New South Wales District Court CITATION: Alzawy v CPT Custodian Pty Ltd [2009] NSWDC 304 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 1, 2 and 3 September 2009 JUDGMENT DATE: 30 October 2009 JURISDICTION: Civil JUDGMENT OF: Hungerford ADCJ (1) Verdict and judgment for the first defendant against the plaintiff on the action. (2) Verdict and judgment for the second defendant against the plaintiff on the action. DECISION: (3) Cross-claim by the first defendant against the second defendant is dismissed. (4) Plaintiff to pay the first defendant's costs of the action to 7 January 2009 on the ordinary basis and thereafter from 8 January 2009 on an indemnity basis. (5) Plaintiff to pay the second defendant's costs of the action to 28 August 2009 on the ordinary basis and thereafter from 29 August 2009 on an indemnity basis. (6) Each party to bear its own costs of the cross-claim. CATCHWORDS: TORTS - Negligence - Injuries from a fall caused by slipping on liquid at a shopping centre - Duty of care of occupier and cleaning contractor - Nature and scope of duty - Whether duty of care breached - System of cleaning spillages - Whether casual act of negligence - Contributory negligence - Effect of pre-existing medical condition - Quatum of damages LEGISLATION CITED: Civil Liability Act 2002, ss 15(3) and 16(2) Law Reform (Miscellaneous Provisions) Act 1946, s 5(1)(c) Allcorp Cleaning Services Pty Ltd v Fairweather [1998] NSWCA 12 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 Brady v Girvan Bros Pty Ltd t/as Minto Mall (1986) 7 NSWLR 241 Cairns v Woolworths Ltd [2005] ACTSC 95 CASES CITED: Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 Jones v Dunkel (1959) 101 CLR 298 P & H Property Service Pty Ltd v Branigan [2008] NSWCA 195 Shoeys Pty Ltd v Allan [1991] Aust Tort Reports 81-104 Transfield Services (Australia) v Hall [2008] NSWCA 294 Wynn Tressidea Management v Barkho [2009] NSWCA 149 Caroline Alzawy - Plaintiff PARTIES: CPT Custodian Pty Limited - First Defendant/Cross-Claimant Glad Cleaning Services Pty Limited - Second Defendant/Cross-Defendant FILE NUMBER(S): 3700 of 2008 Mr JA Jobson for Plaintiff COUNSEL: Mr J Sleight for First Defendant/Cross-Claimant Mr NJ Polin for Second Defendant/ Cross Defendant Stephen Spinak Solicitors for Plaintiff SOLICITORS: Thompson Cooper Lawyers for First Defendant/ Cross-Claimant McCabe Terrill Lawyers for Second Defendant/Cross- Defendant JUDGMENT 1 In this action the plaintiff, Caroline Alzawy, claimed damages for injuries sustained by her on Saturday, 23 February 2008 at about 3.30 pm to her left shoulder and low back at the Centro Bankstown shopping centre. At the time, the plaintiff was carrying her baby, with two other children aged 3 years and 6 years walking nearby, as she proceeded through the common food area walking towards the Franklins supermarket and allegedly slipped on an orange-red coloured sauce-like substance and fell to the floor. After her husband was called to the Centro centre an ambulance transported her to Bankstown Hospital where x-rays of the shoulder and back were taken and her condition monitored for three or four hours when she was discharged home under her husband's care. A week or so later she consulted a general practitioner, Dr Nayef Kanawati, who eventually referred her to an orthopaedic surgeon, Dr Graham Mahony, for treatment. 2 As it happened, the plaintiff had a prior history of low back problems for two to three years but since the February 2008 fall the back pain had worsened and pain in the left shoulder radiating down the left arm allowed only very minimal movement. Caring for her three children and performing domestic duties became difficult, particularly since she and her husband separated in late-June 2009. The plaintiff has not previously been engaged in employment; she continues to attend English language classes at TAFE. The claims, defences and cross-claim 3 As at 23 February 2008, CPT Custodian Pty Limited, the first defendant, was the owner and occupier of the premises known as the Centro Bankstown shopping centre so that, as such, there was no issue other than that it had responsibility for the care, control and management of the centre. It was admitted that Glad Cleaning Services Pty Limited as the second defendant provided cleaning services for the centre pursuant to a contract with the first defendant made on 29 June 2007. 4 The plaintiff sued the first defendant as the occupier of the premises in negligence for damages arising out of the injuries suffered from the subject incident on 23 February 2008. The particular failings in that respect were pleaded as omissions to provide a non-slippery floor surface; to provide a proper cleaning system; to observe spillages on the floor; to place warning signs; to remove the spillage; and res ipsa loquitur. 5 The second defendant was also sued by the plaintiff in negligence for the same failures as alleged against the first defendant. However, necessarily having in mind its role as the cleaning contractor, any such negligence had to be limited to failures to provide a proper cleaning system; to observe and remove spillages; and to adequately warn the plaintiff of a spillage. In addition, the plaintiff relied upon the second defendant's breach of its contract with the first defendant in that it failed to provide the cleaning services agreed; failed to do so in a diligent, competent, proper and workmanlike manner; and to provide warnings to customers of the centre of any hazards with barricades of any potential hazards. 6 In turn, the first defendant cross-claimed against the second defendant for counts in negligence and breach of contract by relying on those particulars pleaded by the plaintiff against the second defendant. It was pleaded that the cleaning contract contained a term that the second defendant/cross-defendant would indemnify the first defendant/cross-claimant, in effect, in respect of any damages for personal injury obtained by the plaintiff in the action against it arising out of or in connection with the cleaning services provided due to the second defendant's negligence. Indemnity and/or contribution was sought also by the cross-claimant from the cross-defendant as a joint tortfeasor pursuant to the provisions of s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. The second defendant, however, made no such claim against the first defendant and otherwise resisted the cross-claim, including that the cross-claimant was guilty of contributory negligence in failing to provide a non-slip floor surface and a proper cleaning system. 7 The two defendants otherwise denied any negligence as leading to liability for injury to the plaintiff and did not admit she suffered any loss or damage. The quantum of damages, in any event, was strongly resisted and where the plaintiff's pre-existing back problem was said to be the real cause of any of her continuing disability; gross exaggeration of her condition and a lack of causation from the subject fall was argued. In the defences, contributory negligence was alleged against the plaintiff in herself causing or contributing to any injury or damage by failing to take any or any adequate care for her own safety. Particulars of such contributory negligence covered failures to avoid the spillage, to keep a proper lookout and to watch where she placed her feet. Plaintiff's background 8 The plaintiff was born in Egypt in 1980 and migrated to Australia in 2003 with her husband following their marriage in July 2000. They have children now aged 8, 5 and 2 years but the marriage ended when a separation occurred in June 2009; the three children reside with the plaintiff in a first floor home unit at Fairfield with access by a flight of 10 stairs. The plaintiff drives her own motor vehicle. 