Robinson v The Owners of Reflections Waterfront Apartments West Tower Strata Plan 58085
[2016] WADC 22
•18 MARCH 2016
ROBINSON -v- THE OWNERS OF REFLECTIONS WATERFRONT APARTMENTS WEST TOWER STRATA PLAN 58085 [2016] WADC 22
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 22 | |
| Case No: | CIV:3438/2014 | 30 NOVEMBER & 1-4 DECEMBER 2015 | |
| Coram: | STONE DCJ | 18/03/16 | |
| PERTH | |||
| 26 | Judgment Part: | 1 of 1 | |
| Result: | The plaintiff's claim dismissed | ||
| PDF Version |
| Parties: | ELAINE CHRISTINA ROBINSON THE OWNERS OF REFLECTIONS WATERFRONT APARTMENTS WEST TOWER STRATA PLAN 58085 |
Catchwords: | Personal injuries Negligence Duty of care Whether reasonable care taken Lost evidence Assessment of damages |
Legislation: | Civil Liability Act 2002 (WA), s 5B, s 5C, s 5C, s 5D, s 9(2), s 10A, s 12 Occupiers' Liability Act 1985 (WA) s 5 |
Case References: | Medlin v State Government Insurance Commission (1995) 182 CLR 1 R v Edwards (2009) 83 ALJR 717 Strong v Woolworths Ltd (2012) 246 CLR 182 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
THE OWNERS OF REFLECTIONS WATERFRONT APARTMENTS WEST TOWER STRATA PLAN 58085
Defendant
Catchwords:
Personal injuries - Negligence - Duty of care - Whether reasonable care taken - Lost evidence - Assessment of damages
Legislation:
Civil Liability Act 2002 (WA), s 5B, s 5C, s 5C, s 5D, s 9(2), s 10A, s 12
Occupiers' Liability Act 1985 (WA) s 5
Result:
The plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff : Mr B F Stokes
Defendant : Mr D R Clyne
Solicitors:
Plaintiff : Brians Solicitors
Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
Medlin v State Government Insurance Commission (1995) 182 CLR 1
R v Edwards (2009) 83 ALJR 717
Strong v Woolworths Ltd (2012) 246 CLR 182
- STONE DCJ:
Introduction
1 The plaintiff, Ms Elaine Robinson was a registered proprietor and resident of a strata titled unit in The Reflections Waterfront Apartments West Tower in Terrace Road, East Perth (the West Tower). The defendant, The Owners of Reflections Waterfront Apartments West Tower Strata Plan 58085 was the strata company for the West Tower.
2 On 18 February 2012 Ms Robinson slipped over and fell on the tiled surface of the ground level common area walkway outside the front entry glass doors of the West Tower (the West Tower walkway) and injured her right shoulder by colliding with the wall of a brick garden bed. As a result of the fall Ms Robinson suffered a displaced fracture of her right upper arm.
3 Ms Robinson alleges she slipped on a stain on the common area and her injury was caused by the negligence of the defendant. She claimed that the defendant was responsible for cleaning the common area where she fell and injured her shoulder. She alleges the defendant owed her a duty of care to take reasonable precautionary steps by inspection and cleaning to avoid such foreseeable harm to her.
4 The defendant denies negligence and alleges there was no breach of duty by it as the system of cleaning was appropriate. The defendant disputes the time, place and circumstances of Ms Robinson's slip and fall and whether some other more rigorous system of cleaning and inspection, if in place, would have avoided her injury.
5 The quantum of the claim made by Ms Robinson was also in issue.
The premises
6 The West Tower is a 24-storey tower of 72 strata titled residential units at 100 Terrace Road, East Perth. Opposite the block of units is The Reflections Waterfront Apartments East Tower at 98 Terrace Road (the East Tower) which mirrors the West Tower. There is a public access easement over Burt Way which is between the two buildings. Pedestrians use the West Tower walkway and the East Tower walkway as a short cut to access Adelaide Terrace from Terrace Road and Burt Way via the staircase at the end of Burt Way and towards the rear of the two buildings.
The time, place and circumstances of Ms Robinson's fall and injury
7 Ms Robinson was born on 21 December 1944. She has three adult children. She had been a licensed settlement agent for the past 35 - 40 years. She retired in 2014.
8 Ms Robinson resided in the West Tower from 2009 to 2013. Her former de facto partner, Mr Thomas resided with her until they separated in November 2011. She was the secretary of the elected council of owners of the West Tower from November 2010 until November 2011.
9 A few days prior to 18 February 2012 Ms Robinson arranged with her daughter, Mrs Chafin to spend the weekend with her daughter and grandchildren at their home in Yanchep. It usually took between 40 minutes and an hour to drive to Yanchep from her unit.
10 On the morning of 18 February 2012 Ms Robinson put food into a picnic carry bag and packed clothing into another bag in preparation for her trip to Yanchep. At about 8.30 am she moved her car from the underground carpark to a car bay near the ground floor entrance to the West Tower. It was easier to manage her bags and she did not have to go through any doors. She then returned to her unit. Between 11.00 am and 11.30 am she left her unit for her journey. She had her handbag over her right shoulder, the picnic bag in her right hand and the clothing bag in her left hand. She was wearing rubber sole sandals.
