New South Wales District Court CITATION: Brannigan v Westfield & Ors [2007] NSWDC 99 HEARING DATE(S): 16/04/07 - 19/4/07 JUDGMENT DATE: 2 May 2007 JURISDICTION: Civil JUDGMENT OF: Goldring DCJ DECISION: Verdict for the plaintiff against the first and third defendants in the sum of $588,125. Dismiss cross-claim. CATCHWORDS: Negligence - occupier's liability - duty of care - causation LEGISLATION CITED: Workers' Compensation Act 1987 Civil Liability Act 2002 Hampton Court Pty Limited v Crooks (1957) 97 CLR 367 Brady v Girvan Bros Pty Limited (1986) 7 NSWLR 241 Brown v Target Australia Pty Limited (1994) 37 SASR 145 Sleiman v Franklin Food Stores Pty Limited (1989) Aust Torts Rep 80-266 CASES CITED: Griffin v Coles Myer Ltd (1991) Aust Torts Rep 81-109 Kelly v Lend Lease Retail Pty Limited (1993) Aust Torts Rep 81-216 Glasgow Corporation v Muir [1943] AC 448 Jones v Dunkel (1958-59) 101 CLR 28 Capral Aluminium Ltd v Komljenovic [2001] NSWCA 173 Nathan Brannigan (Plaintiff) PARTIES: Westfield Shopping Centre Management Co Pty Ltd (First Defendant) Nicholas Maropoulos T/as Zisti Poultry Market (Second Defendant) Greenflower Pty Ltd formerly P & H Property Services Pty Ltd (Third Defendant) FILE NUMBER(S): 4452 of 2004 J. Trainor (Plaintiff) COUNSEL: M.S. White (First & Third Defendants) B. Hull (Second Defendant) Maurice Blackburn Cashman (Plaintiff) SOLICITORS: McCabe Terrill Lawyers Pty Ltd (First & Third Defendants) Home Wilkinson Lawyers (Second Defendant) JUDGMENT 1 Nathan Roy Brannigan claims damages as compensation for injuries that he says result from an incident on or about 24 October 2001 at about 9.30 am. His Statement of Claim says 25 October, but I find that the incident occurred on 24 October. The incident 2 At the time Mr Brannigan worked as a butcher for Joe's Meats, at their shop in Westfield Liverpool. This shop is in the fresh food court of a large shopping centre. 3 He started work, as usual, at about 7 a.m. He cut up meat and prepared the displays of meat for the shop, before having a cooked breakfast with his workmates. Before he resumed work, he left the shop through the back door to have a cigarette and make a phone call on his mobile phone. As he turned the corner to enter the part of the corridor leading to the loading dock area, he put his left foot on a flattened cardboard carton, which was on the ground. The cardboard carton slid forward, throwing him off balance. He attempted to stop himself falling by putting his right foot down firmly. He says that the cardboard carton under his left foot had moved, and that his right foot was on the concrete surface. However, the concrete was covered with oil or grease and his right foot also slid so that, in effect, he did the "splits" and landed on the ground. He says he immediately felt a twisting or bending movement in his back and acute pain. He returned to the butcher's shop and reported the incident to the manager, Mr Craig Solomons. Mr Solomons gave evidence that he telephoned the shopping centre management to report the incident and then went to the area where Mr Brannigan had fallen. He made some observations, and gave evidence about these. 4 Shortly afterwards, a security officer, Mr Roberts, came to the scene, took a statement from Mr Brannigan, took some photographs of the scene and completed an incident report form, which is in evidence. The claim 5 The claim is made against Westfield Management Pty Ltd, ("Westfield") as occupier or manager of the shopping centre, and against Green Flower Pty Limited (formerly known as P & H Property Services Pty Limited, to which I will refer as "P & H") as cleaning contractors. On the third day of the hearing I directed a verdict in favour of Mr Maropoulos, the proprietor of Zisti's Poultry Market ("Zisti's"). He was the second defendant, and also the cross-defendant to a cross-claim against him by Westfield, and I directed a verdict for him on the cross-claim as well. Zisti's occupies the shop immediately adjacent to the area where Mr Brannigan fell, and next-door to Joe's Meats. It had been alleged that Zisti's was responsible for the oil on the ground where and when Mr Brannigan fell. There was no direct evidence of this, and I found that there was insufficient evidence of any facts from which I could infer any negligence on Zisti's part. 6 During the hearing, I asked Mr White, counsel for the first and third defendants, if there was any difficulty in his representing both defendants. He replied that there was not. As I have considered the issues raised by this case, after reserving my judgment, I am even more concerned about a possible conflict of interest, as the interests of Westfield and P & H may be at odds, on the view I take of the evidence. Issues 7 The issues are: a. Was Westfield the occupier of the premises? b. Did Westfield have a duty of care towards Mr Brannigan? c. Was there a breach of any such duty? d. Did P & H have a duty of care towards Mr Brannigan? e. Was there a breach of any such duty? f. Did any breach of duty cause Mr Brannigan's injury? g. What is the nature and extent of any such injury? h. What, if any, are the appropriate damages? i. Was there contributory negligence? j. If Westfield is liable, are any damages to be reduced because of the operation of the Workers Compensation Act, s 151Z? The area where the incident occurred 8 Mr Brannigan says that he slipped and fell in an area adjacent to a loading dock, described as loading dock No6, which runs behind a number of shops in the fresh food court at Westfield Liverpool. A plan is in evidence that shows a corridor running behind these shops, which included two chicken shops and two butcheries. The corridor makes a U-shaped bend and continues a short distance before opening on to the loading dock area. Another corridor runs off at right angles, connecting the loading dock area with the public area of the mall. This corridor runs between Zisti's and a supermarket. 9 Mr Brannigan and Mr Solomons said that, because of the way the counter in the Joe's Meats shop was constructed, the only way they had of accessing the working area was through the loading dock area and corridor, and they came through this area at least 6 or 8 times each day. Mr Blom, who also worked at Joe's Meats, gave similar evidence. The corridor is the only means by which employees of at least some of the shops can reach those shops. It is also the only way in which deliveries of supplies, particularly fresh meat and chickens, can be delivered to these stores. The evidence was that there was regular and quite heavy pedestrian traffic across the loading dock area, and the adjacent area which included a long corridor. Some of the goods carried along the corridor were wet. There was evidence that fresh meat, crates of chicken and chicken pieces and fish and seafood were all carried through this area. There was also evidence that several other shops on this level of the shopping centre used this area to recycle cardboard and dispose of rubbish. The fish shop used the vehicular area of the loading dock to park its truck permanently, and also to hose down the truck after deliveries of fish. 10 The raised area adjacent to the loading dock, as shown in the photograph taken by Mr Roberts, is used for storage of crates, and, in October 2001, a rectangular metal bin or receptacle in the area immediately adjacent to the corridor was used for the storage of used cooking oil. This was quite close to the rear door of Zisti's chicken shop. The unchallenged evidence of Mr Solomons and Mr Maropoulos was that in this area also, but further along the corridor towards Joe's Meats, there was a wire crate and compactor where tenants were required to deposit clean used cardboard. 