Awad v ISPT Pty Limited & Jones Lang LaSalle

District Court of NSW|2015-10-27|Before: Mr J

Judgment

HIS HONOUR: Late in the afternoon of Sunday 5 February 2012 the plaintiff, Mrs Maryam Awad, slipped on a wet floor in the Southgate Shopping Centre at Sylvania and now alleges that she sustained physical injury. The plaintiff has commenced an action against three defendants. The first defendant, ISPT Pty Limited, is the owner of what is known as the Southgate Shopping Centre. The second defendant, Jones Lang LaSalle (NSW) Pty Limited, is the property manager of the Southgate Shopping Centre, appointed by the first defendant. The third defendant, Glad Cleaning Services Pty Limited, is the company which has a contract with the first defendant to provide cleaning services at the Southgate Shopping Centre.
What ought to be a fairly straightforward case has been hotly contested over a lengthy period of time. It is perhaps appropriate that I discuss the question of damages first in the pious expectation that, in some way, it might lead to a shortening of the issues joined between the parties, in particular the issues arising between the defendants. I also adopt this course because the time available for me to give ex tempore reasons is limited by the fact that addresses have taken so long and that I will be on circuit next week in Griffith.

The plaintiff's background

The plaintiff was born on 22 August 1971 in Egypt. At the time of the incident in question she was 40 years and 5 months old. She is currently 44 years old. She is a married lady with a husband and three children. She has two daughters aged 20 and 17 and a son aged 16. She was living at the time of this accident at 13 Dudley Street, Kirrawee, at which, during the week days, she was conducting a small child minding service. That was her source of income. She was interviewed by the late Dr Elias Matalani on 24 June 2013 at the request of her solicitors. Dr Matalani took a history, which includes the following information: "She is married and has three children.....She does not smoke, and occasionally consumes alcohol. She plays no sports and was not engaged in any pre injury sporting activity. She completed year 12 in Egypt and also did some studies in accountancy but did not complete it. She worked as a volunteer in childcare at the church for nearly 18 months. In 1997 she came to Australia and completed a course in business management and also completed Certificate 3 for Children's Services. Initially she worked as a housekeeper at a hotel for two years and then ran her business in family day care since 2004. This was her employment at the time of the injury. Prior to her injury she worked approximately ten hours a day, five days a week."

The plaintiff's injury

The plaintiff slipped on water on the terrazzo floor of the common area of the Southgate Shopping Centre, near the main entry to that shopping centre. She fell onto her right side. Both exhibit G, an incident report form prepared on behalf of the third defendant, and exhibit H, an incident report form prepared by the provider of security at the Southgate Shopping Centre, indicate that the plaintiff's fall occurred at 4.50pm. According to exhibit H, the security guard arrived at the scene of the plaintiff's fall at 5pm. He found a male nurse providing assistance to the plaintiff, which is described in the exhibit as "first aid". The security guard's narrative continues thus: "The male nurse told me that he contacted the ambulance and they were on their way." Later in the document it is recorded that the male nurse placed the plaintiff in "the recovery position". It would appear that the plaintiff remained in the recovery position until the ambulance officers arrived. The records of the Ambulance Service indicate that the call to 000 was made at 5pm, that the ambulance was dispatched at 5.07pm and arrived at the Southgate Shopping Centre at 5.15pm and located the patient, that is the plaintiff, at 5.18pm. She was placed on the ambulance stretcher at 5.33pm and the ambulance arrived at the Sutherland Hospital at Caringbah at 5.41pm.
The ambulance report tells me that when the ambulance officers reached the plaintiff, she was laying on her right side. She complained to the ambulance officers of pain in her upper right arm and in her right shoulder. On examination the ambulance officers noted that there was no immediate threat to the plaintiff's life and they could find nothing wrong with either her right upper arm or her right shoulder. Their initial assessment was "soft tissue injury", then added that the plaintiff was calm and quiet, that her speech was clear and continuous. The treatment given to the plaintiff was "reassurance", and a cervical collar and a sling to hold the plaintiff's right arm. They made observations of the plaintiff at 5.20pm. Her pulse was regular at 88. Her blood pressure was 130 over 80. The Glasgow Coma Score was 15. In other words, essentially the plaintiff was normal. However, the same chart of "vital signs" tells me that the plaintiff's pain was "severe". Having arrived at the hospital at 5.41pm, the plaintiff and the ambulance officers had to wait for triage to occur. According to the hospital records, triage commenced at 6.12pm. According to the ambulance records, it commenced at 6.15pm. Whilst waiting at the hospital with the plaintiff the ambulance officers carried out a further assessment of the plaintiff at 5.45pm. Again, her blood pressure was as it was earlier in the afternoon, her pulse was the same as it was earlier, the Glasgow Coma Scale was again 15. The only change was that the plaintiff's pain dropped from "severe" to "moderate". It is to be noted that no pain killing medication was provided by the ambulance officers to the plaintiff.
Although the triage records of the hospital indicate the commencement of triage at 6.12pm, the notes about how the plaintiff was were made at 6.13pm. The notes merely record as "slip and fall at shopping centre", then raise a query as to the plaintiff having pain in her right humerus. The pain was described as being "five out of ten", and it was noted that no medication had been provided by the ambulance officers. The plaintiff was not given any pain killing medication until 7.45pm. She was given one 5 milligram Endone tablet and 1 gram of Panadol. She was examined by, I assume, a medical practitioner at 7.48pm, that is, shortly after being given the medication. The history recorded by the medical practitioner is unremarkable. On examination there was no obvious swelling or deformity of the right shoulder. The plaintiff's complaint was of pain in the proximal right humerus, and of generalised pain in her shoulder which she was unable to specify. The doctor found mild tenderness in the mid shaft of the humerus, and noticed that the distal clavicle was intact. There was a decreased range of movements due to the pain.
A query was made as to whether there had been any fracture. However, X-ray was performed at 7.23pm and is reported as showing no abnormality. The hospital doctor, under the heading, "Management," merely noted the plaintiff needed a sling and analgesia and the performance of the X-ray. The note immediately then says the X-ray showed that there was no fracture, meaning, I assume, that after making the clinical examination of the plaintiff the hospital doctor then looked up the computerised records and found the radiological report. Another line in the hospital records indicates that the plaintiff returned from the radiology department to the emergency department but then could not be located. Another note, which appears to have been made at 9.07pm, says that the plaintiff told the triage nurse that she was bored and did not want to wait further at the hospital, so she left and went home.
The ambulance records and the hospital records indicate only a minor injury. The fact that the plaintiff became bored whilst waiting at the hospital and went home means that her perception of what was wrong with her was that nothing of any great moment was wrong. Otherwise she would have stayed at the hospital for a diagnosis and/or further treatment.

Subsequent treatment

The plaintiff did not seek further treatment until Tuesday 7 February 2012 at 7.24pm. On that day at that time the plaintiff consulted Dr Khan at a clinic on the corner of Hotham Road and the Princes Highway, Kirrawee, which was obviously a place close to her home. The history recorded by Dr Khan is this: "Fell on her right side in a supermarket when slipped on a wet floor. Seen in Sutherland A&E. X-ray done but awaits report. Right sided neck pain worse today. Took too many Panadeine Forte and now feels nauseated." That is the first complain of neck pain. No neck pain was mentioned to the ambulance officers or at Sutherland Hospital. However such pains are notorious for their late onset. There is nothing untoward, in my view, with a late onset of neck pain due to an event such as a slip and fall. However, there is no explanation of how the plaintiff came into possession of Panadeine Forte, a prescription medication which had not been prescribed to her for this event. She may have had it from some earlier problem, or it may be that it had been prescribed, for example, for her husband. Dr Khan prescribed Maxolon and Tramal and provided the plaintiff with a medical certificate.
The plaintiff next saw a medical practitioner on Thursday 9 February 2012 at 6.54pm. On this occasion it appears to have been her usual general practitioner, Dr Faten Wassef. Dr Wassef records a history of the plaintiff's falling at a shopping centre because of "wet floors". This is then stated: "not sure of what happened." Why the plaintiff should be unsure of what had happened to her on the preceding Sunday is not clear, but it may be that she was unaware of precisely what caused her to fall. Nothing turns on that except to note the plaintiff's recollection of events was, even within a few days of the fall, relatively vague. Dr Wassef noted that the plaintiff "hit" her right shoulder. I assume that that means the plaintiff fell onto the point of her right shoulder, or perhaps onto the upper right arm laterally. On 9 February the plaintiff's neck was very sore. There was a note made that on the preceding day the plaintiff was suffering from nausea. It was also noted that the plaintiff's right knee was painful and the doctor noticed that it was bruised. However, the plaintiff made no complaint to me about her right knee. The doctor noted the plaintiff's right arm was "tingly". Dr Wassef then noted the plaintiff was not able to work for two days. Which two days they were, I do not know. Dr Wassef noted the plaintiff had a "Panic feeling," which may be an expression of anxiety. The doctor then refers to the range of movements the plaintiff's right shoulder but the note does not tell me if they were restricted or not. Whatever plan of treatment was proposed by Dr Wassef on that occasion, the notes do not disclose.
The plaintiff returned to see Dr Wassef a week later. Her visit on 16 February was at 7.55pm. On 16 February the plaintiff told Dr Wassef that her neck was very sore and that physiotherapy had not helped her. It appears that on that occasion it was suggested to the plaintiff that she be seen by Dr Paul Annett who is a sports physician practising at Sutherland. On 16 February Dr Wassef organised for the plaintiff to have a CT scan of her neck and prescribed Valium. The CT scan was performed on 21 February 2012 and is reported by all who have seen it as revealing no abnormality.
On 23 February the plaintiff returned to see Dr Wassef who on this occasion prescribed Endone as well as Digesic. The plaintiff's complaints on 23 February were feeling very stiff and having a lot of pain in her right arm and a tingling sensation in her right arm, suffering from severe headache and the doctor's notes indicted that she thought the plaintiff was "very unwell", which is an indication, perhaps, that the plaintiff had some other condition, such as a medical condition as distinct from a musculo-ligamentous or orthopaedic problem.
On 27 February the plaintiff saw Dr Annett. Dr Annett took a history that the plaintiff described herself as being bruised "everywhere." Dr Annett himself put the word "everywhere" in inverted commas, which indicates to me that he thought it was an exaggeration. It probably was, because there is no evidence of any bruising other than bruising on the plaintiff's right shoulder and right knee. Dr Annett noted that initially the plaintiff's main complaint was her right shoulder but then the pain "progressed to her neck and even left shoulder." That is the first complaint of pain in the left shoulder. How pain that originated in the right shoulder could appear in the left shoulder has not been explained in any fashion, nor is any claim made in these proceedings of the plaintiff's having injured her left shoulder. Medically, the argument of pain migrating from the right shoulder to the left shoulder is nonsense, unless there is a common source for the pain in each shoulder, such as a neck complaint. Under the heading, "Examination Findings," Dr Annett recorded this: "Maryam demonstrated significant pain behaviour throughout the consultation today. She walked slowly and sat with both arms folded and wrapped together. She had less than 10 degrees of active right shoulder elevation, although passively full range could be achieved, although with some pain. She had inconsistent strength loss of rotator cuff testing, most likely pain mediated. She had an extreme loss of cervical movement through all planes, particularly rotation. There was no neurological abnormality." It is clear that the doctor found no objective sign of organic disability. He did, however, find inconsistencies. The words, "significant pain behaviour" are a euphemism to describe the inexplicable. Dr Annett's opinion was this, "Maryam is a difficult management proposition. She has undoubtedly sustained soft tissue injuries at the time of her fall to her right shoulder and neck, although appears to have developed quite a florid pain syndrome after this. I sense there are significant yellow flags here, particularly with respect to pain perception. I have relayed all of this to Maryam today, and suggested that she really needs to start to get herself moving. Physiotherapy will be an important component of this, and I discussed her case with Martine [Shrubsole, a physiotherapist], who has also suggested hydrotherapy, which is a good idea. Aside from this I have commenced her on Norgesic 2 tablets tds for its muscle spasm effect, and also Mobic 15 mg daily after food. I would like to [see] Maryam back in two weeks time to review her progress, but have the feeling she is going to be slow to get better." Clearly even within the first four weeks following her fall the plaintiff was developing a "pain syndrome" which is the modern terminology for what was once called "functional overlay" which can describe a psychiatric condition ranging anywhere between psychosis and malingering. Clearly Dr Annett thought that the plaintiff was besotted with her symptoms and he feared that the plaintiff's concentration or preoccupation on her symptoms might impede her recovery.

[LUNCHEON ADJOURNMENT]

As foreshadowed in his report of 27 February 2012, Dr Annett referred the plaintiff to see Ms Martine Shrubsole at Kirrawee Physiotherapy. Ms Shrubsole made a report dated 9 March 2012 addressed to Dr Annett. By that stage the plaintiff had seen Ms Shrubsole on two occasions. Ms Schrubsole commented that the plaintiff was making "very slow progress". Ms Shrubsole continued thus: "She's still displaying 'learned non-use' of her right arm and is very reluctant to move." The terminology "learned non-use" is terminology describing a condition in which the plaintiff has decided not to use her right arm and is purposefully doing so, not because she is physically impeded from doing so. The diagnoses placed upon the plaintiff by Ms Shrubsole were of cervical whiplash and a right traumatic rotator cuff impingement. How one gets a "whiplash" injury to the neck by falling onto the right hand side of the body has not been adequately explained. One might accept some lateral flexion injury when falling to the ground on one's right hand side. However, one could not expect the classic "whiplash" effect of a rapid movement forward and then backward, perhaps repeatedly, as is common in whiplash injuries sustained in motor vehicle accidents. There is also no objective evidence that there was ever any problem with the plaintiff's rotator cuff on the right hand side.
On 8 March 2012 the plaintiff saw Dr Wassef and told her that her neck was "better". Whether that meant a full recovery or merely an improvement is unclear. However, the doctor noted the plaintiff was then complaining about her left shoulder, a complaint initially observed by Dr Annett on 27 February 2012. The plaintiff told Dr Wassef about having muscle stiffness and sustaining muscle cramping. The plaintiff saw Dr Annett again on 12 March 2012. According to Dr Annett the plaintiff had "pleasingly" made "quite significant progress over the last two weeks." Dr Annett went on to note: "Whilst she is not 100% she acknowledges that she has improved a great deal." On this occasion the plaintiff could forward flex her shoulders to around 90 degrees, which represented significant improvement from the earlier finding. It is not clear to me, however, whether by referring to forward flexion of her shoulders the doctor is referring to the same thing as elevation of the shoulder. Dr Annett also noted that the plaintiff had a significantly improved range of cervical motion. However, he did go on to note that the plaintiff demonstrated "some protective posturing and mechanisms throughout the consultation," again, referring to a non-organic response to examination. The first line in Dr Annett's opinion was this: "Maryam is definitely on the right track, although she still has quite a way to go before she's back to normal." If I am to accept the plaintiff's evidence, she remains on the right track but has yet a long way to go; three and a half years.
Later on 15 March, three days later, the plaintiff went to see Dr Wassef again. The plaintiff told Dr Wassef that she was unable to sleep and that she felt hungry all the time. Dr Wassef prescribed Normison, which I understand to be a drug that induces sleep. On 23 April the plaintiff returned to see Dr Wassef. The plaintiff complained very much of pain although admitted some amelioration in stiffness. The doctor noted the plaintiff had a tremor in her hand, shoulder and neck. Tremors are usually confined to the hand. The doctor noted the plaintiff "dropped some things." The plaintiff complained of feeling very tired. The plaintiff told the doctor that she thought physiotherapy was going "okay" but hydrotherapy was a problem for her. The doctor thought the plaintiff might have some depressive illness and spoke to her about depression. The plaintiff told me in her evidence that she did consult a therapist of some sort, whether it was a psychologist or a psychiatrist I do not know, but after that consultation she felt much better. No psychiatric or psychological medical evidence has been put before me.
The plaintiff saw Dr Wassef again on Monday 30 April 2012. The plaintiff complained of being "very stressed." She had sleeping problems and her sex life was very much affected. The doctor on this occasion prescribed both Mobic and Stilnox, another medication which I understand is supposed to induce sleep. On 2 May 2012 the plaintiff again saw Dr Annett. On that occasion the plaintiff was complaining more about problems with her left shoulder and neck than about her right shoulder. The plaintiff told the doctor that she had had only one session of hydrotherapy and did not continue with it. However, she was still seeing Ms Shrubsole "weekly" according to the history obtained by Dr Annett. The plaintiff told Dr Annett that she obtained a fair amount of relief from the application of heat. The doctor went on to say this: "I would be fairly confident Maryam is doing little in the way of active self treatment for her problem, particularly with respect to exercises." That records the doctor's opinion that the plaintiff was doing little to help herself achieve recovery. One must wonder why. The doctor's examination findings are these: "Maryam had certainly developed improved right shoulder motion, up to nearly 150 degrees actively. She stopped her left shoulder movement voluntarily at 90 degrees flexion, though I could push her up to around 160 degrees actively. She continued to demonstrate significant pain behaviours in the consultation. Her cervical motion was also correspondingly restricted through all planes." Another way of describing "significant pain behaviours" is abnormal illness behaviour. Again, it speaks of some overlying psychiatrically determined or psychosocially determined behaviour. In his opinion the doctor pointed out the plaintiff still continued to demonstrate "significant pain behaviour." The doctor noted that the plaintiff was keen to cease her medication, with which Dr Annett was happy to go along. The doctor ended his report expressing his opinion that the plaintiff needed to be "more proactive" in her rehabilitation exercises to make a full recovery. One wonders if the plaintiff wasn't being active with her rehabilitation regime whether she wished to make a full recovery or whether it was not necessary to do so.
The plaintiff's last treatment with Ms Shrubsole was on 23 May 2012, that information is contained in Ms Shrubsole's report of 12 October 2012. By that stage the diagnosis offered by Ms Shrubsole was "cervical facet joint dysfunction." However, there is no objective evidence of any problem with the plaintiff's cervical facet joints. The first part of Ms Shrubsole's comment to Dr Annett was this: "Maryam attended physio prior to this admission earlier in the year for her neck and right shoulder and she made slow progress. She displayed 'learned non-use' of her right arm and was very reluctant to move and not compliant with active rehabilitation and treatment. Her last treatment session was 23 May 2012 and she has attended no active treatment since then." Again, Ms Shrubsole believed that the plaintiff was not being active in seeking to recover from her problem by participating in the rehabilitation regime.
Dr Annett saw the plaintiff again on 28 May 2012. That appointment was earlier than the doctor had expected. He refers to the plaintiff's complaints as being in her neck and bilateral shoulder girdle. The plaintiff also described to the doctor numbness, particularly in her right arm and into her hand. He noted the plaintiff was still using Endone on a daily basis and also taking sleeping tablets and Nurofen. The source of the Endone is unclear, because the last prescription of it by Dr Wassef was on 23 February 2012. Dr Annett's findings on examination were these: "Maryam could elevate both her arms to around 150 degrees actively, almost full range could be achieved passively. She had global weakness through both her right and left arms of a non myotomal pattern. She again demonstrates significant protective mannerisms, particularly with respect to strength training." Global weakness in each arm is generally thought to be inorganic. As the doctor pointed out, it did not conform with any pattern of musculature and certainly does not conform with any dermatomal pattern, that is of the nerve supply from the cervical spine. Again the use of the words "protective mannerisms" is an indication the doctor believed that what the plaintiff was showing on examination was not organically determined. In his opinion, Dr Annett thought the plaintiff's problems were "soft tissue related cervical pain". He then went on to say that he was fairly confident that the dysaesthesia in the right arm was not structurally related, and he postulated that on the basis that the CT scan revealed no abnormality. Again the doctor is making the point that the global weakness in the right arm could not be caused by any organic problem. The doctor suggested the plaintiff have an MRI scan of her cervical spine, a further investigation just in case there was anything sinister going on in the plaintiff's cervical spine. He also recommended nerve conduction studies, and he commenced a new course of treatment with the drug Lyrica.
In May of 2012 the plaintiff attended twice upon Dr Wassef but not for the purposes of treatment. Each attendance was for making claims for money. The first attendance on 17 May 2012 was to obtain sickness benefits, and the attendance on 31 May was to obtain income protection benefits. The plaintiff did not attend upon any medical practitioner, as far as I am aware, during June, July or the first half of August 2012. That is, there was some ten weeks without any treatment for the condition in respect of which the plaintiff claims damages for total incapacity.
She did attend upon Dr Khan on 9 August 2012 but that was because she had had a cough for seven days and was bringing up yellow sputum and had shortness of breath. It appears the doctor thought that the plaintiff may have some respiratory condition, and inter alia she prescribed an inhaler. The plaintiff went to see Dr Wassef again on 14 August 2012 but the reason for that attendance was because of an upper respiratory tract infection. The plaintiff saw Dr Wassef again on 21 August but that was to give a blood so that pathology tests could be performed. On 28 August 2012 the plaintiff had nerve conduction studies performed. They are reported as showing minor median nerve dysfunction on the right hand side. However, they also disclose no evidence of cervical radiculopathy. It would appear that the minor nerve dysfunction has been subsequently diagnosed as a carpal tunnel syndrome and it is not alleged in these proceedings that that is in any way related to the plaintiff's accident. On 10 September 2012 the plaintiff underwent an MRI scan of the cervical spine. That has been reported by everyone who has seen it as showing no abnormality.
On 14 September the plaintiff saw Dr Wassef. She told Dr Wassef that she was "up and down", especially "mentally". There is reference in the clinical notes to a "voluntary work trial". The doctor noted that the plaintiff was anxious and that she had gained a lot of weight, and that she now weighed 110 kilograms. On 17 September the plaintiff was reviewed for the last time by Dr Annett. The doctor noted that "pleasingly" the plaintiff had improved quite a deal since his last consultation with her. The doctor's report continues thus: "Overall, she still gets a little pain mainly around her shoulder, which occasionally requires analgesics, although this is happening much less often. She still describes some occasional numbness in her right hand, which may trouble her on waking, although does not wake her up. Clinically, today Maryam had almost normal range of shoulder motion, both through flexion and abduction, and little in the way of pain or pain behaviour. Likewise, her cervical range of motion was almost back to normal. Maryam has had an MRI scan of her cervical spine, which was normal. She had some nerve conduction studies which suggested some minor right carpal tunnel syndrome. Overall I am fairly pleased with how Maryam is doing. Some of the numbness she is getting in the hand in the mornings may be related to some early carpal tunnel syndrome, although I would like to just sit and watch this for the time being. I think she understands that being more rather than less active is helpful and it would seem she is moving along the right way at the moment. As such, I have not planned to see her again in the short term unless she had significant and ongoing problems down the track." I am not aware of the plaintiff ever returning to see Dr Annett, nor is there any evidence that the plaintiff has seen any other specialist doctor for treatment. One might think, when one reads carefully Dr Annett's report of 17 September 2012, that the plaintiff had symptomatically made an almost complete recovery. However, that is not her evidence.
On the day after that consultation the plaintiff went back to see Dr Wassef. The notes merely say this: "Forms re return to work done." Presumably the plaintiff wanted to return to work. However, she went back to see Dr Wassef on 8 October 2012. Dr Wassef's notes refer to pain on the "other side of neck" and I presume that means on the left hand side. The plaintiff complained about being very sore. She also said that she was still unfit to work. The doctor noted that she was "very stressed", that she was suffering from palpitations and that she had a high level of anxiety. On that occasion the doctor prescribed Endep. It would appear that the plaintiff's psychiatric problem, whatever its nature, was the major complaint at that time. The plaintiff returned to Dr Wassef on 15 October and told the doctor that she wanted to go back to work and that she proposed to restart going back to work for one or two days, I infer, per week. On that occasion she was also referred to a Dr Michael Talbot. From what I have read subsequently in the doctor's notes it is clear to me that the plaintiff was sent to see Dr Talbot because of the diagnosis of a right carpal tunnel syndrome.
On 6 November there was a further presentation to Dr Wassef and the plaintiff told the doctor that she was happy with the consultation that she had with Dr Talbot. She told the doctor that she was going back either to work in two days' time or going back working two days per week "soon". It was also noted that the plaintiff was awaiting possible surgery, perhaps a reference to a carpal tunnel release.

