New South Wales Court of Appeal CITATION: P & H Property Service Pty Ltd v Branigan; Westfield Shopping Centre Management Co Pty Ltd v Branigan [2008] NSWCA 195 HEARING DATE(S): 29 May 2008 JUDGMENT DATE: 11 August 2008 JUDGMENT OF: Hodgson JA at 1; Bell JA at 20; Rein J at 21 (1) Leave to amend the Notice of Appeal in the Westfield appeal refused. (2) Appeal of P & H allowed (3) Judgment and verdict against P & H set aside DECISION: (4) Verdict and judgment for P & H (5) Appeal of Westfield dismissed (6) Cross appeal dismissed (7) Westfield to pay the Respondent's costs of appeal (8) Westfield to pay any costs of P & H of the proceedings not otherwise borne by Westfield CATCHWORDS: Third party injured as a result of alleged breach of duty by cleaner - Contractual obligation of cleaner considered - Quantum of damages - Consideration of pre-existing back condition, and capacity - Percentage of a most extreme case and earning capacity considered - Bullock order for costs LEGISLATION CITED: Workers Compensation Act 1987 Civil Liability Act 2002 CATEGORY: Principal judgment Rose v Abbey Orchard Property Investments Pty Limited [1987] Australian Torts Reports 80-121 Kocis v S E Dickens Pty Limited [1998] 3 VR 408 CASES CITED: Jones v Dunkel (1959) 101 CLR 368 Bullock v London Omnibus Co [1907] 1KB 269 Gould v Vaggelas (1985) 157 CLR 215 P & H Property Service Pty Ltd PARTIES: Westfield Shopping Centre Management Pty Ltd Nathan Branigan FILE NUMBER(S): CA 40570/07; 40604/07 COUNSEL: Davis SC (with M. White) [Westfield and P & H Property Services] Joseph SC (with P. Rickard) SOLICITORS: McCabe Terrill Lawyers Maurice Blackburn & Cashman LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 4452/04 LOWER COURT JUDICIAL OFFICER: Judge Goldring IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40570/07 CA 40604/07 DC 4452/04 Hodgson JA Bell JA Rein J Date of Hearing: 29 May 2008 Date of Judgment: 11 August 2008 P & H PROPERTY SERVICE PTY LTD V BRANIGAN WESTFIELD SHOPPING CENTRE MANAGEMENT CO PTY LTD V BRANIGAN 1 HODGSON JA: The circumstances giving rise to this appeal and the issues they raise are set out in the judgment of Rein J, and I will not repeat them. 2 However, I have reached a different view concerning the appeal of P & H. 3 As regards the contractual obligations of P & H in relation to the area where the accident occurred, they had the following elements: (1) to clean once a day; (2) to clean spills immediately on awareness; (3) to keep docks clean at all times. 4 I agree with Rein J that the third element does not impose an obligation akin to a guarantee; but in my opinion it does, particularly when combined with the second element, impose an obligation to conduct inspections for spills at reasonable intervals, thus requiring inspections more than once a day. 5 In my opinion, the General Incident Report Form (Exhibit M, Blue 86-101) is a business record prepared with inputs from Westfield personnel and P & H personnel, which evidences, against P & H as well as Westfield, that there was an accepted routine for inspections of the relevant area by P & H at 40-minute intervals. In the absence of evidence to the contrary from either P & H or Westfield, I would infer that this was accepted in common by P & H and by Westfield as being reasonable in discharge of P & H's obligations referred to in the previous paragraph; and I would infer that, by reason of this acceptance, P & H was contractually bound to carry out inspections at those intervals. This in turn is relevant to what the duty of care owed by P & H and Westfield to Mr Branigan required. 6 Though this was accepted as a reasonable practice, it is not clear whether or not it was carried out. The primary judge found (Judgment [57]) that inspections were not even carried out daily. In view of my other reasons, it is not necessary to consider whether this finding was in error. 7 The primary judge also found: (1) the requirement of daily cleaning was insufficient (Judgment [55]). (2) the area was not in fact cleaned daily (Judgment [57]). (3) Westfield was on notice of this because of complaints (Judgment [53]). 8 All these findings were in my opinion justified; and they showed that there were breaches of a duty of care to persons in the position of Mr Branigan by both P & H and Westfield. However, this would not be sufficient to establish that Mr Branigan's injuries were caused by a breach of a duty of care by either P & H or Westfield. 9 Exhibit M (at Blue 101) is evidence that there was an inspection by a P & H employee, Mare Ilovski, thirty-five minutes before the accident, that is, at about 8.55am. Mr Davies SC for P & H and Westfield submitted that if this were not true, it would involve a deliberate falsehood in the report, which was unlikely. He submitted that, even in the absence of oral evidence from P & H or Westfield, the Court should not infer a deliberate falsehood of that kind. 10 I accept that submission. However, Exhibit M does not make any assertion about what was observed on that inspection, or what was done in consequence of anything that may have been observed. It is possible that it was observed that the area was clean. However, it is also possible that Mr Ilovski observed the cardboard on which Mr Branigan fell, but not the oil it covered; or that he observed both the cardboard and the oil. In either of those cases, it is possible that Mr Ilovski did not take any action, or that he merely noted what he observed as a matter for future action. It might be inferred that, if Mr Ilovski had seen the cardboard and/or the oil, he would have ensured it was attended to immediately (so that it is probable he did not see the cardboard and/or the oil and thus that they were not there). However, Exhibit M contains no assertions to that effect, and there is no question of any deliberate falsehood if it