Sajad v Aldi Foods Pty Ltd

[2015] NSWDC 272

District Court

New South Wales

Medium Neutral Citation:	Sajad v Aldi Foods Pty Ltd [2015] NSWDC 272
Hearing dates:	11 – 13 November 2015
Date of orders:	18 November 2015
Decision date:	18 November 2015
Jurisdiction:	Civil
Before:	Elkaim SC DCJ
Decision:	See paragraph 108
Catchwords:	Personal injury, slip on a wet painted Disability sign, contribution between painter and occupier.
Legislation Cited:	Civil Liability Act 2002
Cases Cited:	Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Garzo v Liverpool / Campbelltown Christian School [2012] NSWCA 151 Mason v Demasi [2009] NSWCA 227 Sampco Pty Ltd v Wurth [2015] NSWCA 117
Category:	Principal judgment
Parties:	Ahmad Sajad (Plaintiff) Aldi Foods Pty Ltd (ACN 086 210 139) (First Defendant) Boronia Investments Holdings Pty Ltd (In Liquidation) (ACN 001 766 454) (Second Defendant) Kenex Stencils Pty Limited (ACN 131 189 396) (Third Defendant)
Representation:	Counsel: A Lidden SC and P Khandhar (Plaintiff) P Perry (First and Second Defendants) S Torrington (Third Defendant)   Solicitors: L J Sharpe & Co (Plaintiff) McCabes Lawyers (First Defendant) Moray & Agnew (Second Defendant) Curwoods Lawyers (Third Defendant)
File Number(s):	2012/00157617

Judgment

1. The plaintiff was injured on 21 February 2011 when he allegedly slipped on a painted surface in the carpark outside the Aldi Store in Bankstown. He has sued the defendants for damages arising from his injuries. He says they owed him a duty of care which they breached.

2. The action is governed by the Civil Liability Act 2002 (the “CLA”). The plaintiff has claimed damages under the following heads: non-economic loss, past and future economic loss, past and future domestic care and past and future medical expenses.

3. The first defendant (“Aldi”) is the owner and occupier of the supermarket. The second defendant was the builder and developer of the site. Ultimately no submissions were put against the second defendant. The third defendant (“Kenex”) is a line marking contractor that did the work which is alleged to have given rise to the plaintiff’s injuries.

4. Aldi admitted it owed the plaintiff a duty of care but denied any breach. Kenex denied it owed the plaintiff a duty of care and, if it was wrong, denied any breach. All the defendants challenged the extent of the plaintiff’s damages.

5. The work done by Kenex was the painting, in 2008, of ‘Disabled’ signs in the carpark (for example Exhibit C, photographs 6 and 7). The plaintiff says that on the day that he slipped it was raining so that the painted surface over which he walked was slippery.

6. None of the four experts retained in the case suggested that, when wet, the painted surface was not slippery.

The plaintiff’s background

7. The plaintiff was born in Lebanon in 1963. He left school in 1978 having achieved the equivalent of the school certificate. He became a salesman in a furniture shop and continued in this and assorted other occupations until he migrated to Australia in 1985. He then attended an English course.

8. In 1986 the plaintiff obtained employment with the State Transit Authority (the “STA”) as a bus driver. He married in 1991. There are two children of the marriage, Hassan born in 1995 and Mounir born in 2000.

9. In about 1992 the plaintiff accepted a redundancy package from the STA because he wished to return to Lebanon. He did so for about a year. On his return the plaintiff took up employment with Bligh Appointments which found him work initially doing forklift driving and later deliveries for a dental technician. He continued with these activities until 2001 when he returned to the STA as a bus cleaner and fueller.

10. The plaintiff’s new job at the STA involved driving buses to a fuelling bowser, filling the bus with gas and then cleaning the bus. The cleaning duties were restricted to sweeping the inside of the bus and then removing the collected refuse. Each shift required going into and out of about 55 buses. This necessarily included moving up and down the stairs in each bus.

11. Although the plaintiff did different shifts I understood that he usually worked from 6pm to 2am and sometimes did shifts that included the weekend. He worked five days a week but did accept some hours of overtime when it was offered.

12. At the time of his accident the plaintiff was living in a two bedroom apartment with his wife and sons. He said he helped out at home but the bulk of the housework was carried out by his wife. The plaintiff and his family enjoyed social gatherings and they went out most weekends.

13. Under cross-examination the plaintiff said that cleaning and washing was “not my job”. I think this answer reflects the true position prior to the accident and that he did very little, if any, domestic assistance notwithstanding that his wife was also working a five day week. My impression was confirmed by the evidence of the plaintiff’s son, Hassan. For reasons which will appear below I generally do not accept the plaintiff’s evidence about domestic activities.

