Sarantidis v Westfield Shoppingtown Centre No. DCCIV-95-285 Judgment No. D3594
[1997] SADC 3594
•24 April 1997
Court
DISTRICT COURT OF SOUTH AUSTRALIA
Judgment of His Honour Judge Robertson
Hearing
16/08/96, 19/08/96 to 20/08/96, 29/08/96.
Catchwords
Occupier's liability - plaintiff slipped on a liquid substance whilst alighting from an escalator of defendants shopping centre causing plaintiff to fall - defendants duty to arrange periodic inspections to guard against risk of slipping - no evidence of a system of cleaning and inspection operating at the point of exit from escalator on the day of the accident - Wrongs Act 1936 (as amended) s17C - breach of duty of care - causation - plaintiff guilty of contributory negligence. DAMAGES Personal injuries - medial patella plica, prominent fat pad and condyle damage of the right knee - 19 year old male at the time of accident employed as an artist - small degree of permanent residual disability by reason of injury.Pain and suffering and loss of amenities $15,000 - loss of future earning capacity $12,000 - cost of future medical treatment $150 - special damages $5,405.27 - total assessment - $32,555.27 - less 15% for contributory negligence $27,671.98.
Materials Considered
• Commonwealth of Australia v McLean Delivered 31/12/96; Judgment No. 40487/96;
• Australian Safeway Stores Pty Ltd v Zaluzna (1986-1987) 162 CLR 479;
• Shoeys Pty Ltd v Allan (1991) Australian Tort Reports 68,934;
• Drakos v Woolworths (SA) Ltd 56 SASR 431;
• Jobling v Associated Dairies (1982) AC 794, referred to.
• Wrongs Act 1936 (as amended) s17C;
• Kocis v S.E. Dickens Pty Ltd (t/as Coles New World Supermarket) (1996) Australian Torts Reports 63292 &; 63311;
• Brady v Girvan Bros. Pty Ltd t/as Minto Mall (1986) 7 NSWLR 241;
• Brown v Target Australia Pty Ltd (1984) 37 SASR 145 at 149;
• Podrebersek v Australian Iron &; Steel Pty Ltd (1985) 59 ALJR 492 at 493-494;
• Versace v Messer (1993) 172 LSJS 409, applied.
• Hampton Courts Pty Ltd v Crooks (1957) 97 CLR 367 at 371;
• Jones v Dunkel (1959) 151 CLR 248;
• Payne v Parker (1976) 1 NSWLR 191, considered.
Representation
Plaintiff Daniel SARANTIDIS:
Counsel: Mr M. Kernot - Solicitors: FRANK WEBSTER &; ASSOCIATES
Defendant WESTFIELD SHOPPINGTOWN CENTRE TEA TREE PLAZA:
Counsel: Mr W. Boucaut - Solicitors: JERVIS SMITH &; THOMAS
DCCIV-95-285
Judgment No. D3594
24 April 1997
(Civil)
SARANTIDIS V WESTFIELD SHOPPING CENTRE TEA TREE PLAZA
CIVIL
JUDGE ROBERTSON
The plaintiff brings this action claiming damages against the defendant for injuries suffered by him as a result of a fall in the Tea Tree Plaza Shopping Centre ("the Shopping Centre") at Tea Tree Gully on 28 April 1993.The plaintiff claims that whilst alighting from an escalator which was transporting him from Level One to Level Two of the Shopping Centre he slipped on a liquid substance which caused him to fall.As a result of the fall the plaintiff suffered an injury to his right knee.It is alleged by the plaintiff that the injury was caused by the negligence of the defendant.The defendant denies negligence.
On Saturday 28 April 1993 the plaintiff was planning to visit his mother who was at that time a patient in the Modbury Hospital.The Modbury Hospital is adjacent to the Shopping Centre.The Shopping Centre is a shopping complex situated on two levels.It consists of various specialty shops together with department stores, supermarkets and cinema complex.
Prior to visiting his mother the plaintiff went to the Shopping Centre with the intention of browsing and shopping.He was familiar with the Shopping Centre as he would visit it on some two to three occasions a week.During the course of his visit he spent some time on Level One of the Shopping Centre.Level One consists of specialty shops, a supermarket, a department store and what is described as a Food Court.The Food Court is an area approximately 20 metres in length by 20 metres in width which contains a number of refreshment shops. The shops sold a variety of food and liquid refreshments.Most of the Food Court shops were situated around the outer perimeter of the Food Court.There were tables and chairs in the inner section of Food Court and at other places nearby for people to sit and consume their food and drink their liquid refreshments.Purchases were made at the counter of each Food Court shop. Customers had the option of consuming their food and drink at the tables and chairs or taking the food and drink away from the Food Court area.There were a number of outlets in the Shopping Centre which sold ice cream and ice cream based drinks and other forms of drink including approximately three such outlets in the Food Court.The principal or most convenient entry from Level Two to the Food Court on Level One or exit from the Food Court on Level One up to the shops on Level Two to the Food Court was by way of an escalator situated in the Food Court area.
After spending some time on Level One the plaintiff took the escalator in the Food Court with the intention of travelling to Level Two.It was from this level that he proposed to walk to the Modbury Hospital.As I said earlier, the escalator was the principal means of gaining access to Level Two from the Food Court.At the top of the escalator on Level Two the plaintiff stepped off the moving escalator stairs onto the metal exit plate with his right leg.On doing so he felt his right foot slip from underneath him in a backwards direction. He had been holding onto the hand rail of the escalator at the time but the slipping motion of his foot caused him to lose his grip.His right knee struck the metal exit plate at the top of the escalator.He fell forward with both his right hand and left hand making contact with the metal plate.The plaintiff said his right knee struck the metal plate with a substantial force. The plaintiff is a tall man.At the time of the accident he weighed approximately 100 to 105 kilograms.At the time of the accident the plaintiff was wearing leather boots and denim jeans.
After he fell the plaintiff said he arose quickly.It was after he arose that he looked down to the metal exit plate and observed that he had slipped on a substance which he described as a thick shake or melted ice cream which was light pink in colour.The plaintiff said that the substance measured about 26 centimetres by 17 centimetres.After arising he walked in the direction of the Myer store, on Level Two.It was near that store that he met a female called Helen with whom he was acquainted.This meeting occurred within a minute of the fall.At that time she was employed at a store called Jacqueline E situated on Level Two.Helen had called out to attract the plaintiff's attention.The plaintiff said a conversation ensued between them during the course of which she asked the plaintiff whether he realised he was bleeding. Thereupon he looked down and noticed blood appearing through his jeans below his right knee.The plaintiff said he also observed a damp patch on his jeans which he thought was part of the substance which had caused him to slip.
