District Court New South Wales Medium Neutral Citation: Shvarts v Scentre Shopping Management Pty Ltd and Anor [2018] NSWDC 154 Hearing dates: 17, 18, 19 and 20 April 2018 Date of orders: 04 May 2018 Decision date: 04 May 2018 Jurisdiction: Civil Before: Cowdroy QC ADCJ Decision: Judgment entered for the plaintiff in an amount to be calculated by the parties and submitted by way of an agreed Consent Order to be filed with the Registrar In respect of the liability of the first and second defendant, the Court enters judgment for the first defendant in respect of the claim made against it by the plaintiff. The costs of the claim by the plaintiff against the second defendant be paid by the second defendant, and that the costs of the claim by the plaintiff against the first defendant be paid by the second defendant The second defendant is liable to meet the costs of the plaintiff on an indemnity basis on and from 22 March 2018 Catchwords: TORTS – Negligence – personal injury – allegation of breach of duty of care – slip and fall injury at a shopping centre – right knee and back injury – pre-existing ankylosing spondylitis - whether second defendant breached terms of agreement in relation to cleaning services – liability between each defendant - liability in relation to the plaintiff denied by each defendant DAMAGES – General Principles Legislation Cited: Civil Liability Act 2002 Cases Cited: Mamo v Surace (2014) 86 NSWLR 275 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2009] NSWCA 364 Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 Caledonian Collieries v Speirs [1957] HCA 14 Thonpson v Bankstown Corporation [1953] 87 CLR 619 Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 Fatama Abdel Razzak v Coles Supermarkets Australia Pty Ltd [2017] NSWDC 183 Strong v Woolworths Ltd and Anor (2012) 246 CLR 182 Kocis v SE Dickens Pty Ltd [1998] 3 VR 408 Timberland Property Holdings Pty Ltd v Julie Bundy [2005] NSWCA 419 Prasad v Woolworths Ltd [2017] NSWDC 79 Sampco Pty Ltd v Wurth [2015] NSWCA 117 Taboas v Abigroup Contractors Pty Ltd [2014] NSWSC 13 Nair Smith v Perisher Blue Pty Ltd [2013] NSWSC 727 Category: Principal judgment Parties: Iona Kim Shvarts (Plaintiff) Scentre Shopping Management Pty Ltd (First Defendant) Ezco Property Service (Aust) Retail Pty Ltd (Second Defendant) Representation: Counsel: J E Rowe appeared for the Plaintiff D Priestley SC appeared for the First and Second Defendants Solicitors: Shine Lawyers Pty Ltd (Plaintiff) McCabes Lawyers (First and Second Defendants) File Number(s): 2016/259625 Publication restriction: None Judgment 1. By further amended statement of claim filed on 8 June 2017 the plaintiff sues each defendant arising out of injuries which she sustained at approximately 2.20pm on 1 February 2015 in a shopping centre known as the Eastgardens Shopping Centre, located at 152 Bunnerong Road, Eastgardens. The Claim 1. The claim is brought pursuant to ss 5B and 5D of Civil Liability Act 2002 NSW. 2. The plaintiff claims against the first defendant that it was the owner and operator of the Westfield Eastgardens Shopping Centre and that all times had control and supervision of the centre. The first defendant engaged the second defendant as a cleaning contractor to perform cleaning services at the shopping centre. Such services are set out in the terms of a written agreement entitled "Cleaning Services Agreement - Westfield Eastgardens". The agreement was dated 12 June 2014 and was signed by representatives of the second defendant. The agreement covered the period giving rise to this action. The agreement was to commence on 1 July 2014 and continue to 23 June 2017. 3. As against the second defendant, it was alleged that the terms of the agreement, as set out in section 3.1(b) of the agreement, required the second defendant to keep the premises: "in a good and workman-like manner and in every respect to the reasonable satisfaction of the manager (the first defendant) and in conformity with all reasonable directions and requirements of the manager (the first defendant)." 1. The further amended statement of claim itemises the allegations of breach of duty of care and the injuries and disabilities and expenses incurred by the plaintiff arising out of the accident, which the Court will deal with in detail hereunder. 2. It should be noted for convenience that the defendants effectively deny liability and the injuries and losses claimed by the plaintiff. The Injuries 1. The plaintiff at the time of the injury was 32 years of age and is now 36 years of age. At approximately 2.20pm on 1 February 2015, the plaintiff, accompanied by her husband and by their infant child Amelia, who was born on 6 June 2014, were working through the shopping mall. The walkway which they were using contained shops on each side and the surface was apparently of terrazzo or granite or similar material. 2. Whilst she was walking with her husband, she slipped on a gel-like substance and fell heavily to the floor. She sustained a soft tissue injury to her right knee and an injury to her back. 3. The incident was captured by closed-circuit television. It graphically displayed the plaintiff and her husband walking across the walkway which appears to be of white granite or marble and in a heavily trafficked area. The CCTV footage demonstrates the fact that a cleaner was present at the site at approximately 1.32pm on the day in question. A photograph shows the cleaner wheeling a cleaning cart over precisely the spot where the plaintiff fell. The fall was captured at 2:19:53, that is 2.20pm. 4. The plaintiff returned to her home suffering from pain to her right knee and to her back. However, the pain continued and she found it necessary to seek medical attention. 