14. The apartment was located on the third floor of a building. There was no lift.

The accident

15. On 21 February 2011 the plaintiff attended the Bankstown Aldi Supermarket to do some shopping. There was some confusion about the time that he arrived but it appears to have been some time before midday. Although there was a good deal of cross-examination about the timing of events I do not see the issue as being of particular relevance. Clearly the times recorded on contemporaneous records, like the ambulance report, are likely to be accurate. However I do not see the plaintiff’s error as necessarily affecting his credit or reliability.

16. The plaintiff parked his vehicle in the location he marked with an “X” in photograph 3 in Exhibit C. After doing about 20 minutes of shopping the plaintiff returned to his motor vehicle and unloaded a shopping trolley. He returned the trolley to the trolley bay and then commenced his journey back to his motor vehicle. It was raining lightly, as it had been when he arrived. When the plaintiff walked over the Disabled sign alongside the “X” he has marked on photograph 4, he said that his right foot slipped forward from under him and he fell to the ground with his left foot beneath him. He felt immediate pain in his left ankle.

17. Although the “X” on photograph 4 is not on the sign the plaintiff made it clear that he had slipped on the surface of the sign.

18. Other shoppers called the manager, who the plaintiff described as a “nice lady”. An ambulance was requested and arrived soon afterwards. In fact, there were two ambulances, one was a utility whose driver gave the plaintiff an injection.

19. It was put to the plaintiff that he had actually slipped on the tiles alongside the parking bays and then fell forward on to the sign. The tiles can be seen in photograph 9 in Exhibit C. The suggestion seemed to be derived from a history apparently given at the hospital. It is contradicted by the Aldi Incident Report (Exhibit E). This document was produced soon after the incident. I think it provides significant evidence in the plaintiff’s favour. It was submitted that the crossing out of the word “tiles” in the report supports Aldi’s position. I disagree. I do not know how the word came to be changed but there is no suggestion the change had anything to do with the plaintiff. The author of the report, an Aldi employee, could have answered this question. She was not called to give evidence. I infer her evidence would not have assisted Aldi’s case.

20. Factoring in the warnings given by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 (at paragraph 8) and Mason v Demasi [2009] NSWCA 227 (at paragraph 2), I am satisfied that the plaintiff did slip on the sign.

21. I am also satisfied that his right foot slipped. I do not in any event see any significance in which of the plaintiff’s feet actually slipped.

22. Exhibit E is important for other reasons. The description of the event is given as follows:

“A customer was walking to the car and slipped on the disable sign from the carpark which was wet due to rain.”

23. Exhibit E then lists the main contributing factor as “rain made the sign slippery”. Towards the end of the form the following action is proposed: “propose of rough textures, non-slip paint, inspection of the paint and see if it is corroded or not”. Nothing seems to have been done about this recommendation for about two years.

24. The plaintiff denied he had been careless in walking on the wet sign. He did not accept that he should have been aware that it might have been slippery. I find Aldi’s position on this point difficult to accept. A pedestrian, be it on a road or in a carpark, should not be expected, when it is raining, to avoid painted areas on the road surface. To do so would create an absurd, if not comical, picture of pedestrians hopping over and around road markings when it was raining.

25. The fact that a person applying paint to a road surface should be concerned that he does not create a slippery surface does not translate to an acceptance that the general public should guard against walking on wet road markings. The public must be entitled to assume that painted road markings will not become dangerous when wet.

26. Mr Warwick Roach obviously holds a senior position in Kenex. He described himself as a line marker, an occupation which he had followed since 1997. The company was started by his father. I am satisfied that the company held itself out as being experienced in outdoor line marking and that it was reasonable for the first defendant to rely on the skill and expertise of the company in carrying out the contract between them.

27. The painter had performed a number of jobs for Aldi before 2008 and also since then.

28. Mr Roach said that he did not personally carry out the work in 2008 but he was able to identify the two workers who had done so (Exhibit 1D1, Tab K). He said that the paint they used would have been sourced from his warehouse and would have been one of three types. Two were water based and one was a solvent based paint. He could not say which paint had been used on this particular job other than that it was one of the three.

29. All of the paints were acrylic which means, said Mr Roach, that they were “flat” and did not have a “sheen”.

30. Mr Roach said that the standard for line marking paint had originally been set in 1993 and then modified in 2004. Pursuant to the standard it was necessary to use an approved line marking paint but no anti-slip content was required.

31. Mr Roach said that as from 1 May 2011 a new standard applied whereby it was necessary to apply two coats of paint which included, between them, a glass aggregate for anti-slip purposes.