After the conversation with Helen concluded the plaintiff proceeded to the Modbury Hospital.He said he was feeling pain in his knee, it was throbbing and he felt that the knee was swelling.The plaintiff said that he went to the toilets in the hospital for the purpose of inspecting his knee.On lowering his jeans he observed that his right knee had three to four lacerations of varying length, approximately parallel to each other and traversing the knee. The plaintiff left the hospital toilet and visited his mother.Following the visit he attended at the casualty section of the hospital and received medical treatment for his injury.X-rays were taken of his right knee.It was bandaged and he was provided with crutches to aid his mobility.On 4 May 1993 he sought medical treatment from his general practitioner Dr David Duffield.
The first issue which arises between plaintiff and the defendant is whether the plaintiff suffered a fall as a result of slipping on a liquid substance at the top of the escalator.Whilst the defendant accepts that the plaintiff suffered a fall in the Shopping Centre on 28 April 1993 it denies that the fall was caused by the plaintiff slipping in a liquid substance at the top of the escalator.This denial brings squarely into issue the credit of the plaintiff. The defendant submitted that the plaintiff's evidence of the fall should not be accepted.Counsel for the defendant, Mr Boucaut, said that the". generally unsatisfactorydemeanour of the plaintiff as a witness ." and other factors supported this submission.
I accept the plaintiff's evidence regarding the circumstances of the accident. The plaintiff gave his evidence in a straight forward manner.I considered his demeanour to be most satisfactory.There was no attempt to embellish his evidence or exaggerate the extent of his injury.There was nothing in his evidence or his manner in giving the evidence which suggested to me that he was not telling the truth.Counsel for the defendant pointed to four specific matters which he submitted demonstrated that the plaintiff was not telling the truth regarding the circumstances of the accident.I will deal with each of these shortly.At this point I should indicate that I have taken into account counsel for the defendant's submissions regarding the credit of the plaintiff. None of those submissions have persuaded me that the plaintiff was not a creditable witness.
As I have said, Counsel for the defendant submitted that there were four matters which demonstrate that the plaintiff's evidence regarding the circumstances of his fall should not be accepted and they are:-
ù the inordinate length of time between the alleged slip and the plaintiff notifying the defendant (5 months);
ù the generally unsatisfactory demeanour of the plaintiff;
ù the lack of credibility of the evidence by Mr Montiadis which reflects on the overall veracity of the plaintiff's claim bearing in mind the relationship between Mr Montiadis and the defendant;
ù the history of the accident taken by a medical officer at the Modbury Hospital on 28 April 1993.
I do not accept that the period of 5 months from the time of the accident until the defendant received notice of the accident from the plaintiff's solicitors is an inordinate length of time in the circumstances.In any event the plaintiff's evidence of the events leading up to him instructing solicitors to make a claim is quite plausible.I accept his evidence on this subject.The period of time does not detract, in my opinion, in any way from his evidence that he slipped on a liquid substance.
I turn to the second submission.I have already dealt with the plaintiff's demeanour in giving his evidence.I found his demeanour in the witness box and the manner he gave his evidence most satisfactory.
The third point raised by counsel for the defendant deals with the evidence of Mr Montiadis.Mr Montiadis gave evidence of physiotherapy treatment which was provided to the plaintiff at his clinic.I deal with the evidence of Mr Montiadis in some detail when I come to consider the question of special damages.For the moment I should indicate that I found his evidence regarding the amount of services he provided to the plaintiff to be unsatisfactory.I have not accepted his evidence on this point.I have relied on the plaintiff's evidence regarding the extent of the services provided by Mr Montiadis to the plaintiff.Counsel for the defendant did not state the reason why the lack of credibility of Mr Montiadis on the subject of services provided reflects on the overall veracity of the plaintiff.In any event, my finding regarding the evidence of Mr Montiadis has not caused me to doubt the plaintiff's evidence regarding the circumstances of the accident.
The final point made by counsel for the defendant related to the history taken by the medical officer at the Modbury Hospital Casualty Department when the plaintiff consulted him on 28 April 1993.That history was contained in a report of Dr Williamson of the Modbury Hospital.Dr Williamson was not the doctor who treated the plaintiff on the occasion the plaintiff attended at the Casualty Department on the day of the fall.In his report Dr Williamson described the history taken from the plaintiff as:-
". that he had some how slipped and fallen at Tea Tree Plaza.When he fell, he said he had hit his right knee on the edge of the escalator step"
The medical officer who took the history and treated the plaintiff on that day was not called to give evidence.Dr Williamson said the reference in his report was virtually aparaphrase of the hospital notes.The plaintiff says that the history as described is incorrect.In my view it is virtually impossible to assess such an issue when the medical officer who took the history was not called and what has been presented is a paraphrase of the hospital notes.Errors can occur in the taking down of a history by a medical practitioner.Asthe doctor was not called I have not had an opportunity of observing him give his evidence.There has been no opportunity to cross examine the doctor. In view of the absence of the medical practitioner who recorded the history I am not prepared to rely upon it as an accurate record of what was stated by the plaintiff on that occasion.Furthermore, the evidence of Dr Williamson does not persuade me that the plaintiff is not telling the truth regarding the circumstances of the accident.I also observe in this context that the history taken by Dr Duffield on 4 May 1993 regarding the circumstances of the accident is consistent with the plaintiff's evidence. This lends weight to the plaintiff's evidence regarding the fall.
As part of Mr Boucaut's attack on the plaintiff's credit he submitted that the failure by the plaintiff to call Helen, the person the plaintiff spoke to shortly after the fall, should lead to the inference that her evidence would not have assisted the plaintiff.The defendant relied upon what is called "the rule" in Jones v Dunkela decision of the High Court reported in (1959) 151 CLR 298.In Payne v Parker (1976) 1 NSWLR 191 Glass J A, in the New South Wales Court of Appeal provided a useful guide to the application of "the rule" at pages 200-202:-
"(1) The rule is a principle of the law of evidence whereby a particular form of reasoning is authorized.
(2)The reasoning which is permissible involves the treatment of a failure to adduce evidence as a reason for increasing the weight of the proofs of the opposite party or reducing the weight of the proofs of the party in default . The principle may be invoked for a deficiency in the evidence either of a party bearing the legal onus of proving an issue, or of a party bearing the evidentiary burden only . If the failure is of the former kind, a consonant formulation would be that the direct evidence of the party carrying the onus may be more readily rejected, and the inferences for which he contends may be treated with greater reserve .
(3)The failure to call a particular witness is merely one instance of evidentiary deficiency which brings the principle into operation.Other instances are the failure to adduce any evidence at all . the failure to produce a particular document, and the failure to prove a particular fact.
(4).
(5)Whether the principle can be applied is a question of law which admits of only one answer.No exercise of discretion is involved .
(6)Whether the principle can or should be applied depends upon whether the conditions for its operation exist.These conditions are three in number: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained.