5. The incident report which is in evidence records the incident as a "slip and fall - spill". The date is recorded as 1 February 2015 at 1420 hours. Under the heading of "Full Description of Incident", the following is recorded: "At approximately 14.20 on 1 February 2015, Ezko cleaner Tezeva(?) Gordana(?) reported via radio to security that a customer was involved in a slip and fall incident opposite Top Spa & Nails on ground floor S5. Mark Pursehouse attended and upon arrival met Iona Shvarts who stated that she had slipped on a liquid spill causing pain to her right knee. First aid treatment was provided in the form of an icepack. Customer left site after reporting the incident, all details and photos obtained." 1. The plaintiff's husband took photographs of the substance described as a "gel-like" substance which caused the plaintiff to fall. It showed a shiny area described as up to a metre on the surface of the marble or granite flooring in the walkway. The photographs taken by the husband have been tendered in evidence together with the CC television footage, and from that footage, photographs of the particular incident have been produced and tendered in evidence before the Court. 2. I shall interpose here to observe that the next time that a cleaner with a cleaning cart is observed is not till 20 minutes or more after the fall of the plaintiff. 3. The plaintiff was supported in her evidence by her husband. He testified as to the "gel-like" substance which caused his wife to slip and said it had appeared to be spread out on the floor of the walkway. 4. The plaintiff has consulted various medical practitioners and I shall deal with their evidence. Medical Evidence 1. Dr Ronald L Thomson, a consultant surgeon, has provided a report of 28 October 2015. He reports that investigations were carried out. He noticed the following: "Physical examination of the lumbar back revealed a reasonable lumbar lordosis and there was asymmetric reduction in range of motion with intermittent muscle guarding noted in the attempt. Forward flexion was limited to fingertips reaching mid shin level, flexion/rotation to the right was reduced by a quarter. The equivalent to the left was marginally reduced and extension was substantially reduced and productive of the greatest amount of pain. The location of the pain in the movements noted was over the right sacroiliac joint where there was prominent tenderness to palpation. Examination of the lower limbs revealed reflexes to be present and reasonable bilaterally and straight leg raising was unremarkable at 90 degrees on the left. It caused pain in the region of the right sacroiliac joint at 60 to 70 degrees on the right." 1. Dr Thompson conducted an MRI of the right knee and he arranged also for a lumbar scan to be made on 23 April 2015. His diagnosis was, "Acute/becoming chronic right sacroiliac joint strain, right chondromalacia patellae". As to attributability, he said, "On the basis of the history provided, the problems diagnosed are attributable to the fall of 1 February 2015." His prognosis was as follows: "Guarded generally." As to fitness and further comments, he noted: "On the basis of the history noted, this patient appears to have fallen onto the anterior aspect of the right knee and then twisted oddly to the left and sustained right knee chondromalacia patellae and right sacroiliac joint strain as a result. She is unfit on that basis for physical occupations or social/domestic activities requiring normality at these parts and would only generally be fit for lighter alternative activities where the requirements are definitely secondary or irrelevant. In respect to the right knee/lower limb, she should avoid the undue requirement of force, strength, stamina, impact or vibration activities, agility, et cetera, in respect of the part." 1. Dr Thomson considered that the plaintiff's workability had been adversely affected by physical dysfunction at the sites referred to. He recommended that the plaintiff see a rheumatologist. He noted that it was important for the plaintiff to lose weight as she was 10 kilograms overweight. He says, "All of the above would be reasonable and necessary and due to the subject fall, but for which such a need would not have arisen." 2. Dr Thomas Oldtree-Clark (consultant forensic psychiatrist) has provided a report dated 13 November 2015. He refers at p 4 of his report to his mental state examination. He states: "Ms Shvarts has no signs of psychosis. She suffers no hallucinosis and expresses no delusional beliefs. Her thought systems are normal. On intellectual state examination, she is an intelligent woman. Her recent memory and orientation are good but her back pain distracts her and causes her difficulty in concentration. On emotional state examination, she is depressed. The Endep is only a minimal dosage. This helps her sleep but is not very effective otherwise. She finds it is difficult to cope with work. At work, she has to get up and move around. She is able to interact with potential clients and she has not been criticised at work. While she still attends court, she has the juniors assist her by carrying bags, et cetera. Socially, she cannot involve herself with any vigorous recreation. She does not go dancing, can't wear heels, and she cannot sit for longer than an hour or two. She does the shopping with her husband but gets angry with him over little things. His family does not help but there have been no separations. They have conflicts when she can't control herself. She has a positive marker for autoimmune disorders, however, this did not cause her symptoms before the fall. Although she has spondyloarthropathy diagnosed beforehand, she never had any joint symptoms before the fall. Psychiatric diagnosis: Major depressive disorder." 1. The plaintiff is, by way of occupation, a solicitor, and the Court will consider in more detail shortly her professional career. Essentially, from the time of the accident, the plaintiff states that she has suffered disabilities which prevent her from attending to her normal work and also to a substantial portion of the necessary household activities. 