9 At the date of the subject incident, the plaintiff was 28 years of age and 29 years at trial. She was the sole witness in her own case and, in that respect, it should be noted she obtained an apprehended violence order against her husband in July 2009. There was no evidence she had ever been engaged in gainful employment and the care of her three children and domestic duties occupied her time, other than attending English classes at TAFE. Her evidence was given through an Arabic interpreter. 10 As to her medical condition before the subject incident, the plaintiff said she had "three slipped discs" in the lower back since 2004/2005 which caused pain in that area at the end of a day after engaging in physical activities. Even so, she said she could still care for the children without difficulty and to perform all the usual domestic tasks in the home. As she said, "everything was normal." However, a CT scan of the plaintiff's lumbar spine done on 21 February 2008, two days before the fall in the Centro centre, was reported by Dr Suresh de Silva on referral by Dr Hala Gobran as disclosing "no spondylolisthesis demonstrated…no significant degeneration is demonstrated...some mild disc herniation into the left lateral recess however this is not causing nerve root impingement" but where "at L4/L5there is a very mild disc prolapse posteriorly but no nerve root entrapment." A CT scan the same day of the abdomen and pelvis was unremarkable. 11 It seems that the plaintiff, from the close questioning under cross-examination, consulted very many medical practitioners since about 2004 and before her subject fall in February 2008 for various ailments, including varicose veins, colon problems and herniation at the L5/S1 level, but principally lower back pain at L4/L5 which ranged from moderate to severe while pregnant and in lifting her children; diet was thought to be a contributing factor effecting a weight increase and so she consulted a dietitian. On 23 January 2006 she obtained medical advice for "more pain now and radiate to the left leg, very restricted." Also, as early as mid - 2006 she experienced severe back pain, neck pain, lower abdominal pain and carpal tunnel syndrome. Pain medication was prescribed for those various conditions. Generally, the plaintiff attended the Bankstown Medical Centre for treatment where she saw various doctors. Indeed, on 22 February 2008, being the day before the subject fall, she agreed she saw Dr Hala Gobran for back pain reported as "lower back pain radiating to front… is on Voltaren – came for CT scan report… mild L4/L5 disc prolapse. Advised to continue Voltaren." 12 In the domestic situation, the plaintiff was responsible for performing all of the shopping, cooking, cleaning and general housework and she attended to and cared for the children; her husband, she said, "never used to do anything. He drove us to church and to see friends." He was employed as a casual cleaner on night shift. Contractual relationship between first and second defendants 13 On 29 June 2007 a written agreement was made between the first and second defendants in relation to the provision of cleaning services by the second defendant at the Centro centre. The agreement relevantly provided – o The first defendant was the owner of the subject premises. o The second defendant was a cleaning contractor. o The contractor agreed to provide the cleaning services detailed in the agreement: cl 2.1. o The scope of services to be provided comprehended the cleaning and presentation of the entire property, including the walls, common areas and food court/eatery: para 2.3 in sec 3 of Sch 2. o The contractor had to hand over to the owner the property in a totally prepared and ready manner half an hour prior to the operating hours of the centre (9am to 5 pm on a Saturday): para 3.1 in sec 3 of Sch 2. o The contractor was responsible for the entire presentation of the property, including reporting security and maintenance issues to the owner: para 3.1.1 in sec 3 of Sch 2. o The contractor was required to present the property to the owner, including as to the mall/common areas "(a) Floors are to be machine finished to highly polished, non-slip surface"; "(b) Floors are to be free of rubbish and/or spillages"; and "(ee) No spill is to be left unattended and wet areas are to be adequately sign posted": para 3.1.2 in sec 3 of Sch 2. o The contractor was expected to maintain the presentation of the centre throughout business hours with the maximum cleaning rotation times in the mall/common areas being 15 minutes: para 3.1.15 in sec3 of Sch 2. o The contractor was responsible for ensuring all floor finishes were approved by the owner prior to their application in a public area: para 3.1.16 in sec 3 of Sch 2. o The contractor was to ensure as to a spillage procedure that service staff must immediately display "caution wet floor" signs for a 20 minute period after cleaning, damp mop entire area and follow with a dry mop; plastic safety cones were to be used with appropriate wording: para 3.1.17 in sec 3 of Sch 2. o A "loop sheet" for cleaners was to be provided to the owner by the contractor: para 3.2.2 in sec 3 of Sch 2. o The contractor was expected to notify the owner immediately when an incident occurred: para 3.2.4 in sec 3 of Sch 2. o The contractor was required to continually search for deficiencies in the property's risk management plan and rectify such deficiencies where appropriate: para 3.2.7 in se 3 of Sch 2. o The contractor was to ensure that following an incident preventive measures, where practical, were recommended to stop the likelihood of further incidents: para 3.2.8 in sec 3 of Sch 2. o The contractor, at its own cost, was to supply all equipment and materials required to provide the services: cl 3.1. o The contractor was to execute and complete the works in a proper and workmanlike manner: cl 3.2 (b) o The contractor was to appoint a supervisor, approved in writing by the owner, to receive instructions from the owner and to give instructions to the contractor's employees in providing the services; the supervisor was to attend periodic meetings with the owner at least once per month to report generally to the owner the provision of the services and to advise the owner affecting such services: cl 4. o There were detailed requirements as to the calibre and behaviour of the contractor's staff: cl 7; and cleaning staff were required to wear a uniform designed by the owner with the owner's logo: Appx D in sec 1 of Sch2. o The owner was entitled ti instruct the contractor to vary the services and the contractor was to comply: cl 9.1. o The contractor was to indemnify the owner against any loss, expense or damage the owner may incur as a consequence of any breach of the agreement on the part of an employee of the contractor: cl 10.1 o The contractor was to maintain public liability insurance covering its liability to the public in respect of personal injury or death or damage to any property caused by the provision of the services: cl 10.2 o The contractor agree to indemnify the owner against any claim, liability or loss in respect of personal injury or death or damage to any property due to the negligence, default or breach of the contract: cl 10.4. 