Sbaglia v Epping Cinemas Pty Limited (ACN 073 997 172)
[2019] VCC 1289
•20 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-18-01222
| SILVANA SBAGLIA | Plaintiff |
| v | |
| EPPING CINEMAS PTY LIMITED (ACN 073 997 172) | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28, 29 and 30 May 2019 | |
DATE OF JUDGMENT: | 20 August 2019 | |
CASE MAY BE CITED AS: | Sbaglia v Epping Cinemas Pty Limited (ACN 073 997 172) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1289 | |
REASONS FOR JUDGMENT
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Subject: OCCUPIER’S LIABILITY
Catchwords: Negligence – damages
Legislation Cited: Wrongs Act 1958
Cases Cited: Victorian WorkCover Authority v Jones Lang LaSalle [2012] VSC 412; VWA v Monash University [2016] VSC 178; Raciti v Wadren Pty Ltd [2006] VSCA 132; Jones v Dunkel (1959) 101 CLR 298; Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; Coca Cola v Amatil (NSW) Pty Ltd v Pareezer & Ors [2006] NSWCA 45; Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241; Strong v Woolworths Limited (2012) 246 CLR 182; Vairy v Wyong Shire Council (2005) 223 CLR 422; Kocis v S E Dickens Pty Ltd [1998] 3 VR 408; Wallace v Kam (2013) 250 CLR 375; Powney v Kerang & District Health [2014] VSCA 221; Griffiths v Kerkemeyer (1977) 139 CLR 161; Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594; Wesfarmers v Linfox Australia Pty Ltd [2015] VSC 63
Judgment: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P G Hamilton | Nowicki Carbone |
| For the Defendant | Ms M S Cameron | H W L Ebsworth Lawyers |
HER HONOUR:
Introduction
1 This proceeding was brought by the plaintiff against the defendant, alleging that when she attended the defendant’s cinema located at 571-573 High Street, Epping (“the premises”) on 25 April 2017 (“the said date”), she slipped on a slippery substance on the floor of the premises, causing her to fall to the floor and suffer injury (“the incident”).
2 In general terms, it was alleged the defendant was negligent in failing to have in place any or any adequate system of cleaning and inspection, failing to maintain the floor in a safe and clean condition, failing to clean up a slippery substance on the floor and failing to warn the plaintiff of the presence of a slippery substance on the floor of the premises.[1]
[1]Particulars of Negligence – Plaintiff’s Amended Statement of Claim dated 18 April 2018
3 It was alleged that as a result of the defendant’s negligence, the plaintiff suffered a displaced transcervical fracture of the neck of the left femur, treated surgically by way of left total hip replacement, and suffered a consequential DVT, and also a psychological response.
4 In its Defence,[2] the defendant admitted it was the occupier of the premises and operated a cinema thereon. It also admitted it was an entity that exercised control over the premises and that it was responsible for the condition and state thereof.
[2]Defence dated 29 May 2018
5 The defendant also admitted it owed a duty to the plaintiff under s14B(3) of the Wrongs Act 1958 and that there was a duty at all times to take reasonable care to ensure the premises were maintained in a clean and tidy state so as to avoid foreseeable risk of injury to the plaintiff.
6 The defendant denied, however, that the plaintiff slipped on a slippery substance on the floor of the premises, causing her to fall. It also denied any breach of duty of care, and that if there was a breach, that any such breach was causative of the incident.
7 Further, in the alternative, if there was any negligence on the part of the defendant which was specifically denied, then, under s62 and s63 of the Wrongs Act 1958 and the common law, the plaintiff’s loss and damage, if any, was caused by or contributed to by her negligence in failing to keep a proper lookout and failing to walk around any slippery substance.
Credit
8 The witnesses called were the plaintiff and her husband Dominico (“Dom”). I accept, as counsel for the plaintiff submitted, they both gave genuine and straightforward evidence and were impressive witnesses.
9 Their evidence was not challenged.
The Plaintiff’s evidence
10 The plaintiff is presently aged fifty-four, having been born in July 1965. She is married with two adult children and works in an administrative role with Next Generation Supplements.
11 On the said date, the plaintiff and Dom were going to a 4.30pm session at the premises, so they had arrived just after 4.00pm.[3] Because the session was almost ready to start, there were quite a few people in front of them when she lined up next to her husband to buy tickets.[4] They were waiting on the carpeted area. The person at the counter signalled they were free, so they went to approach:
[3]Transcript (“T”) 27
[4]T28
“We approached – so, I turned right. I took a few steps, and then my left leg slid underneath my right leg, and I fell – I fell breaking my fall onto my right hand side – onto my left hand side, sorry.
…
… when I looked back to see what I’d slipped on, there was definitely popcorn there. …
…
When I was lifted up to go back, I purposely looked down to check what I’d slipped on. And there was definitely popcorn there. There were also some wet patches along the way, so, I don’t know if it was specifically the popcorn or the combination of wet floor and popcorn.”[5]
[5]T28
12 The plaintiff looked at the area where her feet would have been, and there was popcorn there:
“I had no traction at all, so with that step, there was just no traction at all. It just slid behind my leg – my leg slid behind me. So, it’s like you’ve just – flying through the air, virtually, you know - you just - there was no grip at all.”[6]
[6]T29
13 In the witness box, the plaintiff was wearing the boots she was wearing at the time of the incident. They had a thick rubber heel which was about an inch high.
14 After the incident, Dom immediately turned to the plaintiff and asked what had happened and she told him she had slipped. A lady who had just been served came over to them. She picked up the plaintiff’s bag and asked her whether she thought she had broken her hip, and the plaintiff said she did not think so, it was her leg.
15 Someone else came over at that stage. Looking back at the CCTV footage, the plaintiff could see it was a staff member. She could not remember that at the time, she just knew she could not walk and could not use her left leg. She did not recall saying anything directly to that lady. The plaintiff was trying to get up and saying to Dom that her leg was giving way. She was then taken to the entrance of the Gold Class lounge, to the right on the CCTV footage.[7]
[7]T30
16 The plaintiff indicated by marking “X” on one of a series of photographs taken by her on 12 June 2017 at about 3.30pm, the approximate place where she believed she had fallen on the said date.[8] She had come from the middle of the photograph. The red ribbon going across the line/queue was actually open closer to where she indicated she fell, so she was actually standing near the middle post on the carpet. She then headed towards the area she had marked in front of the counter.
[8] Photograph 1 showed the tiled area in front of the candy bar where the incident occurred. Photograph 2 showed the same area, but was taken from the other end of the candy bar. Photograph 3 also showed the tiled area in front of the candy bar. Photograph 4 was a closer view of the tiled area in front of the candy bar.
17 After the incident, a female employee advised the plaintiff she was going to fill out an incident form. The plaintiff could remember some of the things that employee asked. At that stage, the plaintiff thought her body was in shock, but she remembered the employee focusing on what sort of shoes the plaintiff was wearing and told the plaintiff she was going to put “high heels” on the form.[9]
[9]T33
18 The female employee completing the form was sitting next to the plaintiff. During their conversation, the plaintiff could remember thinking “Oh they’re not high heels”, but she could not be bothered talking at the time. She was in pain and could not remember exactly what she said. She knew she said she slipped. There were a few other questions but she could not exactly recall what they were.[10]
[10]T34
19 After offering the plaintiff some water, the cinema manager then offered to get a wheelchair for her and said he could actually wheel her across to the hospital, which was over the other side of the road. The plaintiff could not remember if the manager was there the whole time the form was being filled out.[11]
[11]T34
20 The plaintiff did not write anything “anywhere”. She just decided she wanted to go home. She was probably sitting there for about fifteen minutes because she was thinking she would be right in a few minutes, and then probably after ten minutes, the manager went and got the wheelchair.[12]
[12]T35
21 The plaintiff required assistance to get into her house when she got home. She was then in severe pain, and a decision was made to call an ambulance. Her daughter was at home. Ambulance staff then attended, looked at the plaintiff’s leg and told her it was not broken and that she would probably need some scans. However, as it was Anzac Day the hospitals were really busy. They advised they could take her to hospital but she was going to have a long wait and would probably be better off seeing her doctor the next day.[13]
[13]T36
22 Overnight the plaintiff was “terrible”. Dom helped her go to the toilet. She did not make it, she “passed out basically”, and then he called an ambulance again. She knew she had discussed the fall with the ambulance officers, but could not tell word for word, because at that stage she was in severe pain. In general terms they asked her what happened and then took her to Emergency at North Park Private Hospital.[14]
[14]T36
23 The Ambulance report dated 26 April 2017 set out:
“At 16.30 last night, Pt was at the movies when she had a mechanical fall onto the ground landing on her left side. She slipped due to wet floor and popcorn on it. Since Pt has had pain in her left groin.”
24 In cross-examination, the plaintiff said she had been to the cinema about a dozen occasions before the incident and had not seen anyone fall. She had been there since that time and had not seen anyone fall.[15]
[15]T50
25 The plaintiff agreed, when she attended the premises prior to the fall, she had not paid attention to the floor and she was not doing so on the said date. She did not look down.[16]
[16]T50
26 The plaintiff agreed she believed she had slipped on something. She could not say what that was “100 per cent.” At the exact time she fell, she did not know what she had slipped on. Immediately afterwards, she did not know what she had slipped on, she just assumed – she saw the popcorn near where her foot was. She saw popcorn and wet patches in the vicinity of where she slipped.[17]
[17]T51
27 The plaintiff observed the popcorn and wet patches when they picked her up to head back to Gold Class. She then looked down to see what she had slipped on. She saw popcorn and that there were some wet patches. It was not like a bunch of popcorn “… a couple of pieces”. In terms of wet patches:
“Look, I probably would have spotted in the walk along the way, that there were probably about three, but, um, closest to me, there was the one.
