Alvarenga v Mirvac Real Estate Pty Ltd & Anor

The accident and liability 6The accident is plainly visible on CCTV footage (Exhibit A). The approach taken by the defendants was that the plaintiff walked across an area that had recently been mopped, thereby attaching moisture to the bottom of her shoes and then, as a result of the contact between the metal surface of the travelator and her shoes, she slipped. It was put to the plaintiff that the cleaner was obviously visible as well as the area in which he was mopping. This included the white rubber bubble looking surface which can be seen in the first photograph in Exhibit 1D1. 7On first impression the plaintiff seemed evasive about the manner of her approach and what she saw or could have seen. As questioning progressed however, both on this issue and generally, I came to the view that the plaintiff had difficulty understanding the questions and even notions such as "I put to you.." or "I suggest..." The plaintiff was particularly unsophisticated. 8A close viewing of the CCTV footage indicates that the plaintiff seems to have attempted to step over the rubber section although her success was limited by her short stride. The result is that although one foot did come down on the bubble section, the contact was small. The CCTV also reveals that the slip occurs almost immediately after the plaintiff stepped on the travelator and that she was, just as she slipped, trying to take hold of the handrail on the right hand side. 9The attempted use of the handrail seems to have been missed by the plaintiff in written submissions. The submissions refer to "the plaintiff's failure to use it..." (paragraph 42). 10I note here that to avoid confusion, any reference to the travelator refers to the moving parts. It does not include the metal strip in front of it. 11I think my interpretation of the plaintiff's movements is consistent with the cleaner's written statement that the plaintiff "carefully walked on the wet floor." (Exhibit B, page 1) It follows that the floor was wet and that the plaintiff, at least, appreciated the possibility that it was wet. I also accept, from the cleaner's statement, that the plaintiff said "Oh, its wet" as she passed the cleaner. This is despite her denying making the comment. I think the passage of time, and perhaps a degree of defensive attitude, were behind her denial. 12It is to be recalled that part of the defendants' case is that the plaintiff, by ignoring the cleaner mopping this section, walked through it and wet the soles of her shoes leading her to slip on the travelator. I do not think she ignored the cleaner. She spoke to him and she walked carefully. She was under instructions from her manager to go to another store to fetch some bakery ingredients. She was no doubt anxious to fulfil her mission and needed to use the travelator to get to the car park. 13I think it apparent that the plaintiff picked up moisture on her shoes on her way to the travelator and this resulted in her slipping when her wet shoes came into contact with the moving metal surface of the travelator pallets. 14I am also satisfied that the there was significant amount of water in the plaintiff's path. I derive this from the evidence of Mrs Priscilla Willis who was the Bakery Manager at Woolworths on the day of the plaintiff's fall. It was Ms Willis who had despatched the plaintiff to another store to obtain the missing ingredients for a baking product. 15Mrs Willis said that she was called to the scene after the plaintiff had fallen. She went down the same travelator and "almost slipped going down". In her statement (Exhibit G) she says: "The surface of the travelator was wet". In oral evidence she made it clear that it was the metal strip before the travelator that was wet rather than the moving parts. 16At least 10 minutes passed between the plaintiff and Mrs Willis going down the travelator suggesting enough water remained for this time, not having dried and still being in sufficient quantity, to produce a slippery surface. 17The second defendant called the cleaner, Mr Dahal. He was a straightforward witness doing his best to recollect matters accurately but no doubt forgetting some detail after the passage of almost five years. 18He did recall the plaintiff approaching from Woolworths and walking in front of him. The floor was then slippery, at least in the bubble area where he had mopped. Mr Dahal said the plaintiff was the first person to use the travelator that day. He did not give her any warning, nor did he suggest she stop to await his cleaning to finish. There was only one warning sign in use, as can be seen in the CCTV. Other signs were available but had not been deployed and certainly not on the plaintiff's path to the travelator. 19He said the cleaning of the travelators was usually his first task because it needed to be done before shoppers arrived. It was his responsibility to turn the travelator on after it had been stopped overnight. He said the bubble area was often dirty because it was white and trolleys had passed over it. The steel strip was not cleaned everyday because the dirt was not apparent. It was cleaned weekly or perhaps even monthly. Presumably the dirt from trolley wheels also went onto the steel section but was ignored because it was not aesthetically offensive. It was necessary for there to be a coffee spill, or like event, to generate the steel strip being cleaned. 