The plaintiff returns to work

On 20 November the plaintiff returned to working but not in the same fashion as she had been working prior to the accident currently in question. She has never returned to working five days per week, nor has she returned to caring for five children each day. There is one major reason for the latter, and that is because a change in the relevant legislation or regulation meant that from 1 January 2014 the largest number of children the plaintiff could care for at any one time became four. The plaintiff at the current time is caring for four children four days per week, not four children five days per week. That represents her current claim for ongoing economic loss. There have been, since 20 November 2012, certain variations in the plaintiff's working pattern which I do not need to discuss at this time. I shall continue, however, to review the medical evidence.
The plaintiff saw Dr Wassef on 27 November 2012 about an unrelated matter. She saw Dr Wassef again on 4 February 2013 about the need to prepare a report. If any report was prepared it certainly has not been put before me. The doctor's notes state that the plaintiff's pains were "better", but whether that means a complete recovery I do not know. However, the plaintiff also complained of depression and weight gain due to pain and a lack of exercise. From what I have read it appears that at some stage it was sought to seek to establish that the plaintiff's weight gain and the need for subsequently gastric surgery was causally related to the accident in question, but that is no longer pressed, or indeed has not been pressed at all before me. There was an attendance upon Dr Wassef on 19 February, but again it was about an unrelated matter and principally about weight gain and the possibility of having gastric bypass surgery.
The plaintiff saw Dr Wassef on 25 March 2013 and complained of neck pain and back pain. The plaintiff has been complaining since this time of low back pain and it is not suggested that it is in any way related to the accident that I am currently concerned with. The plaintiff saw Dr Wassef next on 6 June 2013 and told the doctor that she had "heavy" pain in the left side of her body "on and off". It appears the plaintiff ascribed this pain to the fact that she was now working "very hard". On this occasion she was prescribed Tramadol and Endone. On 11 June Dr Wassef's notes merely refer to a, "Discussion re stress re injury [to] neck [and] shoulder." No treatment was given at the time. This appears to have been merely a consultation which may have been initiated by the fact that the plaintiff's solicitors had arranged for her to see Dr Matalani on 24 June.

Dr Matalani

By the time the plaintiff saw Dr Matalani she was working three days per week for eight hours each day, minding four children. The plaintiff complained of intermittent pain in her neck. That pain was in the back of the neck and on the right side of the neck and was said to be aggravated by turning her neck to the right. The pain fluctuated in intensity. If the plaintiff elevated her right arm above shoulder height, that increased the pain in the right side of the neck and also caused pain in the right shoulder region. The plaintiff also complained of intermittent pins and needles in the fingers of her right hand which occurred mostly on waking up in the morning. The latter symptoms are clearly due to carpal tunnel syndrome. The doctor's report, under the heading of, "Impact on Activities of Daily Living", records this: "Her walking and standing capacity is generally unaffected. However, with prolonged sitting whilst flexing her neck her pain is aggravated. Prolonged driving aggravates the pain and she avoids it. The cold weather aggravates her symptoms. The neck pain disturbs her sleep. Sneezing aggravates her neck symptoms." It is important to bear those limitations in mind. Amongst other things, the plaintiff claims the cost of gratuitous attendant care services. The claim she makes is under s 15 of the Civil Liability Act 2002. She makes no claim under s 15B of the same statute, which provides for damages for the loss of capacity to provide domestic services to others. The plaintiff gave a history that prolonged sitting whilst flexing the neck aggravated her pain. The plaintiff did not need to do work such as a clerk does or a person who regularly works in front of a computer does, sitting down with the neck flexed forward. That should not affect the activities of daily living as such. Caring for herself did not require "prolonged driving". True it is she had to care for herself in cold weather, but she could obviate such problems by heating her home. The plaintiff did not care for herself when she was sleeping. So the fact that her sleep was disturbed ought not affect her ability to care for herself. I accept that sneezing can affect anyone at any time, but fortunately most of us do not sneeze regularly unless afflicted by an upper respiratory tract infection or some form of allergy. The impact on her activities of daily living recorded by Dr Matalani ought not, in my view, have required the plaintiff to require gratuitous attendant care services.
On that issue the doctor's report continues thus: "She lives in a three-bedroom house with two bathrooms and a small granny flat in the back of the house where she runs her business. There is also a small yard. Her symptoms make it difficult for her to carry out many of her household duties and she can only do very limited vacuuming and mopping and gets assistance from her husband and daughter. She does not clean the toilet, bathroom or shower and pays someone to do it. She indicated that she avoids these activities because it aggravates the pain. She does some light cooking but gets assistance from her daughters. She makes her bed in a limited way and is assisted by her daughters. She uses a dryer to dry her clothes. She pays someone to do the gardening and lawn mowing and this has been the case prior to her injury. She goes shopping with her husband and avoids lifting heavy bags or pushing heavy trolleys." One would have thought that, given a history that the plaintiff paid someone both before and after the injury to do the gardening and the lawn mowing, there was no claim for gratuitous attendant care services in respect of that. Eventually none was pressed by the plaintiff but it was canvassed in evidence.
The plaintiff admitted that prior to the accident there was a paid cleaner who cleaned the whole of the family home each week, including the granny flat where the business was conducted and the cost of the home cleaning was a tax deduction because the plaintiff's agreement with the Sutherland Shire Council required her to keep the whole of her home clean: that is completely understandable. However, this history taken by Dr Matalani clearly indicates that a contract cleaner was being retained after the accident but the evidence about that is quite unsatisfactory. Indeed, the whole of the evidence concerning attendant care services is unsatisfactory.
The doctor's finding on examination are these: "Mrs Awad presented her stated age. She pointed to the right side of the neck and superior border of the right trapezius as the site of pain. There was mild tenderness and mild stiffness of musculature. There was no muscle guarding. There were no crepitations and no complaints of radicular pain. The vascular state of both upper limbs was normal. There was no sensory neural abnormality in the upper limbs. The active range of movement of her neck was near normal in all directions. Her upper limb reflexes were present and equal. Tinel's and Phalen's tests were negative bilaterally. There was no evidence of wasting of the small muscles of the hand. The range of movement of her shoulders was full in all directions. She complained of pain at the extreme of abduction and flexion on the right side." Again, there is no objective evidence of any organic disability. Indeed, other than the complaint of pain at the extreme of abduction and flexion on the right hand side there was no sign of any disability at all.
Dr Matalani expressed the view the plaintiff had suffered a "soft tissue injury to the right side of the neck and right shoulder region." He went on to point out that there was no "intrinsic pathology of the right shoulder joint." I assume by that that the doctor means that there was no injury, for example, or any problem with the musculature of the rotator cuff. Dr Matalani does not tell me what the exact nature of the pathology is, nor what anatomical structures have been affected by it. A layman can provide a diagnosis of "soft tissue injury to the neck and shoulder." Soft tissue injuries, generally, are things such as strains and sprains and tears; but even torn muscles knit just like torn skin can heal. A fall onto a shoulder might compress the tissues, the muscles over the bony structure which is the shoulder articulation. Compressed tissue can develop a bruise and be sore for a while. However, one generally recovers from such injuries. Likewise, a flexion injury, even a lateral flexion injury of the neck, can cause soreness because it has been strained or sprained but one generally recovers from such injuries. Dr Matalani's diagnosis is not at all helpful. He then expressed a guarded long-term prognosis. Without knowing what the diagnosis is, how can anyone provide a prognosis? The doctor said that the plaintiff's condition was "unlikely to change substantially" either with or without medical treatment. It is odd for something to run a course, whether it is treated or untreated, that is indefinite. It has to be borne in mind, and I bear it in mind, that the treating surgeon, the treating sports physician, Dr Annett, believed that with active treatment the plaintiff would recover.
Dr Matalani went on to diagnose a 10% permanent impairment of the neck and a 10% permanent loss of sufficient use of the right arm at or above the elbow. That may have been relevant if the plaintiff were a worker under the meaning of the Workers Compensation Act 1987 and she had a claim for compensation governed by the law that used to apply to all workers prior to the introduction of the whole person impairment scheme. The only persons currently entitled to such compensation are coalminers; and certainly the plaintiff was not a coalminer. Such diagnoses are of no utility whatever unless the expert witness, Dr Matalani, explains how he comes to that view and in particular one needs both an adequate diagnosis and therefore an adequate prognosis.

Further treatment

The plaintiff's next attendance upon Dr Wassef was on 15 August 2013. The doctor noted the plaintiff was complaining of "severe bone and joint pain." She noted that there was no swelling. The doctor ordered X-rays of the plaintiff's left hip and also pathology studies. What has been done by Dr Wassef indicates to me that she thought there might be some rheumatological reason for the complaints of severe bone and joint pain. In other words, the notes do not suggest to me that the plaintiff was complaining about a problem related to the accident of 5 February 2012. None of Dr Wassef's further notes that are before me relate to the effects of any injury with which I am concerned. However, it should be noted that the records produced by Dr Wassef were produced to the Court on 19 March 2014 and there may have been consultations after that date between the plaintiff and Dr Wassef referable to the injuries upon which the plaintiff relies in these proceedings.
I do note that in September 2013 the plaintiff underwent a gastric sleeve procedure performed in order to enable her to reduce her weight. I do note from a subsequent history that the plaintiff's weight reduced from 113 kilograms to 79 kilograms. I also note from subsequent histories that on 25 March 2014 the plaintiff underwent a CT scan of her lumbar spine, which is said to show some problem with facet joints, particularly at the L4-L5 level on the right-hand side. It is not suggested in these proceedings the plaintiff's lower back complaints are in any way related to the accident with which I am concerned. However, it must be noted that a complaint about lower back pain would be a much more potent cause of problems in doing work which requires lifting and bending and carrying, the sort of work one would expect of a child carer.

Dr Maxwell

On 31 July 2014 the plaintiff saw Dr David Maxwell, an orthopaedic and spinal surgeon for at least one of the defendants. Subsequently, the plaintiff has been seen by a Dr Peter Giblin at the request of her solicitors. The reason for that, of course, is that Dr Matalani has died. In his first report Dr Giblin said this about Dr Maxwell: "I view Dr Maxwell's report as being based upon his considerable and well respected expertise and experience in these matters." That to me is a clear acknowledgement of Dr Maxwell's standing in the profession of orthopaedic surgery. One interesting part of the history recorded by Dr Maxwell about the plaintiff's injury is this: "She states she is walking along, she thinks that one foot slipped forwards. She fell over and landed on her right side on the floor. She said she could not feel anything initially. She mainly felt embarrassed because the inside of her pants were split. She was told, however, by 'passersby' not to move. She therefore had to lie on the floor until the ambulance arrived, which took 15-20 minutes." The plaintiff did not tell me about her pants being split but she did tell me about her pants becoming wet. However, the fact that she lay on her right hand side without moving, as told by a passerby, is consistent with exhibit H which records a male nurse putting the plaintiff in the recovery position and telling her not to move. Also that history is consistent with the observations that the accident happened about 4.50pm and that the ambulance officers did not arrive until 5.18pm, some 28 minutes after the plaintiff's fall. Accordingly, she lay on the floor longer than she actually told Dr Maxwell.
After giving Dr Maxwell a history of her treatment, Dr Maxwell recorded that the plaintiff told him that her right shoulder was improved and was then much better. She told him that the pain had moved from her right shoulder into her neck and was now a little worse on the left-hand side. The doctor went on to record a history of the onset of low back pain since the plaintiff lost weight following the gastric sleeve operation but clearly there were complaints of low back pain prior to that time. Dr Maxwell's report continues thus: "She said she started to go to the gym. Her back pain seemed to commence about five months ago. The back pain does vary in intensity and it seems to radiate towards the 'tailbone.'" The plaintiff was not questioned about going to a gymnasium. However, if the plaintiff has been going to a gymnasium since the weight loss operation that appears to me to be quite inconsistent with the claim that she makes for gratuitous attendant care services. Under the heading, "Present Symptoms," Dr Maxwell recorded that the plaintiff found it uncomfortable to sit for prolonged periods, not because of neck or shoulder pain but because of lower back ache which affected her left leg. She told the doctor that she no longer experienced any pain in either of her arms. She complained of pain in the left side of her neck, which "comes and goes." That pain was said to be worse in cold weather. Dr Maxwell was also told the plaintiff normally experienced pain in her legs. The only relevant complaint is of intermittent neck pain which was worse in cold weather. Dr Maxwell then comments on the investigations which had been performed and then sets out in some detail his findings on examination. He found no objective sign of organic disability, in fact, he found absolutely no abnormality at all.
Unhelpfully and the doctor was asked to comment on a statement of particulars. Such documents rarely bear any resemblance to reality and usually represent more of a "log of claims" in industrial proceedings. Relevantly, the doctor says a number of things on p 6 of his report. The doctor was asked to comment upon an allegation the plaintiff was unable to operate her child-minding business for some 11 months. The doctor said this: "It is unlikely that any mild soft tissue injuries which she may have sustained at the time of the fall would have caused physical incapacity such that she could not operate a childcare business. I consider the disability is overstated. I do not consider that there is any evidence that she could not work for five days a week currently." The page then bears a heading, "Particulars of Domestic Care." Dr Maxwell then says this: "I do not consider there is any evidence she suffered any specific injury which would prevent her from carrying out domestic care activities or personal care activities. There is certainly no evidence that she is currently incapable of carrying out domestic care activities. There is a report from Dr Elias Matalani dated 26/6/2013. This is over one year ago. Mrs Awad states she has improved significantly since this examination." Further in the report, Dr Maxwell said this: "Dr Matalani suggested she suffered a soft tissue injury to the right side of her neck and right shoulder region. He suggested that there was no evidence of intrinsic pathology of the right shoulder joint. He made no attempt to explain why a soft tissue contusion would not heal in the normal time it takes for soft tissue injury to heal which is 4 6 weeks. Dr Matalani seemed to indicate that she was unsuitable for work requiring repetitive use of the right arm and shoulder, repetitive overhead work, sustained flexion or extension of the neck without indicating why these activities would be harmful. It should be noted that resumption of normal physical activity is necessary to recover from soft tissue injuries. Dr Matalani has made no attempt to elucidate the pathological changes which are responsible for her to be unable to carry out physical activities. It is well known that chronic neck and back problem is due to psychosocial factors rather than physical factors. There is therefore no justification for taking medication in the form of paracetamol or anti inflammatory medication. There is no evidence that underlying inflammation is the cause of the symptoms. There is in fact no evidence that there is any underlying pathology which can be treated." Those comments of Dr Maxwell are extremely pertinent. Indeed, the doctor raises a problem I have already referred to, the problem of lack of a proper diagnosis and therefore an inability to provide a proper prognosis.
Commencing on p 9, Dr Maxwell answered specific questions that were put to him. In his answering of questions he pointed out that the examination of the plaintiff was "essentially normal" and that there was no evidence at the time of his examination that the plaintiff sustained any pathological lesion in her body. He thought it probable that the plaintiff had sustained soft tissue bruising and contusion to the right shoulder but that had completely settled by the time that he saw her, or to use the doctor's words, "completely resolved". The doctor went on to point out that he did not consider the plaintiff had sustained any pathological condition which was causing disability which would prevent the plaintiff from carrying out domestic activities.

Dr Giblin

As I have earlier mentioned, Dr Giblin has now been qualified by the plaintiff's solicitors. Dr Giblin saw the plaintiff on 14 October 2014 and on 27 August 2015. At his first examination he found no abnormality in terms of peripheral nerves or tendon entrapment syndromes around the right wrist or fingers. He found that the deep tendon reflexes were preserved, equal and brisk in the upper extremities and the motor strength of the major muscle groups was intact. He found that neither shoulder had any sign of adhesive capsulitis but at the extremes of passive external rotation of the right shoulder there was catching and "apparent pain". Pain is something which cannot be seen, therefore it cannot be "apparent", taking that word literally. The terminology "apparent pain" means to me the doctor was saying the plaintiff complained of pain at that stage of the examination. Dr Giblin in his first report provided no diagnosis. He makes the comment about Dr Maxwell which I have already quoted and then says this: "I agree with the conclusion that weight loss can be associated with the onset of low back pain. In my history I found no evidence of back pain directly related to the fall. In terms of general prognosis, it is my view that the symptoms in her neck and right shoulder are going to persist in a recurrent fashion so that there will be some slight restrictions on her capacity to work in the future. Therefore I have a variance with Dr Maxwell's views on page 10 under paragraph 10. I would be of the view that Mrs Awad should be unable to use her right upper extremity for heavy, repetitive pushing, pulling, lifting, twisting, load bearing, or operating heavy vibrating machinery. One of the fine medical traditions is an open discussion among colleagues in relation to matters of medical diagnosis in the interests of heightened diagnostic precision. The views expressed above are accordingly presented with that tradition and are in no way intended as a personal comment or criticism of any colleague with whose views I disagree." I am aware and have been aware for over three decades of the often vigorous discussion amongst medical practitioners about diagnostic precision. However, Dr Giblin provides no diagnosis at all. Having provided no diagnosis, how can it be that he can provide a prognosis? And furthermore, the prognosis is an indefinite one. Furthermore, the prognosis is not only indefinite but poor, because he thinks the plaintiff's condition will deteriorate with the passage of time. Why that is so he does not say, except of course one might infer it could be due to the onset of more mature years, that is part of the general ageing process. The doctor's second report resembles the first. Again there is no diagnosis. The same prognosis is given, and the report suffers from the same problems as the earlier one.

