Stringer & Stringer v Westfield Shopping Centre MANAGMENT Co (SA) P/L

[2017] SADC 35

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

STRINGER & STRINGER v WESTFIELD SHOPPING CENTRE MANAGMENT CO (SA) P/L

[2017] SADC 35

Judgment of His Honour Judge Beazley

18 April 2017

TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - OCCUPIERS

TORTS - NEGLIGENCE - LIABILITY FOR OTHERS' NEGLIGENCE - INDEPENDENT CONTRACTORS

The first plaintiff was seriously injured on 14 November 2009, when she slipped and fell, when walking along a common area within a Shopping Centre Mall occupied and managed by the defendant – duty to clean and inspect - cleaning contract between the defendant and a non party, Reflections Cleaning Pty Ltd - whether the defendant had delegated the cleaning of the premises to an independent cleaning contractor – respective responsibilities of occupier and cleaning contractor - whether delegation to Reflections absolves defendant, as occupier, of liability to the plaintiffs – proceedings brought by the plaintiffs against the defendant alone – Reflections not joined as a party to the proceedings – whether shopping centre had adequate system of cleaning and inspection - whether first plaintiff established that she had slipped on liquid on the mall floor – was the liquid deposited by a cleaner in the employ of Reflections - whether the defendant failed to monitor Reflections compliance with its cleaning contract - significance of CCTV footage of the fall – numerous customers observed to walk in area where liquid alleged to have been deposited - whether defendant owed a non delegable duty of care – what was the scope of any duty of care owed by the defendant to the plaintiffs - whether Jones v Dunkel inference should be drawn against the defendant for alleged failure to produce business records, and to call other witnesses as to the cleaning contract - whether defendant was in breach of its duty of care to the plaintiffs.

Held: The first plaintiff's fall was caused by a single event of negligence by an employee of the cleaning contractor, Reflections. The defendant was not liable to the plaintiffs. The respective claims of the plaintiffs are dismissed.

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES

Assessment of damages – the first plaintiff sustained a fracture, scarring, swelling and pain in the right ankle – onset of Trochanteric Bursitis - a significant issue in the trial was the extent to which the first plaintiff’s ongoing disability was caused by complications including an infection of the surgical wound  and right hip bursitis – loss of earning capacity – first plaintiff was a clinical nurse aged 41 years at date of accident – claim by second plaintiff for loss of consortium.

Civil Liability Act 1936 (SA) ss 20, 35, 65 and Part 8; Work Health and Safety Act, 2012 (SA) - previously Occupational Health, Safety and Welfare Act, 1986 (SA) s 23; Occupational Health, Safety and Welfare (Commercial Safety) Regulations 1987; Corporations Act 2001 (Cth) s.601AG, referred to.
Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; Prince Alfred College Inc v ADC [2016] HCA 37; Jones v Bartlett [2000] HCA 56; Elphic v Westfield Shopping Centre Management Co Pty Ltd [2011] NSWCA 356; Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264; Reid v Target Australia Pty Ltd [2014] NSWCA 60; Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16; Jackson v McDonald's Australia Ltd [2014] NSWCA 162; Ragnelli v David Jones (Adelaide) Pty Ltd & Anor (2004) 90 SASR 233; Permanent Trustee Australia Ltd v Valeondis [2009] SASC 375; Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; McVicar v S. J. White Pty Ltd (2007) 97 SASR 160; Jennings v Westfield Shopping Centre Management Co (ACT) Pty Ltd [2010] ACTSC 11; Bailey v Lend Lease Funds Management [2013] ACTSC 56; Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241; Strong v Woolworths Ltd [2012] HCA 5; Kay v Sydney Airport Corporation Ltd [2014] NSWSC 744; Coles Supermarket Pty Ltd v Bright [2015] NSWCA 17; Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482; Salkeld v Cocca [2013] SASCFC 138; Leichhardt Municipal Council v Montgomery (2007) 81 ALJR 686; Sarantidis v Westfield Shoppingtown Centre [1997] SADC 3594; Mercouris v Westfield Shopping Centre Management Co Pty Ltd [2000] NSWCA 79; Jones v Dunkel (1959) 101 CLR 298; Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; Wynn Tressider Management Pty Ltd v Barkho [2009] NSWCA 149; Laresu Pty Ltd v Clark [2010] NSWCA 180; Penrith City Council v Healey [2016] NSWCA 161; Cairns v Woolworths Ltd [2015] ACTSC 95; Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; Kellys' Property Management Services Pty Ltd v Anjoscho Pty Ltd [2016] NSWCA 341; Deal v Father Pius Kodak Kathanath [2016] HCA 31; Hollis v Vabu Pty Ltd [2001] HCA 44; Aircraft Technicians of Australia Pty Ltd v St Claire (2011) QCA 188; Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114; Gubic v Boral Transport Ltd [2016] NSWCA 269; Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199; Cox Constructions Pty Ltd v Dawes (1999) 73 SASR 577; Doan v Mendrecki (2008) 101 SASR 381; Stewart & Stuhmcke 'The rise of the common law' in statutory interpretation of law reform legislation: Oil and water or a milky pond?' (2013) 21 TLJ 126, considered.

STRINGER & STRINGER v WESTFIELD SHOPPING CENTRE MANAGMENT CO (SA) P/L
[2017] SADC 35

Introduction

1. At about 4.00pm on 14 November 2009, Joanne Lee Stringer (‘the first plaintiff’); her husband, Martin Stringer (‘the second plaintiff’), and their children, had attended the ‘Westfield - West Lakes’ shopping centre at West Lakes (‘the premises’).

2. The ground floor of the premises contained common areas, or aisles, which were bordered by various tenancies.

3. It was a hot day, and the ground floor was well patronised at the time.

4. The first plaintiff had briefly left the children in the care of the second plaintiff, but, after receiving a mobile phone call, had ceased shopping, and had walked to meet them.

5. In the course of walking along one such aisle, in the general direction of the ‘David Jones’ department store,[1] she slipped and fell. The incident was captured on CCTV, a copy of which recording was tendered in evidence during the trial.[2] At issue in the trial, was what had caused the plaintiff to slip, and whether the occupier of the premises was liable for her fall?

   [1]    See Plan of Centre, Ex P2; pg 5, 11 - 12.

   [2]    Ex P1.

6. There was no dispute that, in that fall, she sustained a fractured right ankle; a lacerated right hand; and extensive bruising, including, to her chin.

7. The injury to her right ankle has given rise to complications, with long term adverse consequences for her.

8. The CCTV footage, as tendered, had some limitations. It appears to have been taken from a camera with a wide view lens. It was properly described by counsel and some witnesses as ‘somewhat hard to follow and compressed’.[3]

   [3]    T. p 3 and 128.

9. It did however provide an overview of the relevant aisle; as well as recording the volume of customer traffic prior to the first plaintiff’s fall. During the preceding 33 minute period, approximately 350 customers had walked on or over the site of the first plaintiff’s accident without any misadventure.

10. While the footage was clear enough to establish that some of those customers were carrying items of shopping, it was insufficiently defined to establish whether any items had fallen to the aisle floor. The footage did not disclose whether any rubbish bins were full at that time; nor was it possible to determine whether there was any liquid on the aisle floor, let alone the colour or size of any liquid deposit, prior to the first plaintiff’s accident.

11. It was not in dispute that at about 3 minutes prior to the subject accident, a cleaner attended in its vicinity. That cleaner was employed by an independent cleaning contractor. The CCTV footage discloses that, as the cleaner proceeded to change a bag in an adjacent rubbish bin, her mop fell from the top of her cleaning trolley to the floor of the aisle.

12. Precisely what was the cause of the first plaintiff’s fall was unclear from the compressed CCTV footage, however her case was that she had slipped on some liquid, on the relevant aisle floor, which the defendant had failed to ensure was cleaned.

13. Various scenarios were put to the Court on behalf of the plaintiffs.

14. In opening the case, counsel for the plaintiffs, Mr Ward, seemed to link the point of the fall, and any liquid deposit, to a rubbish bin positioned in the middle of the aisle. He submitted that the defendant was obliged to inspect and clean the area abutting the rubbish bin on a continuous basis.

15. He submitted that the Court could infer from the position of the rubbish bin that liquid may have leaked from that bin, which leak may have been prevented by a non-slip mat. He submitted, in the alternative, that when the cleaner had lifted the bag from the rubbish bin, it leaked to the floor, which leak was not removed by that cleaner.

16. The plaintiffs did not specifically suggest that some liquid had been deposited by another customer on the aisle floor away from the rubbish bin during the 30 minute period which preceded the arrival of the cleaner.[4] They did however stress, as a fact that no cleaner had attended at the site of the fall for at least 30 minutes.

    [4]    Strong v Woolworths [2012] HCA 5.

17. Another alternative scenario, unconnected to the rubbish bin, was that the source of the liquid was the head of the mop.

18. It was not suggested by counsel for the defendant that the first plaintiff had slipped without making contact with some liquid.[5]

    [5]    Coles Supermarket Pty Ltd v Bright [2015] NSWCA 17.

    Overview of the proceedings

19. The plaintiffs bring the subject action against Westfield Shopping Centre Management Co (SA) Pty Ltd (‘the defendant’),[6] as the occupier of the premises.

    [6]    Now known as Scentre Group Management (SA) Pty Ltd (Acn 008 139 580)

20. There have been some significant delays in the subject action. The first plaintiff initially commenced proceedings against the holding company Westfield Ltd. It was not until 16 August 2013, that the plaintiffs brought the proceedings against the defendant.

21. Some 5½ years had elapsed between the date of the first plaintiff’s fall and the hearing of the trial. By that time the independent cleaning contractor, Reflections Cleaning Pty Ltd (‘Reflections’), which had contracted with the defendant to inspect and clean the premises, had ceased to trade, and had been placed into liquidation.

22. I am also conscious that this delay may have caused some difficulties with the memories of some of the witnesses. Other difficulties included the apparent onset of some symptoms about 4 years after the accident and which were not the subject of the pleadings.

23. I am also conscious of the delay between the completion of the trial and the delivery of these Reasons.[7] Apart from work load, I felt that it was prudent to first await the outcome of various pending superior court decisions.[8]

    [7]    See Johnson Diversey Australia Pty Ltd v Ferenczy [2013[ SASCFC 59.

    [8]    Prince Alfred College Inc v ADC [2016] HCA 37; Kellys' Property Management Services Pty Ltd v Anjoscho Pty Ltd [2016] NSWCA 241; Nepean Blue Mountains Health District v Starkey [2016] NSWCA 114; Gulic v Boral Transport [2016] NSWCA 268; and Deal v Father Pius Kathanath [2016] HCA 13.

24. The first plaintiff claims damages, inter alia, for pain and suffering, impairment; loss of enjoyment of life; loss of earning capacity, and consequential expenses for treatment, care and assistance.