(7)The first condition is also described as existing where it would be natural for one party to produce the witness . or the witness would be expected to be available to one party rather than the other . or where the circumstances excuse one party from calling the witness, but require the other party to call him . or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him . or where the witness' knowledge may be regarded as the knowledge of one party rather than the other . or where his absence should be regarded as adverse to the case of one party rather than the other.
(8). the condition is made out when the witness is presumably able to put a true complexion on the facts . would have a close knowledge of the facts . or where it appears that he had knowledge . I would think it insufficient to meet the requirements of principle that one party merely claims that the missing witness has knowledge, or that, upon the evidence, he may have knowledge. Unless, upon the evidence, the tribunal of fact is entitled to conclude that he probably would have knowledge, there would seem to be no basis for any adverse deduction from the failure to call him.
(9)The third condition is satisfied if no explanation is offered for the absence of the witness, or the tribunal thinks that the explanation is given is unsatisfactory.The explanation tendered may be that the witness is ill, overseas, dead or refuses to waive his privilege ..."
These observations were approved by the New South Wales Court of Appeal in the recent decision of Commonwealth of Australia v McLean (delivered 31 December 1996: Judgment No 40487/96).
I am not prepared to draw the adverse inference urged upon me by counsel for the defendant.I am satisfied with the plaintiff's explanation that as far as he was aware Helen was in Europe at the time of the trial.Accordingly, the third condition laid down in point (6) in Payne has not been satisfied.Apart from that, it is not clear what evidence could have been provided by Helen. The plaintiff's evidence is that he spoke to Helen within a minute of the fall. There is no evidence to suggest that she saw the plaintiff fall.She directed the plaintiff's attention to blood on the right leg of his jeans.In view of that observation she may have been able to give evidence regarding the condition of the right leg of his jeans at that time.That would seem to be the extent of the evidence that she could have given to the Court.
There is one further matter which I should address regarding the plaintiff's description of the accident.During the course of the trial, each of the medical practitioners who gave evidence offered an opinion regarding whether the lacerations appearing on the plaintiff's knee were consistent with his description of having fallen on the metal exit plate of the escalator or whether they were consistent with having suffered the injury as a result of coming in contact with the edge of an escalator step as was described in the history taken from the hospital notes.The opinions vary.I have grave doubt whether any of the medical practitioners have the appropriate expertise upon which to offer an opinion of that nature.Indeed, some of those medical practitioners specifically eschewed such an expertise.Even allowing for the fact that the providing ofsuch an opinion came within the expertise of each of the medical practitioners, what became obvious in listening to the evidence was that there were so many variables which could arise in providing of such an opinion that I formed the view that such opinions were of little or no help.
In the end, I am satisfied that the plaintiff's evidence regarding the fall was truthful.I therefore find that the plaintiff suffered the injury to his right knee as a result of his right foot slipping on a liquid substance lying on the metal exit plate of the escalator on Level Two of the Shopping Centre.
Having determined that issue I now turn to consider whether the defendant has been negligent and whether its negligence caused the injuries suffered by the plaintiff.As I indicated earlier, the Shopping Centre contains various stores and supermarkets situated on two levels.There is also a cinema complex.I also said earlier that the Food Court had various stores around its perimeter selling various types of food and some sold liquid refreshments.In the Food Court there were approximately three outlets which sold ice creams, milkshakes, thick shakes and other forms of liquid refreshment.A thick shake is a flavoured milk based drink with a high percentage of ice cream contained in it. At the foot of the escalator between the Food Court on Level One and Level Two there was a store called "Quick Sip".This store sold various drinks including milkshakes and thick shakes.As I stated earlier the most convenient route for access to Level Two from the Food Court was by means of the escalator situated in the Food Court.At the top of the escalator was a common mall area or walkway.This common mall area or walkway leads to other common walkways that are contained on Level Two.For ease of reference I will describe the common mall areas or common walkways as "walkways".The walkways allow visitors to the Shopping Centre to gain access to the various parts of Level Two and, of course, access to the various stores on that level.
The defendant called evidence of a cleaning system which it said operated in the walkways and other common areas of the Shopping Centre at the time of the accident on 28 April 1993.At the date of the accident the defendant contracted out the cleaning of the walkways and other common areas of the Shopping Centre, including the Food Court, to a cleaning contractor called Tempo Cleaning Services.Mr West who is employed by the defendant as the marketing manager of the Shopping Centre gave evidence that in April 1993 Tempo Cleaning Services provided cleaning staff who were responsible for cleaning the Level One and Level Two walkways of the Shopping Centre and the other common areas.He said that from the time the Shopping Centre opened in the morning until it closed there were three cleaners on duty in the Food Court.One of the cleaner's duties was to sweep and mop the floors around and under the tables.Another was responsible for cleaning the actual tables.The third cleaner was to look after the rubbish bins and make sure that rubbish was removed from the Food Court.The number of cleaners in the Food Court, according to Mr West, increased to six during the lunch period.He said this number of cleaners would revert to three around about 3 o'clockeach afternoon.
For the walkways on Level Two there was one cleaner assigned each day.This cleaner was armed with a metre wide mop broom.The duty of the cleaner was to sweep the walkways with the broom.Mr West said that the cleaner on Level Two would take fifteen to twenty minutes to complete a circuit of the walkways on that level.The area immediately in front of the exit point at the top of the escalator was part of the walkway.He said that this time for a complete circuit of the walkways by the cleaner on Level Two was an estimate.There had been no actual timing of a cleaner performing these duties.Mr West said that there had been a reconstruction of the circuit undertaken by a cleaner which had been timed.Mr West said that if that cleaner detected a spillage then the cleaner was required to go to a storage station and collect a mop and bucket for the purpose of cleaning up the spillage.Mr West estimated that it would take a minute or two to clean up a spillage from the time it came to the cleaner's attention.He said that this time was in addition to the time estimated for that cleaner to perform a circuit of the walkways.Mr West also said that there was other staff of the Shopping Centre moving around the walkways and other common areas during the day.He said they had been instructed to look out for spillages.He also said that store keepers had also been asked to keep their eye out for spillages.
Mr West said that the metal exit plate where the accident occurred was part of the area under the care of the cleaner on Level Two.He provided some general evidence in relation to his understanding of the cleaning system that applied to the escalators.I say general evidence because it was not his evidence that he had observed how the system worked in relation to the escalators but what he understood was the system.He did not indicate upon what he based his understanding.I set out below his evidence on this subject:-
"Q. It is not for the cleaners downstairs to be concerned with the level above - that is, the cleaners designated to the Food Court area.
A. Generally they won't be, unless called in an emergency, yes.
Q.So the cleaning of the escalator would not be the responsibility of the cleaners in the Food Court area.
A Both.The upstairs cleaners would also be watching the escalators, but the downstairs cleaners would also be concerned with that area near the escalators, and on the escalators too, because of the direction.