were the case that Mr Ilovski observed the cardboard and/or the oil and did nothing about it. In the absence of oral evidence from either P & H or Westfield, I would not be prepared to infer that the cardboard and the oil were not there when Mr Ilovski made his inspection at about 8.55 am. 11 Quite apart from what follows from Exhibit M, on the basis that the problem arose between 7.00 am and 9.30 am, as found by the primary judge, and on the basis that it could have arisen at any time within this period, it follows that, other things being equal, it is substantially more likely that it arose in the 115 minutes between 7.00 am and 8.55 am than in the thirty-five minutes between 8.55 am and 9.30 am. 12 This reasoning accords with the approach taken by the New South Wales Court of Appeal in Rose v Abbey Orchard Property Investments Pty Limited [1987] Australian Torts Reports 80-121. 13 It has been suggested that this type of reasoning was disapproved by the Victorian Court of Appeal in Kocis v S E Dickens Pty Limited [1998] 3 VR 408. However, although Philips JA in that case expressed himself as having some difficulty with the reasoning in Rose, in my opinion, that reasoning was substantially endorsed (and in my opinion correctly so) in the judgment of Hayne JA at 430-432: "In Rose v Abbey Orchard Property Investment Pty Ltd [1987] Aust. Torts Reps. 68925 the New South Wales Court of Appeal said (at 68929): "In many, if not most, 'spillage' cases the plaintiff will fail to prove a causal connection between breach and damage unless he establishes how long the substance had been on the premises. But in some cases it may be possible to establish on the probabilities that a proper system would have eliminated the risk of injury even though it is not possible to determine how long the substance had been present." The central question in the present case is whether there was sufficient evidence from which a jury could conclude, on the probabilities, that the defendant's failure to follow a reasonable system of cleaning caused the plaintiff's damage. The Court held in Rose's Case that a proper system of inspection of the premises concerned would have required inspection of the floor intervals of not more than 20 minutes. It followed that if the oil upon which the plaintiff slipped was present before the last of those inspections should have taken place, the implementation of that system would have led to the removal of the oil. The Court went on to say that: "The oil upon which the plaintiff slipped may have fallen at any time during the hour before her accident. If it was spilled in the period between 2.50pm and the time of the accident, a proper system of inspection could not have prevented the accident. But, other things being equal, the probabilities are twice as great that the oil was spilled in the 40-minute period between the last inspection and 2.50pm rather than in the 20-minute period after 2.50pm. The evidence contained no suggestion that the use of the parking station increased or changed in the 20-minute period immediately before the accident. Accordingly, we think that as a matter of probability the oil was spilled before 2.50pm and not after that time. To so find is not to engage in speculation but to make a finding in accordance with probability theory. It was submitted on behalf of the respondent that the "probability theory" referred to in Rose's Case was too mechanistic an approach to be adopted in cases of this kind. It was submitted further that it was an approach that, at least, stood apart from the approach adopted in other cases. In particular, it was submitted that the approach adopted by the Court in Rose's Case was to be contrasted with the different approaches taken by the members of the Court of Appeal in Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241. … Now it may be accepted that the judgments reflect some differences in approach to the problem presented in that case. But in my view none of the judgments in Brady v Girvan is to be taken as stating any principle more specific than that it is for the plaintiff to show that it is more probable than not that the plaintiff's injury were cause by the defendant's breach of duty. Nor are the judgments in Brady v Girvan (or, for that matter, the judgment in Rose's Case) to be taken as stating some special principle of law that is to be applied in slipping cases. The question of causation is a question of fact. If, as McHugh, JA considered to be the case in Brady v Girvan , the evidence reveals how long the substance concerned had been on the floor, the question becomes whether reasonable care would have led to its removal. But if it is not possible to say when the substance was dropped, it by no means follows that the evidence does not permit a conclusion that more probably than not the defendant's breach of duty caused the plaintiff's damage. The point is well illustrated by facts that are different in degree (but not kind) from those considered in Rose's Case. Let it be assumed that a reasonable occupier of certain premises would inspect the premises for spillages once each hour. Let it further be assumed that the evidence demonstrates that the occupier made no inspection of the premises at all on the day on which the plaintiff slipped and fell eight hours after the premises opened for business. If that is all that is known, it is of course possible that the substance upon which the plaintiff fell was dropped one minute or 59 minutes before the fall occurred but what are the probabilities? In my view it is open on those facts to conclude that it is more probable that the spillage occurred in the first seven hours of trading than it is that it occurred in the last hour. It would follow that had a proper system of inspection been implemented, it is more probable than not that the spillage would