14 It will be apparent, in my view, from a consideration of the contractual terms as between each defendant that the first defendant as the owner was the occupier of the Centro centre with responsibility for the care, management and control of the cleaning services which were contracted to the second defendant. The first defendant retained a degree of control as to their performance, albeit the second defendant directly did the work, by requiring regular reporting and approval, the ability to instruct the cleaning supervisor, contractor employees were to wear a uniform designed by the owner with the owner's logo and where the first defendant could vary the cleaning services. The second defendant was to indemnify the first defendant against any loss incurred on the breach by one of its employees of the agreement; where the second defendant was negligent then it was to indemnify the first defendant in respect of personal injury damages due to such negligence. 15 Further, the agreement laid down in the specification and description of works a standard of cleaning for presentation during set business opening hours, together with a requirement on the second defendant not to leave any spillage on the floor area unattended. A system was specified with maximum cleaning rotation times to maintain the presentation to the required standard and to deal with spillages. Circumstances of the accident and injury 16 At about 2.00 to 2.30 pm on 23 February 2008, the plaintiff said she arrived at the Centro centre with her three children to shop at Franklins for formula milk for her baby. She was familiar with the centre as she shopped there on a regular basis. After leaving her car in the car park, the plaintiff entered through the main entrance on the ground level, as she said, "walking normally" and wearing Adidas sports shoes. She said that "as I walked I fell. I fell between the Subway outlet and Lenard's chicken shop. Before just walking, didn't notice anything, and fell." On the ground the plaintiff then saw an orange-red coloured sauce on the floor with her footprint in it. She fell onto her left side and struck her left shoulder on the floor as her son fell from her hands. She said "a lot of people helped" as she stood up but she was worried about her baby. A cleaner then arrived who she told not to clean but to call a security guard. Eventually, a security guard attended and she told him what had happened; the security guard, she said, took notes and photographs of the scene. Shortly thereafter her husband arrived and she was then transported by ambulance with her baby son to Bankstown Hospital. 17 Immediately after the fall, the plaintiff said her left shoulder and back were painful and she could not lift her son or walk. At the hospital she complained of pain in the left shoulder, left arm and back and had x-rays. After she and her son were monitored for a few hours, they were discharged with her shoulder in a sling and her husband took them home; she experienced continuing shoulder and back pain for which she took Panadeine Forte. The plaintiff rested at home for a week. 18 The Ambulance Service notes of the incident showed the ambulance arrived at the scene on 23 February 2008 at 3.49 pm and departed for the hospital at 4.07 pm. The chief complaint was recorded as a "fall" and the incident history stated: "On arrival patient standing in shopping centre with security. Patient states slipped on 'sauce' while carrying child. Landing on left side. Patient also states she dropped baby. On examination patient alert, orientated, well perfused. Complained of pain to left arm and left side radiating to middle of back. Nil loss of consciousness. No obvious deformity or other injuries… Asthma." 19 The discharge letter dated 23 February 2008 from Bankstown Hospital gave a diagnosis of soft tissue injury due to the fall that day and tenderness to the back. The x-ray to the left shoulder, chest and back disclosed no fracture or dislocation and the plaintiff was discharged with pain medication and a sling to the left shoulder. The history of the fall was described as "slipped on a wet floor in shopping centre – landed on her left arm and presented with left shoulder pain and back pain. No loss of consciousness on examination. No external injuries but tender and limited left shoulder movement." As to the plaintiff's son, the hospital reported "alert and happy child, no external injuries." 20 With continuing symptomatology, the plaintiff, as she said on the suggestion of a friend, consulted for the first time Dr Kanawati on 3 March 2008 and did not return to the Bankstown Medical Centre for the injury from the fall. Dr Kanawati, in a report dated 22 April 2008, recorded a history from the plaintiff that she "slipped on a wet floor (tomato sauce) at the main shopping complex of Bankstown Centro, she was carrying her son on the left chest wall and shoulder, she fell and landed on the left side of her body." He found the plaintiff on examination "was in considerable amount of anxiety, panic and depression" and diagnosed "lumbar discopathy, soft tissue injuries to the left shoulder"; treatment was analgesics, physiotherapy and psychological counselling. Dr Kanawati foreshadowed the need for MRI scans of the left shoulder and low back region and said the plaintiff remained under his care; in the mean time he referred her to Dr Mahony on 10 March 2008. He said she required domestic assistance of three hours for three times a week to help with household chores. 21 On referral by Dr Kanawati, Dr P Larbalestier on 6 March 2008 did a CT scan of the plaintiff's lumbosacral spine and an ultrasound of the left shoulder. Dr Larbalestier found minor posterior bulging at the L3/L4 and L4/L5 levels of the spine due to early degenerative changes and, as to the left shoulder, all indications were normal with no tendonitis or other pathology detected although on movement severe impingement was noted at 45 degrees abduction. The finding concerning the low back may be compared to that seen by Dr de Silva on 21 February 2008 before the subject fall, as noted earlier, where a very mild disc prolapse at the L4/5 level was reported. 22 For herself, the plaintiff complained of continuing pain after the fall in the left arm, shoulder and back; she first consulted Dr Mahony on 9 April 2008. She said at that time the pain was "much worse and radiates into the lower leg… left shoulder was still a problem… pain always there, never became better… could not lift baby any more"; her sleep was affected, she had minimal movement, could not drive her car for very long and needed to take pain medication on a regular basis. 23 After the fall, the plaintiff said her husband needed to do, for about half an hour each day, the vacuuming, mopping and taking the children to school, although she continued to cook meals. That position continued until she and her husband separated on 26 June 2009 when she moved to live with friends for a short time so that assistance could be given in looking after the children. Since returning to her own home with the three children, the plaintiff relied on friends visiting and sleeping overnight to help her with domestic tasks, including taking the children to school. She said she was unable to drive the children to school, even though she collected them after school on leaving TAFE classes, and only cooked meals in holiday periods. Ordinarily, she said the injuries sustained in the fall made her feel like staying at home and just sitting. Indeed, she experienced now pain all the time and felt as if she was crippled with the radiated left leg pain so that after exertion help was needed to sit down and to get up; sometimes she needed help to go to the bathroom. 