11 Ms Robinson,
walked downstairs … through the glass doors, turned right and made a few steps and then [her] right foot slipped from under her … [she] turned anticlockwise and hit the raised brick garden bed with [her] right shoulder. [She] ended up on the floor with two of the bags under [her] right leg. [She] was right up against the garden wall and [her] back and [her] right leg (were) up against the wall … .
12 When she tried to get up she felt a lot of pain in her shoulder. Whilst she was sitting on the ground an unknown man helped her to her feet. When she got to her feet she 'looked to see what had made [her] slip … and [she] saw the stain'. She had not seen the stain when she exited the glass doors and turned right and 'there was nothing to alert [her] that there might be hazards'. The man then walked her to her car and assisted her with her bags.
13 Ms Robinson drove her car using her left arm to Craven's Pharmacy on Hay Street, Perth. The pharmacist, Mr Cao gave her some painkillers and a sling for her injured right shoulder. When a friend, Ms Butt-Major walked into the pharmacy she offered to take Ms Robinson to another friend, Sonia in London Court who could take her to Royal Perth Hospital Emergency Department. In the meantime, at about 12.30 pm Ms Robinson was telephoned by her daughter enquiring as to her whereabouts. Ms Butt-Major then walked her to London Court where she met Sonia at her dressmaking shop. Ms Robinson and Sonia walked back to her car parked outside Craven's Pharmacy. Ms Robinson had forgotten to pay Craven's Pharmacy for the painkillers and the sling. She did that at 2.48 pm before Sonia drove her to Royal Perth Hospital Emergency Department. Ms Robinson waited about 30 - 40 minutes at the main section of the Emergency Department before she was directed to the triage unit. Over half an hour later she was seen by a doctor who arranged an X-ray. The doctor told her she broke her right humerus, she gave her a script for pain medication and a disc of the X-ray to give to the Royal Perth Hospital orthopaedic surgeon on 21 February 2012. Sonia drove her to a chemist in Albany Highway for the painkiller script and then home to Ms Robinson's unit. Later that night Ms Robinson was visited by a friend, Ms Jones who assisted her to get ready for bed. She had a sleepless night because of the pain.
14 On the morning of 19 February 2012 Mr Thomas visited Ms Robinson. He arrived around 8.00 am to 8.30 am. They subsequently went to the West Tower walkway where he filmed with his mobile phone the stain (a dark grey patch on a grey tile) where she fell.
15 The time, place and circumstances of Ms Robinson's fall and injury were in issue. It was not in dispute that as a result of her fall Ms Robinson suffered a displaced fracture of her right upper arm.
16 I am satisfied that Ms Robinson slipped and fell on the West Tower walkway on 18 February 2012 sometime between 11.00 am and 12.00 pm and injured her right shoulder from the evidence as follows.
1. Ms Robinson's evidence as to the timeframe when she left her unit for the journey to Yanchep; the location and description of her fall and right shoulder injury; her attendances thereafter at Craven's Pharmacy for pain medication, London Court to arrange for a friend to drive her to hospital, Craven's Pharmacy to collect her car and pay for the pain medication, and Royal Perth Hospital Emergency Department for treatment of her injury. Ms Robinson's evidence about her movements and communications was supported by other witnesses who saw her on that day, the telephone records of herself and Mrs Chafin, the receipt from Craven's Pharmacy at 2.48 pm on 18 February 2012 for pain medication and the medical evidence.
2. Mr Michael Cao's evidence that he was the Craven's Pharmacy pharmacist who attended to Ms Robinson on 18 February 2012 by providing a sling to immobilize her injured arm and painkillers. He assumed she arrived around midday because she was not there early in his shift which commenced at 8.30 am and she was not there close to closing at 5.00pm. She was in the pharmacy for more than half an hour. He vaguely recalled Ms Robinson's friend speaking with her.
3. Mrs Lally Butt-Major's evidence that at about 12.15 pm on 18 February 2012 she saw her friend Ms Robinson sitting on a chair in Craven's Pharmacy with her arm in a sling. She went into the pharmacy and spoke with her. She then walked with Ms Robinson to London Court so that their friend Sonia could take Ms Robinson to Royal Perth Hospital.
4. Mrs Michelle Chafin's evidence that she was expecting her mother, Ms Robinson to arrive at her home in Yanchep at around lunchtime on 18 February 2012. At 12:21 pm she called her mother because she had not arrived. She became aware that her mother was injured and in pain. Between 12.21 pm and 5.22 pm she called her mother a number of times to find out how she was. Ms Chafin's evidence was supported by the telephone records of herself and Ms Robinson.
5. Ms Anna Cavlovic's evidence that she was in the foyer of the West Tower on 18 February 2012 between 1.00 pm and 1.50 pm awaiting a delivery of goods for a function in the common room.
6. Ms Christine Jones' evidence that when she saw Ms Robinson on the evening of 18 February 2012 she was in agony because of her arm.
7. Dr Benjamin Hewitt's evidence that he attended to Ms Robinson's arm injury on 20 February 2012 and thereafter.
The CCTV cameras and the lost CCTV footage
17 There was no CCTV footage of Ms Robinson's slip and fall. However, this did not deter her counsel from taking up time during the trial to explore with various witnesses for how long the video data on the CCTV hard drive was retained and the difficulty Ms Robinson had with the CCTV reception on the TV in her unit.