…
… Where I slipped. … I’m not talking about, like, a big, like, puddle. … .”[18]
[18]T51
28 The plaintiff did not know what the wet patch was. It was raining outside that day.[19] Immediately after the fall she did not know what she had slipped on. On her way back through,[20] she assumed she had slipped on the wet patches and the popcorn on the floor, but could not say for certain.[21]
[19]T51
[20]to the Gold Class
[21]T52
29 When told in cross-examination that a witness called Afrodite will come along and give evidence that she was the person serving and she came to help the plaintiff immediately after the fall and she will say that she remembered the plaintiff telling her that she tripped over her own leg and that the fall was her fault, the plaintiff said “absolutely not”.[22]
[22]T52
30 Counsel for the defendant then advised that there would be another witness who spoke to the plaintiff in the immediate aftermath of the fall who will say the plaintiff told her that her knees buckled underneath her and that is why she had fallen. The plaintiff did say that her leg was buckling, but not in relation to the slip, that was in relation to her not being able to get up. When she tried to get up she could not, because her leg was buckling.[23]
[23]T52
31 Having been shown the Incident Form, the plaintiff agreed it was probably correct that she did not tell the person completing the form that she slipped on popcorn or a wet floor. The plaintiff did not write anything on the form.[24]
[24]T53
32 When it was suggested to the plaintiff that she had difficulty recalling what she spoke about to various employees at the cinema immediately after the fall, she remembered distinctly saying to Dom “I slipped”. She was not addressing anyone. She was more concerned with the fact she could not get up with her leg and that was the only conversation she then had.[25]
[25]T53
33 When the Incident Form was filled out, the plaintiff could remember bits and pieces of it, but by that stage, her body was going into a bit of shock as well, so she did not remember all of it. She could remember answering questions coherently at the time, but recalling back now what those questions were, she did not actually remember everything and what was said. She agreed she was in a lot of pain at that time.[26]
[26]T54
34 When asked whether she could remember precisely what she said to staff members Afrodite, and to Jodie, the witnesses she was told who will come along, the plaintiff said she did not remember anyone in particular directly. At that stage, no one asked her what happened; they were trying to help her.[27]
[27]T54
35 Counsel for the defendant admitted that Jodie, an employee of the defendant, is shown sweeping on the CCTV after the incident:
“Your Honour will hear some evidence about this from the defendant’s witnesses, but it’s a kind of team effort, the cleaning.”[28]
[28]T56
36 Further, counsel for the defendant advised that Afrodite was the staff member behind the candy bar and Jodie was the woman coming along with the sweeping brush afterwards.[29]
[29]T54
37 The plaintiff agreed, even now, she could not say what caused her to fall or what she slipped on. She could say without a doubt that it was a slip. She could say that 100 per cent, because of the way it felt, that her foot lost traction because of something underneath it causing her to do so. She agreed it was wet outside on the said date.[30]
[30]T55
38 Whilst it was wet outside on the said date, the plaintiff explained, however, it was unlikely the wet patch was to do with the rain because she had been on the carpet “a bit” while lining up for tickets. Assuming there was something on the ground she slipped on, she did not exactly know what it was. She could say it had been on the ground from the time she entered the cinemas because “they did not – that area was not cleaned in that time”. She could see that the area was not being cleaned and she would have noticed if someone had come out to clean it. She would have been standing in the queue for about ten minutes or so before the incident.[31]
[31]T55
39 The plaintiff agreed the CCTV footage did not show a big queue behind her. She explained that was because the movie was starting at 4.30pm. Definitely nobody cleaned the candy bar area in the ten minutes that she was in the queue.[32]
[32]T56
40 The plaintiff agreed to walk to the Gold Lounge after the incident. She and Dom walked straight back through the area where she had fallen.[33] She did so because she did not think about it and she was being pushed by people and helped by them to walk forward.[34]
[33]T56
[34]T57
41 When it was suggested to the plaintiff she could not see anything on the CCTV that she might have slipped on, she pointed out she could actually see near her foot there was a piece of popcorn.[35] There was a white spot, the one closest to her foot, that she thought she might have slipped on.[36]
[35]T72
[36]T73
42 The plaintiff agreed that she saw wet patches and some popcorn on the ground, but she could not say whether she slipped on what she saw. She agreed she saw a man on the CCTV – who obscured the view of her slip – step backwards then walk away right through the area she had just slipped on.[37]
[37]T74
43 The plaintiff did not know when the piece of popcorn landed on the ground. She agreed the person before her in the queue, thirty seconds before her in the queue, could have dropped that piece of popcorn on the ground.[38]
[38]T74
44 When it was suggested to the plaintiff that the white dot she pointed to on the CCTV was a shadow, she said it is probably hard to say because things get moved by people walking.[39]
[39]T75
45 The plaintiff was told a woman who was shown on the film cleaning around the white dot was Jodie who would be giving this evidence. The plaintiff could see Jodie on the film cleaning all around that white dot.[40]
[40]T75; whilst the defendant accepted there were other pieces on the floor it was submitted Jodie only swept up pieces of popcorn on the left-hand side
46 On resumption of cross-examination on Day 2, the plaintiff confirmed the white dot near the top of her boot was popcorn and that there were other white dots on the CCTV film which were also popcorn.[41] She could not pinpoint which piece of popcorn she stepped on, just that it was there, “what was on the ground that I could have stepped on”.[42]
[41]T78
[42]T78
47 Counsel for the defendant suggested it appeared on the film that the white dot shown at 4:27:43pm had gone at 4:27:45pm and that it was in fact not a piece of popcorn.[43] The plaintiff would say she “is not an expert in that to be able to comment”. She would say she could not say.[44]
[43]T79
[44]T81
48 The plaintiff confirmed she could say without any doubt that there was something that she slipped on due to the fact she had no traction under her foot - that it was actually a slipping action. It was not a stumble where she fell on her knee. It was without doubt whatsoever a slipping action. She agreed she could not say how long whatever she slipped on had been on the ground.[45]
[45]T82
49 In re-examination, the plaintiff said the first time she had seen the CCTV footage was in her counsel’s chambers the day before the hearing.[46]
[46]T83
50 There was nothing at all unusual about the way she was walking at the time of the incident.[47]
[47]T83
51 It was probably correct the plaintiff did not tell staff members the cause of the slip. When she slipped, the only conversation was that she could not get up and use her leg. There was no conversation at that time about how she hurt herself.[48]
[48]T83
52 The plaintiff told Dom straight away when he turned to her that she slipped. She thought probably the first time she said why she slipped was in the car on the way home when she said:
“… there was definitely (not) popcorn on the floor and the damp patches so I think that would have been in the car itself.”[49]
[49]T83
53 The plaintiff could not remember a conversation with anyone at the cinema about what caused the fall. She did not remember if the person filling in the Incident Form asked her. If she had asked her, she would have said it, but she actually did not remember at that stage.[50]
[50]T84
54 In addition to the discussion in the car with Dom, as soon as they arrived home, the plaintiff’s daughter asked “what happened?” and the plaintiff and Dom said: “She slipped on popcorn.”[51]
[51]T84
55 The following entry on the plaintiff’s Facebook page when she was in hospital on 27 April 2017 before the surgery, read:
“… I slipped as I was approaching the ticket box.”
56 There was a further entry on the same date in response to the questions “What? How?”:
“Just slipped when I was buying movie tickets. I think it was on some popcorn on the floor.”
57 The plaintiff put up the Facebook post when she was at the hospital and had just found out she was going to have a hip operation. Litigation had then not crossed her mind. She did not even think of it as an option at that stage.[52] She confirmed that she wrote that she thought it was some popcorn on the floor she slipped on.[53]
[52]T49
[53]T50
Dominico Sbaglia
58 Dom and the plaintiff arrived at the premises at about 4.00pm as the film was to start at 4.30pm. They went up the stairs and then to the carpeted area, what he called the “snake aisles”, to line up at the front to buy tickets.[54]
[54]T86
59 There were quite a few people in front in the queue, because it was quite a busy day. Dom was surprised and remembered saying that to the plaintiff. Off the top of his head, he could not recall the exact number, he thought it would have been about twenty to thirty.[55]
[55]T86
60 While in the queue, Dom could not recall if anyone was cleaning in front of the candy bar. He would have been in the queue about ten to twelve minutes before being served.[56]
[56]T86
61 Dom became very upset when asked to say what happened next, describing it as “just painful”:
“So we proceeded to go collect our tickets. As we turned I just noticed her on the floor. Then I went to her and I could see she was in a lot of pain. I tried to get her up and I know there was – I think a lady from the queue behind us came to help as well and we just couldn’t get her up so we let her stay there for a couple of minutes or so and I know she said she couldn’t get up on that left side, you know she couldn’t load bear on that left leg and I remember the comment from the lady that come (sic) to help. She said, ‘Did you break your hip? You could have broken your hip’.”[57]
[57]T87
62 Dom did not actually see the plaintiff fall. When they just moved, “it was just like it was just instantaneous, it was like she was just on the floor”.[58]
[58]T87
63 Dom went to the plaintiff, and the first thing he asked her was “What happened?” and she said she slipped. They were trying to get her up, and at the point when they did, he had a look at the floor and that is when he noticed there was popcorn and he also noticed a wet patch. There were several pieces of popcorn. One of the wet patches was significant, it was probably the size of a very small soccer ball in that area as well.[59]
[59]T88
64 When they eventually got the plaintiff up, they took her to the lounge area of Gold Class. There, Dom and the plaintiff had a full view of the tiled area and the ticket area. He then saw someone cleaning the section. It happened pretty quickly. After probably a few minutes, he did see them clean the area because he remembered he turned to the plaintiff and made what probably could be perceived as a sarcastic comment, that “Oh now they clean up the area”.[60]
[60]T88
65 The manager did come up and offer the plaintiff water and a wheelchair, and asked her if she wanted to go to hospital. The plaintiff just wanted to go home, so they took her down and he got the car as near as possible.[61]
[61]T89
66 In the car together, the plaintiff was still in a lot of pain and he sort of said “Can you remember what happened?” and she said “yeah, I slipped” - “I slipped on some popcorn.” When they got home he knew his daughter was there and the plaintiff “reiterated the same thing”.[62]
[62]T89
67 This was not the first time the plaintiff had mentioned slipping on popcorn. When she was seated in Gold Class, and prior to him noticing them cleaning up and making that sarcastic comment, he did ask her at that point, and she felt that’s what it was.[63]
[63]T89
68 Dom did not fill out any report or write down anything at the cinema about the incident.[64] He could remember, outside Gold Class, one of the staff members did come up and they were probably making more notes of their own, trying to establish if the plaintiff had high or low heels, and that is pretty much all he could recall.[65]
[64]T89
[65]T90
69 About a week or so after the incident, Dom phoned the cinema manager, just basically wanting to let him know what had happened, what the result was, because at that point no one knew. He thought maybe that was the process, to start there, and just to let them know the plaintiff had actually broken her hip and had the operation.[66]
[66]T90
70 In cross-examination, Dom said he had been to the cinema about a dozen times before the incident and had not seen anyone fall. He had been there since the incident and had not seen anyone fall.[67]
[67]T96
71 Prior to the incident, he was not paying attention to the floor in front of the candy bar. He did not see the plaintiff fall. He could not say what she slipped on or why she fell, other than what she had told him. He supposed he had no way of saying how long the wet patch or popcorn had been on the floor prior to the fall.[68]
[68]T96
72 While in the line, Dom did not see any spillages.[69] He was looking forward, so he did not see anyone drop anything. He probably would have noticed if someone had dropped some drink or some popcorn. If someone had dropped a couple of pieces of popcorn, he would have seen it and they did not. He was sure. He had a clear view of the bar when he was at the front of the line for a few minutes.[70] He was potentially in that position for no more than two or three minutes.[71]
[69]T96 – re-examination
[70]T97
[71]T98
Other liability evidence
73 Attendance figures provided by the defendant indicated that on the said date, 3,174 patrons attended the premises.
74 A number of sections of CCTV footage taken at different angles in the minutes leading up to the incident and thereafter until 4:48:08pm were tendered by the parties.