have been detected and removed. Implicit in the example I have given is that there is no basis for concluding that the spillage is more likely to have occurred at one particular time (or at some particular times) rather than others. That is, the example assumes an undifferentiated period of time in which the spillage may have occurred. That is why it would be properly condemned as "speculation" to say that it is more probable than not that the spillage occurred at a particular time in that period; but that is not the chain of reasoning that is suggested. Rather, it is suggested that common sense dictates that where there is nothing pointing to a particular time as the time of occurrence, the longer the time under consideration, the more likely it is that the spillage occurred during that time than in a different, shorter period. Such an analysis does not depend upon considerations of "increased risk" or "exposure to risk". In my opinion to speak in terms of increased risk or increased exposure to risk may serve only to obscure the fundamental factual question whether the defendant's negligence caused the plaintiff's damage. It may do that because it may distract attention from exactly what is meant by there being an increased risk or increased exposure to risk. The conclusion that there is an increase in risk or exposure to risk in cases of the kind I have described depends upon an earlier (unstated) conclusion that as time passes the probability that something has been spilled on the floor rises. Further, to analyse the matter in terms of increased risk or exposure to risk is apt to mislead. To return to the example I gave earlier, it is clear that the longer the premises are not inspected, that is, the more inspections that should have been, but were not, carried out, the greater the risk that something has been spilled on the floor which should have been cleaned up. The risk of someone slipping at the premises has increased. But it is still necessary to ask whether the breach of duty has caused the damage. Can it be said that the failure to clean caused the plaintiff to slip? If the evidence permitted the conclusion that it was more probable than not that the plaintiff fell upon something that had been dropped no more than one minute before the accident, the defendant's failure to clean the premises would not have caused the plaintiff's loss, however much it could be said that the defendant's failures had increased the risk to persons entering the premises. As I have said earlier, the question of causation is a question of fact requiring close attention to the facts; it is not a question which requires or permits the application of any special or different principle of law in slipping cases". 14 What is required is reasonable satisfaction, on the balance of probabilities, that negligence of a defendant caused the injury to the plaintiff. This does not in general depend upon mechanistic mathematical calculations. However, mathematical calculations of probability are, in my opinion, relevant, and sometimes may even be determinative. In the present case, the circumstance that, other things being equal, the spill was substantially more likely to have occurred prior to 8.55 am than after 8.55 am, is relevant to the question whether the proved negligence of both P & H and Westfield in relation to the cleaning of the area caused the danger which in turn caused Mr Branigan's fall. 15 In the absence of any oral evidence from P & H or Westfield or any explanation for this lack of evidence, and having regard to the primary judge's finding that the area was not even cleaned daily, I am not prepared to give any weight at all to any suggestion from the incident report that the danger was not there thirty-five minutes before the accident, when the area was inspected; and I would infer, on the balance of probabilities, the danger was there then and that the carrying out of reasonable procedures by P & H would have averted this accident. 16 On that basis, I would dismiss P & H's appeal on liability. In those circumstances, Mr Davies does not press Westfield's application for leave to appeal on liability. In any event, in circumstances where Westfield was on notice that P & H was not performing satisfactorily, this appeal, in my opinion, would fail. 17 I agree with Rein J, for the reasons he gives, that the appeal and cross-appeal concerning damages should be dismissed. 18 I would not make any order concerning the costs of the cross-appeal, which in my opinion did not raise any severable issue that substantially increased the costs. 19 For those reasons, I would propose the following orders: (1) Appeal of P & H and Westfield dismissed with costs. (2) Cross-appeal dismissed. 20 BELL JA: I agree with Rein J. 21 REIN J: The Appellant, P & H Property Service Pty Ltd ("P & H"), now known as Greenflower Pty Ltd, conducted cleaning services for Westfield Shopping Centre Management Co Pty Ltd ("Westfield") at a Westfield Shopping Centre at Liverpool ("the Centre"). 22 On 24 October 2001 the Respondent, Mr Branigan, slipped on a piece of cardboard near the back of Joes Meats, a shop at the Centre. He was employed by Joes Meats as a butcher and had left the butcher shop to make a call to his fiancé. The cardboard had been placed over an oil or grease spill on the floor. Mr Branigan did not fall to the floor, but strained his back as he slipped and sought to steady himself, with significant consequences it was found. 23 The learned Trial Judge found Westfield and P & H liable to Mr Branigan and awarded Mr Branigan damages of $588,125 (after allowing a deduction of $7,700 to take into account s 151Z of the Workers Compensation Act 1987. 24 Both P & H and Westfield have appealed from the decision but Westfield did not appeal in respect of liability. Both Appellants appeal in respect of the quantum of damages but in a limited respect. The Respondent has filed a Cross Appeal in relation to two aspects of his Honour's assessment of damages. 