Arabi v Glad Cleaning Service Pty Limited

The appellant was said to have been wearing flat sneakers and the lighting was recorded as being " good ". 18 Mr Gaddam prepared a "Cleaner's Report" on 1 June 2006, the day after the accident. The report identified the time of the incident as approximately "12-13 pm". The exact time the area was last cleaned was said to be 12.35 pm. In answer to a printed question "How often is the area cleaned?", Mr Gaddam answered "10-15 [minutes]". He also recorded that he had seen nothing on the ramp and that the cleaning times could be verified from "loop sheets". 19 The loop sheet for 31 May 2006 was in evidence. This was a document set out as a grid, with compartments for recording events every five minutes between 9 am and 6 pm. According to Mr Gaddam, whose evidence on this point appears to have been accepted by the primary Judge, he completed the loop sheet as he went along during the day. 20 Mr Gaddam explained that his responsibility on 31 May 2006 was to patrol the central court and podium areas. His responsibilities including attending to any spills. If he detected a spill, he would mark the loop sheet, with a dot for liquids and a tick for solids. He would fill in the form each time he completed a loop of his area, by marking the appropriate box. He did not say where the loop commenced (and presumably ended), but his responsibilities included inspecting the ramp. 21 The loop sheet for 31 May 2006 showed that Mr Gaddam had completed loops of his area, relevantly, at 11.45 am, 12.15 pm, 12.35 pm, 12.55 pm., 1.10 pm and 1.30 pm. The loop sheet recorded a total of 26 loops for the day (between 9 am and 5 pm) and also recorded four spillages, one of which was of liquids. Mr Gaddam could not recall whether the reported liquid spillage related to the ramp. 22 The appellant underwent right knee arthroscopies on 23 May 2007 and in June 2008, both at Bankstown Hospital. There was medical evidence that he could require further surgical intervention and that it was likely he would develop degenerative arthritic change in the knee.

PRIMARY JUDGMENT 23 The primary Judge delivered an ex tempore judgment on 4 June 2009, after a two day trial. His Honour did not have the opportunity to edit the judgment prior to his untimely death. 24 The primary Judge made the following factual findings:

there was no doubt that the appellant suffered injury to his right knee on 31 May 2006;

on the balance of probabilities, the accident occurred on the ramp as the appellant described;

following the accident, the appellant was severely incapacitated and required crutches for a time;

after the second arthroscopy, the condition of his knee improved; and

by the hearing the appellant, while experiencing some consequences of the injury, was mobile and relatively pain free.

His Honour made no finding as to the precise time the accident occurred on 31 May 2006. 25 The primary Judge identified the "real issue in terms of breach of duty" to be whether the respondents, or either of them, failed to provide a system which resulted in the surfaces of the Centre being safe. His Honour noted that Mr Gaddam's report had stated that he had observed nothing on the ramp. However, to the extent that there was a conflict between the appellant and Mr Mourgarbel on the question of the spillage, the primary Judge preferred the evidence of the appellant. His Honour made no reference to the loop sheet, the recordings on which, if accurate, seemed to support Mr Gaddam's evidence on this point. 26 The primary Judge then addressed the question of whether there was "a proper system of cleaning in place". His Honour recorded Mr Gaddam's evidence that the area of the Centre for which he was responsible was cleaned every fifteen or twenty minutes. The loop sheet showed that the area was cleaned at least three times and often four times each hourly period. 27 His Honour accepted Mr Gaddam's evidence that in an area, such as the upper level of the Centre where there are no food shops, continuous cleaning, with only short intervals between inspections, is not as important as in areas with food outlets. His Honour was satisfied on the balance of probabilities that: "the system of cleaning in operation was reasonable and therefore there was no breach of the [respondents'] duty in the circumstances that gave rise to this case." 28 Although finding against the appellant on liability, the primary Judge assessed the damages he would have awarded had he found in the appellant's favour. 29 He described the appellant as intelligent and articulate and capable of working with computers or in a sales position which did not involve extensive walking. The appellant had been working as a handyman on a contract basis. While he had applied for various jobs, he had been unsuccessful. 30 The primary Judge said that he had a picture of a man who had "a sporadic employment history with long periods of unemployment". His employment prospects would also be affected by two factors. One was that the appellant admitted fabricating a curriculum vitae which he had used in connection with two job applications. The second was that he had criminal convictions "a long time ago" for offences of dishonesty. 31 The primary Judge declined to speculate whether the appellant would have retained the position he had been offered at Salex. His history, however, suggested that his tenure would not have been as certain as his counsel had suggested. 32 His Honour said that he proposed to: "assess the compensation I would have awarded by suggesting that the appropriate award would have been a cushion in a lump sum of $60,000 for loss of future earning capacity. I consider that notwithstanding the two surgical procedures, his injuries amount to less than fifteen of a whole person impairment so that there will be no damages for non-economic loss. I would make an award of $10,000 for future out of pockets, and for out of pockets of $4,184. Because of the fact that he was speaking on the mobile phone when he was climbing up the stairs and not keeping a proper lookout, I would have assessed contributory negligence at thirty-five per cent."