2. Before dealing with those disabilities, it is convenient to refer to the defendant's medical reports. The Defendant's Medical Evidence – Dr Kim Edwards 1. Dr Kim Edwards, a general surgeon, has provided two reports. The first is dated 21 November 2017. He took a history from the plaintiff. He noted that the plaintiff stated that her knee settled after about two months and that the knee has not been a problem. He noted that the plaintiff stated that she had had occasional treatments of physiotherapy for four to six sessions. She states this is when she "gets flares of low back pain". He noted that the current symptoms were constant low back pain. 2. Dr Edwards says that the plaintiff was able to drive a motor car, has had no workers compensation claims or any public liability claims, but she has had difficulty in caring for her now two children. He noted that approximately 12 months prior to the consultation in November 2017 that the plaintiff and her husband had engaged a cleaner to assist in domestic tasks. 3. He noted that the plaintiff had had some prior history of depression since about 2010 following the murder of her stepmother. She saw a psychologist at that time for about six sessions, but she has had no other treatment. 4. On examination, Dr Edwards further reported as follows: "On examination of her lumber spine, she indicated the right sacroiliac region as the site of her discomfort rather than the lumbar spine. There was no tenderness in the lower lumbar region, but there was slight tenderness to deep palpation over the sacroiliac joint. On examination of the lumbar spine, there was no muscle spasm, no scoliosis and no decrease in the lumbar lordosis. Her forward flexion was to 90 degrees. Extension, lateral flexion and lateral rotation were normal." As to the right knee, he observed: "On examination of her right knee there was no swelling or deformity. There was no fusion. She had full range of movement to the right knee. There was no crepitus." His opinion was as follows: "Ms Shvarts may have sustained a soft tissue injury of her right knee and lower back in the fall on 1 February 2015. On examination today, there is little to find except some complaints of discomfort over the right sacroiliac joint to deep palpation. She does not appear to have any abnormality related to her lumbar spine or her right knee." In respect of the future of the condition, he said: "I consider Ms Shvarts may have sustained a soft tissue injury at the time. This would normally settle in a few days, weeks or months. I do not consider there are any ongoing symptoms that relate to that incident two years ago." 1. His second report of 8 January 2018 related to his observations concerning an occupational therapy report of Mr Stephen Hoey provided by the plaintiff dated 24 October 2017. Dr Edwards did not consider that his opinion changed in relation to Mr Hoey's occupational report. Dr Emery 1. Dr Elaine Emery, general practitioner, provided a report dated 20 August 2015, which states: "Treatment so far has included analgesia, physiotherapy and gym work. She has been reviewed by neurosurgeons, Dr Brindha Shivalingam with regard to her lower back pain. She has good prognosis and I would expect her to fully recover from her injuries." She states, "As far as I know, her capacity to work has not been affected and is unlikely to be affected in the future." Ankylosing Spondylitis 1. The medical evidence established that the plaintiff had, prior to the accident, been suffering from a medical condition known as ankylosing spondylitis. This is described as an inflammatory arthritis that targets joints of the spine, particularly the sacroiliac S1 joint where the spine attaches to the pelvis. According to the material provided to the Court, there is no cure for such complaint, but it can be effectively managed by medication and lifestyle changes, which include the need to do regular exercise to keep the spine mobile and flexible. Dr Frederick Joshua 1. Dr Fredrick Joshua had been consulted by the plaintiff in 2011. His report dated 1 February 2011 records the onset of pain. Dr Joshua is a consultant rheumatologist. On examination, he stated that the plaintiff was unlikely to have an autoimmune disease but was more likely to have a mechanical abnormality to her right mid-foot. He recommended further exploration. 2. 30 In his report of 19 April 2011 he reported of the plaintiff: "Her recent investigations have proven a spondyloarthropathy and the most likely ankylosing spondylitis given that she has sacroiliitis on both X-ray and MRI scan, right foot bone marrow oedema which is likely to be related to this." A further report dated 24 August 2011 records: "I am really pleased with how she is going. She does not describe any joint symptoms at the moment. She is not having treatment either." A further report of 17 December 2013 by Dr Joshua records: "Clinically she has few symptoms at the moment, although she has had some back pain that does seem inflammatory with pain worse in the morning compared to during the day, but otherwise, has not had any joint swelling. She can cope with the back pain and is just using Panadol." A scan had been undertaken as early as 9 April 2011, which found as follows: "There is mild symmetric sclerosis in both S1 joints suggestive of early sacroiliitis. There is no erosion marrow oedema or bony ankylosis." Dr Brindha Shivalingham 1. Dr Brindha Shivalingam, a neurosurgeon of Chris O'Brien Lifehouse provided a report dated 5 August 2015 to Dr Elaine Emery. He reported, having consulted with the plaintiff on that day. His report records that the plaintiff brought a CT scan of her lumbar spine, which he stated, "Actually looks quite satisfactory." He continued: 2. "There is no evidence of any bony injury and all of her discs look quite normal and her alignment is normal. There is a report of a minor disc bulge L5-S1 but I have explained to Iona that this is quite universally common and is irrelevant." Dr Shivalingam continued: "Iona's problems do seem to be from a soft tissue muscular injury. She has been doing all the right things in terms of alleviating this. She absolutely does not require any surgical intervention. At this point I feel an MRI is not really going to add much information. I