Belinda Budich v Knightly Holdings Pty Ltd

Issue 2Ms Budich filed a statement of claim on 2 December 2010. Ms Budich brought proceedings against the Centre Operator, the provider of the stand, table and water cooler, Awesome Water Pty Ltd ("Awesome Water") and Mr Hancock. Ms Budich's claim was ultimately settled as between the Centre Operator, and Awesome Water, at the figure of $360,000 plus costs - see exhibit 1: orders of 23 August 2012 of his Honour Judge Mahony SC. That followed the acceptance of an offer of compromise by the Centre Operator accepting an equal 50% liability for damages and costs. Judgment was entered against Awesome Water in favour of Knightly Holdings on the second cross claim filed 2 April 2012, in the sum of $180,000, together with half the costs of Knightly Holdings. The consent orders noted that these proceedings were contemplated at the time of paragraph 8, namely the apportionment issue as between Knightly Holdings and Mr Hancock. 3There is no evidence of any cross-claim or other proceedings or arrangement as between Awesome Water and Mr Hancock. There is no appearance by Awesome Water and it is unclear whether Awesome Water has been formally notified of these proceedings. The Court records indicate that there is the one solicitor, Lee and Lyons, acting for both Awesome Water and Mr Hancock. To the extent relevant, both are insured by the one insurer - unsurprisingly as Mr Hancock was a franchisee of Awesome Water. Any findings in these proceedings - see below - cannot bind Awesome Water. I have been informed by Mr Torrington on instructions that there will be no proceedings by Awesome Water against Mr Hancock

Hearing 4The hearing on this issue took place on 19-21 November 2012. Evidence was given by Ms Budich, Mr Hancock and his de facto partner, Ms Burn. The relevant Manager of the Centre Operator, Mr Koroneos, was not called. As a result of the approach adopted during the cross-examination, Mr Torrington requested (without opposition) an adjournment for submissions to enable a transcript to be obtained. Dates convenient to the Court in December were not convenient to the parties. The earliest convenient date for the parties was 21 March 2013.

Facts 5To save costs and time, I provided the parties at the end of the evidence with an earlier draft of the factual outline which follows. I do not understand there to be any or any substantial disagreement with my findings of the relevant facts. 6Those are: On Monday, 3 December 2007, Mr Hancock set up a display of water products on a table at the entrance of the Caringbah Shopping Centre in South Sydney. At the time, the Centre Manager employed by the Centre Operator was Mr Theo Koroneos ("Mr Koroneos"). 7The display Mr Hancock set up consisted of a small, portable, folding table of about 700mm2, with an associated display stand (similar to an A-frame easel). On the table, on a cloth, was an eight-litre dispenser of water. It was resting - and not secured - on the table. The table and display were erected just inside the glass doors, on the main entrance to the Centre leading out of the car park. The stand, table and other materials were as provided by Awesome Water. That included the paper cups for dispensing water to passers-by and potential customers. 8Awesome Water as franchisor was the supplier of the stand and its constituent parts including the water dispenser, the A-frame easel, the table and the water products. Those were selected and collected by Mr Hancock from Awesome Water's array of stands. 9Mr Hancock approached the Centre for permission to erect the display for a payment of $1210. The letter to Mr Koroneos dated 6 November 2007 (exhibit 7) was for the display to be in the hall of the Centre for a period of seven days from 3 to 9 December 2007, inclusive. 10The letter from Mr Hancock indicated that he was experienced in that activity, having previously erected and conducted similar displays in seven such shopping centres. The letter included standard commercial references including insurance cover. Clearly, it was to be a commercial arrangement. 11That offer - including the payment tendered of $1210 - was accepted on 3 December 2007 (exhibit 10). That followed discussions between Mr Koroneos and Mr Hancock as to the terms of the casual lease and where the display might be located in the Centre. 12Mr Hancock selected a site outside a chemist shop. That site was changed because of a complaint by another tenant in the Centre. Mr Hancock ultimately erected it just inside the main entrance to the Centre where he was directed to by Mr Koroneos. The site utilised was adjacent to the entrance through which many shoppers passed on their way inside. It was about 1.5 metres from the walkway in an imaginary line coming from the main entrance doorway through and into the Centre. A photograph (exhibit 4 - photo 11) showed the precise dimensions of the area where the stand was located. Mr Hancock was assisted by his partner, Ms Julie Burns ("Ms Burns"). Mr Hancock placed the eight-litre water container on the portable fold-up table.