75 Counsel for the defendant conceded that there was popcorn shown on the floor to the right side of the counter, but not where the plaintiff fell. It was also accepted that Jodie cleaned the floor in the front of the counter but not on the left side where the plaintiff fell.
76 Counsel for the defendant also admitted that at 4:32:03pm shown on two films, an employee of the defendant affixed warning signs to the front of the drink machine on the counter; however, on closer examination, these were not warning signs. The signs simply advised patrons the next show was booked out.
77 Appendix 1 is a summary of the CCTV footage tendered, some of which was shown during the hearing.
The Defendant’s Answers to Interrogatories
78 Counsel for the plaintiff tendered the defendant’s Answers to Interrogatories 5 and 6. As the later referred to the defendant’s Answer to Interrogatory 1, it was also tendered
79 Interrogatory 1 –
“As at the said date, did the defendant have a system of work in place at the premises whereby cleaners were required to attend, inspect and/or survey the location of the incident at specific time intervals.”
80 The defendant answered:
“The defendant had a system of work in place that required staff working behind ticket sales/candy bar counter to constantly monitor the area in front of the counter, including the location of the incident. These staff members were to respond immediately to any spills and large messes, either by cleaning the spills themselves, or by alerting another staff member to attend the spill. This was in addition to an inspection system that required a staff member to inspect the remainder of the floor area, (not including the ticket sales/candy bar counter), between every 30 to 60 minutes.”
81 Interrogatory 5 –
“In the period of time between 14.00 hours and 18.00 hours on the said date at the premises, did the cleaner (or cleaners) attend, inspect and or survey the location of the incident?”
82 The defendant answered “Yes”.
83 Interrogatory 6 –
“(a) how many times the location of the incident was attended, inspected and or surveyed by a cleaner (or cleaners), (b) the specific time when the location of the incident was attended, inspected and or surveyed by a cleaner (or cleaners), (c) whether any cleaner (or cleaners) performed any cleaning services on the floor of the location of the incident (stating the details of the cleaning services provided).”
84 The defendant answered –
“(a)-(c)Save that CCTV footage provided to the plaintiff shows that the staff inspected, attended and cleaned the location after the incident, and referring to the answer to interrogatory 1, I am unable to provide specific details.”
FINDINGS
Did the Plaintiff slip on a wet, slippery substance on the floor of the premises?
85 Counsel for the defendant did not dispute that the plaintiff fell at the premises on the said date and injured her left hip; however, it is disputed the incident occurred in the manner she alleged, namely slipping on a slippery substance. Of course, if it is not accepted on balance that this is how the incident occurred, then the plaintiff’s claim must fail at this first point.[72]
[72]T109
86 It was put to the plaintiff in cross-examination that she did not know what caused her to fall. She was adamant she slipped because she lost traction, but was unable to say at any time immediately after, or any time since, what caused her to slip.[73] She “assumed” it was popcorn that she fell on, as when she looked at the floor immediately after the fall, she saw a couple of pieces near where her feet had been. She also saw three wet, or what she later referred to as “damp patches”,[74] and one of which was closest to her, but she did not know what the wet or the damp patches were.[75]
[73]T110
[74]T83
[75]T110
87 It was submitted on behalf of the defendant that the point at which the plaintiff pinpointed she saw the wet patches and popcorn, she assumes she slipped on (CCTV footage 4:27:32pm) was some distance away from where the incident occurred, shortly before she is being helped up. Dom gave similar evidence. It was submitted there were not any wet patches evident in the footage.[76]
[76]T111
88 It was conceded by the defendant that there was popcorn shown on film on the left-hand side of floor in front of the counter. It was submitted that the subsequent cleaning was not carried out in the area where the plaintiff indicated she fell. It was submitted the film showed Jodie sweeping up bits of popcorn into the dustpan, but not at the exact location where the plaintiff slipped.[77]
[77]T111
89 It was accepted by the defendant there are pieces of popcorn visible on the footage, but not in the vicinity where the plaintiff slipped.
90 It was conceded by the defendant that the presence of the popcorn on the left side was very clear and obvious, whereas on the right side there was no such obvious piece and it was submitted, had there been popcorn where the plaintiff fell or slipped, it would be visible in the footage, as was the case with the popcorn on the other side of the screen.[78]
[78]T112
91 When asked to identify anything that she might have slipped on, the plaintiff identified a white dot she thought was a piece of popcorn near the toe of her boot. It was submitted by the defendant that dot disappeared at 4:27:43pm and re-appeared at 4:27:45pm, and as a result, it could be inferred that it was not popcorn, and rather a light or reflection.[79] It was submitted the plaintiff said she could not say either way, but she was no longer maintaining necessarily that was a piece of popcorn.[80]
[79]T112
[80]T113 – The plaintiff actually said- “I wouldn’t say- I can’t say”
92 It was also submitted there were no wet patches on the film and the fact the plaintiff thought she slipped on popcorn rather than a wet patch was supported by her Facebook entry.[81]
[81]T111
93 Counsel also submitted it was telling against the fact the plaintiff slipped on either popcorn or a wet patch, as numerous people can be seen on the footage walking through that location in the minutes after the incident. The man shown at the counter stepped directly back into the exact location and there were numerous other people who also walked through that location.[82]
[82]T114
94 When I indicated in discussion with counsel that I thought the mechanism of the fall was consistent with the plaintiff slipping, rather than a fall, counsel for the defendant responded the plaintiff had to satisfy the Court that she slipped on something that was on the floor. She could have slipped for any other reason.[83] Whilst it was conceded that the plaintiff was wearing flat heels and that she had slipped, the Court had to be satisfied there was something on the floor that she slipped on rather than her shoe being caught from somewhere else; the plaintiff still has the onus.[84] She had to establish that it is more probable than not, taking into account all the evidence (not just a selective piece of the evidence) that she slipped on a slippery substance, namely popcorn on the floor of the premises.
[83]T115
[84]T116
95 In response, counsel for the plaintiff pointed out, there was never an attack on the plaintiff’s evidence that she did not slip. He submitted that the plaintiff gave cogent and uncontradicted evidence, which should be accepted, that although she cannot say 100 per cent, she fell because of popcorn and water on the floor.[85] Her evidence is bolstered by the following matters – the presence of a number of pieces of popcorn in the area and by the staff member subsequently sweeping the area around where the plaintiff fell.[86]
[85]T157
[86]T158
96 It was submitted the defendant was wrong in contending that Jodie did not specifically clean the incident area. Watching both when the plaintiff fell and observing that tile, then watching where Jodie cleaned, it is clear that she cleaned over that very area and for good reason. Although one could not see any popcorn perhaps at that very point, it was submitted there was obviously a reason to clean that area. Further, as Jodie was not called, the evidence of the plaintiff and her husband as to the presence of popcorn can be more readily accepted.[87]
[87]T158
97 The plaintiff and Dom’s evidence is a contemporaneous explanation of what happened. Further, it seems, it is supported by what the plaintiff told the ambulance officers,[88] that she slipped due to the wet floor and popcorn on it. Not only that, there is the Facebook post while the plaintiff is in hospital, that she believed she fell because of the popcorn.
[88]T158
98 Further, it was submitted, as the defendant had called no contradictory evidence, the Court could more readily accept the version of events given by the plaintiff.[89]
[89]T159
99 It was submitted it was an impossible task for the defendant to ask the plaintiff to point out where she might have slipped and what she might have slipped on. The view of where she slipped was obscured by the man standing there, and was not shown on the footage.[90] Whilst the plaintiff is criticised about the white dot point, she had only seen the footage once, in counsel’s chambers the day before the hearing.[91]
[90]T164
[91]T165
100 It was submitted the Court would be speculating in light of this uncontradicted evidence to conclude maybe it was rainwater on the floor. It was submitted the likely cause and likely thing that the plaintiff was referring to, that she felt under her foot when she slipped, as she said in cross-examination, was debris on the wet tiles.[92]
[92]T166
101 Although the film may not have shown any water on the floor, it was submitted the Court should be slow to conclude there was no water present in light of the strength of, or quality of, the footage itself. It would be a big jump to reach this conclusion just on the quality of the CCTV footage. The photographs tendered by the plaintiff were clearer.[93]
[93]T166
102 Reliance was also placed on the admission that a warning sign was put up after the incident.[94]
[94]T167- closer viewing of the film did not show any such warning sign
Findings
103 As counsel for the plaintiff submitted, what the plaintiff slipped on does not need to be definitively identified. Rather, the test to be applied should be whether it was more likely than not, on the balance of probabilities, that the plaintiff slipped on something – popcorn – that was on the floor.
104 The plaintiff could “say without a doubt that it was a slip because of the way it felt”.[95] Her foot lost traction because of something underneath it that caused her to lose traction. This was unchallenged by the defendant.
[95]T54
105 Further, an inference can be drawn, having viewed the CCTV footage. It is clear there was popcorn on the general floor area at the time of injury. Where the popcorn is located on the floor is inconsequential (be it on the left or right side of the film). That there was clearly popcorn on the ground supports a finding that it was more likely the floor was messy and there was a slippery substance on it that ought to have been cleaned up.
106 In the absence of an explanation to the contrary, there is nothing to explain why popcorn would have fallen on one side of the floor and not the other, or that only half the floor had been cleaned. To do so would be speculation. That there were spillages on the floor at the time of the incident supports a conclusion it was more likely than not the presence of the slippery substance caused the plaintiff to slip.
107 The plaintiff is not required, as a matter of law, to identify exactly what she slipped on in circumstances where there was an amount of slippery material on the floor. Indeed it is impossible to determine what happened to the material after the fall. The CCTV evidence does no more than confirm the presence of slippery material in the general area of the plaintiff’s fall. It does not contradict her version of the mechanism of the incident.
108 I cannot be satisfied as to exactly what the plaintiff slipped on; however, I can be satisfied that there was slippery material on the floor that had a potential to cause a customer to slip on the floor.