25 When the matter was called on (on 29 May 2008) Mr Davies SC (with Mr M White of Counsel) announced his appearance for both Westfield and P & H. He sought leave to amend the Westfield Notice of Appeal to include an appeal on liability. Mr Joseph SC who appeared with Mr Rickards of Counsel, opposed the grant of leave for reasons to which I shall refer. 26 Mr Davies explained that the reason for the altered approach to the Appeal by Westfield was a realisation that if P & H succeeded on the appeal on the basis that it had inspected and cleaned the area adequately, then that would not sit comfortably with liability having been found in Westfield: see T125.34, 29 May 2008. 27 Mr Joseph pointed out that Westfield and P & H had needed to obtain consent of his client or leave of the Court to file their appeals as they had failed to file the appeal within the time specified in the rules. The Respondent had consented to Westfield's appeal being filed late because it raised only a question of quantum but had resisted P & H's appeal because it had involved liability. P & H had sought and obtained leave from the Court over the opposition of the Respondent. There was no dispute as to these facts recounted by Mr Joseph and he submitted that Westfield having obtained leave by consent on a particular basis it was too late to seek to now expand its appeal. 28 The second ground of opposition was based on the fact that should the leave sought now be granted, the Respondent would wish to file a Notice of Contention which would involve new material. 29 Mr Davies, in response to the first point, argued that Westfield and P & H were only one day late in filing their appeal and that had Westfield sought to appeal on liability, it too would have obtained leave just as P & H had obtained it. 30 The Court indicated that it would defer a decision on the question of leave to amend. The Court made orders for the filing of submissions in relation to leave to amend being granted, allowing the Respondent to respond and also to set out the matters it would contend would additionally justify the conclusions of the Trial Judge relating to Westfield. The latest of these submissions, in accordance with these directions, were filed on 13 June 2008. 31 I shall return to the question of leave after dealing with the issue of P & H's liability. Liability of P & H 32 The learned trial judge found Westfield and P & H liable to Mr Branigan, and to understand the nature of the arguments advanced by P & H it is necessary to say more about the location of the incident. 33 There is no dispute that Mr Branigan suffered the injury in an area close to an oil sump or grease trap adjacent to a chicken shop known as Zisti's Chicken Shop. Zisti's is one of the businesses conducted in the Mall at the Shopping Centre. The area of the injury was immediately adjacent to a ramp which led down to the car park and either formed part of a loading dock known as "Loading Dock No 6" or was close to it. There is no dispute that cardboard had been placed on oil or grease and that Mr Branigan had slipped (but not fallen) as the cardboard moved over the oil or grease on the floor as he walked on it: see Blue Book pages 58, 84-85 and 92 and the Trial Judge found that there was oil or grease underneath the cardboard where the slip occurred. 34 The Trial Judge held that Westfield was the manager and occupier of the Centre (Orange Book page 62 K) and "was responsible for its safety, in relation to members of the public who might enter that area of the shopping Centre". 35 The Trial Judge held that the slip occurred "in an area adjacent to loading dock No 6, which runs behind a number of shops in the fresh food court at Westfield": Red Book page 58 R-T. 36 The Trial Judge found that the area in which the injury occurred was not part of the loading dock: Red Book, p 68W 37 The Trial Judge identified a difficulty with the cleaning contract entered into by Westfield and P & H. The contract, he held, called for loading docks to be cleaned every day. Other areas, he held, required inspection every 20 minutes and cleaning as required: see Red Book page 71 F-I. He thought that the contract was ambiguous on whether the area of the accident was part of the loading dock or not: Red Book, page 71 C, page 81 J, and hence thought that there was ambiguity as to who was responsible for cleaning it because the contract stated that loading docks were the responsibility of Visy Ltd. At [44] of his judgment he said: "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 [Westfield] had not delegated its responsibility to clean this area at all". 38 The Trial Judge found that Westfield owed a duty of care to Mr Branigan to provide a proper system of cleaning: Red Book page 71 N-P, and that it had breached that duty "because 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": Red Book page 71 P. 39 He found that the area of the accident was not, in October 2001, cleaned daily: [43] of the judgment at Red Book p 70. He found that it ought to have been cleaned more frequently and said that if it was not designated as a loading dock P & H was obliged to inspect it every 20 minutes and clean it as required: [56] at Red Book p 74. At [71], Red Book p 79, the Trial Judge said: "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 inspect. I infer that there was a breach of this duty". 40 He said at Orange Book, p 82: "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 arrangement for cleaning the area is, in my view, the major cause of the hazard, and P & H 25% responsible." 