have counselled her regarding muscular pain. Muscular pain, whilst it is not a serious problem, can be very difficult to treat. It can take many months to resolve and can only be treated with ongoing focus on regular massage, heat packs, stretches and exercise. I have asked her to perhaps try to move around a bit more at work because I do think that sitting constantly can make this problem worse. Iona understands all of this and at this stage, there is no further need for me to see her." 1. The defendant obtained some prior records of the Hyde Park Medical Health Centre, which recorded various consultations held with the plaintiff in 2013. The defendant is particularly reliant upon the record of a complaint made on 22 October 2013, as recorded in the medical notes, which states, "Developing some mid lower back pain. No neurological symptoms." Another record, which is undated, contained in exhibit 1, which is notes of a visit made on 24 May 2010, records, "Acute right back pain, lumbosacral." Dr James Bodel 1. Dr James Bodel, orthopaedic surgeon, dated 18 October 2017. Dr Bodel provided the report to the plaintiff's solicitors. He summarised her injuries as follows: "This lady has suffered a soft tissue injury to the lower part of her back and a direct blow to the front of the right knee as a consequence of a fall that occurred on 1 February 2015." As to the functional limitations which were then present, he observed: "This lady's functional limitations, her taking care with prolonged sitting or bending, twisting or lifting or kneeling, squatting or climbing, particularly up and down stairs. It is noteworthy that she is still recovering from giving birth to her second child three months ago and it will take six to 12 months for her to get back to her best. She needs to be encouraged to return to an exercise based program and she indicates that this is the case. She is intending to return to work part-time early in the new year and that is commendable. Over time, with improved physical fitness levels, she should be able to upgrade to her pre-injury level of work as a solicitor. It is difficult to determine how long it will take for this to occur." His diagnosis was as follows: "The diagnosis here is a soft tissue musculoligamentous injury to the lower part of the back, and a direct blow to the front right knee, causing traumatic chondromalacia in the retro patella region. Her prognosis in the knee is somewhat guarded and in the back, she should improve further with exercise and time." As to pre-existing conditions he said: "There is no evidence of any pre-existing injury, condition or abnormality or predisposing factor in this circumstance. I am aware that she was investigated for joint pain by Dr Joshua in 2011 and 2012, but it appears that that came to nothing and she was able to return to a very active lifestyle, including her legal practice and exercise without any difficulty." As to impact upon her work, Dr Bodel said: "This lady's current ability to work has been affected by the fact that she has recently given birth, and also by the effects of the injury. Her return to work may be a little slower than otherwise would have been the case if it had not been for her fall." 1. As to the ability to return to work on a full-time basis, he stated: "This lady's current ability to work has been affected by continuing back pain and anterior knee pain. She is anticipating returning to work early in 2018 three days a week. Over time, she may be able to upgrade to her pre-injury hours of work." 1. As to domestic assistance, he stated: "This lady does require ongoing domestic assistance for heavy household maintenance and cleaning activities." Summary of Medical Evidence 1. The medical evidence, in summary, records that the plaintiff has had a condition of ankylosing spondylitis, which has been causing her pain at least from 2010. The current complaints of the plaintiff, which are said to arise from the fall, includes essentially back pain. There is no current complaint concerning any issue with the right knee. 2. When questioned during cross-examination, the plaintiff stated that she was able to separate the two pains, one being from the ankylosing spondylitis, which she has had for some time, and the other due to the fall. Although both pains were also in her back, the pain from the fall to that which she had suffered before the fall was of a different type. 3. The medical evidence establishes that, although there was a pre-existing condition, that condition did not disable her from undertaking her daily activities and it was of a different type of pain compared to that which she is now experiencing from the fall. The medical evidence also establishes that there could at least have been an aggravation of the existing condition. Occupational Reports 1. The plaintiff provided two occupational reports, both prepared by Dr Stephen Hoey of Therapy Solutions dated 18 December 2015 and 24 October 2017. Such reports, in summary, express the opinion that the plaintiff will experience difficulty in heavy lifting, repetitive lifting, bending, twisting and standing for long periods. Such available work generally required of a solicitor includes standing for long periods in a court room, sitting at a computer, carrying files, will cause occupational problems for the plaintiff. 2. In the household, activities requiting lifting, such as heavy loads of washing, changing beds, vacuuming and mopping, gardening, standing whilst cooking, will cause her problems. 3. The plaintiff also relied upon a report by Craig Martin and Peter Tingle of Work Together, dated 19 May 2016. It confirms the disabilities above, and states that the plaintiff's ability to obtain work as a solicitor until retirement "is at best fair". 4. The defendant's relied upon an occupational report of OHS Solutions dated 16 February 2018 and a supplementary report dated 18 April 2018. The reports state that the plaintiff appeared to be genuine in her presentation. Generally, the defendant's reports state that the plaintiff does not require the the level of assistance she claimed. 