32. Mr Roach accepted that if paint was applied pursuant to the 2004 standard then the painted area would be slippery when wet. He did not think it necessary to pass this information on to Aldi. As far as he was concerned his task was to do the job for which he was contracted and no more.

33. Mr Roach’s evidence was thus to the effect that notwithstanding that he knew that a painted surface (before the 2011 amendments) would be slippery when wet he did not see it as his obligation to do any more to protect against the possibility of the surface being slippery when wet.

34. Mr Roach went even further and said he saw his obligation as doing the “bare minimum” to complete the contracted work (T 124.46). He also said there was a visual inspection of the job on completion but no other tests were carried out.

35. The fundamental problem with Mr Roach’s evidence is that he is wrong about the standard. This is evident from the expert reports, in particular those from Dr Cooke and Mr Adams. The standard slip resistant component is discussed by Dr Cooke from paragraph 50 of his report. It follows that Mr Roach was incorrect in saying that he had complied with the standard. A point which has caused me some concern was that it was never put to Mr Roach when he was being cross-examined that he had not complied with a standard. Having heard submissions about this ‘failing’ I have come to the view that it should not prevent any finding against Mr Roach. He was not an expert, he did not know the detail of the standards that he was referring to and the fact that the standards had not been complied with is contained in the expert reports which were all circulated between the parties well before the hearing.

After the accident

36. The second ambulance took the plaintiff to Bankstown Hospital where a plaster cast was applied. He was discharged in the evening and he went home on crutches. The cast remained in place for about eight weeks during which time the plaintiff spent a good deal of time in the apartment as he found it very difficult to use the three flights of steps.

37. The plaintiff returned to work after about eight weeks but his job was restricted to cleaning.

38. The plaintiff said that he took the maximum amount of sick leave and reached a stage where his duties were generally restricted to refuelling the buses because he found the cleaning very difficult. The difficulty seemed to emerge from having to go in and out of buses, perhaps up to some 55 a day. Cleaning in a bus necessitated climbing into the bus and then one or two other steps while in the bus.

39. He said he continued working until March 2014 when he was offered a redundancy. He accepted the offer because he was having difficulty coping at work and did not think that his job would be secure if he did not take the offer. He said he would have been required to become a sub-contractor to continue working for the STA.

40. The plaintiff went to Lebanon in July and August 2014. Although he said he had made some attempts to find work they seem to have been very limited and he apparently spends most of his time in a coffee shop socialising with friends and playing cards.

41. The plaintiff said that following the accident his relationship with his wife deteriorated, mostly, if I understood him correctly, because their social life was affected by his inability to go out. He said he took pain killers and was not able to do any housework. The plaintiff’s wife left him, taking the children, in March 2012. The plaintiff specifically stated that his wife left him because she did not wish to leave the apartment and live in a house (T42.49). This answer has a significant impact on the plaintiff’s gratuitous care claim.

42. The plaintiff’s sister, Fawzia, then began to provide domestic services. The plaintiff said she came every day for two hours to do cleaning, sweeping, mopping and cleaning the bathroom. Surprisingly, despite the various changes in the size in the plaintiff’s accommodation until the present time, his sister’s contribution of two hours per day did not vary.

43. After the plaintiff’s family left, the plaintiff moved to a one bedroom apartment where he remained for about six months. He then rented a two bedroom ground floor unit because his children wanted to live with him. In addition to the continuing help from his sister, the plaintiff said his eldest son also contributed.

44. In November 2014 the plaintiff moved to a two bedroom house in Liverpool and then in August of this year he moved once again. He took up residence in Lurnea in a three bedroom house with a large backyard. The plaintiff’s sister, who is now aged 65, has continued in her two hour per day assistance. The plaintiff’s younger son, Mounir, does the lawnmowing. Hassan, now 19, also continues to help. He works at Harvey Norman.

45. Hassan Sajad gave evidence. My initial impression of him was that he was an honest witness, in particular because he immediately gave more realistic (although perhaps not realistic enough) estimates of the time that his aunt Fawzia carried out domestic activities. Not only did Mr Sajad Junior say that the times that his aunt spent doing domestic activity varied with the size of the premises being occupied but he also said she did not come every day for two hours. Rather she was spending five to six hours cleaning weekly.