Position of Ms Burns 13Considerable time was taken up during the hearing as to the position of Ms Burns. Her evidence was that Mr Hancock claimed for her time in his invoices to Awesome Water and that he arranged for her salary to be paid through his discretionary trust. Mr Hancock confirmed that. She took her instructions from him - including what to do and where to do it. Whatever the position was between Ms Burns and Mr Hancock - and it is clear that they had been in an emotional and domestic relationship for many years - in my view that does not affect the liability of Mr Hancock.

Incident 14The contact between the A-frame, the fall of the water cylinder and the dispersal of the water all happened in a matter of seconds. Ms Burns was making up pamphlets while seated at or adjacent to the display. Having heard a sound like a thump, she looked up. The lady with the shopping trolley said "I'm terribly sorry I didn't see you there." Prior to that the lady with the trolley had had her head down. 15Ms Budich was on a lunch break coming back into the Centre when the accident occurred. Ms Budich didn't notice anything different on the floor before she fell. After she fell, she noticed she was in a puddle of water. The water was hard to see on the terrazzo floor of the Centre. There was no water in that area through which she had passed earlier after starting her lunch break. Ms Budich saw the water-spill came from the area outside the pharmacy. She fell heavily, her upper body fell backwards and both feet went from under her. She was taken to hospital by ambulance. 16As a result of the accident, Ms Budich suffered injuries, including, at least, one dislocated kneecap and a long period of hospitalisation. She was, at the time, an employee of a Baker's Delight store in the immediate vicinity of where the accident occurred. She had been working there for about four months.

Context 17A diagram of the Centre was tendered (exhibit 2) and a photograph of the entrance. The area where the accident occurred is adjacent to the entrance to the large car park at the Centre. The accident occurred on a Monday morning in the pre-Christmas shopping period.

Approach: apportionment of liability 18There has been continuing disagreement between the parties from the outset as to the approach to be adopted on the apportionment of liability. Mr Gracie for the Centre Operator submits that the approach should be one of deciding liability only as between the tortfeasors who are the party to the proceedings, namely, the Centre Operator and Mr Hancock. Further, that the Court is not concerned with any issues involving Awesome Water. 19 Mr Torrington for Mr Hancock submits that there should be an assessment of liability as between all tortfeasors having regard to the total factual matrix. He contends that there has been a merger or satisfaction of any claims the centre operator may have against Mr Hancock by these judgments. Mr Torrington submits that any liability on Mr Hancock's part was satisfied by the judgment against Awesome Water - see Babcock [2001] NSWDDT 4 at 25. 20Mr Gracie relies on Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Coy Pty Ltd [2001] NSWCA 461; (2001) 53 NSWLR 626 esp. at [83]; AMACA Pty Ltd v New South Wales [2003] HCA 44; (2003) 77 ALJR 1509 and on his submissions. It is clear that the questions of liability in that case - see AMACA (op cit) at [20] - were determined ahead of the contribution claims. 21Here, the acceptance of liability by Awesome Water as to 50% of the total is clear from the original terms of settlement. The deficiencies identified in AMACA Pty Ltd v New South Wales (at [20] ff do not arise in this instance both as to the identification of the duty or the breach or the responsibility for damage. Further, these proceedings are part of the original proceedings where all the tortfeasors have been identified and where the other tortfeasor involved has accepted liability. I will determine the matter in accordance with s 5(2) of the Law Reform (Miscellaneous Provisions) Act 1946, namely: "...the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity." 22In my view, that determination of the extent of a tortfeasor's responsibility must involve an assessment of the actual and comparative causative responsibility of all other tortfeasors, in the context of the total factual matrix, to their responsibility to the Plaintiff's liabilities. In the circumstances of this case, that must mean to consider the roles and liabilities of each of the tortfeasors as they are known and have been identified in related proceedings as well as what liability has been accepted by them or any of them. Here that must mean bearing in mind what contribution has been recovered by the Plaintiff. 23To deny the consideration of the position of Awesome Water in this case - as urged by Mr Gracie - would be to ignore the part played by Awesome Water and the causal potency of its acts or omissions in the total factual matrix and to the incident - when it clearly had, and accepted, a liability. 24Further, limiting that assessment to these two parties to the proceedings as urged by Mr Gracie would also be deny the Court's power under the remaining parts of the section to "...exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity" as provided in s 5(2). The exercise of that power clearly envisages a consideration of the position of other parties as to, for example, their respective contribution and what liabilities have been incurred and in relation to which an indemnity has been, or will be, given.