20This attitude is not relevant to the plaintiff's fall but is indicative of the general approach taken to cleaning by the defendants. Mr Dahal could not recall if the steel section had been mopped on the day of the plaintiff's fall. Whatever the case I am satisfied that water had been allowed to go on to the steel section because it is the most likely place for the water to have been encountered by both the plaintiff and Mrs Willis. 21The pallets of the travelator were only cleaned about once every 6 months. Mr Dahal was sure they had not been cleaned the night before the plaintiff's fall. 22The second defendant called Mr Shambanna to give oral evidence. He was also a straightforward witness, although there was no attack on his credibility. He dealt a fatal blow to the first cross-claim (Manager v Cleaner) to the extent that it was based on the terms of the contract between the parties. No submissions were made to the contrary. 23Both cross-claims were thus left to be decided on the basis of the defendants' roles, if applicable, as joint tortfeasors under Section 5 of Law Reform (Miscellaneous Provisions) Act 1946. 24Another important element of Mr Shambanna's evidence was he said that although the method of cleaning was left to the cleaner the overall timing and structure of the cleaning activities "was completely directed by Carmen, onsite, who was the centre manager...." (T 225.17). He said that the manager did not wish the centre to be cleaned outside of opening hours. He referred to "house rules" set by the manager to this effect. 25I note that the second defendant was also contracted to supply security personnel (Exhibit 1D4) and can see no reason why the cleaner could not have attended to the travelator area before it was switched on. Mr Dahal even said that at certain times the same person carried out roles of cleaner and security officer. 26The plaintiff relied on an expert report from Mr Beckett. He was cross-examined and frustrated the attempts of the two cross-examiners to draw a concession from him that his testing of the surface of the travelator was defective. 27The main difficulty with his report, said the defendants, was that the assumptions upon which he relied were not made out (Exhibit B, page 76). I agree that the assumptions, in specific terms, were not established. For example, it was not unknown to the plaintiff that the cleaner was wet mopping the area. She saw him doing so as she approached. I do however think enough of the background facts have been established to give the testing a proper foundation. 28The defendants tendered the report of Mr Donohue (Exhibit 1D1). Despite this initial reliance counsel for the first defendant ultimately described the report as "useless" and a "waste of money."(T. 321.47). I would not adopt that description but the report does seem overly concerned with tribology and the need for Woolworths to be vigilant in its monitoring of its employees shoes. 29Mr Beckett was of the view that the moving surface of the travelator was slippery when wet. He established this using a Mitutoyo Surface Roughness Instrument, which apparently measures the micro roughness of a particular surface. On the basis of a paper by "Shaw and Harris" (Exhibit K) Mr Beckett said his results placed the moving surface of the travelator (the pallets) in the slippery when wet category. Mr Beckett was closely cross-examined on exactly what the Shaw and Harris research revealed. He accepted that he had not recorded the parameters in the study with precision but nevertheless said his figures were well within the limits that Shaw and Harris would regard as rendering a surface slippery when wet. 30The defendant's expert, Mr Donohue, was particularly critical of Mr Beckett's micro roughness testing. He says that macro roughness testing should have been done and he added: "indeed, it should be apparent even to a lay reader that a macro-roughness is more important than micro-roughness". The court is in the position of a lay reader and it was not apparent to the court that this would be the case, notwithstanding Mr Donohue's perception that it was really rather obvious. 31Mr Donohue, in paragraph 44, also criticises Mr Beckett for conducting his measurements while the travelator was moving. He adds gratuitous comments such as: "If he did stop it (presumably with permission) then security must have come along to start it up again". 32The point that Mr Donohue misses is that the plaintiff fell when the travelator was moving. It therefore seems entirely appropriate that the test be conducted on a moving travelator. 33Mr Donohue's report (Exhibit 1D1) makes much of the plaintiff's footwear. He says in paragraph 7: "The footwear were defective. Unless brand new footwear had only just been given to the plaintiff, by her employer, the heel edge must have been worn to a flat. This is an inevitable and common occurrence within a very few weeks of use of a soft elastomeric material upon hard pedestrian flooring environments such as terrazzo, tiles (glazed or vitrified) etc." 34Mr Donohue later seems to suggest that the plaintiff was at fault in wearing the shoes that she had on. He says: "It was open to her to take note of that fact (that her shoes were wet) to effect suitable contact on the travelator. However, knowing it to be worn she was also in a position, and prior, to warn her employer of the wear to her footwear. They too, of course, should have effected a design strategy when purchasing footwear for their employees." 