25. The second plaintiff claims damages for loss of consortium.

26. The defendant admits that it was the manager and occupier of the premises, as at the date of the first plaintiff’s fall, and that, as such, it owed the first plaintiff a duty of care. It asserts that its duty was to take reasonable care to avoid a foreseeable risk of injury to her, arising from the physical state of the premises.[9]

    [9]    See Jackson v McDonald's Australia Ltd [2014] NSWCA 162 at [7]-[8]; Civil Liability Act 1936 (SA) s 20; and Defence paragraphs 1, and 5.

27. It denies that it is liable to the plaintiffs for the first plaintiff’s fall.

28. It asserts that it was entitled to delegate its duties of inspection and cleaning of the premises to Reflections, which had employed the cleaner identified on the CCTV footage.

29. The defendant asserts that it did so discharge its duty of care by using proper skill and care in engaging Reflections; by imposing appropriate cleaning and inspection obligations upon it; and by reasonably monitoring Reflections compliance with its obligations under the cleaning contract.

30. Accordingly the defendant asserts that, insofar as the cleaner had negligently caused liquid to be present on the aisle floor, or had failed to clean the floor; and that these or either of them had caused the plaintiff to fall, then that cleaner and Reflections, as her employer, may be liable to the plaintiffs,[10] but that the defendant is not liable to them.

    [10]   See Leichhardt Municipal Council v Montgomery [2007] HCA 6 at [157]; Woolworths (WA) Pty Ltd v Berkley Challenge Pty Ltd [2004] WASCA 196; P & H Property Service Pty Ltd v Branigan [2008] NSWCA 195.

    Reflections

31. Reflections was not joined as a party to the subject proceedings.

32. By written agreement, dated 22 May 2007,[11] (the cleaning contract), the defendant had contracted with Reflections, to undertake the inspection and cleaning of the premises, including the site of the subject fall.

    [11]   See Ex P2 pgs 7 to 81.

33. Reflections had previously been engaged to perform similar cleaning work at another ‘Westfield Shopping Centre’.

34. It will later be necessary to detail some of the relevant terms of the cleaning contract, however it is convenient to discuss an overview of it now.

35. The term of the cleaning contract was for a period of three years, commencing on 1 July 2007.

36. The works required to be undertaken by Reflections, in respect of each of the specified areas of the premises, were detailed at length in the cleaning contract. In particular, specific works and times were specified for Reflections in respect of the subject common areas and aisles of the premises.

37. The cleaning contract price payable by the defendant to Reflections, is set out in the first and third schedules to the agreement. While it may no longer be commercially sensitive, there is no need to detail the specific contract price.

38. It will suffice to note that it involves the payment by the defendant of a very substantial sum of money in the millions of dollars in consideration for Reflection’s works at the premises. It could not be suggested that the cleaning contract was anything other than a bona fide agreement to provide cleaning services of the highest quality.

39. The terms of the cleaning contract also obliged Reflections to indemnify the defendant, against any claims arising from the cleaning work; and to take out various insurance policies for the benefit of the defendant.[12] 

    [12]   Ex P2; T. pgs 11-12.

40. I repeat that Reflections had been placed in liquidation after the subject fall. The defendant asserted that the liquidator had taken possession of all of Reflection’s records, upon the commencement of its administration.[13]

    [13]   T. p 135.

41. It is trite that proceedings may be taken against the insurer of a deregistered company pursuant to s 601AG of the Corporations Act, 2001, (Cth). There was no evidence led as to whether Reflections had taken out the relevant policies of insurance.[14] I will not speculate upon whether Reflections did in fact take out the relevant insurance policies, nor whether it was, itself, otherwise insured. It is sufficient to note that no application was made by any party to join Reflections or any insurer as a party to the proceedings.[15]

    [14]   T. pgs 155 - 156.

    [15]   QBE Insurance Ltd v Nguyen [2008] SASC 138; and s.440D of the Corporations Act 2001 (Cth).

42. No former employees of Reflections were called by any party as witnesses in the trial. There was a dearth of evidence as to what documents may have been retained by Reflections prior to liquidation. Neither party sought leave to subpoena such documents,[16] from the liquidator.

    ·   Liability

    [16]   T. pgs 132, 133, 135, 138 and 149.

    The pleadings as to liability

43. The plaintiffs did not bring the proceedings against the defendant until 16 August 2013. Accordingly they sought an extension of time pursuant to s 48 of the Limitations of Actions Act, 1936, (SA).[17]

    [17]   See Third Summons (16 August 2013).

44. The defendant had specifically pleaded that it would be prejudiced if an extension of time was granted, such prejudice including the delay generally; the liquidation of Reflections; and, inferentially, the loss of relevant documents. Ultimately however the defendant abandoned this time point.

45. In the Particulars of Claim, the first plaintiff asserted that as she ‘passed a nearby rubbish bin, she slipped on a substance that had spilt to the floor causing her to lose her footing and fall to the ground.[18]

    [18]   Second Statement of Claim - paragraph 4.

46. She asserted that:

    ·The defendant had a duty to comply with ‘the relevant provisions of the Occupational Health, Safety and Welfare Act, 1986 (SA) and its Regulations’.[19]

    ·the defendant also had a duty, as occupier ‘with respect to the dangerous state or condition of the premises, with the standard of care determined in accordance with the principles of negligence as specified in s 20 of the Civil Liability Act, 1936, (SA)’;

    ·the defendant, and ‘its servants or agents’ were negligent, and/or in breach of its statutory duty contained in s 23 of the Occupational Health Safety and Welfare Act, 1986, (SA) and s 20 of the Civil Liability Act, 1936, (SA) by:

    ·causing or permitting the premises to be in a dangerous state or condition by reason of the ‘leaked substance’.

    ·failing to take steps [including the use of a non-slip mat] to eliminate, reduce or warn against the danger created by the rubbish bin and the spillage.[20]

    ·failing to employ a system of continuous cleaning and inspection for detection; rectification and warning of the existence of danger in the shopping centre walkways, and the site of the first plaintiff’s fall in particular, at the time of and following upon rubbish bins being emptied’.[21]

    [19]   Second Statement of Claim - paragraph 5.

    [20]   cf Mercouris v Westfield Shopping Centre Management Co Pty Ltd.

    [21]   Second Statement of Claim - paragraphs 6 and 7.

47. As can be observed, the plaintiffs’ pleadings were directed to the alleged conduct or omissions of the defendant. There was no specific pleading that the defendant was vicariously liable for any negligence by the cleaner employed by Reflections. In his opening address, Counsel for the plaintiffs said that ‘the plaintiffs say further that the defendant is liable for the negligence of the first cleaner’.

48. At trial the plaintiffs did assert that even if the defendant was not personally at fault, it was nonetheless vicariously liable for the cleaner’s negligence.

49. The defendant was not embarrassed by the absence of a specific pleading of vicarious liability, and did not object to the plaintiffs’ claims being also based on vicarious liability. As similar issues arise out of the pleaded issue of delegation of duty, I treated the issue of vicarious liability as if it had been pleaded.

1. There was no pleading nor issue raised by the plaintiffs as to any lack of slip resistance of the terrazzo floor in the premises.[22] 

   [22]   Contrast Kelly's Property Management Services Pty Ltd v Anjoshco [2016] NSWCA 341 at [14].

2. In its defence, the defendant denied liability to the plaintiffs,[23] asserting that:

   [23]   Defence - paragraphs 4, 5 and 6.

   ·its duty was not as an insurer of the entrants to the premises nor to make the premises as safe as anyone could make them.

   ·it had complied with its duty of care to the plaintiffs by having in place an adequate system of cleaning and inspection for the common mall areas of the premises, which system included an inspection of the site of the fall every twenty minutes’.[24]

   ·it was permitted at law, to delegate its cleaning and inspection to an apparently competent cleaning contractor.

   ·it discharged its duty of care as occupier in appointing Reflections as its cleaner upon terms requiring Reflections to comply strictly with cleaning and inspection obligations.

   ·it was reasonable to delegate its responsibility to Reflections; and that a cleaner engaged by Reflections had inspected the vicinity of the fall only minutes prior to its occurrence.

   ·by implication it was not vicariously liable for the negligent acts of Reflections nor its cleaner.

   ·that the first plaintiff was contributory negligent.[25]

   [24]   See Strong v Woolworths Ltd [2012] HCA 5.

   [25]   Defence - paragraphs 7 and 8. See Kellys' Property Management Services Pty Ltd v Anjoshco Pty Ltd [2016] NSWCA 341.

   The onus of proof

3. For many years courts have expressed concerns about the difficulties facing a plaintiff who has no means of knowledge of the safety and cleaning procedures adopted by an occupier, nor whether previous accidents had occurred at the premises.

4. These difficulties were described, by Kirby P; in Sleiman v Franklin Food Stores[26] as:

   The perils of slippery floors and their litigation … the legal difficulties faced by a plaintiff have been paraded … the plaintiff must first show that a duty arose in the defendant having regard to the nature of the premises … then it is necessary for the plaintiff to show that the occupier of the premises is in breach of the duty owed to her … proof of that breach is often difficult. This is so because it is frequently asking a great deal for the injured person to attend to the precise nature of the substance upon which she slipped. The shock, embarrassment, injury and pain are usually in the forefront of the injured person’s mind … Additionally the plaintiff who comes upon the premises will often have no idea of the system (if any) adopted by the occupier to guard against the substance upon which she slipped. The detail of any such system is within the exclusive knowledge of the occupier … but then the claimant must show that the breach of the duty which is established is what caused the injury and damage sued for. Here is the rock upon which many a claim has foundered.

   [26]   Court of Appeal (NSW) No 81 of 1985 (unreported). See Stewart & Stuhmcke 'The rise of the common law ... - oil and water or a milky pond? (2013) 21 TLJ 126.

5. Despite some case law, and academic articles suggesting that occupiers of commercial premises, who derive an economic advantage from customers attending their premises, ought be strictly liable to provide compensation to those injured by accident, the law remains that an occupier is not an insurer of customer safety.

6. The law in respect of occupier’s liability has, in other respects, developed significantly since 1985.[27]

   [27]   Brady v Girvan Bros (1986) 7 NSWLR 241 at 246-247 and Civil Liability Act 1936 (SA) s 20.

7. It is trite that the plaintiffs bear the ‘legal (and evidential) burden of proving, on the balance of probabilities, on all the evidence at trial, that the defendant owed them a duty of care which had been breached in a manner which caused the first plaintiff’s injuries’.

8. Most of the case law in slipping cases deals with the common feature of a dearth of evidence as to when a liquid or substance had been deposited on a floor.[28]

   [28]   See Jackson v McDonalds Australia [2014] NSWCA 162 at [89] and Strong v Woolworths [2012] HCA 5, but see Civil Liability Act 1936 (SA) at s 35.