46. The problems with Mr Sajad Junior’s evidence came when he described his own contribution. He said he was now doing four to six hours of domestic activity per week which included washing his and his father’s car. There is of course no reason why time spent washing his own car should be compensable. As far as his father’s car is concerned he said that he washed it every three days for hygienic reasons. He did not explain his hygiene concerns and I reject any submission that there was a reasonable need for the plaintiff’s car to be cleaned with such frequency. Most of the plaintiff’s evidence was to the effect that he went out very little and spent most of his time at a coffee shop. I can see no reason why his car needs frequent cleaning.

47. It is always difficult for a plaintiff to provide satisfactory evidence of specific times that are spent doing housework. Averaging is not permitted (Sampco Pty Ltd v Wurth [2015] NSWCA 117). In addition there must be a reasonable need for the services. Fawzia did not give evidence and to simply say that she spends the time vacuuming and cleaning and doing assorted other tasks is not enough to establish a need. In addition, I do not see why the plaintiff could not do some of the tasks himself. When asked why he could not sweep, for example, he said that he would get tired. Bearing in mind that he is not doing much else I can see no reason why he could not sweep for short periods of time. He also did not say how long it would take before he would get tired.

48. I reject the plaintiff’s claim for gratuitous domestic assistance for the following reasons:

1. Although the plaintiff’s needs would have exceeded the 6 hour threshold for about 8 weeks from the accident I am not satisfied that the 6 month threshold was met (CLA, Section 15).

2. I do not accept the plaintiff’s evidence about the times that his sister spends carrying out domestic tasks. I note the plaintiff’s sister was not called to give evidence. No reason for her absence was provided. I infer that her evidence would not have assisted the plaintiff’s case.

3. I do not accept that the plaintiff has a reasonable need for the services that his sister provides, although I do accept that certain tasks might lead to tiredness or pain in his ankle after some time.

4. I do not accept Mr Sajad Junior’s evidence about times or the reasonable need for his services. In addition I note that the two sons having decided to live with their father, and in the absence of their mother, one would expect them to play a part in the maintenance of the house.

5. Mrs Sajad left because she did not want to live in a house. There was no evidence upon which I could conclude that she left as a result of the plaintiff’s injuries. The need for domestic services was created by Mrs Sajad leaving, not by the plaintiff’s injury, at least not to an extent requiring 6 hours per week. Section 15(2)(b) says the need must have arisen “solely” because of the injury.

Medical evidence

49. There was little dispute about the plaintiff’s medical condition. Most of the debate concerned the effects. Photographs of the plaintiff’s ankle in its current state are Exhibit A. I also looked at the plaintiff’s ankle which confirms the deformity evident in the photograph.

50. The plaintiff’s medical reports are contained in Exhibit B. The hospital notes confirm the existence of a Weber B Fracture and that it was treated “in a short leg back slab”.

51. The report of Dr Hourana, the plaintiff’s general practitioner, is somewhat out of date but does record complaints from the plaintiff of swelling and pain.

52. There is a series of reports from Dr Conrad, a general surgeon, who has seen the plaintiff on a number of occasions. Dr Conrad confirms the complaints of pain and swelling. Dr Conrad initially observed that if the plaintiff’s problems continued he would need an MRI scan. He also makes observations about the plaintiff’s capacity to work which generally are to the effect that he is able to work as a fueller and cleaner of buses provided he is able “to stand or sit at will and not do a lot of standing, walking, going up and down stairs”.

49. In his report of 30 June 2014 Dr Conrad comments on an MRI scan performed on 1 March 2013. Dr Conrad refers to the possibility of a fusion operation and notes the presence of “significant osteoarthritis” in the ankle joint. By this time the plaintiff had left the STA. Dr Conrad repeated the above restrictions and said that there should be a lifting limit of about 5kg. He felt, subject to the restrictions, that the plaintiff could manage about 15 hours of work per week.

50. In his report of 3 June 2015 Dr Conrad suggested the plaintiff “might need six to nine hours per week of Home Care assistance”. He does not state the basis for this conclusion nor does he set out his qualifications to reach it. I do not accept the opinion as reliable evidence of the plaintiff’s domestic assistance needs. I note that in his most recent report, dated 2 November 2015, Dr Conrad slightly reduces the domestic care needs to six to eight hours per week. In this report Dr Conrad says that a fusion operation would cost $15,000 and is likely to be needed “in the time frame of about five years”. Until this occurs Dr Conrad suggested physiotherapy and attendance upon a podiatrist “with possible orthotic and specialist supervision”. He thought this regime of treatment would cost about $2,500 per year.

51. The plaintiff also relies on a report of Dr Barold, who seems to have expertise in occupational medicine. Dr Barold confirms the possibility of future surgery and notes that the MRI “already describes the development of significant osteoarthritis”.