Terms of settlement: original proceedings 25The terms of settlement apportioning equal liability between the Centre Operator and Awesome Water contemplated these proceedings. The terms specifically state that the "The Second Cross Claim brought by the First Defendant against the Third Defendant...listed for hearing...on 19 November 2012." There can be no presumption in those circumstances that there was to be full satisfaction of all liability thereby operating to deny the plaintiff an entitlement to further claim against others who may be concurrently liable - Boyle v State Rail Authority (1997) 14 NSWCCR 374. However, that does not mean that the extent of the liability which has been accepted should be ignored on a subsequent assessment of apportionment as between each tortfeasor.

Estoppel 26To the extent that estoppel has been argued in these proceedings - at least inferentially - there has been a determination of the proceedings as between the Centre Operator and Awesome Water. These proceedings do not seek to disturb that. What is in issue is the apportionment of liability as between the Centre Operator and Mr Hancock on the totality of the proceedings and the evidence.

Pleadings 27After a series of amendments, the parties rely on the following pleadings:

• Second cross claim and amended statement of cross claim filed by Knightly
• Defence to amended statement of cross claim filed 21 September 2012 28The Centre Operator, Knightly, now seeks from Mr Hancock that he make a contribution to its liability of $180,000 plus part of the costs. The precise order sought is that Mr Hancock indemnify, or make contribution to the liability of Knightly Holdings, that is, a proportion of the damages paid by the Centre Operator.

Evidence 29In addition to the admitted facts (exhibit 12) and the other items referred to, the following additional documents were tendered: A report of Neil Adams, safety management consultant, (exhibit 4) 21 December 2011; Franchise agreement Awesome Water and Mr Hancock 1 July 2006 (exhibit 5); Letter to Mr Koroneos, Centre Manager Centre Operator 6 November 2007 (exhibit 7); Acceptance of offer 3 December 2007 from Mr Koroneos (exhibit 10); Mr Donohue, the Centre Operator's Expert's report on the water display items including the stand (ex 11). 30I have heard evidence from Ms Belinda Budich, as to the circumstances of the accident as well as from Ms Burns and Mr Hancock.

Ms Budich 31Ms Budich is now aged 30. She impressed me as being articulate, having an appropriate recall of events, and as being a witness of the truth.

Julie Burns 32Ms Burns's statement made after the incident was tendered (exhibit 14). I did not see anything in her evidence or presentation which detracted from the honesty or reliability of her evidence. There are some conflicts in her evidence compared to that of Mr Hancock but they were consistent with different witnesses having different recollections and perceptions on relatively insignificant matters. I did not regard those to be of significance in my assessment of relevant issues in this case. 33Ms Burns is presently a homecare worker. She was working for Mr Hancock on the day. When she and Mr Hancock arrived at the Centre, Mr Hancock met Mr Koroneos who told them where they were to set up the display, in the area adjacent to the main entrance, near the chemist shop: see exhibit 2. That occasion was the first time Ms Burns and Mr Hancock had set up the display in that Centre. 34Mr Hancock set up the portable table which involved unfolding its legs. Ms Burns was with him. There was a small table with a freestanding water dispenser from Awesome Water, which was a hot and cold water dispenser. There was a stand - about 5' in height. 35The table came from Awesome Water rather than the Centre. The payment for the use of the Centre was made by Awesome Water. Ms Burns couldn't recall using the small table in any of the earlier displays. The small table was the only size which would fit in that area - the other larger tables normally supplied by Awesome Water would have been too big. Mr Hancock selected a smaller table. 36One of the staff from the chemist shop adjacent to where the display was erected asked for the table to be moved from its original position. The Centre manager, Mr Theo Koroneos, came past and Ms Burns recounted what had happened in relation to the insistence of the pharmacy staff that the stand be moved. Ms Burns said she didn't feel comfortable with the location of the stand. Mr Koroneos said he would take up the issue of the placement of the display and its movement. 37Later in the morning, Ms Burns heard a scream behind her. At the same time she heard the bump or thump. That was likely to have been Ms Budich falling over as Ms Burn saw her on the floor immediately thereafter. Ms Budich was on the ground, screaming in pain. Ms Budich's evidence was that she had just had some surgery on her knees. Ms Burns tried to stop people coming near.