In this manner, his Honour reached the figure of $74,184, to be reduced by 35 per cent by reason of the appellant's contributory negligence.

REASONING 33 Ms Norton SC, who appeared with Ms Fraser for the appellant, submitted that the primary Judge had given insufficient reasons for his finding that the system of cleaning was "reasonable" and therefore involved no breach of any duty owed to the appellant. She contended that the primary Judge should have referred to evidence by Mr Gaddam suggesting that the cleaning contract required inspections to take place every 10 to 15 minutes, rather than the 20 minute intervals which seemed to be the norm between 11.45 am and 1.30 pm (with one interval of 30 minutes and another of 15 minutes). She also submitted that the primary Judge should have taken account of the appellant's evidence that the spillage "look[ed] as though it had been sitting there for a while" and that he had observed foot marks tracks. According to Ms Norton, this evidence suggested that the spillage had been there for some time. 34 There was no dispute - indeed very little discussion in argument - about the duty owed by the respondents to the appellant. The owner and occupier of business premises owes a duty to a customer or other lawful entrant to take reasonable care to avoid a foreseeable risk of injury to the person concerned: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479, at 488 [12], per Mason, Wilson, Deane and Dawson JJ (a case of slipping on a wet supermarket floor). The occupier is required to exercise reasonable care to prevent injury to the customer or lawful entrant using reasonable care for his or her own safety: Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330, at 345-346 [45], per Gummow J (with whom Heydon J agreed); Laresu Pty Ltd v Clark [2010] NSWCA 180, at [38], per Macfarlan JA (with whom Tobias JA and Handley AJA agreed). 35 The primary Judge identified the relevant issue as whether the system of cleaning was "reasonable". However, the critical issue was that identified in s 5B(1)(c) of the Civil Liability Act 2002 ("CL Act"). This was whether the appellant had discharged the burden of proving that the respondents had failed to take such precautions against a risk of harm to the appellant as, in the circumstances, a reasonable person in the position of the respondents would have taken. In determining that question, his Honour was bound to consider, among other relevant things, the matters set out in s 5B(2) of the CL Act, as follows: "(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." 36 The primary Judge was bound to give adequate reasons for his conclusion that the appellant had failed to discharge the burden on him. The reasons did not need to be lengthy, but they did need to expose his Honour's reasoning process: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, at [56]-[57], per McColl JA (with whom Ipp and Bryson JJA agreed). 37 In my opinion, his Honour's reasons did not adequately expose his reasoning process. It is not clear, for example, whether the primary Judge found against the appellant because his Honour formed the view, on the basis of his own experience, that it was reasonable to allow intervals of 20 minutes for inspection in an area away from the food shops. If this was not the basis for the decision, did his Honour infer from Mr Gaddam's evidence that to allow intervals of 20 minutes was a reasonable system of inspection? Despite couching his finding in terms of reasonableness of the system, did his Honour mean that the evidence was insufficient to persuade him that the respondents had failed to take the precautions that a reasonable person in that position would have taken to prevent a user of the ramp slipping on liquids spilt onto the surface? If so, why was he not persuaded? The judgment does not address or answer these questions. 38 The absence of adequate reasons does not necessarily mean that a new trial will be ordered. The appellate court will not do so if the only conclusion open on the evidence was that reached by the primary Judge: Pollard v RRR Corporation, at [67]. Where there are no credit issues to resolve, the appellate court may be in as good a position as the trial judge to decide the matter and it may ultimately reach the same conclusion as the trial judge: Pollard v RRR Corporation, at [67], citing Hunter v Transport Accident Commission [2005] VSCA 1; 43 MVR 130, at [37], per Nettle JA. 39 In the present case, neither party challenged such findings of primary fact as the primary Judge made. The question of whether the respondents breached their duty of care to the appellant turns on those findings and on the inferences to be drawn from uncontentious evidence or evidence that does not depend on issues of credit. Accordingly, this Court is in as good a position as the primary Judge to determine whether the respondents breached their duty of care. 40 Ms Norton argued that the evidence showed that the respondents