24 It seem that present at the hearing was the plaintiff's carer, Ms Yousif, and a man who was a social worker at her church. However, they were not called to give evidence of their observations of the plaintiff's conduct and none of her friends who were said to assist with domestic chores gave evidence. Apart from the medical evidence, the plaintiff was the sole witness in her case. Having in mind the somewhat significant claim for domestic assistance, both past and into the future, and the alleged continuing disabilities as recognised in the claim for non-economic loss, I have to say I found those omissions in the evidence to be a serious detriment to the plaintiff's case. It is properly open, in my view, to draw inferences adverse to the plaintiff pursuant to the Jones v Dunkel (1959) 101 CLR 298 principle. 25 A feature of this case was the benefit of closed circuit television footage of the general area of the centre concerned around the time of the plaintiff's fall but where the fall itself was just beyond the camera's view. The footage commenced at 3.20 pm and ended at 3.40 pm on 23 February 2008 and where the fall was recorded as occurring at 3.27 pm. Counsel for the first defendant provided a summary of what the video film showed which, after amendment, was accepted by all parties as accurate observations in an objective sense which could be made. I adopt those as my observations of what the video film showed. Set out below are the most relevant events: " Time Event 15:20:01 Footage begins. 15:22:38 A cleaner appears on the screen. 15:22:43 The cleaner sweeps the floor with a single motion of the broom near the children's car ride on the right side of the screen. 15:23:00 The cleaner walks past Donut King and leaves the area. 15:23:09 The cleaner comes back and sweeps in front of the entrance door. … 15:23:40 The cleaner leaves the area. 15:25:14 The cleaner walks towards Donut King. 15:25:32 Another cleaner appears from bottom left side of the screen walking along the path through the automated entrance door with his trolley. 15:26:52 The plaintiff enters the automatic door carrying a child and another child walking ext to her holding hands with the plaintiff. 15:26:57 The child wearing pink top leaves the plaintiff and runs towards the children's car ride. 15:27:02 Plaintiff is walking. 15:27:07 The plaintiff standing in the middle of the screen staring towards the children's car ride. 15:27:11 Child comes back towards the plaintiff. 15:27:11 The plaintiff leaves the screen. 15:27:13 Time of alleged incident. It appears that the camera is not angled to capture the location of the incident. 15:27:48 A man with a blue top stands on the bottom left corner of the screen, staring towards the area which the camera does not show. 15:27:51 The man stops looking at the area and starts walking towards Donut King. … 15:28:12 A man and a woman pushing a trolley appears from the bottom left hand corner of the screen and stands at the same spot where a man previously was. 15:28:13 The man and the lady leave the area. 15:28:32 A man with a cap walks back where other people were previously standing while walking towards Donut King and then joins two other men. 15:29:12 A man with a safety vest appears on the bottom left hand side of the screen. … 15:29:40 The man with gloves is back in view at the bottom side of the screen. A man approaches the man with the safety vest who points towards bottom left corner of the screen. … 15:29:58 A cleaner appears on the screen walking towards the camera. 15:30:06 The cleaner places yellow warning frame on the bottom of the screen. 15:30:14 Another cleaner attends the scene from bottom left hand corner of the screen. 15:30:16 The cleaner on the bottom left corner holds a mop and places the mop back under the trolley. … 15:35:27 Security guard appears on bottom left hand corner of the screen, talking a man with white cap and sunglasses holding the first aid kit. … 15:36:54 The cleaner mops the floor on the bottom side of the screen. 15:37:24 The cleaner mops the floor with his feet on paper towel. 15:37:59 The cleaner picks up a yellow warning frame. 15:38:13 The cleaner leaves the area and walks towards the children's car ride and sweeps the area. … 15:39:59 Footage ends." 26 The cleaner on duty on the ground floor of Centro centre on the day of the subject incident was Elizabeth Heckenberg. She gave evidence in the case put for her employer, the second defendant. Previously employed by it, she returned to the cleaning job at the centre about two years ago after employment elsewhere for a year and five years attending at home to a young child. She was aware of and recalled the plaintiff's fall in February 2008. She said she was the cleaner for the area concerned on the day in question and her duties included walking around in a "loop" to clean and to ensure the proper presentation of the area. It seemed that she and another cleaner were rostered to clean separate areas on the ground floor level. 27 Ms Heckenberg was shown the video film footage during her evidence and identified herself as the cleaner appearing on the screen at 15:22:38 hours with a broom in her right hand and a dustpan on a pole in the left hand; her direction of travel was from the bottom of the screen so that she was passing through the area of the plaintiff's fall. She said that her activity at that time was walking around the ground floor looking for rubbish and spillages and the video recorded her activities in that respect up to the time she left the area at 15:23:40 hours walking towards Donut King. Ms Heckenberg was not sure of the identity of the other cleaner who came into view at 15:25:32 hours from the bottom left-side of the screen. 28 At 15:26:52 hours the plaintiff entered the viewing area of the camera at the top of the screen through the main entrance door carrying a baby and walked towards the bottom of the screen between the Subway outlet and Lenard's chicken shop and past Joe's Meat Market. At 15:27:11 hours she left the bottom of the screen's view and at 15:27:13 hours the fall occurred but just out of sight of the camera. At 15:29:58 hours, Ms Heckenberg identified herself on the screen as the cleaner concerned. 29 On arriving at the site of the fall, Ms Heckenberg said she saw the lady who fell, clearly the plaintiff, holding a baby. She noticed the spillage which was described by her as "orange coloured juice" which was "just over one metre in width"; in a report of the incident, she noted the substance as "soft drink." Ms Heckenberg said the lady who fell told her not to clean the spill as she was waiting for a security guard to attend. She confirmed a security guard arrived at 15:35:27 hours and at 15:36:54 hours she mopped the spillage. 30 Significantly, Ms Heckenberg said by using the video footage that she walked over the area of the spillage at 15:22:38 hours but no spill of liquid was seen; if there had been a spill on the floor she said she would have cleaned it straight away. In any case, if not earlier called to the scene because of the spill, she would have returned to the area on her normal "loop" in about 10 minutes time. Ms Heckenberg was adamant she would not have missed the spillage as she walked over the area at about 15:22:38 hours if it had then been there because she always turned her head and looked for spillages as she walked along the floor; indeed, she maintained there was "no way I miss it" and she added that she did "not like people falling in my area of the centre." 