Consideration: Damages

The evidence only establishes one objective fact medically, that is, the plaintiff at one stage had some bruising on her right shoulder and right knee. There is no objective sign of any other organic pathology. It is clear that the plaintiff sustained some soft tissue injury which according to Dr Maxwell might have incommoded her for between four and six weeks. It is clear from the whole tenor of Dr Annett's reports that he expected a relatively speedy recovery, but from the beginning he thought that there was abnormal illness behaviour which clouded the problem. Eventually the plaintiff got back to work on 20 November 2012. Since then she has increased the amount of work she is doing. She currently looks after four children, which is the maximum number that she can look after, for four days a week. Before the fall, the plaintiff looked after five children five days per week. However, the plaintiff has a number of conditions which are clearly not related to the fall with which I am concerned. The plaintiff has a problem or might have a problem, who knows, in her left shoulder. The plaintiff has a problem in her low back and complains of symptoms in her legs which could be referable to her low back. She also has a mild carpal tunnel syndrome.
One would think the plaintiff's inability to do full work, if there be such an inability, is more likely due to her low back condition than to any cervical condition. I clearly am not persuaded on the balance of probabilities that there has been anything physically wrong with the plaintiff since 31 July 2014 when she was seen by Dr Maxwell. Indeed, everything points to the plaintiff's having recovered prior to that time, in particular Dr Maxwell's opinions about the natural course of soft tissue injury and that exercise is the best way of overcoming such a problem. Indeed, that again is the tenor of the report of Dr Annett and the reports of Ms Shrubsole, the physiotherapist. Furthermore, one must consider that as far as Dr Annett was concerned on 17 September 2012 there was very little wrong with the plaintiff that would have prevented her from working and she no longer required any treatment. One must also bear in mind the notation by Dr Wassef on 6 June 2013 that the plaintiff was then working "very hard". One must also, in my view, bear in mind what I quoted from Dr Matalani's report of 24 June 2013 as to the plaintiff's activities of daily living, that firstly they would not impede her ability to perform gratuitous attendant care services for herself, nor, in my view, were they sufficient to prevent her from working doing child minding.
I am prepared, however, to accept that for some time after 5 February 2012 the plaintiff stopped working and remained off work until 20 November 2012. It is unclear when the plaintiff actually stopped working. Exhibit 3 indicates that the plaintiff was paid moneys by Sutherland Shire Council for the fortnight ending 19 February 2012, that is, for the period commencing on 6 February 2012 and ending on 19 February 2012, the payment due to the plaintiff by the Council amounting to $449.86, but from that was withheld an administration levy so that the actual payment to the plaintiff was $214.73. However, the same document seems to me to indicate that the plaintiff was entitled to receive moneys from the parents of the children she was minding and the document itself seems to indicate that the total moneys payable in one way or another to the plaintiff was $1,746.85. The document is difficult to understand, but it clearly indicates that the plaintiff did have some income and did some work after 5 February 2012. The period from 5 February 2012 to 20 November 2012 is a period of 41 weeks. I believe I should allow for total incapacity for a period of 40 weeks. On behalf of the first defendant it was submitted that I should allow the sum of $330 a week. That was the average weekly net earnings for the plaintiff during the financial year ending 30 June 2011. The plaintiff, however, submits that I should average the plaintiff's earnings during the three full financial years preceding the financial year in which the accident occurred, and they give a gross weekly earnings of $479 which, when allowance is made for income tax, comes down to $445 per week net. I am happy to accept the plaintiff's formulation. I accordingly allow 40 weeks at $445 per week, which, if my mathematics be correct, amounts to $17,800.
The question then becomes, what is the plaintiff entitled to thereafter? Mr Austin for the plaintiff made a broad brush claim, essentially claiming one day's loss per week since 20 November 2012. One fifth of $445 is $89 per week, although Mr Austin argued with some force that that should be rounded up to about $100 per week, and was so bold as to submit it might go as far as $120 per week. Looking at what one can infer from the reports of Dr Annett and Ms Shrubsole and what fell from Dr Maxwell it appears to me that I should allow a period of six months after 20 November 2012, during which the plaintiff had a limited capacity to perform her normal work, a period in which she was improving her fitness and her ability to work to the extent that after that six months the plaintiff should have been able to perform the work of a full time childcare worker. I have decided that I should allow the plaintiff $180 per week for that 26 week period. That amounts to the sum of $4,680.
The plaintiff's out-of-pocket expenses have been agreed to amount to $4,600.03. I trust I shall be forgiven for ignoring the 3 cents. The plaintiff claims, as I have indicated, under s 15 of the Civil Liability Act 2002 for gratuitous attendant care services. This has been the subject of lengthy evidence-in-chief, lengthy cross-examination, and extensive submissions. The evidence is not particularly convincing and from what I have quoted from Dr Matalani's report one can see some of the problems involved with it. One also must bear in mind the fact that the plaintiff was encouraged to do things but elected for some reason of her own not to do things for herself. I am prepared to allow one hour per day, that is, seven hours per week, for each of the 40 weeks during which the plaintiff was unable to work. $27 per hour for seven hours per week for 40 weeks amounts to $7,560. I was of the view that during the subsequent 26 weeks I should allow something like three or four hours per week, but I am told that as a matter of law I am unable to do so because the Act applies both an intensity test as well as a duration test. Seven hours per week satisfies the intensity test and 40 weeks passes the duration test, but three or four hours per week, even after the initial duration period, does not satisfy the intensity test.
The remaining question is non-economic loss. Again, this is a matter on which I have been addressed at length and I have been referred to a number of cases which might be thought to be in some way "comparable". Clearly, as I said much earlier in these reasons, the plaintiff was besotted by her symptoms and she was clearly introspective about them. However, I must approach the matter objectively. It was submitted on behalf of the plaintiff that she was a "nice lady" and there is no denial to that. It was submitted that she was a truthful witness but people can become obsessed with things and that obsession bears no resemblance to reality. In cases of this nature one must be guided by the medical evidence and an ipse dixit from a plaintiff is usually not, of itself, sufficient to justify an award of damages which may be thought to be in proportionate to the nature of the injury sustained. When I first read the medical evidence it was my belief that this was a case that would not pass the threshold provided by s 16(1) of the Civil Liability Act 2002. On reflection, however, and bearing in mind what has been put to me, I am prepared to find that this case stands in proportion to a most extreme case in the ratio of 3 is to 20. That entitles the plaintiff a finding of 15% of the maximum recoverable under s 16 and I am told that that is the sum of $6,000.
The total of those sums is a $40,640 but I will pause momentarily to see if the parties agree that my mathematics be correct. AUSTIN: Yes, your Honour. PURDY: I do. GRACIE: Yes. OAG: Yes, your Honour. HIS HONOUR: I accordingly assess the plaintiff's damages in the sum of $40,640.

[ADJOURNED TO FRIDAY 16 OCTOBER 2015]

Before I rose yesterday I announced that I had assessed the plaintiff's damages in the sum of $40,640. I should make a few further comments about that finding. Clearly I did not allow anything for future out of pocket expenses. As I said yesterday I was of the view that the plaintiff ought to have recovered from the effects of her injuries by the time she saw Dr Maxwell on 31 July 2014. I understand that the agreed out of pocket expenses were those incurred by the plaintiff to the date that that agreement was announced. No sum was allowed in the damages for a loss of superannuation benefits because none was claimed. The only heads of damages claimed were those that I dealt with yesterday afternoon. Furthermore, I have taken into account in making my assessment of the medical evidence aspects of the plaintiff's evidence which I will need to consider more closely when considering the issue of liability to which I now turn. Those relate to the reliability of the plaintiff's evidence.

Southgate Shopping Centre

The plaintiff tendered a report from Mr Ian Burn, a civil engineer. Very little of that eventually made its way into evidence. One part of it that did is this description of the Southgate Shopping Centre: "Southgate, Sylvania, is a single storey centre containing Kmart, Coles, Woolworths, AMF Bowling and smaller specialty stores and located on the corner of the Princes Highway and Port Hacking Road. The centre has three parking areas, one outside area at ground level and facing the Princes Highway, one roof level area and one underground area." Exhibit B is a plan of the Southgate Shopping Centre. The plan comprises the whole of the block of land bounded on the north side by the Princes Highway, on the east side by Port Hacking Road, on the south side by Melrose Avenue and on the west side by Formosa Street. The shopping centre itself comprises the major part of this block and is at its southern end. At the northern end, beside the carpark at ground level described by Mr Burn, is also a McDonald's family restaurant, the Sylvania Hotel, a gymnasium and other buildings separate to the shopping centre itself. On the western side of the shopping centre are a Coles Supermarket and a Woolworths Supermarket, and immediately north of the Coles Supermarket is the Coles loading dock and a small centre management office. On the eastern side, the major tenant is Kmart and on the southern side of Kmart are loading docks and what is referred to as a "curtain shop", the significance of which is unclear to me. The AMF Bowling Alley is beneath the Kmart building and comprises part of the basement, the rest of which is the basement carpark. It is clear from the description given by Mr Burn, and common ground, that the roof of the Southgate Shopping Centre is a flat concrete area which comprises another carpark. Access to this carpark is gained from a ramp which leads from Formose Street and can be seen passing over the top of the Woolworths supermarket in exhibit B.
In between the major tenants on the west side of the shopping centre and the Kmart store and "curtain shop" on the eastern side of the centre is an area which contains the smaller specialty stores and common areas giving access to those smaller specialty stores and the major tenants. The main entry to the shopping centre is at its northern end and can be gained from the outside carpark, at ground level, which fronts onto the Princes Highway.
The various retail outlets at the shopping centre are numbered. Exhibit P are two documents, each a printout of an electronic diagram which enables a shopper to find out where each tenant is located. Unfortunately no one has placed before the Court the list of tenancies as those tenancies were either at the time of the plaintiff's accident or are at the current time. Relevant to the current action are a number of these tenancies. When one enters through the main entry of the shopping centre, the tenant on one's left is the Westpac Bank. That is tenancy number 7. The tenancy on the right as one enters the main entry is that numbered 5 which one can glean from photographs which form exhibit 22 is a Harvey World Travel Centre. Immediately opposite the main entry are two shops numbered 45 and 45A. They form the apex of what can be described as a wedge. This wedge widens out with time and could be described as forming an island between the major tenancies on the western side and the major tenancies on the eastern side, with an exception, there is an aisle breaking this island into two parts. At the southern end of the island is another common area with specialty shops joining the gap between the Woolworths Supermarket on the south-western side and the Kmart tenancy on the south-eastern side. Of the two shops at the northern end of the wedge, that numbered 45A is known as Pontifex Jewellers and it can be seen in the first photograph contained in exhibit 22. I trust it is clear from what I have described thus far that between Pontifex Jewellers and the Westpac Bank develops an aisle or passageway that leads to the front of Kmart, that is, an aisle that one follows if one turns left when one enters the main entry and heads towards the Kmart tenancy. There is another aisle or passageway that leads to the right and eventually takes one to the Coles tenancy.
Beside the Westpac Bank, that is, immediately south of it, is tenancy 9. Beside that is tenancy 9A. Beside that is tenancy 10, then tenancy 11 which is a men's clothier known as Male Perfection and then tenancy 11A which is shown in exhibit P as being Michael Hill Jeweller. Then there is the entry to Kmart which is set back from the smaller retail tenancies. On exhibit B there can be seen in the common area outside the Kmart two freestanding areas but only one freestanding area is shown on exhibit P. Those freestanding areas may be fixtures or they may represent what has been described as "pop-up kiosks" which, as I understand it, are temporary structures to house temporary retail outlets. At the time of the plaintiff's accident there was a temporary pop up kiosk which was an outlet for Allphones.
Before I leave this description of the shopping centre I must mention that there is a hair salon known as Christiane's which is tenancy numbered 41 in exhibit P and has been marked in green on exhibit E. That hair salon fronts onto the western aisle or passageway that leads to the Coles supermarket. Evidence has been given that the distance between the Michael Hill Jeweller store, number 11A, and the Westpac Bank is some 50 metres. That evidence was given by Mr Jamie Irvine, an employee of the second defendant and the operations manager for the Southgate Shopping Centre who has been so employed since 10 January 2011. Mr Irvine's normal place of business is the Southgate Shopping Centre. One would expect him to have familiarity with the centre and therefore I can place confidence in his assessment of the distance in question. The reason why that evidence was adduced I shall need to refer to in due course. However, based on that evidence the distance between the front entry and Christiane's Hair Salon would be some 40 metres. To get to the Allphones outlet one needed to take the eastern aisle which essentially runs north-south rather than the western aisle or passageway which runs essentially north to west. However, it should be noted that the approximate distance between where it was that the plaintiff fell and Christiane's Hair Salon is probably 35 metres.
There is no evidence before me as to when this shopping centre was erected. I do not know whether it was a structure that has been constructed at one time or in various stages or a structure that has undergone redevelopment from time to time. The evidence is silent. All I do know is that the plan, exhibit B, is dated 30 October 2006, so that the shopping centre appears to have been much the same over the last ten years. Not only do I not know whether this was one building constructed at the one time or a building that has been constructed at various times or in various stages at different times, I do not know who the builder was or who the architect was. I do know that the first defendant was the owner of the shopping centre at the time of the plaintiff's accident. For how long it had been the owner I do not know. Exhibit 8 is a contract between the first defendant and the second defendant which bears date 9 July 2007. It is a "Property Management Agreement". I know from exhibit 25 that although the agreement was for a term of two years commencing on 1 July 2007 and ending on 30 June 2009 that it has been subsequently "extended" for one year commencing on 1 July 2009, another year commencing on 1 July 2010, for a further year commencing on 1 July 2011 and/or a further period of three years commencing on 1 July 2012. The earliest that I can date the ownership of this property to the first defendant is 1 July 2007. I do not know whether the first defendant had any part to play in the design and construction of the shopping centre. I do know, however, that the second defendant has managed the Southgate Shopping Centre since 1994. That evidence was given by Mr Irvine who said that the second defendant commenced management of Southgate Shopping Centre in that year.

Leaking roof: (1)

Rain used to leak through the roof of the shopping centre. Mr Irvine told me that the leaks in the roof had been reported to him since he commenced working at Southgate on 10 January 2011. He told me that the leaks would occur "[o]n average, once, once a month. It's depending on the weather". He then went on to point out that in addition to leaks dependant on the weather there were also leaks caused by defects in the fire sprinkler system and defects in the plumbing system or water reticulation system. That plumbing system could well involve drainage of the carpark roof area and probably does.

Management of the centre

Before describing further the leaking roof, I need to point out some other aspects of the management of this shopping centre. One of Mr Irvine's jobs was to "look after" the contractors at the shopping centre. He then gave the names of a number of those contractors. The cleaner is Glad Cleaning Service, the third defendant. The provider of security was "Grand Group Security" and I know from exhibit O that the formal name of that organisation is Grand Group Services Pty Limited which is based at Fairfield. The sprinkler system and other fire services, were serviced by Wormald Fire Company. The lifts, escalators and travelators were serviced by Kone. The automatic doors were serviced by a company described as Byrnes. The pest control was provided by a company described as Compass Pest Control. Sampson Hygiene looked after sanitation and hygiene services. There was a plumbing contractor and an electrical contractor and there was a maintenance company which I do know is Abby Property Services of Violet Street, Miranda.
In addition to those contractors Mr Irvine would also have to deal with contractors to tenants such as those doing shop fitouts in the various tenancies. I do know that the cleaning contract, that is the contract under which the third defendant cleaned the Southgate Shopping Centre, was not a contract between the second defendant and the third defendant, but rather one between the first defendant and the third defendant. I do not know whether other contracted service providers had contracts with the second defendant or with the first defendant. However, I do know that the second defendant was not permitted to make contracts on behalf of the first defendant. In those circumstances one might postulate that, for example, the contract with the security company was made between the first defendant and that company, rather than between the second defendant and the security company.

Leaking roof: (2)

I now return to the question of the leaking roof. Exhibit O is a series of reports from Grand Group Services Pty Limited each headed, "Southgate Shopping Centre/Monthly Issues Report". It is not addressed to any person in particular but in light of other documentation that is before me, it seems to me likely that it would be given in first instance to the second defendant. The third defendant also prepared a monthly report of its activities at the Southgate Shopping Centre. Exhibit 16 is such a report for December 2011 and exhibit 7 is a similar report for January 2012. Each of those reports bears both the logo of the second defendant and the third defendant. It appears to me that they were made in order to be passed onto the first defendant. Each day there appears to have been generated a "daily inspection report" which bears the logo and name of the second defendant. Exhibit 12 is the Daily Inspection Report for Friday 27 January 2012. Exhibit 13 is the Daily Inspection Report for Wednesday 1 February 2012. Exhibit 14 is the Daily Inspection Report for Thursday 2 February 2012. Exhibit 19 contains three Daily Inspection Reports for each of Friday 3, Saturday 4 and Sunday 5 February 2012. Exhibits 12, 13 and 14 have each been compiled by Abu Hasan. Each of the reports in exhibit 19 has been compiled by Asaid Rijab. I know that Mr Asaid Rijab was an employee of the security company Grand Group Services Pty Limited. I therefore infer that in the normal course of events, each Daily Inspection Report was compiled by the security company. Each Daily Inspection Report was completed at 9pm each day, so one can assume that it was delivered to or could be accessed by the second defendant at the commencement of business on the day following, that is, for example, that the report for Sunday 5 February 2012 would be available to officers of the second defendant on Monday 6 February 2012.
I turn now to the monthly issues reports prepared by Grand Group Services Pty Limited. The first that is before me is for the month of October 2011. When discussing the mall area, which I take to mean the common areas of the shopping centre open to members of the public which are not let out to tenants, the report says this: "Permanent leaks occur during heavy rain at Kmart's Garden section, near Michael Hill, Melrose loading dock, near Male Perfection, inside the mall near lift 2, Pavement Café and Sapphire Dry Cleaner, Woolworths." The same report also describes problems in the "upper carpark". One of those problems was this: "The extension gaps covers of the roof-top carpark are loose and coming off the ground."
The next monthly issues report, when discussing the mall area, again provides the same list of "permanent leaks" but adds an additional leak at Michel's Patisserie. A description of the upper carpark in this monthly issues report lists the same problem with "extension gaps covers" and also notes that a drainage cage located on top of the Formosa Street ramp had been displaced. The monthly issues report for December 2011, when discussing the mall area, contains the same list of "permanent leaks" that were set out in the report for November 2011. It lists the two problems in the upper carpark I have already mentioned and then adds this new problem: "One part of metal (stainless steel) that is used for joint of carpark roof (after entering the upper carpark through Formosa Street ramp near Escalators) came off the ground as some of its screws are not in place."
The monthly issues report for January 2012 contains the same list of sites of permanent leaks to which I have already referred but now lists two further "permanent leaks", one at Flower of Sylvania and one near CML #5, the significance of which is not explained in the evidence. The description of the upper carpark for January 2012 lists the three defects that I have mentioned.
The monthly issues report for February, 2012, which is said to cover the period from 1 February 2012 to 28 February 2012, contains this list of places where "leaks" occur. It is to be noted that the adjective "permanent" has been deleted in this report. This list is: "leaks occur during heavy rain at Kmart's garden section, near Michael Hill, Melrose loading dock, near Male Perfection, inside the mall near lift 2, Sapphire Drycleaner, Woolworths, Michel's Patisserie, Flower of Sylvania and near CML number 5." It would appear that the "leak" at the Pavement Café was omitted from this list but the same report makes reference to other problems at the Pavement Café which are not currently relevant. The description of the upper carpark contains two relevant defects. The first concerns the drainage cage at the top of the Formosa Street ramp which had been outstanding since October at least. The second relevant defect was "the metal covers of joints of concrete of the roof top carpark are loose and coming off the ground" which to me is very much a description of the same problem previously identified as "the extension gaps covers of the roof top carpark are loose and coming off the ground".
The monthly issues report for March 2012 again refers to "permanent leaks" but on this occasion the leak near Michael Hill Jeweller disappears but the leak at the Pavement Café reappears. When discussing the defects of the upper carpark it is noted that there was still a problem with the drainage cage the top of the Formosa Street ramp but the other defect, which had been mentioned on the earlier monthly reports since October 2011, is no longer listed as a problem. That is the last of those monthly issues reports that is before me.
I turn now to the Daily Inspection Reports made by the security company. That for Wednesday, 1 February 2012 tells me that water was leaking from the ceiling in front of the Westpac Bank. The report then refers to an attached photograph but the photograph has not been put into evidence. If the photograph could be found I am confident that it would have been put into evidence by one party or another. It would appear that the photograph has somehow "disappeared". The same report tells me that the maintenance contractor, Abby, was present on the premises at the time painting columns. Where the columns were I do not know.
The Daily Inspection Report for Thursday, 2 February 2012 tells me that water was leaking from the ceiling in front of the Westpac Bank and also inside Michel's Patisserie. The Daily Inspection Reports for each of Friday 3, Saturday 4, and Sunday 5 February 2012 do not refer to any leaks. It is also to be noted that each of the Daily Inspection Reports to which I have referred, those between 1 February 2012 and 5 February 2012, indicate that either wet weather mats were not needed or were not in place or both. The question posed in the report is: "Are wet weather mats needed? In place?" and beside each has been typed in the letter "N" for "No" without there being any comment.
One can see from these Daily Inspection Reports that a water leak was detected in front of the Westpac Bank on Wednesday, 1 February 2012 and that would have been known to the second defendant at the commencement of business, perhaps 9am on Thursday, 2 February 2012. It is common ground that this leak in front of the Westpac Bank is the leak which is critical in the causation of the plaintiff's fall. The leaking roof clearly was causing problems since Mr Irvine commenced working at Southgate Shopping Centre on 10 January 2011. The security company's monthly issues report clearly refers to a significant number of "permanent leaks" from October 2011 onwards, none of which appear to have been cured, for example, in the period of five months, the period covered by the reports. None of the monthly issues reports prepared by Grand Group Services Pty Limited refers to this leak outside the front of the Westpac Bank and that must be considered, therefore to be a "new leak".