35Mr Donohue's over personal attack on Mr Beckett was also evident in relation to footwear. He said: "Mr Beckett clearly did not know anything about the footwear, ie their material design, methods of analysis, means of testing, etc, nor of angle of approach of footwear and the connection with wear analysis." 36Mr Donohue's opinion was that "nothing served [sic] by this writer identifies that the surface is unsafe or a danger when wet". Ultimately I have derived little assistance from the experts. I do accept Mr Beckett's opinion that the pallet surface was slippery when wet but this seems little more than an application of common sense. 37I think the starting point in resolving liability is to look at the duty of care owed by an occupier to a legal entrant. This was plainly set out in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. An occupier has a duty to a lawful entrant to "take reasonable care to avoid a foreseeable risk of injury to the person concerned". This duty obviously applies to the manager. I think it also applies to the cleaner to the extent that the cleaner must take reasonable care to avoid a foreseeable risk of injury to persons like the plaintiff. 38I think the above formulation is consistent with Section 5B of the CLA, although it is still necessary to ensure the plaintiff has established the ingredients of the section. Section 5E places the onus squarely on the plaintiff. 39Section 5B is as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 40Even if some distinction could be made with the section I am satisfied that the risk of harm to the plaintiff was foreseeable and the risk was not insignificant. I am further satisfied that a reasonable person in the defendants' position would have taken precautions against the risk. 41Looking at Section 5B in more detail I am satisfied that a risk of a person walking through a wet surface and then onto a metal moving travelator (in a downward direction) and slipping was foreseeable. The tribological (lubricating) reaction between water and a hard surface is well known, and well known to create a slippery medium. I am therefore satisfied that the risk was not insignificant and that a reasonable person in the position of the defendants would have taken precautions against a risk of harm. 42In respect of Section 5B(2) I am satisfied that harm was a significant probability if precautions were not taken. Allowing a person to walk through a wet surface onto the travelator is easily preventable. I will return to this aspect below. A person falling onto a hard metal surface is susceptible to significant injury and the burden of taking precautions, in my view, was not onerous. I do not think Section 5B(2)(d) is relevant here. 43In relation to the precautions that could have been taken the cleaning could easily have been done before the centre was opened, the cleaner could have halted the plaintiff's progress and asked her to wait until he had dried the surface and he could have placed a 'no entry' or other warning sign in the path of the plaintiff, not only the one sign that is to be observed in the CCTV footage. I also think reasonable precautions would have included the roping off the area while it was being cleaned. I do not, however, take this into account as no questions were put to the cleaner raising this possibility and giving him the opportunity to say why the action may not have been possible or practical. 44As far as the defendants are concerned, I think the first defendant is liable to the plaintiff for not requiring the cleaning to be done outside public hours. The travelator, perhaps even more than stairs generally, is an inherently dangerous device. The first defendant would have been aware that cleaning around the travelator would make the area wet and therefore dangerous to a person whose shoes became wet. The manager could have directed the cleaner to carry out his task either when the travelator was stopped or before opening hours. In this respect the cleaner also bears some responsibility. He had the capacity to turn off the travelator during his cleaning exercise. 45I also think the first defendant carries a liability generally for the actions of the cleaner. I do agree that the obligation in respect of efficient cleaning can be delegated but I do not accept that there had been a proper delegation in the present case, at least sufficient to relieve the first defendant of liability. 46Hodgson JA in Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 at paragraph 53 said this: "[53] There is no doubt also that this occupier's duty of care is "delegable", in the sense that it May be discharged in whole or in part by the occupier's exercise of reasonable skill and care in engaging someone else to take steps to keep the property safe either generally or in particular respects. Discharge of the duty in this way requires reasonable skill and care in the selection of the other person, in arranging the terms of engagement of that person, and in confirming that the person does take appropriate steps. If it is reasonable for an occupier to seek to discharge or partly discharge the occupier's duty in this way, and the occupier does exercise reasonable skill and care in all these respects, then if a person coming on to the property is injured due to the failure of the other person engaged to exercise reasonable skill and care to keep the property safe, the occupier May escape liability." 