31 In light of the circumstances as outlined, I make the following findings – (1) Around 3.00 pm on 23 February 2008 the plaintiff arrived at the Centro centre and parked her car in the car park accompanied by her three young children with the intention of shopping at Franklins. (2) She entered the common area of the centre through the main entrance door on the ground floor level carrying her baby and holding another child by the hand at 15:26:52 hours. (3) The plaintiff was walking at a normal pace and was wearing non-slip sports shoes. (4) The centre floor was hard being light-coloured tiles. (5) As she walked, the plaintiff did not notice any foreign substance on the floor. (6) Just beyond the view of the video camera at the bottom of the screen between Lenard's chicken shop and the Subway outlet, and near Joe's Meat Market, the plaintiff slipped and fell to the ground onto her left side at 15:27:13 hours. (7) On falling, she released the baby and then stood up; she was assisted by other customers. (8) A man with a safety vest, probably a security guard, attended the site of the fall at 15:29:12 hours. (9) Ms Heckenberg returned to the area of the plaintiff's fall at 15:29:58 hours and positioned a yellow warning frame near a spillage at 15:30:06 hours. (10) The spillage, which had the plaintiff's footmark in it, was a liquid red-orange in colour and covered an area up to one-metre wide. (11) The plaintiff suffered injury to her left shoulder and lower back in the fall and experienced pain in those areas. (12) Another cleaner attended the site at 15:30:14 hours so that two cleaners were then present. (13) At 15:35:27 hours a security guard attends the scene. (14) At 15:36:54 hours Ms Heckenberg mops and cleans the spillage. (15) Ambulance officers attended at about 3.49 pm and transported the plaintiff and her baby to Bankstown Hospital. (16) Bankstown Hospital diagnosed the plaintiff's injury as soft tissue in nature with tenderness to the back and she was discharged with pain medication and a sling on the left shoulder. (17) With continuing left shoulder and lower back pain, the plaintiff first consulted Dr Kanawati on 3 March 2008 who diagnosed lumbar discopathy and soft tissue injuries to the left shoulder; treatment was pain medication, physiotherapy and counselling. (18) From a CT scan on 6 March 2008, Dr Larbalestier found minor posterior disc bulging at the L3/4 and L4/5 levels of the spine due to early degenerative changes; indications were of a normal left shoulder. (19) On 21 February 2008, the day before the fall, Dr de Silva found a very mild disc prolapse at the L4/5 level of the plaintiff's spine. (20) After the fall until June 2009, the plaintiff needed about half an hour per day of domestic assistance from her husband due to continuing pain from the injuries sustained in the fall and thereafter help with children was obtained from friends from time-to-time. (21) Ms Heckenberg walked over the area of the plaintiff's fall with her cleaning trolley at 15:22:38 hours looking for rubbish and spillages on the floor but no spillage was seen. (22) At 15:25:32 hours another cleaner walked over or adjacent to the area of the plaintiff's fall. (23) As the plaintiff's fall occurred at 15:27:13 hours it was four minutes and 35 seconds after Ms Heckenberg walked over the site and one minute and 41 seconds after the other cleaner traversed the area. (24) Ms Heckenberg would probably have seen the spillage if it was then there so that, at most, the spillage was present on the floor for less than five minutes before the plaintiff's fall. It may have been present for only just less than two minutes before the fall. (25) The first defendant as the owner of the Centro centre was the occupier with responsibility for its care, management and control, including as to the provision of cleaning services. (26) The second defendant contracted with the first defendant to provide cleaning services at the Centro centre according to specified terms and conditions as to the standard of cleaning and a system for remedying spillages within a 15 minute time-frame. (27) The first defendant retained to itself a degree of control over the performance of the cleaning services at the centre by requiring the second defendant under the contract to regularly report for it to approve remedial measures, to instruct the cleaning supervisor and to vary cleaning services. (28) Under the cleaning contract the second defendant was to indemnify the first defendant for any loss it incurred from the breach by an employee of the second defendant of a term of the contract and for personal injury damages due to the second defendant's negligence. Medical evidence 32 The evidence as to medical aspects of the case was not extensive. It was clear from the material submitted and certain of the reports from doctors that the plaintiff had a pre-existing condition before her fall and there was a real issue as to the severity of the injuries suffered in the subject fall with claims by her of exaggeration as to her resultant condition. It is convenient to review those aspects in turn. 33 Pre-existing medical condition: On 30 June 2004 the plaintiff presented at Bankstown Hospital with lower back pain, intermittent abdominal pain and nausea; it was recorded in the hospital notes – "lower back pain bilateral worse throughout the day, walked downstairs this evening… very painful." She was discharged into the care of her general practitioner with pain medication and physiotherapy suggested. 34 Clinical notes of Dr Hala Gobran disclosed a past history since December 2007 of obesity and varicose veins in both legs leading to worsening pain. The plaintiff consulted a surgeon, Dr Peter Burke, in June 2008 for that problem who advised that she lose weight before undergoing a varicose vein operation. Dr Gobran on 20 February 2008 examined the plaintiff and requested CT imaging of the lumbar spine – hence the report of Dr de Silva, referred to earlier, on 21 February 2008 in which an L4/5 mild disc prolapse was noted. 35 The plaintiff, as I have said, was a regular patient of various doctors at the Bankstown Medical Centre. The clinical notes disclose a number of visits by her for various problems since May 2004, mainly with Dr Duroid Haddad and Dr Husam Alkurdi, including as to low back problems at the L4/5 and L5/S1 levels radiating into the left leg, pain in the cervical spine and left elbow. Complaints of pain were recorded when the plaintiff lifted and cared for her children, complaints referred to by her as occurring after the subject accident but as to which she said there was no prior difficulty. 36 Dr Vijay Maniam, an orthopaedic surgeon, was consulted by the plaintiff on 13 February 2006 for episodes of pain in the lumbar spine after she carried some heavy objects. Dr Maniam, with the benefit of a CT scan, reported "injuries to the lumbar spine and these being in the form of protrusions at L4/5 and L5/S1." 