Mr Hancock 38Mr Hancock operated as a franchisee of Awesome Water (see franchise agreement; exhibit 5) from January 2007 until the agreement expired on 31 July 2011. Awesome Water provided him with all equipment including the display items - including a range of tables and water coolers/dispensers. Awesome Water provided all items of the display and paid for all associated costs including the casual leasing premium of the site and costs and insurance. 39Mr Hancock's practice was to arrange for casual leasing with relevant centres within his area, namely, the area of Southern Sydney. He had conducted a number of displays in other centres without incident. That was a common arrangement. He did that with Mr Koroneos. 40Mr Hancock wanted his display to be located near a Coles/Woolworths shopping area or a large supermarket in the Centre. That was the preferred site according to the Awesome Water guidelines but that was not permitted in this instance. He then nominated a second site within the Centre. He was also not permitted to use that site by Mr Koroneos. He indicated the third preferred site for his display which was where the display was ultimately located. Mr Hancock did not think the ultimate place for the display was the optimal space or position but accepted it as the preference of the Centre Operator. 41The site selected was the last option Mr Hancock felt he was left with by virtue of the expressed preference of Mr Koroneos. Neither appeared to have given consideration to the site outside the doors which was selected after the accident occurred. The Centre management - here Mr Koroneos - told him where, and in what hours, the display could be erected. When he made those arrangements with that and other centres, he was accompanied by Ms Burns. 42Mr Hancock then submitted a proposal which formed the basis of the arrangement with the Caringbah Centre - exhibit 7 - and accepted - exhibit 8. He met with Mr Koroneos on the morning of 3 December 2007. Mr Hancock collected the table from Awesome Water. It was from a range of tables available. He made the decision that it was to be a small table given the locality and the space available as specified. It was a lower set, display table - about 400-500mm in height. Mr Hancock said the A-frame was made from steel erected to adjoin the sign. Mr Hancock described it in his statement as a "sandwich board sign." 43The display stand and fittings were each about 15cm high. There were also plastic cups used for dispensing water to passers-by to attract them to the display. 44After the incident involving Ms Budich, the display was re-erected by Mr Hancock outside the Centre. He then used a larger table with the same equipment at a greater distance from outside the door. Mr Hancock's evidence was that he set up the display and Ms Burns did the paperwork and light work associated with running or staffing the display. 45Mr Hancock said it was a joint enterprise by the two of them. He carried out all the re-assembly of the table outside the Centre. It was his decision as to what table would be used in accordance with the space available, as dictated by the Centre manager. He thought Ms Burns had tried to warn other passers-by. He said that he never contemplated any of what occurred. It had never happened to him before. 46He said Ms Burns was "fanatical" about using a cloth to wipe any spillage of water - for example, from the cups either onto the table or the floor, for cleanliness and safety reasons. There was also a drip tray on the front of the water dispenser designed to collect drips from the dispenser. It was clearly inadequate to collect any spillage of the kind which occurred. 47There were some conflicts between his evidence and that of Ms Burns and those facts admitted in the two notices to admit facts. I do not accept those as being of any significant relevance for these purposes. 48Mr Hancock continuously insisted during his evidence that what he did was either at the direction of the Centre Operator and Mr Koroneos or otherwise in accordance with what was required by Awesome Water. However, he otherwise impressed me as not exaggerating and being careful and truthful in his answers.

Absence of evidence of Centre Management 49Mr Koroneos did not give evidence. Counsel for Mr Hancock asks me to draw a 'relevant inference', presumably as to what Mr Koroneos might have been able to say. I do draw an inference against the Centre Operator that what he could have said would not have been in the Centre Operator's interests in relation to any system of inspection or supervision of the sites selected on which displays were erected or any cleaning and emergency systems to deal with, for example, spillages.

Other relevant matters 50The floor of the relevant part of the Centre was made of smooth terrazzo (exhibit 4). The floor where the incident occurred was of a speckled colour - also making sight of anything on the floor a matter of some difficulty. The inspection report notes that that area is likely to be slippery when wet. It was a sunny, dry day. 51No one warned Ms Budich of the water, nor was there any warning sign, for example, a stationary sign. Nor was there a security guard, a cleaner or warning from those operating the display. However, what occurred, occurred very quickly after the water spill. What the Court is concerned about in these proceedings is the safety of the systems in the circumstances and whether there was an obvious risk.