had breached their duty of care by not having in place a system of inspection that ensured that the ramp and the podium area were inspected at least every ten minutes. However, the principal difficulty facing the appellant's argument is that no evidence was adduced to establish the steps a reasonable person in the position of the respondents - that is, occupiers of a large shopping mall - would have taken to prevent the risk of harm from spillages, in particular in the area (including the ramp) which was Mr Gaddam's responsibility. There was, for example, no evidence of industry standards or of the practice at any comparable shopping mall, much less evidence which demonstrated a general practice of inspections at least every ten minutes. Nor was there any expert evidence dealing with matters relevant to the criteria in s 5B(2) of the CL Act, such as the nature of the risk to the Centre's customers, the measures open to the respondents to minimise the risk and the costs of any alternative system. For example, the evidence did not establish the precise number and location of food outlets and the risk they presented of spillages on or near the ramp. Except for some cross-examination which elicited answers at a high level of generality from Mr Gaddam and Mr Mourgarbel, evidence was not adduced of the incidence of spillages at the Centre or of injuries resulting from spillages. 41 I do not suggest that evidence of the kind I have identified is always essential. Every "slipping case" must depend on its own circumstances: Kocis v SE Dickens Pty Ltd [1998] 3 VR 408, at 409, per Ormiston JA, at 415, per Phillips JA. The absence of expert or industry evidence may not matter if, for example, the evidence suggests that the occupier simply did not have any system of regular inspection of the premises for the purpose of detecting and cleaning up potentially dangerous spills: cf Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241. Similarly, an injured person may be able to establish a breach by an occupier of its duty to exercise reasonable care by demonstrating that the occupier had a system in place, but the system was not in operation at the time the accident occurred: cf Rose v Abbey Orchard Property Investments Pty Ltd [1987] Aust Torts Rep 80-121, Kocis v SE Dickens Pty Ltd. 42 In the present case, the respondents had in place a system that required regular and frequent inspections of the relevant area. The system incorporated a mechanism for keeping records of the inspections that took place each day. Inspections in fact took place on the day of the accident at intervals of about 20 minutes, with variations of up to 10 minutes either way. The variations reflected, as Mr Gaddam's evidence explained, the particular demands on his time and that of other cleaners employed by Glad. He said that the patrols normally took 15 to 20 minutes, but this could be longer if, for example, he had to empty bins, or undertake "detailing work" or attend to a spill. 43 Ms Norton acknowledged the absence of evidence directly addressing the adequacy of the respondent's inspection and reporting system. She submitted, however, that it was open to infer from Mr Gaddam's evidence that the system was inadequate. In particular, she relied on Mr Gaddam's evidence concerning the contractual arrangements between CPT and Glad relating to the cleaning of the Centre. 44 The contractual arrangements between an occupier and cleaner, depending on the circumstances, may justify or support an inference that the contractual requirements represent the appropriate precautions the occupier should take to remove or minimise the risk of injury to customers through spillages or other mishaps. The contractual arrangements may support a further inference that a significant departure from the contractual system constitutes a want of reasonable care and, subject to other questions such as causation, warrant a finding of negligence against the occupier or cleaner. In Dean v Stockland Property Management Pty Ltd [2010] NSWCA 66, for example, a cleaning contract was relied on in this way: see at [14], [47], [51], per Whealy J (with whom Giles J and Handley AJA agreed). 45 In the present case, the relevant contract was not tendered. The appellant complained that the document was in the respondents' possession and that they could have tendered it. However, the onus was on the appellant to make out his case and it was open to him to require the respondents to produce the contract so that it could be tendered at the trial. That step was never taken. 46 Mr Gaddam's evidence about the contract was scanty. In his evidence in chief, Mr Gaddam was asked about the notation in his report of 1 June 2006 that the area was cleaned every 10 to 15 minutes. The passage is as follows: "Q. You see the item there, 'How often is the area cleaned'? A. Yes Q. Where did you get that information from? A. It's actually the part of the contract that we are supposed to do the loops.