52. Dr Barold doesn’t think the plaintiff can resume his pre-injury work but he imposes a weight limit of 10kg as opposed to the 5kg suggested by Dr Conrad. Dr Barold thought the plaintiff needed to go to the gym, have physiotherapy and palliative massage treatments. He also thought that the plaintiff needed seven and a half hours of domestic assistance per week. Once again I do not see the basis upon which Dr Barold forms this opinion, nor do I understand, for example, how he arrives at a shopping time of two hours let alone cleaning of two hours per week. What his suggestions do illustrate is the overt improbability of the plaintiff’s sister’s hours of work. She seems to take 14 hours to do the tasks which Dr Barold thinks should take four hours per week. I do of course accept that there is nothing to suggest that the plaintiff’s sister is a professional cleaner and no doubt, as an ‘amateur’, she might take longer than a professional. Nevertheless, as I have already concluded, I simply do not accept that the number of hours claimed are being performed.

53. The defendants relied on reports from Dr Robinson, an orthopaedic surgeon. In his report of 14 March 2014 Dr Robinson says that the plaintiff is fit for his pre-accident duties “apart from ascending and descending stairs over long periods”. It is to be recalled that the plaintiff was required to go in and out of about 55 buses per shift.

Expert reports

58. As already mentioned there are four experts who have been retained in this matter. Mr Adams’ reports are in Exhibit C. Mr Beckett’s report is Exhibit D. Mr Todhunter’s report is Exhibit 3D1. Dr Cooke’s reports are in Exhibit 1D1.

59. Mr Adams and Dr Cooke visited the site and did slip resistance measurements.

60. There is a good deal of agreement in the reports such that I do not think that they require close analysis. However there are some points of contention and I think it necessary to make the following observations.

61. Mr Todhunter identifies two specific paints as having been most probably used and says they both complied with Australian Standards in 2008. The difficulty with this conclusion is that Mr Roach was not able to identify the paints used. He said there would have been one of three paints used and he did not name any one of them. Any conclusion that Mr Todhunter derives from the paints he identifies and their compliance with the Australian Standards must necessarily fall away. The value of Mr Todhunter’s report to the plaintiff’s case is his agreement with Mr Beckett that painting should be done every one to two years. He continues: “I further concur that a regular maintenance schedule should be in place to monitor the surface condition of the subject disabled sign and other painted surfaces within the carpark”.

62. I think Mr Beckett actually went a little further. In paragraph 34 he stated:

“Ideally, a maintenance programme should be monitored closely, as circumstances regarding optimum surface conditions for patrons and traffic/trolley management in open air car parks can vary with the weather, seasonal changes and of course its location to maritime coastal or river conditions.”

63. In paragraph 43 Mr Beckett stated:

“From above the coatings should have been inspected every 24 months and touched up as necessary. An assessment of the slip properties of the coating should also have been made every 12 months.”

64. In paragraph 51 Mr Beckett stated:

“The foregoing documentation indicates, in my opinion, that Aldi would have had access to appropriate standards and management principles to maintain appropriate standards of safety to cover all their building environments in accordance with NSW Occupational Health and Safety Management Systems.”

65. In relation to the meeting of standards, Mr Adams stated:

“3.1.7   AS/NZS 3661.1.1993 specified that a wet-tested pedestrian surface "shall have a mean coefficient of friction of not less than 0.40" in order to be categorised as "slip resistant". Although I did not make objective measurements on the painted surface when it was clean and dry, I have no doubt that when it was in that condition it would be adequately slip resistant. However, the average coefficient of friction of 0.27 that I obtained by making objective measurements in wet conditions indicates that the painted surface when in that condition does not meet that "old" criterion for an adequately slip resistant pedestrian surface. The painted surface could not be categorised as slip resistant when wet under that previous Standard, and is instead described quite appropriately as hazardously slippery.

3.1.8 The wet pendulum tests I performed produced an average SRV of 27, indicating that when the surface is wet it can be expected to make a high contribution to the risk of slipping. A pedestrian surface having slip resistance value within that range would be experienced as slippery, particularly by a pedestrian had been walking on lightly textured concrete that was adequately slip resistant when wet immediately before they stepped onto the wet painted surface. I note again that the painted surface was most probably even more slippery at the material time than is indicated by the measurements I performed.

3.1.9 With respect to the relevant recommendations in HB 197, the suggested category for such area, where the routine presence of rain water will obviously occur is "W" flooring (equivalent to surfaces on which is obtained an average BPN of between 45 and 54). In my opinion, it is reasonable to expect external walkways generally, and most particularly those installed or substantially refurbished since 1999, to comply with that recommendation. Clearly, the average SRV of 27 that I obtained demonstrates that the painted surface fails to meet that recommendation by a significant margin.”