41 There are five bases of attack by P & H on the judgment in respect of liability: (1) The finding that the slip occurred in an area that was not a loading dock was said to be inconsistent with the evidence and approach of the parties. The plaintiff had said that the incident occurred in the loading dock: see Blue Book, p 97 (2) The requirement for inspection at 20-minute intervals was for the public mall area, and not for back corridors. Back corridors, it was submitted, were dealt with in the contract in the same manner as loading docks and hence required cleaning only once a day. (3) The Trial Judge erred in treating the contract as ambiguous and not construing it. (4) The contract, if properly construed, did not impose an obligation on P & H to clean the area where the slip occurred more than once a day. (5) The Trial Judge spoke about a need to inspect every 20 minutes (Red Book at [56]) and to a requirement for cleaning less frequently than 20 minutes (at [71]), but he never determined in conformity with the latter conclusion with what frequency the inspections should have been carried out, or explained what he meant by 'as required'. (6) A document tendered by the plaintiff, being a report of the incident, showed a frequency of inspection of 40 minutes for the area in question, but also showed that there had been an inspection 35 minutes earlier. The document, Exhibit "M", Blue Book, pp 86-97, was completed and signed by a Westfield employee and was signed by another Westfield employee. 42 Dealing with [41](3) first, with respect, it appears to me that there is an inconsistency in his Honour's conclusion set out at [39] and [40] above. Either P & H had a contractual obligation to clean the area of the accident or it did not. If the contract was ambiguous then the ambiguity needed to be resolved. If P & H was not contractually required to clean that area (or the Court is not satisfied on the balance of probabilities that it was) then in the absence of some general duty outside the contract, P & H had no obligation to Westfield and no tortious liability to the Plaintiff unless it created the hazard. P & H called no evidence to suggest that its failure to clean was due to an ambiguity. If it was contractually bound to clean then the frequency with which it needed to inspect and clean needs to be determined and a finding made as to the period of time, on the balance of probabilities, that the hazard was on the floor. 43 The accident occurred around 9.30am. The plaintiff had walked through the area at 7.00am and noticed nothing. It was agreed at the trial (see Black Book p 263) and on the appeal, that the grease and cardboard it could be inferred, must have been placed where they were between 7.00am and 9.30am. 44 In my view the Trial Judge had to determine whether, contractually, P & H was obliged to clean the area in question, and if so, with what frequency. It does not matter in this context whether the contract was with Westfield or Visy. When regard is had to all of the documents that formed part of the contract between P & H and Westfield it is clear that P & H did have contractual liability to clean the area in which the accident occurred. If there was any dispute at the trial, there was none in this Court. The pages of the document were, by error on the part of the Appellant's solicitors or someone acting on their behalf, not all included in the Appeal Book, and we have had the document handed up marked as Exhibit A on the appeal. 45 The question then is, as a matter of construction of that contract, with what frequency was P & H required to inspect and clean the area in which the slip occurred. 46 The loading bays and corridors are dealt with specifically in a section headed "2 Cleaning Specifications" which the Trial Judge held was part of the contract: see [42], Red Book, p 70. It provides under the heading "Loading Docks and Ramps, Service Corridors, Fire Stairs", "dock and service corridor floors to be hosed as required daily". 47 There is a provision dealing with 'spills' in the "cleaning specifications" stating at 3.1: "all spills to be removed immediately upon awareness". 48 Mr Joseph SC argued that the following provisions were also relevant: "3.4 Common Area Common mall area is defined as the entire three-dimensional area confined within the internal space of the centre. For this purpose in includes floors, walls, ceilings fittings and fixtures, lifts and escalators, furniture, mall advertising and promotional units enclosed within the space. Furthermore for the definition of common area, Food Courts are to be included as per clause 3.5 and mall entries are to be included as per clause 3.6 of the Cleaning Specification. All common area is to be kept clean and dry at all times. Floors must be presented with a high shine at all times and within the slip coefficient mandated in the Australian Standards. Every square metre of mall floor must be inspected every 20 minutes or more frequently where identified by either the Centre Manager of the Contractor"; and "3.8 Loading docks Loading dock cleanliness and waste handling are the subject of a national contract with Visy Recycling. Under this contract, Visy is responsible to ensure the safe, efficient handling of solid waste and to ensure that the standard of cleanliness of all dock areas in maintained as outlined in this Specification. Visy will conduct negotiations with incumbent Westfield Contractors responsible for both waste management and dock cleaning. The objective of these negotiations will be to transfer the invoicing for the above services from Westfield to Visy. Where the Centre's Cleaning Contractor agrees with Visy to provide any or all of the above eservices, then that Cleaning Contractor also agrees to maintain the standard of dock cleanliness specified in this document. Docks must be kept clean at all times. Drains to be clear to maintain flow. Dock areas are to be kept clear of bird nests/waste/rodents. Recognising that water is required to clean docks, a clean dock is defined as one free from visible dirt, dust, litter, graffiti, grime, effluent and odour." 