11 Mr Maropoulos, who has operated Zisti's for over 15 years, gave evidence about the disposal of used cooking oil. In his business he has two large fryers used for cooking potato chips and other fried food. His evidence was that each Wednesday night he drained the used oil from these fryers, fills each fryer with water and boils it to clean it. The only place that Zisti's, and other tenants of the food court area, could dispose of waste oil was in this bin behind Zisti's. Mr Maropoulos's evidence was that there were at least 6 other shops in the fresh food court area that prepared fried food and therefore had to dispose of used oil. 12 He said that the oil was placed in the bin by pouring it through a rectangular grille or sieve in the top of the container. This grille was made of coarse wire mesh and was secured with a padlock. He said that frequently debris would catch in the grille and oil would overflow. 13 His evidence was that in 2001, every two weeks or so, a contractor would arrive at the loading dock, unlock the grille, pump out the rectangular bin, using a pump and hoses on a tanker truck, and take the oil away for recycling. 14 He also gave evidence that, after 2001, the system employed by Westfield, or someone on its behalf, for disposing of used oil, has changed twice. First, the rectangular bin was replaced by two 44-gallon drums. Each of these drums had a lid, but more commonly than not the lid was left on the ground beside the drum. More recently, each shop owner is supplied with plastic containers, which are filled with used oil, kept in that particular shop, and then collected as required by a contractor for recycling. 15 Mr Brannigan argues that the presence of oil (or possibly the cardboard) on the floor of the loading dock area was a breach of duty on the part of either Westfield or P & H or both, and that this was the cause of his fall. He says that it does not matter how the oil or the cardboard or both came to be on the floor in the area; that is irrelevant; however the oil got there, it constituted such a hazard that failure to clean it promptly amounted to negligence. 16 Mr Brannigan was aged 27 at the time of his fall and 33 at the hearing. He is articulate, and seemed to have a good memory. I consider that he may have exaggerated his evidence in relation to what he said about the staff of Zisti's hosing out their shop, and possibly in relation to some of the consequences of his injuries. However, in relation to liability, there is other, more cogent evidence from Mr Maropoulos and Mr Solomons. Otherwise, in general, I accept that he has been frank and forthright in the histories he has given to the many doctors he has seen, and generally in his evidence in these proceedings. Was Westfield the occupier of the premises? 17 Westfield says there is no evidence that it was the occupier of the Westfield shopping centre. It makes this submission on the basis that Mr Maropoulos tendered a lease of his shop that shows that Westfield is not the owner or otherwise of the person entitled to immediate possession of the shops. 18 In evidence, however, there is a significant amount of correspondence from Westfield. There is also evidence that the security guards in the shopping centre wore shirts with the word "Westfield" on them. Mr Solomons and Mr Maropoulos both gave evidence that when that they had complaints about safety or cleanliness of the loading dock area of the shopping centre, they directed these to Westfield. Mr Maropoulos gave evidence that he was directed by Mr James Brodie, who is described in correspondence as an employee of Westfield, to cease cleaning part of the common area behind the shop. I infer from all these pieces of evidence that Westfield was in fact the manager and occupier of the shopping centre and was responsible for its safety, in relation to members of the public who might enter that area of the shopping centre. Did Westfield have a duty of care towards Mr Brannigan? 19 As the case law has developed in Australia, it does not greatly assist the plaintiff. The starting point is probably Hampton Court Pty Limited v Crooks, (1957) 97 CLR 367, where, at 371, Dixon CJ said: "The jury might reasonably find the cause of the plaintiff's injuries to be the presence on the floor of a wet substance of a greasy nature... I do not think that proof of this fact was enough to enable the jury to infer negligence on the part of the defendant: proof was necessary of some additional circumstances tending, for example, to raise a probability of its having been there long enough to be seen if reasonable supervision were practised, or to show that so many people were likely to use the lavatory in the preceding hour that closer control was called for, or that the dropping of such substance was common or inherently likely to occur ." [my emphasis] 20 I have emphasised the passage because the evidence in this case shows that the dropping of oil in this area was common. 21 In Brady v Girvan Bros Pty Limited (1986) 7 NSWLR 241, where the appellant slipped on some jelly on the floor of a common passageway in a supermarket, at 247 Kirby P (as he then was) referred to this test and said: "Although minds may differ about the consistency of Dixon CJ's approach... I regard this passage, with its reference to the taking of precautions against risks "inherently likely to occur" as eminently sensible. Admittedly it contains an element of circularity. But the test is nonetheless a useful one. If these circumstances are such that the dropping of substances is liable to cause a fall and if this was "inherently likely to occur", the mere fact that the claimant (with imperfect knowledge or means of knowledge as to the system adopted by the occupier) cannot show precisely that such falls have been common and cannot prove exactly the precautions actually taken, does not deprive him or her of recovery from the occupier in the event of injury. If the inherent likelihood of spills is great, it is entirely reasonable that those coming onto the premises should be able to look to the occupier for a very high degree of care indeed." 22 In the same case, McHugh JA, with whom Priestley JA agreed, indicated that he thought the statement of Dixon CJ was possibly too wide and therefore said (at 253), "I do not think that proof that the 'dropping of some such substance was common or 'inherently likely to occur' is always sufficient to raise a probability of negligence." 23 He also referred to Brown v Target Australia Pty Limited (1994) 37 SASR 145, where the plaintiff recovered, even though she was not able to demonstrate how and when the oil, upon which she slipped, had come to be on the floor nor how long it was there. His Honour considered that the decision was correct but he was not satisfied with the reasoning. He said (at 254) "[W]hether or not the defendant had an efficient cleaning system, the critical issue was whether on the probabilities the existence of a proper system would have removed the spills before the plaintiff's fall. That issue necessitated an estimation of the time that the oil had been there and the judgment as to what sort of a cleaning system was required. In particular it was necessary to make an assessment as to how regularly the floor should have been inspected and cleaned.... 