66. On the same topic Dr Cooke said:

“The painted surfaces, as found, showed no traces of any surface roughening treatment such as grit particles embedded in the paint surface. Accordingly, my opinion is that the paint surfaces, when new, would not have had a BPN of 45 and would have had a BPN similar to that measured by Mr Adams and me at the time of our testing (that is a BPN of 27).”

67. I agree with the submissions made by counsel for Aldi, in his supplementary written submissions, at paragraph 19, that, “The Court can comfortably accept, then, that the work of Mr Al-Omar and Mr Graham did not produce a result which met the standard. Or a result which approached that standard.” Mr Al-Omar and Mr Graham were the Kenex employees who did the work.

68. Dr Cooke and Mr Adams were at odds on the use of preventative measures. In relation to warning signs Dr Cooke said:

“The use of warning signs or barricades would not have cured the inherently defective painted surfaces that resulted in pedestrian surfaces with inadequate slip resistance at those locations.”

69. I disagree with Dr Cooke. I think that the placement of warnings signs near the disabled markings to the effect that the area ahead might be slippery would have been a deterrent to pedestrians. I also think that the erection of an awning over the disabled parking bays would have been an effective measure to prevent the signs becoming wet.

Liability

70. Aldi accepts it was the occupier of the carpark. The duty of care owed by an occupier to a legal entrant was plainly set out in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. An occupier has a duty to a lawful entrant to “take reasonable care to avoid a foreseeable risk of injury to the person concerned”.

71. Kenex denied it owed a duty of care to the plaintiff or persons like him. I disagree.

72. Kenex submitted that it did not owe the plaintiff a duty of care because it had only attended on one occasion to do the work, at that time there was no foreseeable harm in what was being done (so that the work was not perceived as a hazard) and Kenex thought that the work that was being carried out was satisfactory because it was in accordance with the relevant standard.

73. In my view, when Kenex was doing the work it was being done in circumstances where there was a foreseeable risk of harm to persons legitimately using the carpark and in particular traversing hazards that had been created by Kenex. I was referred to the “salient features” that should be taken into account as stated in Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258 at paragraph 103. Without going through all of these features it does seem to me that at least the foreseeability of harm, the nature of possible harm and the degree and nature of control able to be exercised by the defendant to avoid the harm are all particularly relevant. It is to be recalled that Kenex performed the work using substandard paint. This alone leads to a conclusion (ignoring any elements of maintenance) it had created a hazard.

74. The existence of a duty of care having been established, it is now necessary to examine whether there has been a breach of the duty. This exercise brings into consideration Section 5B of the CLA.

75. The first step, under Section 5B, is to identify the risk of harm. Adopting, and adapting, the formulation used by Tobias JA in Garzo v Liverpool / Campbelltown Christian School [2012] NSWCA 151 at paragraph 123 “… the risk can be identified as that of a person slipping on the painted surface of the (Disabled sign) and thereby suffering an injury.”

76. Counsel for the plaintiff suggested that the above formulation required addition of the words “when wet” after Disabled Sign. While I do not think the addition is strictly necessary I do not reject the submission.

77. In oral submissions, learned counsel for Kenex, having said that if his submissions on the existence of a duty of care were not accepted, he moved directly onto causation. No submissions were made about Section 5B of the CLA. Notwithstanding this approach it is necessary for me to be satisfied that there has been a breach of duty under Section 5B.

78. Once the hazardous surface was created the risk that I have identified above was in my view plainly foreseeable and was not insignificant. In circumstances, such as these the defendant should have taken precautions. In reaching this conclusion, which applies to all defendants, I am satisfied that there was a high probability of harm occurring if a person slipped and that that harm was likely to be serious. I am also satisfied that the burden of taking precautions was light and could have been effected by maintenance of the site as well as the placing of a warning sign when the area was wet. I also think Aldi could have erected an awning over the Disabled parking bays.

79. Returning specifically to Kenex, it was submitted that the chain of causation, as required by Section 5D, had been broken because once the job had been performed Kenex had no further role on the site. Any further testing or maintenance fell onto the shoulders of Aldi. It was pointed out that both Mr Beckett and Mr Todhunter were of the view that there should have been regular maintenance and inspection of the signs on a yearly or bi-annual basis. These acts of maintenance and inspection not having occurred, Kenex said that any breach that it may have committed was no longer a cause of any harm that subsequently came to the plaintiff. Once again I disagree with Kenex’s submission.