9. In Strong v Woolworths Ltd,[29] the High Court recognised the difficulty, in ‘slipping cases’, of establishing a causal connection between the absence of an adequate cleaning system and the plaintiff’s injury when it is not known when the slippery substance was deposited.

   [29] [2012] HCA 5 at [4].

10. In that case Heydon J said at [53]:

    That if the plaintiffs call evidence ‘sufficiently weighty to entitle, but not compel, a reasonable trier of fact to find in her favour, the defendant bears an evidential burden in the sense of a provisional burden such that if it failed to call any weighty evidence it runs a risk of losing on the issue.

11. In a number of cases plaintiffs have succeeded despite not having established how long the spillage had been on the floor before the slip.

12. Courts have inferred that it must have been there long enough to have been detected if an adequate cleaning system had been in place.[30]

    [30]   See Allcorp Cleaning Services v Fairweather [1998] NSWCA 291 and Brown v Target Australia [1984] 37 SASR 145. cf Mercouris v Westfield Shopping Centre Management Co Pty Ltd (2000) NSWCA 79.

13. In Kocis v S.E. Dickens Pty Ltd, Hayne J.A. (as he then was) explained that:[31]

    It is clear that an occupier of premises is no insurer of those who enter the premises. All that is required of an occupier is that reasonable care be exercised. It follows that the occupier is not to be held liable if a person entering the premises slips upon something which the occupier could not, by the exercise of reasonable care, be expected to have cleared away. Does it follow from these considerations that in order to succeed in a claim in negligence the plaintiff must demonstrate that reasonable care would have cleared away the substance upon which the plaintiff fell and, in particular, is it a necessary step in the plaintiff’s proofs to demonstrate when it was that the slippery material was first deposited?

    In my view it is of the first importance to bear steadily in mind that the plaintiff must prove his or her case on the balance of probabilities … thus a [Court] may reasonably conclude that the probabilities are that a particular spillage would have been cleaned up by the proper application of a reasonable cleaning regime on the part of the defendant occupier while at the same time acknowledging the possibility (but not the probability) that the substance was spilled only a moment before the plaintiff slipped on it. The question of causation is to be resolved by a consideration of the probabilities.

    [31]   See Civil Liability Act 1936 (SA) s 20 and Strong v Woolworths Ltd [2012] HCA 5.

14. In Jackson v McDonalds Australia Ltd[32] the Court of Appeal (NSW) said at [9]:

    Foreseeability of risk of injury is not determinative of breach of duty of care … the occupier’s obligation is that of reasonable care. Its duty is not to make the premises as safe as ‘reasonable care and skill on the part of anyone can make them’: Jones v Bartlett [2000] HCA 56 per Gleeson CJ. It is not an insurer of entrants: Kocis v SE Dickens Pty Ltd [1998] 3 VR 408, per Hayne J.

    What constitutes the exercise of reasonable care depends on the circumstances of each case.

    [32] [2014] NSWCA 162 and See Strong v Woolworths Ltd [2012] HCA 5.

15. While the principles of law are now well settled, it is the application of those principles to the particular events which has given rise to apparently inconsistent conclusions in a number of recent cases.

    The issues

16. The proceedings involve some complex questions of law. The principal issues in the trial were:-

    ·The cause of the first plaintiff’s fall.

    ·The content of the defendant’s duty of care.

    ·Whether the defendant’s duty of care was delegable by it.

    ·Whether in purporting to delegate to Reflections, its responsibility for inspection and cleaning, the defendant had effectively discharged its duty to avoid a foreseeable risk of injury to the plaintiffs from the physical state of the premises.

    ·Whether a Jones v Dunkel inference ought be drawn against the defendant for its alleged failure to call additional witnesses and produce business records of its monitoring of the cleaning contract.

    ·Whether the terms of its Agreement with Reflections were reasonably adequate to ensure the latter’s compliance with its duty of care.

    ·What consequences, if any, flow from the non-joinder of Reflections as a party to the proceedings?

    ·Whether the defendant was vicariously liable for the negligence of the cleaner employed by Reflections.

    ·Whether s 23 of the Occupational Health, Safety and Welfare Act, provides for a private right of action in relation to a breach of the section; or impose, by its terms, a non-delegable duty.

    ·The relevance, if any, of such a statutory duty to a single act of negligence.

    ·Was the first plaintiff contributory negligent?

    ·The assessment of the respective plaintiff’s damages.

    The first plaintiff’s fall

17. It is essential to first determine precisely how, and where the first plaintiff fell, especially in light of the different scenarios referred to herein. Only then will the Court be able to determine how it was that the liquid came to be deposited on the floor.

18. In Coles Supermarket Pty Ltd v Bright,[33] the plaintiff’s claim was dismissed. While she had observed a puddle and slip mark after her fall, there was no evidence as to the existence of the puddle before the fall.

    [33]   [2015] N SWCA 17.

19. The Court of Appeal (NSW) said at [18]:

    A finding of fact essential to a conclusion as to liability must be established on the balance of probabilities and not merely guesswork or speculation where the evidence is effectively silent, as explained by Dixon CJ in Jones v Dunkel. There is no bright line distinction to be drawn between inferences based on common experience and guesswork or speculation. It depends upon the plaintiff’s obligation to establish an affirmative satisfaction on the probabilities. The plaintiff had no opportunity to inspect the floor before she was surrounded by people offering assistance.

20. In the subject case most of the evidence was not in dispute.

    ·The general location of the fall, and the surrounding tenancies

21. While there was no dispute as to the general location of the first plaintiff’s fall, and where she came to rest, the precise position of the slip was not clear from the oral evidence.

22. Photographs tendered by the parties as part of Exhibit P2 identify the relevant aisle or mall,[34] as that leading to the David Jones department store. The tenancies in the relevant aisle included the card and gift shop; a jewellery shop; an optometrist and clothing shops, on the left of the aisle.

    [34]   Ex P2. Pgs 83 - 91.

23. There was no evidence to suggest that there was a food outlet situated in the relevant aisle.[35]

    [35]   Contrast the respective food halls in Strong v Woolworths Ltd [2012] HCA 5 and Ragnelli v David Jones (Adelaide) Pty Ltd [2006] SASR 233.

24. As the first plaintiff commenced walking along the relevant aisle in the direction of the David Jones store, the centre of the aisle contained a bench; an advertising sign, some lounge type seating for customers and a rubbish bin. The relevant aisle floor surface was terrazzo,[36] and generally cream in colour.

    [36]   Ex P2, T pgs 4 - 5.

25. The rubbish bin was cylindrical in shape with a metal grating. It had a cap on it, with a hole for refuse to be placed.[37] The first plaintiff fell to the floor of the aisle at a point generally adjacent to the ‘West Lakes Card and Gifts’ shop on her left, and to the rubbish bin on her right.

    ·The evidence as to the circumstances of the slip and fall

    [37]   Ex P2, T. p 100.

26. The evidence as to the fall came from a variety of sources. These included the CCTV footage; such business records of the defendant as were available;[38] the oral evidence of the first plaintiff; that of an independent witness Mr Durante Jones, and that of the second plaintiff.

    ·The CCTV footage[39]

    [38]   Ex P2, T. pgs 1 - 6 inclusive.

    [39]   Ex P1.

27. The footage of the site of the subject fall disclosed the following:

    ·Between 4.00pm and 4.35pm, approximately 350 customers of the premises are observed to walk along the subject aisle, and over the site of the first plaintiff’s fall, without apparently slipping, nor conscious of any liquid deposit.

    ·The footage is not distinct enough to ascertain whether items of food or liquid, were carried by those customers. Some customers are observed to be sitting on the lounge seat near to the rubbish bin. No cleaner’s trolley is observed between 4.00pm and 4.36pm. There was no evidence that cleaners or other staff had inspected the subject area during that time.

    ·At 4.36pm a cleaner employed by Reflections arrives at the site of the fall with a cleaning trolley. She positions the trolley at a midway point between the rubbish bin and the entrance to the ‘West Lakes Card and Gifts’ shop.

    ·She removes a bag from the bin and places its contents in the trolley. The footage does not disclose whether the bin was full at the time. She appears to place a bag on the aisle floor. She is partly obscured, because the trolley stands between the CCTV camera and herself. The cleaner is observed to clean the floor to the back of the trolley, using a towel or cleaning rag to do so. It is unclear from the footage whether she also cleaned under the trolley. That area under the trolley is in the vicinity of the first plaintiff’s fall.

    ·Her mop falls from the top of the trolley to the floor of the aisle, with the head of the mop landing also in the vicinity of the first plaintiff’s fall.

    ·At 4.37pm the cleaner is observed replacing the liner bag in the rubbish bin.

    ·At 4.38pm the cleaner picks up the mop, without cleaning the aisle at that point. She then leaves the area.

    ·At about 4.39pm four persons are observed to walk safely over what was shortly to be the scene of the accident.

    ·Within about 20 seconds, the first plaintiff is observed to walk along the aisle, which was bordered on her left by clothing tenancies, an optometrist, and finally the Card and Gift shop.[40]

    ·At 4.39pm the plaintiff is observed to slip and fall. The approximate point of the slip is, midway between the rubbish bin on the first plaintiff’s right, and the ‘Card and Gifts’ shop on her left side. As she falls, the first plaintiff’s body seems to move to her right so that her hand and head ended up near to the rubbish bin.

    ·Within a short time, two security officers arrived at the scene of the accident.

    ·At about 4.48pm a second cleaner arrives at the scene of the accident. She places her trolley close to the entrance to the ‘Cards and Gift’ shop. She proceeds to mop and clean that midway area but somewhat closer to the ‘Cards and Gift’ shop than to the rubbish bin. She placed warning signs in the area of the accident site.

    ·Report of cleaner Debra Foreman[41]

    [40]   Ex P2, Pgs 83 - 87; T. p 28.

    [41]   Ex P2, pg 6.

28. A business record dated 15 November 2009, was tendered.[42] It purported to be a record or statement prepared by an employee of Reflections, Debra Foreman, on 15 November 2009 at 1.35pm. Ms Foreman’s position in Reflections is not identified. I infer however from the detail in the record that she was a cleaner, in the employ of Reflections, who attended the scene of the first plaintiff’s fall at about 4.48pm on 14 November 2009.

    [42]   Ex P2, pg 6.

29. She identified the fall as having occurred at ‘Cards and Gifts’. She recorded that she observed ‘a lady on floor’, and that she saw a ‘milkshake spill which she mopped up and then went home’.