Submissions 52Mr Torrington submits that the assessment should be made by determining the causal potency of the acts or omissions of Mr Hancock to the injuries suffered by Ms Budich. It was reasonable that Mr Hancock obey the directions of the Centre Owner and the Manager, Mr Koroneos, in particular given that he told him (or he and Ms Burns) to stay in the position which he selected. 53Mr Torrington also submits that the evidence establishes it was the Centre Operator's centre where Mr Koroneos gave the directions. It was Mr Koroneos' direction as to where the table and display should be set up. Any causal link there was between Mr Hancock's ultimate erection of the stand and the damage suffered by Ms Budich were broken by the actions of the Centre Manager. 54Finally, he submits that the acceptance of liability by Awesome Water effectively disposes of any subsidiary liability on the part of Hancock. The table and water containers were supplied by Awesome Water which must have been the party primarily at fault for a negligently erected display. 55Mr Gracie submits that the authorities make it clear that there is an acknowledgement that slippages occur in, and around, shopping centres. The issue becomes what is a reasonable response of the owners/operators and other relevant persons in those circumstances. 56Mr Gracie also submits that Mr Hancock was an independent contractor in terms of the franchise agreement and given all the evidence which has been given; further, that what occurred here was a series of torts rather than there being a joint tortfeasor situation. Mr Hancock was in the Centre effectively as an independent contractor at all times and his actions were also those of an independent contractor. Mr Hancock did not carry out any proper private inspection. He therefore did not investigate matters which he knew or ought to have known were a foreseeable risk; further, he did not investigate nor make his own proper assessment or judgment as to whether it was appropriate for all the units which he displayed in that place, at that time, and in those circumstances.

What was reasonable in the circumstances? 57Both counsel refer to the evidence of the safety management and ergonomic consultant, Mr Adams (exhibit 4) and Mr Donohue, engineer and professional ergonomist (exhibit 11). Those expert reports were served during the hearing of the cross claim. There was no contest to the underlying facts on which the relevant experts gave their opinions. 58Mr Gracie relies on those reports to establish the reasonableness of what should have been done to prevent the injuries happening to Ms Budich. In particular, that the water-dispensing unit had a pronounced instability, which was inherent from its design configuration. That risk was further amplified by it resting atop a table which was itself a demountable, readily portable and lightweight table. 59Further, the table and the A-frame stand resting against the table were likely to be hit. The loose water and the unfastened container, within which the water was contained, as well as the unstable dispensers and the entire display on top of the table were inappropriate. The display was inappropriate given both the type of and the scale of the pedestrian traffic in the immediate area - see paragraph 2, exhibit 11. Those problems were added to by the height of the table - [5]. It was inappropriate for the tables to be used with that equipment without any clasp or snap-fit mechanism to ensure that the water container was not able to be easily dislodged from the dispenser base or that, if it did overturn, for it to remain clasped and hydraulically intact - [4]. 60The foreseeable collisions included, clearly, shoppers moving in the immediate vicinity, with shopping trolleys or children running around. In those circumstances the location of the stand and the security of the stand were of fundamental importance - [19]. 61The stability of the stand included security of items on the table and rigidity of both the stand and the table in all the circumstances. Further, the A-frame stand need not have been situated against the table. Any contact with the table would have inevitably impinged upon the legs and table itself - [20]. It could have been placed in a way such that, had it fallen over, it could have fallen away from the table - [23]. The table could have been made less insecure by the placement of a mat underneath it to give a greater degree of frictional force necessary for it to be dislodged - [32]. 62Mr Donohue's report refers to the fact that the user, namely the franchisee, Mr Hancock, chose to position the dispenser on the unstable table, in a way that made it even more precarious. That defect should have been corrected - [42]. The report notes that the very existence of the A-frame stand in the context of the overall display, rendered it inherently unlikely to withstand further risks of spillage or discharge of fluid upon the surfaces. There were no procedures in place to limit the spillage - for example, by the placement of mats on the table or below it. 63The report also notes that the accident was not due to the table so much as arising from its configuration and design - [54]. The factors causing the collision - such as the shopper with the shopping trolley not paying attention - was a patent risk but that was only the case because of the defects in the assemblage - [54]. 64The photographs included in Mr Adams report (exhibit 4) make it clear that shopping trolleys were an integral and expected part of the pedestrian traffic within the centre. There were ramps consistent with the use of trolleys. Trolley stands and container areas are visible immediately outside the entrance doors, adjacent to where the stand was set up and the incident occurred (exhibit 4 - photograph 3). 65The size of the area in which the stand was set up and its proximity to the doorway and the adjacent pharmacy are clearly evident in photographs 6 and 11. The dimensions are marked and show it to be a very cramped area for such a display to be set up and operated in such a thoroughfare. 66Mr Adams also lists reasonable preventative measures which should have been implemented or taken by the Centre Operator: exhibit 4, para 4.18 - pp 21-22. Those measures include provision of slip resistance on pedestrian surfaces, absorbent mats, replacement of the display stand in the more appropriate location elsewhere as well as suitable secure matting on the floor under and around the stand. 67The unchallenged opinion of Mr Adams was that it was entirely foreseeable for each of the defendants that a customer or worker in the Centre might experience a slip, loss of balance, fall or injury when gaining access to the main entrance. Further, that there were reasonable, preventative actions available to minimise the risk of injury. 68Mr Gracie submits that Mr Hancock notified the Centre Operator that he was planning to set up the stand and to bring both the water, table and containers onto the site. Thereafter the only thing that the Centre Operator did was to allocate the space. 69Mr Gracie submits that the apportionment of the sum of $180,000 as negotiated in the award of damages between Hancock and the Centre Operator should be 70% by Mr Hancock and 30% by the Centre Operator. 70Mr Torrington submits that the Cross-claim should be dismissed with costs on the basis that no liability rests with Mr Hancock. Further, that as between the potential tortfeasors (if that is what they are) any liability of Mr Hancock has been satisfied by Awesome Water.