80. My conclusion would have been different if the original work performed by Kenex had been in accordance with the appropriate standard. However, as Kenex created the hazard in the first place and that hazard remained in place throughout the period up to the plaintiff’s injury I do not think the chain of causation has been broken. In other words, I am satisfied but for Kenex creating the original hazard, the plaintiff would not ultimately have fallen. This does not of course mean that there can be only one cause of an accident. I am also satisfied, but will return to it below, that Aldi was in breach of its duty and that that breach was a cause of the plaintiff’s injury.

81. Turning then to Aldi, as already pointed out the experts were of the view that there should have been regular maintenance and inspection of the line markings. Had the accident occurred within a relatively short period following the painting then I think Aldi would have escaped liability on the basis that it had reasonably delegated the work to Kenex, a company which held itself out as professional and competent in linemarking.

82. However, about two and a half years had passed since the work was done and there had, based on the expert evidence, including the photographs taken only a month after the accident by Mr Adams, been deterioration in the painted sign.

83. It was submitted by Aldi that a different standard should apply to whether the area under question was indoors or outdoors. It was said that a higher standard of maintenance would apply to within the supermarket. I do not think this is correct. The same customers who move about within the store also move about in the carpark. I do not see why any distinction should be made between maintenance inside the supermarket or outside it provided both areas were occupied by Aldi.

84. There was absolutely no evidence of any maintenance or inspection on Aldi’s part so that there had been both a breach of the duty to keep the area safe and also a failure to take precautions to defeat the risk of harm.

85. In respect of causation, and Aldi, I am satisfied that but for the failure to inspect and maintain the area, which would have (as the experts say) revealed the inadequacies of the painted surface, the plaintiff would not have been injured. In addition, it would have been known to Aldi that the surface was slippery when wet.

86. I note the somewhat inconsistent submission put on behalf of Aldi that it would not have had that knowledge notwithstanding that counsel had suggested to the plaintiff that he should have avoided the area because he knew that a wet surface was slippery.

87. The effect of all of the above is that I am satisfied that Aldi and Kenex owed the plaintiff a duty of care and that they had breached that duty.

88. There are cross-claims between the defendants for contribution and indemnity. No contractual aspects of the cross-claims were pressed.

89. Aldi said that if there was a finding of negligence on the part of both defendants it should bear 20% of the blame. Kenex adopted the same percentages but reversed them in its favour. The plaintiff, although not strictly involved in this issue, suggested that the Kenex position was more correct.

90. I disagree with all of the parties. I think the creation of the hazard by the plain breach of the standards on the part of Kenex was a major factor leading to the plaintiff’s eventual injury. I also think Aldi’s failure to inspect and maintain was also a major factor as was its failure to put up a warning (say a yellow cone) near the area when it was raining. I think the defendants are equally responsible for the plaintiff’s injuries.

91. Contributory negligence was pleaded but not seriously pressed. Kenex suggested a small amount of negligence on the plaintiff’s part. As I have already said I do not think members of the public walking through a carpark can be expected to avoid marked lines (and lanes) during rain periods. I am also satisfied that the plaintiff was walking to his vehicle and neither running nor otherwise acting in a negligent fashion. Accordingly I do not think there is any contributory negligence on the plaintiff’s part.

Damages

92. The respective position of the parties on damages can be seen in the following table:

Plaintiff	Defendants
Non-economic loss	136,500	$59,500
Past out of pocket expenses	$1,675	$1,675
Future out of pocket expenses	$20,000	$10,000
Past economic loss	$65,580	$35,000
Future economic loss	$330,000	$50,000 - $100,000
Past domestic assistance	$41,600	$0
Future domestic assistance	$100,000	$0
Past loss of superannuation	$7,215	$0
Future loss of superannuation	$36,325	$0

93. Starting with non-economic loss: Although the monetary values, because of Section 16, are very different, the percentages are fairly similar and I think both fall within the appropriate range. It is difficult to form a reasoned decision over a 3% range. However, my observation of the plaintiff’s foot and its obvious deformity has led me to the conclusion that the plaintiff’s suggestion is closer to the mark. This is of course against the background of the very severe injury, the pain that it has caused and will cause for the rest of the plaintiff’s life, the likelihood of future serious fusion surgery and the restrictions it places on the plaintiff’s capacity to carry out normal tasks such as walking and going up and down stairs. Accordingly I think non-economic loss should be assessed at 29%. Under Section 16 of the CLA, this percentage produces a figure of $107,000.