109 The following matters satisfy me that the incident occurred as alleged by the plaintiff:
· Her unchallenged and un-contradicted evidence as to the happening of the incident.
· The video evidence of popcorn on the floor shortly after the incident.
· Jodie sweeping in the side of the candy bar where the incident occurred
· The clear inference that the evidence of the defendant’s employees would not have assisted the defendant’s case in relation to disputing the proposition that there was slippery material in the area where the incident occurred.
· The post-injury conduct of the defendant in cleaning of the area after the incident.
· The prior consistent statements the plaintiff made on Facebook, the ambulance report and to Dom; and
· Finally, the application of commonsense and human experience. There is no suggestion that the plaintiff had a propensity to fall in flat shoes for no reason. On the other hand, there is ample evidence of the presence of a slippery substance at the time of and in the area where the incident occurred.
Was there negligence on the part of the Defendant which was a cause of the Plaintiff’s injury, loss and damage?
110 The duty of care of the defendant as occupier of the premises is set out in Section 14 of the Wrongs Act, which provides
“14B Liability of occupiers
…
(3) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.”
111 Section 14B(4) provides, in determining whether there is a breach of that duty of care, consideration shall be given to the following factors:
“(a) the gravity and likelihood of the probable injury;
(b) the circumstances of the entry onto the premises;
(c) the nature of the premises;
(d) the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises;
(e) the age of the person entering the premises;
(f) the ability of the person entering the premises to appreciate the danger;
(fa) whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication;
(fb) whether the person entering the premises is engaged in an illegal activity;
(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.”
112 As Beach J explained in Victorian WorkCover Authority v Jones Lang LasallePty Ltd,[96] Part II of the Wrongs Act does not create a separate right to damages.
[96][2012] VSC 412
113 His Honour explained that that part of the Wrongs Act:
“… does not create a statutory duty the breach of which sounds in damages at the suit of an injured person. Part IIA redefines the common law duty owed by an occupier of premises, setting out matters to be taken into account in determining the scope of the duty and whether the duty has or has not been discharged in a particular case.”
(Footnote omitted.)
114 Part X of the Wrongs Act also governs of questions of breach and causation.
115 Sections 48 and 49 identify the relevant tests that must be satisfied to establish a breach of a duty of care. Pursuant to s48(1), in this case, the plaintiff must prove that –
“(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant;
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.”
116 Sub-section (2):
“(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.”
Defendant’s submissions as to breach
117 Counsel for the defendant admitted the risk of a fall by a patron on the tiled area in front of the ticket sales candy bar was foreseeable;[97] however, it was submitted the risk of harm was insignificant, there being no evidence of any falls in front of the ticket sales candy bar counter whatsoever prior to the incident.
[97]Section 48(1)(a)
118 Section 48(1)(c) then requires a determination as to whether, in the circumstances, a reasonable person in the defendant’s position would have taken those precautions.
119 In relation to that determination, counsel for the defendant submitted the defendant had a system of inspection and cleaning as described in its Answer to Interrogatory 1. In particular, the staff working behind the ticket sales/candy bar counter were to constantly monitor the area, including the location of the incident, and respond immediately to any spills or large messes.
120 It was submitted on the defendant’s behalf this was a reasonable and adequate inspection and cleaning system. It was stressed there was no evidence there had been any incidents on the tiled floor in that area prior or subsequent to the incident. Further, the plaintiff and her husband had not witnessed any falls on their visits pre and post incident.
121 It was submitted it was not the defendant’s onus to lead evidence as to whether there had been any incidents prior to or subsequent to the incident. The plaintiff bore that onus.[98]
[98] VWA v Monash University [2016] VSC 178 at paragraph [25]
122 Counsel for the defendant submitted the lack of known falls was a decisive factor,[99] particularly when in excess of 3,000 patrons attended the cinema on the said date. It was submitted the absence of evidence of falls, pre and post incident supports the conclusion the system of inspection and cleaning was reasonable.[100]
[99]Raciti v Wadren Pty Ltd [2006] VSCA 132 at paragraphs [19] and [51]
[100]VWA v Monash University (ibid)
123 It was submitted there was simply no evidence upon which the plaintiff could rely to suggest the system of cleaning and inspection employed by the defendant was not adequate, or any evidence to suggest the system was not complied with on the said date. In fact, the presence of an employee in the footage cleaning the floor following the incident supported the system was being complied with that day. Further, the Answer to Interrogatory 6 confirms the area was cleaned in accordance with that system between 14:00 and 18:00 on the said date.[101]
[101]T136
124 Counsel for the defendant submitted the defendant’s failure to call any evidence as to its system of cleaning could result in an inference no greater than the uncalled witnesses would not have assisted the defendant[102] but it cannot be used to fill gaps in the evidence. It was also submitted it was of note the statements of these witnesses were in the plaintiff’s court book and the plaintiff chose not to tender those statements or call evidence from those witnesses whose details were available.[103]
[102]Jones v Dunkel (1959) 101 CLR 298
[103]T136
125 Counsel also submitted, in regards to any suggestion the defendant failed to warn the plaintiff of a slipping hazard, the existence of such a warning system was evident by the defendant’s employee putting up warning signs, as shown on the CCTV footage (4:32:03pm); however, this submission has no weight, given the film showed at that time an employee simply putting up a sign advising patrons the next session of a particular film was sold out, not a sign warning of any danger.
126 Counsel for the defendant submitted the consideration of what was reasonable in the circumstances must be considered with a degree of realism.[104] Not only has the plaintiff failed to establish the system was inadequate, but she has also failed to provide any evidence whatsoever as to the existence of a practicable and reasonable alternative system of inspection and cleaning and warning that the defendant should have employed.[105] As Mason P stated in Pareezer:
“A breach inquiry is not satisfied merely by positing with the benefit of hindsight that something more might have been done.[106]
[104]See Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
[105]T138
[106]Coca Cola v Amatil (NSW) Pty Ltd v Pareezer & Ors [2006] NSWCA 45 at paragraph [3]
127 It was submitted the Court could not rely on case law to determine what a reasonable system of inspection, cleaning or warning would have been in this case.[107]
[107]T139
128 Further, it was submitted it was also impossible for the Court to properly undertake the balancing act required in s48(2) of the Wrongs Act without any evidence as to the burden of taking the precautions suggested by the plaintiff, whatever they might be.[108]
[108]T139
129 Finally, it was submitted there was simply no evidence upon which the Court could find that the flooring at the location of the incident did not have reasonable effective non-slip qualities or ought to have been covered with a non-slip mat.[109]
[109]Paragraph 6(f) of the Amended Statement of Claim
Plaintiff’s submissions – duty of care
130 In terms of the content of the duty of care, counsel for the plaintiff relied on McHugh J’s observations in Brady v Girvan Bros Pty Ltd[110] about what needs to occur when there is a high risk of spillages and other rubbish deposited on the floor – “a system of almost constant inspection in cleaning up the spillages and other rubbish is maybe what is required reasonably in the circumstances.”[111]
[110](1986) 7 NSWLR 241
[111]T153
131 In Strong v Woolworths Limited,[112] the High Court accepted a reasonable system of inspection on the sidewalk in a case that involved a fall adjacent to a food court between Woolworths and Big W was no greater than twenty minutes; however, it was submitted the present case is very different, because of the nature of the premises and the food being handed over, popcorn without lids and with liquids.[113]
[112](2012) 246 CLR 182 (“Strong”)
[113]T154
132 It was submitted the Court should be careful how it treated the defendant’s Answer to Interrogatory 1, because it really is a “self-serving and untested answer”. To some extent, it does indicate there was a system, or should have been a system, of constant inspection, or at least very regular inspection, and at least be reactive to the presence of food on the floor.[114]
[114]T154
133 Taking into account that answer, it was submitted the system should go further because, according to that answer at least, there is no system of cleaning of that area itself, as opposed to inspecting and then cleaning – it is reactive to debris on the floor.[115]
[115]T155
134 To discharge its admitted duty around the time the plaintiff attended the premises, it was submitted the defendant should have had a system of almost constant or at least very regular inspecting of the tiled area, a system of removing any debris that fell in that area once it was observed, a system of regular cleaning rather than a reactive system on inspecting the floor as appears to be the case based on the CCTV footage. This cleaning system should have been frequent given the nature of the area, where food and drink were sold. Further, anti-slip mats should been provided.
135 It was submitted this system could be expected on the facts of this case considering on the CCTV footage that the floor was tiled, drinks were served at the counter, popcorn was served at the counter without a lid or cover, there were even two straws on the floor and it was obvious, and it has even been conceded, there was popcorn on the floor.[116]
[116]T155
136 Whilst legal precedent only goes so far, it can be a good guide and may be used to determine, on the facts, what would be a reasonable system the defendant ought to have had to discharge its duty of care to the plaintiff.[117]
[117]T155; per Gleeson CJ and Kirby J Vairy v Wyong Shire Council (2005) 223 CLR 422 at paragraphs [2]-[3]
Breach
137 Counsel for the plaintiff submitted there was a breach of the duty of care, because it is clear from the state of the floor where the plaintiff fell, there was no implementation of a system of regular inspection and cleaning at the time of the fall. That is clear, both from looking at the rubbish or debris on the floor on the plaintiff’s side of the candy bar, but also behind the counter where the cinema employees were working, where there was a “ginormous” amount of rubbish at their feet which they could be very clearly seen walking over.[118]
[118]T156
138 It was submitted the Answer to Interrogatory 6, described by counsel for the plaintiff as an admission against interest, supported there being a breach, because the defendant could not say between 14:00 and 16:25 what, if any, cleaning occurred, and could only say the area was cleaned afterwards.[119]
[119]T157
139 Further, the plaintiff and Dom had given evidence they were in the queue for ten to twelve minutes and saw no cleaner at that time. There were also no non-slip mats in the area.