47The history of the engagement of the second defendant was that there had been difficulties with previous cleaners. The second defendant was engaged in November 2007 to provide interim cleaning on a monthly basis pending a proper tender for the work. The basis for the selection of the second defendant seems to have been that Mr O'Reilly knew the second defendant cleaned in other shopping centres managed by the first defendant and would be able to take over the cleaning at Chester Hill on a provisional basis. 48An onsite meeting was arranged but there is no evidence of any discussion of risk factors, of competence or of any other matter which would substantiate the exercise of reasonable skill and care in the selection of the second defendant. The terms of engagement are minimal and there is no formal contract requiring specific steps to be taken by the cleaner in the exercise of its obligations. 49The defendants submitted that the plaintiff had failed to establish that her injuries had been caused by any breach of duty of care on the part of the defendants, as required by Section 5D of the CLA. I disagree. In my view, but for the negligence of the defendants the plaintiff would not have entered an area where water could be collected by her shoes and then stepped onto the moving metal surface of the travelator. In other words, but for the defendants' actions the plaintiff would not have slipped. 50The defendants submitted that they were not under a duty to warn the plaintiff of the risk which she faced because that risk was obvious as defined in Section 5F. Although the plaintiff saw the cleaner as she approached the travelator, the plaintiff submitted that the actual risk to which she was about to be exposed was not obvious. The plaintiff said that the specific risk must be identified and relied on this passage from the New South Wales Court of Appeal decision in C G Maloney Pty Ltd v Hutton-Potts and Another [2006] NSWCA 136 at paragraph 113: "[113] I do not consider that the remaining sub-sections of s 5F render the statutory definition of "obvious risk" applicable to these circumstances. The spilt polish being left rendering the floor slippery was not a "patent risk" to the unaware so rendering it an obvious risk; the most that could be said was that it was arguably common knowledge that cleaners on occasion do their job carelessly so that spilt polish might be a possibility; s 5F(2). Of course if it were well-known to the plaintiff that a particular cleaner was excessively careless and regularly left polish on the floor, that would be a case converting the mere possibility of some risk into a patent risk, arising as a matter of common knowledge. But this was never such a case." 51I agree with the plaintiff's submissions on this point. What would have been obvious to the plaintiff was that the cleaner was using water on the surface ahead of her. Use of water might create a danger of slipping. What would not, however, have been obvious to her was the risk created by first of all stepping on water, then having the soles of her feet become wet and then being susceptible to the lubricating effect of wet shoes on the moving steel surface. I therefore do not think that the obvious risk provisions of the CLA assist the defendants. 52If I am wrong in this regard I am nevertheless satisfied that the breach of duty of care of the defendants goes beyond a failure to warn such that the absence of the warning did not disturb the causal link between other acts of negligence on the defendants' part and the plaintiff being injured. 53In relation to the cross-claims I think the second defendant must bear the majority of blame. Through its cleaner it did the work in a negligent manner and with the ease of simply stopping the plaintiff from proceeding as a means of alleviating the risk of her fall. I think the first defendant should be entitled to a contribution from the second defendant of 80% of the plaintiff's damages. 54In relation to contributory negligence, my initial impression was that the plaintiff might be responsible for as much as 25% by way of contribution to her loss. However, the close inspection of the video, which I have referred to above, establishes that she did attempt to hold the handrail on the right hand side. Nevertheless I think there is some contributory negligence in that having decided to walk through the wet area she should have taken extreme caution in proceeding down the travelator. I note the views of Mr Beckett about the safety of this sort of conveyance and also observed that when the cleaner descended the travelator he did so with both arms holding on to the handrails and apparently with a good deal of caution. 55On this basis I think the plaintiff's damages should be reduced by 10% in respect of her contributory negligence.

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Judgment (8 paragraphs)

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Cases Cited (5)

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