Q. But the downstairs cleaners, or the Food Court cleaners, would not travel up the escalator, would they, to check -
A.No, they wouldn't travel up the escalator; but they would observe.
Q. They would observe that area of the escalator.
A.Yes.
Q. That was on Level One, but would not travel to Level Two.
A.No."
The defendant also called a Mr Dobi who was employed as a supervisor by Tempo Cleaning Services in April of 1993.His duties were to constantly walk around the walkway and common areas including the Food Court walkways to ensure that everything was kept clean.He said it would take him roughly half an hour to three quarters of an hour to walk the entire Shopping Centre, although he would spend most of that time in the Food Court.He said that the total complement of cleaning staff in the Shopping Centre from 8.30 in the morning until 5.30 at night was usually five except during the lunch period.He said that three of the cleaning staff were always assigned to the Food Court and the other two were within the walkways and other common areas on Level One and Level Two. He said that in the lunch period a further two cleaners were assigned to the Food Court.Mr Dobi said that on Level Two the cleaner was generally armed with a dust mop for sweeping the floor.He said that there were two cleaning rooms on Level Two where the cleaner could obtain equipment for the purpose of cleaning up a spillage.He further said that it would take a cleaner a minute to two minutes at the most to go to the cleaning room and obtain equipment to clean up a spillage.He said the cleaner on Level Two would take roughly fifteen to twenty minutes to complete a circuit of the walkways.He said, fifteen minutes if there were no spillages and twenty minutes if there were spillages.He did not say how he estimated the time for completion of a circuit.
I now turn to consider the law applicable to the plaintiff's claim.Section 17C of the Wrongs Act 1936 (as amended), provides:-
"17C. (1) Subject to this Part, the liability of the occupier of premises for injury, damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.
(2)In determining the standard of care to be exercised by the occupier of premises, a court shall take into account -
(a)the nature and extent of the premises; and
(b)the nature and extent of the danger arising from the state or condition of the premises; and
(c)the circumstances in which the person alleged to have suffered injury, damage or loss, or the property of that person, became exposed to that danger; and
(d)the age of the person alleged to have suffered injury, damage or loss, and the ability of that person to appreciate the danger; and
(e)the extent (if at all) to which the occupier was aware, or ought to have been aware, of -
(i)the danger; and
(ii)the entry of persons onto the premises; and
(f)the measures (if any) taken to eliminate, reduce or warn against the danger; and
(g)the extent (if any) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger; and
(h)any other matter that the court thinks relevant.
(3)The fact that an occupier has not taken any measures to eliminate, reduce or warn against a danger arising from the state or condition of premises does not necessarily show that the occupier has failed to exercise a reasonable standard of care."
(4)..
(5).."
The common law on occupier's liability is also determined in accordance with principles of the law of negligence (see: Australian Safeway Stores Pty Ltd v Zaluzna (1986-1987) 162 CLR 479.Subsection (2) of Section 17 indicates matters to be taken into account in determining the standard of care to be exercised by an occupier of premises.Some assistance can be gained on the issue of negligence from the common law decisions on occupier's liability.
The issues in this case in determining whether the defendant is liable are whether there has been a breach of duty of care and whether that breach of duty was the cause of the injury.It is conceded by the defendant that it owed a duty of care to the plaintiff whilst the plaintiff was at the Shopping Centre. The extent of the duty of care of an occupier was expressed by Hayne J in the Victorian Supreme Court in Kocis v S.E. Dickens Pty Ltd (t/as Coles New World Supermarket) (1996) Aust. Torts Reports 63,292 at 63,311 in the following terms:-
"It is clear that an occupier of premises is no insurer of those who enter the premises.All that is required of an occupier is that reasonable care be exercised.If follows that the occupier is not to be held liable if a person entering the premises slips upon something which the occupier could not, by the exercise of reasonable care, be expected to have cleared away".
It was also conceded by the defendant that in the circumstances here it ought to have been aware of the likelihood of spillage's occurring from time to time and as a result thereof it was required to take steps to ensure that such spillage's were cleaned away as soon as was reasonably possible. In other words, it is accepted by the defendant that in the circumstances, it was inherently likely that spillages or the dropping of substances was likely to occur (see: Hampton Courts Pty Ltd v Crooks (1957) 97 CLR 367 at 371).Whilst the defendant acknowledged that it owed a duty of care it was the defendant's case that it was not in breach of that duty of care.Expressed another way, the defendant submitted it had discharged its duty of care as a result of the cleaning system it said was in operation at the Shopping Centre on the day of the accident.
From what I have said, it is apparent that the first issue between the parties regarding the defendant's liability is what was the standard of care required of the defendant for the cleaning of the spillages in the Shopping Centre and whether the cleaning system met that standard of care.In other words, did the defendant have a cleaning system operating on the day the plaintiff sustained his injury and did that cleaning system discharge the defendant's duty of care?
Some guidance regarding the standard of care required an occupier of premises in circumstances which have some similarities which are present in this action is found in the decision of the New South Wales Supreme Court in Brady v Girvan Bros. Pty Ltd trading as Minto Mall (1986) 7 NSWLR 241.At pages 246-247 Kirby P observed:-
"The law imposes a duty on the occupier of premises, the requirements of which vary with the circumstances.In the circumstances of a private dwelling, with relatively few visitors, the scope of what may reasonably be expected will be much more circumscribed.In the case of a public facility, such as a shopping mall, with many visitors of all ages, including some who are immature and impetuous or old and frail, the requirements of the duty will be more substantial .The respondent was in charge of a large commercial enterprise. Undiscriminatingly, it invited members of the public to do business in that enterprise.It derived, by inference, an economic advantage from their presence in its mall.It must anticipate the presence there of members of the public of all ages, inclinations and capacities.It must be taken to be aware of the presence of the confectionery shop. It may be inferred to know of the special risks arising from the fall of such confectionery on a busy thoroughfare .
I consider that it was precisely this kind of situation to which Dixon CJ was directing his remarks in Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371, when he added these observations to the majority judgment:
". the jury might reasonably find the cause of the plaintiff's injuries to be the presence on the floor of a wet substance of a greasy nature . I do not think that proof of this fact was enough to enable the jury to infer negligence on the part of the defendant: proof was necessary of some additional circumstances tending, for example, to raise a probability of its having been there long enough to be seen if reasonable supervision were practised, or to show that so many people were likely to use the lavatory in the preceding hour that closer control was called for, or that the dropping of some such substance was common or inherently likely to occur."