140 It was submitted it was significant to the plaintiff’s case that the defendant called no evidence from four witnesses who were present at the time of the incident, witnesses identified during the running of the case to have been working at or around the counter. Their potential evidence was put to the plaintiff yet they were not called.[120]
[120]T157
141 It was submitted it was almost unbelievable the defendant would suggest the plaintiff would go calling the defendant’s witnesses. It was not relevant that the statements of these witnesses were in the plaintiff’s court book. Further, counsel for the defendant conceded it was a “forensic” decision not to call these witnesses, and there was no explanation for their nonattendance.[121]
[121]T162
142 Counsel for the plaintiff submitted the Court is entitled to look at the plaintiff’s evidence and how the case could have been elucidated by the witnesses of the defendant on those points. There is a long list of things in relation to which they could have assisted the Court, and therefore the Court can more readily conclude the matters that are urged by the plaintiff. These include the system of inspection and cleaning in place on the tiled area where the plaintiff slipped, whether a system of inspection and cleaning was implemented at that time, what inspection and cleaning occurred between 14:00 and 16:25, whether the plaintiff slipped, whether the plaintiff slipped on popcorn, or a slippery substance, or a wet patch.[122]
[122]T163; for example Jodie who cleaned the area shortly after the fall
143 The Court could also more readily conclude there was no cleaning of the tiled area for some time before the fall in the absence of that evidence, and that on the balance, popcorn and liquid on the tiles did not arrive on the tiles shortly before the fall, that the plaintiff slipped on popcorn and a wet patch on the floor. The conclusion could be more readily drawn that the defendant was negligent in not having the area cleaned before the incident, and that this failure was a cause of the plaintiff’s fall.[123]
[123]T163
144 It was also submitted a Jones v Dunkel[124] inference equally applied to the defendant’s failure to explain why it did not provide CCTV footage of before the incident, having discovered footage of the incident and its aftermath.[125]
[124] Supra
[125]T164
Considerations
145 The risk of harm in the present case was that a customer could fall (and suffer serious injury) on a substance on the floor if the floor was not properly cleaned.
146 Clearly, that risk was foreseeable, as counsel for the defendant acknowledged.
147 In my view, that risk was also not insignificant. It is not to the point that there had been no previous falls at the premises. All the relevant circumstances must be taken into account. A serious injury has occurred, whether or not there had been previous incidents. Common sense says that if there is a substance on the floor that has not been cleaned up, there is a risk of serious injury to a range of people attending the premises.
148 Patently, the risk of injury was foreseeable if a slippery substance on the floor was not cleaned up.
149 Into these considerations should be added the factors set out in s14(B)(4) of the Wrongs Act, which are relevant in terms of whether the duty of care had been breached. These include that patrons were invited by the defendant to the premises, it was a profit making venue and the defendant was aware people of all ages may attend to see the films on show. The defendant ought to have known those attending would have been focussed on buying movie tickets or food such as popcorn and drinks and not be looking at the floor on which they walked to the counter to be served.
150 Having found the risk of injury was foreseeable and not insignificant, in my view, a reasonable person in the defendant’s position would have taken precautions against that risk of harm to the plaintiff.
151 In particular, the defendant failed to employ an adequate system of cleaning and did not warn the customers of the condition of the floor.
152 Reasonable care in a busy cinema required constant monitoring by counter staff and an immediate response to spillages in the terms described in the Answer to Interrogatory 1.
153 Clearly, this system was not in operation at the time of the incident. There is no viva voce evidence from any employee of the defendant as to any cleaning taking place between 14:00 and the time of the incident. The Answer to Interrogatory 6 only identifies cleaning after the incident. Further, there were straws and popcorn on the floor from which I can infer cleaning had not taken place for some time.
154 In those circumstances, I am therefore satisfied that no such cleaning or inspection occurred.
155 Further, there was no warning given to the plaintiff prior to the incident of the presence of popcorn or any debris on the floor of the tiled area. Whilst the defendant’s counsel conceded a warning sign was placed on a drink machine after the incident, there in fact was no warning given as this sign simply advised patrons an upcoming session of “Guardians” had been sold out.[126]
[126]No evidence was called from the worker who put up that sign
156 As counsel for the plaintiff submitted, the defendant was supposed to have a system of constant inspection and an ability to clean as soon as possible after seeing food on the floor.[127] I do not accept this system was being complied with at the time of the incident, given the amount of debris on the tiled floor where the plaintiff was standing and also behind the counter where the patrons were being served, as shown on the CCTV footage.[128]
[127]Interrogatory 1
[128]T155
157 In all the circumstances, I am satisfied the defendant breached its duty to the plaintiff to take such care as in all the circumstances was reasonable to ensure that she would not be injured by reason of the condition of the floor at the premises.
Causation
158 The next step in the analysis is to determine whether the causation link between breach and damage is satisfied as required by Division 3 of Part X.
159 Section 51 of Part X of the Wrongs Act provides:
“(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
(2) In determining in an appropriate case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
160 The High Court majority in Strong[129] in allowing an appeal from the New South Wales Court of Appeal to reinstate the trial judge’s verdict in favour of the appellant, elaborated on the meaning of factual causation under the Civil Liability Act (NSW).
[129] Supra
161 In Strong, the appellant suffered injury at around 12.30pm when her crutches slipped on a chip or grease patch on the ground of a sidewalk sales area. It was accepted this area was the responsibility of Woolworths, whose employees were required to keep an eye out for any spillages in the area. The sidewalk area was not inspected in the four-and-a-half hours between the time when the area was set up for the day’s trading and the time of the plaintiff’s fall.
162 The Court of Appeal found the trial judge had erred, because there was no basis for concluding that the chip had been on the ground for long enough for it to be detected and removed by the operation of a reasonable cleaning system. In the absence of evidence supporting an inference that the chip had been there for some time, such as that the chip was dirty or cold to touch, the Court of Appeal said that there was no basis for concluding that it was more likely than not that it had not been dropped shortly before the appellant slipped.
163 On appeal to the High Court, in issue was whether the respondent’s negligence – in failing to employ an adequate cleaning system – was a necessary condition of the appellant’s harm. That is, had a periodic cleaning system been employed on the day of the incident, would the chip have been detected and removed prior to the incident occurring?
164 The respondent contended in order to succeed, it was necessary for the appellant to point to some evidence permitting an inference to be drawn concerning when the chip was deposited.
165 The High Court rejected this argument –
“It was incumbent on the appellant to prove that it was more probable than not that Woolworths negligence was a necessary condition of her fall, but this onus could be discharged by consideration of the probabilities in circumstance in which the evidence did not establish when the chip was deposited.”[130]
[130](Supra) at paragraph [34], adopting the reasoning of Hayne J in Kocis v S E Dickens Pty Ltd [1998] 3 VR 408
166 The High Court found there was no evidence supporting the finding the Court of Appeal made in relation to when the chip was deposited. The conclusion that the chip had been dropped at a particular time, shortly before the appellant slipped, rather than at any other time on the day of the incident, was speculation. To the contrary, the balance of probabilities supported the conclusion that the chip had been there for the longer time.[131]
[131](Supra) at paragraph [37]
167 The High Court stated:
“Proof of the casual link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred. Here the appellant was required to prove that had a system of period cleaning and inspection been employed on the day of her fall, it is likely that the chip would have been detected and removed before she approached the entrance to Big W.”[132]
[132](Supra) at paragraph [32]
168 The High Court held the probabilities favoured the chip was deposited in the longer period between 8.00am and 12.10pm and not the shorter period between 12.10pm and the time of the fall. Thus the appellant had established the requisite causal link between the respondent’s negligence and her loss and damage.
Defendant’s submissions – causation
169 Even if the defendant breached its duty of care to the plaintiff, which was denied, it was submitted any such breach was not causative of the incident. The evidence did not permit a finding any negligence “was a necessary condition of the occurrence of harm” ie the “but for” test as required by s51 of the Wrongs Act.[133]
[133]See Wallace v Kam (2013) 250 CLR 375; Powney v Kerang & District Health [2014] VSCA 221 at paragraph [71]
170 Counsel submitted there is no way of determining when, whatever the plaintiff slipped on, was dropped on the ground. She and her husband do not even know what she slipped on, let alone how long it might have been there for. It was submitted it was not open to make a finding it had been there for at least ten to twelve minutes.[134]
[134]T140; the time they were in the queue
171 Counsel submitted Dom’s evidence that he was looking around in the two to three minutes when he was at the front of the queue and did not see anyone drop anything should not be accepted.[135] Further, the plaintiff conceded somebody could have dropped something thirty seconds before she fell, although she did not see anyone do so. Both witnesses also conceded they were not paying attention to the floor in front of them.[136]
[135]T140
[136]T141
172 The plaintiff did not give evidence she did not see anything drop on the floor in the ten to twelve minutes whilst in the queue. Dom gave that evidence, but the plaintiff did not.[137] It was submitted his evidence that he was certain he would have noticed if someone had dropped two pieces of popcorn in front of him was “inherently improbable”.[138]
[137]T141
[138]T142
173 It was submitted the evidence of the plaintiff and Dom was that it was busy at the cinema. There were twenty to thirty people in front of them in the queue. There were lots of people buying things at the candy bar, including popcorn. The floor had not been cleaned in the ten to twelve minutes that they were standing in the queue, but they could not say when it was cleaned.[139]
[139]T143
174 It was submitted, the Answer to Interrogatory 1 was evidence of a system and also the Answer to Interrogatory 6 set out that the area was inspected or cleaned between 14:00 and 16:25. It was conceded the defendant could not say when, in this period, this took place, but it was submitted there was no evidence that it did not take place.[140]
[140]T143
175 It was submitted, given the CCTV footage, it was not a messy floor, and that on balance, the evidence favours the conclusion whatever the plaintiff slipped on was dropped on the floor by one of the twenty or thirty people who were in front of her in the queue and not an hour, for example beforehand. It was submitted that, together with what the floor looked like on the film, favoured the conclusion suggested.[141]
[141]T144
176 Further, counsel described the footage of Jodie cleaning the area after the incident as a reactive system of cleaning as described in the Answer to Interrogatory 1. The fact that she cleaned after the incident did not mean someone had already done that cleaning of some popcorn on the ground.[142]
[142]T145
177 It was submitted the balance of probabilities certainly does not favour the conclusion that whatever the plaintiff slipped on had been on the ground long enough that a reasonable inspection, warning and cleaning system (the nature of which the plaintiff had provided no evidence about) would have detected it.
178 In oral submissions, counsel submitted the present case is clearly distinguishable from Strong.[143] It was submitted in Strong, there was specific evidence there was no inspection in the four-and-a-half hours prior to the plaintiff falling on the chip. In the present case, there is only evidence that there was no cleaning or inspection in the ten minutes that the plaintiff had been standing in the queue.[144]
[143]Supra
[144]T146
179 Further, in Strong, the Court was required to consider when, on balance, the chip would have landed on the ground and considering it was lunchtime, how long the chip had been on the ground.[145] Unlike in Strong, it was submitted the evidence in the present case supports a balance of probabilities finding that whatever the plaintiff slipped on was most likely dropped in that busy period while she was in the queue with the twenty-odd people in front of her “because it’s a candy bar. There’s 20-30 people in front of her in the queue. It’s busy and the CCTV footage of the floor … it’s not a floor that has not been cleaned for hours, in context of it being a floor in front of a candy bar.” [146]
[145]T146
[146]T147
Plaintiff’s submissions
180 Counsel for the plaintiff submitted the starting point was to look at what happened between 14:00 and when the incident occurred at 16:25, and Interrogatory 6 was instructive in that way, as the defendant could not say what had occurred. It was submitted that situation was remarkably similar to the situation in Strong.[147]
[147]T159
181 That being the case, it was submitted there was no reason to draw an inference that the popcorn and water was deposited on the floor shortly before the incident than it is to posit it came onto the floor sometime between 14:00 and 16:25.