5. All reports unfortunately transgress into areas of medical assessment, and in some cases, seek to make assertive statements on matters which are for the Court to determine. In these respects, such commentary has been disregarded. Disabilities 1. The Court now turns to the disabilities, which are said to arise from the accident. In doing so it is necessary to refer to some of the chronology. 2. The plaintiff was married to her husband, Edward Shvarts, who I shall refer to as Edward, on 24 April 2013. She was employed as a solicitor with Vardanega Roberts Lawyers, then earning $1,500 net per week as a senior solicitor. At that stage she was aged 30. On 31 May 2014 she commenced maternity leave for her first child, Amelia, who was born on 6 June 2014. At the date of the accident, namely 1 February 2015, the plaintiff was still on maternity leave. 3. Following the accident, she attended physiotherapy. On 10 March 2015, she recommenced employment as a solicitor, but not with Vardanega Roberts. She resigned from that role in February 2015 because she disagreed with the strategy which was adopted by that firm concerning advancement of solicitors. She remained with HBA Legal, working as a solicitor, until she gave birth on 7 July 2017 to her second child, Harvey. At that stage, the plaintiff was 36 years of age. 4. The plaintiff stated that she finds she is unable to work due to her back pain. Her activities of sitting at a desk, moving around and fulfilling the normal tasks of a solicitor cause her pain and discomfort. The plaintiff states that in the household, it was essential for her husband to fulfil many of the tasks in and around the house, such as cleaning, shopping and other domestic tasks, and that her husband undertook those duties for her. 5. The plaintiff has been able to continue to do other activities of a physical nature. For example, one of her recreational and physical activities is Zumba dancing. She and her husband have enjoyed that activity. The defendant made much of the fact that a video recording, which was taken of the plaintiff subsequent to her injuries, on two occasions, showed her undertaking that activity. 6. From that video footage, it was said that the plaintiff was able to undertake physical activity without difficulty. The Court does not agree. The plaintiff, as shown in the video, stood at the back of the class while she performed the exercises. It was quite apparent that she did not engage, as did the rest of the class, in physical activities involving bending or twisting. It appeared from the video the plaintiff was very careful concerning the movements she made. The Court infers that such activities, namely in the nature of exercise, was recommended by the doctors and that she was able to undertake those activities without difficulty. Plaintiff's Witnesses 1. The Court now turns to the other evidence adduced by the plaintiff. 2. The plaintiff's husband, Mr Edward Shvarts is a claims consultant with the NRMA. He stated that prior to the accident, the plaintiff cared for their daughter Amelia. However, since the accident, it has been necessary for him to do most of the household activities. Mr Shvarts works as a consultant in claims for the NRMA. Accordingly, he was able to work using flexible hours at his home and thereby was able to assist his wife. 3. Following the accident, he noticed a change in the demeanour of the plaintiff. He stated that she became short tempered and "snappy" in the household. He felt that domestic chores for her were a problem and she was complaining of pain. In 2015, he found that he had to change occupations. Nevertheless, when he came home from work, he carried out the washing, cleaning, gardening, ironing and bathing the children. He assisted in the cooking, although he stated that the plaintiff still was able to do the cooking. He said he worked one and a half hours a day during the weekday undertaking household activities. He gave estimates of the hours he worked over the weekends. He noticed the plaintiff's back is still a problem for her and that she finds it difficult to sleep. The Court was impressed by the evidence given by Mr Shvarts and considered that his testimony should be accepted. 4. The plaintiff's mother Pam Patterson also testified. She gave a history of the plaintiff stating that the plaintiff had undertaken work in various jobs whilst she was still at school. The plaintiff had worked since the age of 15 in various part time occupations. Mrs Patterson said that the plaintiff, "saved money to assist us in putting herself through university as she always had the hope of becoming a lawyer". Mrs Patterson referred to the fact that when the plaintiff was approximately 12 years old, she suffered a sexual assault but she overcame any ill effects of such assault. The plaintiff's mother said that the plaintiff had been always highly motivated. She had effectively put herself through a law course and obtained the qualification as a solicitor. She attended dances, concerts, gym activities, and in fact participated in many, many activities. Mrs Patterson says that since the accident, she has noticed that the plaintiff has been carrying out the household duties with great difficulty or not at all. 5. Mrs Patterson lives at Corrimal. She teaches piano part-time, but in her available time, she travels to the plaintiff's home where she assists in gardening, cooking and cleaning the household. She says that for some period after the accident, she would assist four to five hours per week. That has now been reduced. 