Although minds may differ about the consistency of Dixon CJ's approach with that of the majority in Hampton Court Ltd v Crooks, I regard this passage, with its reference to the taking of precautions against risks "inherently likely to occur" as eminently sensible.Admittedly it contains an element of circularity.But the test is nonetheless a useful one. If the circumstances are such that the dropping of substances is liable to cause a fall and if this was "inherently likely to occur", the mere fact that the claimant (with imperfect knowledge or means of knowledge as to the system adopted by the occupier) cannot show precisely that such falls have been common and cannot prove exactly the precautions actually taken, does not deprive him or her or recovery from the occupier in the event of injury.If the inherent likelihood of spills is great, it is entirely reasonable that those coming onto the premises should be able to look to the occupier for a very high degree of care indeed". (Emphasis added).
In Girvan McHugh J also made some helpful comments at pages 254-255:-
"Whether or not the existence of a spillage gives rise to an inference of negligence must depend upon all the circumstances of the case.One circumstance of great importance is that the Minto Mall was a public place. The number of people who use the premises, the frequency with which spillages occur, the gravity of the danger, and the area to be supervised are also relevant circumstances in determining what standard of care is reasonably required to avoid risk of injury.Equally important in determining what reasonable care requires is the importance to the community of accident prevention.The High Court has recently stated that accident prevention is unquestionably one of the modern responsibilities of an employer: McLean v Tedman (1984) 155 LCR 306 at 313; Bankstown Foundry Pty Ltd v Braistina (1986) 60 ALJR 362 at 365; 65 ALR 1 at 7.Likewise, accident prevention is one of the responsibilities of those who for reward, direct or indirect, invite or permit members of the public to attend their premises.Members of the public are entitled to expect that appropriate steps will be taken to safeguard them against danger in using public places.The enormous burden which accidents are placing on our health and social welfare services is also relevant.To injured individuals, to their families and employers, and to the wider community the financial and social consequences of accidents are too great to be ignored in determining what reasonable care requires.Reasonable care varies "with changing ideas of justice and increasing concern with safety in the community": Bankstown Foundry Pty Ltd v Braistina (at 365;6).
When many people are using public premises, reasonable care may require a system of almost constant inspection and cleaning-up of spillages and other rubbish unless the risk of injury is slight.In that class of case an inference of negligence may arise from proof of the occurrence, even though the plaintiff is unable to prove how long the spillage existed, because the occurrence gives rise to the inference that a failure to provide or maintain the required system caused the injury to the plaintiff."
Whilst assistance may be gained from remarks made in this and other decisions it should be acknowledged that they provide nothing more than assistance and that each case must be decided on its own facts.As Phillips J.A in Kocis said at page 63,299:-
"The standard of care and therefore the actual steps that will be sufficient to discharge that obligation will however depend upon the particular circumstances of the case".
Having said that Phillips J's comments at page 63,300 also provide some useful guidance in determining the issue:-
Once it has been determined that, because the spillage of slippery substances is to be expected from time to time, the operator of the supermarket is under some obligation, in taking reasonable measures for the safety of its customers, to look to the cleaning of the floors in the course of the day in order to protect against the risk otherwise arising from spillages, the question is what particular steps will serve to discharge that obligation.Each case will turn on its own facts.As McHugh, J.A. said in Brady at Aust Torts Reports 68,249; NSWLR 254:-
'The number of people who use the premises, the frequency with which spillages occur, the gravity of the danger, and the area to be supervised are also relevant circumstances in determining what standard of care is reasonably required to avoid risk of injury.'
Where the circumstances are such as to require the operator of the supermarket to have in place some system of periodic cleaning and inspection to guard against the risk of injury from spillages, then the question for the jury (or other fact-finding tribunal) will be whether the defendant discharged that duty at the time of the plaintiff's fall.If, in a given case, the defendant is shown by the evidence to have had no system in place for the periodic inspection and cleaning of the floor; or if, such system being otherwise in place, it was not in operation at the relevant time; or if, perhaps, there was a system but the jury is of the view that it was less than adequate or less than was required by way of reasonable measures on the part of the defendant for the safety of customers including the plaintiff - then, the jury may find the defendant to have been in breach of the duty it owed to the plaintiff to take reasonable measures for the safety of its customers including the plaintiff.
On the other hand, if the defendant had in place a system for periodic inspection and cleaning and the jury considers that that system was in operation at the relevant time and was adequate to discharge the defendant's obligation to take reasonable measures for the safety of its customers ( or more strictly speaking, if the jury is not satisfied to the contrary), then ordinarily the jury will find no negligence on the part of the operator, notwithstanding the occurrence of the plaintiff's accident ." (Emphasis added)
In Brown v Target Australia Pty Ltd (1984) 37 SASR 145 the observations of King C J at page 149 also provide invaluable assistance:-
"If, viewed in the totality of the circumstances, including the inherent likelihood of the occurrence, the presence of slippery matter on the floor is more consistent with failure to exercise reasonable care than with the exercise of such care, there is ipso facto some evidence of failure to exercise reasonable care.This evidence may be answered by evidence providing a satisfactory explanation, consistent with due care, as to how and when the substance came to get on the floor or by satisfactory evidence as to the taking of reasonable precautions for the protection of invitees and the due and careful implementation of those precautions.In the absence of such evidence, however, the court is entitled to find that the occupier has failed to exercise reasonable care to protect the invitee from a danger of which he ought to have been aware." (Emphasis added).
The number and nature of the shops in this Shopping Centre indicate that the Shopping Centre was likely to attract large numbers of people at all times of the shopping day.The food and drink sold in the Food Court made it inherently likely that from time to time slippery substances would appear, not only on the floor of the Food Court but also on the escalator, the walkways and other common areas of the Shopping Centre.Apart from the Food Court, it seems to me that two other likely vulnerable points where spillage may occur would be at the point of entry onto the escalator in the Food Court and at the point of exit from the escalator on Level Two.Experience in the use of escalators would indicate that a clumsy exit is possible at the point where the moving escalator steps cease and the user steps onto the stationary exit plate.
The evidence given by the defendant was general evidence that a cleaner was assigned each day to clean the walkway and other common areas on Level Two including that part of the walkway adjacent to the exit point of the escalator on Level Two.The evidence was that this cleaner, armed with a dust mop, would take approximately fifteen to twenty minutes to complete one circuit of the walkways.The effect of the evidence was that the cleaner would pass the same point each fifteen to twenty minutes. There was other general evidence from Mr West who said that there were other members of the defendants staff who would be regularly in the walkways and other common areas who would be looking out for spillages. There was also the evidence of Mr Dobi who said he would be constantly touring the centre including the walkways.