Alleged admissions

Exhibit 24 is a series of emails passing between Ms Marion Pickford of the second defendant and Ms Stephanie Salwin of Proclaim Management Solutions, a contractor to the second defendant to manage third party claims. The email chain starts with the forwarding by Ms Pickford, who describes her position as "Reception/Administration Southgate Sylvania", of a file note made after the plaintiff's husband visited the Centre Manager on 14 February 2012. Ms Salwin replied asking a list of questions. The first question was whether there was any CCTV footage of the plaintiff's fall. The answer was that none was available. This is common ground. Photographs of the "incident area" were then requested. They were attached to the email sent by Ms Pickford in reply. The evidence does not tell me which photographs they were but they might be three photographs, the first of which forms exhibit 17 and the second two which form exhibit 22. The third question asked by Ms Salwin was who was the owner of the Southgate Shopping Centre and Ms Pickford replied on 15 February that it was the first defendant. The fourth question asked was this: "Were JLL previously notified of the leak in the roof?" The answer given by Ms Pickford was this: "Yes the leak developed in the torrential rain and a bucket and 'Wet Floor' sign was in the area." The next question posed by Ms Salwin asked who was responsible for maintaining the roof. The answer given by Ms Pickford was this: "We engage a Maintenance company for all repairs and maintenance on the property." The sixth question asked by Ms Salwin was whether the second defendant had an onsite presence at the centre. The question was not answered directly but merely pointed out that the property was managed by the second defendant. The simple answer to the question was "Yes". That is common ground. The final request for information made by Ms Salwin was whether any further information was available that could assist Ms Salwin and Ms Pickford replied that there was none.
Ten minutes after she received Ms Pickford's reply, Ms Salwin sent a further request for information which was supplied by Ms Pickford at 2.58pm on 15 February. The first question asked was to identify the maintenance company. That was done. The second question asked was this: "How long before the incident was JLL notified of the leaking roof?" The answer given was this: "3-4 days the water penetrated the plasterboard ceiling, dripping to the floor. We were aware of a damp stain in the vicinity mid-January. Due to the continuing wet weather, works on the roof top carpark and expansion joints has [sic] not been completed." The third question asked was whether the second defendant was responsible for contacting the maintenance company and requesting that they attend to and rectify the problem. The simple answer to that question was "Yes". The fourth question and answer were: "Q. What is the general procedure when structural (like a leaking roof) problems arise? A. Cleaning staff will control the area, if not safe for customers we will isolate the area. Once ascertained where the leak is coming from, i.e. rainwater, sprinklers, hydrants, we will engage the appropriate contractor to rectify." The final question and answer were: "Q. Had the maintenance company been contacted after the leaking roof was discovered? A. Yes, investigations and repairs are continuing."
The first thing to note is that, whilst it is certain that the leaking in front of the Westpac Bank was discovered on Wednesday 1 February 2012, the second defendant was aware in mid-January 2012 that there was a "damp stain" in the vicinity of where the leak eventuated. The word "vicinity" is one which can vary in meaning. The word is derived from Latin and has the same meaning in Latin as the word "neighbourhood" has in English. It can refer to a close area, a proximate area, or it can refer to a wider geographical area. However, the fact that Ms Pickford on behalf of the second defendant related the damp stain "in that vicinity" to the leak, is in my view significant and calls for some explanation by the second defendant, if the damp stain were not associated with the leak. For all I know the two might be unrelated, but they are related by the second defendant's officer and the second defendant called no evidence to explain how they are unrelated. In those circumstances I am prepared to accept that in mid-January 2011 the second defendant was aware of evidence which ought to have indicated to it that there was a problem indicating leaking in front of the Westpac Bank, or a potential for water to come through the ceiling at that point thereby causing a leak.

Repairing leaks

There is no documentary evidence whatever of what was done to remedy these leaks in the roof. A cleaner was called by the third defendant. That cleaner, Mr Nirab Sijabadi, did not have English as his mother tongue. He told me when taking the oath that he was a Hindu. I readily accept that he is from the Indian subcontinent. I do not think that finding is in any way controversial. Mr Sijabadi told me, when his mind was directed to the state of the roof in the year before 5 February 2012, that there were problems with the roof because of leaking water. In cross-examination by Mr Gracie, for the first defendant, Mr Sijabadi was challenged as to the accuracy of his memory of leaking from the roof in 2011 and 2012. It was clear that he remembered that there was a problem with the roof "at that time" but it is also clear from the balance of his answer that he was very vague as to detail. In cross-examination by Mr Austin, for the plaintiff, Mr Sijabadi said that he did not remember everything about problems with the leaking roof "because...everything is pretty nice over there[,] so we don't have many problems now [for] a long time [from] leaking". The clear thrust of Mr Sijabadi's evidence was that at one time in the past there had been problems caused by roof leaks but things had improved significantly over recent years and that the problems with the leaking roof were a problem of the past.
The evidence of Mr Irvine as to what would happen if a leak were detected was, firstly, to categorise the leaks as either minor leak or major leak. Mr Irvine said that he would attend the area where a leak was identified with the security and cleaning supervisors and ascertain whether it was a minor leak or a major leak and, therefore, the procedure to be adopted. He said that if the leak were "minor" it would be contained using a bucket and signs. If the leak were "major", the area would be barricaded. He explained that the shopping centre had red and white expandable barricades that were kept in the main distribution frame room, known as the MDF room, which was open to the staff of both the second defendant, the third defendant and the security company. In Mr Irvine's experience, it had been only necessary to use barricading twice, once at the end of 2012 and once in 2013.
Mr Irvine was then asked as to what steps were taken to fix the leaks as distinct from containing the leak once it was identified. His answer was that he would get "our maintenance team" on the site to investigate where the leak was coming from. This evidence was then given: "Q. How long does it normally take them to fix something? A. It depends on if they can find it, where it is or - because leaks track - can track from up to a fair way away so sometimes it takes a while. Q. Is it something once they find they can immediately fix it? A. Not if it's something that needs waterproofing applied. They can't actually fix that during - while still wet. Q. Why is that? A. ...I've been advised by them that waterproofing cannot be applied because it won't take - won't dry... Q. So what do they do then? A. We'll keep monitoring the leak and we'll just do what we do with a bucket and we'll fix it when it dries. Q. So you simply contain the leak... A. Contain the leak, yeah. Q. ...until the area can be fixed? A. Yeah." Mr Irvine then pointed out that the source of some leaks would be obvious and the source of other leaks would not be obvious. This evidence was then given: "Q. So I take it that when there is a leak unless, for example, obviously coming from the sprinkler system, where you're calling the sprinkler system [contractor], you'd otherwise leave the ascertainment of the source of the leak if it wasn't patently obvious to Abby. A. Yes. Q. Abby would no doubt inform you in due course what the source of the leak was? A. Yes. Q. What they had done to repair it? A. Correct. Q. And also provide you with a bill? A. Correct."
Mr Purdy then sought to show Mr Irvine a series of documents which eventually did not make their way into evidence. Mr Irvine also said that Abby was often at the Southgate Shopping Centre. Oral requests could be made for repair work which were responded to by the maintenance contractor. One could therefore appreciate that when the leak was identified on Wednesday 1 February 2012 and that the Abby contractor was on site painting columns, the leak might have been pointed out to the contractor and a request made that the leak be repaired.
Other evidence given by Mr Irvine also needs to be considered. I have already referred to the monthly issues reports made by the security contractor that refer to expansion joints. Mr Irvine told me that the roof of the shopping centre, which was also a carpark, was made of slabs of concrete between which there were expansion joints. They were known to leak from time to time. This evidence was then given: "Q. Are you able to say how their propensity to leak water is contained or remedied? A. Yes, there's evaporation trays underneath. Q. Just describe those evaporation trays for his Honour's benefit. A. It's, it's basically a gutter system. It's about 5 mm deep by 200 mm wide that's bolted under the slab underneath the expansion joints. HIS HONOUR Q. When you call it evaporation, does that mean the water just lays there in those gutters, shall we say, in the pious expectation that dry air will cause the water to disappear or does the water in fact flow somewhere? A. Some of those trays do flow, some are just purely evaporation. PURDY Q. Do they satisfactorily contain the water so as to prevent leaks, in your experience? A. Yes. Q. Always? A. No. Q. Why may they not? A. Failure, rust. Q. When they rust, what occurs? A. They're replaced or repaired. Q. But what happens in between those two steps? A. We call the contractor in. We contain the leak and call the contractor on site to rectify."
Later Mr Irvine gave evidence that rectification of leaking expansion joints in the carpark was being done before 2012. He said that was in the area above Kmart. The work was being done by Abby Property Services. He recalled that work rectifying leaking expansion joints was carried out in 2011 and 2012 but was not able to remember how long exactly that occurred in 2012. Earlier I quoted the monthly issues report generated by Grand Group Services which comments on covers over extension gaps on the roof top carpark being loose. Whether those covers over the expansion joints were also intended to keep water off the expansion joints has not been explored in the evidence but they would clearly have a propensity to do so. Accordingly, one might think that loose covers over expansion joints in the roof top carpark might contribute to water getting onto the expansion joints and perhaps leaking through it and then what Mr Irvine described as the series of gutters underneath the expansion joints could itself fail because of rusting, that is, the normal aging process of most metal structures. It would appear that work was being done in 2011 and 2012 to remedy the problem and from the evidence of a cleaner we know that eventually the problem was remedied.
What I do not know is a number of things: firstly, for how long this problem was ongoing; secondly, how much the rectification work might cost; thirdly, the pace at which it could be done, which may be relevant to its cost; and, fourthly, the practicality of the rectification work. For example, it might be easy to do the work quickly and thoroughly if the upper carpark were closed and work be done on the leaking expansion joints from above. However, on another view of it, the rectification work would have to be done from below which might cause an interference with the structures below, that is, the shops and the mall below the carpark. If it were to be done quickly it might be necessary to shut the whole shopping centre for a period and a question would then arise as to the cost of such a closure, the cost not only to the owner of the shopping centre but to every tenant in it, a potential cost of a loss of patronage whilst the centre were closed, and a loss of patronage not just during the closure but subsequently, because of a loss of or interference with goodwill. These are matters which were not canvassed in the evidence at all. The cost and practicality of doing the work other than in the way in which it was done has not been explored. If one reads the transcript one will find the introduction, during the cross-examination of Mr Irvine by Mr Oag, of a quotation from Abby Property Services dated 14 February, I assume 2012, a quotation for $99,000. Eventually the document did not find its way into evidence but it may indicate some part of the cost of repairing the leaking roof.
Thus far I have ascertained that in 2011 and 2012 there were "permanent leaks" through the roof of the Southgate Shopping Centre affecting various areas of it. There was some, it would appear, repair. One might describe that as ongoing but there is no suggestion that there was any permanent, ongoing reparation but rather perhaps ad hoc reparation at various places in the shopping centre roof. The cost of this work I do not know and whether the pace of repair could be expedited, I do not know. The evidence is quite silent. I do know that the critical leak, the leak outside the Westpac Bank, was only detected on 1 February 2012, but the second defendant was on notice of the distinct possibility that the water would leak into the mall because of the noting of the damp ceiling in the area where the leak eventually occurred.

Rain

Before I can go to the plaintiff's accident it is necessary to consider matters meteorological. Another small part of Mr Burn's report that survived incessant objection is this: "The records of the Bureau of Meteorology indicate that although February, 2012, had a slightly lower historical average rainfall, the rain fell over 18 days rather than the usual 12 with the wettest day [at] Observatory Hill being 3 February and receiving 49.8 mm during a widespread rain event associated with an inland low pressure trough. 6.00mm fell on 4 February and 0.2mm on 5 February. No strong wind days were reported at Sydney Airport. This accumulation of rain prior to 5 February could result in ponding [sic] on the roof above the Centre and subsequent leaking."
Mr Purdy was kind enough to place before me 30 pages of meteorological intelligence from the Bureau of Meteorology. Sydney Airport is closer to Sylvania than Observatory Hill. In the 24 hours to 9am on 2 February 2012 there were 3 mm of rain at Sydney Airport. In the 24 hours ending at 9am on 3 February 2012 there were 38.2 mm of rain at Sydney Airport. During the 24 hours ending at 9am on 4 February 2012 there were 5.8 millimetres of rain at Sydney Airport. During the 24 hours ending on 9am on 5 February 2012 there were 0.2 mm of rain at Sydney Airport. During the 12 hours ending at 9pm on 5 February 2012 no rain was reported at Sydney Airport.
The certificate from the Bureau of Meteorology also gives me rainfall reported at the Canterbury Racecourse. That too is closer to Sylvania than Observatory Hill. At Canterbury Racecourse there were 14 mm of rain to 9am on 1 February 2012. In the next 24 hours, that is, until 9am on 2 February 2012, there were 3.6 mm of rain at Canterbury Racecourse. During the 24 hours ending at 9am on 3 February 2012 there were 35.4 mm of rain at Canterbury Racecourse. During the 24 hours ending at 9am on 4 February 2012 there were 9.2 millimetres of rain at Canterbury Racecourse. During the next 24 hours ending at 9am on 5 February 2012 there were 0.2 millimetres of rain at Canterbury Racecourse. During the next 12 hours, that is until 9pm on 5 February 2012, no rain was recorded at Canterbury Racecourse.
The certificate also provides me with daily rainfall observations for three other sites. The first is Green Point Road at Oyster Bay, the second is at the Sans Souci Public School and the third is at Woronora Parade, Oatley. The closest of those three places to Southgate Shopping Centre, Sylvania is the observation point at Oyster Bay which is 3 kilometres distant. The observation point at Sans Souci is 3.5 km distant and the observation post at Oatley was 4.9 km distant. Sydney Airport is 10.1 km from Southgate and the Canterbury Racecourse is 12.2 km distant from Southgate. In the 24 hours to 9am on 1 February 2012 29.2 mm of rain were recorded at Oyster Bay. In the next 24 hours that is to 9am on 2 February 2012 10.6 mm of rain were recorded at that site. To 9am on 3 February 2012 33.2 mm of rain were recorded at Oyster Bay. Thirty-five mm were recorded at Sans Souci and 35.6 mm of rain were recorded at Oatley during that same 24 hour period. In the 24 hours ending at 9am on 4 February 2012 there were 12 mm of rain at Oyster Bay and up until 9am on 5 February 2012 no rain was recorded either at Oyster Bay, Sans Souci or Oatley. In the following 24 hours, that is until 9am on 6 February 2012, no rain was recorded at either Oyster Bay, Sans Souci or Oatley. Therefore between 9am on 5 February 2012 and 9pm on that day no rain was recorded at either Oyster Bay, Sans Souci, Oatley, Canterbury Racecourse or Sydney Airport. According to Mr Burn's report, no rain fell on 5 February from Observatory Hill.
Nevertheless, the plaintiff's evidence is that it was raining when she was driving to Southgate on the afternoon of Sunday 5 February 2012. The plaintiff was not challenged in that regard. Furthermore, there is no dispute that there was water leaking from the ceiling outside the Westpac Bank on 5 February 2012. There obviously can be local weather phenomena which escape official recognition.
It is significant, however, that there was a heavy rain recorded at Oyster Bay to 9am on 1 February 2012, 22.9 mm. There was heavy rain also recorded at Sans Souci during that 24 hour period, 36 mm, and at Oatley, 22.6 mm, although the rainfall at both Sydney Airport and Canterbury Racecourse was much less. It is to be noted that it is immediately after the heavy rain recorded at Oyster Bay, Sans Souci and Oatley in the 24 hours to 9am on 1 February 2012, that the leak commenced outside the Westpac Bank. It is also significant that there was heavy rain in the 24 hours ending at 9am on Friday 3 February 2012 and it is to be noted that the leak was reported on Thursday 2 February 2012. The rain thereafter was less but one can understand that if a leak opened up, water might continue to flow through the leak even after the rain stopped or eased. Whether that rainfall patterns warrants the description of "torrential" given to it by Ms Pickford is a moot question.

The plaintiff's accident

The reason why the plaintiff visited the Southgate Shopping Centre on 5 February 2012 was because her elder daughter, Lydia, wanted to purchase an iPhone 4. Either the plaintiff or her daughter or both knew that there was an Allphones outlet at Southgate. The plaintiff marked its position on exhibit B with a yellow highlighter. The Allphones outlet would appear to have been a "pop-up kiosk" placed outside the front of the Kmart store in a common area to which access is gained from the main entry, the northern doors of the shopping centre, by taking the southern aisle or passageway. The plaintiff and her daughter drove to Southgate from their home which was then in Dudley Street, Kirrawee. It took the plaintiff approximately ten minutes to drive from her home to Southgate. It was raining throughout that journey but it was not raining heavily, the inference to be drawn from the plaintiff's language, was that it was light but noticeable, constant rain. The plaintiff estimated that she arrived at the shopping centre at either 4 or 4.30pm. The evidence suggests it would have been more likely to be 4.30 or later.
The plaintiff parked her car in what she described as the outside carpark, that is, the carpark between the shopping centre and the Princes Highway, the carpark that is common to the shopping centre, the Sylvania Hotel and the McDonald's family restaurant. She then walked through the front entrance. She marked her route on exhibit B in red ink. When she and Lydia, who was then 17, arrived at the Allphones outlet, they found it to be closed. That is consistent with the evidence of Mr Sijabadi who said that the specialty shops at Southgate shut at 4pm on Sundays. The plaintiff then walked with her daughter back towards where she had parked her car. On her way there, she slipped and fell. This evidence was then given: "Q. Do you remember at the time you fell or just before walking from Allphones to the point where you fell anything about your walk in the sense that you were walking fast or slow or what? A. No, just normal… Q. So you were walking at a normal pace? A. Yep. Q. Talking to your daughter? A. Yes. Q. Do you recall after you fell whether you saw or observed or anything around you on the ground such as a bucket or sign? A. I didn't see any sign or bucket. Q. By sign, what sort of sign are you referring to? A. Like warning signs, slip water. Q. You're familiar with those standard… A. Yes Q. …yellow signs, the "Wet floor" signs which open out like a sandwich board, yes? A. Yes, yes. Q. You didn't see any of those? A. No. Q. Did you observe any such sign on your way to Allphones? Walking… A. No. Q. …from the main entrance to Allphones? A. No. Q. When you were on the floor did you notice anything about the ceiling above you? A. No, I haven't looked at the ceiling. Q. One question I should have asked you before was do you remember what the weather was like when you arrived there at the shopping centre and parked your car? A. I remember it was raining. Q. Was it raining hard or softly? A. Not hard. Just… Q. Not hard? A. Yeah."
It is clear from the routes marked on exhibit B by the plaintiff that on her way to Allphones she would have had to walk past the site of the leak. It was on her return to her car following an almost identical or at least similar route that she slipped and fell. The plaintiff said that she did not see any bucket or any sign even when she was lying on the floor after the fall. Yesterday I pointed out that the fall is reported to have occurred at 4.50pm. The ambulance was called at 5pm. The ambulance officers reached the plaintiff at 5.18pm and that the plaintiff was loaded on the ambulance trolley at 5.33pm and that she arrived at the Sutherland Hospital at 5.41pm. The plaintiff must have been at the site of her fall for half an hour after she fell. She maintains that she saw no bucket and no sign.
There are, fortunately, some contemporaneous records. The first is exhibit G which was obviously tendered by the plaintiff. It is the third defendant's incident report form of an incident occurring to a member of the general public. According to the document itself, it was prepared by Mr Nirab Singh which is another name used by Mr Sijabadi. The document refers to Mr Sijabadi as both the cleaner on duty and the cleaning supervisor. Mr Sijabadi agrees that that is what the documents shows but denied that he wrote the document. The writer of the document is unidentified. Exhibit G tells me that the incident occurred at 4.50pm. It tells me that it happened in front of Pontifex Jewellery. The document indicates that the scene of the plaintiff's accident had last been inspected by Mr Sijabadi at 4.40pm. He tells me that the surface at the scene of the plaintiff's accident was terrazzo. The description of the incident is this: "There [were] 2 wet floor signs just next to the water bucket where the slip and fall happened and the bucket was placed there due to rainwater leaking from the ceiling." Exhibit G tells me that the incident was reported to security officer, Asaid Rijab.
Exhibit H is the incident report form completed by Grand Group Services Pty Limited and is ex facie a document prepared by Asaid Rijab. Like exhibit G this document was tendered in the plaintiff's case. It locates the incident as being "in front of Westpac bank". There is no inconsistency. Exhibits 17 and 22 contain three photographs of a bucket on a terrazzo floor with a "Wet Floor" sign, indicating that there was cleaning in progress. The sign has on it a red triangle, the international sign for danger, and has a depiction of a falling human body in red within the triangle. The warning sign is a trestle type or "sandwich board" type, with a further sign above it attached to its top indicating that a person is to exercise caution and displaying a black triangle containing a black exclamation mark, an international sign indicating that attention ought be paid. On exhibit 17 one can see in the background the Westpac Bank. In the first photograph in exhibit 22 one can see in the background Pontifex Jewellers. In the second photograph in exhibit 22 one can see in the background the Harvey World Travel office and the front entry doors of the complex. The three photographs in my view have been "staged", (I do not mean that in any pejorative sense) placed there for the taking of photographs to indicate where something may have occurred but are of the same bucket and of the same sign, photographed from three separate angles. When one compares those three photographs with the accident scene site marked on exhibit B by the plaintiff using blue highlighter one can see that the placement of the bucket and sign, if it were done to indicate the site of the plaintiff's fall, is quite accurate. Furthermore, no doubt the site could have been identified from above by the discoloured ceiling and the gap between which water must have fallen from the ceiling into the bucket.
The description of how the incident occurred, given in exhibit H, is this: "At 1700 hours I, security officer Rijab, received a phone call from Kmart staff advising me that someone had slipped at the main entrance. I rushed to the location of the incident, when I arrived at the location a man who was a nurse was present in the area providing first aid. The male nurse told me that he contacted the ambulance and they were on their way. The witness (Kim Smith) advised me she saw Mrs Maryam walking near the bucket of water located on the floor for the leaking roof and slipped within the area, due to access [sic, scil. excess] water on the floor within the vicinity of the bucket." Mr Rijab identified the plaintiff's injury as being a bruise on the front of her right shoulder. If the bruise was really on the anterior surface of the right shoulder that would suggest that the plaintiff fell face forwards, but that is not the evidence. Accordingly the bruise may have been on the point of the right shoulder as an arrow placed on the form seems to indicate.
Part 7 of the document contains a heading, "Investigation and Outcome". It asked the compiler of the document whether he investigated the scene. Mr Rijab gave a positive answer to that question. The time of the investigation is recorded as being "1705" meaning 5.05pm. Under the question "Outcome of the investigation" Mr Rijab said this: "Due to the wet weather the roof was leaking in more than one spot. The bucket was catching some water but not all of it. Mrs Maryam must have not seen the bucket and the two wet floor signs displayed next to the bucket causing her to slip and fall. I, security officer Rijab, have notified the cleaners to mop the area every 15 minutes due to the after spray of the water hitting the bucket prior to the event. The male nurse refused to give any personal details at the time of the incident." The form then asked whether there were any visible objects that could have caused or been involved in the incident. Mr Rijab then recorded this: "Water leak from the ceiling, Mrs Maryam had non-grip footwear at the time of the incident (thongs). " Contributory negligence is alleged in these proceedings by each of the three defendants. Fortunately, no one has pleaded that the plaintiff was wearing inappropriate footwear that contributed to her slip and fall. Even if the pleadings were wide enough to encompass such an allegation, no one has put any submission to that effect before me. In a case that has run for such a lengthy time, I thank God for such small mercy.