6. She states that from her own observations, the plaintiff has suffered pain and discomfort. She states that she has noticed a change in the plaintiff's demeanour, the plaintiff becoming short tempered. She states that the plaintiff aspired to becoming a partner in the law firm where she was working. Generally, Mrs Patterson portrayed the plaintiff as a highly motivated individual who wished to succeed in her profession. Further, the accident sustained by the plaintiff had a significant effect not only on her ability to conduct household activities, but also work activities and her general enjoyment of life. 7. Exhibit 2 is a letter written by the plaintiff to Vardanega Roberts Solicitors on 19 February 2015. It was her resignation letter. She states as the reason for her resignation the fact that she felt personally targeted by a policy which had been introduced in the firm. She states, "I feel personally targeted by the policy as I am the only staff member on maternity leave and it was already agreed I could return to work three days per week." She had discussed with Mr Vardanega before proceeding on maternity leave the fact that she wished to return to work part-time and ultimately full-time. The letter is important because it demonstrates that the plaintiff confirms her future intention and puts to one side the suggestion by the defendant that the plaintiff's future work proposals were not clear. 8. I now turn to the evidence concerning the first and second defendants. Cross-claim 1. The first defendant had issued a cross claim against the second defendant. That proceeding was resolved by a consent order made on 9 October 2017. However, the question still remains of the liability between the first and second defendants. 2. As referred to previously, there is an agreement in evidence, exhibit 5, which relates to the cleaning services which were to be provided by the second defendant to the first defendant. Pursuant to the agreement, one of the obligations of the second defendant was under the heading "Description of Westfield Cleaning". Under that heading, there are various types of cleaning which the second defendant was to undertake. One of those headings is "Floors, Skirting and Vertical Transport". The contractual obligations stated in the agreement is as follows: "Free of litter, debris, dust, spills, dirt and grime." The cleaning description also incorporates minimum requirements. The agreement contains the following: "Rotations: Minimum Requirements. 1. Rotations are defined as maximum time between inspections of every square metre of area and must be complied with during the shopping centre's core and extended trading hours. This is specifically to include those areas that are accessible during extended trading hours, such as supermarkets, of cinemas, and rotations must occur at the time periods set out below: - common malls and entrance areas - every 20 minutes." 1. The agreement contains other locations but they are not relevant for present purposes. 2. The CCTV footage establishes that whilst the cleaner visited the actual site at 1.32pm on 1 February 2015, there was no cleaning inspection or work performed within 20 minutes thereafter. The plaintiff's fall at 2.20pm took place almost 48 minutes after the previous cleaning inspection at 1.32pm. 3. The supervisor's cleaner's report in relation to the incident records the accident. Relevantly it says, "Location of cleaner at time of accident, female restroom, centre of", it appears, "premises." The next line states, "What time was the area last cleaner and inspected, were spills seen? The reports say it's 15 to 18 minutes before (approx). What is the exact area cleaning and inspection rotation time each day? 20 minutes." 4. The report is clearly incorrect as there was no inspection carried out 15 to 18 minutes before the accident, as verified by the CCTV footage. 5. The website of the second defendant was produced and records that the company conducts cleaning services and holds itself out as a competent cleaner. In the circumstances, the first defendant states, in summary, that any judgment should be entered against the second defendant and not the first defendant, as the first defendant had taken all requisite steps to employ a competent cleaner and that the cleaner had simply not complied with the terms of its contract. The Court considers that such submissions should be accepted. Liability 1. The identification and the existence of the duty of care is to be determined according to common law principles: see Mamo v Surace (2014) 86 NSWLR 275 at 283, para 48. It is also clear that the first defendant owed the plaintiff a duty to take reasonable care to avoid a foreseeable risk of injury to her arising from the physical state of its property: see Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 at 13; Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 at 90. 2. There have been numerous decisions concerning the issue of the extent to which liability is foreseeable. However, it is not necessary to show that the precise event that resulted in the injury was foreseeable: See Caledonian Collieries v Speirs [1957] HCA 14 at 12. It is only necessary for a plaintiff to show whether it was reasonable to foresee in a general way that that kind of thing had occurred: Thompson v Bankstown Corporation [1953] 87 CLR 619 at 630. In Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241, McHugh JA, as he then was, said at [256] (b) to (c): "The critical question however is whether the evidence raises an inference that the plaintiff's injuries were the result of a defective system. This, in turn, reduces itself to the question as to the whether the evidence gives rise to an inference that the appropriate inspection system would have avoided the plaintiff's injury. For it is no comfort to the plaintiff to show that the defendant did not have a proper system, unless she can show that the existence of a proper system would have avoided the injury. That is to say, the critical issue is causation." 1. Breach of the duty of care was also considered in Fatma Abdel Razzak v Coles Supermarkets Australia Pty Ltd [2017] NSWDC 183 at 91 where the Court observed: "Foreseeability of risk of injury is not determinative of breach of duty of care: Francis & Ors v Lewis [2003] NSWCA 152 at 40. The occupier's obligation is that of reasonable care. Its duty is not to make the premises as safe as 'reasonable care and skill on the part of anyone can make them': see Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 at 92. What constitutes the exercise of reasonable care depends on the circumstances of each case. See Wilkinson v Law Courts Ltd [2001] NSWCA 196 at 32." 