Law 71I have set out the provisions of s 5(2) of the Civil Liability Act 2002. Inevitably the prior issues of liability would have taken into account the provisions of s 5B and 5C.

Liability/ Damages: apportionment 72There were clearly concurrent and successive causes of damage warranting a finding and apportionment of liability in relation to the (respective) duties of care owed by the parties to Ms Budich - March v Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at [512]; Dominello v Dominello; Dominello v Nominal Defendant [2009] NSWCA 95 at [60] ff. The apportionment requires an analysis and comparison of the parties' respective duties, culpability and the relative importance of their respective acts - Wynbergen v Hoyts Corporation [1997] HCA 52; (1997) 72 ALJR 65. The determination of that or those duties is logically anterior to the question of the apportionment of liability - see AMACA (op cit) at [24].

Duty owed 73This was a commercial arrangement between the three parties. All the defendants had something to gain by the erection and conduct of the display. Their respective and individual motivations were financial. All three defendants owed a duty of care which included at least: (a)in the case of the Centre Operator, a duty to those coming onto the premises to ensure safe walkways, adequate for egress and ingress, unencumbered by inappropriate or encroaching items - Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479. There were also systemic duties of ongoing supervision and inspection of the premises; (b)in the case of Awesome Water, a duty to provide materials and other constituent elements of the stands to be erected in such shopping centres which: (i)would be safe, capable of withstanding contact of the kind which occurred here, (ii)which would ensure the security and stability of water coolers on the tables it provided; and (iii)which, if knocked, would prevent the dispersal of water to surrounding areas; and (c)( in the case of Mr Hancock, a duty to select and erect safe stands (with their constituent elements) in a manner and of a kind which would be able to withstand contact. All three breached their respective duties.

Forseeability of risks 74In these circumstances that duty was to protect entrants such as Ms Budich from risks of injury which could be foreseen and avoided - Hackshaw v Shaw (1984) 155 CLR 614. An obvious risk can include risk even though it has a low probability of occurring or if it is not prominent, conspicuous or physically observable. - s 5F (2) and (4) of the Civil Liability Act. 75The context in which these facts should be considered - and which were known to both parties - is that this accident happened at about lunchtime in a shopping mall on a week day in the pre-Christmas shopping period. Ms Budich fell very close to where she left her place of employment. The Centre was busy that lunch time, with a number of shoppers present in the precise area adjacent to where the stand was erected and the accident occurred. In terms of the factors set out in Brady v Girvan Bros Pty Ltd trading as Minto Mall (1986) 7 NSWLR 241 (per McHugh J at 253ff), these were premises used by large numbers of the public; the area involved was a busy thoroughfare. That case pre-dated the Civil Liability Act. 76Accident prevention is important to the community. The social utility of the activity was as part of a commercial arrangement for the benefit of all joint tortfeasors. Such centres are designed in accordance with requirements for a specific width of door-ways and entrances to ensure safe ingress and egress for shoppers. If those are impeded or restricted then it is proper that those responsible should be liable for any damage or injury hereby occasioned. 77There is no explanation given by the Centre Operator as to the choice of the sites selected by Mr Koroneos. He was the one best placed to determine where the stand should be put given his knowledge of the Centre.