30. She recorded that the area is ‘cleaned away every 15 to 20 minutes’.

31. She noted that she had been notified by ‘C1 Lucy’ of the spill.

32. I infer that the letters ‘C1’ refer to the Reflections Cleaning Manager at the time.[43]

    ·An Incident Detail Report[44]

    [43]   See Evidence of Mr Krndija T.p 123, line 25.

    [44]   Ex P2, T. pgs 1 - 5.

33. This document, dated 18 November 2009, is a business record of the defendant, as to the first plaintiff’s fall. It purports to record statements allegedly made by the first plaintiff, and the independent witness Mr Jones. It records the subsequent roles of the defendant’s employees Debbie Hasler; Trevor Hill; and security officers Brenton Karutz and Allen Bonaventare. It included a copy of the aforementioned statement of Debbie Foreman – described as ‘the cleaner’s statement’.

    ·The oral evidence of the first plaintiff

34. She had visited the ‘Jeans West’ shop on the ground floor of the premises, after leaving her children with the second plaintiff.

35. She had received a mobile phone call from the second plaintiff to the effect that one child had become agitated, and ‘that he was standing out the front near David Jones’.[45]

    [45]   T. pgs 27 - 38.

36. She deposed that she commenced to walk down an aisle in the direction of the David Jones department store. She recalled that to her left was an OPSM shop, and that, further along, there was what she thought was a Newsagency. She now understood that to be the ‘West Lakes Card and Gift’s’ shop. She was able to identify herself as the individual depicted on the CCTV footage at about 4.39pm.[46]

    [46]   T. p 28.

37. She was asked:

    QWhat happened there, can you describe it.

    AI was walking towards David Jones. I walked and my right foot slipped forward. It was like I had slipped through a puddle, went and slipped forward, straight out in front of me and my ankle twisted and I landed on the ground with my elbows bent. It was just on the right and when I came down, I scraped my knuckles on the bin, so I landed with my right leg stretched out and on my ankles.

    QLooking at that still, that’s a bit hard to see but where was the bin located as far as you can recall.

    AThe bin was on my right hand side and there was a lounge area next to it, so it was on the corner set up like a square, so as I walked past, I’ve come past it. As I went down, I scraped my knuckles on the side. I think it’s directly to the right of me.

    QHave you any recollection now as to what size the bin was.

    AIt was quite large because it’s got the metal grating. That’s where I scraped my knuckles.

    QYou said you slipped on some liquid, how did you know that.

    AI could see the puddle that I went through. It felt moist.

    QCan you describe that.

    ABasically you could see the skid mark I slipped on. I could feel going through the fluid and you could see the drag mark from where I had gone – my foot had gone through and turned. It was like a skid mark.

    QWhat about the liquid itself.

    AI couldn’t tell you whether it was – it looked like a coke or a clear fluid, I don’t know. The tiles are motley because you could see it was like a watery substance. It wasn’t a milkshake or anything like that. (my emphasis)

    QCan you recall or maybe you wouldn’t be able to tell, maybe you were distracted, but can you recall the colour.

    ASort of a light brown, grey fluid.

    QWhat about the size, how much was there.

    AIt looked like a puddle about that size and you could see where my foot.

    QYou’re making a round shape, are you.

    AI can’t recall exactly the shape of it but, yes, you could see it wasn’t just a small size. It was larger than the size of my foot and you could see my skid mark had gone through - my foot mark had gone through.

    QAbout 6 inches or more than that.

    Counsel:  I thought about eight to 10.

    HIS HONOUR:           Are you happy with that.

    BOTH COUNSEL:       Yes.

    HIS HONOUR: Eight to 10 inches.

    QSo you’ve fallen over, what did you experience then.

    AI heard a pop in my ankle. I sat on the ground and I hit my elbows and I sort of turned my leg. It was outstretched but I turned my leg and then I looked and I couldn’t even get it up underneath me. I knew it was broken. My ankle had quite a large lump at some stage and straightaway I thought I had to ring the second plaintiff and tell him I couldn’t get up to come help me.

1. The first plaintiff explained that her knuckles were bleeding and her elbows were quite sore. She recalled that a lady from the ‘newsagency’ came out and told her to elevate her right foot. She then recalled the second plaintiff and her two children arriving and that there were a couple of security persons on site. She said that a cleaner arrived to clean up the mess. She was not asked, nor did she say how far from the rubbish bin was the puddle. She did not say how far from the puddle she was sitting when she first observed it after the fall.[47]

   [47]   Reid v Target Australia Pty Ltd [2014] NSWCA 60 at [37].

2. When she was cross-examined the first plaintiff said:[48]

   [48]   T. p 77.

   QAm I correct in understanding that your husband and your children were in another part of the shopping centre and that you were going to join them.

   AThat’s correct.

   QYour husband had rung and told you where he was.

   AYes.

   QWas he near the David Jones store which is in that same part of the mall.

   AYes. I believe so, he was.

   QAnd I take it you were walking towards David Jones.

   AThat’s correct.

   QAt the time that you had your slip.

   AYes.

   QAnd were you looking ahead to see if you could identify where they were so you could meet them.

   AI was looking – I can’t recall really, but probably, I think.

   QYou knew that they were generally there and it was important that you found them when you got there.

   AYep.

   QI assume too that you didn’t see anything on the floor as you approached that area.

   ANo.

   QNothing that stood out to you and gave you an indication that there might be some liquid or substance or anything on the floor.

   AI think I was looking ahead.

   ·Oral evidence of the second plaintiff

3. The second plaintiff recalled that he had been with his children in a music store awaiting the return of the first plaintiff when he received a telephone call from her.[49]

   [49]   T. p 95.

4. He was asked:

   QSo what happened then, what was - what did she say.

   AI got a phone call from her saying that she’d slipped over and she’d hurt her ankle. I didn’t know to what extent at that stage and that was very close to where we were so the kids and I raced around and found the [first plaintiff] on the floor and one of the ladies from the shop adjacent to where she was, was assisting her.

   QSo was that the only person that was there beside the [first plaintiff], the lady assisting her.

   AThere was another gentlemen that was - I think he was sitting in the chairs near where it happened and I think he was – had come over to see what was happening. … I said ‘How did it all happen? and [the first plaintiff] said that she’d slipped and she’d also cut her hand on the bin where she’d slipped. And so I just had a quick look around and I noticed that there was liquid on the floor and I did take some pictures with my mobile phone and I think the lady from the store had mentioned that she’d contacted security and it seemed like a – quite a while before security had actually got there.

   QPerhaps I might just stop you there. You said – what did you see on the floor, you saw –

   AIt seemed to be some clear kind of liquid and I could see where the first plaintiff’s foot had gone through the liquid. You could see the slip mark where she’d slipped through the liquid.

   QWhen did you first notice it.

   AProbably a few minutes after I’d got there and I had a bit of a quick look around to see. I think the gentleman that was there, he was actually talking to me and he had seen -

   QSo what happened when security got there.

   AWe just explained to him you know, he obviously wanted to render first aid I think first and I think he’s already – I am not sure if he already or he then radioed for an ambulance… Then I think the next thing he radioed for someone to come and clean up the mess.

   QWhat happened after that.

   AJust I mainly spent time with the first plaintiff trying to comfort her and then it wasn’t too long, I think, that the ambulance had come but then – I think before the ambulance actually arrived the cleaner had actually got there to clean up anything that was on the floor.

5. The second plaintiff was not cross-examined.

   ·The oral evidence of Durante Adrianus Jones

6. Mr Jones said that he was sitting in an area underneath the escalators at the subject premises at about 4.30pm when someone appeared to fall over near to him. He was asked:[50]

   [50]   T. p 162.

   QWhat do you recall about that.

   AI was sitting down in the aisle waiting for someone, I saw a woman walk past and slip over some liquid on the ground, near a bin.

   QWhat do you recall in the time leading up to the person coming and slipping over.

   AIn the time leading up to the person slipping over I was waiting in the aisle, I was seated. I heard a cleaner behind me, I was quite close to a bin, they had changed the bin over, with the trolley, and I recall hearing a cup fall to the ground and the person procrastinated a little bit. (my emphasis)

   QAnd I think you are saying you recall hearing things, are you now simply talking about something that you saw. So when you are talking about the person procrastinating what did you see.

   ASorry I heard them procrastinate to themselves.

   QIn what sense what did you hear that you made you think that.

   AI just heard them grumble, or, you know, say something underneath their breath, that was after hearing something drop while they were changing the bin.

   QWhat did that person do after changing the bin.

   AThey finished changing the bin and then they left area.

   QCan you recall how soon after that the lady came and slipped.

   AJust a couple of minutes, within 5 minutes, if less.

   QSo what did you observe after that, after she’s fallen over.

   AShe fell over and she fell quite heavy, I had gone over and asked if she was OK and if she needed help, some security guards arrived on the scene. There were two of them, they stood around the spill and used their walkie talkies and at that point I suggested that the woman who fell her partner had arrived. I said you should maybe take a photo of that spill, because I could tell that she was quite badly hurt and at that point some cleaners did come along and they cleaned it up and around then was when I left the scene.

   QWhen the lady slipped do you know whether she was accompanied by anyone at that stage.

   AI think that she was by herself initially, I am fairly confident.

7. Mr Jones was not asked about the contents of the rubbish bin. He was not asked whether the bin was full or overflowing. He was not asked whether any liquid had leaked from the bin to the floor. He was not asked specifically about the point of the fall, although he did suggest that the slip and liquid were ‘near a bin’.

8. Mr Jones was not cross-examined.

   ·Submissions as to the circumstances of the fall

9. Counsel for the defendant, Mr Cole, did not specifically refer to the approximate point of the fall, leaving that to the Court’s assessment from the CCTV footage of the David Jones aisle at 4.39pm on 14 November 2009.

10. He did however concede:

    Now it may be that Your Honour finds in this case that there was a spillage on the floor and the spillage had not been adequately attended to by the cleaner, and that’s the cleaner who appears in the TV footage before the incident takes place.

11. Counsel for the plaintiff, Mr Ward also did not specifically address the approximate point of the fall. He concentrated upon the position of the rubbish bin for the proposition that the particular bin was ‘a greater risk than a normal bin’.[51]

    [51]   T. p 209.

12. He submitted that ‘around a bin there is a much greater likelihood of spills than in a general mall area walkway’, and that there was a need for inspections and cleaning on a more regular basis, than the balance of the Mall. He submitted that it required constant supervision, or at least, at intervals greater than 30 minutes.

13. There was no submission that I should draw an adverse inference against the defendant for not calling, as witnesses, the first or second cleaner; nor the security members who stood next to the spillage.[52] None of those witnesses had observed the slip and fall. The first two witnesses were employed by Reflections. It may be that had the first cleaner been called, then she may have been asked whether she had seen the liquid deposit, and, if so, its size and its precise location.

    [52]   See Jones v Dunkel (1959) CLR 298.