24 Finally, at 255, his Honour said, "[W]hen many people are using public premises, reasonable care may require a system of almost constant inspection and cleaning-up of spillages and other rubbish unless the risk of injury is slight. In that class of case an inference of negligence may arise from proof of the occurrence, even though the plaintiff is unable to prove how long a spillage existed, because the occurrence gives rise to the inference that the failure to provide or maintain the required system caused the injury to the plaintiff. But when the risk of injury is slight or few people use the premises less care is required; reasonable care may require no more than that the premises be inspected and cleaned at regular intervals. In that case failure to prove that time between spillages accident may be fatal; for the occurrence itself raises no inference that the accident was caused by the failure to have a proper system of inspection and cleaning the accident may have occurred despite the existence of the appropriate system." 25 It may be thought that those comments are particularly appropriate here. 26 It is quite clear that although, at first sight, the presence of a slippery substance on the floor is something that does not occur normally without the negligence of the occupier or manager of the area where the floor is, appellate decisions suggest that the maxim res ipsa loquitur may not apply to such circumstances in Australia. 27 The Court of Appeal revisited the question in Sleiman v Franklin Food Stores Pty Limited (1989) Aust Torts Rep 80-266. That was a case where the plaintiff, a customer in a supermarket, slipped on a pool of water that had accumulated on the floor of the supermarket some distance from the check-outs. Kirby P found both breach of duty and causation established on the facts, but Clarke JA, with whom Meagher JA agreed, reached a different conclusion, principally on the question of causation. The Full Court of the Supreme Court of Queensland reached a similar result in Griffin v Coles Myer Ltd (1991) Aust Torts Rep 81-109. Further, in Kelly v Lend Lease Retail Pty Limited (1993) Aust Torts Rep 81-216, Higgins J of the ACT Supreme Court (as he then was) reviewed the case law comprehensively. 28 The case law suggests that while it is relatively easy to establish that an occupier has not fulfilled its duty of care towards members of the public, in causing some hazardous substance to be on the floor, it is much more difficult to establish causation. That is the case here and I shall turn to the question shortly. 29 Westfield argues that it is not liable to Mr Brannigan because it did not have a duty of care towards him, or that, if it did have such a duty, that duty was discharged by appointing competent contractors to clean the loading dock area. It has placed in evidence a copy of a contract dated April 2001 by which it appointed P & H as cleaning contractors for the shopping centre. This contract provides that the cleaning of the loading dock areas was not the responsibility of P & H. Rather, it was said to be the subject of a separate contractual arrangement with Visy Recycling. No such contract is in evidence. 30 Westfield says that, in the absence of any specially hazardous activity carried on in the area, it fulfilled its obligation to the public by appointing a reputable contractor to carry out cleaning duties. 31 There is no suggestion that either contractor mentioned in the contract was not competent or reputable. 32 The carrying on of a supermarket does not, it is true, constitute "specially hazardous activities". However, there are some factors in this case which cause me some concern as to the extent of Westfield's duty and the question of whether or not this duty was performed. 33 It is clear from the case law that the occupier or manager of an area to which members of the public have access has a duty to take reasonable care to ensure that the surface areas within that area are reasonably safe. An occupier may delegate this duty to someone who is responsible and reputable. 34 In Glasgow Corporation v Muir [1943] AC 448 at 463-4, Lord Wright said; A distinction has been drawn in some cases between things intrinsically dangerous or dangerous per se and other things which are not dangerous in the absence of negligence. The correctness or value of that distinction has been doubted by eminent judges. I think, however, that there is a real and practical distinction between the two categories. Some things are obviously and necessarily dangerous unless the danger is removed by appropriate precautions. These are things dangerous per se. Other things are only dangerous if there is negligence. It is only in that contingency that they can cause danger . 35 Used oil falls into the second category. Thus, some negligence must be shown before either Westfield or P & H can be found liable to Mr Brannigan. Arrangements for cleaning 36 The cleaning contract in evidence excludes from the areas to be cleaned by the contractor P & H those areas designated as "loading docks". If the area where Mr Brannigan slipped and fell was in fact a loading dock, within the meaning of the expression in the contract, there may be some force to Westfield's argument. In the contract however, there is no definition of "loading dock" and there is no plan annexed which shows clearly what the loading dock areas are. 37 Properly so-called, I take the expression "loading dock" to mean an area where vehicles can back up to a platform to load or unload goods, and part of the platform area used for that purpose. The area where the oil storage bin was, was not located within such an area. In my view the corridor leading from the loading dock area behind the shops definitely was not part of a "loading dock" area. The area where Mr Brannigan fell was within the corridor area; it was some distance from the platform where goods were loaded and unloaded. I find that, on the balance of probabilities, the particular area where Mr Brannigan fell was not within the description of "loading dock". 38 If this area was not a loading dock, it was not within the area designated as required by the contract to be cleaned by a contractor other than P & H. The remainder of the shopping centre appears to be an area which it was that contractor's duty to clean. It was also the duty of P & H to clean all parts of the centre other than designated "loading docks". 39 The evidence of the two tenants, Mr Maropoulos and Mr Solomons (the manager at the time of the tenant, Joe's Meats), was quite definite to the effect that this area was not cleaned adequately or regularly. Early in his tenancy, Mr Maropoulos had attempted to clean the area outside the rear of his shop, that is the corridor and possibly part of an area that could be designated as "loading dock", but he was instructed not to do so by Mr Brodie, who was an employee of Westfield. Both Mr Maropoulos and Mr Solomons gave evidence that they complained regularly to Westfield about the state of cleanliness of this area. They both said that occasionally, but certainly not always, after a complaint, a cleaner would be sent to the area and it would be cleaned, but that inevitably it soon returned to its usual unclean state. 