18 Mr Kimberley Hay, a resident of the West Tower and a member of its council of owners, gave evidence that there were CCTV cameras on each side of the entrance at the front of the building. The camera facing towards the river 'basically looks directly down to the footpath and the garden bed and (one) can actually see … down towards Terrace Road. It has a good field of vision'. He was only able to go back a maximum of 14 days when he tried to retrieve old CCTV camera vision. He was aware that Ms Robinson was having difficulty with the reception of the CCTV camera vision on her TV in her unit but that was an internal matter not a strata common-area responsibility. He had no recollection of the cameras at the front of the building not working. Mr Hay's evidence was confirmed by the West Tower Apartment Manual which stated 'this video data is only retained for two weeks after which it will be erased'.
19 Ms Robinson maintained the West Tower's building and maintenance supervisor, Mr Turibaka told her in December 2011 the CCTV footage was retained for 30 days. She was unaware the Apartment Manual stated it was retained for two weeks before being erased.
20 Ms Immacolata Ielati, a resident of the East Tower and a member of its council of owners, gave evidence that on an occasion she had been involved in retrieving video data that was nearly five weeks old from the East Tower CCTV facility.
21 In late February 2012 Ms Robinson saw her solicitor, Mr Stokes and instructed him to write to the strata manager of the West Tower. On 7 March 2012 he gave written notice of her claim. On 28 March 2012 Mr Stokes wrote on her behalf to the defendant's insurance company providing details of the accident and noting that 'as it occurred just outside the Burt Way entrance to the building I'm sure her fall was captured on CCTV within your control'.
22 No attempt was made by Ms Robinson or her solicitor to request the defendant or others, to retrieve and retain the CCTV footage within 14 days or 30 days of her slip and fall on 18 February 2012. There was no evidence as to whether Ms Robinson or her solicitor made a request for the CCTV footage after that period of time.
23 In my view the lost CCTV footage evidence 'serves neither to undermine nor to support' Ms Robinson's case or the defendant's case: R v Edwards (2009) 83 ALJR 717 [33].
The system of cleaning in late 2011 and early 2012
24 Mr Stephen Carey had a carpet cleaning business for 34 years. He had known Ms Robinson for 25 years. He had done cleaning for her businesses over the years. In 2010, as a result of Ms Robinson's recommendation, Mr Carey commenced cleaning the West Tower at a cost of $45,000 per annum.
25 Mr Carey gave evidence that he worked 7 days per week between the hours of 7.00 am and 10.00 to 10.30 am. He inspected and cleaned daily. He cleaned the common areas including the perimeter of the building, Burt Way, the areas around the swimming pool, the lobbies on each floor, the West Tower walkway and the glass front entry doors. He cleaned the whole area of any debris and mopped any spillage. The West Tower walkway rubbish which included drink bottles, beer bottles, half eaten food, confectionary papers and cigarette butts differed daily from a quarter 'black garbage bag' to a half garbage bag. The wind blew rubbish from the East Tower 'over to (his) side'. He used a string mop and bucket for spillage and a blower vac, 'if it got that bad' to blow small leaves and dust. He mopped the walkway 'mostly when required' on average four times per week. He was supervised on a daily basis for about half an hour by Mr Turibaka. Every morning between 7.00 am and 7.30 am he would see Mr Hay after Mr Hay had collected his newspaper from the lobby. On occasions in very late 2011/early 2012 he would see Mr Hay inspecting the West Tower walkway, the lawn areas and the stairs for 10 to 15 minutes. In January 2012 he received a letter of termination of his cleaning contract.
26 Mr Jovanco Aleksoski was a cleaning contractor. He had been in the cleaning industry for 15 to 20 years. He had been in his parents' cleaning business, Impex for the past six years. Impex only cleaned large residential complexes which ranged from 30 or 40 apartments to 200 apartments.
27 Impex started to clean the East Tower a couple of years before it started to clean the West Tower in February 2012. Impex tendered for the West Tower cleaning contract at $57,376.26 per annum.
28 Mr Aleksoski explained that the West Tower had two cleaners for the weekdays and his parents were the cleaners on the weekend. The West Tower weekdays cleaners also cleaned the East Tower on weekdays and weekends. They worked from Monday to Friday for three hours each from about 9.00 am to 12.00 pm after they had finished at the East Tower. The West Tower weekdays cleaning included all external common areas and the West Tower walkway. His parents cleaned the West Tower internal area on Saturday for two hours and checked the lobby on Sunday for half an hour (which increased to two hours after the second contract). The two East Tower weekend cleaners cleaned only the internal areas for two hours on Saturday and two hours on Sunday.
29 Mr Aleksoski estimated that no more than 45 minutes would be spent collecting leaves and rubbish from the West Tower walkway and around the front of the building.
30 Mr Aleksoski explained the tender for the weekdays in the West Tower contract was the same as the tender for the weekdays in the East Tower contract but the weekends were negotiated differently.
31 Mr Hay confirmed Mr Carey's evidence of his daily routine in 2011 and 2012. Around 6.00am each morning he would go down to the front of the West Tower to collect his newspaper and 'out of habit [he] also [had] a good look around the adjacent area … to make sure the premises are in order'. It was his recollection that Mr Carey cleaned at least five and a half days. He was satisfied with the standard of cleaning provided by Impex. Whilst he has been on the council of owners he had not been aware of any people falling or being injured around the building.