14. Had the plaintiffs intended to establish the specific point of the fall; or whether the rubbish bin was full then they could have called those witnesses.

15. The defendant does not dispute that, on this occasion only, Reflections may have been negligent. There was no need for it to call them.

16. In my opinion no adverse inference could have been drawn against the defendant on this issue,[53] had it been raised by the plaintiffs.

    [53]   Reid v Target Australia Pty Ltd [2014] NSWCA 60 at [85].

    Discussion and conclusion as to the point of fall

17. As to the witnesses, I have no doubt that each of them were witnesses of truth. I also have no doubt that each did his or her best to give a reliable account of the events. The fact remains that they were each giving evidence about events which had occurred 5½ years earlier.

18. In my opinion the best evidence of the point of the fall is the CCTV footage.

19. It is plain that the first plaintiff slipped and fell at a point approximately midway between the rubbish bin on her right and the entrance to the ‘Cards and Gifts’ shop on her left. The precise point of the slip was between the point where the head of the mop landed, and that area apparently wiped by the cleaner.

20. I am satisfied that the point of the slip was not ‘close’ to the rubbish bin. I reach that conclusion from the CCTV footage. This is also consistent with the report of the second cleaner. That report was clearly admissible as a business record. There was no submission that her report was self-serving nor too brief to be of value. The report is to a large extent confirmed by the CCTV footage. I do not need to consider the weight which would otherwise be the attached to the assertion that the area was cleaned every 15 to 20 minutes.

21. It was not submitted by the plaintiffs that I should infer that it was some admission by Reflections that 15 minutes was a more appropriate rotation time for cleaning, than the contractual requirement of 20 minutes.

    ·Causation

22. I reject the suggestion that the first plaintiff had slipped on some liquid which had leaked from the rubbish bin. I also reject the suggestion that a non-slip mat would have prevented the first plaintiff’s fall.

23. There are obvious explanations for liquid being deposited at the point of the fall, which I have identified. They are as follows:

24. Firstly the cleaner may have dropped some liquid from the refuse bag which she had collected from the rubbish bin. As I have explained the cleaner could be seen to attempt to wipe the floor at the rear of the trolley. It was not however clear whether she successfully wiped the floor underneath the trolley.

25. Secondly the cleaner may have left the site wet after apparently cleaning the floor with the towel or cleaning rag; or

26. Thirdly that when the cleaner undoubtedly caused the mop to fall to the ground, this was the mechanism for the liquid to be deposited.

27. There can be no doubt that the subject terrazzo floor, in the absence of liquid, was a safe surface for a customer of the premises to walk on. For well over 30 minutes before the cleaner arrived, approximately 350 customers had passed over the site of the fall, without anyone appearing inconvenienced. The overwhelming inference is that had there been any significant liquid on the floor on that aisle before the arrival of the cleaner, this would have been observed during that period of time. Save for the actions of the cleaner, the CCTV footage did not show any activity which could or even may have led to liquid being deposited on to the floor.

28. I find on the balance of probabilities, that the subject liquid substance was not deposited on the floor of the aisle before the cleaner arrived at about 4.36pm.

29. I find that the plaintiff did slip on some liquid substance. I have no doubt that the substance had been deposited by the cleaner at about 4.36pm. On the balance of probabilities it was not merely a wet floor following the cleaner’s attempts to wipe the floor. The second cleaner’s report supports the conclusion that there was a liquid substance, albeit of milkshake in appearance, when she attended the aisle after the accident. 

30. The first plaintiff had denied that it was the remnants of a milkshake. I appreciate that the first plaintiff was not challenged on most of her evidence. This does not mean that the Court is obliged to accept all of her evidence. It may be rejected if ‘inconsistent with other evidence accepted by the Court, or if it is inherently incredible.[54]

    [54]   See  Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 at [105].

31. She had described a puddle, larger than the size of her foot. This was her recollection of her observations after the fall, when she was in pain, in shock, and assisted by those who had come to her aid.

32. In my opinion, the delay since the subject fall has adversely affected the reliability of some of the matters deposed to by the first plaintiff. I do not accept the reliability of the first plaintiff’s account of the size of the ‘puddle’. She did not see any liquid until after her fall. It is improbable that it would have been that size before the fall or it would have been seen by the first plaintiff and indeed the other four customers who had walked over it just seconds before the first plaintiff fell.

33. The second plaintiff deposed to the liquid as being ‘clear’. This was of course after the event, and at a time when he was concerned about the first plaintiff. While I do not need to determine[55] the colour or type of liquid, I prefer the description of it given by the second cleaner in her report.

    [55]   Reid v Target Australia Pty Ltd [2014] NSWCA 60 at [54].

34. The evidence of Mr Jones does not assist in determining whether the liquid substance came from the mop or whether it was some of the contents of the refuse bag which had not been cleaned up.

35. In one sense, it does not matter which of them was the source. In each case the liquid deposit was a hazard created by the cleaner.

36. I find that it is less likely to have been deposited from the mop. That mop had fallen from the trolley and landed in a clear area. I have no doubt that the cleaner would have seen the liquid when she picked up the mop, had it been there.

37. In my opinion it is probable from the facts, as a whole, that the liquid was deposited on the floor by the cleaner when she emptied the refuse bag into the trolley.

38. I find on the balance of probabilities that when she did clean the floor behind the trolley, she did not adequately clean it under the trolley. This is not mere speculation. She would not have been able to look under the trolley because of its position. Had she moved the trolley, she would have observed the liquid which was left. It is probable that she was distracted from that exercise by having to collect the mop.

39. In my opinion there can be no doubt that the first Reflections cleaner had created the hazard and had failed to properly clean it up. Until that event the aisle was free of spillages. Accordingly this negligence by the cleaner was ‘a singular event of carelessness’ by her. The defendant did not know and could not have known of the deposit on the floor. Further it was present on the floor only seconds before the plaintiff fell. The question remains as to whether the defendant was liable for the cleaner’s negligence. I will first deal with any duty of care of Reflections.

    ·Was Reflections negligent?

40. It is trite that Reflections was obliged to exercise reasonable care and skill in the performance of its cleaning duties.

41. In Bevillesta Pty Ltd v Liberty International Insurance Co[56] the Court of Appeal (NSW) considered a case where a customer had slipped on a squashed orange at a shopping centre.

    [56] [2009] NSWCA 16.

42. The case principally involved the question of the delegation of an occupier’s duty of care to the cleaner. It held that as the cleaner had been engaged to keep the property safe for customers, this gave rise to the cleaner having a duty of care to the customers, which duty had been breached.

43. Hodgson JA said at [56]:

    This approach applies with particular force when the person engaged has specialist skill … it has also been applied to cleaners engaged by occupiers to clean premises. Certainly a cleaner would be liable if it creates a hazard.

44. His Honour noted with approval, the respective decisions in Woolworths (WA) Pty Ltd v Berkley Challenge Pty Ltd [2004] 28 WAR 540 at [56]; P & H Property Service Pty Ltd v Branigan [2008] NSWCA 195, Cairns v Woolworths Ltd [2005] ACTSC 95 at [135], and Leichhardt Municipal Council v Montgomery [2007] HCA 6.[57]

    [57]   See also Jennings v Westfield Shopping Centre Management Co (ACT) Pty Ltd [2010] ACTSC 11; Reid v Target Australia Pty Ltd [2014] NSWCA 60; Elphic v Westfield Shopping Centre [2011] NSWCA 356.

45. The content of duty of care owed by Reflections to the entrants of the premises is undoubtedly to be assessed by reference to the terms of its cleaning contract with the defendant.[58]

    [58]   See Kelly's Property Management Services Pty Ltd v Anjoschco Pty Ltd [2016] NSWCA 341 at [22].

46. In the subject case there was an obvious risk of harm that customers, walking through the shopping centre, may slip and fall, if the floor of an aisle had liquid deposited on it.

47. I repeat that the first plaintiff’s accident was caused solely by the negligence of Reflection’s cleaner, in creating the hazard and not properly cleaning it up. While she also failed to put warning signs up when purporting to clean the floor, the latter failure was not causative of the fall.

48. Reflections, as employer of the cleaner, was vicariously liable for the negligent acts of its employee, in carrying out her cleaning duties in the course of her employment. I do not need to consider whether Reflections itself may have been negligent in failing to roster adequate staff on the hot day. This issue was not raised by the parties, and I will not speculate about it.

49. Before dealing with the position of the defendant, I turn briefly to the question of whether the first plaintiff was contributory negligent.

    ·Contributory negligence

50. The legal onus in respect of this issue rests upon the defendant. There was some evidence to suggest that the first plaintiff may have been moving quickly to meet up with her family at the time of the fall. She conceded that she was ‘looking ahead’ and did not observe any liquid on the floor, until after she had slipped.

51. Had indeed the ‘puddle’ been some 8 to 10 inches in size then the spillage ought to have been obvious to anyone taking care for her own safety. It clearly was not obvious to any of the four customers who traversed the area after the trolley had been moved. Consistent with my findings, the spillage was smaller and not obvious, unless observed by someone standing close to it. There was nothing inherently risky about the terrazzo floor, as I have noted. It would be a counsel of perfection to require the first plaintiff to have checked the floor with each step.

52. This issue of contributory negligence, while pleaded, was not pressed by the defendant in final addresses. On the state of the evidence, and in particular the CCTV footage, I am not satisfied that the first plaintiff was contributory negligent.

    ·Is the defendant liable to the plaintiffs?

1. I repeat that the plaintiffs assert that the defendant is liable to each of them on the following bases:

   ·That even if the defendant’s duty of care to the plaintiffs was delegable, the defendant had not established that it had effectively delegated its duty to Reflections;

   ·That the defendant was vicariously liable for the negligence of the cleaner;

   ·That the defendant was liable to the plaintiffs for breach of its statutory duty as occupier pursuant to s 23 of the Occupational Health, Safety and Welfare Act 1986 (SA).

   ·The defendant’s duty of care under the Civil Liability Act

2. The defendant concedes that it owed a duty of care to the plaintiffs, pursuant to s 20 of the Civil Liability Act 1936 (SA).

3. That section provides that:

   (1)         Subject to this Part, the liability of the occupier of premises for injury, damage    or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.

         (2)         In determining the standard of care to be exercised by the occupier of        premises, a court shall take into account—

             (a)         the nature and extent of the premises; and

             (b)         the nature and extent of the danger arising from the state or condition of the premises; and

             (c)         the circumstances in which the person alleged to have suffered injury, damage or loss, or the property of that person, became exposed to that danger; and

             (d)         the age of the person alleged to have suffered injury, damage or loss, and the ability of that person to appreciate the danger; and

             (e)         the extent (if at all) to which the occupier was aware, or ought to have been aware, of—

                   (i)         the danger; and

                   (ii)         the entry of persons onto the premises; and

             (f)         the measures (if any) taken to eliminate, reduce or warn against the danger; and

             (g)         the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger; and

             (h)         any other matter that the court thinks relevant.