40 Mr Solomons gave evidence that he had seen oil on the floor near the waste oil bin on a number of occasions, and Mr Maropoulos gave evidence that this happened about once every two weeks between the commencement of his tenancy in 1992 and October 2001. Both these witnesses, and also Mr Brannigan and Mr Blom, who worked with him, confirmed that the area was usually filthy, although they did not give evidence specifically about oil on other occasions. 41 I have already referred to the evidence of Mr Maropoulos and Mr Solomons relating to complaints about the cleanliness of the area, and in the case of Mr Maropoulos, specifically about the presence of oil on the floor. 42 The general cleaning specifications published under the name of Westfield, and produced by Westfield under subpoena, specify that loading dock areas are to be cleaned daily. Westfield denied that these general specifications were part of the contract, but as I read the contract, they must be taken as being incorporated by reference through the relevant schedule, which refers to Westfield general cleaning specifications. 43 It is clear from the evidence of Mr Solomons and Mr Maropoulos that the area in question was not cleaned on a daily basis, and I find that in October 2001 it was cleaned, if at all, less regularly than this. 44 The contract was ambiguous to me and I infer that it was ambiguous to others, to the extent that neither Westfield nor the cleaners realised that the corridor area and the area where the oil bin was kept was possibly neither within the loading dock area nor the public access area of the shopping centre. It was ambiguous as to whether it was the responsibility of any cleaner to clean this area. It is clear that Westpac had not delegated its responsibility to clean this area at all. 45 In this case I could not find that Westpac had delegated its duty to someone who is responsible and reputable, because of the ambiguity in the contract. It was not clearly the responsibility of either the cleaner designated to clean the loading dock area or the cleaner designated to clean the rest of the shopping centre to clean this area. If the area did fall clearly within a loading dock area, it was the responsibility of the contractor, Visy Recycling to clean it. If, however, it was part of the general shopping centre area, under the contract, it was the responsibility of P & H to clean it. 46 This ambiguity could easily have been avoided by annexing a plan of the shopping centre to the contract and designating the areas where cleaning was required on this plan. 47 In this respect I find that Westfield was in breach of its duty to provide a proper system of cleaning. It did not assume the responsibility for cleaning the area itself, and it did not unambiguously designate some other reputable person to do that work. Did P & H have a duty of care? 48 Mr White, for P & H, submitted that the only duty of that defendant was that which it bore under the terms of the contract. There was no other duty towards members of the public. 49 I find that if the area was within the loading dock area, it was to be cleaned daily. If not, the contract seems to oblige the cleaner to inspect it every 20 minutes and to clean it as required. I find as a fact that the area was not inspected or cleaned with anything like this frequency. In fact, I infer from the evidence in this case that the particular area was not inspected or cleaned at all on a regular basis. 50 It is significant that, apart from medical opinion evidence and a copy of the cleaning contract (which I find on the balance of probabilities to be incomplete), neither Westpac nor P & H called any evidence. In particular, neither called evidence as to what cleaning was done in practice, nor how it was done, nor by whom it was done. I must therefore infer that any evidence either defendant might have called would not have assisted its case: Jones v Dunkel (1958-59) 101 CLR 28. 51 There was certainly no evidence that the area was inspected regularly or cleaned by anyone. 52 A further argument relating to the nature and extent of Westfield's responsibility goes as follows. It is clear that the waste oil bin was kept in an area where there was considerable pedestrian traffic. The evidence was that tenants used it to get access to their workplaces, and that suppliers used it in order to deliver supplies to a number of shops. The evidence was that the use of the area for the delivery of fresh foodstuff might cause water, blood or other liquids to be on the floor from time to time. There was unchallenged evidence that the area was also used for the disposal of waste cardboard, in an appropriate container, and other rubbish and contaminated paper products in a "skip", which was placed in the loading dock at the level where vehicles drove up to the platform, so that the top of the skip was level with the floor of the platform. The evidence was that the area was used constantly for the disposal of waste material. There is also evidence that Mr Maropoulos and Mr Solomons, at least, complained about the state of cleanliness in this area on a regular basis. It may be that the failure to clean the area properly, and I infer from the evidence that it was not cleaned on a daily basis, but rather, less frequently, was due to the ambiguity to which I have already referred. In any event, then there was a failure either on the part of Westfield to require more frequent cleaning, or on the part of the contract cleaner to perform its obligations. 53 While the area in question could not be described as being "specially hazardous", the fact that regular complaints were made about its cleanliness, and that complaints had in fact be made, both before and after 24 October 2001 about the presence of oil on the floor, suggests to me that Westfield was on notice that even if this area was part of a "loading dock" area, it should have required more frequent cleaning than other loading dock areas. 54 Although this argument carries some moral force, it was the argument rejected in the cases to which I have referred. Something over and above the presence of oil or grease on a floor, even where this is not unusual, must be shown. 55 I find Westfield was in breach of its duty to provide a proper system of cleaning because this area, where the oil bin was kept, required more than daily cleaning. The frequency of oil spills reported to it put it on notice, and its contractual arrangements should have stipulated more frequent cleaning. 56 I find also that P & H was in breach of its duty of care to Mr Brannigan. If, as I have found, the area where he fell was not designated as a loading dock area in the contract, P & H were obliged to inspect it every 20 minutes and clean it as required. 57 I find, on the balance of probabilities, that the area was not inspected or cleaned daily. 