37 Dr A Smith: The plaintiff was examined on 20 July 2009 by Dr Anthony Smith, an orthopaedic surgeon, in connection with the present proceedings for the second defendant. He took a history of earlier problems and noted that the plaintiff "developed some low back pain some time in 2005/2006… She describes the fall (the subject fall on 23 February 2008) as making the symptoms much worse, and the leg pain was not a problem prior to the fall." Dr Smith had access to the CT scan by Dr de Silva of 21 February 2008 and to a number of later radiological examinations. As to the relationship between the injuries presently claimed from the fall and the pre-existing and/or degenerative conditions, Dr Smith concluded: "She has a number of anomalies in her low back which have been symptomatic since 2005/2006. They are due to Scheuermann's disease which is a genetic abnormality and predisposes to early degenerative change, which she has at every level in her lumbar spine as well. She could have had an aggravation to that complex of anomalies with the fall. That would have recovered after a few weeks. There is no post-traumatic lesion in the lumbar spine following the fall. It is conceivable she does have some back pain from time-to-time, but it is not a result of the accident. Any back pain as a result of the accident would have settled of itself after 3 to 4 months at most. There is nothing wrong with her left shoulder at all that I can find. The fall would not have caused any rotator cuff problems… She is manufacturing the weakness in her left upper limb and the right upper limb." 38 Dr N Kanawati: First seen on 3 March 2008, eight days after the fall, Dr Kanawati , in his report of 22 April 2008 as earlier noted, diagnosed lumbar discopathy and soft tissue injuries to the left shoulder. He referred her for specialist orthopaedic treatment to Dr Mahony and prescribed analgesics, anti-inflammatory medications, physiotherapy and psychological counselling; the symptoms were said to be consistent with the injuries being sustained in the subject fall. Significantly, however, Dr Kanawati made no reference in his report and reasoning process to the plaintiff's prior condition or to the CT scan result found by Dr de Silva. 39 Dr P Larbalestier: On 6 March 2008, Dr Larbalestier performed a CT scan of the plaintiff's lumbosacral spine and an ultrasound of the left shoulder. In his report, as earlier stated, minor posterior bulging at the L3/4 and L4/5 levels and lumbosacral discs was seen with no overt protrusions but only early degenerative changes; as to the left shoulder, other than severe impingement on abduction, the findings were unremarkable with no tendonitis or other pathology. 40 Dr G Mahony: Dr Mahony, on referral from Dr Kanawati, first saw the plaintiff on 9 April 2008. In his first report of 22 April 2008, a history of the subject accident and fall was referred to; as to past health, the only references were to excision of an ovarian cyst and a caesarean procedure but with no mention of prior back or other problems. After examination, Dr Mahony expressed this initial opinion: "Mrs Alzawy does appear to have developed symptoms referable to a capsulitis of the left shoulder and a rotator cuff lesion could not be excluded. She also has symptoms referable to a low lumbar back strain with nerve root irritation radiating to the outer aspect of the left hip as well as a left gluteal bursitis." 41 As part of the treatment process, Dr Mahony referred the plaintiff for a bone scan and an MRI – they were performed by Dr Robert Dickinson on 17 April 2008, by Dr Sevan Nagaratnam on 23 April 2008 and by Dr Rony Kapoor on 6 May 2008. On reviewing the results, Dr Mahony thought the plaintiff did appear to have symptoms referable to a capsulitis of the left shoulder with evidence of a ganglion of the left arm and tendonitis in the left shoulder. Also, he saw symptoms referable to a low lumbar back strain with nerve root irritation radiating to the outer aspect of the left hip. 42 On reviewing the plaintiff on 21 November 2008, Dr Mahony confirmed his earlier opinion and advised physiotherapy. He added that the condition found was consistent with the subject fall producing such lesions. 43 In a further report of 8 December 2008, Dr Mahony assessed the plaintiff as having a 40 per cent permanent loss of efficient use of the left upper limb, 20 per cent permanent impairment of the back (including referred pain to the left hip) and 15 per cent permanent loss of efficient use of the left lower limb. 44 Overall view of the medical evidence: The competing views in this respect were stated respectively by Dr Mahony in favour of the plaintiff and by Dr Smith in favour of the defendants. The reasoning of those practitioners in reaching their opinions is to be seen, in my approach, in light of the plaintiff's pre-existing medical problems at the time of her fall in February 2008. Dr Smith drew together those aspects in a comparative exercise but Dr Mahony did not. It is plain, it seems to me, that the plaintiff had noticeable symptoms concerning her lumbar and cervical spines, with radiating pain to the left lower limb from time-to-time, pre-dating the subject fall giving rise to the very type of complaints which she made following the subject fall. True it is she maintained the symptoms were "worse" but, I think, the total picture is to be assessed in view of the pre-existing pathology as informed by the radiological evidence. I prefer the opinion of Dr Smith over that of Dr Mahony, supported as it is by the clinical notes of Bankstown Medical Centre and the view of Dr Maniam. 45 The plaintiff presented in a manner herself attributing the present problems to the fall. She was quite vague and somewhat unresponsive to questions about her pre-existing condition to the point of excluding it for present purposes. That is inconsistent with, I am satisfied, her complaints since May 2004 to doctors at the Bankstown Medical Centre, earlier visit in June 2004 to Bankstown Hospital and consultation with Dr Gobran on 20 February 2008. The alleged resultant difficulties in the plaintiff performing domestic duties were not supported by any other witness, notwithstanding her many friends she said provided such help and where a close confidant, Ms Yousif, was present at court for two days during the hearing but did not give evidence. Like Dr Smith, I consider that the plaintiff overplayed the effects on her of the fall and exaggerated to a marked degree her disabilities. Her claim of being "crippled" was not made out and only served to demonstrate the degree of exaggeration. 46 In the result, and I so find, the plaintiff suffered soft tissue injuries to her lower back and left shoulder in the fall in February 2008 at the Centro centre. Such injuries were an aggravation to her pre-existing condition – as to the back, the problems would have settled by themselves after three or four months at the most; and, as to the left shoulder, settlement would have resolved after three months at most and more likely in less than a month. Liability 47 The plaintiff's action against both defendants was brought in negligence for their failures to take reasonable care for her safety in a number of respects as earlier stated. However, as finally argued during the hearing, her counsel identified on the facts the breach of the duty of care as being a casual act of negligence in that the cleaning system apparently in place under the contract between the two defendants failed when the second defendant's cleaner omitted to see and clean the spillage of liquid; counsel added that in any event there should have been, but were not, "spot checks" for spillages in the common area of the centre given that it was a food area. 48 Counsel for the second defendant cleaning contractor emphasised that its obligations were as defined by the contract with the first defendant as owner/occupier of the Centro centre and such obligations had been satisfied. So, said counsel, there could be no relevant breach by the second defendant of its duty of care to the plaintiff. Reliance was placed by counsel for this proposition on what McColl JA (with whom Tobias JA and Young JA agreed) said in Wynn Tresidder Management v Barkho [2009] NSWCA 149 at para 61 to the effect that the cleaning contractor's duty was "circumscribed by its contract" with the occupier of the premises and "depended upon the extent to which they could exercise control and management." 