The cleaner assigned to clean the walkways on Level Two, which included the area immediately adjacent to the escalator, was not called to give evidence. Mr West indicated that the cleaner was a female.No explanation was given as to why she was not called.It could be expected that in her evidence she would have explained precisely the method by which she cleaned the walkways assigned to her and whether her duties included dealing with spillages on the escalator exit plate.Her evidence would also likely to have indicated whether she was on duty on the day of the accident and whether she was fulfilling her duties in accordance with her practice.As I indicated earlier, the only evidence given regarding the cleaning of the escalators was that of Mr West.His evidence was that there was no specific practice adopted by any of the cleaning staff relating to the inspection and cleaning of the steps of the escalator or other parts of the escalator.He said the Food Court cleaners would not travel up the escalator but they would observe.The evidence was also unsatisfactory in that it was not evidence of his actual knowledge of what was done by observation on his part but only evidence of his understanding based upon assumptions.In my view that evidence is of little assistance.
Counsel for the defendant, Mr Boucaut, submitted that as the defendant was not notified of the accident until approximately five months after it occurred then it was ". impossible for the defendant to answer questions as to the reasonableness or otherwise of the cleaning regime in place at the relevant time other than in general terms."He said that the fact the particular cleaner was not called is irrelevant because she could not have provided any evidence regarding the presence or otherwise of the spillage because the report of the incident took place such a long time after it occurred.I am not convinced that it follows that because of the length of time in reporting that the cleaner could have been of no assistance regarding the spillage which led to the fall.However, even assuming that to be the case, that cleaner could still have provided assistance as to whether she was on duty on that day and the methodology she used in her cleaning duties on that day.The only evidence touching on the issue of the presence of a cleaner in the relevant walkways on 28 April 1993 was provided by Mr Dobi in the following manner:-
"Q. On 28 April 1993, did you have a full complement of staff.
A.Yes, we did.
Q. Is there anything in place - in the event that somebody would not come to work on a given day, is there something that you would have to do.
A.Yes.Either I would have to organise another person to fill in that position, like from the night staff, because we didn't have any casuals, and mainly it was all the night staff that filled in for staff that were off sick.
Q. If somebody doesn't front up, you fill up the numbers.
A.Yes."
I do not accept the submission by counsel for the defendant that, in the circumstances of this case, the giving of evidence of a general nature regarding the cleaning regime is sufficient to establish that there was a cleaning system in operation on the day of the accident and the nature of that system.In my view, the defendant was required to provide evidence regarding what occurred on that day to discharge the onus that there was a cleaning system in place of such a nature as to discharge the duty of care owed to the plaintiff.That evidence could have been provided by the cleaner who was assigned to cleaning duties in the relevant area on that day.As I indicated earlier, there was no explanation provided for the absence of that witness.As a result, I am not satisfied that there was on the day of the accident a cleaner performing her duties in the manner described by the general evidence given by witnesses for the defendant.The comments of King C.J. in Brown are apposite here where he said at pages 144-149:-
"The present case must be decided on its own facts . There was therefore an inherent likelihood of the floor becoming slippery in consequence of spillages from time to time.Reasonable care for the protection of customers from the danger of slipping required, therefore, a considerable degree of supervision of the condition of the floors.The fact that the oil was on the floor is some indication of inadequate supervision and some evidence therefore of failure to exercise reasonable care.As evidence of negligence, it was perhaps of no great cogency and could readily have been displaced by credible and satisfactory evidence of reasonable precautions.The only such evidence was general evidence that it was the practice for cleaners to clean the floors before the shift started, that the manager generally supervised the store, and that employees who observed spillages, would summon a boy with a bucket and mop to clean up.There was no specific evidence as to what occurred on this day. No witness was called to prove that the cleaners cleaned the store and cleaned it properly on the morning of the accident.The manager was not called. There was no explanation for failure to call these witnesses.The precautions taken for the safety of customers were entirely within the knowledge of the respondent and its employees.Failure to call evidence as to the precautions taken or to explain its absence greatly strengthens the inference of negligence to be drawn from the presence of oil on the floor of the supermarket in circumstances calling for the vigilance of the respondent to detect spillages and to remove promptly any danger resulting from them".
(Emphasis added).
It follows from what I have said that I find that there is no evidence of any cleaning system operating in the walkways on Level Two and in the area where the accident occurred on that day.In my view, the circumstances here required that the defendant have an operating cleaning system which included the area of the escalator exit plate.In the absence of any evidence of a cleaning system operating on the day of the accident I find that the defendant was in breach of its duty of care to the plaintiff in that it did not have an inspection and cleaning system operating at all.
Even if I was satisfied that the evidence disclosed that there was a cleaning system operating on the day of the accident in the manner described by the general evidence provided the defendant I should indicate that I would not have been satisfied that such a system was adequate to discharge the defendant's duty to take reasonable steps for the safety of its customers.As I said earlier, in my opinion, the area at the top of the escalator was a likely danger point for the spillage of slippery substances being carried from the Food Court to Level Two.It seems to me that when considering an adequate cleaning system that this point needed to be treated as if it was part of the Food Court.The approach taken by the defendant, assuming that the Level Two system described in the general evidence was in operation on that day, was to treat the area at the top of the escalator, including the exit plate, as part of the area assigned to the cleaner of the walkways on Level Two.As I have stated, this involved a circuit system which meant that the same point was passed each fifteen to twenty minutes.In my view, such a system was not adequate for the point of exit from the escalator.The defendant's duty required it to provide a more regular system of inspection and cleaning for that point than the fifteen to twenty minute system which operated for the walkway on Level Two.
The defendant recognised that a more concentrated system of inspection and cleaning was required for the Food Court than the walkways.It can be assumed that it did so because it recognised that the area was vulnerable to spillages. In my opinion, the same approach should have been taken in dealing with the area at the top of the escalator.For different reasons it was an area vulnerable to spillages.It should not have been treated in the same way as the walkways on Level Two.The likelihood of spillages in the walkways would not have been likely to occur at the same level of frequency as that at the exit point from the escalator.Therefore, even if I had accepted that the general evidence by the defendant was sufficient to establish the nature of the cleaning system on the day of the accident in the area adjacent to the exit plate, I would have found that such a system was not sufficient to discharge the duty of care which the defendant owed to the plaintiff.In my opinion a system which required more frequent inspections of the exit point was required than the system which only provided an inspection of that area every 15-20 minutes.As I have stated, the exit point was of such likely vulnerability that it merited a more concentrated inspection and cleaning system than that which applied to the walkways on Level Two.
I now turn to the issue of causation.Not only is it necessary for the plaintiff to establish that there had been a breach of the duty of care owed by the defendant but the plaintiff must establish that his injury occurred as a result of a breach of that duty of care.As I have already said, there was no direct evidence that a system of cleaning on Level Two was operating on the day of the accident.As a result I have found that there was no system of cleaning and inspection operating on that day at the point of exit from the escalator. It follows from that finding that the defendant's breach of duty of care was the cause of the plaintiff's injuries.In other words, if an adequate system of cleaning and inspection was in place then the plaintiff would not have been injured.As there was no such system in place then the negligence by the defendant in failing to clean up the liquid substance was the cause of the plaintiff slipping and injuring himself.The approach I have taken is consistent with the approach taken in such cases as Brown (supra) (see: King C J at 149-150); Shoeys Pty Ltd v Allan (1991) Australian Tort Reports 68,934; Drakos v Woolworths (SA) Ltd 56 SASR 431.