Findings 78Against the background of the matters set out, I find that: i.All three defendants knew or contemplated there was to be a display; ii.The accident occurred when Ms Budich slipped on the water which had come from the table on which the water cooler had been placed by Mr Hancock; iii.The time between the spillage and the slip was very small, too small to have avoidance signs erected by anyone; iv.Mr Hancock placed the display in an area as directed by the Centre Operator. The primary responsibility for the selection of the site was with the Centre Operator; v.The Centre Operator apparently did not have any system in place to inspect - and then supervise - the safety of the franchisee's operations other than for Mr Koroneos coming to the area to see where the table and display was set up. Thereafter the responsibility for the matter was left to Mr Hancock; vi.Mr Hancock did not bring those matters to the Centre Manager's attention; vii.The Centre Operator was to receive a financial return from the arrangement and had a primary duty to ensure the safety of its shoppers; viii.The location for the card table display just inside the door was clearly unsuitable for a display, particularly by reason of the proximity of passing pedestrians, and should have been recognised as such by both the Centre Operator and Mr Hancock. ix.Both Mr Hancock and Awesome Water knew what was to be part of the display; x.Mr Hancock selected the table to be used and knew that it was to include an unsecured water cooler. He set up the display and arranged for his partner, Ms Burn, to facilitate the display including the table with the display of the water cooler. Ms Burns was operating at the direction of Mr Hancock. I do not accept the attack on Mr Hancock's credit made by Mr Gracie based on the assertions in the pleadings; xi.The nature of the display was arranged by Mr Hancock to maximise the exposure of the display to people coming into the main entrance of the Centre from outside - including the main car park - and adjacent to the entrance as well as a pharmacy and a newsagency. He thought he was looking out for both his interests and through him, the franchisor's, Awesome Water; xii.It was likely that there would be shoppers passing with shopping trolleys in a walkway close to the display. Both the Centre Operator and Mr Hancock knew of that; xiii.There was a significant risk that passers-by would come into contact with the display when using a heavy object such as a shopping trolley capable of running into, and bringing down, the A-frame and table; xiv.The act of erecting the table the A-frame and associated items in the display should have involved doing so with all due care and attention to what might have been the risk of it being knocked into by a passer-by with a shopping trolley; xv.The area of the placement just within the Centre door was too small to avoid the foreseeable risk of passers-by coming into contact with the display and the A-frame. That was a significant risk, the extent of it being known to the Centre Operator; xvi.Mr Hancock used equipment supplied by Awesome Water; xvii.Awesome Water had the duty to provide a safe system for display of its items; xviii.Mr Hancock had the duty to ensure that the display was set up in a safe way. That included him using a table from a range of tables and the easel available from Awesome Water and to fit the specifications and area nominated by the Centre Operator; xix.There was no method of, nor facility for, securing the water container to the table to cater for the eventuality of the A-frame or any other part of the display, falling on the table - or the table being otherwise disturbed; xx.Ms Burns was operating pursuant to Mr Hancock's instructions and as part of their normal practices in operating under, and pursuant to, the Awesome Water franchise in erecting and staffing the display. I do not find it necessary to determine whether Ms Burns was or was not Mr Hancock's employee or business partner for these purposes; xxi.A reasonable person in Mr Hancock's position should have taken precautions to avoid the risks of the shopping trolley coming into contact with the A-frame and table; xxii.It was reasonable to foresee that, if one of the shoppers - including those with trolleys - came into contact with the table or the A-frame, that the water containers would have fallen off the table; xxiii.Steps should have been taken to secure the water containers in a way which prevented them from dispersing their contents over the adjacent pedestrian walkway; xxiv.There was no system in place to ensure water did not flow onto the pedestrian walkway area or to clean up the water once it was spilt; xxv.The precautions for that risk taken by Mr Hancock and Ms Burn, namely, to have a rag or cloth for mopping up spillage from cups were not adequate; xxvi.There was a probability of harm occurring, if those precautions were not taken, to someone in the position of Ms Budich falling on the footpath; xxvii.Those risks could have been avoided by setting up the table outside the main doors to the Centre - and that should have been known to both the Centre Operator and Mr Hancock; xxviii.Such an alternative arrangement would not have been a significant or relevant burden for those involved or responsible.