49 As to the duty of the first defendant, its counsel relied on what was said to be the failure of the plaintiff to prove causation of her injuries to any conduct or omission by the cleaner, that is, a failure to show that the spillage was present for an unreasonable length of time; in other words, the system of cleaning under the contract was adequate. Here, said counsel, and although there was no provision in the contract for "spot cleaning", there was a requirement for a cleaning "loop" every 15 minutes which appeared to have been complied with. In any event, it was emphasised that acceptance of the cleaner's evidence would mean that it was only five minutes before the fall she walked over the site of the fall so that any deficiency in the system of cleaning was otiose because it was not causative of any injury to the plaintiff. If, however, the cleaner be found to have failed to see the spillage then it was a casual act of negligence by the second defendant but for which the first defendant was entitled to recover any damages in whole from the second defendant pursuant to the cleaning contracts. Counsel added, by reference to Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16, that an occupier could delegate its duty of care to an independent contractor; here, so it was submitted, the first defendant had discharged its duty of care to the plaintiff by acting reasonably. To succeed, the plaintiff had to show, which it had not, a casual act of negligence. 50 Duty of Care: I did not understand that there was any real issue that a duty of care was indeed owed by the defendants to the plaintiff. Rather, the case against any liability was argued that there had been no relevant breach of duty. 51 As to an occupier of premises, the duty is one for the occupier to take reasonable care by avoiding a foreseeable risk of injury to persons lawfully entering the premises: see Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 at 662-663 and Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 at 488. In terms, the duty is for the occupier to use reasonable care to prevent injury to the invitee from an unusual danger of which the occupier knew or ought to have known: see Brady v Girvan Bros Pty Ltd t/as Minto Mall (1986) 7 NSWLR 241 per Kirby P at 243, Priestley JA at 249 and McHugh JA at 250. As Priestley explained (at 249) as to the nature of the duty in relation to spillages in a large and busy shopping mall: "The duty arises from the following factors: the public nature of the premises; the defendant's interest in encouraging the greatest possible number of people to come there; the likelihood of spillage accidents in the common public part of the premises unless very carefully guarded against; and the general expectation which in my judgment exists in the community that the person in control of areas such as that where the plaintiff slipped will guard very carefully against such dangers. The duty upon the persons in charge to which the foregoing factors give rise is to have such a system of watching for the happening of (inter alia) spillages as will enable them to be removed promptly after their occurrence." 52 As to the position of the cleaning contractor, having in mind the statements by Hodgson JA (with whom Gyles AJA and Nicholas J agreed) in Bevillesta (at [53] – [55]), an independent contractor engaged to discharge a function, after selection by an occupier using reasonable care and skill to do so, gives rise to a relationship with persons coming on to the property sufficient to support a duty of care. As his Honour remarked (at [56]), this approach "has also been applied to cleaners engaged by occupiers to clean premises" and (at [57]) "even when a hazard is created by someone else, and the cleaner fails to deal with it, it seems clear that the cleaner can be liable for breaching a duty of care to persons coming on to the property." In that latter respect, his Honour cited Allcorp Cleaning Services Pty Ltd v Fairweather [1998] NSWCA 12; P & H Property Services Pty Ltd v Branigan [2008] NSWCA 195; and Cairns v Woolworths Ltd [2005] ACTSC 95 at [135]. 53 I would therefore accept in the present case that both defendants owed the plaintiff a duty to take reasonable care for her safety while she visited the premises. The nature and scope of that duty and compliance therewith needs to be considered. 54 Nature and scope of duty: A proper system for the cleaning of premises, such as a shopping centre, was formulated by Handley JA, with whom Priestley JA agreed, in Shoeys Pty Ltd v Allan [1991] Aust Torts Reports 81-104 in the following way: "In my opinion an occupier cannot reasonably be expected to prevent material being dropped in areas being used by the public. Nor can an occupier be expected to remove material the instant it is dropped. What can be expected is that a system will exist for routine inspection and cleaning of busy high-risk areas during the times they are in use by the public. It can also be expected that dropped material coming to the notice of staff will be reported immediately and that one or more staff members will be available to take prompt action to remove the material." 55 In the earlier case of Brady, McHugh JA observed (at 255): "When many people are using public premises, reasonable care may require a system of almost constant inspection and cleaning-up of spillages and other rubbish unless the risk of injury is slight. In that class of case an inference of negligence may arise from proof the occurrence, even though the plaintiff is unable to prove how long the spillage existed, because the occurrence gives rise to the inference that a failure to provide or maintain the required system caused the injury to the plaintiff. 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 class of case failure to prove the time between spillage and 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." 56 The present case is to be assessed in light of those observations. Counsel for the plaintiff did not challenge that there existed, pursuant to the contract between the defendants, a system for cleaning the premises, other than that "spot checks" were not catered for. What was urged by counsel was that there was no evidence the specified system was in operation so that there was a failure to obviate a casual act of negligence by the second defendant cleaning contractor for which the first defendant had responsibility also. In that respect, reliance was placed on Transfield Services (Australia) v Hall [2008] NSWCA 294 at [55]-[56] for the proposition that there had been a failure by the second defendant to take care not to avoid the continued presence of the subject spillage so that the first defendant now had a non-delegable duty to the plaintiff not to subject her to the risk which eventuated. 