[LUNCHEON ADJOURNMENT]

As I have already mentioned, exhibit H was tendered in the plaintiff's case. No one called Mr Rijab to give oral evidence, so there must have been no requirement by any of the defendants that Mr Rijab attend for cross-examination. No objection was taken by any party to the fact that the description of the incident provided by Mr Rijab contained intelligence communicated to him, that is hearsay, by Ms Kim Smith who saw the accident occur and told the security officer what had occurred. Both exhibit G and exhibit H tell me that there was a bucket placed underneath the leak with the intention that it take water passing through the ceiling and contain it. Each of exhibit G and exhibit H tells me that there were two warning signs erected and Mr Sijabadi told me that the purpose of using two signs was to place one at either end of any spillage or something such as a leak.
What is shown in exhibit 17 and 22 is only one sign next to the bucket but it is clear to me that the photographs were, as I said earlier, "staged". However the warning sign shown in the photographs is of the same type as was used at Southgate Shopping Centre at the time of the plaintiff's accident. There have been new signs employed since that time. One can detect in the first photograph contained in exhibit 22 that the sign included the logo and name of the third defendant. I accept that there were two warning signs in situ at the time that the plaintiff fell and I accept that there was a bucket of the type shown in exhibits 17 and 22, and a bucket of exactly the same type, shape and colour is exhibit 23.
It is clear from exhibit H and from the plaintiff's own evidence that she did not walk into the sign and she did not walk into the bucket. There is no suggestion that the plaintiff in some way kicked the bucket causing water to escape from it such that the water caused her to fall. Rather, exhibit H tells me that the plaintiff was walking "near the bucket of water" when she slipped and fell due to excess water on the floor within the vicinity of the bucket. Exhibit H is a little unclear as to whether the excess water on the floor was caused by the bucket not catching the leak, or from water falling into the bucket splashing out of it when it hit other water contained in the bucket. The latter seems more likely to me. However, it is also clear from Mr Rijab's "investigation" that the plaintiff must have walked very close to the bucket and the wet floor signs. I conclude that the plaintiff must have walked very close to the bucket and the wet floor signs, that water had escaped from the bucket and was laying on the floor nearby and the plaintiff trod on water on the terrazzo floor and that was the effective cause of her slipping and falling.
There is no direct evidence as to the slipperiness of the floor when wet. In part of the report of Mr Burn that was objected to and rejected, Mr Burn sought to establish, not in any admissible fashion, the proposition that all terrazzo floors when wet are slippery. I rejected the tender of the report because it did not establish that proposition. I have subsequently noted, with some bemusement, that all terrazzo floors cannot be slippery and because Particular of Negligence (c) alleged against the first defendant is this: "Failing to provide a pedestrian concourse comprising of coarse honed terrazzo tiling or ceramic tiling impregnated with raised portions of carborundum grit or with a silicon carbide surface finish, for example as commonly found in fast food restaurants." No evidence was adduced to support the proposition that the floor at Southgate where the plaintiff's accident occurred was of such terrazzo but the simple point is that the pleading itself establishes the proposition that all terrazzo floors are not necessarily slippery when wet.
However, the placing of the warning signs about a slipping risk indicates a perception by those who placed them, the third defendant, and, one would think from the evidence given by Mr Irvine, the second defendant, and, for reasons which I shall give in due course, when discussing the contract between the first and third defendant, the first defendant, that floor on which the signs were placed was slippery when wet. The signs are in fact a form of admission of the fact that when wet, the floor was slippery.
The simple fact here is that the plaintiff's accident occurred for two essential reasons. Firstly, the bucket did not contain the leak, water escaped from the bucket and was on the floor of the mall area of the shopping centre and, secondly, the plaintiff walked too close to it.

Was the first defendant, the owner, an occupier?