I earlier stated that even if I had found that there was a system operating on the day of the accident similar to that described in the general evidence of the defendant I did not feel that such a system discharged the defendant's duty of care to the plaintiff.For the plaintiff to succeed, in such circumstances, he would also need to establish that the defendant's negligence caused his injury.The issue of causation would need to be considered against the background of the plaintiff's negligence in those circumstances.However, because it is unnecessary for my decision I do not propose to proceed to consider the question of causation arising if I had found that the plaintiff was negligent in that manner.
The defendant claims that if it is guilty of negligence then the plaintiff is guilty of contributory negligence.In considering whether there should be any apportionment of liability it is important to bear in mind the comments of the High Court in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR
492 at 493-494.
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v Norris ) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd; Smith v McIntyre and Broadhurst v Millman, and cases there cited.It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."
The plaintiff was stepping off an escalator.As I indicated earlier, it is a likely vulnerable point in the process of using an escalator.The user is stepping from a moving step onto a stationary plate.If care is not taken in the stepping off procedure the exit could be clumsy and cause loss of balance. Because it is a vulnerable point then a person taking appropriate care for his own safety, should, in my opinion, look down at the stepping off point to ensure that there is a safe completion of the transition from the moving escalator to the stationary exit plate.If the plaintiff had looked down it was likely that he would have seen the liquid substance and may have avoided stepping in it.In my view, he was not taking reasonable care for his own safety in failing to look down prior to stepping off the moving step of the escalator.I therefore find the plaintiff guilty of contributory negligence to the extent of 15%.
I now turn to the issue of damages.The plaintiff claims damages under the following heads:-
ù Pain and sufferingand loss of amenities of life.
ù Loss of future earning capacity.
ù Cost of future medical treatment.
ù Special damages.
Following the accident the plaintiff suffered bruising, swelling and lacerations to the right knee which injuries caused him pain and discomfort. He was initially treated at the casualty section of the Modbury Hospital.He was required to use crutches for the first two to four days after the injury. He consulted with his general practitioner Dr David Duffield on 4 May 1993.Dr Duffield recommended that he undertake some physiotherapy treatment.He said that he received physiotherapy treatment at the clinic of Mr Rick Montiadis around two to three times a week for about four to six weeks whilst he was still suffering pain in his knee.Following physiotherapy treatment he said he felt that his knee was slightly improved. The plaintiff said that during the period of physiotherapy treatment the pain could not be described as "dramatically painful" but it was annoying.The plaintiff said that he felt more comfortable when he was moving about than when he was resting.He said that when he was resting the pain seemed to be greater. He said he did not suffer any great limitation of movement.He suffered some sleep disturbance. The plaintiff stated that some days were better than others.At the time of the accident he was engaged in various forms of artwork.After the accident whilst undertaking his art work he needed to move around every fifteen minutes from his sitting position to enable him to obtain relief from the discomfort in his knee.
In January of 1994 he was involved in a motor accident in which he sustained injuries including an injury to his left knee.He was referred to Mr Anthony Spriggins, an orthopaedic surgeon, with regard to his left knee.As a result of making a complaint to Mr Spriggins about his right knee, Mr Spriggins performed arthroscopic surgery on the plaintiff's right knee in March 1995. During surgery, Mr Spriggins observed a medial patella plica, a prominent fat pad and condyle damage.Post operatively the plaintiff suffered substantial swelling, bruising and pain.These problems were at their peak in the first four or five days.After that the pain and discomfort settled down but the plaintiff continued to experience a problem with his right knee.He felt that surgery had not improved the knee.
As a result of the continuing problem with his right knee the plaintiff was referred to Mr David Martin, another orthopaedic surgeon.Further arthroscopic surgery was performed on the plaintiff's right knee on 20 February 1996.Mr Martin reported that the arthroscopic surgery revealed that there was a minor split in the chondral and a synovial lesion on the medial side which was pressing against the medial meniscus.These problems were attended by Mr Martin during the surgery.After the surgery the plaintiff suffered pain and swelling for about four to five days.He received some physiotherapy and rehabilitation treatment.The plaintiff said that since that surgery his knee has improved about 70%.The knee does not throb as it did prior to the surgery and he can now tolerate the discomfort.He said he can now sit down for longer periods before the knee starts to swell.The plaintiff says there has been much more movement.He described the discomfort now in his right knee as slight.
Whether the right knee restricts the plaintiff from any of the activities that he undertook prior to the accident is difficult to determine because of the effect of the injuries he suffered in the motor accident.He feels that the right knee does not cause any significant disruption in his capacity to engage in his artwork.Prior to the motor accident his pre-accident activities were restricted due to problems with his right knee.Activities such as scuba diving, rollerblading, ice skating and bike riding could not be undertaken in the period from the Shopping Centre accident to the time of the motor accident. However, since the motor accident the plaintiff considers that it is the injuries from that accident which prevent him from engaging in those type of activities not any restriction caused by his right knee.
Mr Martin is of the opinion that the plaintiff will continue to have some discomfort in his right knee if he sits for any extended period of time. Activities such as squatting and climbing will cause him some pain and discomfort.He estimated the plaintiff's permanent residual disability to his right knee at about 2% loss of full and efficient use of his right lower limb at or above the knee.Mr Brian Cornish, another orthopaedic surgeon, considered that there would be a small degree of permanent residual disability resulting from the injury.
Damages for pain and suffering and loss of amenities are at large.I assess the plaintiff's damages under this head at $15,000.I apportion those damages as to $8,000 for the past and $7,000 for the future.
At the time of the accident the plaintiff was not employed.He has not been employed since he left school.At the time of the hearing he was 23 years of age.He left school either late in Year 9 or earlyin Year 10 at the age of 14 years.He said that his grades were "pretty good" when he left Ingle Farm High School.From the age of 10 he had engaged in and enjoyed artwork.When he left school he undertook private tuition in art.This concluded when he was about 16 years of age.The nature of artwork produced by the plaintiff has been abstract, traditional and surrealism.He has earnt a small amount of money from works he has been commissioned to undertake.He has also produced artwork from which posters have been produced and those posters have been sold in print and poster shops.The only source of income has been from his artwork.
The plaintiff does not claim any damages for past loss of earning capacity. However, the plaintiff claims damages for loss of future earning capacity in the nature of a loss of a chance.In other words, allowance is sought by the plaintiff for the possibility that he would not be able to take up all types of manual work because of the continuing slight restriction in his physical activities resulting from his right knee injury.In support of his claim the plaintiff referred to the decision of Versace v Messer (1993) 172 LSJS 409.