57 Whether a breach of duty: I do not have any doubt that the cleaning contract between the defendants established an appropriate regime for the cleaning of the premises and their presentation to the public during business hours. The video film amply demonstrated in the instant case that that system was in operation at all relevant times with two cleaners observed with their cleaning trolleys walking through the area and attending to pieces of rubbish on the floor. The evidence of Ms Heckenberg, which I accept, affirmed the operation of the cleaning system and her duty to walk around the area in a "loop" looking for rubbish and spillages on the floor to clean. 58 If there be a breach of duty in this case then, as the plaintiff's counsel put her case, there had to be a "casual act of negligence" by the failure of the system to detect and clean the spillage. Counsel identified what he called "the negligence relied upon" as the failure in the system to have "spot checks" of the condition of the floor. This approach very much relates to the comments of McHugh JA in Brady about reasonable care being "constant inspection and cleaning-up" in premises where there are many people. However, one may say that the video film here of the area at the time concerned did not disclose a very busy or people congested area but rather one of the regular passage of patrons with much space between them. I think the scene fitted more the requirement stated by Handley JA, as adopted by Priestley JA, in Shoeys of "routine inspection and cleaning of busy high-risk areas" – that was the system in operation here to remedy spillages within 15 minutes. 59 I am satisfied that the cleaning system in place of routine inspection and cleaning was reasonable. I am satisfied too that Ms Heckenberg would have seen and if so, cleaned the spillage if it had been there when she walked through the area less than five minutes before the plaintiff's fall. That she did not see any spillage makes it likely in my view, that the spillage was not then there because it was a large spillage of red-orange liquid on a light-coloured whitish floor. Also, another cleaner with his trolley was seen walking the area concerned about two minutes before the plaintiff's fall. Ms Heckenberg said she was due in her routine to return to the site of the fall in 10 minutes. As McHugh JA said in Brady, I think reasonable care in this case required "no more that that the premises be inspected and cleaned at regular intervals." That was the position here so that, as his Honour concluded, "the accident may have occurred despite the existence of the appropriate system" – therefore, causation was not established. 60 I find there was no casual act of negligence by the second defendant; the first defendant had a proper cleaning system in place; and at the relevant time of the fall the system was in operation. For completeness, it may be added that the plaintiff did not see the spillage before she fell, as she walked carrying her baby, and that was so despite the coloured spillage over a reasonably large area on a light coloured floor. In that situation, I think contributory negligence would be a most significant component. 61 The defendants did not breach their duty of care to the plaintiff and so were not negligent. They are entitled to verdicts against her accordingly. Damages 62 It is appropriate to assess the quantum of any damages otherwise due to the plaintiff if liability in the defendants had been made out. I will do so as shortly as I can. The plaintiff claimed non-economic loss, out-of-pocket expenses and gratuitous domestic care. 63 Non-economic loss: An assessment for the plaintiff of 22 to 25 per cent of a most extreme case was claimed. The second defendant, supported by the first defendant, submitted it was 10 per cent at most so that the 15 per cent threshold under s 16(2) of the Civil Liability Act 2002 was not reached to attract an award of damages. 64 On the medical evidence findings, the plaintiff suffered soft tissue injuries to the left shoulder and lower back. However, in light of Dr Smith's opinion those injuries resolved well within a three-month period with no continuing problems. In addition, the plaintiff's long standing pre-existing condition, particularly the lower back, neck and leg problems may, in my view, properly be seen to be the reason for her continuing difficulties. 65 I assess non-economic loss referable to the subject accident at about 8 to 10 per cent of a most extreme case. This is insufficient to attract an award. 66 Out-of-pocket expense: A claim of $2,914.64 for the past was made to cover the expenses of Dr Kanawati and Dr Mahony plus radiological investigations; a buffer of $5,000.00 was sought for the future. The mathematics of those expenses was accepted by the defendants but it was said they should be limited to those for Dr Kanawati and Dr Mahony. 67 I would allow the amount claimed of $2,914.64 for the past but no amount for the future as the injuries from the fall, on Dr Smith's evidence, have ceased. 68 Domestic care: A claim was made for the past of seven hours per week at $22.62 per hour for the period of 64 weeks' care given by the plaintiff's husband in the total amount of $10,305.00. No claim was made for the future. The defendants submitted that this claim made "no sense" and should be declined. 69 I am quite unable on the evidence to allow any amount for gratuitous domestic care. At most, the plaintiff spoke of about three and a half hours per week of assistance provided by her husband after the fall but otherwise she was quite vague about the period, services provided and by whom. In any event, the amount of care does not meet the statutory thresholds in s 15(3) of the Civil Liability Act of six hours per week for at least six months. I would make no award. Conclusions and orders 70 The plaintiff has not established negligence against either of the defendants in respect of her fall in the Centro centre on 23 February 2008. Contributory negligence was a most significant factor. The first defendant's cross-claim against the second defendant does not arise and should be dismissed. If liability had been established, any award would have been limited to $2,914.64 for past out-of-pocket expenses less an amount for contributory negligence so as to make any award de minimis. Each defendant is entitled to a verdict against the plaintiff. I will hear the parties on costs before making final orders. COUNSEL ADDRESSED ON COSTS 71 In the determination of this matter I make the following orders - (1) Verdict and Judgment for the first defendant against the plaintiff on the action. (2) Verdict and Judgment for the second defendant against the plaintiff on the action. (3) Cross-claim by the first defendant against the second defendant is dismissed. (4) Plaintiff to pay the first defendant's costs of the action to 7 January 2009 on the ordinary basis and thereafter from 8 January 2009 on an indemnity basis. (5) Plaintiff to pay the second defendant's costs of the action to 28 August 2009 on the ordinary basis and thereafter from 29 August 2009 on an indemnity basis. (6) Each party to bear its own costs of the cross-claim. 23/11/2009 - typographical errors - Paragraph(s) Cover sheet, para 52 and orders DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.