         (3)         The fact that an occupier has not taken any measures to eliminate, reduce or warn against a danger arising from the state or condition of premises does not necessarily show that the occupier has failed to exercise a reasonable standard of care.

         (4)         Subject to any Act or law to the contrary, an occupier's duty of care may be reduced or excluded by contract but no contractual reduction or exclusion of the duty affects the rights of any person who is a stranger to the contract.

         (5)         Where an occupier is, by contract or by reason of some other Act or law, subject to a higher standard of care than would be applicable apart from this subsection, the question of whether the occupier is liable for injury, damage or loss shall be determined by reference to that higher standard of care.

         (6)         An occupier owes no duty of care to a trespasser unless—

             (a)         the presence of trespassers on the premises, and their consequent exposure to danger, were reasonably foreseeable; and

             (b)         the nature or extent of the danger was such that measures which were not in fact taken should have been taken for their protection.

   ·The content of the duty

4. In Wynn Tressider Management Pty Ltd v Barkho[59] the Court of Appeal (NSW), discussed the content of that duty as follows:

   It was common ground that the Appellant was the occupier of the Centre. This status arose from its care, control and management of the premises. By virtue of its power of control, it owed the respondent, as a lawful entrant to the Centre, a duty to take reasonable care to avoid a foreseeable risk of injury. The measure of the discharge of its duty was what a reasonable person would, in the circumstances, do by way of a response to the foreseeable risk.

   [59] [2009] NSWCA 149 at [59], approved in Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253. See also s 31 Civil Liability Act 1936 (SA).

5. The defendant’s duty of care to the first plaintiff, in the subject case, was to take reasonable care to avoid a foreseeable risk of injury to her arising from the physical state of the premises, on the assumption that she used reasonable care for her own safety.[60] Its duty does not extend to making the premises as safe as reasonable care and skill on the part of anyone can make them.

   ·Proof of breach of duty

   [60]   Jackson v McDonald's Australia Ltd [2014] NSWCA 162 at [7] and Jones v Bartlett [2000] HCA 56 at [92].

6. In Jackson v McDonalds Australia Ltd, supra, at [13]-[14] the Court of Appeal (NSW) said:

   At the stage of the breach, a Judge has to identify with some precision what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk … although the judgment as to what the reasonable person would have done must be made after the event, it must seek to identify what the response would have been by a person looking forward at the prospect of injury.

7. The principal issue between the parties was whether the defendant had delegated its duty of care.

8. In the subject case the defendant asserts that it discharged its duty of care in whole by exercising reasonable care in engaging Reflections to clean and inspect the premises. It asserts that it also took appropriate steps to monitor the performance by Reflections.

   ·Was the defendant’s duty of care non-delegable?

9. On any view, the cleaning activity, the subject of the cleaning contract, was not inherently dangerous nor did the defendant undertake any ‘special’ responsibility for the safety of the entrants.

10. It is now settled that, in respect of such cleaning arrangements, the occupier is not the insurer of the safety of an entrant even where the work is performed by another. See Jones v Bartlett [2000] 205 CLR 166 at [190]-[194].

11. On any view, the facts of the subject accident do not give rise to a non‑delegable duty of care.[61]

    [61]   See Burnie Port Authority v General Jones Pty Ltd [1994] 179 CLR 520 cf. McVicar v S & J White Pty Ltd [2007] 97 SASR 160.

12. In Bevillista Pty Ltd v Liberty International Insurance Co.[62] The Court of Appeal (NSW), in a passage, which is often cited with approval, said:

    There is no doubt also that this occupier’s duty is ‘delegable’, in the sense that it may be discharged in whole or in part by the occupier’s exercise of reasonable care in engaging someone else to take steps to keep the property safe either generally or in particular respects. Discharge of the duty in this way requires reasonable skill and care in the selection of the other person, in arranging the terms of the engagement of that person, and in confirming that the person does take appropriate steps. If it is reasonable for an occupier to seek to discharge or partly discharge the occupiers duty in this way, and the occupier does exercise reasonable skill and care in all these respects, then if a person coming onto the property is injured due to the failure of the other person engaged to exercise reasonable skill and care to keep the property, the occupier may escape liability.[63]

    [62] [2009] NSWCA 16 at [53].

    [63]   Kay v Sydney Airport Corp Ltd [2014] NSWSC 744, Condos v Klycut Pty Ltd [2009] NSWCA 200, Elphick v Westfield Shopping Centre Management Co Pty Ltd [2011] NSWCA 356, Jones v Bartlett [2000] 205 CLR 166 at [190]-[194] cf. Laresu Pty Ltd v Clark [2010] NSWCA where the delegation did not include the setting of an automatic light switch.

13. In my opinion the relevant duty owed by the defendant was delegable by it.

    ·The evidence as to the relationship between the defendant and Reflections

14. The evidence of the defendant as to the nature of the relationship between it and Reflections, and as to whether it had effectively delegated its obligations to clean and inspect the premises, included the terms of the cleaning contract, and the oral evidence of its then Facilities Manager, Marko Krndija.

    ·The contract between the defendant and Reflections for the provision of cleaning services

15. On 22 May 2007, the defendant, as Manager of the premises, entered into the cleaning contract with Reflections for the 3 year period from 1 July 2007 to 30 June 2007.[64] It was not in dispute that the cleaning contract remained in force as at the date of the accident.

    [64]   Ex P2 - pgs 7 - 8 inclusive.

16. The agreement was very detailed, containing, inter alia, specifications for the cleaning work; Key Performance Indicators, and a very large contract price for the work.[65]

    [65]   Ex P2 First Schedule - item 4(a).

17. Reflections was obliged to provide a bank guarantee in the sum of $50,000; to enter into a licence agreement with the defendant; to pay rental payments for storerooms at the premises; and to undergo a 3 month trial period, during which the defendant could terminate the agreement.

18. It is convenient to set out a synopsis of some of the relevant aspects of the agreement, as follows:

    Clause 3:Reflections was obliged to supply the cleaning services in ‘strict compliance with the agreement; in accordance with the specification, and to the reasonable satisfaction of the defendant. It was obliged to furnish all labour; materials and equipment. It warranted that its employees ‘were competent with the necessary skills to provide the service; held all applicable qualifications, and had received all necessary training to provide the service to the highest industry standard’. (my emphasis)

    Clause 4:         Each Reflections employee was obliged to be a direct employee of Reflections unless otherwise agreed. The defendant was able to direct Reflections that a particular employee is not to be employed by Reflections or to be immediately removed, without the need to provide reasons.

    Clause 5:The contract price payable by the defendant included all labour, materials and equipment supplied by Reflections.

    Clause 6:The defendant could withhold a payment to Reflections if it were in breach of a term of the agreement. Reflections was obliged to pay its employees within 20 business days of its receipt of instalment payments by the defendant.

    Clause 7:The defendant may give written notice to Reflections of any breach of the agreement.

    In the event that Reflections failed to rectify such breach within 7 days, the defendant could terminate the agreement.

    Further where any breach of the agreement by Reflections threatens the safety of any person the defendant may take all action to rectify the breach at Reflections cost.

    Clause 8.1:Reflections acknowledges that the defendant has relied on the covenants and warranties of Reflections in clause 3 above.

    Clause 9:Reflections indemnifies the defendant against all proceedings arising out of any act, omission or negligence of Reflections or any of its employees.

    Clause 10:Reflections will at its expense take out a public risk policy of insurance for a minimum cover of ten million dollars for death or injury to any person arising out of the provision of the service by Reflections. Reflections was obliged to advise the defendant of any incident involving Reflections staff and to ensure that its employees take part in any investigation by the defendant.

    Clause 11:Reflections was prohibited from sub-contracting the provision of the service or personnel without written authority of the defendant.  Reflections was obliged to ensure at its own expense that Reflections employees wore uniforms approved by the defendant.

    Reflections must ensure that its employees attend training courses and provide evidence of qualification to the defendant, if requested.

    Reflections was obliged to supply all of its cleaning staff with ‘Westfield’ uniforms at Reflections own cost. The level of quality of service would increase from 90% in the first year to 95% by the third year of the contract. Reflections was obliged to provide self-assessment. It was required to provide two-way radios to the cleaners. The contract provided detailed requirements for Reflections staff in each area of the premises.

    Clause 14:Reflections must ensure that ‘no person is exposed to a risk to his or her safety arising out of Reflections activities ‘at the premises, and is responsible to provide all necessary supervision and co-ordination to ensure that Reflections activities are carried out safely. The defendant relies upon Reflection’s expertise to ensure that the supervision is carried out.

    Clause 15:         Nothing in the agreement constitutes the parties to be in partnership or in any employer/employee relationship. (my emphasis)

    Second Schedule:       The parties agree to a 3 month trial period, during which the defendant reserves the right to terminate the contract. Key Performance Indicators (KPI) were provided for to ensure that standards were maintained and monitored monthly. Weekly inspections were to be performed, with two additional inspections per month. At the completion of each check the documentation should be signed by the defendant and Reflections.

    The parties anticipated that the level of quality would increase from 90% in the first year to 95% in the final year in consequence of experience and training.

    The agreement provided for the imposition of penalties ranging from 10% to 20% of the monthly invoice for non‑performance by Reflections or its employees.[66]

    [66]   Ex P2, pg 13.

    In the event of a third breach the defendant reserved the right to re-tender the agreement or terminate it.

    Reflections was obliged to provide a controlled self‑assessment system to ensure effective monitoring

    The service level of Reflections involved the obligation to empty rubbish and recycle bins, and that all spills must be attended to immediately with appropriate safety signage. The area affected by a spillage must be left clean and dry before opening up to the public.[67] (my emphasis)

    [67]   Ex P2, pg 16.

    Rotations or inspections of every square metre in the relevant common Mall area must occur every 20 minutes as contrasted with Food Courts or Fresh Food areas – every 5 minutes. (my emphasis)

    A rating scale was provided for the ‘Public Mall’ as   follows:

    2 = No Fault (Satisfactory result)

    1 = Non conformity (Minor)
      (Finished Product not to standard but, minimal   clean will rectify)

    0 – Non conformity (Major)
      (Unsatisfactory result)
      (Likely to damage the customers opinion of Westfield –
      More extensive clean required)

    In respect of the terrazzo floor the scale described a   satisfactory result as one free of all visible litter, liquids and   spillage with a high lustre finish.

    Non conformity by contrast referred to signs of liquids or   spillage with an acceptable finish.

    It was anticipated by the parties that a projected 7.2 million people were expected to enter the premises in 2007, and grow by 4% thereafter.