58 It would appear from documents produced on subpoena, that P & H actually did some cleaning work as contractors for Visy Recycling. It is not necessary for me to decide this, but there is evidence from which it would be possible to infer that P & H were required to clean some loading dock areas. If that were the case, and this was an area which they should have cleaned, I find that they did not do so, and they were in breach if their duty. Causation 59 Westfield says that Mr Brannigan cannot succeed because he cannot prove that, even if there was a duty, the breach of duty caused his injury. I must first consider the nature of the injuries, and then whether they can be related causally to any breach of duty. Mr Brannigan's injuries 60 I find as a fact that Mr Brannigan slipped and fell because of the presence of oil or grease on the floor of the area behind Zisti's chicken shop. There seems to be a consensus of medical opinion that, before his fall, he suffered from a congenital condition known as a pars defect. This pre-disposed him to back injury. I am satisfied on the balance of probabilities that although Mr Brannigan suffered from a condition of the spine, which made him particularly susceptible to injury, he had not suffered any major symptoms before 24 October 2001. It is true that he did suffer some back pain and took time off work when he attempted to lift a television set at home, and I am also satisfied that while he was working as a butcher at Coles, he suffered some back strain while handling beef carcasses. However the consequences of these incidents were not serious and did not prevent him working full-time as a butcher until 24 October 2001. 61 Mr Brannigan and the other butchers gave evidence of the type of work that butchers do. At the time of his injury in 2001, Mr Brannigan was working principally as a "back butcher". This work involves taking of the whole carcasses from the cool room, cutting them into manageable pieces with a knife and handsaw, and then cutting these large pieces of meat into small cuts, either to the request of customers, or so that the cuts can be displayed on trays in the butcher shop. The carcass, depending on whether it is beef, pork, or lamb, can weigh from 20 to 50kg. Lifting and cutting the carcasses requires considerable strength and the ability to reach above shoulder level. Butchers are also required to lift trays of meat in the display cabinets. The trays can weigh over 20kg. 62 The medical opinion evidence is, with one exception, unanimous, that the incident, in October 2001, exacerbated the pre-existing condition in Mr Brannigan's back. The exception is Dr Matheson, who considered that the condition was "constitutional" and would have occurred in any event. I do not accept Dr Matheson's opinion, as it does not appear to give such full consideration to the history as do the other doctors. I am entitled to do this; See Capral Aluminium Ltd v Komljenovic [2001] NSWCA 173 which I prefer to other more recent authority. 63 The evidence is that Mr Brannigan left school without completing year 10. After some other work, he commenced his apprenticeship as a butcher. He did not completed all the formal TAFE qualifications, but he did complete the four-year apprenticeship, and it is not suggested that he has not worked, since the age of 21 or so until 2003 as a fully qualified butcher. He has worked as the manager of various butcher shops. 64 Immediately after the incident, and the inspection by Mr Roberts, Mr Brannigan went to see his general practitioner, Dr Hedge, who gave him a WorkCover certificate, and he spent about eight weeks off work. I will refer to the precise times when I deal with the issue of damages. He then returned to work at Joe's on light duties. Gradually he returned to full duties as a butcher, and in particular as a "back butcher". He worked at several butcher shops until, in about February 2003, he opened his own butchery business at Ingleburn. He was the only employee of this business. He says that the work was very hard and he suffered back pain all the time. After about two months, he employed an older butcher, Harry, to do the heavy work in the butchery. Despite this, the business failed and he says that he lost about $15 000.00. After this he returned to work as an employed butcher, at Westfield Liverpool, but in a shop operated by A J Bush. 65 During the 2 years after the incident, he was paid his normal wage, when he worked, even when he was performing light duties. He says that although he was able to work, he suffered from continuous back pain. He continued to see Dr Hedge. He did have physiotherapy. No report from Dr Hedge is in evidence. He says that Dr Hedge sent him for a bone scan shortly after the fall, and Dr Hitchen, whose report is incomplete, refers to it. There were no other x-rays or scans until late 2003. 66 In about October 2003, Mr Brannigan saw, for the first time, another general practitioner, Dr Manku. Dr Manku, apparently unlike Dr Hedge, took his complaint of back pain seriously, examined him thoroughly, and referred him to a neurosurgeon, Dr John Bentivoglio. This specialist sent him for x-rays, a CAT scan, and an MRI Scan. In February 2004, Dr Bentivoglio performed a disc fusion at L5/S1 in the Sydney Private Hospital at Ashfield. This procedure was partially successful, in that after the disc fusion, Mr Brannigan said that he no longer felt radiated pain in his legs. He did continued to suffer pain in his lower back and continues to do so. He has two obvious scars, each about 100 mm long, on each side of his spine at belt level. The medical opinion is again unanimous that he is likely to suffer back pain for the remainder of his life. 67 The defendants say that the back pain is not as serious as Mr Brannigan contends. They say it could not have been as bad as he contends because he was able to continue working for almost two years after the injury, other than some periods late in 2001 and early 2002, when he took time off work. They say that he began to claim regular workers compensation payments (which he has received since he stopped work in November 2003 until the date of hearing) as soon as Dr Manku diagnosed his back condition. 68 I will return to the exact nature of the damage suffered by Mr Brannigan when I consider the issue of damages. I do find, on the balance of probabilities, that notwithstanding his return to work early in 2003, after the slip and fall incident, Mr Brannigan has suffered severe back pain, even though he was able to continue working. His pre-existing condition was exacerbated by the slip and fall. Did the injury result from a breach of duty? 69 The remaining issue is whether the presence of the oil or grease has been proved to be the result of a breach of duty on the part of either Westfield or P & H. 70 The defendants say that the plaintiff has not proved that the presence of the oil on the floor was due to any breach of duty on their part. 71 I have found that Westfield was in breach of its duty by its failure to designate clearly any person who was responsible for cleaning the relevant area. I have also found that this area was not cleaned regularly. This was a significant causal factor in the presence of oil on the floor at and before the time Mr Brannigan fell. It was the duty of P & H to clean this area, and to inspect, if not every twenty minutes, then more frequently than they did in fact inspect. I infer that there was a breach of this duty. 72 Oil or grease is a substance, which, of its nature, creates a hazard when it is left on a firm flat surface. The danger is that someone will slip on it. If oil or grease is present on the floor of an area where members of the public regularly pass to and fro, the occupier or manager of that area has a duty to take reasonable care to ensure that, first, the hazard does not occur, and secondly, if the hazard does occur through the presence of oil or grease on the floor, it is signposted or covered in a safe way, reasonably promptly after the hazard is or should be discovered, so that members of the public will not come into contact with the hazardous material. 