182 Moreover, the amount of debris on the floor also needed to be considered. It was submitted it would be absurd to suggest all of the debris arrived there in, say, a minute or two before the plaintiff stood on the ground. The presence of two straws on the floor, shown on the CCTV footage, also may lend some support to there being a wet floor.[148]
[148]T160
183 It was submitted, in light of the defendant’s admission that a warning sign was put up after the incident, that sign was to warn of something, perhaps liquid.[149]
[149]T60; however, the CCTV footage did not show a warning sign
184 While it was possible the very piece of popcorn the plaintiff fell on was deposited shortly before the incident, counsel for the plaintiff submitted it was not probable. It is mere speculation and the very thing that Strong tells against. It is telling against the Court, saying maybe it was deposited in the last minute or two, and therefore the plaintiff failed. What is relevant is what cleaning there was before the incident. The only evidence on that point was the Answer to Interrogatory 6 where the defendant was not able to say what cleaning occurred between 14:00 and 16:25, and that being the case, causation is established.[150]
[150]T160
185 Counsel for the plaintiff submitted the defendant attempting to say it was a long queue and maybe it was more likely the popcorn was deposited soon before the incident was the very error the New South Wales Court of Appeal fell into in Strong. As the High Court pointed out, why should an inference have be drawn that it is more likely than not the chip was deposited at lunchtime when there is no evidence of what cleaning went on.[151]
[151]T161
186 It was submitted what has to be considered in the present case is what cleaning had gone on before the incident. If there is no evidence of it, “start from that time, go to the time of the incident and say what happened during that period here? The only evidence is the defendant can’t say anything occurred which is consistent with what’s on the floor.”[152]
[152]T161
187 Further, it was speculative, also, to say the debris fell between twelve minutes and the incident, because it was busy then because there was no evidence it was not at all busy before that time.[153]
[153]T161
188 On that basis, it was submitted the defendant must fail on causation, as to do otherwise, the Court would be going into the same error as the New South Wales Court of Appeal.[154]
[154]T160
189 Further, the defendant has called no evidence from four witnesses who were present at the time of the incident, witnesses it identified during cross-examination as working at or around the counter area at the time thereof.
190 In light of the decision in Strong, it was submitted the inference should be drawn that a proper system of inspection and cleaning would have meant the plaintiff’s injury would not likely have occurred on the balance of probabilities.
Findings
191 The plaintiff is required to prove on the balance of probabilities that the defendant’s negligence was a necessary condition of her harm.[155]
[155]Strong at paragraph [32]; Section 51(1)(a) of the Wrongs Act
192 It is not necessary for the plaintiff to point to some evidence permitting an inference to be drawn as to when the popcorn was deposited.[156]
[156](Supra) at paragraph [34]
193 Strong requires a consideration of the probable course of events had the omission not occurred in order to establish a causal link between the injury and the defendant’s failure to adequately clean the area – factual causation.
194 Thus in this case, the plaintiff has to prove that it was more probable than not that the defendant’s negligence was a necessary condition of the incident and that onus could be discharged by consideration of the probabilities in circumstances in which the evidence does not establish when the popcorn was deposited.
195 Inherent to this issue is an assessment of the adequacy of the defendant’s cleaning system.
196 As I have found, the defendant’s negligence lay in its failure to employ an adequate system of inspection and cleaning and also to warn of any substances on the floor.
197 I am satisfied in the present case, that had a system as described in Answer to Interrogatory 1 been in operation on the said date, it is likely the popcorn on the floor would have been detected and removed before the plaintiff approached the sales counter.
198 In the absence of any evidence of cleaning occurring between 14:00 and the time of time of the incident, to accept the spillage occurred just prior thereto, as counsel for the plaintiff submitted, is speculative and not open on the balance of probabilities.
199 In my view, the popcorn was most probably dropped in the longer period between 14:00 and the time of the incident. It can be concluded therefore that it was on the ground for long enough to have been detected and removed by the operation of a reasonable cleaning system.
200 Moreover, the considerable amount of debris on the floor shown on the CCTV footage lends weight to the fact that food and/or liquids had been deposited on the floor over a period of time.
201 I am satisfied that in all the circumstances, the defendant’s negligence was a necessary condition of the plaintiff’s injury/harm – that a proper system of inspection and cleaning would have meant that the plaintiff’s injury would not likely have occurred on the balance of probabilities.
202 I am also satisfied that the defendant’s liability extends to the harm so caused to the plaintiff in the incident.[157]
[157]Section 51(1)(b) of the Wrongs Act
203 In summary, I am satisfied that the plaintiff fell on a slippery substance on the floor of the premises on the said date.
204 I am further satisfied that there was a breach by the defendant of its duty of care to the plaintiff pursuant to s14B(3) of the Wrongs Act and that the defendant’s conduct is negligent, the plaintiff having established the requirements of s48(1) and s48(2) of the Wrongs Act.
205 I am satisfied that the negligence of failing to have a proper system of cleaning and/or to fail to warn the plaintiff of the presence of debris on the ground, was a necessary condition of the occurrence of the harm (factual causation) per s51. And, that it is appropriate, pursuant to ss(b), for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
206 I am therefore satisfied the plaintiff has discharged the burden under s52.
Contributory negligence
207 Section 62 of the Wrongs Act now governs contributory negligence and provides as follows:
“(i) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributory negligent in failing to take precautions against the risk of that harm.
(ii) For that purpose
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.”
208 Counsel for the defendant submitted there was contributory negligence on the part of the plaintiff (failing to keep a proper lookout and failing to walk around the slippery substance) which meant there should be a reduction by at least 30 per cent of any damages awarded.
209 It was submitted the plaintiff was not paying attention to the floor when the incident happened. She did not look down. In circumstances where the cinema was busy and she had not seen anyone clean the floor in front of the counter in the ten minutes she waited in the queue, she ought to have taken greater care for her own safety and at least looked at the floor to check for slipping hazards when approaching the counter. It was submitted that was what a reasonably prudent person in the plaintiff’s position would have done.
210 In response, counsel for the plaintiff submitted, given the extent of debris on the floor as shown in the CCTV film, there is no weight in the contention that the plaintiff failed to walk around the slippery substance. As to any failure to keep a proper lookout, neither the plaintiff nor Dom were looking at the ground as they walked from the aisle to the counter. That is not surprising, given the area where they were walking, past a group of people to their left.
211 The plaintiff gave evidence there was nothing unusual in the way she walked,[158] and that was consistent with the CCTV footage.
[158]T83
212 It was submitted the allegations against the plaintiff were very weak. She was doing nothing other than walking to a counter to buy movie tickets. In those circumstances, there should simply be no finding of contributory negligence.[159] The factors set out in s62 of the Wrongs Act were not present.[160]
[159]T167
[160]T168
213 I fully accept the submissions made by counsel for the plaintiff in this regard. The plaintiff was simply walking a few steps at a normal pace to the counter to buy movie tickets when she slipped violently, as shown on the film. In those circumstances, there is no contributory negligence on her part.
Damages
214 The plaintiff claims the following items as matters of special damage, the amounts of which are admitted by the defendant:
Past economic loss $3,683.69 Past medical and like expenses $45,550.00 The cost of a total hip replacement and consequential rehabilitation $21,433.00[161]
Past Griffiths v Kerkemeyer[162] $11,100.00[163] [161]$39,385.49 claimed
[162](1977) 139 CLR 161
[163]$11,724.00 with gardening
215 In dispute were a loss of earnings claim on the basis of Victorian Stevedoring Pty Ltd v Farlow[164] in the amount of $50,000 and also future gratuitous care, with the plaintiff claiming $35 per hour ($70,425.25) and the defendant allowing $30 per hour, but denying any entitlement.
278 The plaintiff was taken to the Emergency Department at Northpark Private Hospital and subsequently diagnosed with a fracture of her left neck of femur. She complained of left hip pain and clinically had an irritable hip with shortened external rotation of her left leg. X-ray showed a displaced subcapital fracture of her left NOF, and Mr Pang decided to carry out a total hip replacement, which he did the following day at Northpark Private Hospital.
279 The operation was uncomplicated and intraoperatively, the plaintiff was found to have a completely displaced fracture of her subcapital NOF.
280 Post-operatively, the plaintiff was advised to undergo standard rehabilitation for that procedure and was transferred to the North Eastern Rehabilitation Centre for inpatient rehabilitation on 2 May 2017 and discharged on 15 May 2017.
281 The plaintiff’s post-operative course was complicated by her DVT and she was treated with Warfarin.
282 On review on 15 May 2017, the wound had fully healed, with no evidence of infection. Pain was well managed and the plaintiff was ambulating with a single crutch. She was referred for physiotherapy and to gradually wean off her crutch over the next few weeks.
283 On review on 9 June 2017, the plaintiff was doing well, with minimal pain, but continued to ambulate with a single crutch. She then walked with a stiff hip gait, but had a good range of active hip flexion and hip abduction.
284 On review on 21 July 2017, the plaintiff was now able to ambulate without any aids, the complaint of pain over the lateral aspect of the hip consistent with gluteal tendinopathy. Despite that, she was able to walk up to thirty to sixty minutes, limited by fatigue. She also had some difficulty going up and down stairs. She was encouraged to continue with physiotherapy, particularly working on her gluteal strength.
285 On review on 20 October 2017, the plaintiff’s progress had plateaued due to ongoing pain over the lateral aspect of her hip secondary to her trochanteric bursitis and gluteal tendinopathy. She was still having physiotherapy for this. She was able to continue to ambulate without aids and did not have any significant pain with weight-bearing activities. She did have pain at rest and at night, particularly when she lay on her left side.
286 On examination, the plaintiff walked with a normal gait and was Trendelenburg negative. She had a good range of active hip flexion and abduction. Mr Pang recommended anti-inflammatories and ongoing physiotherapy.
287 The plaintiff was reviewed nine months post-operative mark and although she was doing well, she still struggled with pain. Her x-rays showed a well-fixed prosthesis with no evidence of wear or loosening.