49 I do not think 3.4 has any relevance since the area in question was not a mall area. The loading dock is expressed to be the subject of a separate contract with Visy, but in fact there was a contract between Westfield and P & H which dealt with loading docks, and service corridors. 50 Clause 3.8 itself does not impose any liability on P & H for the loading docks, unless regard is had to the whole of Exhibit A, as clause 3.8 refers to a contract between Westfield and Visy. Mr Joseph argued that pages 12 to 22 of Exhibit A were not admitted as part of the contract between Westfield and P & H (see T23-24, 29/05/08), but he accepted that the Trial Judge had had regard to it as against Westfield. As I have noted, the Trial Judge at [42] of his judgment did treat those pages as part of the contract. If he was not correct in so doing, (and P & H does not assert that he was and the respondent has not asserted by any Notice of Contention that he was) then P & H had no liability to clean the areas referred to in that cleaning specification. I proceed on the basis that those pages did form part of the contract. 51 It appears that no reliance had been placed at the trial on clause 3.8's reference to loading docks "must be kept clean at all times" as a basis for liability against P & H (see pp 222 S – 223 M, Black Book) and in this Court, there was no Notice of Contention filed asserting that his Honour should have found against P & H on this basis and that portion of the clause was mentioned in oral submissions but fleetingly. Once again, either there was imposed on P & H by Exhibit A an obligation to clean loading docks and service corridors, or there was not. If there was, then it can only be by the whole of Exhibit A, including those later pages, which pages explain or amplify what the cleaning requirement is for specified areas, and qualify what is said in clause 3.8. Clause 3.8 itself explains that "water is required to clean docks" and when read together with the express requirement that spills were to be cleaned "immediately upon awareness" and the later pages of Exhibit A, I think it is clear that the words "must be kept clean at all times" did not impose on P & H an obligation akin to a guarantee. If, contrary to my view, it did impose such a contractual obligation it would be necessary to consider whether such an obligation could be relied on to impose liability on P & H in favour of a third party, a matter which need not be considered given the absence of any Notice of Contention asserting that the Trial Judge erred in not concluding that P & H was liable on this basis. 52 There was no suggestion that P & H's duty of care to the plaintiff was more extensive than the contractual duty owed to Westfield. 53 In my view the contract required cleaning of the corridor or area in which the injury occurred once a day unless notice of a spill was given to P & H. No precise time for cleaning was specified, other than a spill of which P & H had been made aware. It does not matter whether the location is treated as a service corridor or a part of a loading dock. It is clearly not a mall or part of a mall. It appears that Westfield took the view that cleaning of the corridor was required on a more frequent basis (see Blue Book, p 101) but that document was not a document of P & H and was not a contractual document governing the relationship between P & H and Westfield. 54 Proceeding then on the basis that the contract required cleaning once a day, the question is, did P & H breach that obligation? 55 Neither P & H nor Westfield called evidence. 56 The Plaintiff's evidence established that there was a lax attitude to cleaning in the area: (1) Black Book, pp 137-141 (Mr Solomons) (2) Black Book, pp 192-193 (Mr Maropoulos); but in relation to the failure to clean oil on the ground, only Mr Solomons said he saw oil on the ground on other occasions in the area in question and he did not say he had called about an oil spill which had not been cleaned, and although he did say oil was spilled on the ground, he did not say he saw oil on the floor for any length of time. 57 The plaintiff tendered the incident report. It pointed to a system of inspection every 40 minutes, and an inspection 35 minutes prior to the accident: see Blue Book, p 101. The document was helpful to the plaintiff's case based on a requirement for inspection every 20 minutes since it demonstrated that Westfield did not have in place such a system but detrimental if a less frequent regime was required. The question arises as to the significance of the document as against P & H, when cleaning required of it by contract was daily cleaning. There was, beyond that document, no evidence that P & H had itself inspected the area 35 minutes before and no evidence of what cleaning or inspections had been performed by P & H that day or on any other day. The submissions made by Mr White, Counsel for both Westfield and P & H, at the District Court hearing appeared to place no reliance on the document in P & H's case: see Black Book, pp 263-264, and limited reliance in the case of Westfield at p 264 I-K. 58 There was no evidence of what the person who made the inspection had observed and what, if anything, had been done. There was no evidence of who had placed the cardboard on the floor, nor any evidence by P & H or Westfield staff that it had not been placed by any of them. 59 As mentioned, there was a finding by the Trial Judge that there was not even daily cleaning of the area where the fall occurred. That finding, if correct, establishes that P & H was in breach of its contract from time to time prior to the day in question. The Trial Judge however did not state that he rejected the evidence contained in the incident report nor explain why he had done so but as I have noted, it was not put to him on behalf of P & H that the document established that P & H had in fact inspected 35 minutes before the accident. Nor was it put to the Trial Judge on behalf of the plaintiff that it could be inferred that the person making the inspection on behalf of P & H or Westfield had observed oil or grease or cardboard over the floor and had done nothing about it, and indeed at pp 263 Y – 264 C, his Honour indicated acceptance of the proposition that there was no evidence that either defendant was notified of the spill. 