The first defendant by its counsel Mr Gracie provided me with a schedule of issues raising seven issues relevant to liability between the first defendant and the plaintiff. He also provided me with a schedule of issues relating to the second and third cross-claims which were filed by the first defendant against the other defendants. The first question posed by Mr Gracie in the first of those schedules was: did the first defendant, as owner of the property, owe a duty of care to the plaintiff?
This area of law has by long tradition been known as the law of "occupier's liability". As part of his submissions, Mr Oag referred me to an extract from the tenth edition of Fleming's work on The Law of Torts. The most recent edition of Dr Fleming's work available to me is the ninth edition published in 1998. On p 500 of that work, the late, learned author said this: "The duties of present concern are exclusively incident to occupation. Responsibility is based on control, not ownership, as corollary of the power to admit and exclude. Hence the visitor must ordinarily look to the tenant, not the landlord. Persons other than occupiers who are responsible for a dangerous condition on the premises, like vendors or lessors, contractors or architects, are subject to their own rules which will be dealt with separately hereafter. Not that possession need be exclusive. A licensee may qualify as well as a tenant, and so may be the grantee of a mere right of way or anyone with any right to invite people over someone else's land. Building contractors may share occupation of the site with the owner. There may be shared occupation of a wharf managed by several ship owners, or a hall hired out for a dance, or part of the premises run by a concessionaire, or of an upstairs apartment occupied by a caretaker. One may even be responsible for safe access to one's premises over an area under someone else's control, like a footpath or forecourt fronting a shop. True, the occupancy duties were originally formulated with a reference to landed property, and have frequently been explained as originating in a desire to shield landowners from the onerous obligations of a general duty of care, in recognition of the economic importance and social value attached to the free use and exploitation of land. However, the same have osmotically come to be applied also to accidents on defective chattels - structures on land, such as ladders or scaffolding, and even moveables like vessels and vehicles (at least when stationary)." One of the questions agitated in the current proceedings is whether the first defendant was at the relevant time an occupier of the premises in question, the Southgate Shopping Centre, of which it was the owner.
The best guide to that question is exhibit 8, the contract between the first and second defendants. I earlier described that as a "Property Management Agreement" which is a name appearing on the coversheet of the document. Beneath that is this matter: "Industry Superannuation Property Trust No 1 and Industry Superannuation Property Trust No 2 and 50 Lonsdale Street Property Trust." Exhibit B, the plan of the Southgate Shopping Centre, gives as the name of the proprietor "Industry Superannuation Property Trust" and then an address in William Street, Melbourne. An inference can be drawn that the initials ISPT appearing in the name of the first defendant are an acronym for Industry Superannuation Property Trust. The first defendant is formally described on p 1 of the contract as "ISPT Pty Limited (ACN 064 041 283) in its capacity as Trustee of the Industry Superannuation Property Trust No 1 and the Industry Superannuation Property Trust No 2 and 50 Lonsdale Street Property Trust of Level 13, 114 William Street, Melbourne, Victoria, 3000 (ISPT)." The first defendant, then, is a trustee of Superannuation Property Trusts. However, it is not an entity without experience in the field of retail shopping centres. Schedule 1 of the contract is a list of properties owned by the first defendant to which the second defendant or a related company was appointed as the property manager. Beside the name of each property is the trust which owns the property as well as the trustee. It lists ten properties in Victoria; one in Tasmania, four in Queensland, three in South Australia, five in New South Wales and one in Western Australia. The same schedule tells me that the beneficial owner of the Southgate Shopping Centre is Industry Superannuation Property Trust No 1.
There is no evidence that at any time has the first defendant physically occupied any part of the Southgate Shopping Centre. There is no evidence that at any material time there was present at the Southgate Shopping Centre any officer, servant, agent or representative of the first defendant, other than the second defendant. There is no evidence that any person employed by the first defendant or any officer of the first defendant had any physical presence at the Southgate Shopping Centre other than perhaps on some annual or other regular inspection.
In the contract the second defendant or its related entity is referred to as "PMC". Clause 3 of the contract requires the PMC to provide services throughout the term of the contract in accordance with the terms of the contract in an efficient and professional manner. Services are defined to mean the PMC's duties and responsibilities described in Schedules 2 to 12 of the contract. Schedule 2 regulates staffing and fees. Schedule 3 concerns authorisation limits. Schedule 4 relates to financial management. Schedule 5 relates to information technology and records management. Schedule 6 relates to physical management. Schedule 7 concerns reporting. Schedule 8 concerns risk management. Schedule 9 concerns tenancy management. Schedule 10 concerns the disposal of properties. Schedule 11 concerns "performance payment", in essence, the consideration due under the contract. Schedule 12 contains special conditions.
Clause 3.2 of the contract contains warranties by the PMC. The first and fifth of those warranties are these: "PMC represents and warrants that at the Commencement Date and throughout the Term: (a) the PMC will have all the necessary expertise, experience, capacity, equipment and facilities required to provide the Services in accordance with the standards of diligence and care normally exercised by duly qualified and experienced persons in performing comparable services; […] (e) all Property Staff and Portfolio Staff as defined in Schedule 2A are the employees of PMC and not ISPT." Clause 5.1 requires the PMC to perform all the services set out in Schedules 2 to 12. Clause 5.2 is in the following terms: "The PMC must, at any time, as issues arise or when requested by ISPT, provide information and make recommendations to ISPT in relation to each Property concerning: (a) changes or proposed changes to Laws or government charges or taxes significantly affecting the Property or ISPT as owner of the Property of which it is reasonably aware and any amendments required to deal with those changes; (b) significant changes or proposed changes to significant Laws applicable to the practices or procedures adopted by property owners or property managers or both concerning the management, operation or leasing of real properties (including voluntary compliance with codes of practice or conduct) of which it is reasonably aware and any amendments required to deal with those changes; (c) any improvements which may be made to the Property, this agreement, the procedures employed by PMC in providing the Services in relation to the Property, the approved Budgets or any other matter to improve the value, economical operation, efficiency or appearance of the Property; (d) the occupancy mix within the Property; and (e) any other matter reasonably requested by ISPT at any time that falls within the normal industry practices of the role of the PMC." Clause 5.8 is this: "At all times the PMC must perform its Obligations and provide the Services in the utmost good faith and use its best endeavours to comply with the spirit and intention of this agreement." Clause 5.15 is this: "The PMC must perform all other duties and obligations reasonably requested by ISPT at any time in relation to a Property and continually develop procedures for each Property to meet ISPT's requirements from time to time." Clause 11.9 provides that the laws of the State of Victoria govern the contract. No one has made any submission that the relevant law of that State it is in any way different to the law of this State and certainly no expert evidence was called in that regard.
A large number of provisions of Schedule 6 to the contract, which concerns physical management, need to be considered. They are these: "Capital Works S6.7 Take all necessary steps to deliver the approved Capital Budget including appointment of consultants, tendering of capital works, preparation of contract documentation and approval of invoices in accordance with ISPT's written procedures. S6.8 Prepare reforecasts for all capital works in format and by the due date instruct by ISPT. S6.9 Institute programmed works as far as practical in accordance with the manufacturer's or supplier's recommendation and as discussed by ISPT. S6.10 Not incur any capital expenditure other than in accordance with the approved Capital Budget or subject to and in accordance with the Authorisation Limits. S6.11 Take all necessary steps to deliver any unbudgeted capital works as agreed between ISPT and PMC in accordance with S6.7 above. Contractors S6.12 Administer and supervise performance by contractors under and enforce all service, maintenance and other contracts for the Properties (including any contract for the operation or management of a car park on a Property) to use best endeavours to ensure compliance by all contractors with their obligations. S6.13 To the extent it is within PMC's capacity to do so, perform all obligations binding ISPT and, subject to this agreement, exercise all rights available to ISPT on ISPT's behalf and for ISPT's benefit under the contracts and arrangements made with contractors for each Property. S6.14 Keep at the relevant Property (or at its registered office, if required by Law) and keep current and accurate throughout the Term a record of all contracts or arrangements made with contractors, consultants and other persons for the Property containing details of the financial and other essential terms of such contracts or arrangements and payments made. S6.15 Where appropriate and with ISPT's prior approval, appoint, brief and obtain advice from consultants concerning the physical condition of each Property and based on their advice, formulate and submit recommendations to ISPT in relation to any works required to refurbish, repair or maintain a Property. S6.16 Ensure that, as far as possible, all maintenance, repairs and capital expenditures are undertaken to reflect an optimal, integrated "life-cycle" programme. Enforcement of Contract Documentation S6.17 Take all necessary and reasonable action (excluding legal proceedings without ISPT's prior approval) to enforce all contracts, security for performance or other arrangements made concerning each Property within the time provided for enforcement strictly in accordance with ISPT procedures and standard form letters issued from time to time and not otherwise. General S6.18 Maintain control of the physical operation of each Property (including the common areas, any car park and, to the extent it is reasonable, the tenanted areas) in accordance with all Transaction Documents. S6.19 Attend to any necessary inspections and keep all necessary records required under applicable Laws where such services are not included in service or maintenance contracts. S6.20 Regularly inspect each Property (in any event, at least once every month), and: (a) arrange repairs and maintenance in accordance with the Budgets for each Property; or (b) subject to and in accordance with the Authorisation Limits, where PMC reasonably considers it prudent to do so, for example: (i) to minimise the potential for public liability and other claims against ISPT; or (ii) to abate an emergency, to protect a Property from threat to supply essential services. Property Services S6.21 Supervise and manage the repairs and maintenance services which include: (a) air conditioning (b) car park (c) fire services (d) lifts and escalators (e) repairs and maintenance security systems (f) building systems (including BMS and BMU) (g) structural repairs (h) building fabric works S6.22 Supervise and manage operational services which include: (a) cleaning (b) gardening (c) pest control (d) security services (e) energy costs (comprising electricity, gas and oil (f) telephones S6.23 At least once each financial year, review the performance, efficiency and cost-effectiveness of each service provider under every material service and maintenance contract for the Properties and make recommendation to ISPT for the continuance, renewal, termination or variation of those contractors, as applicable. S6.24 Produce preventative and other maintenance schedules as far as practical in accordance with the manufacturer's or supplier's recommendation and as discussed by ISPT. S6.25 Arrange for: (a) the cleaning, repair, servicing and maintenance of each Property under contracts made between ISPT and appointed contractors; and (b) the regular review of specifications under those contracts, by reputable and experienced contractors to a standard which will maintain and enhance the value, economic life, economical operation, efficiency and appearance of each Property, minimise the potential for public liability and other claims against ISPT and comply with all applicable Laws (including carrying out all inspections, tests and reviews and preparing and lodging all records and reports)." The balance of Schedule 6 concerns tenancies and a requirement that the PMC assist as far as practicable in improving the environmental performance of each ISPT property.
As I have earlier mentioned, Schedule 8 concerns risk management. Clause S8.12 is this: "The PMC shall develop, document and implement an appropriate Risk Management Program in consultation with and to the satisfaction of ISPT. The Risk Management Program shall incorporate the following elements: (a) identification of relevant hazards and risks, including property related compliance requirements as defined in applicable legislation in each jurisdiction; (b) appropriate systems and procedures for the control of property related risks and attainment of compliance. This shall include, but not be limited to the following risk areas: l asbestos l land contamination l bulk fuel storage l dangerous goods l liquid waste - sewer l cooling towers l radio frequency radiation l hazardous substances l plant safety l electrical safety l slips, trips, falls l disability access l fire safety l essential services maintenance l building emergency control/evacuation (c) develop a Risk Management Action Plan for each Property to address risk and compliance requirements identified from an independent baseline review undertaken by ISPT or their representative; (d) implement the Risk Management Action Plan at each Property to ensure adequate control of property related risks and to satisfy requirements; (e) establish an annual Risk Management Action Plan for each Property based on the PMC's ongoing management of risk and compliance requirements and also incorporating the outcomes of an independent review undertaken by ISPT or their representative; (f) develop a suitable management information system to monitor and report on the status of the PMC Risk Management Program and the status of Risk Management Action Plans at each property; (g) preparation of a quarterly Risk Management Program report which summarises performance of the PMC Risk Management Program with respect to achieving ISPT risk management requirements; (h) attendance at quarterly Risk Management Program meetings with ISPT to report on and review the effectiveness of the PMC Risk Management Program." Clause S8.14 is this: "Since PMC is to act as property manager of the Properties and is best placed to manage and minimise risks and has a scope of authority for acting on ISPT's behalf, assist ISPT in its risk management program to the extent it is within its control, including use of its reasonable endeavours to assist in the reduction of the risk profile and a number of claims made (whether made on ISPT's Insurance, PMC's Insurance or a third person on its insurance."
The contract which is before me as exhibit 8 does not have anything in Schedule 12 at all other than the heading, "Schedule 12 Special Conditions".
My reading of that contract and in particular those provisions which I have just quoted initially indicated to me that in essence the first defendant had given occupation of the property here in question, the Southgate Shopping Centre, to the second defendant. Such a finding has been vigorously opposed by both the plaintiff and the third defendant. Mr Oag, for the third defendant, drew my attention to cl 3.2(b) which provides that the PMC has no authority to enter into or sign on ISPT's behalf any relevant document or other agreement in respect of any part of the property, nor has the PMC any authority to commit or legally bind ISPT to any agreement which is then defined to include things which would not amount to an agreement but which might affect ISPT's interests. However, the PMC could do so with the prior written consent of the first defendant. Mr Oag also relies upon cll 3.4 and 3.5 of the contract which are these: "3.4 In providing the Services, PMC: (a) must comply with any written procedures imposed by ISPT, whether contained in written procedures manual or otherwise; and (b) may compile its own written procedures manuals for tenants, contractors or consultants for matters such as approving and effecting fitouts, provided such PMC manuals are consistent with those issued by ISPT. 3.5 If there is any inconsistency between this agreement, the PMC manuals and an ISPT written procedure: (a) imposed on PMC by ISPT; or (b) contained in a manual compiled by PMC, the ISPT written procedure will prevail." Mr Oag also drew my attention to cl 4.5 of the agreement which he submits indicates that the first defendant retained the right to be involved in reviewing any increase or decrease in the obligations or services under the agreement. If that is what the clause purport to do, then it is an otiose provision as any increase or decrease in a written obligation will be a variation of the contract which would require the consent of each party to the contract.
Mr Oag then drew my attention to various provisions of Sch 2 which concerns staffing and fees. Clause S2.5 requires the PMC to ensure that all staff engaged at each property or to administer the whole of the first defendant's property portfolio, are provided with suitable induction to and training in the procedures and systems of the first defendant. To me that is an unexceptional provision. When two large organisations decide to work with each other they should be able to share a common language and to adopt similar work practices. Further provisions of Sch 2 relate to "Staff Changes". The relevant provisions are these: "S2.8 Not change the person shown as the Property/Centre Manager or Portfolio Staff in Schedule 2A for a Property without first: (a) giving ISPT notice as soon as PMC has made the decision to do so or becomes aware that the position will become vacant (except in the case of negligent acts which may result in immediate dismissal); (b) giving ISPT the opportunity to participate in the interviewing of the final recommended candidate for the Property/Centre Manager and Portfolio Staff positions, and (c) obtaining ISPT's consent before offering Property/Centre Manager and Portfolio Staff positions to any person. The PMC will provide copies of position descriptions for any externally recruited positions on request from ISPT. ISPT reserves the right, for any positions critical to the portfolio and/or property, to be involved in the recruitment process. S2.9 Not, in relation to both the Property Staff and the Portfolio Staff: (a) reduce their number; (b) change their identity; or (c) change time to be allocated by them to the provision of the Services and performance of PMC's Obligations, from the numbers and time shown in Schedule 2A, without first obtaining ISPT's approval. If PMC reduces the number of, or changes the identity of the Property Staff or the Portfolio Staff or the time allocated by the Property Staff or the Portfolio Staff to provision of the Services and performance of PMC's Obligations without ISPT's prior approval, ISPT may, without limiting ISPT's other rights under this agreement: (ii) in the case of the Property Staff, proportionately reduce the Operating Costs contained in the approved Budget for the relevant Property to take account of the employment package (including the salary and on costs shown in Schedule 2A) for that Property Staff Member as ISPT, acting reasonably, sees fit in the circumstances; or (iii) in the case of the Portfolio Staff, proportionately reduce the Management Fee for the relevant Property to take account of the employment package for that Portfolio Staff Member taken to be included in the Management Fee as ISPT, acting reasonably, sees fit in the circumstances." This is an important provision. It clearly indicates that although the staff were in fact employees of the second defendant, their identity was closely controlled by the first defendant.
Mr Oag also drew my attention to cl S3.2 which really only reiterates the provision contained in cl 3.2(b) of the contract itself. Mr Oag has submitted that the effect of cl S3.2 is that even if the second defendant wanted to repair the leaking roof of its own volition, it was unable to do so because such would be a breach of its contract with the first defendant. At one stage I interrupted the evidence to ask Mr Irvine as to whether there was any authorised amount which the second defendant could expend on behalf of the first defendant such as might be provided for in a general authorisation. However, he pointed out that there was no authorisation to spend any money unless it was contained in one budget whose exact identity is not clear to me, but it would appear to be an annual operational budget. However, the same submission would extend to any expenditure of money on anything by the second defendant for the improvement or protection of the first defendant's property. The provision is merely consonant with the first defendant's maintaining hold of the purse strings.
Mr Oag also relied on cl S6.15 which I have already quoted above. Again, that is another provision consistent with the first defendant's keeping control of the purse strings, a not unusual provision in any contract between the owner of property and a managing agent, whether it is a large commercial property or a private residence.
Finally, Mr Oag relied upon cl S8.12 which I have already quoted. Mr Oag pointed out that the effect of that provision was that the first defendant had to be consulted and must be satisfied with any implementation by the second defendant of any risk management program. He thought it important to note that the first defendant had to be consulted and satisfied with any risk management system, including provisions concerning "slips, trips and falls". However, that is consistent with ownership and financial control rather than occupation per se, although the question of occupation of course is a question of control over the premises. I readily accept that the second defendant was the plaintiff's agent for the management and control of this property.
Mr Austin, for the plaintiff, if I understand the plaintiff's submissions correctly, relies more upon the cleaning contract between the first defendant and the third defendant which bears date 29 June 2010, a copy which is exhibit 9. He submitted and I accept that it is significant that such a contract was not between the second defendant and the third defendant but between the first defendant and the third defendant. Such was the regime that the first defendant established with the second defendant in order to control the purse strings. Mr Austin relied upon the specificity of the cleaning control in certain respects to highlight the detailed control which the first defendant exercised over the third defendant in regulating the cleaning regime at this shopping centre. However, it is clear from the document itself that the cleaning contract could be supervised, scrutinised and enforced by the second defendant on behalf of the first defendant. That is clear from cl 5.1 of the cleaning contract.
When I consider the property management agreement, I find no provision in it which requires the second defendant to exclude any person or class of persons from either being tenants of the property or being visitors to the property, that is, potential customers at the various retail outlets. There is nothing in the property management agreement which arrogates to the first defendant the right to admit or the right to exclude any person from property. The right of admission to the property and exclusion from the property clearly devolves upon the person in physical occupation of the property, which is the second defendant.
A question which arises, of course, is did the second defendant advise the first defendant of the leakage problems in general, or of the leak in front of the Westpac Bank in particular, seeking permission to repair those leaks or that leak? There is on this issue no direct evidence. The plaintiff's solicitors issued a subpoena for production addressed to the first defendant requiring it to produce "any documents relating to the inspection, maintenance and repair of the ceiling of the premises between 1 January 2011 and 28 February 2012". Messrs Colin Biggers & Paisley, Solicitors, replied to that subpoena with a letter saying that their client, ISPT Pty Limited, had no documents to produce in obedience to that subpoena. That subpoena and the reply to it became exhibit Q. Is that subpoena of any significance? I initially responded that it was highly likely that all such records would be kept at the property, that is, at Southgate Shopping Centre and would be within the control of the second defendant, but, equally, what is called for are records of payments made by the first defendant and even if such records are physically kept at the Southgate Shopping Centre they would legally be within the power of the first defendant.
This is not an easy issue. Why it has arisen I do not know. No submission has been put by the second defendant that the first defendant was the occupier, not the second defendant. Given that the first defendant had no physical presence at the property at any material time, given that there is no evidence that the first defendant was notified of the leak which was suspected in mid-January 2012 and formally documented as appearing on 1 February 2012, and noting that the plaintiff's accident was on Sunday, 5 December 2012, it is hard to see how, if the first defendant were an occupier it could have been negligent because the time within which it could have done anything was restricted and all it would have done was given an instruction to the second defendant.
Much has been made by the plaintiff of the need for the first defendant to prove that it has, in fact, given away possession of its property to the second defendant. In Bevillesta Pty Limited v Liberty International Insurance Co [2009] NSWCA 16 Hodgson JA 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. 54 In my opinion, a corollary of this is that a person engaged in this way may come under a duty of care to persons coming on to the property. If that person knows or reasonably should know that he or she has been engaged to keep the property safe for persons coming on to it (and the exercise of reasonable skill and care by the occupier would require that this be conveyed to that person), then in my opinion the person so engaged would appreciate that if he or she does not exercise reasonable skill and care, there is a risk of injury to persons coming on to the property; and the person's understanding of that engagement and risk gives rise to a relationship with persons coming on to the property sufficient to support a duty of care. 55 This accords with what Hayne J (Crennan J concurring) said in Leichhardt Municipal Council v Montgomery [2007] HCA 6, (2007) 81 ALJR 686 at [157]: [157] There is no reason for adding the liability of a highway authority to road users to an otherwise limited number of cases where a non-delegable duty has been held to be owed. If a highway authority acts without reasonable care, absent particular statutory provision to the contrary, it will be liable to the road user who is injured as a result. If the highway authority acts with reasonable care in appointing and supervising the work of an independent contractor, but that contractor is negligent, the contractor will ordinarily be liable (as Roan was here) to the road user who suffers injury in consequence. See also Prestige Property Services Pty Limited v Choi [2007] NSWCA 363 at [37]- [43]. 56 This approach applies with particular force when the person engaged has specialist skill, as in the case of the tree contractor in Prestige. However, it has also been applied to cleaners engaged by occupiers to clean premises. Certainly a cleaner would be liable if it creates a hazard, for example by leaving a floor wet and unguarded: see Woolworths (WA) Pty Limited v Berkeley Challenge Pty Limited [2004] WASCA 196,(2004) 28 WAR 540 at [56]- [57]. 57 Even when a hazard is created by someone else, and the cleaner fails to deal with it, it seems clear that the cleaner can be liable for breaching a duty of care to persons coming on to the property. This was assumed, without being discussed, in cases such as Allcorp Cleaning Services Pty Limited v Fairweather (New South Wales Court of Appeal, 29 June 1998, unreported) and P & H Property Service Pty Limited v Branigan [2008] NSWCA 195. See also Cairns v Woolworths Limited [2005] ACTSC 95 at [135]." In Laresu Pty Limited v Clark [2010] NSWCA 180 Macfarlan JA, with whom Tobias JA and Handley AJA concurred, said this: "60 Mr Clark did not contest the Owner's submission that the Owner's duty of care was delegable, that is, that it was open to the Owner to perform its duty of care by engaging a competent contractor to fulfil the Owner's duty to Mr Clark (see the discussion of this point in Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 at [190] - [194]). As a result, the issue between the parties was whether such a delegation had in fact occurred. Mr Clark denied that it had and, presumably because a finding that it had would almost inevitably result in a finding that the Managing Agent owed a duty of care to Mr Clark, so did the Managing Agent. […] 70 The Owner discharged this onus in the present case as it tendered the Management Agency Agreement and because there was also evidence before the Court that the Managing Agent had had considerable experience in managing properties, had done so for the Owner on an extensive basis and had the practice of recording and acting upon complaints made concerning the premises." But in that case the qualification to which his Honour referred to the general proposition in fact came to pass. At [73] his Honour said this: "73 The qualification to which I refer is that the general delegation that the Owner made to the Managing Agent to manage the premises was implicitly subject to any express instructions that the Owner might give in respect of the management of the premises. The terms of cl 12 of the Management Agency Agreement (see [19] above) suggest that this was so. As indicated in [11] above, the Owner gave an instruction in 1980 about how the automatic light switch was to be set. No change was made to this instruction until after Mr Clark's accident. It was accordingly operative when that accident occurred. Notwithstanding that in a general sense the Owner had delegated management of the premises to the Managing Agent, the state of the lighting in the relevant area at the time of Mr Clark's accident was, because of this instruction, something for which the Owner itself had some responsibility. The Owner's general delegation of management responsibility to the Managing Agent cannot absolve it of responsibility for the state of the premises to the extent that such a state reflected its express instructions. Whether the Managing Agent also bears some responsibility for failing to recommend a change in the manner in which the area in which Mr Clark's accident occurred was lit is a matter to which I will come below. However, I consider that at least to some extent the general delegation of responsibility to the Managing Agent to take reasonable care to keep the premises safe was relevantly qualified by the Owner's express instruction."
These authorities were again cited in Fabre v Lui [2015] NSWCA 157. This was a very unusual case. The appellant was the lessee of rented premises. When the appellant was cleaning the range hood over a cooking stove in those premises the hood fell from the wall causing the appellant an injury. She brought proceedings for damages in this Court against her landlord and was unsuccessful. The range hood had been installed by the landlord whilst she was in fact living in the premises. That lady did not undertake the installation herself but employed a tradesman or handyman to do the work. It would appear that the work done by the tradesman/handyman was negligent. Basten JA pointed out that the only basis of liability relied upon in the Court of Appeal was the alleged negligence of the landlord in engaging a tradesman to install the range hood. There was no dispute that the installation had been negligent. The question was whether the respondent to the appeal, the landlord, had herself been negligent. Macfarlan JA said this: "25 The duty was owed to the appellant because, although the respondent did not know of her in December 2007, she came within the class of persons whom the respondent should have foreseen might suffer injury if the respondent did not exercise care in relation to the safety of the premises, in this case in relation to the installation of the new rangehood in December 2007. This duty does not have to be discharged personally. The respondent was able to discharge it by taking reasonable steps to engage a competent contractor to do the relevant work (Bevillesta Pty Ltd v Liberty International Insurance Company at [53]; Laresu Pty Ltd v Clark [2010] NSWCA 180 at [60]; Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239 at [7]; Jones Lang LaSalle (NSW) Pty Ltd v Taouk [2012] NSWCA 342 at [35]). Failing proof of reasonable delegation, the respondent would be liable to the appellant in negligence for the consequences of the dangerous situation created by the handyman/tradesman inadequately affixing the rangehood to the kitchen wall (Laresu v Clark at [69]). 26 While the respondent's duty arose when the work was done at her behest, it did not have practical content in relation to the appellant until the date that she came to occupy the property."
As I understand the plaintiff's submissions it is that the first defendant has been guilty of negligence because it did not specify adequately in the cleaning contract what was to be done by the cleaner in respect of any leaking of water through the roof of the shopping centre. However there is no suggestion that the third defendant was not a proper person to appoint as the cleaner of the shopping centre. The cleaning contract contains a number of warranties by the third defendant (clause 4). That identified as (i) is this: "it has the necessary expertise, experience, capacity, equipment and facilities required to provide the Services and otherwise comply with its Obligations in accordance with this agreement and with the highest standards of industry practice applicable to the Contractor's field of expertise; […]" There is no evidence that the third defendant did not have the expertise which it had warranted. It ought to have had greater expertise in this area, containing leaking water, than the first defendant. This submissions really does not assist me in considering the issue currently in question.
There is no suggestion that the second defendant was not a proper person to appoint as the property manager. There is no suggestion that the second defendant was not doing its job at the Southgate Shopping Centre. De facto it was the occupier. De facto it had the right of excluding persons from the premises and the right to admit persons to the premises. It was the occupier. There is no dispute about that. The question is whether the first defendant was also an occupier. One can accept that the first defendant wished to control the purse strings involved in the operation of the property to ensure adequate return to the trust of which was the trustee. It had to have an adequate control over the moneys which it had invested in the property and did not wish to waste trust moneys. I am not persuaded on the balance of probabilities that the first defendant was an occupier of the premises at the relevant time, that is at the time when the leak was identified and steps could have been taken to minimise the risk caused by the leak.
From Professor Fleming's work, which I have earlier quoted, it is patently clear that possession need not be exclusive. There may be times when the first defendant was an occupier and times when it was not. One of the cases referred to by the late, learned author was Switzer v Becker (1976) 75 DLR (3d) 649, the authority he cites for the proposition that one may even be responsible for safe access to ones premises over an area under somebody else's control like a footpath or forecourt fronting a shop. There might be times when one person is in occupation of such an area and times when another person is in occupation of such an area. Not only can occupation be non-exclusive, it can also be intermittent. Common-sense tells one that. In the circumstances of this case I am not persuaded that the first defendant was at any relevant time an occupier of the premises. The case of course is otherwise as regards the second defendant.

Negligence

I return to the evidence of the distinction between a major and a minor leak. Yesterday I was pointed to evidence which established that a major leak was one in which the flow of water was continuous as distinct to intermittent. Depending on that distinction different methods were used to "contain the leak". However, careful analysis, which is what any occupier of a large commercial premises ought give, should indicate that there might be no validity in such categorisation. The extent of the leak may depend upon the size of the aperture through which liquid is moving, that is, depends upon the size of the hole in the ceiling or the hole in the roof, and also depends upon the amount of water trying to force its way through that aperture. One would think that the heavier the rain, the greater the leak might be. One can easily observe that a small leak in a dam may become larger as water widens the gap through which it is seeping. The leak becomes a trickle, the trick becomes a stream and eventually the stream can become a river. In such ways are dam walls broken. A thing such as a leak can be dynamic. If there is little rain, there might be little or a very slow leak. The more frequently the leak occurs, it is possible that the aperture widens. The heavier the rain, one would think the greater the amount of water passing through the aperture. With very heavy rain, the leak may increase in volume and what was a slow drip may become a fast drip. A fast drip may eventually become a continuous flow of water. Such things can be dynamic.
One can easily postulate that as a bucket of water fills, that water can escape from the bucket either by overflowing or by splashing out of the bucket. The amount of splash will depend upon the height from which the water is falling. I do not know the height of the ceiling of the mall of the Southgate Shopping Centre where this leak occurred. One can see the ceiling in one part of the photograph which is the second in exhibit 22. I find it very difficult to estimate the height of the ceiling. It is clearly over ten foot. It might be 12 foot. It is at least three metres, probably more. However, that would not be the starting point of the leak. The starting point of the leak would be clearly on the roof, that is, the carpark. How far the water was actually falling, what its momentum was and therefore what splash it might create is unknown and is only a matter of speculation.
Such things, one would think, would be within the knowledge of those who are regularly at Southgate Shopping Centre, persons in the position of Mr Irvine. It is clear from exhibit H that prior to the plaintiff's fall, Mr Rijab observed that there was a spray of water from the bucket, clearly escaping the bucket and landing on the terrazzo floor of the mall. In exhibit H, Mr Rijab said that he had told the cleaners of that prior to the plaintiff's fall and had advised them to mop the area every 15 minutes. The cleaning loop record which forms part of exhibit G clearly showed that the main entrance of the shopping centre was inspected by the cleaners at 4.20pm and 4.40pm and then later at 4.59pm, which means 20 minutes later probably at the turning of the clock to 5pm. There was a regular 20 minute inspection. Earlier in the day, there had been inspections at 3.15, 3.30, 3.45 and 3.59. The hour before that, there were inspections at 2.10, 2.20, 2.40 and 2.55. In the hour preceding that, there were inspections every quarter hour. In the hour commencing at 12 noon, there were four inspections during the hour, as there were in the hour commencing at 11am. During the hour commencing at 10am, there were only three inspections, about four inspections in the hour commencing at 9am and four inspections at each hour from 6am to 9am. Everything points to the inspection regime after 4pm to be much less than it had been at earlier hours. However, what exhibit H tells me is that water had escaped the bucket and was on the floor ten minutes after the cleaner's inspection at 4.40pm.
There is another problem with the evidence: that is what had happened over the period of time concerning this leak since its first observation up until the time of the plaintiff's fall, particularly having regard to the very heavy rain experienced in the few days prior to the plaintiff's fall. Was there a bucket and signs there ever since the ascertainment of this leak on 1 February 2012? Had other water escaped the bucket on previous occasions? How frequently was the bucket being filled with water? The evidence is absolutely silent. Mr Sijabadi had a regular shift. He worked from Wednesday to Sunday between 4pm and 12 midnight. He started work on this Sunday at 4pm, 50 minutes prior to the plaintiff's slip and fall. He would have worked on the evening of the Wednesday on which the leak was detected and on each evening between that Wednesday and the Sunday on which the plaintiff fell, yet no evidence was adduced from him at as to what had happened during those shifts. That is not to criticise Mr Sijabadi in any way. Such matters would have been routine to him and clearly he had no adequate recollection of what had happened some three and a half years ago. However, one would think that there would be somebody in authority, and also the cleaners during the day, who might be able to say what was happening with this particular leak since it was first identified during periods of relatively heavy rain.
What could have been done to better protect pedestrians from this leak which clearly had the propensity to cause water to be on the floor, not contained in the bucket placed to catch the leak? Particular of Negligence (e) against the first defendant is "failing to rope off the whole area contaminated by water". The same allegation is made against the second defendant as Particular (b) and as against the third defendant in Particular (b). If water were escaping the bucket and getting onto the floor then perhaps a greater area of the floor should have been "roped off" or in some fashion designated as a hazardous area which pedestrians ought avoid.
When I look at the photographs exhibits 17 and 22 the sign appears merely to draw attention to the bucket and although it does indicate that there was a wet floor one might be forgiven for thinking that it was merely to draw one's attention to the bucket which if one was not keeping a close look out one might accidentally kick. There is, however, some guidance in the evidence which ought to have illuminated the defendants, and that refers to all three of them about what ought to have been done.
Exhibit 9, the cleaning contract between the first defendant and the third defendant contains a number of relevant provisions. Schedule 1 of the cleaning contract defines the scope of services to be provided by the cleaner at the Southgate Shopping Centre. Part 5 of Schedule 1 is headed, "Personnel". It requires that there be an on-site cleaning supervisor each Monday to Friday between 9am and 5.30pm. His duties are then stated. There is then provision for an early morning cleaner and evening cleaners and day cleaners. Their hours are not specified in this part of the Schedule. After discussing the duties of the day cleaners the following is stated: "Any Hazard must be attended to urgently; and within ten minutes of notification to the Day Cleaner. On attending the Hazard the Day Cleaner must remove or isolate the Hazard immediately. The Day Cleaner must also ensure that warning signs are displayed in the appropriate area, so as to protect pedestrian traffic from the Hazard or, where practical in the Day Cleaner's experience, to warn pedestrian traffic of the Hazard and divert them to a safe course away from the Hazard." Part 9 of Schedule 1 is headed, "OH&S". It has two parts. The first concerns floor slip tests. The second concerns spillage and wet weather procedure. It is this: "Spillage and wet weather procedure. The Contractor is expected to ensure the following steps are strictly adhered to following a spillage or during wet weather whenever cleaners are on site: l If spillage/water ingress is minor - Install barricades & 'Slippery when Wet' signage to restrict access to the slippery/wet area. Damp mop areas thoroughly then immediately follow with a dry cloth to absorb any water residue remaining from the damp mop. l If spillage/water ingress is major - Immediately contact the client and then proceed as per process for minor as above. l Wet Weather - if water is entering the property due to weather conditions, where appropriate place signage at entry points to warn entering people of potential hazard. If required, arrange additional wet weather matting to assist with reduction of water entry. Follow the process for spills/water ingress as noted above and ensure regular checks of affected areas. The Contractor shall implement regular checks in common areas whenever cleaners are on site, to ensure any spills and emergencies are attended to immediately, and that the area affected is barricaded off until the spill or emergency has been attended to. The Contractor shall store suitable materials, including signage and barricades, in designated areas throughout the Property(s) to enable quick access in the event of a spill or emergency. Under no circumstances is a spill or emergency to be left unattended." One will note that whether the spillage/water ingress is minor or major the cleaner was required to install barricades. According to Mr Irvine the need to install a barricade was only if there was a major leak as distinct to a minor leak but there is no such provision in the cleaning contract itself of which the first and third defendants knew and of which the second defendant must have been on notice because it was required to manage this contract on behalf of the first defendant. I have already cited the evidence given by Mr Irvine of the fact that barricades were kept at the Southgate Shopping Centre and could be utilised by either the centre management staff, that is, the second defendant's staff, the third defendant's staff and also the security guards: see [72] above.
The next document which is of significance is the monthly report for January 2012 of the retail cleaning at the Southgate Shopping Centre, the document which bears both the names and logos of the second and third defendants. It includes a document headed, "Safe Work Instruction No 022". It bears the logo and name of the third defendant. It is divided into three sections. The top half comprises two boxes, a left hand box and a right-hand box, the bottom half contains a set of instructions for "Flood Clean up on hard floors". The top left-hand box has a subheading, "Safe Work practices" followed by a colon, then on a new line a bullet point and the words "Wet Floor Signs, barricades and tape to be placed around flooded area". Beneath that is another bullet point with this matter: "Assess the damage before commencing works to determine extent of damage: - Look up: If the flood was caused by a roof leak or faulty sprinklers then are there any damaged roof tiles that may fall? - Smell: Can you smell raw sewerage, leaking gas, if so notify building manager immediately." In the top right-hand box there is a list of hazards associated with small floods which includes slips and falls. In the ten instructions for dealing with cleaning up floods on hard floors the second is to make the floor safe "by placing barricades and wet floor signs". After that is the instruction to" contain any leaks with buckets/wheelie bins", which I would refer to as Otto bins, "or 240 litre garbage trolleys (depending on size of the leak)". It is clear from the rest of the instruction that, only after the flood had been cleaned up and the floors had been mopped dry, is the barricade to be removed.
Encapsulating my thinking this far, a leak is not a static event. It can be dynamic. What might be perceived at one time to be a very slow leak, might very quickly become a "flood" or a continuous stream of water. A leak being dynamic cannot be treated in some uniform fashion as if the leak be minor and be easily managed by placing a bucket underneath it. It is clear that water was escaping from the bucket prior to the plaintiff's fall. Whether such had occurred earlier since this leak was identified on 1 February 2012, the evidence does not disclose. However, one would think that it would have given the large amounts of rain earlier recorded to which I have already referred. Both the cleaning contract itself which bound the third defendant, and the third defendant's own document clearly indicate that a flood of this nature should be barricaded. That is that the area in question should be identified and entry to it forbidden to visitors to the property. A rope or barricade or tape effects the same purpose. It denies entry to a pedestrian to an area. It would have been much more effective in the circumstances of the leak identified outside the Westpac Bank on 1 February 2012 which persisted until the time of the plaintiff's fall. In my view the plaintiff has made good the allegation of negligence contained in the paragraph numbered (b) of negligence against each of the second and third defendants.