32 Ms Ielati confirmed Mr Aleksoski's evidence that in early 2012 the cleaning on weekends for the East Tower common areas was only internal. If there was spillage or ice cream on the East Tower walkway she would email the cleaner, Mr Aleksoski for his cleaners to pay attention to it, 'but if it was just the odd bottle left around from people drinking we as councillors just picked it up ourselves and threw it in the bin'.
33 In early 2012 Ms Robinson observed on quite a few occasions on the West Tower walkway food and container rubbish, coffee spillage and water from the reticulation not functioning properly. She saw what Mr Carey was doing by way of cleaning the external common areas and spoke with him. She did not know what Impex did from 1 February 2012 because she never saw anyone outside cleaning. On 18 February 2012 she did not look at the litter.
Liability
Legal principles relevant to duty of care
34 The Occupiers' Liability Act 1985(WA) (OLA) and the Civil Liability Act 2002 (WA) (CLA) apply to Ms Robinson's claim.
35 Section 5 of the OLA relevantly provides:
(1) Subject to subsections (2) and (3) 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 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 in so far as he is entitled to and does extend, restrict, 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.
(2) …
(3) …
(4) Without restricting the generality of subsection (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; and
(b) the circumstances of the entry onto the premises; and
(c) the nature of the premises; and
(d) the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises; and
(e) the age of the person entering the premises; and
(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 person entering the premises from the danger as compared to the risk of the danger to the person.
(1) A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
37 Section 5C of the CLA provides:
(1) A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements -
(a) that the fault was a necessary condition of the occurrence of the harm (factual causation); and
(b) that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).
(2) In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) -
(a) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and
(b) whether and why the harm should be left to lie where it fell.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault -
(a) subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and
(b) evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor.
Onus of proof
38 Section 5D of the CLAprovides:
In determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
Findings
What factually caused Ms Robinson's fall and injury?
How did she fall?
Did she slip?
Was there a substance on the ground?
What was it?
How did it get there?
How long had it been there?
39 Ms Robinson has maintained in her evidence that she slipped and fell on a stain on the tiles of the West Tower walkway and that the stain was what was filmed the following day.
40 Whilst I am satisfied that Ms Robinson slipped and fell on the West Tower walkway sometime between 11.00 am and 12.00 pm on 18 February 2012 and injured her right shoulder I am not convinced that the stain depicted in the video footage taken on 19 February 2012 (exhibit L4) in the state in which it appeared, caused Ms Robinson's right foot to slip.
41 I am of the view that Ms Robinson was confused as to what she believed caused her to slip and fall having regard to the following evidence of the significant prior inconsistent statements she made about the nature of the stain itself, the evidence of her eyesight at the time and the other evidence that tended to suggest she was in a confused state at the time.
1. Ms Robinson's evidence that she saw nothing before her fall and observed a stained tile after the fall.
2. Ms Robinson's evidence that she did not know what the stain was. She had no idea of its composition. There was no evidence as to whether the stain was wet or dry.
3. Ms Robinson's evidence that she was in shock, pain and very stressed out after she slipped and fell.
4. Ms Robinson's evidence that her eyesight was not very good at the time. Prior to an eye operation on 11 July 2012 for two artificial retinas, Ms Robinson had blurry vision in both eyes. She required glasses for reading and driving. She had to watch what she was doing when going downstairs. She had no difficulty walking on a sloping surface but the vision was a little bit blurred around the edge.
5. Ms Robinson's evidence that she had returned to Craven's Pharmacy on the day of her fall and injury because she had forgotten to pay for her pain medication (and to collect her car).
6. Ms Robinson's evidence that she did not think to report her fall and injury because she was in pain and pre-occupied with doing too many other things.
7. Ms Robinson's evidence that on her instructions her solicitor wrote to the defendant on 7 March 2012 that the accident happened at '1.30 pm' and 'she fell over on slippery tiles'. The evidence established that the fall occurred between 11.00 am and 12.00 pm. There was no evidence that the tiles were slippery. Ms Robinson had walked that route on many occasions. There was no explanation by Ms Robinson for instructing her solicitor that the tiles were slippery.
8. Ms Robinson's evidence that on her instructions her solicitor wrote to the defendant's insurance company on 28 March 2012 '…The accident was not reported immediately or at all. My client didn't think of it. She was too busy attending Royal Perth Hospital Emergency Department …'.
9. Ms Robinson's evidence that on her instructions her solicitor wrote to the insurance company on 20 September 2012'… My client is not sure of precisely when she fell over but it may have been between 11 am and 12 noon … She attended the Emergency Ward about 1 pm. But the hospital's records will have the precise time … As to the fall, a patch of oil/grease upon which she slipped has been photographed …'. There was no evidence that Ms Robinson fell on a patch of oil or grease. There was no explanation by Ms Robinson for instructing her solicitor that she fell on a patch of oil or grease.
10. The Statement of Claim pleads that Ms Robinson 'slipped on a spill stain'. There was no evidence that the stain was a spill stain. There was no explanation by Ms Robinson for instructing her solicitor that the stain was a spill stain.