1. In Strong v Woolworths Ltd & Anor (2012) 246 CLR 182 it was held that it is incumbent upon the plaintiff to prove that it is more probable than not that the defendant's negligence was a necessary condition of her fall. If the defendant had not been negligent, the plaintiff would not have fallen and been injured. See also Kocis v SE Dickens Pty Ltd [1998] 3 VR 408 at [34] and also Timberland Property Holdings Pty Ltd v Julie Bundy [2005] NSWCA 419, especially at 34 to 37, noting that s 5D of the Civil Liability Act 2002 was not considered in that case. 2. In summary, there must be a finding as to what level of inspection would be sufficient to satisfy the defendant's obligation to take reasonable care, and there must be evidence to support the probability that the establishment of such a system would have avoided the plaintiff's injury. Application of Principles 1. The video evidence obtained by the closed circuit television cameras show that the walkway was heavily trafficked both before and after the time at which the scheduled maintenance by way of cleaning should have been carried out. 2. No doubt arises that the fall resulted from the presence of a slippery gel like substance on the surface of the walkway. The defendant sought to suggest that the slippery substance might have come from drink bottles or cans which children were holding in the area only minutes before the fall occurred. However, the Court is not able to draw such an inference. The substance which was on the ground was not liquid but a sticky gel like substance which the plaintiff stated she found was on her clothing after the fall. It may have been the result of a solid form of some substance being squashed by the passage of foot traffic in the area, but that of course is pure speculation. 3. The Court is satisfied that as there is no other explanation or timing available concerning how or for how long the deposit existed on the walkway. The inspection and cleaning by the cleaning contractor would, in all probability, have detected it. Both the first and the second defendants are accordingly liable in negligence but, as I have indicated, in view of the fact that the first defendant engaged the second defendant, which holds itself out as an expert cleaner, for the express purpose of maintaining the area, it considers that the second defendant is primarily liable. It was foreseeable that pedestrians would drop substances on the floor and regular cleaning carried out in accordance with the specified cleaning program would have avoided it. Damages 1. The plaintiff has filed a statement of particulars dated 29 August 2016 in which she refers to the various disabilities and economic loss claims. 2. The Court is satisfied that the plaintiff is continuing to suffer some disability directly related to the accident, namely pain to her lumbar spine which is separate and distinct from the ankylosing spondylitis. 3. The right knee appears on the evidence to have subsided. 4. There is clear evidence that the plaintiff is suffering from depression, and anxiety and depression is claimed as a disability. The evidence of the diagnosis of depression is unchallenged. The impact of the injuries has had a substantial impact upon the plaintiff's lifestyle and her economic life. The damages are to be assessed in accordance with initially s 12, s 13, s 15 and 15B of the Civil Liability Act 2002. General Damages 1. The Court turns firstly to the issue of general damages. 2. In Prasad v Woolworths Ltd [2017] NSWDC 79, the approach to general damages was considered as with many other cases. Essentially the Court must make its assessment of the impact of the accident upon the plaintiff. Other authorities have been referred to, namely, Sampco Pty Ltd v Wurth [2015] NSWCA 117, where the Court said at 83, relevantly, "The real value of medical evidence in this area is in an assessment of the true extent of any physical or mental disability suffered by the plaintiff." 3. The claim made by the plaintiff is for 29% of the maximum which might be awarded under the Act. The Court has carefully considered the evidence and has conveniently been referred to other decisions where courts have made determinations, see: Taboas v Abigroup Contractors Pty Ltd [2014] NSWSC 13 and Nair Smith v Perisher Blue Pty Ltd [2013] NSWSC 727. 4. The Court, in this instance, considers that the case of Nair Smith equates in many ways to this case. At 277 in Nair-Smith the Court said: "Considered in isolation, each of these matters may seem of no great significance. However, in totality for Dr Nair Smith, they represent a very significant impact on her quality of life. The evidence from her and her family revealed that prior to the accident, she lived a very full life characterised by long hours of work and a significant amount of holidays and recreation. Both of these were curtailed in the period following the accident and the level of curtailment has worsened since, although there is an issue about how much, if any, of that curtailment was causally related to the accident. There is no doubt that, despite her injuries, Dr Nair Smith retains a substantial level of functioning and can still derive some enjoyment from various activities. However, the assessment of loss and damage in tort and contract is undertaken by, in part, comparing the reduction in the injured plaintiff's functioning and enjoyment of life with their position previously. It does not involve a comparison with the level of holidays or recreation undertaken in the community generally." The Court also noted at 311: "In the end result, I am satisfied that Dr Nair Smith suffered a significant soft tissue injury to her lumbar spine as a result of the accident as stated by Dr Giblin. Over time she has developed a pain disorder as referred to by Drs Clarke and McClure. The effect of the soft tissue injury was to aggravate a pre existing level of discomfort in the lower lumbosacral region. Her further deterioration over the last few years is a result of the combination of the effect of the accident and degenerative changes in the lumbosacral region, however, the accident remains an operative cause of that deterioration." 