60 Even accepting that his Honour was entitled to proceed on the basis that there was no inspection 35 minutes before the incident by P & H (due to the absence of submissions to that effect or on the basis of other more general evidence or a lack of cleaning on earlier occasions coupled with a Jones v Dunkel inference (see Jones v Dunkel (1959) 101 CLR 368) arising from the failure of P & H to call any evidence), it does not follow that P & H is liable to the Respondent. 61 P & H had no contractual obligation to clean between 7.00am and 9.30am, and its failure to clean prior to 7.00am on the day in question was not causative of loss to the Respondent. Its failure to clean between 7.00am and 9.30am was not a breach of contract. It follows that no breach of contract causally connected with the accident is demonstrated and that P & H is not liable to the plaintiff in respect of his injury. 62 It follows that the judgment against P & H should be set aside but not on the basis that P & H did inspect and clean the area 35 minutes before the accident, but because it was not contractually bound to do so. The concern that was expressed by Mr Davis that a conclusion of no liability in P & H because it had inspected 35 minutes before the accident would be logically inconsistent with the Trial Judge's determination that Westfield was liable does not arise and given the limited basis upon which leave to amend the Notice of Appeal was put, I would refuse such leave being given. It is not necessary to consider whether leave ought be granted where an appellant has adopted a stance, obtained agreement of the Respondent on the basis of that stance, and then seeks to resile, nor whether, if leave were granted, the conclusion that his Honour reached that Westfield was liable could be supported on a different basis to that expressed in the judgment whether by recourse to Exhibit M or otherwise. The Visy Contract 63 The Respondent contends, by a Notice of Contention, that the Visy contract required P & H to clean the loading dock and that his Honour should have found that P & H was in breach of its contractual duties to Visy and of a duty of care owed to the Respondent. Although it appears that Westfield intended to award cleaning of the loading docks to Visy and there is evidence in the form of an invoice from P & H to Visy, Blue Book p 57, there is also evidence that Westfield retained P & H to clean the loading docks: see "2 Cleaning Specification" part of Exhibit A. It was not suggested that the contractual terms as between P & H and Visy were any different to those that were contained in Exhibit A, so it makes no difference to whom P & H was contractually bound, since no breach of that duty has been established. Quantum 64 Both P & H and Westfield attack the Trial Judge's conclusion on past and future earning loss. The Trial Judge awarded $144,840 for past loss of earnings, and $218.168.00 (allowing for a discount of 25% to allow for increased vicissitudes) plus $19,635.00 (a total of $237,803). 65 The factual findings made by the Trial Judge (and not challenged on the appeal) are: (1) that the Appellant at the time of the accident suffered from a condition of the spine known as a 'pars defect', which predisposed him to back injury: see Red Book, page 75 G (2) he had suffered from some symptoms consequent upon that condition on several occasions prior to 24 October 2001 but they were not major: see Red Book, page 75 H-D (3) that he had been working principally as a "back butcher" i.e. a butcher involved in heaving lifting and cutting of carcasses (4) that the October incident exacerbated the pre-existing condition of the Respondent's back: see Red Book, page 76 I-J (5) that after the incident he spent eight weeks off work and returned on light duties. Gradually he returned to full duties as a butcher, in particular as a "back butcher". In February 2003 he opened his own butchery and he was the only person working in that business initially but later employed another butcher to do the heavy work: see Red Book, page 77 F. That business failed. (6) that in October 2003 he was diagnosed with spondylethesis and in February 2004 a disc fusion at L5/S1 was performed by Dr Bentivoglio: see Red Book, page 77 T (7) that the operation was partially successful, but the Respondent is likely to suffer back pain for the rest of his life: Red Book, pp 77-78 (8) The Respondent suffered severe back pain following and as a result of the October 2001 incident: see Red Book, page 78 (9) It was more probable than not that the pars condition would not have led to incapacity for work until after the date of judgment: see Red Book, page 87 H (10) the Respondent had turned to alcohol and drugs since the October 2001 incident (11) the Respondent suffers from depression as a result of the October 2001 incident: see Red Book, page 86 H & N and page 89 L (12) the combination of the Respondent's physical and mental conditions mean he is "totally unfit" for work, and has been since 28 October 2003 (13) that there is a realistic prospect of beneficial psychiatric treatment with the consequential prospect of the Respondent being gainfully employed, although not as a "back butcher". 