a peculiar manner but a manner which clearly suggested that they did not readily comprehend what the plaintiff said to them. The plaintiff's explanation for failing to say anything to Mr Scibilia is in my opinion quite implausible in the circumstances.
I therefore find that the plaintiff has failed to satisfy the Court on the balance of probabilities that he slipped and fell on the tiled kitchen floor at the premises of the defendant on 10 August 1998. Even if there had been a finding that the plaintiff slipped and fell in the manner alleged and at the time and place alleged, it would still be necessary to consider whether the accident was caused by a breach of the duty of care owed by the defendant to the plaintiff.
In the circumstances of this case the defendant is not in a position to give evidence as to the state of the floor at the time of the alleged accident because it is common ground that Mr Scibilia was not told about it at the relevant time and I have found that no other staff member, including Mr Tresca or Mrs Vujcich, had a complaint made to them at the relevant time. For this reason the defendant has been placed in a position of calling evidence as to the general state of the kitchen floor and the system in place for monitoring the state of the floor on a daily basis as well as the system in place for cleaning the kitchen floor. There is no acceptable evidence that on the occasion in question the relevant portion of the kitchen floor was slippery by means of grease or oil (or indeed anything else constituting a hazard) being on the floor surface. It should be noted in any event that the pleadings specifically refer to a greasy and slippery surface. It is not pleaded that the surface was slippery by means of water leaking onto it and being allowed to remain there, or as a result of the juxtaposition of cardboard on the tiled surface of the kitchen floor.
Further, there is no evidence that the plaintiff attempted in any way to identify the substance that allegedly caused the floor to present a danger which in turn caused him to slip. For this reason there is no real evidence and certainly no substantial evidence as to the state of the floor in the sense of what, if anything, was on the surface of the floor that could be said to render it greasy and slippery and as a result present a hazard to those using the floor.
The evidence of Mr Scibilia, Mr Tresca, and in particular Mrs Vujcich, as to the monitoring of the state of the kitchen floor on a daily basis and the cleaning system in place on a daily basis leads me to conclude that in the circumstances all reasonable care was taken by the defendant and the staff at Café Messina to keep and maintain the kitchen floor in the type of condition whereby injury to persons entering the kitchen area of the premises would be prevented insofar as was reasonable and foreseeable. As a result of my finding on the evidence that the kitchen floor was always kept in a reasonably clean condition it was therefore not in a state where one would expect a person walking upon the floor surface to slip. For this reason, in my view, the defendant was not negligent in failing to display a sign warning of the greasy and slippery nature of the floor or for failing to warn the plaintiff to proceed through the premises with caution. On the evidence I consider that the defendant took all adequate and necessary measures to ensure that the floor surface of the kitchen was safe to be walked upon and as a result for the purposes of this matter the defendant is not negligent as I do not find that the defendant in any way allowed or permitted the floor to be or become greasy and slippery or remain so. The floor was therefore not in an unsafe state or condition and as a result it did not present or remain a danger to the plaintiff on 10 August 1998. There was no failure to clean or remove grease from the floor on the occasion in question, as the evidence simply does not establish that there was any grease on the floor area in question in the first instance at the relevant time.
In view of the above finding I do not consider it necessary to comment in any detail as to findings on the medical evidence. Although there has been a finding that the plaintiff did not slip on the kitchen floor of the defendant's premises in the manner and on the occasion alleged, that is not to say that the plaintiff does not have some form of injury. It is not for the tribunal of fact in this case to speculate as to precisely how or when any injury that might have been sustained may have occurred. It is noted however, that on 11 August 1998, the plaintiff did attend his general practitioner, Dr Koh, and complain of certain symptoms. Thereafter the plaintiff attended a range of medical practitioners and continued to complain of symptoms which according to the plaintiff have failed to resolve.
On all of the medical evidence it seems the plaintiff has suffered a form of back sprain or back strain. There is insufficient evidence in my view to permit a finding that the incontinence of which the plaintiff complains is necessarily linked to the back sprain or strain. The weight of the medical evidence on my assessment does not support a diagnosis of dysfunction of the sacroiliac joint and related ligamentous structures and associated urinary incontinence in any event.
Given the previous findings on the evidence I do not regard it as appropriate in this decision to make any comment or finding in relation to the plaintiff's capacity for work, the degree of any incapacity that may exist or on the issue of whether or not the plaintiff has failed to mitigate his loss. It follows as a matter of logic that again it would be totally inappropriate in the light of the findings to make any comment upon or assessment in relation to the issue of assessment of damages as this is now irrelevant in the context of this trial.
Conclusion
For the reasons expressed the plaintiff's claim is dismissed.
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