94. Out of pocket expenses were agreed at $1,675.

95. The plaintiff’s submission for future medical expenses was primarily based on the likelihood of future surgery and the costs that would be attendant upon any operation, such as physiotherapy and rehabilitation. The defendants’ approach is dictated by Dr Robinson’s view that surgery may not eventuate and that, in any event, there should be a degree of discounting to take into account that the surgery will not occur for some time. The surgery seems to have a present cost of about $15,000. Accepting that it will not take place for at least five years the cost should be discounted and a factor should be introduced to reflect the possibility that surgery will not occur at all. For these reasons I think the defendants’ figure of $10,000 is appropriate.

96. The plaintiff’s historical wage rates were agreed and are contained in Exhibit G. The plaintiff’s approach was to allow for eight weeks at $760 per week and then $700 per week from April 2014, when the plaintiff became redundant, to date. Thus the plaintiff made an allowance of $60 per week to reflect a retained earning capacity.

97. The defendants’ figure of $35,000 does not have a technical basis but relies on consideration being given to the plaintiff having a retained earning capacity which he has not exercised, nor has he made reasonable attempts to secure employment. It was submitted that his time looking at newspaper advertisements and chatting to friends did not amount to any real endeavour to find new employment.

93. The plaintiff’s response was that, in reality, the plaintiff with his limited education, effectively had no prospect of finding any employment.

94. As recognised by Dr Conrad I think the plaintiff does have some earning capacity. It is true he does not have any educational skills and does not seem to be able to use a computer with any proficiency. However, he has had a long history of driving jobs as well as doing paperwork in the bus depot so that I do not see why he could not find alternate employment albeit with restrictions and perhaps not on a fulltime basis. It is to be noted that the plaintiff did return to work for about eight weeks after the accident and continued until he was made redundant in April 2014. Although he had time off, and was on light duties, he did otherwise maintain fulltime employment.

95. I also do not think that the plaintiff has taken reasonable steps to mitigate his loss through the limited endeavours he has made to find other work. I think that an allowance of $50,000 for the past is an appropriate reflection of my conclusions.

96. Past lost superannuation benefits at 11% is $5,500.

97. Turning to the future my first task is to make findings pursuant to Section 13 of the CLA. I am satisfied that but for the accident the plaintiff would have continued working at the STA or in a similar occupation until he retired. He did not give evidence of a retirement age but I think it would be reasonable to take him through to 65 years of age. I also think that he would have been subject to the normal vicissitudes of 15%.

98. My figure of $50,000 for the past is essentially a reflection of a retained capacity of about $240 per week (assuming full capacity loss of $760 per week). Assuming the plaintiff takes reasonable steps to find work, but acknowledging he does have a serious impediment to work of the type he has been doing, I think his lost capacity for the future should be measured at $400 per week. This figure also reflects an element of the plaintiff adapting to his injury and perhaps benefitting from future surgery.

99. Applying the same formula to the future, on the 5% tables and reduced by 15%, the calculation is as follows: 400 x 502.3 x .85 = $170,782.

100. Lost superannuation benefits on future economic loss are $18,786.02.

101. I have already concluded that the plaintiff is not entitled to gratuitous assistance under Section 15 of the CLA. The plaintiff made an alternate claim for paid care of 3 hours per week into the future until age 75. I think there is some merit in this claim bearing in mind that the plaintiff has a serious disability in his left foot which will no doubt impede his capacity to do heavier tasks of home maintenance. I do not however think that his needs will extend to regular maintenance but only to heavier aspects and perhaps occasional lawnmowing when his sons have left the home. Taking all these matters into account I think it appropriate to allow one hour per week for the 25 years claimed. The rate of $40 per hour was agreed. On the 5% tables the calculation is as follows: 40 x 753.6 = $30,144.

102. A summary of the damages I have awarded is as follows:

Non-economic loss	$107,000.00
Past out of pocket expenses	$1,675.00
Future out of pocket expenses	$10,000.00
Past economic loss	$50,000.00
Past lost superannuation benefits	$5,500.00
Future economic loss	$170,782.00
Future lost superannuation benefits	$18,786.00
Future paid domestic assistance	$30,144.00
Total	$393,887.00

108. I make the following orders:

1. Verdict for the plaintiff against the first and third defendants for $393,887.00.

2. By consent, verdict for the second defendant against the plaintiff with no order as to costs.

3. By consent, the cross-claim brought by the second defendant against the first defendant is dismissed with no order as to costs.

4. On the Cross-Claims as between the first and third defendants, verdict for each cross-claimant for contribution or indemnity to the extent of 50% of the damages and costs payable to the plaintiff.

5. Subject to further order, the first and third defendants are to pay the plaintiff’s costs of the proceedings.

109. I will hear the parties on any special costs orders and costs on the Cross-Claims.

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Decision last updated: 18 November 2015