73 The defendants say that there is no evidence that anyone ever notified either defendant of the presence of grease or oil on the floor on the morning of 24 October 2001. There is no evidence that either defendant was so notified before Mr Brannigan fell. Did a want of reasonable care on Westfield's or P & H's part cause Mr Brannigan's injury? 74 Although I am satisfied that Westfield was in breach of its duty, it did employ subcontractors who were responsible for cleaning all areas of the shopping centre to which members of the public, tenants and their employees had access. There is no evidence that Westfield was notified of the actual spillage of oil that caused Mr Brannigan's fall. In the absence of such evidence, and in the light of Mr Brannigan's evidence that he did not notice the oil on the floor when he crossed the area on his way to work at, or shortly before 7 a.m., I must infer that the oil came to be on the floor between 7 a.m. and 9.30 a.m., when Mr Brannigan fell. 75 Inspection of the floor of a supermarket or shopping mall for the presence of slipping hazards, such as oil or grease, every 20 minutes, would be within the range of the reasonable activity of an occupier of such an area. Counsel for the plaintiff did not suggest that anything like this was appropriate for the area where the used cooking oil container was kept. He did submit, however, that the likely presence of spills or overflowing of oil in that area did warrant more frequent inspections and cleaning than would be the case for an area which was simply used for the loading and unloading of merchandise. This submission was based on the evidence that the area was in constant use both as access to businesses in the shopping centre, and for the delivery of supplies. 76 Because of the nature of the breach of Westfield's duty the very presence of the oil or grease on the floor for an unreasonably long time may itself be a breach of duty. 77 The presence of oil on the floor where Mr Brannigan fell, in the particular circumstances of this case, should have been discovered by a periodic inspection. It was a breach of Westpac's duty not to establish a system where there was such inspection. In any event, the failure clearly to designate which cleaner was responsible for inspecting this area also led to a failure to detect and remove the oil between 7.00 a.m. and 9.30 a.m. It is thus directly causally related to Mr Brannigan's fall. I find that Westfield is liable to compensate Mr Brannigan. 78 In evidence before me, both the incident report in respect of Mr Brannigan's fall, and an incident report created some five months later, when a Ms Pike apparently fell in an area near the loading dock area, (not in the same place as Mr Brannigan) contained two indications that are relevant to these proceedings. In each case, a The cleaning contractor was named as P & H; and b The document indicates that the area was inspected every twenty minutes. 79 I infer from the evidence before me that the area where Mr Brannigan fell was certainly not inspected anything like every 20 minutes, indeed, it was not inspected even on a daily basis. 80 In view of this, if the area had been inspected as required, it is more probable than not that the oil spillage would have been discovered after 7.00 a.m. but before Mr Brannigan fell on it at 9.30 a.m. Appropriate steps could then have been taken to mark the area with warning signs and to remove the oil. It was not really necessary for the plaintiff's lawyers to qualify the expert, Ms Lusted, but one useful thing in her report is the opinion that, in order to prevent such slips and falls, it is appropriate to place warning signs as soon as inspection reveals a hazard. 81 No signs were put in place. Placing flattened cardboard cartons over the oil in fact increases the risk of slippage, because it obscures the oil from the view of people walking across it. There is no evidence to indicate who, or from which any inferences could be drawn as to who, placed the cardboard on the spilt oil. 82 I find, therefore, that the failure to inspect, mark and clean the area was within P & H's responsibility. It failed to perform this obligation, and that failure caused Mr Brannigan's injury. P & H are therefore liable to compensate Mr Brannigan. 83 Both Westfield and P & H are therefore liable. I should indicate that the major failure was in the system, and if it were necessary for me to apportion liability I would hold Westfield 75% responsible, because the failure clearly to make proper contractual arrangements for cleaning the area is, in my view, the major cause of the hazard, and P & H 25% responsible. Damages Non-economic loss 84 The evidence is that before 24 October 2001, Mr Brannigan was active and fit. He no longer played rugby league, but he played golf, indoor cricket and touch football regularly. He worked 6 days a week as a butcher. Although he still lived in the same house as the mother of his daughter, Chelsea, Ms Gillian Taylor, they were no longer a couple. He was in a relationship with another woman, Heidi, and said that he had sex at least 12 times each week. He drank alcohol after work, but not excessively, and smoked, but did not use other drugs. He maintained the garden of the house he shared with Ms Taylor, and spent about 4 hours each week there, which he enjoyed. 85 Since his injury, he has experienced back pain regularly. He takes over-the-counter analgesics (Neurofen) regularly, usually a packet of 24 each week. He has asked doctors for prescription analgesics, but the doctors have refused to prescribe them. The relationship with Heidi did not last, partly because he felt his back would not permit him to have sex. He began to drink excessively. Ultimately there was a violent argument while he was drunk. He was convicted of assault on Heidi. Police obtained an AVO. He was also convicted of possessing cannabis. He then returned to live with his daughter and Ms Taylor. 86 As mentioned above, he continued to work as a butcher after his fall, apart from about 8 weeks from October 2001, until October 2003. He had the spinal fusion operation early in 2004, and has not worked since. He says he has sought work, but has not found any. The workers' compensation insurer did provide some rehabilitation counselling, but would not pay for him to attend a TAFE course to enable him to become a meat inspector because, he says, the counsellor did not think that would lead to employment because there were few jobs in the area. He says he has sought work, but has not been successful. In view of his substance abuse difficulties, I accept that this is correct. 