Q. Yes but where did you get the information from that it was cleaned every ten to 15 minutes?

A. It's just the loop that we completed so I had to write down 10 to 15 minutes." 47 The contractual issue was briefly adverted to in Mr Gaddam's cross-examination when asked whether the contract provided for a patrol every five minutes, Mr Gaddam said he was not sure. The subject arose again in the following passage: "Q. … you were not being accurate when you said that the area was patrolled every ten or fifteen minutes, in reality you were just writing down what should have happened, weren't you?

A. Whatever I remember on the day I have written down.

Q. But do you remember when you were being asked questions by Mr Sleight, one of the things you said yourself was, that the cleaning contract required patrols at the interval, you wrote down in that form?

Q. Well you didn't write down fifteen to twenty minutes did you?

Q. You wrote down, ten to fifteen minutes, didn't you?

Q. And you told us didn't you that's what the contract said?

A. Yes, but on the day when I did the patrol like how often you clean the loos, on the day might be ten to fifteen minutes which we call average are not on the day." 48 In his examination in chief, Mr Gaddam did not state expressly that the contract required a loop to be completed every 10 to 15 minutes, although that is one possible interpretation of the second answer in the passage. When the cross-examiner asked about the interval between each loop, Mr Gaddam said 15 to 20 minutes. The answer to the next question was equivocal and the matter was not further pursued. Mr Gaddam, who was a part-time cleaner at the time (although he apparently later became the client service manager for Glad), was not asked about the source of his knowledge of any contract, or indeed whether he had even seen the contract. Nor was he asked whether anything that he or his colleagues did (or did not do) on 31 May 2006, at around the time of the accident, involved a departure from the terms of Glad's contract with CPT. 49 Mr Gaddam's evidence left Glad's contractual obligations in a state of uncertainty. Further, it is inherently unlikely that a written contract would express obligations by reference to such variable periods such as "15 or 20 minutes" or "10 or 15 minutes". A written contract would be likely to specify patrol and inspection requirements with greater precision and perhaps incorporate permitted departures from the norm to cater for unexpected or irregular problems. In the absence of documentary evidence in this case, no inference can be drawn in favour of the appellant that the system of inspection, as it operated at about the time of the accident, involved a breach of Glad's contractual obligations to CPT. 50 Ms Norton also relied upon the variations from the norm of a loop or patrol of the relevant area every 15 minutes or so. But any variations were relatively minor and certainly did not involve a termination of, or substantial interruption to, the system of inspection. In the absence of evidence that the variations reflected a departure from the standards to be expected of a reasonable person in the position of the respondents, this Court cannot infer that an interval of 25 minutes or even 30 minutes involved a breach of duty to the appellant. 51 The burden of proving that the respondents breached the duty of care they owed to the appellant was borne by the appellant. In my opinion, the evidence adduced at trial fell well short of discharging that burden. 52 The appellant faced a further difficulty, even if he had established a breach of duty on the part of the respondents. As I have noted, Ms Norton's submission was that the respondents breached their duty of care by failing to implement a system of inspections of the relevant area at least every ten minutes. If that submission were to be accepted, it would be necessary for the appellant to prove on the balance of probabilities, that the breach caused his injuries: CL Act, s 5E. For that burden to be satisfied, the appellant would have to show that the existence of a proper system would have avoided his injury: Brady v Girvan (1986) 7 NSWLR 241, at 256, per McHugh JA; Rose v Abbey Orchard, at 68,928, per curiam. 