Mr Martin was of the opinion that the plaintiff would be likely to experience pain if he undertook employment of a physical or manual nature where there was a need to spend extended periods of time on his legs.Furthermore,he provided the opinion that if the plaintiff was employed as a manual labourer in which he was required to climb up and down ladders or spend days in the trench with a pick and shovel that he may suffer more pain in his right knee than he currently experiences.He also said that other work activities involving squatting and climbing may cause the plaintiff some trouble.Mr Martin was also of the opinion that the plaintiff will continue to suffer some discomfort in his right knee if he sits for extended periods of time.The plaintiff said that his right knee would permit him to continue his art work with slight disruptions.
The plaintiff is only young.He has a limited education.The only skill he has is his work as an artist.Fields of employment open to him are restricted because of his lack of education.Other than being employed in some capacity in which he can exercise his art skills, the most likely fields of employment open to the plaintiff would be of a kind which involved physical activity. Even employment in such jobs as a shop assistance where he is required to stand on his feet for extended periods of time may present the plaintiff with some difficulties.The continuing problem with his right knee may restrict the fields of employment open to him.The comments of Perry J in Versace v Messer (supra) at page 413 are relevant here:-
"Once it is proved, however, that a plaintiff has a disability that will either be permanent or may take some time to resolve and that the disability extends beyond the date of trial, it is incumbent upon the Court carefully to address the question whether or not that disability has been shown, on the balance of probabilities, to be likely to result in some impairment of earnings in the economic sense . It is a matter of common knowledge that plaintiffs, or persons who seek jobs, are commonly asked to disclose whether or not they have previously suffered an injury and to give details of it and its consequences. It is a fact of life that persons in that situation, even if they are capable of doing the job for which they may be applying for, in a physical sense, may well be at a disadvantage in securing sucha position in the first place".
Whilst the plaintiff has not been employed since he left school and the only income he has earned has been sourced from his work as an artist, in my opinion, he is still entitled to be compensated for the loss of chance for the reasons I have described.It is possible that in the future he may seek employment of a manual nature or work of a less physical nature but which may require him, for example, to be on his feet for extended periods of time.In seeking employment of the nature I have described he may well be at a disadvantage in securing a position.
As I indicated earlier, the plaintiff suffered further injuries in January 1994 as a result of a motor accident.He twice had arthroscopic surgery for the injury suffered to his left knee.The plaintiff, in evidence, indicated that he was still troubled by the injury to his left knee.However, there is no evidence to indicate what ongoing problems he will suffer with his left knee, if any.For the purpose of considering the plaintiff's claim under this head of damage I have not taken into account what effect, if any, the injuries in the motor accident may have on the plaintiff's prospects of future employment as there is insufficient evidence to establish what effect the injuries suffered in the motor accident will have on his future earning capacity (see: Jobling v Associated Dairies (1982) AC 794).Any attempt to do so on my part would involve me in the realms of speculation.
In my view, there should be some award for loss of future earning capacity on the limited basis of a loss of a chance of employment.I assess damages under this head at $12,000.
The plaintiff claimed damages for future medical treatment.Mr Martin in his report of 1 July 1996 indicated that the plaintiff may need intermittent physiotherapy for a period which would extend for no longer than 12 months from the time of the surgery, namely, February 1996.He said that such physiotherapy should not cost more than $400.At the date of the trial, the plaintiff had not included in his claim for special damages any cost of physiotherapy from the time of the surgery until the date of the trial.In evidence, Mr Martin said he thought that it was only a possibility that the plaintiff would need physiotherapy not a probability.I will make a small allowance of $150 for future physiotherapy treatment.
Finally, I turn to the question of special damages.The defendant required the plaintiff to prove each item of special damages claimed by the plaintiff. The total claim for special damages was $6,995.27.By far the largest item claimed by way of special damages was $2,360 for physiotherapy services provided by Mr Rick Montiadis.Mr Montiadis gave evidence.He is the plaintiff's uncle.Some of the records of Mr Montiadis were also introduced into evidence.It appears from those records that the initial consultation which the plaintiff had at Mr Montiadis' clinic was on the 3 May 1993.For this initial consultation Mr Montiadis charged $50.The records of Mr Montiadis indicate that the next consultation was on 18 May 1993 and thereafter the records indicated regular treatment of the plaintiff for a period ending on 26 November 1993.This record of the period of treatment conflicts with the plaintiff's evidence that he attended for treatment at Mr Montiadis' clinic for around two to three times a week for approximately four to six weeks.He said that thereafter he did not see Mr Montiadis for a long time.I found Mr Montiadis' evidence regarding the number of treatments was generally unsatisfactory.His demeanour was unsatisfactory in that at times he refused to answer questions in cross-examination until he was persuaded by me to do so. He was aggressive and on occasions very defensive in the answers he gave.He was most unconvincing.There were some aspects of his evidence that were particularly unsatisfactory.At one point he indicated that he had sent a formal account for his services to the solicitors for the plaintiff, but no account was produced by the plaintiff's counsel.Furthermore, the plaintiff's Rule 46.15 Particulars did not include thecost of treatment of the plaintiff by Mr Montiadis.At one stage in his evidence he said that he had provided a report on the plaintiff to the solicitors for the plaintiff.No report was ever produced.Mr Montiadis later explained that he had been mistaken when he gave his evidence.He said that the report he was referring to was one which provided on behalf of Mrs Sarantidis, the mother of the plaintiff, in relation to an unconnected matter. These aspects of his evidence and the manner in which Mr Montiadis gave his evidence threw a shadow of doubt over the evidence he gave regarding the extent of the treatment he stated his clinic provided to the plaintiff.It is not supported by the plaintiff's evidence regarding the extent of the treatment.As a result, I am not prepared to accept that the plaintiff received treatment for a period of nearly 7 months as stated by Mr Montiadis.
As I said earlier, the plaintiff's evidence was that he received treatment for four to six weeks thereafter he did not see Mr Montiadis for a long time.The plaintiff has not discharged the onus of establishing that he received treatment from Mr Montiadis' clinic amounting to a total sum of $2360.I am only prepared to allow the cost of treatment for the period from 18 May 1993 to the end of June 1993 together with the costs of the first consultation.This period accords with the plaintiff's evidence.The total cost for that period amounts to $770.I find that the remainder of the amount of special damages claimed have been proved by the plaintiff.Therefore, I allow the sum of $5,405.27 by way of special damages.
In summary the damages I have assessed are:-
Pain and suffering and loss of amenities
Past $8,000
Future $7,000 $15,000
Loss of future earning capacity $12,000
Cost of future medical treatment $150
Special Damages $5,405.27
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Total $32,555.27
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The total damages assessed are $32,555.27.From this is to be deducted 15% for contributory negligence.There will be judgment for the plaintiff for $27,671.98.
I will hear the parties on interest and costs.
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