87 The fusion operation left obvious scars on his back. 88 It is clear that he is not fit to work as a butcher again. The medical opinion is quite unanimous on this. He will not be able to work in any job that requires lifting, bending or sitting or standing for long periods. 89 He will not be able to play golf, indoor cricket or touch football again. 90 The defendants say that his disability is not as great as he claims. He was able to return to work as a butcher, doing full duties for almost 2 years after the accident. He was able to sit in court for periods of up to 2 hours without obvious extremes of discomfort. I find that at times his own account of his pain was exaggerated, but it is clear that his movement and capacity for work are significantly limited. 91 After the fusion operation, he began to use cannabis for pain relief. He did so on the advice of a friend. He has now become addicted to this substance, and uses about 0.5 grams daily. 92 He describes himself as an alcoholic. He says he is drunk about once every 4 days. 93 Mr Brannigan has made some attempts to deal with his substance abuse problems. He recognised quite early that he had a problem with alcohol. Early in 2002, Dr Hedge, his then GP, prescribed Campril, which was supposed to suppress cravings for alcohol. He sought counselling from a drug and alcohol counsellor at the Ingleburn Community Health Centre, he says shortly after his injury, but the date is uncertain. He attended the Maryfield Centre at Campbelltown at or about the time he was involved in court proceedings. He made two attempts at this program, which is full-time but non-residential. He did not complete it. He also undertook some rehabilitation during the short period he lived with his parents at Wingham. 94 He shows some symptoms of severe depression. Dr Dinnen, a psychiatrist, to whom he was referred by his solicitors, has found that he suffers from this condition (which he describes as "chronic dysthymic disorder"). He formed the opinion that Mr Brannigan's addiction to both alcohol and cannabis were consequences of the pain and depression resulting from the injury to his back. Dr Levin, another psychiatrist, who saw him for the defendants, says that his problem with alcohol was a pre-existing condition, and may be the cause of depression. Mr Brannigan has not himself sought psychiatric treatment. There is accordingly no treating psychiatrist. Dr Levin appears to have formed the view that the addiction to alcohol existed before the injury. It is certainly true that Mr Brannigan engaged in binge drinking at times when he was a teenager, but he says that he stopped this when he became an apprentice butcher. He admits that he was involved in a pub brawl when he was in his late teens. He denies other brawls. Dr Levin assumes that these brawls were continuous, but there seems no basis for this assumption, nor, indeed, for Dr Levin's assumption that Mr Brannigan had a serious problem with alcohol before his fall. I find that Dr Levin's opinions are based on assumptions that have no foundation in fact, and I therefore prefer Dr Dinnen's opinion, which is based on a history more consistent with the evidence Mr Brannigan gave on oath in these proceedings, and on which he was cross-examined. I find on that basis that Mr Brannigan does suffer from depression, and that his substance abuse problems are a direct consequence of the exacerbation of the pre-existing condition in his back (see Para [57]). 95 On that basis, I find that Mr Brannigan's capacity to enjoy life has been significantly impaired. His pain is likely to continue. His depression and addictions are capable of treatment, but resolution is not certain. They are not, in the long term, as significant in affecting his capacity for enjoyment of life (or earning capacity) as his physical injuries. 96 The various doctors have given assessments of "whole person impairment" (a concept which is at best highly artificial and has no relevance to these proceedings) of between 10% and 28%. Under the Civil Liability Act, the court is required to assess a plaintiff by comparison to a "most extreme case" such as quadriplegia or severe brain injury. Assessments of "whole person impairment" may assist in determining percentage of a most extreme case, but are not binding. Because the back injury results from an exacerbation of a pre-existing condition, and it is possible that Mr Brannigan would have suffered the same condition at some time, I will discount his damages. I assess Mr Brannigan at 29% of a most extreme case. If the condition had not been pre-existing, the figure would have been 34%. His damages for non-economic loss will be $77 000. Past loss of earnings 97 Mr Brannigan's wages at the time of injury were $680 per week net. The evidence of Mr Blom is that a butcher currently earns $810 net. 98 Mr Brannigan, the defendants concede, was off work for 10 weeks following the injury, a further week in February 2002, and 23 weeks from 20 November 2003 until 1 May 2003, when he had, and recovered from the surgery. At other times up to November 2003, he was paid his full salary, even when working on light duties. His loss of earnings until he ceased work was therefore $22 440.00. 99 Although I intend to discount damages for loss of future earning capacity because of the greater than normal likelihood that Mr Brannigan's pars condition would result in some incapacity, I find it more probable than not that this incapacity would not have occurred until after the date of this judgment. 100 At present, the combination of his physical and mental conditions mean he is totally unfit for work, and has been since 28 October 2003. 101 I do not attribute the failure of his own butchery business to his injuries. More probably than not, any small business will fail, as it is notorious that more small businesses fail than succeed.. 102 He is entitled to loss of wages from 28 October 2003 to date (180 weeks) at $680 per week ($122 400.00). The total damages for loss of past earnings will be $144 840. 103 He is also entitled to 9% of lost earnings as loss of past superannuation, which amounts to $13 036.00. 104 He is not entitled to interest on damages for non-economic loss. He is entitled to interest of $23 879 on his past economic losses. This is calculated at the rate of 5.5% for 5.5 years on half of the total past economic loss (including superannuation: 157 876/2 X 5.5 X 5.5%= $23 879). Past out of pocket expenses 105 The amount paid by the workers compensation insurer is $38 542. Mr Brannigan also claims $140.25 for fees paid to Dr Manku, which I allow, and $110 paid to Maryfield, which is contested and which I do not allow. The total under this head is therefore $38 682.25 Fox v Wood 106 This is agreed at $16 420. Loss of future earning capacity 107 Although Mr Brannigan is currently totally unfit for work, and although his back condition will prevent him from ever working again as a butcher, he does not claim that he is totally and permanently incapacitated for work. Dr Dinnen says that, with treatment, his depression and substance abuse problems may be overcome. He recommends psychotherapy. As I have accepted his report, the best outcome for all parties would be to award damages sufficient to cover the treatment. I shall come to that in due course. 