42 I do not regard as a relevant factor in determining Ms Robinson's belief as to what made her slip and fall, her confusion at the court viewing at the West Tower on 1 December 2015 when she indicated the wrong location of the stain (as described at ts 120). I accept Ms Robinson's evidence that the correct location of the stain was on the video footage of it taken on 19 February 2012, exhibit L4 (as described at ts 148) and as marked by her on the photograph taken three or four months ago, exhibit L9.
43 However, in the vicinity of the stain on the grey tile adjacent to the white tile identified by Ms Robinson as the stain upon which she slipped, there appear to be other 'stains' on three of the grey tiles. There was no evidence as to whether the other 'stains' on these three grey tiles were stains or something else. There was no evidence as to whether they had anything to do with the stain identified by Ms Robinson and, if so, were present on 18 February 2012. In the circumstances I am unable to draw any inferences in connection with the other 'stains' as to do so would involve speculation or guesswork.
44 There was no evidence of what the stain was or how it got on the tiles of the West Tower walkway. There was no evidence that the stain was slippery. However, I am satisfied from the cleaning evidence that the stain was on the tiles of the West Tower walkway from some time after the cleaning of the West Tower walkway on 17 February 2012 between 9.00 am and 12.00 pm until the filming of it on 19 February 2012 sometime after 8.00 to 8.30 am. It would have remained there until the cleaning of the West Tower walkway on 20 February 2012 between 9.00 am and 12.00 pm.
45 On the totality of the evidence it seems unlikely that the stain depicted in video footage of it taken on 19 February 2012, exhibit L4 in the state in which it appeared, whatever it was, caused Ms Robinson's right foot to slip. I accept the defendant's submission that 'the cause of the fall is purely speculative'.
46 Accordingly, I am not satisfied that Ms Robinson has established that she slipped and fell on something on the tiles of the West Tower walkway. I am not satisfied that Ms Robinson has established that the defendant caused or materially contributed to her fall and injury.
Was the system of cleaning appropriate?
Was the response to a foreseeable risk reasonable?
If a system of periodic inspection and cleaning of the West Tower walkway had occurred on the weekend would Ms Robinson's fall and injury have been minimised or avoided?
47 Ms Robinson gave evidence that she owned an apartment in Infinity Apartments in Adelaide Terrace, Perth prior to 2013. Infinity Apartments comprised 110 apartments on 22 floors and a café on the ground level. The cleaning expense was $55,000 per annum. In 2012 the external common areas including the front of the café were cleaned by one cleaner seven days per week from 9.00 am to 5.00 pm. Ms Robinson still owns an apartment in Condor in St Georges Terrace, Perth. Condor comprises 205 residential and commercial units. It is mainly residential but with two floors of commercial at the second floor and ground floor. At the Hay Street end there is a common area square. The cleaning expense was $96,000 per annum. In 2012 the common areas were cleaned by numerous rotating cleaners seven days per week from 9.00 am to 5.00 pm. Ms Robinson was the strata manager for Rise Apartments in Adelaide Terrace, Perth prior to August 2008. Rise Apartments comprised 78 units on 26 floors and a restaurant on the ground level. The cleaning expense was $68,000 per annum. The external common areas including the front of the restaurant, tiled area and waterfall were cleaned by an in-house owner and his helper seven days per week from 9.00 am to 5.00 pm.
48 In determining whether the system of cleaning employed by the defendant was appropriate at the relevant time, I found Ms Robinson's evidence of the cleaning regime for Infinity Apartments and Rise Apartments of no assistance because of the obvious need for daily cleaning of the common areas associated with their food outlets. I attached little weight to Ms Robinson's evidence concerning Condor as it comprised nearly three times as many residential and commercial units as the West Tower.
49 The only comparable system of cleaning was that provided by the evidence of Mr Aleksoski of the system of cleaning for the East Tower which was almost the same as that for the West Tower.
50 In my view, on the available evidence, the defendant's system of cleaning in place at the relevant time which involved a cleaning contractor for $57,376.26 per annum cleaning the common areas Mondays to Fridays between the hours of 9.00 am and 12.00 pm and regular inspections by an owner seven days a week was appropriate and reasonable. I have reached that finding having particular regard to 'the nature of the premises' (a 24-storey tower of 72 strata titled residential units built in 2009); 'the ability of (Ms Robinson) entering the premises to appreciate the danger' (Ms Robinson was an owner and resident of a unit, she was aware of the state of cleanliness of the West Tower walkway, the walkway was in plain view of the front entrance glass doors and the stain upon which she claimed she fell was a matter of metres from the front entrance glass doors on a grey tile adjacent to a white tile); and 'the burden on (the defendant) of eliminating the danger or protecting (Ms Robinson) entering the premises from the danger as compared to the risk of the danger to (Ms Robinson)'. I find there was no breach of duty by the defendant.
51 Ms Robinson 'was required to prove on the balance of probabilities that the defendant's negligence was a necessary condition of her harm. The defendant's negligence lay in its failure to employ a system for the periodic inspection and cleaning of (the West Tower walkway) area. Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred. Here (Ms Robinson) was required to prove that, had a system of periodic inspection and cleaning of (the West Tower walkway) been employed on the day of the fall, it is likely that (the stain or whatever it was) would have been detected and removed before she (exited the entrance to the West Tower.)': Strong v Woolworths Ltd (2012) 246 CLR 182 [32].