66 The Appellants assert that the finding of total incapacity since October 2003 together with the finding that the prospect that the pars defect would not cause a problem before the date of judgment is illogical. Since October 2003 the respondent has not worked and unless his failure to work was not on account of a physical and or psychological condition caused by the accident, then he is entitled to compensation for all past loss subject only to the question of whether an allowance should be made for the prospect of incapacity unrelated to the slip. To reject any loss of earnings due to the pre-existing condition prior to judgment, the Trial Judge must have concluded that there was limited prospect of that occurring. I think a view could be taken that a worsening of the hip, absent the accident, was more likely to occur later rather than earlier and to select the judgment date as a convenient date from which to commence the factored risk, and that is what his Honour has done. I see no error in this approach. Cross Appeal 67 The Cross Appeal raises two matters. The Trial Judge indicated that but for the Respondent's pre-existing condition he would assess the plaintiff's impairment at 34% of a most extreme case. He reduced the percentage assessed to 29% because the back injury results from an exacerbation of a pre-existing condition. Secondly, the Trial Judge assessed the Respondent's residual earning capacity from the date of judgment at 50%. 68 S 16 of the Civil Liability Act (the "CLA") provides that if the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, the damages are to be determined in accordance with a table and by s 16(3) the maximum amount to be awarded is fixed at relevantly $427,000. Under the table, 29% equates to 18% of this amount, which equals $77,000 (see s 17 of the CLA). Non-economic loss is defined by s 3 of the CLA to mean any one or more of "pain and suffering", "loss of amenities of life", "loss of expectations of life", "disfigurement". 69 The Respondent contends that his Honour had adopted an approach from the Workers Compensation Act (see s.67) and not entered upon the task required by s.16 of the Civil Liability Act. Mr Joseph accepts that his Honour did have to consider the fact that the Respondent's congenital condition existed and could lead to a significant deterioration of his health and wellbeing even had there been no accident. His Honour made an assessment of the percentage of a most extreme case that the plaintiff's condition represented and then embarked upon the difficult task of allowing for the degenerative condition and potential ill effects – he was required to do this in order to ensure that the plaintiff was compensated only for the aggravation to his condition that was caused by the slip at the Centre. I see no error in his approach. 70 So far as the 50% loss of earning capacity point is concerned, this is also a matter on which precision is not possible. It is an attempt to assess the extent to which the back problems from which the plaintiff suffers will affect his capacity to earn an income, but also to have regard to psychological problems which have some significant prospect of resolving. His Honour also had to take into account that following the accident the Respondent did work, and that although not free from problems he had some improvement. I am not persuaded that his Honour erred in concluding that the Respondent's economic capacity had been reduced by 50%. Costs 71 P & H has been successful on the appeal and Westfield is liable to the Respondent. The normal order would be an order that the Respondent pay P & H's costs and Westfield pay the Respondent's costs. 72 The Respondent seeks an order that Westfield pay any costs that the Respondent is obliged to pay P & H by reason of P & H's success on the appeal. This is often referred to as a 'Bullock' order after Bullock v London Omnibus Co [1907] 1KB 269. 73 The circumstances in which such an order can be made (and the matter is one for discretion of the Court) were discussed in Gould v Vaggelas (1985) 157 CLR 215. Gibbs CJ saw the test as being whether it was fair that a liability for the successful defendant's costs be imposed on the unsuccessful defendant. Brennan J (with whom Murphy J agreed) saw the order as available only if the conduct of the successful defendant showed that joinder of the successful defendant was reasonable and Wilson J saw the question as whether the costs in question have been reasonably and properly incurred as between the successful plaintiff and the unsuccessful defendant. In my view, the assertion by Westfield that it owed no duty of care to the Respondent, and its assertion that it had contracted P & H to clean the area in question and that P & H was in breach of contract by failing to clean the grease made it reasonable as against Westfield for the Respondent to have joined P & H. 74 There is another matter here, and that is that P & H and Westfield had at the trial and on appeal, the same solicitor and counsel so that any costs of P & H not borne by Westfield are likely to be small in amount. The fact that both these parties shared representation reinforces my view that any additional costs of P & H should be borne by Westfield since their position at trial was a joint one. Conclusion 75 In my view the following orders should be made: (1) Leave to Amend the Notice of Appeal in the Westfield appeal refused (2) Appeal of P & H allowed (3) Judgment and verdict against P & H set aside (4) Verdict and judgment for P & H (5) Appeal of Westfield dismissed (6) Cross appeal dismissed (7) Westfield to pay the Respondent's costs of appeal (8) Westfield to pay any costs of P & H of the proceedings not otherwise borne by Westfield. ********** 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. 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