1. Those comments to my mind apply by analogy with equal force to the present matter. For non economic loss and general damages, the claim of 29% which is made appears to the Court to be entirely reasonable. Accordingly, the Court will order non economic loss and general damages in the amount of $110,250. Past Economic Loss 1. The claimant was on maternity leave at the time of the accident but planned to return to work full-time. The injuries had caused her loss and damage. The forensic accountant report of Kain Elsmore of Vincents dated 14 July 2017 assesses the past economic loss taking into account the periods of time when the plaintiff was on maternity leave. An amount of $77,350 is claimed. The Court considers that that is a realistic and appropriate figure and will allow that head of damage. Past loss of superannuation is also calculated in the same report in the amount of $10,367, and the Court considers that such allowance ought to be made. Accordingly, there will be an allowance made of $10,367. Future Economic Loss 1. As to future economic loss, the claim is made on the basis that the plaintiff cannot work. The claim is made up to the age of 67, and a further three years is incorporated. The Court is not satisfied that the plaintiff will not be able to return to work. The Court is mindful of the fact that the current disability of the plaintiff relates to pain and discomfort. In the absence of medical evidence suggesting that the pain and discomfort will continue indefinitely, the Court is not prepared to grant economic loss as claimed. However, it considers that a period of two years should be allowed for future economic loss. The Court will leave it to the parties to make the calculations based upon that quantification. That will also impact upon the future loss of superannuation and, accordingly, it will be necessary for the parties to make that calculation based upon a further two years loss of income from her regular employment. Past Care 1. The plaintiff claims an amount of $27,239 for past care incurred by her arising out of her injuries. Taking into account the evidence, which the Court accepts, of both her husband and of the plaintiff's mother, both of whom the Court considered were witnesses of reliability and truth, the Court accepts that the plaintiff was disabled from undertaking the activities, and accordingly, the Court will allow the amount claimed, of $27,239. Future Care 1. A claim is made for future care. Taking into consideration the fact that the medical evidence does not establish that the plaintiff requires substantial care or indeed any ongoing care, the Court considers that the claim for future care should be disallowed. 2. In relation to the past loss of capacity to provide domestic services under s 15B of the Civil Liability Act, it is plain from the evidence that the plaintiff has been unable to provide assistance and care for Amelia and that care has been provided by others. A claim of $73,000 is made for that item and the Court considers that such a claim is justified. Accordingly, it allows the amount claimed of $73, 000. Future Loss Of Capacity To Provide Domestic Services 1. The claim for the future inability to provide domestic services is one which is problematic. The plaintiff and her husband have moved to larger premises, namely a townhouse, comprising three bedrooms and an attic, from a two bedroom unit. 2. The Court is not satisfied that there will be the need for ongoing care in the amount claimed. Accordingly, the claim for future lost of capacity to provide domestic services is not allowed. Past Losses And Medical Expenses 1. These expenses have been agreed at $5,267 and the Court allows that sum. Future Losses And Medical Expenses 1. A claim of $26,338 is made on the basis that the plaintiff will require further treatment. The Court has taken into consideration generally the occupational reports as mentioned earlier provided by both the plaintiff and the defendant in assessing the incapacity to work and carry out her usual roles. In those reports, and in the medical reports tendered by the defendant, there is the suggestion that the plaintiff could require further treatment from time to time. The Court considers that the amount of $26,000 which is claimed is excessive if awarded. However, the Court considers that a buffer to meet the cost of any future medical expenses of $15,000 should be allowed to cover any possible future medical or other expenses. Orders 1. Accordingly, the Court will order that judgment be entered for the plaintiff in the amount to be calculated by the parties and submitted by way of an agreed consent order to be filed with the registrar. 2. Secondly, in respect of the liability of the first and second defendant, the Court enters judgment for the first defendant in respect of the claim made against it by the plaintiff. 3. Thirdly, the costs of the claim by the plaintiff against the second defendant be paid by the second defendant, and that the costs of the claim by the plaintiff against the first defendant be paid by the second defendant. 4. The Court notes that an offer of compromise was made on 22 March 2018 in the amount of $125,000. As it is apparent that the amount of the judgment will exceed that sum, it follows that, in accordance with the rules, the second defendant is liable to meet the costs of the plaintiff on an indemnity basis on and from 22 March 2018 and the Court so orders. 5. The Court grants leave to the defendants to apply for a different order for costs, if so advised, provided that any such application is made within 14 days of today's date. ********** 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. Decision last updated: 18 June 2018