53 In the present case, the appellant did not identify the precise time at which his injury was sustained. The appellant said that he went to the Centre at about 12 noon on 31 May 2006 and that he attended the Commonwealth Bank before proceeding to the ramp. He did not say how long he was at the Bank. 54 According to the loop sheet completed by Mr Gaddam, loops for the area including the ramp were completed at 12.15 pm, 12.35 pm, 12.55 pm and 1.10 pm. This evidence suggests that the ramp was inspected at least every 20 minutes during the period the appellant's injury could have been sustained, although the precise time of each inspection of the ramp itself was not established. 55 In Rose v Abbey Orchard, the Court observed (at 68,929) that: "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. We think that the present case is one where, on the probabilities, a proper system would have eliminated the risk." 56 On the assumption that the appellant could establish that the respondents had breached the duty they owed to him, it was necessary for him to prove that the breach caused his injuries. To do this, the appellant had to prove, on the balance of probabilities, that a proper system (on the appellant's argument, a system requiring inspections every ten minutes) would have avoided his injury. 57 The evidence did not demonstrate that the spill had probably been unattended for a period longer than a minute or two, although it is possible that the spill had been there longer. The appellant's claim to have observed wheel tracks and foot marks in the sticky area, if correct, would not establish as a matter of probability that the liquid spill had been there for more than a very short time. The appellant's own evidence was that he chose to use the ramp in preference to the stairs because of congestion on the stairway, indicating that pedestrian traffic was heavy in the area at the time. 58 The courts in spillage cases have tended to infer that an occupier's breach of duty was causally linked to the customer's injury where the occupier had no system of inspection in place at all or where a system of periodic inspection was in place but had not been in operation for some time prior to the injury being sustained: Kocis v SE Dickens Pty Ltd, at 419-421, per Phillips JA, referring to Shoeys Pty Ltd v Allan [1991] Aust Torts Rep 81-104, at 68,940, per Mahoney JA. In such circumstances it has been held that a plaintiff can succeed without necessarily establishing the precise time of the accident or the precise length of time the spillage was on the floor. It may be more difficult to establish that the absence of a proper system caused the plaintiff to fall, where the defendant has a system of regular inspections, but during the relevant period conducts each inspection less frequently than is reasonable in the circumstances. 59 On the appellant's argument in this case, the question is whether the appellant proved on the balance of probabilities that his injury was caused by the respondents' breach of duty, on the basis that a reasonable occupier would have instituted a system of inspections at intervals not exceeding ten minutes. In my view, it is doubtful whether the appellant discharged this burden. However, as the issue was not fully argued and it is not necessary to decide, I think it preferable not to express a final view.

QUANTUM 60 The conclusion that the appeal on liability should be dismissed makes it unnecessary to deal with the appeal on the quantum of damages. It is appropriate to note, however, that if the appeal on liability had succeeded, the appeal in relation to damages would also have been allowed and the matter remitted for a re-assessment. 61 One of the critical issues his Honour had to resolve was the loss, if any, the appellant had sustained by reason of his inability to take up the offer of a relatively well-paid position with Salex. His Honour declined to speculate as to whether the appellant would have maintained his position or not. However, in order to give proper consideration to the appellant's claim both for past economic losses and future economic loss, it was necessary to make some findings as to the appellant's prospects of continuing in that position during and after the three months probationary period. The reasoning of the primary Judge does not explain why he made no award for past economic loss and does not explain satisfactorily why he limited the award for loss of future earning capacity to a "cushion" of $60,000.

CONCLUSION 62 The appeal must be dismissed. The appellant must pay the respondents' costs of the appeal. 63 HARRISON J: I agree with Sackville AJA. **********

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