52 I accept the defendant's submission
that, determined prospectively, there was nothing to put the defendant on notice that the system of cleaning at the premises would create a foreseeable risk of harm. There is no evidence whatsoever to support the notion that a foreseeable risk existed.
53 In the circumstances of this case, when it was not known what, if anything Ms Robinson slipped on; what the constitution of the stain was and when it came to be there, it is difficult for Ms Robinson to establish whether a system of periodic inspection and cleaning of the West Tower walkway on weekends, had it been employed by the defendant, would have detected or removed the stain or whatever it was. I find that Ms Robinson has failed to establish that a different system of periodic inspection and cleaning of the West Tower walkway on weekends, had it been employed by the defendant, would have minimised or avoided her fall and injury.
54 Accordingly, I am satisfied Ms Robinson has failed to establish the defendant's negligence caused her injury and loss.
55 In the event that I am wrong about liability I have assessed Ms Robinson's damages as follows.
Assessment of damages
Loss of amenities –non-pecuniary loss
Ms Robinson's injuries and treatment
56 Dr Benjamin Hewitt has been Ms Robinson's orthopaedic surgeon since 20 February 2012.
57 On 23 February 2012 Ms Robinson underwent surgery for 'open reduction and internal fixation of a plate for the right proximal humerus'. She was hospitalised for two days. She was off work for seven weeks. She commenced physiotherapy eight weeks after the surgery. The physiotherapy made her sore.
58 On 23 October 2012 Ms Robinson underwent surgery for 'right shoulder manipulation under anaesthetic, excise of scar tissue and removal of the plate'. She was hospitalised for two days. She was off work for three weeks. She worked part-time for one week.
59 On 18 June 2013 Ms Robinson underwent surgery for 'reverse total right shoulder replacement'. She was hospitalised for three days. She was off work for one month.
60 On 12 September 2014 Ms Robinson underwent surgery for 'right shoulder acromioplasty, removal of scar tissue and manipulation under anaesthesia'. She was hospitalised for two days. She was off work for three weeks.
61 On 9 January 2015 Ms Robinson underwent surgery for 'left shoulder acromioplasty, excision of AC joint and repair of rotor cuff'. She was hospitalised for two days. She was off work for three weeks.
62 Dr Hewitt explained the connection between Ms Robinson's right shoulder problems and her left shoulder problems.
63 Ms Robinson had a lot of pre-existing degenerative change to her left shoulder, full thickness tears of the tendon which had been present for years, established arthritis in the acromioclavicular joint which had been present for years and general wear and tear. In Dr Hewitt's opinion:
For that two or three-year period where she was having ongoing procedures and surgery and rehabilitation with her right shoulder, through that whole period she would have been using her right shoulder at best at 50 per cent of her normal capacity, which would correspond to the range of movement. At times she would have been using it even less because she would have been in a sling for six weeks after just about every operation we did. So during that period of time it would be expected that she would use her left arm to do all her usual activities of daily living. So effectively she would have to become left hand dominant. And that may have under masked the pathologies in her left shoulder. (He didn't) think it's caused those pathologies. (He didn't) think it's created her tendon tears or caused her arthritis, but it would have made any pathology she had in her left shoulder more symptomatic.
- He also expressed the opinion that because 'she had done very badly with her shoulder replacement on the right hand side' it was unlikely she would undergo a shoulder replacement on her left shoulder.
64 Dr Hewitt explained under cross-examination that the left shoulder would have become symptomatic but it was impossible for him to tell whether or not it would have required surgery:
In this situation where she's right-hand dominant and (there's) been periods of time where she really hasn't been able to use it at all and she has had to load up her shoulder, (he thought) it is reasonable that it has exacerbated her symptoms but it hasn't caused the damage. The damage was there already.'
- Dr Hewitt agreed that Ms Robinson's attendance at Royal Perth Hospital on 11 October 2009 because of the fall on her left shoulder could potentially explain the damage he observed.
65 Dr Hewitt explained Ms Robinson's range of movement in her right shoulder when he last examined her on 14 September 2015:
She would have about half the range of movement in her right shoulder as a normal-functioning shoulder would have … overall she's got somewhere between 30 and 50 per cent of the normal range of movement of a shoulder.
- He considered she will continue to have a limited range of movement with little pain but she will be left with a stiff, somewhat weak, right shoulder.
66 Section 10A of the CLA provides:
(1) In determining damages for non-pecuniary loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings.
(2) For that purpose, the parties to the proceedings or their counsel may bring the court's attention to awards of damages for non-pecuniary loss in those earlier decisions.
(3) This section does not alter the rules for the determination of other damages.
67 In her closing submissions Ms Robinson referred to six New South Wales District and Supreme Court cases involving claims for shoulder injuries in support of her claim of $300,000 for pain, suffering and loss of amenity. Ms Robinson also claims $190,000 for 'loss of future use of right and left shoulders'.
68 I accept the defendant's submission that the additional claim for 'loss of future use of right and left shoulders' is not a separate head of damage and should fall within the award for pain, suffering and loss of amenity.