108 Even with treatment, it is unlikely that Mr Brannigan will be able to earn anything like the current weekly earnings of a butcher. I assess his loss of earning capacity at about fifty percent. As the current earnings of a butcher $810, this amounts to a sum of $405 per week. 109 I bear in mind that he suffered from a back condition which, I have found, is likely to impair his ability to work. This disability would have affected him, I find on the balance of probabilities, before his 65th birthday. I will therefore discount the damages for loss of earning capacity by a figure of 25%, rather than the usual15%, to allow for the vicissitudes of life. Damages for loss of future earning capacity are therefore $218 168.00 (405 X 718.25 X 75%=218 168). He is also entitled to the sum of 9% of this amount as damages are for loss of future superannuation. This amount is $19 635.00 Future out of pocket expenses 110 Mr Brannigan will require regular quarterly consultations with his general practitioner, and analgesic medication. I propose to allow the sum of $10 per week for the rest of his life to cover this (10 X 832.02 = $8320). I also propose to allow the sum of $4 000 to cover psychotherapy and drug and alcohol rehabilitation (for 3 years), as well as any equipment that Mr Brannigan may require. Domestic assistance 111 The Civil Liability Act, 2002, s 15, establishes a threshold for domestic assistance provided gratuitously. It provides: 15 Damages for gratuitous attendant care services: general (1) In this section: attendant care services means any of the following: (a) services of a domestic nature, (b) services relating to nursing, (c) services that aim to alleviate the consequences of an injury. gratuitous attendant care services means attendant care services: (a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay. (2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided: (a) for less than 6 hours per week, and (b) for less than 6 months. 112 Mr Brannigan claims for past and future domestic assistance. The evidence is that while he was in the relationship with Heidi, she assisted him with showering and dressing, especially after his surgery. Ms Taylor has done cooking cleaning and laundry for him while she has been sharing accommodation with him. His mates have assisted with lawn mowing until recently. Now Mr Brannigan and Ms Taylor share a house on a large block at Oakdale. Mr Brannigan is able to mow the lawns, though he does this slowly and gradually. He is able to make his bed, using a fitted sheet. Ms Taylor does the major cooking, the laundry, and housecleaning. He is able to get his own meals if she is at work. 113 I find that Mr Brannigan does not cross the threshold for compensation for past or future gratuitous domestic assistance. 114 He is unable to maintain a home or garden. At the moment he does not have his own home. He says he would use paid services if these were available to him. He may not be able to maintain the shared accommodation arrangements with Ms Taylor. In that event he would require paid assistance for 2 hours per week for assistance with household chores and handyman/gardening services. (2 X 19 X 838.02 = $318 45.00). 115 The total amount of damages, before taking account of any contributory negligence and the workers compensation defence is therefore $595 825.25. Contributory negligence 116 The defendants say that Mr Brannigan failed to keep a proper lookout and therefore failed to take proper care for his own safety. His evidence was that when he went to work at 7 a.m. or shortly before that there was neither oil nor cardboard on the ground as he walked through that area. By 9.30 a.m. the cardboard cartons were on the ground. It was not, and could not have been, obvious to Mr Brannigan that there was oil under the cardboard. Even if he had taken more care, the slip and fall would still have occurred. I find that there was no contributory negligence. Workers Compensation Act, S 151Z 117 Westfield argues that, if it is liable, Mr Brannigan's employer is also liable for failure to provide a safe system of work. It is not in dispute that the only means of access to the shop occupied by Joe's Meats was along the corridor and through the back door. If this access was unsafe, it follows that the employer did not provide a safe system of work. The defendants argue, further, that Mr Solomons, as the manager of the shop, was well aware that the lack of cleanliness in the corridor in the loading dock area made access to the shop unsafe at times. If this was the case, it was incumbent on the employer to take steps to make the access safe -- either by cleaning it itself, or by ensuring that the occupier/manager of the shopping centre or the cleaners did clean the area. 118 Mr Solomons gave evidence that he repeatedly telephoned the shopping centre management to complain of the state of cleanliness. 119 The employer's duty to provide a safe system of work is heavy. It cannot be delegated. However, performance of that duty must take commercial realities into account. The business of Mr Brannigan's employer was selling meat from a shop. The only way employees could enter the shop was through the rear corridor. If the employer prevented employees from using this access, it could not carry on its business. There was a very strong incentive for it to ensure that its employees were able to come into and leave the shop. In the circumstances, I do not consider that it would have been reasonable for the employer to take cleaning of the area into its own hands. The local manager, Mr Solomons, should have ensured that those who were responsible for cleaning performed their duty. I can readily understand how, when his repeated complaints were either ignored or treated in a desultory fashion, that he was unwilling to persist in complaints. He was a busy man with a busy shop to run. However, his evidence was that he did not inform the central management of Joe's Meats. In this sense, I do find that there was a failure by the employer to provide a safe system of work, but that if it had been sued, in the circumstances it would not have been liable to an extent greater than 10% of liability. Section 151Z, therefore applies, but will have a minimal effect on the amount of damages that Mr Brannigan will receive. 120 The defendants, who relied on this defence, suggest that I should follow a number of steps in calculating the amount to be arrived at pursuant to the Workers Compensation Act, s 151Z. · determine the damages to be awarded -- $595 825 · determine the employer's proportion of liability –10% · the third defendant could therefore obtain the sum of $59 583 from the employer. · The plaintiff could have recovered, under the "modified common law" provisions of the Workers Compensation Act, the damages I have calculated, excluding any provision for non-economic loss ($518 825). · Ten per cent of this is $51 883 · Deduct $51 883 from $59 583, giving $7 700 · Reduce the damages by $7 700, giving a verdict of $588 125. 121 There will be therefore a verdict for the plaintiff against the first and third defendants in the sum of $588 125. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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