    The total common Mall area at the premises was 9,415.5 square metres.[68]

    [68]   Ex P2, pgs 38 - 39.

    Fourth and fifth

    Schedules:These detailed the defendants Environment, Health and Safety Management Plan having regard to Clause 14 of the cleaning contract, and the schedule of its requirements.

    These included the documenting within 24 hours of a fall.

    ·The oral evidence of Marko Krndija

19. Mr Krndija was the Facilities Manager for the defendant at the premises as at the date of the first plaintiff’s fall. He explained that his role was to maintain the building asset and to report to the Centre Manager.

20. He had input into the cleaning contract when Reflections was selected in 2007. He explained that at that time, Reflections had been performing similar cleaning work at another Westfield Shopping Centre. It had been performed satisfactorily by it, as at the date of the cleaning contract.

21. He was asked, in examination-in-chief:

    QDid you have any ongoing working relationship with the cleaning contractor in terms of the work being carried out, the cleaning work.

    AMy role with the cleaning company is to monitor their performance in line with the agreement, the contractual agreement.  So on that basis we would meet once a week with their area supervisor to discuss their performance in line with the KPIs that are stipulated in the contract. (my emphasis)

    QWhat determined if the KPIs were being met and the contractual requirements were being met.

    AIt’s basically an itemised, or say, a scorecard as such, that extract out of the contract could be used to measure their performance … It was a listed set of items or observations that were scored from a zero to two on their performance.

    QWere there occasions when the KPI’s weren’t being met.

    AYes, there would be occasions.

    QWhat sorts of things would that entail.

    AThat could vary; that could vary from, you know, cobwebs to whatever it may be on the day, and these items would be observed throughout the week and then discussed at our weekly meetings.

    QWas there something that the cleaning contractor had to do if those KPI’s were raised as not met.

    ACorrect.

    QWhat did they have to do.

    AThey would have to rectify and meet their obligations within the contract.

    QIn your job at the time as facilities manager, were there occasions when you were required to walk around the shopping centre.

    AYes, look, as a manager of the facility and an expectation for all our staff, it was a requirement to get out into the mall and make yourself be seen. That could vary from meeting a retailer or for other reasons.

    QIn the course of those journeys, were any observations made in relation to the shopping centre and the mall area.

    AAbsolutely. It’s an opportunity for us to capture a moment in time of the centre and its performance and the way it’s being presented, and that can be from a facilities point of view – example, lights being out – to a security point of view, making sure that we’ve got staff on the floor.

    QDid that include making observations as to whether cleanliness was up to scratch.

    AYes it would.

    QWere there any occasions when in the course of your walking through the mall you had cause to question an issue of cleanliness or spillage or something like that.

    AYes, there would be at times.

    QWhat would you do then.

    AIf – I use an example as a spillage – my duty would be to stand over the spillage, call the manager on the day, C1, who is radioed –

    QCleaning manager.

    ACleaning manager, yep, or duty manager, as we may call her – that is on our radio frequency, which would be channel two, and report the matter, and then she would assign a cleaner as such to come and attend to the problem.

    QWhat was the process just with day-to-day spillages when the cleaners were on the floor; what was the requirement for that.

    AThe process is the same. The responsibility is to not move from a spill, as such, until attendants arrived, with the right equipment and the right tools to rectify the job.

    QWho has got the radios.

    AEverybody has a radio.

    QWhen you say ‘everybody’, who is that.

    AAll staff that work at Westfield West Lakes.

    QAll the Reflections staff.

    AAll the Reflections staff.

    QAnd all Westfield staff.

    AAnd all Westfield staff.

    QWhat was the purpose of the Reflections staff having radios.

    AAgain, it’s part of their contractual arrangement that they have a radio for the event that their attendance is required.

    QWas there a system of inspections that went with the cleaning obligations.

    AYes, there was. So on a daily routine, I would meet with C1, just to discuss general day’s activities, and if she had any issues that she needed to raise with me, and then on a weekly basis, I would meet with their area manager, which we would extend that conversation.

    QWere there particular intervals when inspections were to be carried out by cleaning staff.

    AAgain, that is part of their contractual agreement, depending on where they are in the mall. There are certain times stipulated within the contract in terms of rotation and how they go about their duties.

    QHow were the times of inspections recorded.

    AAgain, within the contract, it was a requirement to have a system in place that could monitor the rotations. I think the system at the time was called a Wand system.

    QW-A-N-D.

    AYep, and the Wand system would work – it as an electronic device that was attached to their belt, more so like a beeper of some sort, and there would be certain points within the mall that would activate that throughout the mall, so the rotations within the complex could be monitored.

    QThat would tell you where cleaners were at different times.

    ACorrect.

    QThen who recorded that.

    AI do recall it was managed by a third party on behalf of Reflections at the time.

    QAs well as cleaning, there was the emptying of bins to be done.

    ACorrect.

    QThat was the job of Reflections.

    ACorrect.

    QThat was part of their personnel’s works was to empty bins as well as do cleaning.

    ACorrect.

1. In about 2012 the second plaintiff lost his employment when his employer went into liquidation. The first plaintiff explained that her employment is not secure as it depended upon the terms of the contract with major health funds. She described her employment as a clinical nurse position in which she liaised with patients, and doctors and looked at the patient’s funding. It involved no ward work and does not involve nursing as such.

2. She explained that she could not work full-time because it becomes too stressful and she gets migraines frequently after undertaking full-time work even for a short period. By reference to the pay rates which were tendered, she explained the difference between shift-work as contrasted with the permanent rates under which she is presently being paid. She gave evidence of the assistance required to enable her to remain at home particularly when she was unable to fully weight bare. That included assistance with the toilet, showering. She explained that she still has ongoing pain through her left and right hips. She requires assistance from her children to get clothes from the washing machine, and other tasks which require bending. She finds it difficult to walk because the left foot and ankle remain stiff.  She still takes pain relief every day.

   ·The medical evidence

3. The orthopaedic surgeon Dr Sood provided two expert medical reports,[94] and was called to give oral evidence.

   [94]   Ex P7, 31/5/10; and Ex P8, 8/3/15.

4. On 16 November 2009 the surgery involved an internal fixation with a plate and screws to the lateral malleolus and distal fibula shaft. She couldn’t weight bear for 4 weeks, and Dr Sood expected gradual improvement over a further six weeks.

5. In December 2009 the first plaintiff suffered a wound breakdown with an infection. This required daily dressing changes and antibiotics, and delayed her recovery. Despite the first plaintiff complaining of paraesthesia on the medial aspect and pain in her big toe, Dr Sood’s prognosis, at that time, was positive.

6. He explained however that the first plaintiff’s medical side paraesthesia did not settle; and she suffered from left hip bursitis.[95]

   [95]   T. pgs 174 - 175.

7. He opined that the left hip bursitis was caused by the first plaintiff’s injuries in the slip and fall, and her change of gait.

8. When cross-examined he agreed that bursitis is more common in women and can be spontaneous. He was however adamant that it was caused by the first plaintiff’s injuries, particularly because of its early onset. It was the result of her changed gait and her protection of the right ankle. It was clearly identified on numerous ultrasounds.

9. He also accepted that the pain in her left ankle was the result of those factors. About 4 years after the accident the first plaintiff also complained of bursitis in the right hip. This was confirmed on ultrasound. He conceded however that because of the long period before the symptoms appeared, it was arguably spontaneous in the right hip,[96] and unrelated to the accident.

   [96]   T. p 179.

10. He said that he recommended that the ‘metal work’ in her right ankle be removed.

11. He said that there was not much flesh over the top of the metal. It would be painful because of that, and most painful when knocked.

12. He explained that if the metal work was removed it would take about 8 weeks recovery.[97] She would need a walking stick for 7 – 10 days.

    [97]   T. p 175.

13. He opined that it would reduce the irritability by up to 80% and would make the first plaintiff more comfortable in sitting and sleeping. It should reduce the ongoing pain in the right ankle, and there should be marginal improvement in the mobility of the right ankle.

14. However the scar tissue would remain, and the ankle pain on the medical side and the left hip bursitis would not be improved by the removed.[98]

    [98]   T. pgs 175 - 176.

15. He said that a bursectomy would not completely excise the bursitis. Regular cortisone injections would not help. The best pain relief was Panadol daily, and anti-inflammatories as needed.

16. He could not comment on the first plaintiff’s complaints of neck pain or migraines.[99]

    [99]   T. p 177.

17. He did say that lower back pain was common from a fractured ankle, but inferentially not so in respect of neck pain. He explained that there was a 30% chance of arthroscopic debridement in the event of arthritis.

    Conclusion

18. I accept the evidence of Dr Sood that the left ankle, right ankle and left hip bursitis all relate to the plaintiff’s right ankle fracture sustained in the fall.

19. In Dibbins v Dibbins (1978) 80 LSJS 165, Bright J noted that medical specialists may not always be accurate when they attempt to determine a physical cause. In my opinion the length of time between the accident and the onset of the right hip bursitis is most significant. Dr Sood was, with respect, correct to doubt its connection with the accident.

20. I do not accept that the right hip bursitis is the consequence of the fall. I also do not accept that the neck pain is related to the accident.

21. The first plaintiff also suffers from migraines. There is no medical evidence to support a conclusion that they are directly related to the accident.

22. In my opinion they are likely to be stress related.

    ·Non-economic loss – s 52 of the Act

23. The first plaintiff is entitled to an award of damages under this head. Her ability to lead a normal life was significantly impaired for at least 7 days.

24. I have already referred to the evidence of Dr Sood, whose evidence I have accepted. The immediate pain from the facture was overwhelming. For the first 3 months she was non-weight bearing and relied on others for basic things such as showering and getting to the toilet. She has had significant pain in her right ankle which remains stiff and still finds it difficult to walk. She has had to use pain relief for the first 5 years. Flat shoes cause more pain in the right ankle but high heels cause hip pain. Her sleep has been adversely affected by her ankle being knocked, and hip pain.

25. Although she has been able to work she is only able to work .7 of full-time.

26. Her injuries have restricted her in her attempts to carry out some of the heavier aspects of household work.

27. For about 5 years the significant pain was in the right ankle, left ankle and left hip. These are clearly referrable to the accident. The right hip has become painful in the 6 months preceding the trial. The other injuries seem to have settled somewhat in that time.

28. If she undertakes the recommended removal of ‘metal work’ in her right ankle it will have a positive effect on only some of her pain in the right ankle. It will not affect other areas including the left hip bursitis.

29. I am obliged to assign a number between 0 – 60 for non-economic loss pursuant to s 52 of the Act.[100]

    [100] Eicas v Dawson [2016] SASCFC 124 at [101].