69 In its closing submissions the defendant referred to four Western Australia District Court cases involving claims for shoulder injuries which indicate the claim at $300,000 for pain, suffering and loss of amenity 'is so far above a reasonable range in this jurisdiction as to be wholly unmeritorious'. I accept the defendant's submission in this regard.
70 In the circumstances, I consider an appropriate award for general damages for Ms Robinson's injury would be $60,000.
71 Section 9(2) of the CLA applies to this award of general damages and restricts the amount which I can award. Section 9(2) provides that if the amount of non-pecuniary loss is assessed to be more than Amount A but not more than Amount C for the year in which the amount is assessed, damages for non-pecuniary loss are not to be awarded in an amount that is more than the excess of the amount assessed over Amount A.
72 Amount A is presently $20,000 and Amount C is $60,500. The $60,000 which I consider the appropriate award for general damages is more than Amount A but less than Amount C. The excess of the amount which I have assessed over and above Amount A is $40,000 ($60,000 less $20,000).
73 Accordingly, Ms Robinson's general damages as allowed under s 9(2) of the CLA will be $40,000.
Loss of earning capacity
Past economic loss
Past staff replacement costs
74 As a general rule, a plaintiff is compensated for loss of earning capacity, not loss of earnings: Medlin v State Government Insurance Commission (1995) 182 CLR 1, 16
75 In this case there is a claim for past economic loss. There is no claim for future economic loss as Ms Robinson retired on 28 March 2014 and she is now 70 years of age.
76 In 2008 Ms Robinson incorporated Leeuwin Corporation Pty Ltd. She was the sole director, sole secretary and sole holder of shares in Leeuwin Corporation.
77 In 2012 prior to 18 February 2012 Ms Robinson was working as a director/manager at Leeuwin Corporation trading as CBD Strata Management and City Settlements. She took drawings from Leeuwin Corporation averaging $1,000 per week net for her living expenses. Whilst she was convalescing in 2012 to 2013 she took drawings from Leeuwin Corporation averaging $1,200 per week net for her living expenses. Whilst she was convalescing in 2014 she took drawings from Leeuwin Corporation averaging $1,300 per week net for her living expenses. Whilst she was convalescing in 2015 she took drawings from Leeuwin Corporation for her living expenses. She said that 70% to 80% of the money was from money she had injected into the business and it was the repayment of a director's loan. On 28 March 2014 she went on the age pension.
78 Ms Robinson agreed under cross-examination that her 2007 tax return showed that her taxable income was $11,262. She agreed that her 2008 tax return showed a loss of $1,389. She agreed that her 2009 tax return showed that she earned $13,500 from Leeuwin Corporation and her taxable income was $13,152. She agreed that her 2010 tax return showed that she earned $13,677 from Leeuwin Corporation and her taxable income was $17,880. She agreed that her 2011 tax return showed that she earned $11,727 from Leeuwin Corporation and her taxable income was $12,886. She agreed that her 2012 tax return showed that she earned $13,774 from Leeuwin Corporation and her taxable income was $14,604. She agreed that her 2013 tax return showed that her income was $181. She agreed that her 2014 tax return showed that her income was aged pension $18,341 plus interest. She could not explain that amount for the aged pension although it was obviously an error. She agreed that her 2015 tax return showed no income from Leeuwin Corporation and $20,730 from aged pension.
79 Ms Robinson also agreed under cross-examination that the Leeuwin Corporation company tax return for 2010 indicated the company made a loss of $31,700. She agreed that the Leeuwin Corporation company tax return for 2011 indicated the company made a loss of $72,402. She agreed that the Leeuwin Corporation company tax return for 2012 indicated the company made a loss of $26,907. She agreed that the Leeuwin Corporation company tax return for 2013 indicated the company made a loss of $96,412. She agreed that the Leeuwin Corporation company tax return for 2014 indicated the company made a loss of $70,616. She agreed 'the company was very much going backwards'. She also agreed that her actual annual gross income was very much less than she had indicated as being $76,095 because most of her income was made up from drawings of capital she had previously invested in the company.
80 As a result of the accident and because she had difficulty using the computer for her settlement business, Ms Robinson was assisted in her work by Mr Osborne (for a few years) at $30 per hour for 15 hours per week and Ms Brooks (from 21 March 2012 to 17 January 2013) at $35 per hour for 12 hours per week.
81 Mr David Ross, a licensed real estate agent who sublet premises from Ms Robinson, supported Ms Robinson's evidence that she shared his secretary at a total cost of $11,490.72 when she was unable to work because of her shoulder injury.
82 In her evidence and closing submissions Ms Robinson claims past loss of earnings calculated as follows.
(a) Prior to her accident on 18 February 2012 she was working as a director/manager at Leeuwin Corporation trading as CBD Strata Management and City Settlements. She took drawings from Leeuwin Corporation averaging $1,000 per week net for her living expenses.
(b) She was off work for seven weeks from 20 February 2012 to 8 April 2012 because of the accident and following the first operation on 23 February 2012. She then worked part-time (three days per week) for three weeks.
(c) She was off work for seven days from 23 October 2012 to 30 October 2012 as a result of the second operation on 24 October 2012. She then worked part-time (three days per week) for four weeks from 1 November 2012 to 28 November 2012.
(d) She was off work for four weeks from 18 June 2013 following the third operation on 18 June 2013.