288 On last review on 20 July 2018, the plaintiff’s pain had improved, and she only had an occasional aching sensation in her buttock. She was able to walk unlimited distances and had returned to full activities. She walked with a normal gait and was Trendelenburg negative. She had a good range of active hip flexion and abduction. Mr Pang recommended she continue with a maintenance exercise program, and asked her to come and see him in twelve months with a repeat x-ray.
289 Mr Pang diagnosed a displaced subcapital fracture of the plaintiff’s left NOF, DVT post-operatively and gluteal tendinopathy and trochanteric bursitis post-operatively.
290 Mr Pang noted there were no problems with the left hip prior to the fall in which the plaintiff slipped on a slippery surface heavily, fracturing her left NOF, and her mechanism of injury was consistent with the fracture. As a displaced fracture of this nature cannot be fixed due to the risk of avascular necrosis, the plaintiff had the total hip replacement.
291 Mr Pang noted the plaintiff’s progress was slow compared to those who had had hip replacements for osteoarthritis, which was not unexpected, as those who require this surgery for trauma often have more pain, a slower recovery, and are at a risk of developing tendinopathies around the hip. This did occur, resulting in gluteal tendinopathy and trochanteric bursitis. This condition causes pain, particularly with any prolonged standing or walking, as well as at rest and at night. It was managed with anti-inflammatories and physiotherapy, and after about six months of treatment, it had eventually resolved. When she was reviewed about fifteen months after the operation, the majority of her symptoms had settled.
292 Mr Pang noted the operation had resulted in the restoration of the majority of function. Patients who undergo hip replacements do not regain a full range of movement in the hip. There is a risk of dislocation if the hip was to be placed in an extreme ROM. Despite this, the plaintiff was still able to squat, kneel, walk up and down stairs, and walk unlimited distances. Longevity of her hip replacement was also unpredictable, and in general, hip replacements can last ten to fifteen years. Given her youngish age, he expected the plaintiff would require a second operation in her mid to late sixties.
293 Mr Pang concluded currently, the plaintiff has good function and has no difficulties with her activities of daily living, and has capacity to work, although should avoid any high impact activities, lifting heavy weights or climbing ladders.
294 Nicole Hopkinson, physiotherapist, reported on 24 October 2017 that the plaintiff presented for treatment on 20 July 2017 following her hip injury. She noted the plaintiff had been completing a strength-based rehabilitation, and consistently reported ongoing constant pain, mostly in the gluteal region and surrounding the scar.
Medico-legal evidence
295 The plaintiff was examined by Dr David Kennedy, sports and industrial physician, for medico-legal purposes on 25 October 2017.
296 The plaintiff then complained of a constant burning pain in the left buttock and hip area, extending into the outer upper left thigh. The pain was moderate in intensity and increased with activities or when sitting, particularly in a car. She was limping towards the end of the day if she became tired, unable to run at all, limited with her walking distances to about 20 to 25 minutes, using a railing for stairs, particularly going up stairs, and had some restriction when putting on her shoes and socks.
297 The plaintiff was able to use public transport but was wary of doing so. Sitting in a soft padded chair caused some restrictions and limitations. She had difficulty standing up from a kneeling position, causing some restrictions with domestic activities including gardening. She did not require any supportive devices for ambulation.
298 The plaintiff told Dr Kennedy, on the said date, she was at the premises when she slipped on a food substance near the food counter and her left leg went behind her and then she fell onto the left side. An incident report was completed at the cinema and she was provided with a wheelchair and she went home.
299 On examination, there was a curved 15-centimetre lateral left hip surgical scar, with some indentation around it. There was tenderness interiorly and laterally around the left hip region. The range of motion was tight, but there was no significant fixed abduction, flexion, internal rotation or external rotation, and there was no fixed flexion contracture, nor was there any limb length discrepancy.
300 The range of motion at the left hip joint was flexion greater than 90 degrees, abduction, adduction and internal rotation greater than 15 degrees, but external rotation was less than 30 degrees.
301 On examination of the lumbosacral spine, there was a decrease in the lumbar lordosis, with some tightening and tenseness over the erector spinae and paravertebral musculature. There was a full range of lumbosacral spine movement.
302 Dr Kennedy thought the plaintiff had sustained a minimally displaced transcervical fracture of the neck of left femur in the incident, and further radiological investigations revealed some osteoporosis and osteopenia. Prior to the incident, she had no previous history of left hip joint injuries or problems.
303 In Dr Kennedy’s view, there were no obvious discrepancies between the plaintiff’s current symptom presentation and the clinical findings on examination.
304 Dr Kennedy considered the plaintiff had some restrictions with respect to the functioning of her left hip region affecting some occupational, domestic, social and recreational activities because of the persistent pain, limping and problems with sitting and standing tolerances, as well as walking up and down stairs.
305 Dr Kennedy thought it was unlikely the plaintiff would have any significant change in her left hip region within the next twelve months.
Defendant’s medical evidence
306 The plaintiff attended North Eastern Rehabilitation Centre post surgery. In an “Occupational Therapy Assessment Sheet” of 3 May 2017, it was noted, in terms of premorbid level of function, prior to injury, the plaintiff had assistance, with her husband mopping and vacuuming.
307 By letter dated 20 July 2018, Mr Pang advised Dr Bernet that he had reviewed the plaintiff with regards to her surgery and that she had done very well.
308 Mr Pang also advised that the plaintiff had occasional ache in her gluteal musculature but otherwise was very happy with the result. She was able to walk an unlimited distance and returned to full activities. Clinically, she walked with a normal gait and was Trendelenburg negative. She had a good range of active hip flexion and active hip abduction.
309 Mr Pang recommended the plaintiff continue with her maintenance exercise program to prevent wasting of her hip musculature. He had asked her to come back and see him in a year with an x-ray and inform Dr Bernet of further progress.
Treaters’ notes
310 On 28 July 2017, Dr Bernet last noted the plaintiff’s problems with her left hip following the operation.
311 On 19 October 2018, Dr Rayner noted the plaintiff had pain in the posterior aspect of her right shoulder for three months. In the last two to three weeks, pain was between 7 and 10.
Submissions on damages
312 Counsel for the defendant submitted, in all the circumstances, an appropriate award was $150,000.[229]
[229]T148
313 Counsel for the defendant contrasted the plaintiff’s viva voce evidence of her level of pain with Mr Pang’s report following the July 2018 examination of a good recovery and good prognosis. Further, the last report of any complaint of hip pain noted by the general practitioner was on 28 July 2017.[230]
[230]T148
314 It was conceded, obviously, the plaintiff had had a total hip replacement and there would be some consequences that flowed from it, but it was submitted the objective evidence of the plaintiff’s reporting of pain to doctors and the taking of medication, does not support her viva voce evidence of almost constant pain. She only takes Panadol Osteo every few weeks and has no treatment other than attending an exercise class at Curves.[231]
[231]T149
315 It was also conceded the plaintiff’s hip injury had had some impact on her capacity to play social tennis, watch her daughter play basketball and go on occasional business trips within Australia with her husband, and do some aspects of gardening and the heavier household chores, but it was submitted her lifestyle was otherwise unaffected.
316 While interference with overseas travel was claimed, the plaintiff and her husband had last travelled overseas in 2015, and there was no evidence they had plans for further travel that they could not do.[232]
[232]T149
317 The plaintiff can still walk her dog for thirty minutes, rather than an hour as she used to, and she is still the primary dog walker.
318 It was submitted there is not any evidence that the plaintiff’s hip condition or ability to maintain her current function and lifestyle will deteriorate in the future.[233] This is not a case where the plaintiff is pretty good now, but her evidence and the medical evidence is that she is going to get worse in a few years.[234]
[233]T149
[234]T150
319 It was submitted the plaintiff is not entitled to damages for Griffiths v Kerkemeyer[235] in the future regarding care provided by her husband. There is no medical evidence that supports the plaintiff’s inability to undertake all aspects of her household chores and also the Court is unable to be satisfied that the requirements of s28IA(1) are met.[236]
[235] Supra
[236]T150
320 Section 21IA(1) of the Wrongs Act provides:
“(1) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that—
(a) there is (or was) a reasonable need for the services to be provided; and
(b) the need has arisen (or arose) solely because of the injury to which the damages relate; and
(c) the services would not be (or would not have been) provided to the claimant but for the injury.
(2) Further, no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided—
(a) for less than 6 hours per week; and
(b) for less than 6 months.”
321 If those requirements were met, it was submitted an appropriate assessment is for, at most, two hours a week in accordance with the plaintiff’s evidence, at $30 an hour – the agreed figure for the past which it was submitted was generous, not the $35 per week claimed.[237]
[237]T150
322 Further, it was submitted any Griffiths v Kerkemeyer claim for the future ought to be discounted by 30 per cent for vicissitudes – the potential for other injury, such as the plaintiff’s right shoulder injury causing her significant pain and also allow for the fact her hip could improve, or her ability to undertake tasks could improve.[238]
[238]T151
323 It was submitted there is no evidence of the cost or, really, the requirement for occasional gardening assistance.[239]
[239]T151
324 In terms of future medicals, it was conceded there is a possibility the plaintiff may require another hip replacement in her mid to late sixties, but not certain. Counsel agreed the cost for the deferral factor was $21,433 which, it was submitted, ought to be discounted by 25 per cent to take into account the possibility surgery might never eventuate.
325 It was submitted the future medical claim for gym of $89 a month is for a general fitness program and not something that should be borne by the defendant. Further, that cost should be discounted by at least 50 per cent for vicissitudes, as well as the possibility the plaintiff stops doing it for other reasons.
326 The claim for monthly deep tissue massage should not be allowed as the plaintiff has not had this treatment and there are no precise details in relation thereto.[240]
[240]T152
327 In terms of the Farlow[241] claim, the defendant relied on the plaintiff’s evidence she had no intention of retiring, she did not know whether her left hip would have any impact on her capacity for work in the future, and she had never given any thought about what age she might retire. It was submitted there was simply no evidence to support a Farlow claim.[242]
[241]Victorian Stevedoring Pty Ltd v Farlow (supra)
[242]T173
328 Further, there was no medical evidence at all that the plaintiff’s work capacity in her three-day a week administrative job would at all be impacted by her hip injury other than the chance of further surgery.
329 It was submitted an appropriate assessment for future economic loss should be in line with the plaintiff’s past economic loss, the last hip replacement, as well as a discount of 25 per cent for the possibility the surgery might not occur, so on that basis, an appropriate figure was $1,395.[243]
[243]T152
Plaintiff’s submissions
330 Counsel for the plaintiff submitted general damages of $300,000 were appropriate. The plaintiff is still a relatively young woman, only fifty-three. That is young to have had a total hip replacement, and to require one in another fourteen years, when the plaintiff is still young, is a significant burden on her.[244]
[244]T169
331 The first operation was a significant one and was complicated by a DVT, a long period of rehabilitation and the development of gluteal tendinopathy and trochanteric bursitis. The plaintiff knows she has to go through that surgery and rehabilitation again when in her mid sixties.