30. In fixing that number by means of an overall assessment I take particular account of the first 5 years of pain endured by the first plaintiff. While there will be pain referrable to the accident in the future, it will be less significant, particularly following the removal of the metal work.

31. I do not expect the right hip bursitis and neck pain to be significant contributors in the future. The bursitis will likely be managed with Panadol. The neck pain and headaches will fluctuate with periods of stress.

32. I assign the number 21 to her non-economic loss in light of the significant impact on her enjoyment of life.

33. This results in an award of $37,950.

    ·Loss of earning capacity

34. The first plaintiff returned to work soon after the accident, albeit greatly restricted by her injuries. She has worked since that time consistently at .7 of full-time. This was the same level as she chose to work prior to the accident.

35. The first plaintiff however is entitled to be compensated for her loss of earning capacity, as contrasted with her loss of earnings.[101] Damages for both past and future loss of earning capacity are awarded ‘not merely because a plaintiff’s earning capacity has been diminished but because that diminution of that earning capacity is or may be productive of financial loss’.[102]

    [101] See Medlin v SGIC (1995) 182 CLR 1.

    [102] Wilson v Peisley (1975) 50 ALJR 207.

36. Even if there is a dearth of evidence about the plaintiff’s capacity the Court must do its best to place a dollar value on that loss.[103]

    ·Past loss of earning capacity

    [103] NSW v Moss (2000) 54 NSWLR 356.

37. The plaintiff is not to be compensated for the first 7 days.[104]

    [104] Civil Liability Act, 1936 (SA) s 54(1).

38. I accept the evidence of Suzanne Dean who is the clinical manager of discharge planning at Ashford Hospital, and that of the first plaintiff as to her past and future loss of earning capacity.

39. Ms Dean described the first plaintiff as very conscientious. It was plain that she regarded the first plaintiff, at all times, as an excellent nurse and potential administrator. Prior to the accident the first plaintiff would always make herself available to work extra shifts on the wards.

40. While she continued to work .7 of full-time, she had attempted to work full-time on occasions so as to relieve Ms Dean but has been unable to do it for other than a short time.[105]

    [105] T. p 166.

41. I refer to and adopt the approach taken by Lovell J in Eicas v Dawson, supra. I will not repeat the principles set out at [103].

42. As a starting point I generally adopt the approach  of the plaintiff’s counsel Mr Ward, to the effect that the first plaintiff’s loss of past earning capacity should be measured by reference to the loss of shift work which Ms Dean intimated would otherwise have been available.

43. This would represent a weekly net loss of $332. After allowance for the gradual availability of more shift work, I would also reduce the net loss by 40%.

44. There is however one established adverse event namely the onset of right hip bursitis in the final year before the trial.

45. It was most debilitating during the 6 months before the trial, and would have prevented her from full-time work at that time.

46. I would allow a net loss of past earning capacity at $50,000.

47. Interest on that sum to the date of trial at 6% for half of the 5.5 year period results in an award of interest of $8,250.

    ·Future loss of earning capacity

48. It is probable that the first plaintiff would have continued to work until age 65 years, because of her need to care for her older son, and her interest in her work.

49. I again adopt as a starting point the calculations of the plaintiff’s counsel. He adopted the actuarial multiplier with the prescribed 5% discount rate for a weekly net loss of $332. The present value to age 65 is $212,000.

50. There are various contingencies to take into account. I have already referred to the already established non-compensable right hip bursitis.

51. There is a risk of other disabling events in the future which would impact adversely upon her capacity to work. She may not be physically able to continue to take shift work even if there had been no accident.

52. There is a risk that shift work may well reduce.

53. The first plaintiff may have elected to work only .7 of full-time for unrelated reasons.

54. Taking into account all positive contingencies and the adverse contingencies I would allow an award of $120,000 for future loss of earning capacity.

    ·Past loss of Superannuation

55. I would allow an award for past loss of superannuation to be fixed at 9% of the gross past loss of earning capacity.

    ·Future loss of Superannuation

56. I would allow a future loss of superannuation at 11% of the net loss of future earning capacity of $120,000.

57. This results in a figure of $13,200.

    ·Special damages

58. A schedule of treatment expenses was tendered by consent as Exhibit P9.

59. The quantum of treatment was agreed between the parties as $19,119.05.

60. The only type of treatment which was in dispute was that of some 16 physiotherapy sessions at $89.00 each.

61. Those sessions occurred between 12 September 2012 and 3 December 2012. No disputed claim was made for physiotherapy after that time.

62. Seven of the consultations related to the left hip, and one related to the left ankle.

63. I repeat that I accept Dr Soon’s evidence that these were the consequence of the accident. I did not understand counsel for the defendant to challenge that finding.

64. This leaves some eight consultations for the neck and migraine pain.

65. There is a dearth of evidence to establish that the accident was directly responsible for ongoing neck and migraine pain. No report from the neurologist was tendered.

66. That is not to say that the first plaintiff cannot claim for some of that treatment on a different basis. In my opinion the neck pain and migraines arise when the first plaintiff is under stress. For the first two years she would have been under great stress in consequence of the accident. By late 2012 however the overwhelming stressor was the financial impacts of the second plaintiff’s redundancy.

67. As no disputed claim is made under this head for the first two years I disallow the eight claims for physiotherapy for neck and migraine pain.

68. Accordingly I deduct $712.00 from the quantum of treatment and allow the sum of $18,407.05 for special damages to trial.

69. If those sums were paid by the first defendant then she is entitled to interest on them.

    ·Future treatment

70. The cost of the surgery to remove the metal work from the right foot was agreed at $5,000.

71. I will not allow any sum for future physiotherapy sessions. It was 5½ years between the accident and the trial. Any treatment for neck and migraine pain is related to stressors at the time. It is no longer related to the injuries sustained by the first plaintiff in the accident.

72. Similarly I do not allow any sum for gymnasium attendance.

73. As to the left hip, the evidence establishes that it has settled somewhat. I make no allowance for the right hip treatment.

74. I will however allow the sum of $1,000 for the future cost of Panadol and Nurofen.

75. The total of future care is therefore the sum of $6,000.

    ·Gratuitous Services – s 58 of the Act

76. The occupational therapist Trent Basley provided three reports dated respectively 30 December 2009 (shortly after the accident); 25 February 2015; and 18 March 2015.[106]

    [106] Ex P4, P5 and P6.

77. He was also called to give evidence as to the domestic assistance that the plaintiff required and would continue to require. He also gave evidence as to certain domestic aids that would benefit the first plaintiff, including a new washing machine and some internal changes in her residence.

78. I remind myself that where a claim is made is excess of 4 times the state average weekly earnings, it is necessary to establish that the gratuitous services were provided; that they were reasonably required and that if they had not been provided by the second plaintiff, her children and her parents it would have been necessary to pay another person to provide those services.[107]

    ·Past gratuitous assistance

    [107] Terry v Leventeris [2011] SASCFC 26 at [39] and Civil Liability Act, 1936 (SA) s 58(3).

79. Gratuitous services were provided by the second plaintiff; their sons; and for the first month after the accident, by the first plaintiff’s parents. The need for assistance fluctuated considerably between the date of the accident and the trial. For the first 6 weeks while the first plaintiff was non-weight bearing, she was entirely dependent upon the second plaintiff for housework, showering and to get to the toilet.

80. For the next 2 months she relied upon him to a lesser degree as she became more mobile.

81. Mr Basley’s evidence was that the first plaintiff required approximately 9.5 hours per week of assistance.

82. I do not criticise at all the proper assessment made by Mr Basley. However in my opinion it does not reflect the assistance actually given to the first plaintiff in the 5½ year period after the accident.

83. In my opinion the gratuitous service required by the first plaintiff included cleaning services; assistance with washing, lifting heavy items and when bending down doing domestic duties. I find that on average the past domestic assistance totalled 4 hours per week. I would apply the hourly rate of $35 per week which reflects the commercial value of the work at the time.[108]

    [108] T. p 113.

84. This results in an award for past gratuitous services of $40,040. The first plaintiff is entitled to an award of interest on that sum.

    ·Future domestic assistance

85. While I accept that the first plaintiff will, for a short time following the removal of the metal work, require more assistance, the fact remains that to a large extent the first plaintiff’s injuries caused by the accident, have largely settled.

86. The first plaintiff acknowledged the reduced number of hours needed by way of assistance from her sons and the second plaintiff. She ascribed the work they do to be about 1½ hours a day. While that may be the increase of duties performed by them, in my opinion the gratuitous services reasonably needed reflects about 1½ hours per week for the future.

87. In my opinion the maximum gratuitous services for the future would average no more than 1½ hours per week at a rate of $45 per hour.

88. In my opinion the number of hours per week will reduce over the short term. While the domestic aids recommended by Mr Basley would undoubtedly have been useful to the first plaintiff, I do not accept that they were reasonably necessary. Similarly the gymnasium membership is not reasonably necessary.

89. I would allow a maximum of $35,000 for future domestic assistance.

    The second plaintiff’s claim for consortium

90. It remains an entitlement to compensation for the loss of the first plaintiff’s society and for the temporal loss of her services to him as a wife.

91. The second plaintiff, as spouse of the first plaintiff, claims for the loss or impairment of consortium pursuant to s 65 of the Civil Liability Act, 1936, (SA). This claim is to be confined to temporal loss capable of estimation in money’.[109] It is plain that there is no compensation for grief, suffering, distress or depression consequent upon the injuries sustained by the spouse.

    [109] See Toohey v Hillier [1995] 92 CLR 618; See also Andrewartha v Andrewartha (1987) 44 SASR 1.

92. Both the first plaintiff and the second plaintiff described some of the pressures on their relationship before the accident. Principally it concerned their difficulties in caring for their now 20 year old son who was diagnosed with autism at age 5 years. The second plaintiff had worked for many years in hospitality work. In about 2003 he undertook, as a mature age person, a 4 year apprenticeship to become an electrician. The reduction in income was a significant stressor at that time.

93. Following the accident, but independent of it, the second plaintiff lost his employment when made redundant in 2012. This loss of income also strained the relationship. There were also pressures involved in the upbringing of their two children as they grew up after the accident. The second plaintiff deposed that during the period leading up to 2014/2015, he thought that separation was likely.[110]

    [110] T. p 107.

94. The first plaintiff deposed that their relationship had declined. She explained that marriage counselling had occurred in the year before the trial. She acknowledged that other factors had affected the relationship but that it was principally the pain from the accident.

95. While these other factors were not directly related to the subject accident, the fact remains that most of their marital difficulties and loss of intimacy were caused by the pain and discomfort suffered by the first plaintiff.

96. In all the circumstances I will allow the sum of $5,000 under this head of damage.

    Conclusion

97. For the Reasons I have given in respect of liability, the plaintiff’s claims must be dismissed.

98. I will hear the parties as to costs.