[ADJOURNED TO MONDAY 26 OCTOBER 2015]

On Friday 16 October 2015 I had arrived late in the afternoon at the conclusion that the plaintiff had made good the allegation of negligence contained in par (b) of the Particulars of Negligence against each of the second and third defendants.
Another area of liability explored in the evidence was an allegation raised by Mr Austin, for the plaintiff, about placing matting underneath the bucket of water in order to contain water that escaped from the bucket or of having a mat which might contain water from the leak itself. That led to evidence being adduced from the cleaner, Mr Sijabadi, of there being cloths or rags which might be used to place around a bucket placed to contain a leak which might absorb water that escaped from the bucket. Mr Austin commenced that line of inquiry at the beginning of his cross-examination of Mr Sijabadi on 8 October 2015 at p 293 of the transcript. Earlier Mr Sijabadi had given evidence about what was called the wet weather procedure. In wet weather when water might be introduced into the shopping centre by water dripping from umbrellas, rain coats, wet clothing and/or wet shoes, or perhaps from an overflowing of drains. Wet weather mats are placed within the shopping centre immediately behind the entry doors. That evidence was adduced in Mr Sijabadi's evidence in chief at p 278. Mr Sijabadi told me that there were three wet weather mats. They are very large and two people were required to carry them in order to move them from their place of storage to the place where they would be positioned at the entrances to the mall. One will read, for the reasons I gave on Friday, 16 October 2015, that the daily inspection reports required the compiler of the report to state whether wet weather mats were deployed. I have also earlier recorded that on none of the relevant days here in question were wet weather mats deployed. They are clearly very large and very heavy. They appear to be 8 metres long and 1.5 metres wide. According to Mr Sijabadi, they were contained in the "security store room" which may be the same as the MDF room to which I have earlier referred.
Eventually this evidence was given by Mr Sijabadi in cross-examination: "Q. For example, you've had an experience where you've had to - a bucket wasn't sufficient and you had to put an Otto bin there because there was too much water coming down. A. So sometimes I say we put rags, clothes[sic, scil. cloths] around of the bucket to cover that area. Q. Sorry, a? A. Rag. It's a piece of cloth, so we put around the bucket area too. Q. Why do you do that? A. Because it is like if, if the waters comes out so the clothing dry up, need to, we use that to dry the water. Q. Water that misses the bucket or water that splashes out of the bucket? A. For both thing." There was also discussion at one stage of going into a shop, such as Kmart, and purchasing a small mat which might be placed underneath a bucket. Another consideration, of course, is that it might be possible to place under a bucket a towel which might absorb any water which missed the bucket or escaped the bucket by way of splashing from the bucket. However, a rag or a towel on the ground might not "look good", may not appear to be "professional", and in itself could provide a tripping hazard. All the more reason, one would think, to do what I held the second and third defendants ought to have done, barricading off the area in which the leak was occurring. However, it is clear from what Mr Sijabadi said that cleaners had available to them, in the cleaning trolleys, cloths or rags which could be placed around buckets to absorb any water which was splashing from the buckets. There is no evidence that any rag or towel or cloth was placed around the bucket or underneath the bucket which was supposed to contain the water which caused the plaintiff's fall.
I turn then to see whether that is available as a particular of negligence as against the second defendant by looking at the particulars of negligence given in the statement of claim, in particular par 13 of that document. Particular (a) relates to not having, devising, instituting or maintaining an adequate system of inspection and cleaning. It has a number of subparticulars which require regular cyclic inspection said to be every 15 minutes, and if a food court were involved, to inspect the food court every one minute; a completely irrelevant allegation in these proceedings but clearly indicating that the particulars were taken from some other pleading. The second particular concerns supervision of staff, but on the evening in question it appears that Mr Sijabadi was the senior of the two cleaners and is so described in exhibit G. The third subparticular again refers to regular auditing of the cleaning system at least every 12 weeks; again here irrelevant. Particular (c) is this: "Failing to maintain and repair the roof of the premises in a timely manner, so as to control, eliminate and/or prevent rainwater leaking through to the ceiling and onto the floor surface of the pedestrian concourse." That hardly raises an issue of placing cloths et cetera around a bucket of water designed to catch water leaking from the roof. There are no other particulars of negligence against the second defendant. Therefore it appears to me, as has been submitted during argument and during the evidence, that this was a particular of negligence that had never been pleaded and was not open to the plaintiff to rely upon. When I go to the particulars of negligence against the third defendant, they only have the same particulars of negligence specified (a) and (b) as against the second defendant and therefore there is no applicable particular against the third defendant which would enable the plaintiff to rely upon the failure to surround the bucket with a cloth or towel or rags or the like. This is despite the fact that it was drawn to the attention of counsel for the plaintiff that he could seek to amend the statement of claim to ensure that it conformed with the evidence prior to the commencement of addresses. An application to make an appropriate amendment was never made. However, as I said, the better view is that even if rags or towels were laid down, it was probably in the better interests of both the second and third defendants that the area still be barricaded because the cloths and rags themselves might present a tripping hazard as well as looking unsightly.

Contributory negligence

The remaining particular of negligence is that identified as 12(g) against the first defendant and 13(c) against the second defendant: "Failing to maintain and repair the roof at the premises in a timely manner, so as to control, eliminate and/or prevent rain water leaking through to the ceiling and onto the floor surface of the pedestrian concourse." I commenced discussing this issue on 16 October 2015 at [71]. At [77] and [78] I recorded what the evidence does not establish. The evidence before me does not allow me to find that the first or second defendant has been guilty of negligence.
The remaining area on the question of liability is the question of contributory negligence. On 16 October I said this at [97]: "The simple fact here is that the plaintiff's accident occurred for two essential reasons. Firstly, the bucket did not contain the leak, water escaped from the bucket and was on the floor of the mall area of the shopping centre and, secondly, the plaintiff walked too close to it." The particulars of contributory negligence pleaded by the first defendant are these: "The plaintiff: (a) failed to keep watch where she was walking; (b) failed to identify the reasonably foreseeable risk of injury from slipping in certain circumstances where warning signs and buckets were placed on the concourse; (c) failed to heed the danger associated with wet and/or slippery substance on the concourse, knowing that it could cause her injury were she to step on it; (d) failed to avoid the wet and/or slippery substance; and (e) failed to take reasonable care for her own safety." The last particular is merely an averment of contributory negligence and provides no particular at all.
The particulars of contributory negligence pleaded by the second defendant are these: "(a) Failed to take any or any proper care for her own safety. (b) Failed to keep a proper lookout. (c) Failed to pay any or any due regard to the 1 metre high, bright, yellow 'wet floor' sign with black and red lettering that had been erected or placed by the Contracted Cleaner in the immediate vicinity of the alleged location of the incident. (d) Failed to pay any or any due regard to a green bucket (a contrasting colour) that had been erected or placed by the Contracted Cleaner in the immediate vicinity of the alleged location of the incident. (e) The defendant relies upon sections 5R and 5S of the Civil Liability Act 2002." Again, the first allegation is merely an averment of contributory negligence. The next three allegations are really a failure to keep a proper lookout. Section 5R of the Civil Liability Act 2002 is headed, "Standard of contributory negligence" and merely is a restatement of the applicable law. Section 5S of the same statute merely provides that in determining the extent of a reduction in damages by reason of contributory negligence, a Court may determine a reduction of 100% if the Court thinks it just and equitable to do so, with the result that the claim for damages is defeated.
The particulars of contributory negligence given by the third defendant are these: "(a) failing to take adequate care for her own safety; (b) failing to maintain any or any proper lookout; (c) failing to perceive and avoid an obvious risk (which is not admitted); and (d) failing to proceed with care." Again, the first particular is merely another averment of contributory negligence. The other three particulars are essentially, in my view, an allegation of failing to keep any or any proper lookout. The same can be said of the substance of particulars of contributory negligence given by the first defendant.
I have already found that the bucket was there and that the two warning signs were in situ as exhibits G and H establish. Those clearly are quite distinguishable in the surrounding environment of the common area/mall/concourse. The terrazzo flooring is mottled. It essentially has a sand colour with various shades of ochre and brown within it. The contrast between the green bucket and the mottled terrazzo floor is patently obvious, as is the warning sign type shown in exhibits 17 and 22. Although the primary yellow of those signs tones with the mottled, sandy terrazzo floor, the yellow of the sign is much brighter and the contrasting red and black signs on the basic yellow safety sign itself add further contrast.
I have already pointed out that the plaintiff must have been in the place where she fell for a half hour prior to her being taken away by the ambulance, and yet the plaintiff would have me believe that in that period of half an hour, she did not see the bucket and signs, nor did she see the bucket and signs before she fell, on her way from the Allphones outlet to the entrance or, indeed, on her way to the Allphones outlet on her journey from the carpark through the entrance door, past the site of the leak, toward the Allphones outlet. The evidence of the plaintiff about the signs and her failure to observe them at any time is literally incredible.
She was accompanied by her 17 year old daughter, Lydia. Lydia still lives at home with her parents and assists her mother according to the evidence adduced about gratuitous domestic care. There would appear to be a harmonious relationship between the plaintiff and Lydia. However, Lydia was not called to give evidence nor is there any explanation of why she could not give evidence about what happened on Sunday 5 February 2012. The only inference to be drawn is that Lydia's evidence would not have advanced the incredible case that the plaintiff asked me to accept, that there was no bucket or no signs, or that if there were a bucket and signs, that her vision of them was obscured and so obscured that the plaintiff did not see the bucket and signs on her way into the shopping centre or on her way out of the shopping centre or during the half hour that she laid on the floor next to them.
The plaintiff said that the shopping centre was busy at the time. Hers is the only evidence that says that. A submission was put by Mr Austin that a lot of people do their shopping on Sunday afternoon. That might be his experience but it might not be mine. However, my personal experience does not decide any case at all; evidence is required. The only thing I do know is that this occurred at 4.50pm on a Sunday afternoon in summer in Sydney on a wet day when it had been raining most of the weekend, and when all the specialty stores had shut at 4pm. One would think that when many of the shops were shut, the number of shoppers would be small. I cannot accept the proposition that has been pressed upon me by Mr Austin, on behalf of the plaintiff, that the amount of traffic in the shopping centre was such that the plaintiff's vision of the bucket and signs must have been obscured at all material times. The only inference that I can draw rationally from the evidence is the plaintiff was not keeping any proper looking out. The plaintiff herself admitted that she was talking to her daughter, looking at her: Transcript page 19, line 47.
The inference to be drawn is that contained in exhibit H, which I have previously quoted but, which needs to be reiterated, that the eyewitness, Kim Smith, told the security guard, Mr Asaid Rijab, that she saw the plaintiff walking near the bucket of water located underneath the leak and that she slipped in that area. Mr Rijab himself determined that the plaintiff must not have seen the bucket and the two wet floor signs displayed next to the bucket, thus leading to her slip and fall. However, I also pointed out that there was no suggestion that the plaintiff walked into the signs or the bucket, she must have walked close to them and that was how she came to step on water on the floor which caused her to fall. There is no evidence as to the extent of water on the floor in the vicinity of the bucket, no evidence as to the extent of the distribution of water over the floor in the area of where the bucket was. However, clearly, Mr Rijab, who was there, must have seen the area where the water was and concluded the plaintiff walked too close to the bucket and the signs.
I have come to the view that the plaintiff was guilty of contributory negligence. However, the greater negligence was, in my view, on the part of the second and third defendants. After considering the matter for some time, I have come to the view that the extent of the plaintiff's contributory negligence was 20%. I should indicate that I reached that view on 15 October 2015, not this morning. That reduces the damages which I assessed to $32,512.

Some irrelevant matters

I had intended after the luncheon adjournment to turn to the cross claims but I have omitted to deal with a number of matters. The first thing I should do is point out that this case contained a large number of "red herrings".
Early on Friday 16 October I spent some time discussing the layout of the Southgate Shopping Centre at Sylvania. I pointed out that there was a shop known as Christiane's Hair Salon which was some 35 metres distant from the place where the plaintiff's fall occurred. One will wonder why it was necessary for me to draw that information to the attention of anyone listening to these reasons. The simple fact is that the plaintiff's expert, Mr Ian Burn, was instructed that the plaintiff's fall occurred as she walked past Christiane's Hair Salon. One wonders how he came by those instructions. However, no matter in what way those instructions were conveyed to him, the plaintiff was not cross examined to suggest that she had changed her story as to where she had fallen, from where she actually fell, to outside Christiane's Hair Salon and then back to the place where she actually fell. As I said, it is a complete red herring.
Another red herring was the time spent in locating and trying to implicate the leak outside the Michael Hill Jeweller and outside the men's clothier, Male Perfection, as relevant to the plaintiff's fall. They were not. Those places were, as far as Michael Hill Jeweller was concerned, 50 metres away from the site of her fall, and the leak outside Male Perfection would have been a shorter distance but it may have been some 45 metres distant from the place where the plaintiff fell.
Earlier today I have discussed the evidence concerning the wet weather mat and the allegation made by the counsel for the plaintiff that that ought to have been placed under the bucket in order to absorb any unnecessary spillage, but in light of the pleadings, that became a complete red herring.
Likewise, Mr Gracie spent some time cross-examining Mr Sijabadi, the cleaner, about there being only one sign placed at the site of other spillages rather than the two signs that he said was his invariable practice to place, but that was, likewise, a red herring because there was no dispute on the defendants' case the two wet floor signs were placed at the site of the spillage which gave rise to the plaintiff's fall. The hearing was complicated by such unnecessary matters.

The Civil Liability Act 2002

I should, as a check to make sure that I have not done the wrong thing, refer to the relevant provisions of the Civil Liability Act 2002. I have found the second and third defendants to have been guilty of negligence. Section 5B(1) provides that: "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." Firstly, it is clear to me that there was a risk of a person slipping on a floor if it were wet because of water, which is colourless, being on a coloured floor, a risk of which clearly the second and third defendants knew because they erected or caused to be erected "slippery when wet" signs or "caution wet floor" signs, no matter which way one might describe them. The risk of falling is not an insignificant risk and falls can cause significant injuries, especially in the old and the infirm. A number of elderly people who suffer hip fractures in slipping and falling incidents is "not insignificant". Indeed, I have heard evidence on one occasion that there are wards full of elderly patients with broken hips in some hospitals. Reference should also be made to exhibit T, a report prepared by Mr Irvine in July 2012 concerning "Slips, Trips, Falls" at Southgate in the first half of 2012. It provides historical data over a 5 year period of such accidents. That provides the following data: Period Total of Slips, Trips and Falls Slips only 2006 57 23 2007 48 6 2008 33 7 2009/10 58 30 2010/11 52 20 2011/12 56 29

Some of this information is unreliable. For example in 2007 there were 6 slips, 3 trips and 6 falls (15 events) but a total number of incidents of 48! Categorisation might well be the problem: who decides whether a fall is merely such as distinct to one cause by a slip or a trip? The total number of incidents appears to be the most important matter, but there might be a number of incidents which were never formally recorded. Foreseeability is clear.

The Act also requires that, in the circumstances, a reasonable person in the position of the defendants in question, a cleaning contractor in a shopping centre and a property manager of a shopping centre, would take precautions. Here, their own procedures required them to take precautions. Section 5B(2) provides a number of matters for me to consider in determining whether a reasonable person would take precautions. They include "the probability that the harm would occur" if the precaution were not taken, "the likely seriousness of the harm", "the burden of taking precautions to avoid the risk of harm", and "the social utility of the activity that creates the risk of harm".
Here, the social activity is the provision of a place of exchange. Shopping malls exist or shopping centres exist to enable people to make money, both retailers and the owners of the shopping centres in which there are various retail outlets. On the other hand they provide a venue for the general public to purchase both necessities and luxuries. There is no reason whatever to suggest that because the shopping centre might provide an area where members of the public gather and, for example, meet and chat, that therefore the burden which ought to lay on those making money out of providing the premises should, in some way, be lessened. The precaution which should have been taken, barricading the area in question, was one that could easily be taken and for which the centre had the wherewithal, namely, the barricades, to place around the area that was affected by the leak. Clearly, as I already mentioned, there was a serious risk of harm of people being injured, they slipped and fell.
I have regard to the provisions of s 5C of the Act but there is nothing there that is currently relevant, nor anything to which I was directed by the parties. This is not a case of using the benefit of hindsight to determine what should have been done, because what should have been done is set out in the documentation that pre-existed the plaintiff's fall, to which I have referred earlier. Here there does not appear to me to be any dispute about causation (see s 5D), about the fact that permitting water to be on the floor was the cause of the plaintiff's actual harm, that is the water on the floor caused the fall which led to the plaintiff's suffering her injury. There is nothing, in my view, in s 5D that I need to consider further. Section 5E relates to the onus of proof and points out that the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation, which merely in my view restates the common law. Accordingly, the provisions of the Act are satisfied by the general considerations I have already made.