(e) She was off work for three weeks and two days from 12 September 2014 to 4 October 2014 as a result of the fourth operation on 13 September 2014 (although she had retired on 28 March 2014 and she was on the age pension. There was no explanation for this by Ms Robinson).
(f) She was off work for three weeks in January 2015 as a result of the fifth operation on 9 January 2015(although she had retired on 28 March 2014 and she was on the age pension. There was no explanation for this by Ms Robinson).
83 In my view, the defendant is correct in its submission that 'in terms of past loss it is difficult to see that (Ms Robinson) has in fact lost anything at all by way of income'. Most of Ms Robinson's claimed income before the accident was from drawings of capital that she had previously invested in the company. Most of her claimed income after the accident was from drawings of capital that she had previously invested in the company. Her companies were going backwards. Her counsel accepted that she did not have a taxable income because she was negatively geared.
84 In her evidence and closing submissions Ms Robinson also claims past staff replacement costs calculated as follows.
(a) During the period 21 March 2012 to 17 January 2013 one of Ms Robinson's corporate entities employed Ms Brookes to replace Ms Robinson during her incapacity for work at $35 per hour gross for 12 hours per week.
(b) For a few years one of Ms Robinson's corporate entities employed Mr Osborne to replace Ms Robinson during her incapacity for work at $30 per hour gross. There was no evidence as to the precise time period or number of hours worked by Mr Osborne.
85 In my view the past staff replacement costs were the losses of the company that employed Ms Brookes and Mr Osborne to replace Ms Robinson. The past staff replacement costs were not Ms Robinson's losses.
86 Accordingly, I am not satisfied Ms Robinson has established past economic loss.
Special damages
87 The parties agreed the right shoulder special damages.
88 I have made an apportionment of the left shoulder special damages due to pre-existing deterioration by an adjustment of 10%.
Medical Provider | Right Shoulder | Left Shoulder | |
|
| $1,742.11 | $452.75 – 10% = $407.47 |
|
| $520.75 | - |
|
| $1,117.00 | - |
|
| $80.00 | - |
|
| $9,579.30 | - |
|
| $15,375.05 | - |
|
| $20,984.00 | - |
|
| $970.00 | - |
|
| $1,980.00 | - |
|
(NO SKG PGS 222-224) LS 19/9/13 pathologist p 226 23/02/12 G Couans p 232 | $54.35 $161.90 | $11,149.30 – 10% = $10,034.37 |
|
| $69.60 | - |
|
| $75.00 | |
| $52,709.06 | $10,441.84 |
Gratuitous services
89 Section 12 of the CLA deals with the awarding of damages for 'gratuitous services of a domestic nature or gratuitous services relating to nursing and attendance' that have been or are to be provided to a plaintiff by a member of the same household or family. There is a threshold amount of $7,000 (Amount B, as set out in s 13 of the CLA) which must be reached before any award of damages can be made under this head.
Past gratuitous services
90 For a period of time after she was injured and her first operation Ms Robinson was assisted by Mr Thomas, Mrs Chafin and the SilverChain with dressing, showering and meals. Mr Carey assisted her with cleaning. After the first operation Mrs Chafin made meals for her mother which she would bring down from Yanchep once a week. She did that for about six months.
91 Between late 2012 and early 2014 she travelled by taxi most of the time but when she returned to work after the first operation she started driving again. She does not drive for more than half an hour.
92 After 18 February 2012 Ms Robinson asked Mr Carey to clean her unit and then her home in Como from November 2013 because she was unable to do so because of her shoulder. He did 'all general cleaning, vacuuming, bathrooms, toilets, windows'. He did the cleaning monthly for three hours at the rate of $120 per visit from February or March 2012 to the present time. He was paid in cash on the day. In 2015 he provided two invoices to cover the work from February 2012 to February 2013 (13 cleans at $120 + GST = $1,710) and from March 2013 to April 2015 (25 cleans at $120 + GST = $3,300). He did not know why he did not issue monthly invoices. Ms Robinson also claimed for Mr Carey's cleaning services from May 2015 to November 2015 (7 cleans at $120 = $840).
93 Ms Robinson's total claim for the assistance provided by Mr Thomas and Mrs Chafin over the two years since the accident was $5,000 although there was no evidence as to how this amount was arrived at.
94 Ms Robinson's total claim for Mr Carey's cleaning services from February 2012 to November 2015 was $5,850.
95 In my view a global amount of $8,000 is appropriate for past gratuitous services.
96 Interest on past gratuitous services is calculated at $960 ($8,000 x 4 years x 3%).
Future care and gratuitous services
97 At the present time Ms Robinson can dust and clean but she cannot mop floors, vacuum, iron or hang out laundry. She has difficulty lifting the kettle and saucepans with water.
98 I accept that Ms Robinson will require some assistance from time to time with cleaning for the foreseeable future.
99 Ms Robinson's total claim for Mr Carey's services for a further 17 years using the 6% multiplier of 562 to the weekly cost of $27.71 is $15,575.
Summary
100 If Ms Robinson had been successful I would have assessed damages as follows.
| $40,000 |
| $63,151 |
| $8,000 |
| $960 |
| $15,575 |
| $127,686 |
Conclusion
101 Ms Robinson's claim is dismissed.
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