332 Counsel submitted the defendant sought to downplay the significance of the plaintiff’s injury, but of course it is a lifelong one, and will require a further hip replacement, and obviously results in permanent impairment.[245]
[245]T168
333 It was submitted it was not unexpected that the plaintiff has not regularly attended on her general practitioner following the operation. She is still under Mr Pang’s care and was to see him in July this year. As the plaintiff explained, if the pain is reasonably constant, what is she going to talk to her doctor about.[246]
[246]T168
334 It was submitted Mr Pang’s evidence revealed how stoic the plaintiff is and that she has got on with her life. In her discussions with him, as the plaintiff explained, his focus was on her hip motion and function. The fact he thought she got back to function does not lead to a conclusion that she does not have fairly constant pain as she describes.[247]
[247]T168
335 The plaintiff is embarrassed about the surgical scarring and resultant indentation in her buttock area. She has issues with intimacy with her husband. She no longer wears a swimsuit, and even wearing tight fitting clothing generally is a problem because of the indentation.[248]
[248]T169
336 The plaintiff is unable to complete heavier tasks around the house and requires Dom’s assistance in relation thereto.
337 Three times a week, the plaintiff attends Curves to “keep things in order” and keep the severe pain at bay. She is only fifty-three. Curves help her manage her condition.[249]
[249]T171
338 The plaintiff’s pain is fairly constant and she relies on medication from time to time. She also has problems sleeping, having always slept on her left side before the incident.
339 The plaintiff no longer goes to watch her daughter play relatively high level basketball. The plaintiff no longer plays social tennis, which she used to play from time to time, and no longer goes with Dom on work trips. They have not been overseas since the incident.
340 The plaintiff has difficulty walking her dog and looking after it. She no longer gardens, which she used to enjoy, and she pays for further gardening assistance.
341 It was submitted there was really nothing in the plaintiff’s right shoulder or right hip condition.[250]
[250]T168 – T169
342 In terms of the Farlow claim, counsel for the plaintiff submitted the defendant’s counsel was misapplying the very basic Farlow principle. It is not about balance of probabilities in relation to such damages, it is about possibilities. The possibilities are that the plaintiff may have to retire early; and she may have to take time off work. It was not known if the plaintiff has to take time off work, whether she will ever go back to work and also what will happen if her condition declines.
343 In those circumstances, it was submitted a Farlow award of $50,000 was very reasonable.[251]
[251]T171
344 The plaintiff’s claim for future care is on the paid care basis for 2.5 hours per week at $35 per hour.[252] The claim is therefore $87.50 per week, at a multiplier of 875.6, the plaintiff makes a claim for $76,615 less 15 per cent for vicissitudes, totalling $65,122.75. An additional sum of $5,302.50 (being $10,500 deferred at .505) was sought to make an allowance for further care required when the plaintiff’s hip replacement declines and after she has further surgery. A total of $70,425.25 was claimed.
[252]T171 – an hourly rate accepted by the Court in Wesfarmers v Linfox Australia Pty Ltd [2015] VSC 63 at paragraphs [131] and [134]
Overview of the damages
345 In my view, an appropriate award for pain and suffering damages in this case is $230,000.
346 While the plaintiff has had a relatively good result from the operation, that procedure, rehabilitation and the complications post surgery, including a DVT and gluteal tendinopathy and trochanteric bursitis, have had a major impact on her life, resulting in considerable pain and suffering.
347 Further, I am satisfied the plaintiff faces a likelihood of another total hip replacement, given her relatively young age, as Mr Pang has explained. In those circumstances, I allow the figure agreed between the parties in this regard, with only a small reduction for contingencies.
348 Whilst Mr Pang thought the plaintiff’s recovery was good, I accept that she continues to experience pain and that the focus in his examinations was largely on her mobility, as his notation of measurements of her movements on examination confirmed. Whilst he was happy with her progress, he did report that she would not regain a full range of movement in the hip following the operation.
349 I accept the plaintiff has ongoing pain, particularly in the area of her left gluteal, where there is also a significant indentation in the area of the scarring. That pain will continue for many years as the plaintiff is only relatively young, now aged fifty-four.
350 The plaintiff now has difficulty sleeping on her left side because of hip pain and it is also painful lying on her back because doing so presses on the glute area.
351 The plaintiff is embarrassed by that scarring, and also the related indentation. The appearance thereof affects intimacy with her husband, her desire to wear bathers, and also tight-fitting clothing that she previously liked wearing.
352 I also accept that because of her hip injury and restriction, the plaintiff is no longer able to play social tennis and engage in the activities she previously enjoyed. She is unable to watch her daughter play relatively high level basketball, as she has difficulty sitting on the hard benches at the stadium. Further, problems with prolonged sitting affect her ability to travel both interstate and overseas, noting, however, she and her husband last went overseas in 2015.
353 On the domestic front, the plaintiff is restricted in the amount of housework she can perform and is no longer able to do the heavier tasks, such as vacuuming and mopping, and these are done by her husband. I accept that these and other heavy household tasks are provided by him for about two hours a week and I make an allowance in that regard for the future, at a cost of $35 an hour on the basis of the recent decision in Wesfarmers. [253]
[253]Supra
354 The plaintiff is no longer able to freely enjoy gardening, which was previously her domain, and paid assistance is now required for weeding and planting
355 Although Dr Kennedy saw the plaintiff in late 2017, he thought it was unlikely she would have any significant change in her left hip region within the next twelve months. He considered there would therefore be ongoing issues with respect to the functioning of her left hip region affecting some occupational, domestic, social and recreational activities because of the persistent pain, limping and problems with sitting and standing tolerances, as well as walking up and down stairs.
356 A claim was made for future economic loss on the basis of the principles set out by the Full Court in Farlow.
357 In that case, the Court held that a plaintiff can be compensated to the extent of a reasonable and moderate evaluation in money of the mere chance of risk of further unemployment or less remunerative employment.
358 In the circumstances of this case, where there is a likelihood of further surgery as Mr Pang explained as early as at the age of 62, I am satisfied there is a risk her working life will be shortened and, in my view, an appropriate allowance in this regard is $40,000.
359 Further, I consider an appropriate figure for future paid care of approximately 2 hours per week to be $50,000. There is a reasonable need for such services to be provided and such need has arisen solely because of the incident injury and would not have been provided to the plaintiff but for that injury.
360 I have allowed the sum of $30,000 for future medical and like expenses, being the amount claimed by the plaintiff less a moderate sum for vicissitudes.
361 I make no allowance in relation to the claims for gym expenses and the cost of therapeutic massage. There is no medical evidence the plaintiff requires either item as a result of her incident injuries.
362 Accordingly, there will be judgment for the plaintiff in the sum of:
Pain and suffering
$230,000.00
Past economic loss (agreed)
$3,683.69
Past medical and like expenses (agreed)
$45,500.00
Cost of total hip replacement and consequential rehabilitation
$30,000.00
Past Griffiths v Kerkemeyer care provided by the plaintiff’s husband
$11,100.00
Future Griffiths v Kerkemeyer care provided by the plaintiff’s husband
$50,000.00
Future economic loss in terms – Farlow
$40,000.00
Total $410,283.69
Appendix 1
Summary of CCTV Footage
Camera 7 Part 1
4:25:38pm – Plaintiff enters view of camera and falls at 4:25:39. View of incident obstructed by man standing at register – continues to be obstructed until 4:27:26pm - when man walks off. Post-fall there is a white spec on the floor close to the plaintiff’s foot.
The plaintiff is assisted by her husband and two staff members.
At this time, there are a number of white specs on the floor which appear to be popcorn on the left side of the screen (approximately 8 specs). There also appears to be two black straws on the ground in front of the register which is not being used.
The area behind the counter is particularly messy, with an employee shown sweeping a large amount of debris in the seconds prior to the plaintiff’s fall. Despite this, a significant amount of debris remains behind the counter.
4:25:51pm – A person coming to assist the plaintiff after the incident walks on top of the two black straws on the ground, dislodging them from their original position.
4:27:24pm – As the man at the counter walks off, the spec on the ground identified by the plaintiff as what she may have slipped on disappears from the footage for approximately one second before reappearing.
4:27:37pm – The plaintiff walks with assistance from husband and a staff member. Husband walks through area where the plaintiff slipped. Two other patrons mill around the area of the slip.
4:28:06pm – Cleaner enters at the top left of screen. Using a dustpan and broom she commences sweeping up mess on the floor on the left side of the screen including pieces of popcorn and straws.
4:28:42pm – Cleaner sweeps very close to area where plaintiff slipped on the right side of the screen; however, given the view was obstructed at the time the plaintiff fell, it is not possible to identify if the area she swept was the precise area the plaintiff slipped.
4:28:56pm – Floor in front of counter is noticeably cleaner than pre-incident save for two specs which remain.
4:29:36PM – Patron walks through area where plaintiff apparently slipped. Customers continue to buy tickets and food.
4:31:27 – Footage concludes
Camera 5, part 1
4:25:36pm – Plaintiff in line at the edge of the tiled area. Walks onto tiled area with husband on left-hand side. Incident occurs whilst plaintiff is off screen
4:27:44pm – Plaintiff re-enters screen assisted by husband and staff. Limping badly.
4:32:03pm – Employee begins sticky taping signs up at counter (unable to read what signs says).
4:35:45pm - Footage concludes.
Camera 5, Part 2
4:43:16 – Cleaner enters the screen and begins sweeping the carpeted with dustpan and broom.
4:46:22pm – Plaintiff enters screen in wheelchair being wheeled by employee. Husband walking alongside.
4:46:35 – Cleaner walks off carpeted area and out of screen.
4:47:03pm – Cleaner re-enters screen and recommences sweeping carpeted area.
4:47:55 – Cleaner exits.
4:48:08pm – Footage concludes.
Camera 6, part 4
4:31:29pm – Employee serving a customer at the counter. Lying face up on the counter next to the sticky tape are the signs to be put up. They appear to read “GUARDIANS [indiscrete] 6:40pm SOLD OUT”.
4:32:03pm – Employee removes signs currently up at the counter and then commences placing new signs (as above) around the counter area.
4:33:40 – Employee sweeps very messy area behind counter.
Camera 7, part 4
4:37:42 – Both behind and in front of the counter are clean, with minimal debris on either side.
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