Reasonableness of Steps to Avoid Risk 79It was reasonable for both the Centre Manager and Mr Hancock to have a system in place to assess the proximity of pedestrian traffic to the display once it was erected and to then dismantle and re-erect the display elsewhere once it was clear that there was a risk - as there clearly was. The primary responsibility was that of the Centre Manager to select and supervise a proper site. 80Those risks were also reasonably foreseeable and could have been avoided by steps taken by Mr Hancock selecting a smaller table and display items, supervising the stability of the A-frame and inspecting its suitability to withstand collision by a passing customer, by securing the water cooler on the table to prevent its spillage, or to have a system in place for Ms Burns to dismantle or block access to the proximate and passing of pedestrian traffic once the risk of collision became clear and to bring those matters to the attention of the Centre Manager. Other matters - such as the overall suitability of such stands and tables given they were intended by Awesome Water as franchisor for use throughout shopping centres, the construction of the constituent parts including a secure or locking device on the water cooler and a system to mop up or prevent major spillages - were more the preserve of Awesome Water. There is no suggestion that Mr Hancock did not erect the stand in accordance with Awesome Water's generic instructions.

Obvious risk to others 81The existence of water on the floor was not, in my view, a risk of which Ms Budich was, or ought to have been, aware of, nor was it an obvious risk - s 5G(2) of the Act. To the extent necessary I would find that, inherent in the settlement, that Ms Budich has established that pursuant to s 5G(1). On the evidence of Ms Budich and other witnesses, it does not seem that anyone warned her of the water being on the floor.

Apportionment 82All three defendants were liable. In determining the matters of apportionment, I have examined the evidence and submissions and have considered the respective responsibilities of each of the defendants in accordance with my findings and the other matters submitted. That includes an examination of the causation factors and the respective culpability in accordance with the findings I have made. 83The Centre Manager invited the vendor into the centre pursuant to the commercial arrangement they had made. The location of the stand was within the discretion and power of the Centre Manager. On any view, the location of the stand was inappropriate. Located just inside the centre doors, it presented a hazard in its proximity to a high traffic pedestrian and trolley area. 84It was the Centre Manager who was in the best position to understand the appropriateness of the location, in terms of the flooring, the volume of people/shopping trolley traffic as well as associated matters such as lighting. Additionally, the Centre Manager should have assessed the risks posed by the displays or stalls being erected in the context of that familiarity. This includes the possibility of tables being knocked over and of liquid spilling in an area of high movement. It would have been an easy matter for the Centre Manager to check on the location of the stand once it was erected in the light of pedestrian - and other - traffic. 85Mr Hancock represented himself as experienced in the erection and maintenance of such displays. He knew the equipment - having selected and assembled it himself as well as placing on it the unsecured 8 litre water container. He knew its purpose was to attract people to come into close proximity to the display. He described the dimensions of the display but not its stability or safety features. He had erected and maintained similar equipment previously in many shopping centre locations. He did not know of the volume of the pedestrian traffic - that was in the province of the Centre Operator. He represented himself as being experienced in erecting and maintaining such displays. However, either he or at his direction, Ms Burns, should have been aware, once the stand was erected, that it was too close to passing traffic to safely avoid collisions with passers-by. 86A higher and more extensive duty was incumbent on the centre manager to make a proper assessment of the pedestrian traffic. The Centre management has the primary responsibility to ensure the safety of its invited public The Centre Manager could - and should - have made an assessment of the safety and security of the stand once it was erected and the associated foreseeable risk of accidents and spills. He could - and should - have directed the stand be placed elsewhere.

Conclusion 87In terms of what is '...just and equitable having regard to the extent of that person's responsibility for the damage'... within the meaning of the Act, I find there was at least an equal liability as between the Centre Operator on the one hand and both Awesome Water and Mr Hancock, in combination, on the other. The liability of the Centre Operator was, if anything, marginally greater in totality than that of the combined liability of Awesome Water and Mr Hancock. 88On the basis of the evidence and submissions I have heard, I would apportion the total liability by the three tortfeasors to the Plaintiff in the proportions of 50% to the Centre Operator, 10% to Mr Hancock. On the basis of the material before me, the liability of Awesome Water to the total liability would be 40%. However, this Court in these proceedings cannot bind Awesome Water. There may be reasons why Awesome Water would submit that that apportionment as between it and Mr Hancock is erroneous. 89To make the Court's intention absolutely clear, I find that the liability of Mr Hancock to the totality of Ms Budich's damages has been satisfied by the acceptance of liability by Awesome Water. Any final apportionment as between them would be determined in proceedings between them.

Costs 90Both parties submit that costs should follow the event. Neither counsel were in a position on 22 March to submit any other matters which should be taken into account on costs. That matter will be stood over for argument if necessary on 4 April 2013.

Orders 1.First Defendant's cross-claim against the Third Defendant is dismissed. 2.Judgment for the Third Defendant against the First Defendant. 3.Subject to any matters being submitted by way of offers, the First Defendant is to pay the costs of the Third Defendant on the usual basis.

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: 02 April 2013