Apportionment between tortfeasors

The first cross claim is made by the second defendant against the third defendant, and, inter alia, it claims contribution towards any damages and/or costs that the cross claimant is ordered to pay to the plaintiff pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. The second cross claim is one brought by the first defendant against the second defendant. The third cross claim is one brought by the first defendant against the third defendant. The third defendant has not commenced any cross claim. I have already held that the first defendant is not liable in negligence. When discussing the first defendant's liability, I refer to its liability as the occupier of the premises. I was not satisfied that at any relevant time the first defendant was the occupier of the premises. I have no doubt that in certain circumstances an owner of property may have a duty of care to an entrant to premises even though the owner is not the occupier. For example, in the current case, if the leak outside the Westpac Bank, which was the cause of the plaintiff's fall, had been drawn squarely to the attention of the first defendant and the first defendant had refused to authorise the necessary repairs and as a result of that refusal the leak persisted and led to the plaintiff's fall, one might in those circumstances hold that the first defendant had been guilty of negligence. However, there is no such evidence in this case. I pointed out earlier in my reasons to the paucity of evidence about the whole procedure for repairing the roof, and the lack of evidence of the first defendant's having any knowledge of the leak that resulted in the plaintiff's slip and fall. I merely draw that to the attention of the parties lest I be thought to be giving a blanket exoneration of the first defendant. The claim against the first defendant really fails because of a lack of evidence. I already pointed out that particular (c) against the second defendant is one concerning a failure to maintain and repair the roof of the premises in a timely manner. That allegation is also particular of negligence (g) against the first defendant and has not been made out against it either, for reasons I have sought to point to earlier, in particular on Friday, 16 September. I need now to consider the question of apportionment between the second and third defendants.

[COUNSEL ADDRESSED] MFI #16 SUBMISSIONS OF THE CROSS-CLAIMANT ON THE SECOND CROSS-CLAIM MFI #17 SUBMISSIONS OF THE CROSS-CLAIMANT ON THE THIRD CROSS-CLAIM MFI #18 SUBMISSIONS OF THE SECOND DEFENDANT ON THE FIRST AND SECOND CROSS-CLAIMS MFI #19 SUBMISSIONS OF THE THIRD DEFENDANT ON THE CROSS CLAIMS

A little time ago, I announced that I was about to embark upon an apportionment of the liability between the second and third defendants as required by the Law Reform (Miscellaneous Provisions) Act 1946. Counsel then rose to their feet and addressed me further.
It is important to recall the respective positions of the second and third defendants. The second defendant is the property manager of the Southgate Shopping Centre. One of the warranties which it gave to the first defendant in the contract which commenced on 1 July 2007 is this: "PMC represents and warrants that at the Commencement Date and throughout the Term: (a) the PMC will have all the necessary expertise, experience, capacity, equipment and facilities required to provide the Services in accordance with any standards of diligence and care normally exercised by duly qualified and experienced persons in performing comparable services;" It is also to be recalled that the second defendant had been the manager at the Southgate Shopping Centre since 1994.
The third defendant, the cleaning contractor, was engaged by the first defendant and the contract between them is dated 29 June 2010. It is exhibit 9. Clause 4 of the contract contains warranties made by the third defendant as at the commencement date of the agreement and for the duration of the term of the agreement. One of those warranties I quoted at [118] above. That contract commenced on 1 July 2010. Accordingly, the third defendant had been the cleaning contractor at the Southgate Shopping Centre for 19 months at the time of the plaintiff's slip and fall.
The defendants have been held to be negligent because they failed to barricade off the area which was affected by the leak in the roof. Both the defendants knew that they ought to have barricaded off the area in question because it was so provided in the contract between the owner of the property, the first defendant, and the third defendant, and the second defendant knew of that contract and was required to oversee it and make sure that it was adhered to by the third defendant. Furthermore, in January 2012, a month before the plaintiff's slip and fall, the third defendant had provided to the second defendant documentation indicating that it knew that good practice required it to barricade off any area of the property which was the subject of "flooding" or the like. Neither the second defendant nor the third defendant is in any way responsible for establishing the dichotomy between a minor and a major leak. That dichotomy is set out in the cleaning contract between the first defendant and the third defendant. I have already recited evidence that when Mr Irvine had drawn to his attention a leak, he would attend the site of the leak with the cleaning foreman or head cleaner at the time and the security guard, and he would determine whether the leak was major or minor, and then the system that he thought ought exist was put into place, that is, if a leak were only minor, a bucket and signs would suffice, but if the leak were major, that the area must be barricaded off.
I have already pointed out that the area should have been barricaded in any event and that a leak can be a dynamic thing and things might change from time to time. I pointed out that there was no evidence adduced as to how the leak functioned, that is, as to its nature, between its being identified on 1 February 2012, and the time of the plaintiff's fall on 5 February 2012 at 4.50pm, nor as to how it was earlier contained. It may have previously been contained with a bucket and signs, but the evidence was not called to establish that. Clearly, it was not being adequately controlled at the time of the plaintiff's fall. Whether it had been adequately controlled at all times prior thereto, no evidence was adduced.
I do know that there was an onsite presence at the shopping centre by the second defendant during ordinary business hours, that is, in essence, between 9pm and 5pm on Mondays to Fridays. The evidence suggests that there was noone from the second defendant on the premises on weekends. It would appear that the cleaning staff and the security staff were left to manage or oversee the property during times when no one was present from the second defendant, that is, during the evenings and nights and on weekends. An inference can be drawn, from the documentary evidence in particular, from the daily inspection reports, that de facto the security staff may have been in charge of the centre in the absence of staff from the second defendant, but again that has not been the subject of any direct evidence. However, there is no suggestion that the security staff had any role to play in cleaning the premises other than reporting things such as spillages or incidents or any hazard detected. I am confident that their contract would require them, that if they became aware of any hazard, to take appropriate steps to right the hazard, whether the hazard was a fire, a flood, a spillage or a ne'er do well member of the public who might cause mischief either by being a nuisance or committing crimes such as shoplifting. It appears to be common ground that this is a normal type procedure for these sorts of shopping complexes. As I pointed out, the contract between the first and second defendants regulates a large number of shopping complexes throughout the Commonwealth of Australia.
In essence, the plaintiff's accident occurred, as far as the defendants are concerned, because the measures taken to contain the leak were no longer effective to do so. When they became no longer sufficient to do so, I do not know on the evidence, because the evidence only tells me what it was likely immediately prior to the plaintiff's slip and fall.
The third defendant has submitted that it is only 50% responsible for this accident and the other 50% of liability, once contributory negligence has been taken into account, ought rest with the second defendant. The second defendant submits to the contrary and submits that the lion's share of any liability should rest with the third defendant, an expert cleaner, who failed to do what the expert cleaner should. There is force in that submission, but there is a countervailing factor in the present case. Most slip hazards are due to things such as spillages, to for example, a child dropping an icecream or a walking customer dropping a drink or the dropping of food near a food court or by a customer walking along eating chips, who drops a chip onto the floor. Here there is a leaking roof which needed to be repaired, and the only person who could put repairs into motion relevantly is the second defendant. I have already pointed out that the second defendant ought to have perceived that a leak might be a dynamic thing and that things could change. Perhaps it might have been prudent for the second defendant to have staff call in and do some "spot checks" over the weekend, when there were a leaking roof and heavy rain. I agree that the major responsibility ought lie with the contracted cleaner. However, the second defendant was required to make sure the third defendant did its job properly and could not merely do nothing, not absolve itself of responsibility at 5pm on Friday and resume responsibility at 9am the following Monday. It left, with there being a foreseeable risk, a leaking roof after heavy rain and during heavy rain, and that is different to the casual spill or spillage often caused by errant visitors to a shopping centre. I come to the view that as between themselves, I ought apportion one third of liability to the second defendant and the remaining two thirds of liability to the third defendant.

Contractual liabilities

I must now turn to the contractual indemnities. Again that has been the subject of fairly voluminous submissions. I firstly turn to the contract between the first defendant and the second defendant, exhibit 8. The word "Loss" is defined in this contract as meaning "any loss, cost, damage, liability or other detriment". Clause 6.2 of the contract is this: "PMC [the second defendant] indemnifies ISPT [the first defendant] from and against all Loss directly incurred or suffered in whole or in part by ISPT by reason of any: (a) misconduct or breach of Law by PMC; (b) breach by PMC of this agreement; (c) negligent act or omission on the part of PMC; (d) other matter or thing caused or contributed to by a negligent act or omission of or breach of this agreement by PMC; or (e) a material risk created during the Term solely by PMC." Clause 6.1 is an indemnity by the first defendant in favour of the second defendant. Clauses 6.3 and 6.4 of the contract have a heading of "Mutual Rights" and provide this: "6.3 Where negligence is found to have been contributory, each Party shall bear responsibility in accordance with that Party's proportionate fault. 6.4 Each Party shall indemnify the other only to the extent that Party would have been liable at common law." I believe it proper to read cl 6.4 as meaning this: "Each party shall indemnify the other Party to the extent that that Party would have been liable at common law." Here of course the mutual rights clauses are irrelevant because the first defendant has not been held to have been negligent.
However, it can be seen that the second defendant has granted to the first defendant an indemnity against all loss, which includes costs directly incurred or suffered by ISPT by reason of a negligent act or omission of PMC. The only "loss" incurred by the first defendant will be the first defendant's costs of defending the claim made by the plaintiff and the costs of the cross claim brought by the first defendant against the second defendant. The first defendant is clearly entitled, under the indemnity clause, to its costs of bringing the cross claim, albeit that it was not required to pay any damages to the plaintiff. However, the first defendant has incurred the costs of defending the plaintiff's claim and such costs are a loss and therefore something that can be recovered by the first defendant from the second defendant.
The order sought by the first defendant as against the second defendant is this: "The second cross defendant to the Second Cross Claim indemnify the second cross claimant in an amount being: (a) the sum of the costs of defending the plaintiff's proceedings on a solicitor/client basis; and (b) the sum of the costs of prosecuting the Second Cross Claim on a solicitor/client basis." True it is that the second defendant will obtain an order for costs against the plaintiff. I have yet to make any order as to costs. However, the availability of a separate right does not diminish or replace a contractual right against another person. Mr Gracie was kind enough to refer me to Kyabram Property Investments Pty Limited v Murray and Anor [2005] NSWCA 87 in which Beazley JA wrote at [12] to [13] of the well-established principles concerning contractual entitlements to costs where considerations of discretionary orders were to be considered. Having closely considered what Mr Gracie wrote in his written submissions in this regard, MFI 16, I accede to the orders which he seeks.
I turn now to the third cross claim which is the cross claim brought by the first defendant against the third defendant. The cleaning contract contains this definition of "Loss": "Loss means any loss, cost, damage, liability, injury or other detriment, including legal costs, consequential loss, special loss and economic loss." Clause 7.3 of the cleaning contract is this: "Release and indemnity (a) The Contractor releases ISPT and ISPT's Servants and Agents to the fullest extent permitted by Law from all liability to the Contractor for Loss suffered or incurred by the Contractor, directly or indirectly, related to the Contractor's entry upon and use of the Property or the provision of or ability to provide the Services, except to the extent that the Loss is caused or contributed to by ISPT's wilful or negligent act or omission. (b) The Contractor indemnifies ISPT and ISPT's Servants and Agents against all Loss suffered or incurred, directly or indirectly, caused or contributed to by the Contractor's: (i) fraud, misconduct, dishonesty or breach of Law; (ii) negligent or wilful act or omission; (iii) failure to comply or delay in complying with an Obligation; or (iv) use, negligent use, misuse, waste or abuse of the Property, the Installations or the Contractor's property, including the incursion of water into the Property, except to the extent that the Loss is caused or contributed to by ISPT's wilful or negligent act or omission." One will note that the third defendant has agreed to indemnify the first defendant against all loss suffered by it as a result of its negligent or wilful act or omission. One will note that the definition of loss and also that the indemnity is in respect of any loss suffered "directly or indirectly."
The first defendant seeks these orders: "The third cross defendant to the Third Cross Claim indemnify the third cross claimant in an amount being: (a) the sum of the costs of defending the plaintiff's proceedings on a solicitor/client basis; and (b) the sum of the costs of prosecuting the Third Cross Claim on a solicitor/client basis." Again the indemnity granted in that contract has, in my view, the same force and effect as the indemnity granted by the second defendant to the first defendant, and for the reasons advanced by Mr Gracie his client is entitled to those orders.
The remaining cross claim is that brought by the second defendant against the third defendant which as I have earlier stated contains, amongst other orders sought, an order for contribution towards damages pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. The second defendant also claims from the third defendant "a contractual indemnity," but there is no contract between the second defendant and the third defendant. However, there is the contract between the first defendant and the third defendant, and that contract requires the third defendant not only to indemnify the first defendant, but also to indemnify the first defendant's servants and agents and clearly the second defendant is an agent of the first defendant.
Mr Purdy has provided written submissions concerning his claim for the contractual indemnity relying, as he must, upon the principle arising from Trident General Insurance Co Limited v McNiece Bros Pty Limited [1988] HCA 38; (1988) 165 CLR 107 in which a party was held to be entitled to the benefit of a contract to which it was not privy. Although the High Court did not reject the general principle of privity of contract, that a third party promisee under a contract cannot enforce the contractual term.

[ADJOURNED TO TUESDAY 27 OCTOBER 2015]

Yesterday afternoon I had reached the point where I cited the fact that Mr Purdy had provided written submissions concerning his claim for contractual indemnity, relying upon the principle arising in Trident in which it was held that a party to litigation was held to be entitled to the benefit of a contract of insurance to which it was not privy.
Mr Gracie was then kind enough to refer me to the decision of McDougall J in Rail Corporation of New South Wales v Fluor Australia Pty Ltd [2008] NSWSC 134. That concerned an action for damages resulting from a train derailment. Involved in that case was a contract known as "the Alliance contract". The relevant facts concerning that contract are these: "10 On 4 July 1997, RAC and Fluor entered into an "IWMP Alliance Contract" (the Alliance Contract). Fluor (then known as Fluor Daniel Pty Limited) was called "IWMP" in the Alliance Contract. That acronym stands for "Infrastructure Works and Maintenance Provider". 11By the Alliance Contract, Fluor undertook to carry out what were known as "IWMP Works" and "RAC Contract Management Services" for the East Hills line. In brief, the IWMP works included capital works, major periodic maintenance and routine maintenance works as described in the "Brief" that was Annexure B to the Alliance Contract. The RAC Contract Management Services were services provided by Fluor as superintendent or principal's representative under each "RAC Contract" for capital works, major periodic maintenance works and routine management works. The RAC Contracts were those specified in the Brief or otherwise identified in accordance with the relevant provisions of the Alliance Contract. 12 Fluor was entitled to subcontract out the performance of its obligations, both in respect of the IWMP works and in respect of contract management (cl 4.8(a)). However, if it did so, it was required to "manage the performance of each Subcontractor to ensure the quality and timeliness of its performance" (cl 4.8(c)). Further, if Fluor did subcontract out any of its obligations, those obligations were "not lessened or otherwise affected by" that subcontracting out (cl 4.8(d)). 13 The Alliance Contract contained complex provisions relating to "indemnities and limitations of liability" (cl 10) and a "risk of loss or damage and insurance" (cl 11). 14 By cl 10.2, Fluor undertook to indemnify RAC against all "damage, expense [and] loss... arising out of the performance of the IWMP Works and the RAC Contract Management Services", with exceptions set out in subcl (b). That liability was limited in a number of ways by cl 10.4. Of particular significance, by cl 10.4(a)(iv), Fluor's liability in respect of any event that was "an insured risk under any insurance policy effected in accordance with cl 11, [is] limited to the maximum amount paid for that risk under that policy". 15 Clause 11.2 required both RAC and Fluor to take out insurance. The insurance to be effected by RAC included public liability insurance. That insurance was required to include "a cross-liability clause" whereby the insurer agreed to waive all rights of subrogation that it might have or acquire against the insured parties (cl 11.2(a)(ii); (c)). All insurance effected by RAC was required to "include the IWMP and its Sub-contractors and RAC as named insureds" (cl 11.3). Fluor was required to effect and maintain "professional indemnity insurance, for any breach of duty owed in a professional capacity by" it or, in some circumstances, its subcontractors (cl 11.2(c))." McDougall J then turned to consider "glued insulation joints". His Honour then said: "16 A GIJ is a point in a rail line that is cut and insulated for signalling purposes. By the time the Alliance Contract was made, GIJs were being phased out and replaced by other signalling devices. The removal of GIJs on the East Hills line, and their replacement by length of rail welded into the tracks in their place, was one of the items of major periodic maintenance work specifically referred to in the brief annexed to the Alliance Contract. 17 It is common ground that Fluor subcontracted to Alpcross the removal of GIJs and their replacement by lengths of rail. It is also, I think, common ground that this task was to be carried out by what is known as the "rail in / rail out" or "steel in / steel out" method."
At [24] his Honour noted that it was common ground that during the nights of 4 and 5 October and 5 and 6 October 2000 Alpcross had removed two GIJs, one from the up rail and one from the down rail, at a point 5 metres away from the location of the derailment in question. At [25] his Honour outlined briefly the case of Rail Corporation New South Wales against Alpcross, that it did not utilise a certain method when it replaced GIJs in question and that it placed too much steel into the rails in place of the removed GIJs. According to Railcorp that led to the buckling of the railway track leading to the derailment. At [147] his Honour recorded that counsel for Alpcross, Mr J E Robson SC with Mr Gracie, submitted that Alpcross had the benefit and could enforce as a legal entitlement a promise made by Railcorp in the Alliance contract. His Honour then went on to discuss the submissions put by Mr Robson SC and Mr Gracie.
His Honour commenced upon a very interesting, entirely readable and entertaining review of the case law commencing at [164]. His Honour discussed each of the principal judgments in Trident, both in the High Court and also in the Court of Appeal, in particular the decision of McHugh JA (as his Honour then was) in the Court of Appeal. The final two paragraphs of his Honour review of the law are these: "180 There is nothing in the judgments of Mason CJ and Wilson J and Toohey J, or of McHugh JA, to suggest that their Honours intended that what they said should be applied beyond the precise question before the Courts: whether a third party named as an insured in, but not a party to, a policy of liability insurance could sue at law to enforce a promise of indemnity in favour the third party. Undoubtedly, as Toohey J recognised, the view to which their Honours came might lead to a questioning of the doctrine of privity of contract in a more general context. But if that is to happen, it is a matter for the legislature or an ultimate court of appeal, not a matter for a court of first instance. 181 In my view, the extent that Trident is authority for the proposition that in defined circumstances a stranger to a policy of liability insurance may sue at law to enforce a promise given for its benefit, it is not authority for a wider proposition that a stranger to any contract may sue at law to enforce a promise in the contract given for its benefit." There was an appeal from that decision which is reported at [2009] NSWCA 344 but his Honour's finding on the question of privity of contract was not challenged on appeal.
The cleaning contract between the first defendant and the third defendant is not a policy of public liability insurance. If McDougall JA in the Supreme Court is not prepared to extend the holding in Trident, then it is incumbent upon a puisne judge of this Court not to do so either. I therefore must reject Mr Purdy's submissions insofar as he seeks the benefit for his client of the contractual promise made by the third defendant to indemnify not only the first defendant but also its servants and agents.
I believe that I have now said enough to justify the making of final orders. I shall announce to those at the Bar table what the proposed final orders are, then ask them firstly whether they require any further reasons, and, secondly, whether they seek any alteration of the proposed final orders. I should indicate that I have not heard anything about the question of costs and although some of the proposed orders will concern questions of costs, they are only costs in respect of the cross-claims.

[SUBMISSIONS]

HIS HONOUR: I make the following orders: 1. I give judgment for the plaintiff against the second and third defendants for $32,512. 2. I give judgment for the first defendant against the plaintiff. 3. I give judgment for the first cross-claimant against the first cross defendant for $21,675. 4. I order the first cross-defendant to pay the costs of the first cross claimant of that cross-claim. 5. I give judgment for the second cross-claimant against the second cross defendant for the sum of: 1. (a) the costs of the plaintiff's case against the first defendant/second cross-claimant and 2. (b) the costs of prosecuting the second cross-claim, 3. both such sets of costs to be quantified on the solicitor/client basis. 1. I give judgement for the third cross-claimant against the third cross defendant for the sum of: 1. the costs of the plaintiff's case against the first defendant/third cross-claimant and 2. the costs of prosecuting the third cross claim, 3. both sets of costs to be quantified on a solicitor/client basis.

ADJOURNED TO MONDAY 30 NOVEMBER 2015 FOR ARUGMENT CONCERNING COSTS

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: 19 January 2016

At a glance

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Judgment (35 paragraphs)

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Cases Cited (20)

Cited By (1)